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shortened or extended but in no way can publication be

CHAPTER 1: GENERAL dispensable. In the absence of a specific period, Art 2


PROVISIONS provides that it shall take effect after 15 days following
the completion of the publication. The requirement of
ARTICLE 1: This Act shall be known as the Civil publication should always be complied with. When the law
Code of the Philippines. (n) is silent; then date of effectivity will be after 15 days
following the completion of its publication in the Official
Republic Act No. 386 CIVIL CODE OF THE PHILIPPINES
Gazette or in the newspaper of general circulation. (Note:
This is the later doctrine)
Main draft prepared by ROXAS Code Commission which (2) The clause unless otherwise provided refers to the
was created via EO 48 March 20 1947 by Manuel Roxas requirement of publication and NOT to the date of
where DR. Bocobo was Chairperson. effectivity. Generally, all laws need to be published unless
The 1947 Code Commission started on May 8 1947 and publication is dispensed with. It says that publication can
ended December 15, 1947. be dispensed with, if the lawmaking body in its discretion
chooses to dispense the requirement of publication, then
Congress passed RA 386: An act to ordain and institute the
that law may be a valid law. While the general rule is laws
Civil Code of the Philippines on January 26, 1949
shall take effect after 15 days after its complete
publication, publication may be dispensed with at the
ARTICLE 2: Laws shall take effect after fifteen days
discretion of the lawmaking body. In other words,
following the completion of their publication in the
publication is a dispensable requirement.
Official Gazette, unless it is otherwise provided. This
code shall take effect, one year after such What is the controlling doctrine?
publication.
Tanada v. Tuvera 1986
SCOPE OF EFFECTIVITY A case filed by a group of militant of lawyers (MABINI
Movement of Attorneys for Brotherhood, Integrity and
Ordinary law Nationalism, Inc.) headed by Senator Lorenzo Tanada, a
The civil code prominent lawyer during his time.
NOTE: When a country is placed under martial law, the
Tanada and his group went to the court to compel
law-making authority is ordinarily vested in the Chief
Executive or President or Commander-in-Chief who
the executive department to disclose or publish certain
usually issues the following below -- Presidential issuances by Pres. Marcos.
General Orders (Codes) They argued that the due process clause of the
Presidential Decrees or Executive Orders (which may constitution demands that these laws should be made
be similar to STATUTES) known to the public. Before one can be prosecuted for
Letters of Instruction or Letters of Implementation violating a certain law, that law must be made known to its
(which may be similar to CIRCULARS) subjects.
Proclamations (which are announcements of
important things or events) Supreme Court Ruling:
Gone are the days for secret laws. Due process demands
DATE OF EFFECTIVITY that laws must come to the open in the clear light of the
sun instead of sulking in their shadows with their deep,
o When the law provides for its effectivity. dark secrets.
Vested in the power of congress is that they are How are people supposed to comply with the laws they do
able to provide for a shorter or a longer period not even know about?
than that of the 15-day period of effectivity of Publication is an indispensable requirement before they
laws. can be become effective, valid and binding.
The publication must be in full or it is no publication at all,
Two views on the clause unless otherwise provided
since its purpose is to inform the public of the contents of
the laws. It must be made in the Ofcial Gazette, and not
1. Requirement of publication
2. Period of publication elsewhere, as a requirement for their effectivity after 15
days from such publication or after a different period
Two schools of thought: provided by the legislature.

Years later, the SC deviated from the Tanada ruling in the


(1) The clause unless otherwise provided refers to the
case of Philippine Veterans Bank Employees Union v.
date of effectivity of the law and NOT to the requirement of
Vega.
publication, which means that the legislature may in its
discretion provide that the usual 15-day period shall be
PVB Employees v. Vega 2001
1
Involves the liquidation proceedings of the Philippine Even assuming that publication is required before RA
Veterans Bank. 7169 can be effective, the records show that this
Liquidation proceedings is a legal process law was actually published. Therefore, it complied
prelude to the eventual closure of a corporation. A with the requirement of Art2.
process where a corporation undergoing financial
LOGIC would tell us that presumably the later law
difficulty is subjected to winding up of its affairs
supersedes the earlier law. A basic rule in statutory
where its assets are converted into cash to be
construction would tell us that in case of conflicting judicial
used in paying its obligations to its creditors prior to its
decisions, the latter decision prevails over the former.
closure.
The Central Bank, the government office tasked Hence, the recent decision is the controlling decision. Main
with the duty to oversee the operations of banks, because when the court renders a decision today, it is
filed an action in court for the liquidation of PVB. presumed that it considered the decisions in the past.
Some of the creditors of the bank were the However Tanada should still be the controlling law w/
employees of the bank who were terminated as a regards to publication due to the ff. justifications:
result of the liquidation proceedings. 1 Art 8, Sec. 4, par. 3 of the 1987 Constitution: no
These employees were represented by their union, doctrine/ legal principle rendered by SC En Banc
PVB employees union. They filed a complaint before may be rendered, modified, reversed IF not by SC
the liquidation court claiming payment of their unpaid En Banc.
wages and other monetary benefits. Tanada was ruled by Supreme Court En Banc
During the pendency of the liquidation proceedings, a while the PVB v. Vega was decided by
new law was passed RA 7169 mandating the Supreme Court in division
rehabilitation of the PVB. 2 Statement of SC in the decision in Phil Veterans
Rehabilitation Be restored to its former condition. The only a mere OBITER DICTUM.
bank will have to be re-operated. The purpose of the None of the parties in the case ever raised the
RA is diametrically opposed to the pending issue of lack of publication nor did they
liquidation proceedings. While liquidation is a prelude challenge the validity of RA 7169 on the
to death, rehabilitation is reviving a dying corporation. ground that it was not published, and yet
The union filed a petition before the labor court the SC made a statement about it. The
asking for reinstatement in the event that the bank is only contention advanced by the
rehabilitated. respondents was on the actual date of
They also filed a motion before liquidation court to stop effectivity but never on the validity of the
proceeding with the liquidation because of the law vis--vis the requirement of
enactment of the new law. publication.
Judge Vega refused and so the matter was brought up Obviously any discussion made by the SC
to the SC. involving the need of publication and its
The Central Bank argued that RA 7169 took effect exception is more of an obiter dictum. Hence,
on March 10, 1992, 15 days following its publication. it cannot be cited as an authority, not a
It appears that the law was published on February 24. binding precedent and neither can it revoke
Also, the law was signed by Pres. Aquino on Jan 2, the ruling of Tanada.
1992.
Central Bank and the Board of liquidators view that RA When is there publication?
7169 took effect only on March 10.
I. Mode of publication:
Supreme Court Ruling: a Before the amendment, the publication was to be
It did not take effect on March 10, 1992. done in the Official Gazette.
While as general rule, publication is required for a b But due to its limited readership, Pres. Aquino
law to be effective and valid, the legislative body promulgated Executive Order 200, June 18, 1987
has the discretion to provide for an exception as modifying Article 2 of the Civil Code, to now provide
when the law itself provides that it be effective upon for the publication of laws either in the Ofcial Gazette
approval of the president. The law is deemed approved or in a newspaper of general circulation in the
when it is signed by the president. (Sec 10 of RA 7169 Philippines as a requirement for effectivity.
II. But when does the publication deem provided? Does
This law shall take effect upon approval.)
it refer to the actual release circulation or the day of
When the law provides that it be effective upon
issue?
approval, there is no need for publication because
It may happen that the Official Gazette may have
publication legally and physically comes after approval.
the date of issue (e.g. June 2015) but it does not
Publication is not indispensable at all for the
come out every day. It may happen that it may be
legislative body can dispense with the publication
requirement in their discretion.
2
published in the June 2015 issue will only be Philippine International Trading Corp vs. Englis
released on August 2015. This involves an administrative order issued by PITC.
For purposes of computing 15 days after PITC, used to be an independent administrative body, but
completion of publication, when should the period now adjunct to the Department of Trade and Industry. The
of effectivity be reckoned with? primary purpose of PITC is to implement the policy of the
government on matters pertaining to trade between the
PH and foreign country.
In this particular administrative order, trade agreements
Lara v. del Rosario
between the PH and the socialist countries (including
This case involves the Civil Code of the Philippines.
PROC).
The Civil Code provides for the date of effectivity one year This admin order had the effect that all applicants for
after completing its publication requirements. import permit to the PROC, are required to present a
It came out on the June 1949 issue of the Official Gazette. confirmed export-program of Philippine products to the
When did the Civil Code take effect?
PROC. The purpose is to balance trade between two
countries. The amount you wish to import, should also be
Supreme Court Ruling:
the amount you export.
The Supreme Court said that the Civil Code of the Among the applicants, Remington Industrial Sales and
Philippines took effect on August 30, 1950, one year from Firestone Seven Inc. failed to comply with the required
the time the Official Gazette came out for circulation. export program. Thus, they were not issued the import
The date of actual release is deemed to the date of
permits.
publication. Issue: Is this a constitutional administrative order?
The attack of Remington and Firestone was that the
However, this ruling has stirred controversy in the legal
administrative order was grounded on two reasons: a)
community because it runs contrary to the provisions in the
PITC has no authority to promulgate such order b) the
Revised Administrative Code. Sec. 11 provides that for
admin order is not binding because it was not published in
purposed of fixing the date of publication, it expressly provides
accordance with Article 2 of the NCC
that the date of issue of the Official Gazette should be the
controlling date of publication. Supreme Court Ruling:
The SC said, PITC. Being an administrative body, has the
Wisdom of Sec. 11: if the date of publication will be
authority to promulgate such order pursuant to a validly
reckoned on the actual release of circulation, this will
delegated authority.
create uncertainty because not all people can be
However, the administrative order is not valid. Being in the
actually informed of the actual release of publication.
nature of a law, it requires publication as a pre-condition
So to ensure a scenario so that there is a fixed date
for it to become effective. Unfortunately, it was not
where one can reckon the date of publication, the date
published.
of issue must prevail.
It is not valid unless publication is complied.
STILL, Lara v. del Rosario is the controlling doctrine.
(Sir Torregosa: this rule must be circumscribed to only Not all rules promulgated by administrative bodies partake of a
this case. This must not be a binding precedent for law in contemplation of Article 2.
future cases because Sec. 11 of the Revised
Administrative Code has never been amended.) Distinguish: Rules and regulations for the purpose of
implementing the provisions of a law vs. rules and
What are the laws contemplated in Art. 2 of the Civil
regulations are opinions or interpretative in nature
Code? There are circulars that are mandated by law that to
be rendered effective must be able to publish
Laws that fall under Art.2 and therefore shall comply
especially when such circular is PUNITIVE in
with the indispensable requirement of publication
character. However, there are circulars that need not
1 Statutes (laws enacted by Congress) be published when it covers internal regulation only of
2 Presidential Issuances (PDs, EOs, Presidential offices and if they are mere interpretations of general
Memorandum, Presidential Circulars) policies -
3 Administrative Rules and Regulations
they are given quasi-legislative and quasi-judicial powers Victorias Milling Corporation v. Social Security
and trace its umbilical cord to the ever-changing society Commission,
where laws cannot be far behind The Social Security Commission issued Circular 22
laws are couched in general terms. Administrative bodies addressed to all covered employers.
are tasked to specify the small details that will enable the This Circular provides that in the computation of the
effective implementation of the law. employer and employees contribution to the system, the
This contemplates a validly delegated legislative power amount of bonuses, allowances and overtime pay

3
received by the worker shall be considered in the Roy appealed the decision of the CA and on September 9,
computation of the aggregate compensation. All the last day of the fifteen-day period to file a motion
remuneration the worker receives shall be computed as for reconsideration, petitioner filed a motion for
the base figure. extension of time to file a motion for reconsideration
Upon learning of this administrative circular, Victorias but was denied pursuant to the Habaluyas Enterprise.
Milling disagreed in the computation of the base v. Japzon ruling. (15 day period is non-extendible)
compensation. Roy went to the SC, arguing that it was grave error on the
It turns out that before this circular was promulgated, the part of the CA to deny his motion for reconsideration and
old law excluded overtime pay, allowances and bonuses citing as basis the doctrine laid down in Habaluyas v.
from the computation of aggregate compensation. And Japzon because such decision was never published in the
what was considered was only the basic pay. This would OG or newspaper.
mean that the employers contribution would be lower than
what was stipulated in the circular. Supreme Court Ruling:
Victorias Milling assailed the validity of the circular on two There is no law that requires decisions of the SC to be
grounds: a) they questioned the authority of the SSC to published in the OG or newspaper. It is the bounden duty
promulgate such circular and b) that is was not published. of the lawyer to keep himself abreast of the latest
decisions of courts as published in the advance reports of
Supreme Court Ruling: SC decisions or in the SCRA or law journals.
The Supreme Court said that the SSC did not promulgate Decisions of the SC because they partake the nature
rules and regulation that would require approval of the of the law, need to be published but the publication
President. requirement need not comply with the publication
However, circulars which are mere statements of general requirement of Art 2.
policy as to how the law should be construed do NOT
need presidential approval and publication in the Ofcial
Gazette for their effectivity. Such a circular may be 5. Local laws and ordinances
exemplied by Circular 22 of the Social Security Need to be published for effectivity but just like judicial
Commission. decisions, need not comply with the publication requirement
It is their way of interpreting the amendatory law. It is only prescribed in Art 2 (OG and newspaper) because insofar as
the expression of the SSCs opinion. ordinances are concerned, the law governing publication is the
Local Government Code.
Belonging to the same classification are those rules that are Mode of publication as per Art 59 of LGC: Shall take effect 10
INTERNAL in nature. These are intended only to govern the days after a copy thereof is posted in the bulletin board found
internal affairs of that administrative body and do not govern outside the provincial, city, municipal or barangay halls. It shall
the general public. These are not considered laws, ergo, does also be posted in 2 conspicuous places of the LGU concerned.
not need publication. The 10 day period is mandatory.

4. Judicial Decisions When an ordinance is PUNITIVE or REVENUE-


Do Supreme Court decisions need to be published as well?
RAISING, they also need to be published in
Article 8 of the Civil Code: Judicial decisions applying
newspapers of general circulation in the locality
or interpreting the laws or the Constitution shall for a
concerned.
part of the legal system of the Philippines
What is contemplated under Article 2 are decisions of
ARTICLE 3: Ignorance of the law excuses no one
the Supreme Court, NOT ANY OTHER COURT.
Publication is a requirement for it to become binding.
from compliance thereof.
BUT THEY DO NOT HAVE TO BE IN THE OG OR A
REQUISITE: There must be due promulgation of the law either
NEWSPAPER OF GENERAL CIRCULATION.
through the Official Gazette or in newspapers of general
circulation published in full.
Roy v. Court of Appeals
Petitioner owns a burned building which collapsed However, the maxim refers only to mandatory or prohibitive
and destroyed the tailoring shop occupied by the laws, not to permissive or suppletory laws. (See 1 Manresa
family of private respondents, resulting to injury and the 56). There can be no Article 3 if there is no Article 2.
death of Marissa Bernal, the daughter.
Private respondents have been warned by the petitioner to Rationale:
vacate their shop because of its proximity to the weakened Knowledge of the law is presumed as a matter of policy
wall but they failed to do so. RTC rendered judgment because of practical necessity and convenience. If we allow
finding petitioner guilty of gross negligence and awarded ignorance of the law as an excuse, it will be available for
damages to the private respondents. everyone as a defense and anarchy and chaos will rule for
Roy appealed the decision of the RTC before the CA but everyone will be freed from criminal liability.
the CA upheld the decision of the RTC.
4
Question: If the policy is knowledge of the law is presumed, US v. Ah Chong contrary to the case of Yapyuco v.
why is there a need for publication of laws? Sandiganbayan

It serves as a constructive notice to the people about the Yapyuco v. Sandiganbayan


existence of the law. How can you expect someone to be Active members of the PNP. One night, the accused
bound to a law when the existence of which they do not know? got a call from an informant alerting them of some
armed men who were suspected of being members of
Ignorance of facts (Mistake of Fact) the New Peoples Army.
In response of the information, the accused proceeded to
If there is a legitimate good faith and basis of mistake of fact, it
the area, with the view in mind to apprehend the suspects.
can be an excuse. Can be an absolutory circumstance. Frees
Upon the informant relayed by the informant, the
someone from criminal liability. The presence of mistake of fact
accused, members of the PNP, tried to flag down a Toyota
could negate some requirements of criminal liability like
Tamarraw motor vehicle said to be carrying the
criminal intent. Had the facts been true as the individual
suspected members of the NPA. Pursuant to the
believed them to be, the individual would be exonerated from
standard operating police procedure, the accused claimed
any liability.
that they tried to flag down the vehicle but instead of
Requisites: pulling over, the vehicle tried to speed away.
In order to immobilize the vehicle, the accused
1 The act would have been lawful had the facts been as the claimed that they shot the tires of the vehicle.
accused believed them to be As a result, one died, one suffered fatal injury and many
2 That the intention of the accused in performing the suffered from attempted murder. Murder, frustrated and
act should be lawful attempted murder were filed against the police officers
3 Act is not tainted with negligence who participated in the operation.
During the trial, the accused invoke mistake of fact
US v. Ah Chong as a defense claiming that they honestly believed that the
Ah Chong works as a cook and in connection with passengers onboard the motor vehicle were armed
his work, he was allowed to live in a certain quarter and dangerous and the suspected members of the
together with another employee named Pascual. NPA.
Robberies were common in the place and Ah Chong They tried to justify that their act of firing bullets at the
made it a habit to keep a kitchen knife beneath his vehicle was because it tried to speed away and that
pillow. Since the room has no permanent lock, they there only purpose in shooting was just to immobilize the
improvised by placing a hook from the inside and vehicle.
reinforced it by placing a chair against the door.
One night, Ah Chong was soundly asleep when he was Supreme Court Ruling:
suddenly awakened by someone who was forcibly We cannot give credit to the claim of the accused
opening the door. He called out twice asking the that their only purpose was to immobilize the vehicle
person to identify himself but got no answer. because based on the evidence, the trajectory of the
The door suddenly swung open pushing the chair forward bullets and their locations as shown by the physical
thereby hitting Ah Chong in the knees. As it was dark, Ah condition of the vehicle, would show that the fire was
Chong honestly believed that he was under attack, and so aimed at the passengers. Hence, their intention was to
he took his kitchen knife and struck the intruder, which shoot and kill the passengers, most especially because
turned out to be Pascual who eventually died. the weapons used were automatic and assault rifles.
Ah Chong invoked self-defense stating that it was a For mistake of fact to prosper, three requisites must be
mistake of fact because he honestly believed that his life established:
was in danger. A. It must be based on good faith and must be
reasonable.
Supreme Court Ruling: B. The mistake must pertain to mistake of fact
Had it been true that the one who entered the room C. The mistake of fact must negate some elements of
was an intruder, then Ah Chong had all the right to defend culpability required by law
himself and his act of killing the intruder would have been
IGNORANCE OF FOREIGN LAW
justified.
Ah Chong exercised due diligence in trying to prevent the
is not ignorance of the law, but ignorance of the fact because
incident by calling out thrice to the person outside. foreign laws must be alleged and proved as matters of fact,
Mistake of fact can be a defense provided that his actions
there being no judicial notice of said foreign laws.
were not tainted with negligence.
Someone who acted in self-defense cannot be criminally Requisites of proving a written foreign law
and civilly liable. 1 an ofcial publication thereof or by a copy attested by
the ofcer having the legal custody of the record, or
5
by his deputy, and accompanied, if the record is not Chinese customs, they claimed, marriage can be
kept in the Philippines, with a certicate that such solemnized without a solemnizing officer.
ofcer has the custody. SC ruled that since the marriage of Yao Kee and Sy Kiat in
2 Certification of the diplomatic officer of the Philippines China had no solemnizing officer, and applying the
in the foreign country. Philippine law now pursuant to the Processual
presumption doctrine, it is obvious that the marriage is
Requisites of proving an unwritten foreign law void for lack of one of the formal requisites.
1 Printed reports or judicial decisions of courts in the
foreign country if established to be admitted by the ARTICLE 4: Laws shall have no retroactive effect,
court of the country.
unless the contrary is provided.
2 Expert of such law or custom from the foreign country
In general, laws are prospective, not retroactive.
Processual Presumption - If the foreign law is not properly
and duly proven, the presumption is that it is the same as our
WISDOM BEHIND PROSPECTIVITY the rule was that if
law.
laws were retroactive, grave injustice would occur, for these
laws would punish individuals for violations of laws not yet
Yao Kee v. Gonzales
enacted.
This involves the estate of a certain China man, Sy Kiat
who died intestate in the Philippines leaving properties in
the Philippines and some heirs. Marcelino Buyco v. PNB
Upon his death, one group of heirs headed by Aida Illustrates the general principle that laws should have
Gonzales, claimed to be the legitimate children of the late prospective application.
Sy Kiat and moved for the settlement of the estate left by Back pay law grants some benefits to military who
their father and be appointed as the administrator of the
served the Philippine forces as guerillas during the war.
estate.
Because of the war, they were not given their
This petition was opposed by a Chinese woman named
compensation at the time while the war is still ongoing.
Yao Kee who claims to the lawful wife of the
When the war was over, the Congress enacted the Back
deceased. She claimed that she and Sy Kiat had children.
pay law. Mode of payment was through a back pay
Primordial issue: Whether or not Yao Kee was lawful
certificate.
wife of the deceased. One peculiar feature of the back pay, the recipient of this
During the trial, Yao Kee tried to prove that she was
back pay certificate may pay his obligations to the
lawfully married to Sy Kiat pursuant to a marriage
government through the certificate.
ceremony celebrated in China in accordance with Chinese Marcelino Buyco is a holder of a back pay certificate. After
laws and customs.
the war, he obtained a loan from the PNB. When the loan
Art 26 of the Family Code, validity of the marriage is
fell due, the back pay law was still in force. Subsequently,
determined by the law of the place where the marriage is
the law creating PNB was amended. The amendatory law
solemnized. (lex loci celebracionis)
disallows the bank from accepting back pay cert as
Unfortunately for Yao Kee, she failed sufficiently to prove
payment of obligations.
Chinese law on marriage and so the court had difficulty Buyco when he paid was refused of payment by
resolving the issue whether Yao Kee was legally married
virtue of the amendatory law.
to Sy Kiat.
Supreme Court Ruling:
Supreme Court Ruling:
Supreme Court held that while it may be true that the
Applied the principle of Processual presumption (In
latest charter of PNB disallows the payment of
instances when a foreign law relevant in the issue of
obligations through back pay certificate, it must not
the case is not duly proven, it shall be presumed that
affect Mr. Buyco because his obligation was incurred
such foreign law is the same with our laws)
before the new law took effect.
Since the Chinese law on marriage has not been duly
The amendatory law should be given prospective
proved, we now apply Philippine law on marriage. For a
application and should apply only to obligations
marriage to be valid in Philippine law, it must comply with
incurred at the time the law took effect and onwards.
5 requisites (2 essential and 3 formal): Hence, the amendatory law shall only be given
1 Consent mutually given
2 Legal Capacity prospective application so as not to prejudice the vested
3 Authority of the solemnizing officers rights or Mr. Buyco.
4 Valid marriage license
5 Marriage ceremony EXCEPTIONS TO THE PROSPECTIVITY: RETROACTIVE
The marriage of Yao Kee and Sy Kiat had no APPLICATION
participation of a solemnizing officer because under
1 When the law provides for retroactivity

6
Exception to the Exception No ex post facto law shall accused, he shall afford of its benefits including the
be allowed (one which makes an act criminal which was mitigating circumstance of voluntary plea of guilt.
not criminal when committed; increases the penalty) It was found that he already served the proper penalty
imposable on him under the new law which is 4
2 If the statute is penal in nature, provided: (art 22) months and since it was established that he already
a Favorable to the accused or to the convict; served 7 months in prison, his immediate release was
ordered.
People v. Patalin
Involves prosecution of the crime of robbery with b And provided further that the accused or convict
multiple rape. At the time the crime was committed, the is not a habitual delinquent.
crime was punished by death.
During the pendency of the trial, death penalty was Notes: The retroactivity should only apply if there is still a
abolished. Trial went on and when the decision was practical value to the retroactive application. (Example: Once
rendered, death penalty was reimposed. one was released after serving a sentence of 20 years, a law
Issue: Whether or not the accused can be punished was promulgated decriminalizing the crime you committed, it
with death considering that at the time the crime was will not obliterate your criminal liability.)
committed, death penalty was imposable but was
abolished during the pendency of the case and when the Exceptions to the exception:
decision was made, death penalty was reimposed?
i If the accused is a habitual delinquent. (One who within
Supreme Court Ruling: ten years from his last conviction/release of the crimes
SC taking cue from the principle that when the law of serious physical injuries, robbery, estafa, falsification
of documents, and theft he is found guilty of any of
involved is penal in nature, the accused cannot be
these crimes for the 3rd time or oftener)
penalized by death because when death penalty was
abolished during the pendency of the trial, that law ii if the penal law does not cover / apply to the cases
was favorable to the accused and should therefore before such law.
be given retroactive application.
Supreme Court invoked the rule that penal laws Larga v. Ranada
should be given retroactive application when favorable Involves the prosecution which involves the violation of the
to the accused. Hence, the accused can no longer be HDMF or the PAG-IBIG Fund Law.
penalized with death penalty. The effect of the amendatory
Under the said law, the employer is mandated by law to
law abolishing death penalty retroacts to the time the
withhold a certain portion of the salary of the
crime was committed.
employee and remit them to PAGIBIG to form part of
The fact that death penalty was reimposed when the
the pool of resources that can be availed of as way of
decision was rendered does not matter because the
benefits for PAGIBIG members.
accused had already vested rights when the death penalty Larga happens to be an employer and in accordance
was abolished during the pendency of the trial.
with the law, he withheld portions of the salaries of his
workers accruing from 1984 1986.
Manuel Rodriguez v. Director of Prisons
It turned out, however, that Larga did not remit them to
Involves prosecution of the crime of estafa. During the
PAGIBIG.
arraignment, Mr. Rodriguez pleaded guilty to the crime.
Under the law then in force, non-remittance is a
And so, the court sentenced him to imprisonment of 1 yr, 8
criminal offense. Hence, he was prosecuted.
months and 21 days.
During the pendency of the case, the PAGIBIG law was
While serving sentence, a new law was passed, the
amended, making the remittance of contributions
RPC, and under this new law, the penalty of estafa is voluntary. Hence, nonremittance is not anymore a
reduced. Under the OPC, voluntary plea of guilt is not criminal offense.
considered a mitigating circumstance, but under the RPC, Larga invoked the principle that a penal should be given
it is, hence reducing the penalty. retroactive application if favorable to the accused, Larga
Invoking the benefit of the new law, Manuel
moved to quash the information stating that since
Rodriguez filed a petition for habeas corpus. Since the nonremittance is no longer a crime in the new law,
new law is favorable to him, it shall be applied to his case. this shall wipe out his alleged criminal liability under the
Hence, his voluntary plea of guilt should be considered as old law.
a mitigating circumstance and the penalty which is lower
under the new law shall be the one applied to him. Supreme Court Ruling
As a general rule, penal laws shall be given retroactive
Supreme Court Ruling:
application if favorable to the accused, except when the
SC ruled in favor of Rodriguez by applying the provisions
law itself provides that it should not be given retroactive
of the new law. Since the new law was favorable to the application as when its provisions provide that it shall

7
not apply to pending cases during the time of its
enactment. 3 If the laws are remedial in nature. There are no vested
The provisions of the new law expressly provide that rights in rules of procedure. Therefore, new rules of court
the effect of the amendment decriminalizing the act of on procedure can apply to pending actions.
non -remittance will take effect starting January 1,
1987 and onwards. The period of effectivity is specific REASON:

iii DOES NOT APPLY if the accused disregards the When it comes to remedial laws, generally no rights are vested
retroactive application of the later law and insists he be because procedural rules do not creative new rights unlike
prosecuted under the old law which imposed higher substantive laws. They merely provide remedies for the
penalty. enforcement of the rights given by substantive laws. So,
normally, if it is procedural, since it does not create rights it
Ferrer v. Pecson does not impair rights when given retroactive application
Involves the prosecution for reckless driving resulting in
serious physical injuries and damage to property.
Under the law then in force during the commission of Zulueta v. Asia Brewery
the crime, the crime of reckless driving was punishable Zulueta entered into a contract of distributorship with Asia
under a special law, The Revised Motor Vehicle Law. Brewery who is engaged in the manufacturing of beer
This law provides for a specific penalty for the offense and and other related products.
under the law then in force which govern jurisdiction, the Zulueta filed a complaint alleging breach of contract
penalty imposed under the Revised Motor Vehicle Law is before the RTC Iloilo
supposedly cognizable by the RTC. (Jurisdiction depends By way of retaliation, Asia Brewery also filed its own
on the severity of the penalty), but the case filed against complaint before the RTC Makati.
Zulueta, realizing that she has better advantage if the case
Ferrer was filed before the MTC.
After trial, he was convicted and so he appealed to the is tried in Iloilo, filed a motion before the RTC Makati
RTC. asking that the Makati case be consolidated with the
When the appeal was with the RTC, Ferrer moved Iloilo case.
for the dismissal of the case. He said that the appeal with RTC Makati ordered the consolidation of the cases. Asia
the RPC is just a continuation of the proceedings of Brewery challenged the order of the Makati Court directing
the MTC and based on the law in force at that time, the consolidation. Asia Brewery claimed that the Makati
the MTC had no jurisdiction to try and convict him Court was guilty of grave abuse of discretion in authorizing
because it only had jurisdiction over crimes with a the consolidation of the two cases in Iloilo.
Under the rules then in force, a petition for certiorari shall
penalty of not more than 6 months, and his crime under
the RMVL is punishable with 6 years maximum. be filed 90 days from receipt of the order subject of the
Because the MTC had no original jurisdiction, it petition.
The order of consolidation which Asia Brewery seeks to
follows that the RTC had no appellate jurisdiction.
Hence, he urged the RTC to dismiss the case. nullify was received by her on May 23, 1997. Hence, 90
The matter went all the way up to the Supreme Court. days from May 23 shall be the deadline for the filing of the
The prosecution invoked that a penal law should be given petition for certiorari. (Aug 22)
retroactive application if favorable to the accused. The Before Asia Brewery could file the petition, the 1997 rules
RMVL is subsequently amended by the RPC. By virtue of of court of civil procedure took effect on July 1, 1987. This
the amendment, the crime of reckless driving should no rule shortened the period within which to file a petition for
longer be punished under the RVML but under the RPC. certiorari from 90 days to 60 days.
Counted under the new 1997 rules, the period to file the
The penalty under the RPC is lower than that of the
RMVL. Hence, this penalty is cognizable by the MTC. petition for certiorari from May 23 would be July 22. (60
The prosecutor argued that the provisions of the RPC days)
Instead of filing on or before July 22 which is the
should be applied to accused because it is favorable to
him since it offers a lower penalty. Since the penalty is deadline under the new 1997 rules of civil procedure,
lower, the MTC has jurisdiction. Hence, the case should Asia Brewery filed it sometime August, within the 90 day
not be dismissed. period under the old rule.
The CA dismissed the petition on the ground that it was
Supreme Court Ruling filed out of time, invoking the new 1997 rules of civil
It may be true that penal should be given retroactive procedures.
application when favorable to the accused, but not when Issue: Whether the petition for certiorari by Asia Brewery
the accused himself refuses the benefits of the penal was filed out of time.
Asia Brewery claimed that procedural laws should not be
law and insists that he be prosecuted under the old law.
Hence, since the MTC had no jurisdiction, the case was given retroactive application.
dismissed.
Supreme Court Ruling
8
The order sought to be annulled by the petition was
received by Asia Brewery was received by Asia Brewery r
on May 23, 1997 and the new rules providing the 60 day i
period took effect on July 1. g
Asia Brewery had 21 days to comply with the new rules. h
The new 1997 rules of civil procedure shall be given t
retroactive application as to cover cases pending and s
unresolved as of the time it took effect.
Procedural law was given retroactive application Tayag v. Court of Appeals
because Asia Brewery was not prejudiced for it had An action for compulsory recognition of illegitimate
21 more days to file the petition filiation. Filed by a minor child represented by the
mother claiming inheritance of his deceased
Exception to the exception father, Atty. Ocampo
i I
The action was directed to the adminstratix of
f
the estate of Atty. Ocampo.
In defense, the administratrix argued that the filing
r of the action for compulsory recognition of
e illegitimate filiation was filed out of time and has
t already prescribed. (Art 175 of the Family Code)
r Art 175 Family Code: The filing of the action
o to compel the recognition of illegitimate filiation
a should be filed during the lifetime of the putative
c parent. And since Atty. Ocampo is already
t deceased, the action has already prescribed.
i The mother argued that Art 175 is not applicable,
v but Art 285 of the Civil Code which states that
e the action to compel recognition of illegitimate
filiation should be filed within the lifetime of the
a parent, but when the parent died during
p minority of the child, the action may be filed
p within 4 years from the time the child reached the
l age of majority.
i Issue: Whether or not Art 175 of the Family Code
c should be given retroactive application. (When
a Atty. Ocampo died, the law then in force was the
t New Civil Code, but when the action was filed, the
i Family Code took effect)
o
n Supreme Court Ruling:
Art 175 provides for a rule on prescription, a period within
w which an action for recognition of illegitimate filiation may
o be filed. Even assuming that the issue of prescription is a
u matter of procedure or remedial in nature, Art 175 cannot
l be given retroactive application as to prejudice or impair
d the rights of the child. Because when Atty. Ocampo died,
the law then in force was the New Civil Code (Art
285)
g
When Atty. Ocampo died, the minor child already had
i
vested rights and interests to pursue the action pursuant
v
to Art 285 of the New Civil Code.
e
Hence, Art 175 of the Family Code, even procedural or
remedial in nature cannot be given retroactive application
v because to do so would impair vested rights.
e
s ii When the decision is
t final and executory
e The retroactive
d application of procedural

9
or remedial laws only fled the country to the US and gained US citizenship by
cover actions which are virtue of naturalization.
still pending or When Cory Aquino took office, Frivaldo went home
unresolved at the time and tried his luck in politics. Won thrice for governor of
the procedural law took Sorsogon and was disqualified thrice by the Comelec.
effect. On the third disqualification, the SC looked kindly on him.
He was disqualified for the sole reason that he did not
Municipality of Coron v. Carino possess the qualification of being a Filipino citizen, for
Involves an action filed by the Municipality of Coron to public officials should be a Filipino citizen.
remove the illegal structure built by squatters on its When he ran during the 1995 elections, his
property. The court rules in favor of the municipality. application for repatriation was approved by the
The squatters appealed the decision of the RTC before special committee on June 30 1995, the time when his
the CA. tenure started. Hence, when he registered as a voter
Under the rules then in force, one of the requirements and filed for certificate of candidacy, he was not yet
for perfecting an appeal is the submission of the so called a Filipino citizen.
records on appeal. Under the rules promulgated by the Comelec, a
An appeal is just a continuation of the proceedings below. candidate for office should be a Filipino citizen at the
When the decision of the lower court is appealed to the time of registration and filing of candidacy.
CA, it is required at the time, under the rules then in
force that all the records available on the lower court
should be forwarded to the appellate court so that they
can review the decision of the lower court.
Because of failure to comply with the requirement of Supreme Court Ruling:
records on appeal, the CA dismissed the appeal. When it Supreme Court held that the repatriation law PD 527 is a
was dismissed, the squatters failed to elevate the matter curative statute and it is aimed at correcting the flaws
to the SC. Hence, the decision became final and and defects of the past where Filipino citizens had a
executory. hard time reacquiring Filipino citizenship.
The Municipality of Coron moved for the execution of the Being a curative statute, it should be given retroactive
decision, asking the court to demolish the illegal application. The effect of the approval of his repatriation
structures. At this time, a new rule was enacted, should be retroactively applied to the time he filed for
dispensing the requirement of records on appeal. his application for repatriation in 1994 and not to be
Invoking the retroactive application of this new limited on the time of the approval.
requirement which dispenses the requirement of Hence, it is obvious that at the time Frivaldo
records on appeal, the squatters went to the CA and registered for the purpose of the 1995 elections, he
asked for the revival of their appeal, arguing that was already a Filipino citizen because the effect of
records on appeal is no longer required, hence, their the repatriation retroacts to the time of the filing of the
appeal should be reinstated. application.

Supreme Court Ruling: Take note: Prospectivity does not only apply to laws but also
As a general rule, procedural rules should be given judicial decisions enunciating new doctrine superceding old
retroactive application, but its retroactive application ones especially when it applies laws or a legal doctrine.
covers only cases which are still pending and
unresolved during the procedural law took effect, and DBP v. CA (Pe)
not on cases already final and executory. Otherwise, A certain Chinese businessman in GenSan, Mr. Pe, who
there would be no end to litigation acquired two parcels of land under the provisions of the
Free Patent and Homestead Laws. This law grants
4 If the law is curative (there is a necessarily retroactive for agricultural land to certain qualified individuals.
the precise purpose is to cure errors or irregularities. To In need for cash, he obtained a loan from the DBP and
be valid, must not impair vested rights nor affect final constituted a mortgage over his properties including the
judgment. land he acquired from the Free Patent and Homestead
Laws to secure the payment of the loan.
*CURATIVE STATUTE law designed to correct past
He failed to repay the loans thus forcing DBP to foreclose
defect or irregularity. By its very nature, it should be given
the mortgage. When Mr. Pe refused to redeem the
retroactive application to rectify the defect.
foreclosed property, the DBP offered the property to a 3 rd
Frivaldo v. Comelec party buyer, Spouses Benzonan who bought the property
Frivaldo was a prominent figure in the political scene form the bank.
during the Marcos regime. To avoid persecution, Frivaldo During this time that the property was already sold to Sps.
Benzonan that Mr. Pe offered to repurchase the property
10
from the bank invoking the provisions of C.A. No. 141 People vs. Jabinal: when a doctrine of this Court is
which says that any land acquired under the provisions of overruled and a different view is adopted, the new doctrine
Free patent and homestead proceedings may be should be applied prospectively and should not apply to
repurchased by the beneficiary, the widow or heirs, within parties who had relied on the old doctrine and acted on
5 years from the date of conveyance. the faith thereof.
Pe south the repurchase of the property but invoked the Exception to the prospective application of judicial
ruling of Belisario v. IAC. The provisions of C.A. 11 which decisions: special cases of weighty considerations of
provides for the repurchase, was a subject of flip=flopping equity and social justice will warrant a retroactive
decisions of the SC application of doctrine to temper the harshness of
The latest decision of the SC interpreting this provision is statutory law as it applies to poor farmers or their widows
the one in Belisario in 1988. It says that 5 year period for and orphans.
repurchase shall be counted from the expiration of the
time to redeem the foreclosed property. Under the rule on ARTICLE 5. Acts executed against the provisions of
foreclosure, when the property constituted to secure a mandatory or prohibitory laws shall be void, except
loan is foreclosed the owner of the property has the right when the law itself authorizes their validity. (4a)
to redeem the property from the buyer of the foreclosure
sale. The period for redemption is one year from the time MANDATORY OR PROHIBITORY LAWS
of foreclosure sale. If the owner dies not exercise the right A mandatory provision of law is one the omission of which
to redeem within one year, the buyer during the renders the proceeding or acts to which it relates generally
foreclosure sale shall now consolidate the title and will illegal or void. The violation of directory laws does not result in
now become the absolute owner of the said property. invalid acts.
Pursuant to the Belisario doctrine, the 5 year expiration
period shall be reckoned from the expiration of the one Kinds of mandatory legislation (like penal and some
year period. Therefore, the period to repurchase has been contractual laws): In the sense that violation to such law
extended from 5 years to 6 years. Whereas, under CA creates criminal/administrative/civil liability.
141, 5 year should be counted from the date of the
conveyance. The Belisario ruling extended the period of o Positive (when something must be done);
repurchase. o Negative or Prohibitory (when something should not
If the action of Pe in seeking repurchase is to be reckoned be done).
within the parameters of the Belisario ruling, then he is
correct. Unfortunately for Mr. Pe, the previous doctrine of However, if the law specifically provides for the validity of the
the matter in the case of Monge v. Angeles and Tupas v. act even if it is violative of a mandatory or prohibitive act then it
Damasco. In these cases, the Supreme Court ruled that shall be considered valid and enforceable.
the five year period should be reckoned from the date for
foreclosure. EXCEPTIONS:
Issue: which of these two doctrines should govern the Although in general, violations of mandatory or prohibitory laws
transaction of Mr. Pe? result in void acts or contracts, in some instances, the law
authorizes their validity.
Supreme Court Ruling:
At the time that the loan was obtained and the mortgage 1 If the law itself provides that it be valid.
was constituted, at the time of the foreclosure sale, at the Example: Act of illegally solemnizing marriage but if the
time the property was sold to the bank to the Sps. parties believed in good faith that the solemnizing officer
Benzonan, the prevailing doctrine was that of the Monge. had authority, marriage remains to be valid
The 1988 case of Belisario reversed the earlier rulings in 2 If the law considers the act voidable.
Monge vs. Angeles and Tupas vs. Damasco. (The Valid until annulled. Example: Shotgun marriage.
mortgage in question was made on Feb 24, 1970). Consent is vitiated, hence marriage shall be voidable.
The new doctrine enunciated in Belisario should only be 3 If the law itself provides that it be valid but subjects
given prospective applications and should not apply to the wrongdoer to criminal liability.
those transactions before the doctrine was laid down. 4 If the law considers the act valid because of supervening
The petitioners are bound by decisions based on Article 8 events.
of the Civil Code that states that judicial decisions applying Example: When a foreigner buys a piece of land in the
or interpreting the laws or the Constitution shall form a part Philippines, contrary to the rule that foreigners cannot own
of the legal system of the Philippines. properties in the Philippines, but in turn, sells it to a
While these decisions form part of the law of the land, they Filipino. The defect is deemed cured.
are subject to Article 4 of the Civil Code that provides that 5 If the law provides for its validity but generally it would
laws shall have no retroactive effect unless otherwise have been void.
provided. Example: Cockfighting and lotto (gambling)

11
Article 6. Rights may be waived, unless the waiver is defendant to pay the plaintiff the sum of P1,033.87, with
contrary to law, public order, public policy, morals or interest thereon at the legal rate from September 1, 1954,
good customs or is prejudicial to a third person with date of the institution of this case, as well as the costs,
and dismissing the defendants counterclaim.
a right recognized by law.
ARTICLE 7. Laws are repealed only by subsequent
Rights may be waived because these take the nature of a favor
ones, and their violation or non-observance shall not
and no one is compelled to accept a favor, which is why the
one conferred with the right has the right not to accept such be excused by disuse, or custom or practice to the
right. contrary.
When the courts declare a law to be inconsistent
RIGHTS THAT CANNOT BE WAIVED with the Constitution, the former shall be void and
1 Right to life against the law and public policy the latter shall govern. Administrative or executive
2 Right to future support (necessary to life acts, orders and regulations shall be valid only when
3 When the waiver abuse rights of third persons they are not contrary to the laws or the Constitution.
protected by law.
(5a)
CUI vs. Arellano University
Laws are repealed:
Cui was a law student of Arrellano University and a (a) Expressly.
scholar from first year up to fourth year 1st semester, (b) Or impliedly (insofar as there are inconsistencies
when he transferred to Abad Santos. between a prior and a subsequent law)
Since he was a scholar, his tuition fees are returned to him
at the end of every semester. What is the effect of a repeal of law?
When he finished his law degree, he applied for permit
to take the Bar exams, however, one of the General Rule:
requirements was a complete transcript of records of The effects of the repealing law operate only at the time the
his entire law school. repealing law takes effect. Consistent with the principle of
Cui went to Arellano University to get his transcript prospectivity, the effect of the repealing law shall be given
but he was refused unless he would return the cash prospective application. The repealing law will not undo the
equivalent of his scholarship grant. He paid, but under acts and event that occurred in the past.
protest.
When he became a lawyer, he sued the university. It Exception:
turned out that before he was granted the scholarship, he Total and Absolute Repeal Renders inoperative so that all
signed a waiver of his right to transfer to another school acts that occurred (criminal liability) attached before the repeal
unless he refunds the school of the cash equivalent of the ---> will be abrogated on the event of the enactment of the
scholarship grant. subsequent law.
ISSUE: Whether the above contract between plaintiff and
People v Pimentel
the defendant, whereby the former waived his right to
Prosecution of illegal possession of firearm and anti-
transfer to another school without refunding to the latter
subversion law.
the equivalent of his scholarships in cash, is valid or not.
SUBVERSION LAW: when the accused was arrested, trial
Supreme Court Ruling: proceeded and during the trial anti-subversion law was
The contract of waiver between the plaintiff and repealed such that subversive organization membership
was no longer a crime.
respondent is a direct violation of Memorandum No. 38
and hence null and void. So the accused moved for the dismissal of the case on the
Memorandum No. 38 merely incorporates a sound ground that RA 1700 produced the effect of obliterating
whatever criminal liability he incurred under the old R.A.
principle of public policy.
1700.
The defendant uses the scholarship as a business
scheme designed to increase the business potential of an
Supreme Court Decision:
education institution. Thus conceived it is not only
As a general rule the repeal law takes effect only on the
inconsistent with sound policy but also good morals. The
day it was deemed effective.
practice of awarding scholarship to attract students and
keep them in school is not good custom nor has it But in this case, it was total and absolute such that it is
received some kind of social and practical confirmation very clear in the intent of the framers of the subsequent
except in some private institution as in Arellano University. law was that to obliterate the crime and liability
Wherefore, the decision appealed from is hereby reversed -decriminalize subversion.
and another one shall be entered sentencing the

12
Dismissal of case pursuant to the total/absolute repeal of The court believes that it was never the purpose or
such law. But he was still liable for the illegal possession intention of the Legislature to release anyone from a crime
of firearm, nonetheless. committed under either one of the Acts, and, in particular,
as to the offense described in the information.
Conversely, if the intent is otherwise, this rule does not apply. As stated upon the question here involved, each one of
the legislative acts expressly prohibits the bank from
Exception to exception: loaning any of its money to an officer or director, and the
only difference is found in the latter portion of section 29 of
i When the repealing law contains a saving clause Act No. 2938, which, upon the undisputed facts, is not
saving clause- that portion of the law which expressly saves a material to the question involved here.
part of the law being repealed as being left unaffected by the And because the new law punishes the same act ----
repealing law. obviously, Mr. Concepcion is still liable upon the acts
which he has committed in violation of such law.
BUSCAYNO vs. Military Commission Thus, in such a Re-enacted statute: There is no
Several personalities alleged to be members of subversive abrogation of crime and abrogation of obligation that
orgs (CPP and NPA). Arrested, charged and prosecuted of arises from it.
various offenses among which is the R.A. 1700.
During the trial, a new law was passed revision of anti- When there are incompabilities/conflict between statutes:
subversion law (which repealed RA 1700).
Taking the principle of retroactive application for penal The rule that the later statute prevails over the old one
laws - The accused filed a petition for habeas corpus applies only if the same laws are of the same nature
arguing that with the repeal of 1700 there is no more crime (general general; special-special)
in case.
This is not so if the laws involved if both are not of the
Supreme Court Ruling: same nature general and special:
SC: disagreed. Although it may be repealed by revised
anti sub law but it expressly provides that cases/violations 1. If the prior law is general and the new law is special,
committed under the old law shall continue to be the special law shall be considered as an exception
prosecuted to its logical conclusion prior to its repeal. to the general law. Hence, there is no repeal to speak
Clearly provides saving clause. of because these two laws can stand together.
Framers of repealing law did not intend the obliteration of
crime under old law neither to excuse criminal liability that Lichauco v. Apostol
arose from that offense Involves an EO issued by the Department of
Agriculture. Such order mandates that all applications
ii A repealing law is a re-enacted statute for importation of carabaos and draft cattles from
Repeals the old one but at the same time incorporates the countries where there is an outbreak of animal
provision of the old as its own. Thus it penalizes the same act infectious diseases should go through the Director of
under its provisions. Agriculture for the necessary clearance or approval.
Lichauco & Co. tried to import some cattles for production
There is no intention to obliterate the crime under the old law of serum from Pnom Pehn. It tried to ship into the
for why would it penalize the same act under the old law? Philippines a number of carabaos and cattles.
This was refused by the Dept of Agriculture because
People v. Concepcion at that time Pnom Penh was one of the countries
The defendant, Venancio Concepcion, was the president determined to have a prevailing outbreak of animal
of PNB. Under old charter- an officer of PNB is prohibited infectious disease (rinderpest).
at the risk of criminal prosecution from obtaining loan A dispute arose when the application for importation was
directly or indirectly from the bank declined.
Concepcion violated such by obtaining a loan in which he Director of Agriculture invoked the provision under the
is a 40% part owner of such corporation. Administrative Code Sec 1770 which governs
During the pendency of the case charter of PNB was specifically the situation where the animal to be
repealed and a new one took effect. shipped to the Philippines came from countries where
Arguing that the new law has repealed the old law meant infectious diseases were reported to be existing.
that Venancio should be acquitted because that means his Lichauco invoked Sec 1762 of the Administrative
crime under the old law for which he was prosecuted was Code as amended which governs the importation of
deemed obliterated. animals from abroad to the Philippines without
qualifications. Hence, the Director of Agriculture had no
Supreme Court Decision:
13
right to decline their application because Sec. 1762 RULE WHEN A LAW IS DECLARED UNCONSTITUTIONAL
does not impose any restrictions. BY THE COURT:
Both provisions are inconsistent with each other. A. ORTHODOX VIEW - An unconstitutional law is no law
Issue: Which law should prevail? at all. It does not exist and did not exist at any time.
Hence, it did not create any obligation and confer
Supreme Court Ruling: any right nor attach any liability. Any transaction,
1762 invoked by Lichauco & Co. is actually a general event or facts that occurred under the law that
was declared unconstitutional are deemed illegal
provision, in a sense that it governs cases of
and void from the very beginning.
importation under any circumstance and at any time.
1770 invoked by the Director of Agriculture is a
B. MODERN VIEW: Operative Fact Doctrine
special law because it only applies to situation where
This is when a legislative or executive act, prior to its
the animals to be shipped to the Philippines come from
being declared as unconstitutional by the courts, is
foreign countries determined to have animal infectious
valid and must be complied with.
diseases.
Hence, in case of a general law and a special law, the
De Agbayani v. PNB
special law shall be considered simply as an exception to
Serrano obtained a loan from PNB. By way of collateral,
the general law.
Serrano constituted a mortgage on his property. But for
In this case, there is actually no repeal that takes place.
non-payment, the bank initiated foreclosure proceedings.
Serrano opposed on the ground that the action to
2. If the former law is special and the new law is
foreclose the mortgage has already prescribed; 15
general, there is no repeal
years had already lapsed from the time the loan
obligation matured.
Exceptions:
At the time of the loan obligation of Serrano matured, an
i. the general law provides that the special law is
repealed EO was passed providing for moratorium for all obligations
ii. if it can be inferred from the provisions of the general of all those who suffered from the war, enjoining all
law that its intention is to replace the special law creditors from enforcing their claims. Hence, creditors
iii. Or there is a clear, necessary and irreconcilable could not compel debtors to pay.
conflict. Because of the wholesome purpose of the law, the
Congress even extended the EO by virtue of a RA.
Effects if Repealing law is repealed For 8 years, the moratorium law was in force before
it was declared unconstitutional.
1. When a law which expressly repeals a prior law is PNB claimed that the period of 8 years during which
itself repealed, the law first repealed does not the moratorium law took effect should not be counted in
revive, unless expressly provided. reckoning the prescriptive period because they were
A law (A) was expressly repealed by a subsequent legally prohibited from initiating foreclosure proceedings
law (B). Such that after a while, the repealing law (B)
is also repealed. First law (A) does not revive.
Before the repealing law was repealed It was a
perfectly valid law at such time. It did the repealing Supreme Court Ruling:
first (which rendered the first law diminished) before it There is no dispute that for a longest time that PNB was
was repealed by another subsequent law (C).
legally enjoined from collecting by virtue of the moratorium
2. When a law which impliedly repeals a prior law is law.
itself repealed, the law first shall be revived, unless While this was declared by a subsequent law
otherwise provided. unconstitutional thus, there were effects to such that it
If law 2 expressly repeals law 1 and law 2 in did not TOLL the prescriptive period provided that PNB
turn, is repealed by law 3, it shall revive law 1, waived the right of obligation.
unless law 3 provides otherwise. Filing of foreclosure was well within the prescriptive period
because the prescriptive did not run during the moratorium
Repealing law is declared unconstitutional law.
Declaring a repealing law unconstitutional would have
an effect that as if it did not exist Not producing a YNOT vs. Intermediate Apellate court
repeal to the first law. During the time of Marcos, a PD was issued to the effect
o Thus, the first law, which the repealing law
that it is illegal for any person to transport carabaos from
intended to repeal, shall continue to take one province to another. The purpose was to prevent
effect as if it was not repealed at all. illegal slaughter of carabaos.

14
Mr. Ynot tried to transport carabaos from Masbate to Indeed, the courts exist in order to state what the
Iloilo. The carabaos were confiscated by a police law is, not for giving it. (Jus dicere, non jus dare).
commander pursuant to the provisions of the PD.
Ynot moved for the return of the confiscation of the The interpretation placed upon the written law by a
carabaos but the RTC upheld the confiscation. competent court has the force of law.
Ynot went to the SC to question to constitutionality of the
law. The interpretation placed by the Supreme Court upon a law
constitutes, in a way, part of the law as of the date the law was
Having been repealed, should the new law hold the police,
originally passed, since the Courts construction merely
in performing his duty be confiscating the cattles from
established the contemporaneous legislative intent that the
Ynot, criminally liable?
interpreted law desired to effectuate.
Supreme Court Ruling:
ARTICLE 9. No judge or court shall decline to render
No. We agree with the respondent court, however, that the
judgment by reason of the silence, obscurity, or
police station commander who confiscated the petitioner's
insufciency of the laws. (6)
carabaos is not liable in damages for enforcing the
executive order in accordance with its mandate.
If the law is clear the judge is duty bound to abide it even if it
The law was at that time presumptively valid, and it was is against his personal beliefs, morals and etc.
his obligation, as a member of the police, to enforce it. It
would have been impertinent of him, being a mere Laws do not always answer all societys problems.
subordinate of the President, to declare the executive Nonetheless, in its absence or when it is inadequate, the court
order unconstitutional and, on his own responsibility alone, should:
refuse to execute it.
Even the trial court, in fact, and the Court of Appeals itself a. Refer to other sources such as custom
did not feel they had the competence, for all their superior b. Opinions from experts
c. Decisions rendered from foreign courts
authority, to question the order we now annul.
d. Decisions in other analogous cases

The court should perform its duty to render justice regardless


While it is true that generally an unconstitutional law confers no
of the absence, obscurity or inefficiency of laws that directly
right, creates no ofce, affords no protection, and justifies no
apply to the facts of the case.
acts performed under it, there are instances when the
operation and effects of the declaration of its unconstitutionality If there is a question of the wisdom of the law court shall
may be relaxed or qualied because the actual existence of the desist
law prior to such declaration is an operative fact and may
have consequences which cannot justly be ignored. Thus, it ARTICLE 10. In case of doubt in the interpretation or
has been held that although the Moratorium Law was application of laws, it is presumed that the
eventually declared unconstitutional, it suspended the period of
lawmaking body intended right and justice to
prescription for actions to enforce the obligations covered by
prevail.
the moratorium.
People v. Veneracion
Note: There is a difference between repeal of a law and
declaration of unconstitutionality. Judge Veneracion was a devoted Catholic and an active
member of a religious organization and believes that
ARTICLE 8. Judicial decisions applying or death penalty can never be justified.
Case involving rape. The accused was found guilty but
interpreting the laws or the Constitution shall form a
instead of imposing death penalty prescribed by the law
part of the legal system of the Philippines. (n)
existing at the time, he let his religious convictions take
Decisions only of the Supreme Court. over as imposed reclusion perpetua instead.
The People of the Philippines went to the SC to question
STARE DECISIS can only be invoked by the SC, respecting the decision of the said judge.
precedence. Involving the crime of rape at that time, it was punishable
of rape. He imposed reclusion perpetua because death
Are judicial decisions laws? penalty was against his religious belief.

While it is true that decisions which apply or interpret the Supreme Court Ruling:
Constitution or the laws are part of the legal system of the Courts are duty bound to impose the law. DURA LEX SED
Philippines (Art. 8, Civil Code) still they are NOT laws, if this LEX the law may be harsh but it is the law. The harder
were so, the courts would be allowed to legislate contrary to the better.
the principle of separation of powers.
15
Take note also that not all human problems can be addressed
by existing laws. When the law is silent upon a certain matter?
CONFLICT OF LAWS
ARTICLE 14: Penal laws and those of public security
In the Case of Stephanie Astorga shall be obligatory upon all who live or sojourn in
This absence of the law disallowing/allowing the use of the the Philippine territory, subject to the principles of
natural name of the mother of the adopted child. public international law and treaty stipulations.
The purpose of the adoption is for the benefit of the
adopted child. Espouses the principle of generality of penal laws. Anyone who
She is vested with rights and benefits according to the stays in the Philippines is governed by our penal or criminal
legitimate child. Justice and rightness demand the the laws. In case of violation, the offender may be prosecuted
adoptive child is also allowed to use the surname of her before our Philippine courts.
mother.
While generality talks about who is governed by our
Salvacion v Central Bank penal laws? territoriality pertains to jurisdiction. Hence, penal
Salvacion, a 12 year old girl was illegally detained and laws have force and effect only within Philippine territory,
subject to various exceptions. (Art 2 RPC)
repeatedly raped by a foreigner, a tourist. The foreigner
was arrested and the parents of Salvacion filed civil action
Subjective Territoriality principle
for damages arising from the same crime.
The country where the crime was started may have
Insofar as the criminal case was concerned, when the
jurisdiction over the crime even if the crime was
hearing was set, the accused escaped.
The civil action continued and after trial, judge rendered in completed in another country.
favor of the complainant and court awarded damages in
People v. Tulin
favor of the victim.
Involves the crime of piracy involving a vessel
The accused was nowhere to be found. The family tried to
somewhere in Mindanao. The vessel was seized by the
enforce the monetary judgment obtained from the
pirates and forcibly brought to Singapore.
court in the civil and when they discovered that the
While the vessel was in Singapore, a foreigner joined
accused had bank deposits, an action for garnishment
the pirates and supervised the unloading of the
was filed, requesting the bank to release certain
petroleum products and transferring them to another
amount enough to satisfy the monetary judgment of
vessel.
the court.
All the pirates, including the foreigner were arrested
Central Bank refused invoking a Central bank circular
because they returned to the Philippines.
which says that foreign currency deposits are exempted
The foreigner went to the SC on the main argument that
from garnishment, execution and other processes of the
he cannot be convicted of the crime because his alleged
court.
participation in the piracy took place only in Singapore
The said circular was lifted from the Foreign Currency
which is beyond the territorial jurisdiction of the
Deposit Act which makes foreign currency absolutely
Philippines.
confidential. Hence, it cannot be subject of execution or
garnishment. Supreme Court Ruling
The family filed an action for declaratory relief to
While it is true that the actual participation of the
settle once and for all the applicability of the central
accused took place in Singapore which is beyond the
bank circular and foreign currency deposit act to the
territorial jurisdiction of the Philippines, it shall be noted
case at hand.
that the crime started in the Philippines when the
Issue: Whether the foreign currency deposit of the
vessel was forcibly seized by the pirates and continued
accused can be garnished to satisfy the monetary award
until the vessel reached Singapore.
rendered by the court.
When the accused joined the pirates, his involvement was
Supreme Court Ruling: deemed to be a continuation of the entire criminal process.
The crime started in the Philippines but was
The purpose of the foreign currency act is to encourage
completed in Singapore and it doesnt matter if his
foreign depositor/investor by way of investment hoping to
involvement only took place in Singapore because he was
improve the Philippine economy.
part of the criminal process of piracy.
SC resolved with art 10. It is to be presumed that right and
One of the exceptions of the territoriality principle is
justice are intended. The only way to serve right and
when the offender commits any of the crimes commit
justice to exclude currency deposit to transient tourists
any of the crimes against national security and the
because this is the only way to satisfy the decision of the
law of nations and piracy is classified as crime against
court so as to render a decision that is attuned to rightness
national security and law of nations.
justice in so far as the victim is concerned.
Objective Territoriality principle

16
The country where the crime was completed may also governed by their own national law even if they are in
exercise jurisdiction even if it was started outside. the Philippines.

US v. Bull Recto v. Harden


Involves a shipment of some animals from Formosa (now Atty. Recto, a prominent lawyer happens to represent a
Taiwan) on board a certain vessel. The animals were client who is an American citizen, Mrs. Harden. His
treated inhumanely. The manner by which the animals services were engaged by Mrs. Harden to protect her
were treated allegedly violated a certain law which interests in some properties in the Philippines. This was
penalizes inhumane treatment of animals. resorted to by Mrs. Harden preliminary to her petition for
When they arrived in the Philippines, they were divorce against her husband in the US.
arrested but in their defense, they advanced the In their contract, Mrs. Harden agreed to pay Atty Recto
argument that they cannot be tried because the professional fees. After rendering his professional
Philippine courts had no jurisdiction since the crime services, Atty. Recto collected his fees as stipulated in the
was started and committed in Formosa. contract.
Mrs. Harden refused to pay the stipulated attorneys fees.
Supreme Court Ruling This prompted Atty Recto to go to court and file an action
While it is true that the shipment started in Formosa, it is to collect.
also true that the shipment entered in the Philippines In refusing to pay, Mrs. Harden argued that the stipulations
and the crime was a continuing offense and during the in the contract cannot be validly enforced because the
transport, the animals were treated inhumanely. contract is void for it was entered into in connection
Since the crime which begun in Formosa was with the divorce that she filed against her husband in
completed in the Philippines, Philippine courts have the States. Hence, since divorce was involved, the
jurisdiction to try and convict the offenders. contract is void because divorce is against public
policy in the Philippines.
The Philippines adhere to both subjective and objective
principles. Take note of the exceptions of Article 2 of RPC Supreme Court Ruling
SC ruled in favor of Atty Recto.
ARTICLE 15: Laws relating to family rights and Contract of professional service was not entered into in
duties or to the status, condition and legal capacity connection with the divorce. The contract was to protect
of persons are binding upon citizens of the the interests of Mrs. Harden in relation to her properties in
Philippines, even though living abroad. the Philippines.
Even assuming that the contract was entered into in
Espouses the nationality theory. Filipinos are governed by connection with a petition for divorce, it does not follow
their national law on matters relating to family rights and that the contract is void insofar as Mrs. Harden is
duties, status, condition and legal capacity regardless of concerned. She is an American citizen and insofar as
whether they are in the Philippines or abroad. validity of divorce, she is governed by her own
national law. Since divorce is valid in the US, the contract
Legal capacity, condition, family rights and duties, status, etc. shall be valid insofar as Mrs. Harden is concerned.
are governed by the laws of the country where the party is a Art 15 applies as well to foreigners even if literally it
national. mentions only Filipinos so that like Filipinos who are
Examples: If you are married in the Philippines, you will governed by Philippine laws wherever they may be,
still be married when you are abroad; When you are a foreigners insofar as family rights, duties, status,
minor in the Philippines, you remain to be a minor. condition, or legal capacity, are also governed by their own
national law even if they are in the Philippines.

Does Article apply also to foreigners? So that foreigners when Van dorn v. Romillo
they come here, matters concerning their family rights, duties, A foreigner and a Filipina, and a divorce decree was
status and legal capacity should also be governed by their own obtained in the US.
national law? Say if a 15 year old German comes here After obtaining the divorce, the husband returned to the
where 15 is the age of majority in Germany, can he be Philippines and filed an action, in his capacity as the
considered of age when the age of majority is 18 in the husband of the wife, that he be allowed to administer the
Philippines? properties which he claimed to be belonging to the
conjugal partnership.
What law governs personal status of foreigners? The wife said that he cannot anymore file the action
for he is no longer her husband pursuant to the divorce
Art 15 applies as well to foreigners even if literally it mentions
decree obtained.
only Filipinos. Hence, just like Filipinos who are governed
The husband argued that the divorce decree cannot
by Philippine laws wherever they may be, foreigners insofar as
be recognized in the Philippines because Philippines
family rights, duties, status, condition, or legal capacity, are
17
does not recognize divorce, it being against public Contract involving property = Article 16 applies (Lex Rei
policy. Hence, he remains to be her husband. Sitae)

Supreme Court Ruling Example: Can a 15 year old German buy a property in the
Being a foreigner, the husband is governed by his Philippines? (He is of age in Germany but is still a minor in the
own national law and being a US citizen, divorce is Philippines) No. Article 16 and not 15 shall apply. Pursuant to
recognized and therefore, the divorce decree obtained in Art 16, all matters concerning the contract involving property
the US validly binds the husband. shall be governed by the law of the country where the property
Insofar as Philippine law is concerned, he is no is located. Hence, the legal capacity of the German to buy
longer the husband of the Filipina wife. property shall be governed by Philippine laws, and under our
The SC did not rule on the validity of divorce insofar laws the age of majority is 18.
as the Filipina wife was concerned but on the validity
of divorce on the part of the American husband b. When it involves the legal capacity of an heir to inherit
pursuant to the nationality theory. from a decedent.
Example: If you are a Filipino and your father is a
Imelda Pilapil v. Ibay Somera German national, the issue of whether or not
A couple, German and a Filipina. The German husband you are entitled to inherit from your German
obtained a divorce decree before the German courts. father is not determined by your national law.
After the divorce was obtained, the husband returned The legal capacity of an heir to inherit Art
to the Philippines, and when he discovered that while 1039 is governed by the national law of the
they were still married, the wife played fire with another decedent. Hence, German laws shall apply, by
man, he sued for adultery. way of exception to Article 15.
The wife argued he cannot anymore institute the criminal
c. When it involves the legal capacity of a testator to
action for adultery because under Philippine laws, the
make a will
private offended party in the crime of adultery is the In laws involving succession, legal capacity to
husband and since the German cannot anymore be
make a will is subsumed under extrinsic validity
considered as her husband at the time of the institution of
of a will, hence shall be governed by Article 17
the action as a result of the divorce obtained, he has no
and 815
personality to institute the action for adultery. Example: When a Filipino citizen executes a will
in Japan leaving properties in the Philippines
Supreme Court Ruling
to his Vietnamese girlfriend, the issue of
The legal personality to institute a criminal action for
whether or not he has the capacity issue to
adultery should be determined at the time of the filing
execute the will is not determine by
of the action. Since the husband is governed by his
Philippine laws but by Japanese laws where the
own law, the divorce decree that he obtained in Germany
will was executed.
should be considered as valid insofar as he is concerned,
Since the divorce is valid, the husband then cannot d. When it involves the legal capacity to contract
anymore be considered as an offended husband. marriage
Legal capacity to contract marriage is
Exceptions: Where legal capacity is not governed by generally not governed by Article 15 except if
Article 15 the party is a Filipino. (Because then Art 15
nationality theory shall apply)
a. When the contract involves property.
General rule: What law governs the capacity
The legal capacity of the parties concerned
of a contracting party to contract marriage
is to be determined by the law of the place
(Art 17 lex loci celebracionis shall apply)
where the property is located. While status or
(Art 17 shall apply lex loci celebracionis, Art 26
legal capacity is generally governed by the
2nd par if a party is a Filipino)
national law of the individual, this is not so when
the status concerns itself with a contract ARTICLE 16: Real property as well as personal
involving property.
property is subject to the law of the country where it
is situated.

Distinguish ordinary contract from a contract of property: However, interstate ad testamentary successions
both w/ respect to the order of succession and the
Ordinary contract - A contract which does not involve property amount of successional rights and to the intrinsic
= Article 15 applies (Nationality Theory) validity of the testamentary provisions, shall be
regulated by the National law of the person whose

18
succession is under consideration, whatever may be CHRISTENSEN V AZNAR
the nature of the property and regardless of the SC: when our court is confronted back with renvoi after
country wherein the said property may be found. referring back of the issue from then which we referred to the
first state we shall accept the referring back then we shall
(10A)
apply the internal law that will solve everything.
LAW GOVERNING PROPERTIES LEX REI SITAE
2. INVOLVMENT OF PROPERTY IS MERELY INCIDENTAL
o The law of the country where the real or personal
because the issue/relationship of parties is
property is located/situated shall be the governing law
merely contractual in nature. Do not apply LEX
over such real property (after all, real property is
RAE SITAE. Only the law governing ordinary
attached to land).
o Application: shares of stocks of a foreigner, even if contracts is controlling on such matters.
personal property, can be taxed so long as the
If something goes wrong do not apply lex rae sitae (cleaning
property is in the country.
of house contract of service; contractual relations between
o TAKE NOTE; pursuant to this provision as a general
the parties)
rule all aspects of property are governed by lex rae
sitae principle. Meaning the forms and solemnities of 3. When the issue is not itself about the property but the
contracts involving property are governed by lex rei issue is about the authority over the party
sitae.
o Even the extrinsic, governed by lex rae sitae and not Laurel v. Garcia
article 17. Also the legal capacity of the involving the Niponggo Property by virtue of the agreement between
contracting parties having that real property contract. Japan and RP as compensation for the war damages.
o The intrinsic aspect of the contract, subject matter,
Niponggo was initially intended for diplomatic purposes to
terms and conditions, performance governed by lex re
house diplomatic officers. Aquino government intended to
sitae (mortgage, prescription, registration, accretion,
dispose Niponggo property led by Salvador Laurel.
accession)
In other words, the very nature of Niponggo property
EXCEPTIONS TO LEX REI SITAE: 2nd par which is a public domain cannot be emulated for it belongs
to the whole government of Filipino people.
1. SUCCESSIONAL RIGHTS NATIONALITY THEORY
Shall not be governed by Lex Rae Sitae but by Supreme Court Ruling:
the national law of the DECEDENT It is error to argue applies to such case because the issue
a. Order of succession is not about the property as to ownership. The only issue
b. Amount of Successional Rights is the authority of the government to sell the property
c. Intrinsic Validity of Testamentary Provisions
ARTICLE 17. The forms and solemnities of
What if there be conflict between national law of 2 countries
both having property of a citizen The problem of
contracts, wills and other public instruments shall
unforceablility and ineffectiveness is precisely a defect on be governed by the laws of the country in which they
the 2nd Par of Art 16. are executed.

To eliminate possibility of NO JURISDICTION it is clear that When the acts referred to are executed before the
Art 16 par 2 can apply ONLY TO PROPERTIES LOCATED IN diplomatic of consular officials of the Republic of
THE PHILIPPINES. the Philippines in a foreign country, the solemnities
established in the Phil laws shall be observed in
RENVOI PROBLEM literally means referring back
their execution.
The problem arises when there is doubt as to whether
Prohibitive laws concerning persons, their acts or
a reference in our law (art XVI, par 2)or the national
law of deceased property, and those which have for their object of
reference to the internal of said foreign law order, public policy and good customs shall not be
reference to the whole of the foreign law rendered ineffective by laws or judgments
including its CONFLICTS LAW promulgates, or by determinations or conventions
agreed upon in a foreign country. (11a)
If one state involved follows the NATIONALITY and the other
DOMICILARY === refer back to first state. DOCTRINE OF LEX LOCI CELEBRATIONIS - The law
provides clearly that the FORMS and SOLEMNITIES of
TO DO OTHERWISE: refer back again the matter of foreign
public instruments, wills and contracts shall be governed
country with the possibility that once again the problem will be
by the laws of the COUNTRY WHERE THEY ARE
refunded to us ---> would result to international football.
EXECUTED. (EXTRINSIC VALIDITY)

19
o Valid when done orally or should it be in - Contract executed in the Philippines by two Japanese
writing? involving a property in the Philippines and it be
performed in the Philippines, the effects of the
o Should it be notarized? contract takes place in the Philippines and
considerations paid in the Philippines. (Obviously the
o Signed by at least 4 witnesses? most significant aspect of the contract pertains to
the Philippines, hence the law of the Phils shall
What if the various stages of the execution of the contract govern the intrinsic validity of the contract)
took place in different countries? Say, if the offer was
made in one country, or online, and the acceptance in 3. When the significant components are evenly distributed to
another. the countries involved, the law of the country where the
contract is likely to be upheld as valid.
Article 1319 NCC Contract is perfected by the meeting of the
minds between the contracting parties. This happens when the RULE OF EXTERRITORIALITY Even if acts be done
offer is accepted and acceptance is communicated to the abroad, STILL if executed before the Philippine Diplomatic
offeror. Unless the acceptance is made known to the offeror, and Consular officials, the solemnities of the Philippine laws
the contract cannot be deemed perfected. shall be observed.
- Paragraph 2 states that when the offer and
acceptance are made through letters or electronic o The theory is that the act is being done within an
forms, the contract is deemed perfected at the place EXTENSION of the PHIL. TERRITORY (the principle
where the offer was made of exterritoriality)
o Under Intl law, host countries waiver their jurisdiction
Article 17 exclusively applies to the EXTRINSIC aspect of over the premises of the diplomatic offices of another
the contract and not in the INTRINSIC aspects (effect, country located in the said host country.
terms and conditions, interpretation & subject matter)
When the Phils refers to a foreign law but cannot be applied
because the application of the foreign law may contradict the
What law governs intrinsic aspects of a contract?
sound policy or morals of our country
Fundamental rule: LIBERALITY
- Parties are free to establish the terms and
Bank of America v. American Realty Corporation
conditions and stipulations of the contract as they
The court held that section 4 of the 1997 rules on civil
may deem convenient, unless it is contrary to law,
procedure provides that if two or more suits are instituted
morals or public policy. Hence, pursuant to the
on the basis of the same cause of action, the filing of one
liberality of contract, our policy is to give effect to
or a judgment upon the merits in any one is available as a
the intention of the parties.
ground for the dismissal of the others.
A mortgagor creditor may pursue two remedies either to
For purposes of conflict of laws, intrinsic validity of the contract
shall be governed by the: institute against the mortgagor debtor a personal action for
1. Law intended by the parties (Lex Loci Voluntatis) collection of money or foreclosure of a mortgage but
- This is determined by looking at the choice of law cannot avail of both remedies.
clause (where the parties expressly indicate what In Philippine jurisdiction, these remedies are alternative
law governs their contract) and not cumulative.
- Limitations: The parties cannot validly stipulate a Thus, choosing a remedy is a bar to avail the other
specific law which has nothing to do with the contract remedy. Plaintiff cannot split up a single cause of action by
at all. filing both remedies as expressly prohibited by the rules
on civil procedure.
2. In the absence of a choice of law clause, the law which the On the contention of the petitioner that the English law
parties presumed to have agreed upon (LEX LOCI should apply to the principal agreements that states that
INTENTIONIS) the mortgage does not lose its security interest by simply
- When the contract is silent as to the choice of law filing civil actions for sums of money, the court held that a
of the parties and when the intention cannot be foreign law must be properly pleaded and proved as fact.
determined in the absence of the choice of law If not pleaded, the court will presume that the foreign law
clause, you apply lex loci intentionis. is the same as our local or domestic or internal law. This is
- This is determined by the most significant the doctrine of processual presumption.
relationship theory by examining the various Additionally, prohibitive laws concerning persons, their
significant components of the contract. (e.g. parties, acts or property, and those which have for their object
subject matter, terms and conditions, performance, public order, public policy and good customs shall not be
effects, considerations) and determining as to rendered ineffective by laws or judgments promulgated, or
which country these significant components refer to. by determinations or conventions agreed upon in a foreign
20
country. The public policy sought to be protected in the b) Absolute divorce granted to Filipinos abroad even if
instant case is the principle imbedded in our jurisdiction valid where it was given cannot be effective here in
proscribing the splitting up of a single cause of action. the Phils. and
The principle imbedded in our jurisdiction proscribing the c) c) Living with another man besides lawful husband
splitting up of a single cause of action is a public policy and his permission.
that is sought to be protected in this case. And
ARTICLE 18. In matters which are governed by the
accordingly, prohibitive laws concerning persons, their
acts or property, and those which have for their object Code of Commerce and Special laws their deficiency
public order, public policy and good customs promulgated shall be supplied by the provisions of this code (16a)
or agreed upon in a foreign country, shall be rendered
SUPPLETORY NATURE RULE IN CASE OF CONFLICT
ineffective in this country.
BETWEEN CIVIL CODE AND OTHER LAWS.
o In case of conflicts with the code of Commerce or
CADALIN V POEA (DIGEST CASE)
special laws, the CIVIL CODE shall only be
Involves multiple complaints by OFWs who landed jobs in
SUPPLETORY, except of otherwise provided by the
countries in the Middle East including Bahrain. While they
CIVIL CODE
were there, their contracts were terminated and were not
given their due. They filed multiple suits in the Philippines o In GENERAL, therefore, in case of conflict ---- the
against their employers ASIA INTERNATIONAL SPECIAL LAW prevailse over the Civil Codem
BUILDERS CORPORATION (AIBC) and employment which is general in nature.
by BROWN & ROOT INTERNATIONAL, INC (BRI)
which is a foreign corporation with headquarters in When Civil Code is SUPERIOR There are instances
Houston, Texas, and is engaged in construction; while when the Civil Code expressly declares itself superior to
AIBC is a domestic corporation licensed as a service special laws.
contractor to recruit, mobilize and deploy Filipino workers o COMMON CARRIERS
for overseas employment on behalf of its foreign o INSOLVENCY
principals. In case of conflict, the new Civil Code applies but under
The issue raised there among others, is whether or not the another article, usurious transactions are governed by special
filing of the suits was within the prescriptive period. It so laws. (Art 1175, Civil Code)
happened that the prescriptive period in Bahrain, the
prescriptive period is only one year from the expiration of Rule in Statutory Construction - The General Rule is that
the contract. But in our own labor law, it is 3 years from the the special law governs in case of conflict.
prescriptive period. However, the contracts were made
and executed abroad. Obviously, the law that should be HUMAN RELATIONS
applied is the one in Bahrain.
1 ABUSE OF RIGHTS - FUNDAMENTAL TENET:
2 UNJUST ENRICHMENT
Supreme Court Ruling:
The Supreme Court ruled that we cannot apply the said
law because it is contrary to our public policy of protecting ARTICLE 19. Every person must, in the exercise of
labor. his rights and in the performance of his duties, act
Laws concerning persons and their acts cannot be with justice, give everyone his due and observe
rendered ineffectual by the conventions of a foreign honesty and good faith.
country when it is against sound policy. Just because it is
valid abroad doesnt mean its valid in the Philipines. By Presents the rightful relationship between the people. The law
virtue of public policy, when morality comes in, it is always recognizes limits on all our rights; that in their exercise, the
a problem. norms of human conduct (justice, give everyone his due,
observe honesty and good faith) set forth in Art 19. must be
RULE RESPECTING PROHIBITIVE LAWS observed.
A right, though by itself is legal because it is recognized
THE 3RD PARAGRAPH GIVES ONE EXCEPTION to the rule and granted by law as such may however become a
that a Foreign law, contract or judgment can be given effect. source of some illegality. When a right is exercised in the
manner exercised contrary with the norms in Art 19 ->
REASON: is that public policy in the Phils. prohibits the same? damage to another.
Ex: LEGAL WRONG is committed for which the wrongdoer
must be held responsible.
a) Contract For the sale of human flesh even if valid
where act was made cannot be given effect in the ELEMENTS OF ABUSE OF RIGHT:
Phils. 1) There is a legal right,
2) Exercised in bad faith,

21
3) For the sole intent of injuring another. Good faith is presumed and he who alleges Bad Faith
must prove the same. / Malice connotes bad faith or ill-will
What happens if a person disregards a command which implies an intention and unjustifiable harm.
mandated under article 19? Any violation of article 19 causes
TORTS/WRONG legal principle; where there is a wrong,
abuse of rights. There is an abuse of right when one in the
there is a remedy.
exercise of his right disregards what is under article 19.
o Spanish tort based on negligence
The aggrieved party can file for damages premised on abuse o American tort based on malice
of rights principle. This gives rise to call for damages. Art. 19,
however, does not ask for penalty. It merely imposes an article
for abuse of rights. Damages will be premised in article 20 or Law on TORTS/ QUASI-DELCTO - Whoever by act or
21 which provide for remedy to recover damages from the omission causes damage to another, there being fault or
wrongdoer. negligence, is obliged to pay for the damage done. Art 2176,
Civil Code

Article 20 Article 21
Act of omission ARTICLE 21. Any person who willfully causes loss
Act or omission
covers both or injury to another in a manner that is contrary to
Nature of the act covers only
negligent and morals, good customs or public policy shall
intentional acts.
intentional acts. compensate the latter for damage.
Contrary to
What makes the Act or omission is morals, public *act there is not contrary to law/illegal rather it is against
act actionable contrary to law. policy or good morality, customs and policy. THE ACT MUST BE
customs. INTENTIONAL.

Willful and intentional are not the same. Elements under Art 21: 1) There is an act which is legal; 2) But
Willful act is one that is deliberately intended to cause which is contrary to morals, good custom and public policy and
harm to the victim. So even if the act is voluntary, it 3) is done with Intent to injure. (willful)
may not always deliberately want to cause harm to
another person. Presupposes loss or injury, material or otherwise, which
one may suffer as a result of such violation.
These are torts and not crime. Damages are granted only to those injured persons who
are not themselves at fault (refer: Pari Delicto Rule)
CRIME TORT
An actionable wrong not Nominal Damages are granted for the vindication or
There is a law that punishes
defined by a specific law but recognition of a right violated or invaded, and not for the
the act or omission
by general principles of tort. purpose of indemnifying the plaintiff for any loss suffered by
Offended party is the him
Offended party is the state
complainant
Seeks penalty by way of fine Seeks compensation by way CONTRA BONUS MORES ( Against good morals)
or imprisonment of recovery of damages. PARI DELICTO RULE means EQUAL in
Examples: GUILT/FAULT; in a similar offense or crime. (As to
Tort but not a crime: Breach of promise to marry having CARNAL KNOWLEDGE about such act as
Crime but not a tort (because is produces no damage): Illegal being immoral)
possession of drugs
Typical example which violates article 21 Breach of promise
ARTICLE 20. Every person who, contrary to law, to marry
willfully or negligently causes damage to another,
*There is no law which penalizes the breach to marry based on
shall indemnify the same to the other
the principle mutual consent of the marriage. Makes it ones
Focus of Art. 20: an act which is against the law which can right to decline to change his mind before the marriage is
either be committed through negligence or intentional act. solemnized. But there are instances which such breach could
action to TORT where the actor can be liable for damages
- Precisely the INTENTIONAL TORT (american under article 21.
concept)
- The article basically punishes illegal acts whether Baksh v. Court of Appeals
done willfully or negligently. An Iranian national asked a Filipina woman to marry her.
Because of the promise to marry, the woman agreed and
went on to live with her.
MALICE OR BAD FAITH is at the core of this provision.

22
Due to this promise to marry, the woman gave up her During dinner, the organizer noticed the presence of Amay
virginity to him. Bisaya and told Amay Bisaya to leave the party. Bisaya
Moreover, the defendants parents made a scene causing commotion.
Have already made some preparations to their marriage Bisaya filed an action for damages against the hotel
when petitioner repudiated from his promise. and the organizer.
Issue: Whether he is entitled to damages because of the
alleged damages he suffered when he was asked to
Supreme Court Ruling: leave.
Mere breach of promise to marry is not actionable.
However, if there is carnal knowledge and the promise to Supreme Court Ruling
marry was the proximate cause to the agreement to The fact that one may have suffered damage, doesnt
sexual intercourse, then a woman can file for damages. mean that the aggrieved party is entitled to damages.
What is punished is essentially the idea of deceit, The award for a tort action is based on 2 conditions:
enticement, superior power or abuse of confidence on the a The existence of the damage
part of the seducer to which the woman has yielded. b The act of the defendant being violative of the
right of the plaintiff
Whats the rule? Depends on: There is no evidence that the organizer had maliciously
a When there is sexual intercourse (carnal knowledge) intended to embarrass him. Damnum Absque Injuria.
i Compel the other when results pregnancy compel This case illustrates that voluntary actions will not
recognition or affiliation (support) necessarily lead to action for damages. There must be
ii Aggrieved party to sue for actual damages representing willfulness.
the expenses incurred in the preparation of the
wedding. Doctrine of DAMNUM ABSQUE INJURIA loss, hurt or harm
iii If there was criminal/moral seduction which made the without injury in the legal sense, that is, WITHOUT SUCH AN
woman to surrender her woman hood to the man INVASION OF RIGHTS AS IS REDRESSIBLE BY AN ACTION.
(devoured)
- Criminal seduction if MINOR Essential that some right has to be impaired.
- Moral seduction if ^18 ART 11, PARAGRAPH 4 OF REVISED PENAL CODE
- MAY ASK FOR MORAL DAMAGES
DAMAGES THAT DO NOT WARRANT CIVIL
iv But if the carnal knowledge was due to mutual LUST
both of them Enjoyed it to their intimate delight NO LIABILITY IN THE PART OF THE ACTOR.
There is no breach of illegal duty.
ACTION FOR MORAL DAMAGES WILL FOLLOW
This also covers the act of self-defense.
(PARI DELICTO equal in guilt/fault)
What justifies the action for moral damages is the fraud and
deceit that was created when there was a breach of promise to Manila Doctors v. Chua & Ty
marry.
Involves hospital patients, mom and sister of Ty.
b No carnal knowledge The hospital expenses ballooned that she could no longer
i Actual damages for wedding prep pay.
ii Even if there was no sexual intercourse, the breach of Despite repeated reminders, when Ty could not
promise to marry humiliated and embarrassed the update the account, the hospital reminded them to either
other (moral damages can also be recovered) **clear consider the patients as outpatients since they are
case of abuse of right already cleared for discharge or if they want to stay,
the hospital will have to downgrade the
c Prompted in good faith NOT ACTIONABLE. accommodation.
- e.g. if one realizes that he/she does not love the Ty failed to pay and the hospital was forced to
other. downgrade the accommodation. Ref, aircon, tv and
telephone were cut.
IMPORTANT NOTE: YOU CAN ONLY ASK FOR DAMAGES
Ty sued for damages against the hospital and
WHEN THE ACT WAS DONE WILLFULLY AND NOT ONLY
management claiming that the hospital abused its rights
VOLUNTARILY.
Issue: Whether or not Robelyn can claim damages under
the principle of abuse of rights.
Nikko Hotel Manila Garden
Amay Bisaya was having coffee at the Nikko Garden
Supreme Court Ruling
hotel when he met a friend carrying a bag of fruits.
Damnum Absque Injuria While we can only
After a brief conversation, his friend told him that he
sympathize with the inconvenience that the family
will be attending party at the penthouse. Sensing the suffered as a result of the downgrading of the
opportunity to gatecrash, Amay Bisaya carried the accommodation, but this does not give them the right
basket and went to the penthouse and acted as if he to recover for damages. It is within the right of the
was an invited guest. hospital to downgrade the accommodation. Hospitals,
23
while it is being impressed with public interest, is also a - If one does not do either - THEFT. Failure to
business that has to sustain its economic viability for it to return/deliver lost property to the proper authority is a
survive. crimetheft bro! theft.
The facilities cut off were non-essential medical
facilities, while they may cause inconvenience, they did Article 719 MAYOR SHOULD publicly announce in whatever
not in any way prejudice or jeopardize the condition of ways the mayor finds it convenient. If the owner does not come
the patients. forward in 6 months from public announcement, the lost
The award of damages presupposes two things: property is now awarded to the FINDER. Vested on the finder
1. The existence of the damage by virtue of OCCUPATION (mode of acquisition when property
2. The act of the defendant being violative of the did not have a previous/known owner).
right of the plaintiff
- if the owner comes forward within the 6-month rule,
ARTICLE 22. Every person who through an act of finder should be given 1/10 of the VALUE of the
performance by another, or any other means, property found to recognize ones honesty.
acquires or comes into possession of something at - However, is perishable, it will be auctioned.
the expense of the latter without just or legal ground
ARTICLE 23. Even an act or even causing damage to
shall return the same to him.
anothers property was not due to the fault or
*receipt of something gives rise to a return because receipt negligence of the defendant, the latter shall be liable
was without justifiable cause. INTENTIONAL for indemnity if through the act or event he was
benefited.
UNJUST ENRICHMENT No person can claim what is not
validly and legally his/hers. Hence, s/he would not unduly profit Still UNJUST ENRICHMENT
on something which does not meritoriously belong to him/her.
(Accio in rem verso) Duty to indemnify because of benefit received.
Only prove the correlation of benefit and damage.
Nemo Cum Allerius Detrimento Protest No person UNLESS there is duty to indemnify, unjust enrichment
shall unjustly enrich himself at the expense of will occur.
another. The fact that someone benefited from some damage
Nemo ex alterius incommende debet lecupletari no makes rise of indemnity
man ought to be made rich out of anothers injury.
Example of Art. 23: Without As knowledge, a flood drives his
Accion in rem verso When something is received when there cattle to the cultivated highland of B. As cattle are saved but
is no right to demand at the expense of another. Bs crops are destroyed. A was not at fault, but he was
benefited. Hence, he should indemnify B.
Ex. You went shopping in Ayala and in your hurry to leave, the
security guard asked for the receipt but you could not show it Article 23 closely related to Art 432
at that moment. Since you dont want to create a scene, you
went back to the cashier and paid for the same items twice. If Art 432 Doctrine of necessity or complete privilege
the receipt of the items surfaced after a few days, Ayala has to
give you back the amount you paid for the second time. - The owner of a property has no right to prevent
interference by another of his property, if the
Solutio Indebiti (Article 2154) When something is received interference is necessary to avert an imminent
when there is no right to demand it, it being delivered by danger and the imminent danger if compared to
mistake, duty to return arises. the damage, is greater. The person who was
benefited is obligated to indemnify for the damage
Ex. When you suddenly have 1 million pesos in your ATM. caused.
- Example: A fireman destroying a nearby house to
Difference: In accio in rem verso, the delivery of the gain access to the subdivision. The nearby property
property was done voluntarily and intelligently while in is destroyed to avert a greater evil, being the
solution indebiti, the property was delivered by mistake. destruction of houses inside the subdivision due to
the fire. Destroy one house to save many.
The indemnity cannot exceed loss or enrichment whichever is
less. Article 23 Article 432
Because of the benefit derived, the obligation to indemnify
On LOST PROPERTY: arises.
Article 308 of CC anyone who finds a lost property MUST Need not distinguish
return it to the owner when owner is known. If unknown, go to The evil sought to be
whether the evil sought to
the mayor. avoided must be greater
be avoided is greater than
than the damage cause.
that suffered by the plaintiff.
24
from the free will of the person confession which was not
Art 11 paragraph 4 RPC doctrine state of necessity (A obtained because s/he was coerced
justifying circumstance)
ARTICLE 25. Thoughtless extravagance in expense
- Damage caused by an act intended to save a greater for pleasure or display during a period or acute
evil but whoever has derived benefit from the event is public want or emergency may be stopped by order
liable to indemnify those who were damaged by the
of the courts at the instance of any government or
event in the course of the firemens intervention
- Article 101 of the RPC: The party in whose benefit the private charitable institutions.
damage was done should indemnify.
The law seeks to prevent inconsiderate and ostentious
For both Art. 432 (NCC) and Article 11 (RPC): THE FIREMAN activities during times of emergency.

- There is a fire and the fireman cannot get in the Reason: Thoughtless extravagance during emergencies may
subdivision without damaging the neighboring incite the passions of those who cannot afford to spend.
houses. The owners of the houses cannot prohibit the Who can bring the action? Charitable institution (whether
fireman. If that is the only means to save the government or private) may bring the action --- But there
subdivision, then he may do so. should be court order to such action.
- It is not the fireman that is liable, but the owners of the
subdivision. ARTICLE 26. Every person shall respect the dignity,
personality, privacy and peace of mind of neighbors
Do not confuse state of necessity with the exercise of police
and other persons. The following and similar acts,
power under Article 436 Civil Code whenever a property is
condemned or destroyed in the name of general security or though they may not constitute a criminal offense,
public welfare the owner of such property cannot claim shall produce a cause of action for damages,
compensation. In police power there is not right for indemnity. prevention and other relief:

ARTICLE 24. In all contractual, property or other 1 Prying into the privacy of anothers
relations, when one of the parties is at a residence
disadvantage on account of his moral dependence, 2 Meddling with or disturbing the private life or
ignorance, indigence, mental weakness, tender age family relations of another
or other handicap, the courts must be vigilant for his 3 Intriguing to cause another to be alienated
protection. from his friends
4 Vexing or humiliating another on account of
COURT VIGILANCE The law takes interest in the welfare of his religious beliefs, lowly station in life,
the weak and the handicaped. Thus we have Parens Patriae.
place of birth, physical defect or other
PARENS PATRIAE ( father/parent of the country) refers to personal condition.
the sovereign power of the state safeguarding the rights of
persons under diability, such as the insance and inompetent. A civil action may be instituted even when no crime is
involved and moral damages may be obtained.
The state as Parens Patriae is under the obligation to Remedies:
minimize the risk to those who because of their o an action for damages
minority are as yet unable to take care of themselves o an action for prevention or
fully. o any other relief.
Scope:
Meaning of Vigilant for his protection The phrase in
a Prying into someone elsess residence - includes by
general means that in case of doubt, doubt must be resolved in
implication respect for anothersname, picture or
favor of the underdog.
personaluty except insofar as is neededfor publication
of info and pictures of legitimate news value.
Summun Jus, Summa Injuria Thus, If the laws were
b Meddling with or disturbing the private life of family
always to be applied strictly there would be danger that
relations and of another, as well includes alienation
injustice may arise.
of the affections of the husband of the wife.
c Intriguity to case to be alienated from his friends,
Protects among others, the labor class, many members of
includes gossping, amd reliance o hearsay.
which face obvious disadvantage.
d Vexing or humiliating ncludes confusing and health
Inadmissability of Confession through Coercion for features w/ justuciable legal cause.
inadmissable because the essence of it was that it proceeds

25
PROTECTION OF HUMAN DIGNITY This article enhances liberties of another person shall be liable to the latter
human dignity and personality. SOCIAL EQUITY is not sought, for damages:
but due regard for decency and propriety.
(1) Freedom of religion;
If there is no law punishing the act, then there is no crime.
(2) Freedom of speech;
ARTICLE 27: Any person suffering material or moral (3) Freedom to write for the press or to maintain a
loss because a public servant or employee refuses periodical publication;
or neglects without just cause, to perform his official (4) Freedom from arbitrary or illegal detention;
duty may file an action for damages and other relief (5) Freedom of suffrage;
against the latter, without prejudice to any (6) The right against deprivation of property without
disciplinary administrative action that may be taken. due process of law;
(7) The right to a just compensation when private
ARTICLE 28: Unfair competition in agricultural, property is taken for public use;
commercial or industrial enterprises or in labor (8) The right to the equal protection of the laws;
through the use of force, intimidation, deceit, (9) The right to be secure in one's person, house,
machination or any other unjust oppressive or high- papers, and effects against unreasonable searches
handed method shall give rise to a right of action by and seizures;
the person who thereby suffers damages. (10) The liberty of abode and of changing the same;
(11) The privacy of communication and
ARTICLE 29: When the accused in a criminal correspondence;
prosecution is acquitted on the ground that his guilt (12) The right to become a member of associations
has not been proved beyond reasonable doubt, a or societies for purposes not contrary to law;
civil action for damages for the same act or (13) The right to take part in a peaceable assembly
omission may be instituted. Such action requires to petition the government for redress of grievances;
only a preponderance of evidence. Upon motion of (14) The right to be free from involuntary servitude
the defendant, the court may require the plaintiff to in any form;
file a bond to answer for damages in case the (15) The right of the accused against excessive bail;
complaint should be found to be malicious. (16) The right of the accused to be heard by himself
and counsel, to be informed of the nature and cause
If in a criminal case the judgment of acquittal is
of the accusation against him, to have a speedy and
based upon reasonable doubt, the court shall so
public trial, to meet the witnesses face to face, and
declare. In the absence of any declaration to that
to have compulsory process to secure the
effect, it may be inferred from the text of the
attendance of witness in his behalf;
decision whether or not the acquittal is due to that
(17) Freedom from being compelled to be a witness
ground.
against one's self, or from being forced to confess
ARTICLE 30: When a separate civil action is brought guilt, or from being induced by a promise of
to demand civil liability arising from a criminal immunity or reward to make such confession,
offense, and no criminal proceedings are instituted except when the person confessing becomes a State
during the pendency of the civil case, a witness;
preponderance of evidence shall likewise be (18) Freedom from excessive fines, or cruel and
sufficient to prove the act complained of. unusual punishment, unless the same is imposed or
inflicted in accordance with a statute which has not
ARTICLE 31: When the civil action is based on an been judicially declared unconstitutional; and
obligation not arising from the act or omission (19) Freedom of access to the courts.
complained of as a felony, such civil action may
proceed independently of the criminal proceedings In any of the cases referred to in this article, whether
and regardless of the result of the latter. or not the defendant's act or omission constitutes a
criminal offense, the aggrieved party has a right to
ARTICLE 32: Any public officer or employee, or any commence an entirely separate and distinct civil
private individual, who directly or indirectly action for damages, and for other relief. Such civil
obstructs, defeats, violates or in any manner action shall proceed independently of any criminal
impedes or impairs any of the following rights and

26
prosecution (if the latter be instituted), and mat be 1 Restitution (return of the property stolen)
proved by a preponderance of evidence. 2 Reparation of damage caused (value of the property
stolen)
3 Indemnification of consequential damages (value of the
The indemnity shall include moral damages.
unearned salary)
Exemplary damages may also be adjudicated.
How to pursue civil liability? Through civil action
The responsibility herein set forth is not demandable
from a judge unless his act or omission constitutes Sources of Civil Liability
a violation of the Penal Code or other penal statute. Article 100 of Every person criminally liable is civilly
RPC liable.
ARTICLE 33: In cases of defamation, fraud, and Violation of constitutional rights of
physical injuries a civil action for damages, entirely another makes one liable for damages
Article 32 of
separate and distinct from the criminal action, may regardless of a criminal action that may
NCC
be filed. This civil action is separate and
be brought by the injured party. Such civil action
distinct from the criminal action.
shall proceed independently of the criminal In cases of defamation, fraud, physical
prosecution, and shall require only a preponderance Article 33 of
injury, a separate civil action may be filed
of evidence. NCC
against the person responsible.
When a member of the police fails to
ARTICLE 34: When a member of a city or municipal render aid or protection to any person in
Article 34 of
police force refuses or fails to render aid or case of danger to life or property, a
NCC
protection to any person in case of danger to life or separate civil action may be filed against
property, such peace officer shall be primarily liable the police officer.
Anyone who causes damage to another
for damages, and the city or municipality shall be
Article 2176 of through fault or negligence, there being
subsidiarily responsible therefor. The civil action
NCC no contractual relations between them,
herein recognized shall be independent of any shall be liable for damages.
criminal proceedings, and a preponderance of
evidence shall suffice to support such action. INSTITUTION OF A CIVIL ACTION TO PURSUE CIVIL
LIABILITY
ARTICLE 35: When a person, claiming to be injured The rule depends on whether the civil action is
by a criminal offense, charges another with the dependent or independent.
same, for which no independent civil action is
granted in this Code or any special law, but the DEPENDENT CIVIL ACTIONS
Those actions which are based only on Art 100 of the Revised
justice of the peace finds no reasonable grounds to
Penal Code. They are dependent on the outcome of the
believe that a crime has been committed, or the
criminal case.
prosecuting attorney refuses or fails to institute
criminal proceedings, the complaint may bring a RULES:
civil action for damages against the alleged A civil action arising from a crime may be waived, reserved or
offender. Such civil action may be supported by a filed ahead of the criminal action by the offended party:
preponderance of evidence. Upon the defendant's
1 When the civil action arising from a crime is not
motion, the court may require the plaintiff to file a
waived, reserved nor filed ahead of the
bond to indemnify the defendant in case the criminal action by the offended party:
complaint should be found to be malicious.
Rule: The civil action is deemed impliedly instituted in the
If during the pendency of the civil action, an criminal action.
information should be presented by the prosecuting
attorney, the civil action shall be suspended until the Hence, criminal action carries with it the civil action even
termination of the criminal proceedings. the case # is only one. There will be two proceedings lobbed
together in one case. There are two lawyers: the prosecutor
INSTITUTION OF CIVIL ACTIONS and the private lawyer and the two cases will be tried
together.
An act or omission may be both a crime and tort.
When the accused is convicted:
Crime Penalty (fine/imprisonment) It follows that the accused is also civilly liable.
Tort Recovery of damages
Civil liability may take the form of: (Art 104 RPC) When the accused is acquitted:

27
Beyond reasonable doubt (Art 29) There is no rule that prohibits the offended party from
- If the acquittal of the accused is based on filing the civil action ahead even if it is dependent
reasonable doubt (evidence is not sufficient to prove on the criminal action.
that he is guilty but could actually be), the court may When the prosecutor who has the duty to
still adjudge the accused civilly liable even if not determine whether to file a criminal case or
criminally liable because of the lesser quantum of not, because of the maneuvering of the
evidence in a civil case which is just preponderance. defense counsel, will take time to decide
Innocent whether or not to proceed with the
- If the acquittal is based on complete innocence, there criminal case. Hence, the preliminary
will be no civil liability because it has no leg to stand investigation will take some time. If this
on. happens, the private complainant may go
ahead with the civil action.
2 When the civil action is waived by the offended Or after evaluation of the evidence, the
party: prosecutor is convinced that there is no
basis to go forward with the criminal case
Rule: The offended party should make the waiver leading to the dismissal. The private
before the presentation of evidence of the complainant, however, believes that there
prosecution. is preponderance of evidence to prove
civil liability, he may go ahead with his
Effect if no waiver is made before presentation of
own civil action even if it is dependent.
evidence: The civil action is deemed impliedly
instituted in the criminal action. What happens if the private complainant filed the civil
action ahead of the criminal action, but eventually while
Effect if waiver is timely made: The civil action cannot
the civil action was pending, the prosecutor filed the
anymore be pursued by the private complainant. So if
criminal action?
the accused is found guilty is the criminal case,
he cannot anymore file a civil action to recover a The civil action shall be suspended at any stage
civil liability because of the waiver made. of the proceedings (because the civil action is
dependent on the criminal action) so long as no
3 When the civil action s reserved by the offended
judgment has yet been rendered.
party If suspended: Apply the rule on reservation
Rule: The offended party should make an express b The civil action which was filed ahead may be
reservation before the presentation of evidence of the consolidated with the criminal action belatedly filed.
prosecution.
The private complainant may choose not to INDEPENDENT CIVIL ACTIONS
participate in the criminal case but he may choose
to pursue a civil action. Those which are filed based on Art 32, 33, 34 and 2176 of the
Civil Code. By nature, they are not dependent on the outcome
Effect if no reservation is made before presentation
of the criminal action. Example: Murder (a crime involving
of evidence: The civil action is deemed impliedly
physical injury as per Art 33 and an independent civil action
instituted in the criminal action.
may be filed)
Effect if reservation is timely made: The civil action
Civil action as per Art 100 as well
shall be suspended at any stage of the trial to await
the outcome of the criminal action. It cannot proceed Effect: One criminal action for fraud and two civil actions being
independently. It has to wait until the criminal pursued by the private complainant.
case is decided and in that criminal case, he is not
allowed to participate because it is a purely criminal 1. Dependent civil action - Art 100 (Impliedly instituted in the
case and he has already reserved the civil action. criminal action if not waived, reserved nor filed ahead)
When the accused is convicted: 2. Independent civil action Art 33
Offended party may now continue with the civil action
earlier reserved. Significance:
A. Since an independent civil action is simultaneously
When the accused is acquitted:
pursued with the dependent civil action, in the criminal
Reasonable doubt Civil action earlier reserved
action where the civil action is deemed impliedly
may be pursued.
instituted, the private offended party may still actively
Innocence The civil action reserved may
participate in the criminal action.
not anymore continue. B. The offended party may also pursue the independent
4 When the civil action is filed ahead of the civil action
criminal action by the offended party
28
Are two civil actions allowed? The effect of death upon the rights and obligations
of the deceased is determined by law, by contract
Though the objective is the same which is to recover damages,
and by will. (32a)
but pursued differently in two distinct civil actions, the rule
does not prohibit simultaneous remedies. What is prohibited
ARTICLE 43. If there is a doubt, as between two or
is DOUBLE RECOVERY.
more persons who are called to succeed each other,
When the accused is convicted; as to which of them died first, whoever alleges the
1. It will not be of any effect to the independent civil death of one prior to the other, shall prove the same;
action in the absence of proof, it is presumed that they died
When the accused is acquitted: at the same time and there shall be no transmission
1. Reasonable doubt independent civil action may of rights from one to the other. (33)
continue
2. Innocence independent civil action may continue 2 KINDS OF PERSONS

1 NATURAL PERSONS
Take Note: The rule that acquittal based on pure innocence 2 ARTIFICIAL PERSONS
bars a civil action is true only to a civil action anchored on Art
100 (dependent civil action), and not to independent civil NATURAL PERSONS civil personality is inherent to all
actions. natural persons. When does this commence?

ARTICLE 36: Pre-judicial questions which must be Under article 40 birth determines personality. Only those who
were born are considered natural person.
decided before any criminal prosecution may be
instituted or may proceed, shall be governed by But the unborn child while still inside maternal womb
rules of court which the Supreme Court shall considered born- provided that it shall be born according to art
promulgate and which shall not be in conflict with 41.
the provisions of this Code.
1 If it is alive after complete delivery from maternal
Prejudicial questions: womb civil personality
In a situation where a criminal action is pending and a civil 2 Premature babies legal personality only when it is
action is pendingit is possible that the issue raised in the civil alive within 24 hours after complete delivery from
case intimately related to the issue raised in crim action. maternal womb
3 Unborn (inside maternal womb) endowed with certain
For this to apply: It is NECESSARY that the civil case be filed legal personality (has presumptive personality but for
ahead of the criminal case. it to acquire complete civil personality MUST BE
BORN.)
4 IF NOT BORN, it does not possess rights at all
CIVIL PERSONALITY
ARTICLE 40. Birth determines personality; but the Geluz v. Court of Appeals
conceived child shall be considered born for all Action for damages filed by a father against a doctor who
purposes that are favorable to it, provided it be born performed 3 abortions on his wife.
Issue: Whether or not the husband has the cause of
later with the conditions specified in the following
action to recover damages arising from the death of the
article. (29a) fetus

ARTICLE 41. For civil purposes, the fetus is Supreme Court Ruling:
considered born if it is alive at the time it is Only he who suffered injury has the right to recover
completely delivered from the mother's womb. damages and not anyone else. If the victim died, the
However, if the fetus had an intra-uterine life of less action may be pursued by the heirs.
than seven months, it is not deemed born if it dies In this case, the fetus died while it was still inside the
within twenty-four hours after its complete delivery womb, it did not become a person because it was not
from the maternal womb. (30a) born, and it did not have any right and when it died, it
transmitted nothing to the parents.
ARTICLE 42. Civil personality is extinguished by It does not follow however that the father cannot claim
death. damages at all, but not on behalf of the child, but
due to his anxiety and frustration from parental
expectation.
The father failed to prove moral damages arising from the
abortion.
29
He did not appear to be suffering from the agony of the ii Disappearance under extraordinary circumstances when
death of his child. there is danger of death
- Presumption of death: 4 years of absence
Do not confuse civil liability with life: - Remarriage: 2 years

Civil personality starts at birth Applies only in the absence of evidence to prove the fact of
Life begins at conception death. Otherwise, when there is enough preponderance of
evidence, that the person who disappeared really died, the
It is not accurate to say that only a person can die; that only presumption does not apply.
those who were born can die. Even if a fetus is not yet born, it
can die. This is a PROVISIONAL PERSONALITY. Civil Eastern Shipping Lines v. Josephine Lucero
personality - CAPACITY to possess rights and obligation. Lucero is captain of a vessel and his services were
engaged by the company on a voyage, Philippines to
should not be confused with capacity to DIE. Does Hongkong and back.
not follow that only those who are born are capable of Under the contract, his wife shall be the allottee of his
dying (fetus life begins at conception) salary.
But the vessel encountered huge waves brought
Continental Steel Manufacturing Corporation v. Accredited about by the typhoon.
Voluntary Arbitrator Captain Lucero sent distress messages to the
Claim for bereavement benefit filed by a father by company, the last message being that the crew are ready
reason of the collective bargaining agreement between to abandon the ship.
the union of which the father is a member being an Everyone accepted that Lucero is already dead, except
employee of the company. the wife.
The company entitles the employees to bereavement She argued that contract shall only be terminated upon the
benefit in case of death of any dependent arrival of the vessel to the Philippines and because the
When his wife suffered a miscarriage and his unborn child vessel has not yet arrived, she shall continue to receive
died, he claimed for his bereavement benefit. the salary of the husband.
But this was refused by the company because of the She also contended that her husband cannot be
contention that the dependent contemplated under the presumed dead because the presumptive period of
collective bargaining agreement refers to a dependent death of 4 years has not yet expired.
who was born. So the fetus cannot be a dependent
because it did not become a person and only a Supreme Court Ruling
person can die. The rule on the presumption of death applies only when
there is absence of evidence to prove the fact of death.
Supreme Court Ruling In the case at bar, there is preponderance of evidence that
The company if obviously confusing life with civil the captain really died when the vessel capsized.
personality. Civil personality commences at birth, while life The rule on presumption does not apply, but the
begins at conception. preponderance.
Civil personality is extinguished by death. And all his rights
and obligations die with him. Victory Shipping Lines v. Workmen Compensation
Commission
3 PRESUMPTIONS GOVERNING DEATH: Involves a crew of a vessel soundly asleep when they
were suddenly awakened by the fire that engulfed the
a Presumption of Death Rule 131 paragraph W of rules
vessel.
of court
Instinctively, he jumped and has been heard of since then.
When the dead body cannot be found A person
Father filed an action to collect the death benefits arising
may be considered dead when the presumption applies:
from the death of his son. The Commission granted but
It arises when: Someone disappeared without trace; his the company appealed the decision arguing that it was still
whereabouts unknown premature for the father to claim the death benefit
because the period provided for under the law where the
Rule: son can be presumed dead has not yet expired.

i Disappearance under ordinary circumstance: Supreme Court Ruling


- Presumption of death: 7 years of absence The rule on presumption of death because there is
- Succession: 10 years before his estates can be preponderance of evidence that the son really died when
divided by the heirs (Except: When the father he jumped off the vessel during the fire.
disappeared after the age of 75 absence of 5
years only)
- Remarriage: 4 years

30
b Presumption of Survivorship paragraph JJ on the - This is a special one, not your run in the mill
rules of evidence contract.
Can be applied with all purposes EXCEPT succession. - Marriage is a private affair but endowed with
When two persons died, the crucial issue is who of them
public interest.
died first? - In ordinary contract, the rule is liberality, where
the parties can always agree which may be
Survivorship is determined from the probabilities resulting deemed proper so long as these are not
from the strength and age of the sexes: contrary to law.
- In marriage, this is not true. The nature,
I. Under 15 and over 60 the younger died later
II. Both are under 15 older died later incidents and consequences of marriage are not
III. Over 60 younger died later subject to law.
IV. Under 15 or over 60; between 15 and 60 the - The only exception is on marital settlements
latter died later (pre-nuptial agreements) on property relations.
V. Over 15 and under 60; male died later; older
- It is along this line that future support cannot be
died later (same sex)
waived.
c Presumption of Simultaneity of death Par. KK
For purposes of succession.
When there is doubt as to who between two persons who
are called to succeed each other died first, he who alleges
the death of the other shall prove the same. In the
absence of proof, they are deemed to have died at
the same time and there shall be no transmission of rights. The Supreme Court ruled that a
company policy prohibiting employees of the same
Persons and Family Relations
company from marrying each other is an invalid
Midterms
exercise of management prerogative for the failure
of the employer to present any evidence of business
Article 1: Definition of Marriage
necessity of the prohibition. Absence of such bona
Marriage
fide occupational qualification renders the policy
A special contract which calls for a permanent
invalid.
union between a man & a woman for the
establishment of a family life. Its nature,
consequences and incidents of marriage are
governed by law and not subject to the
agreement of the parties.
This is an inviolable permanent social institution.
R.A. No. 6955: The Act Prohibiting Mail
General Rule: The consequences of marriage are Order Brides
governed by law and cannot be subject to the This law penalizes any person or entity who
compromise of both parties. carries on a business of matching Filipino
women for marriage with a foreigner.
Exception: The choice of economic regime that will Marriage does not shed a spouses integrity and
govern their property relation during the marriage. right to privacy
The intimacies between husband and wife do
Marriage is both a CONTRACT and a STATUS not justify any one of them breaking into the
Status: drawers and cabinets of the other for any telltale
- Marriage produces rights and imposes evidence of marital infidelity. Any evidence
obligations that are very personal in nature. obtained therefrom is inadmissible in evidence.
- This means that it is only the parties that can
exercise and are burdened with these rights and
obligations. Article 2-6: Essential & Formal Requisites for
- The obligation to accompany each other or in Marriage
the mystery of creation is a personal right. Essential Requisites
Contract:
31
the age of majority, with good reason thinks of
his/her sex. In this case, the gender classification at
his/her birth is deemed inconclusive since it is only
at maturity is the gender of such person is fixed.
Legal Capacity - It is the right of the person who has the choice to
1 Only parties of opposite sex determine how he wants to be identified. This
- Determination is based on what the child has at determination is respected by the courts.
birth 2 On Age Requirement
- This determination is immutable and no amount - This is legal capacity, ergo, determined by the
of surgical and scientific intervention can change national law of the person pursuant to Article 15
such determination made at birth of the Civil Code.
- If both applicants are Filipinos, they have to go
Rommel Silverio vs. Republic of the Philippines to the Local Civil Registrar and apply there.
Facts: For 18-21, parental consent is need
- Silverio was born male (hard and long)
absence of which will render the
- But when he grew older, he realized that he feels like
marriage voidable.
a woman. He thinks and acts female. For 21-25, parental advise is needed
- He cant really find happiness in a situation if he is
absence of will delay the issuance of the
trapped in a male body.
marriage license by the Local Civil
- He filed an action in court to change his gender and
Registrar for 3 months.
along with it, change is name from Rommel to Melly.
On Foreigners:
Ruling:
- Article 21: If both of the applicants for a
- The Court did not look kindly on Silverio. His petition
marriage license are citizens of a foreign
was rejected.
country, instead of requiring to submit a birth
- The Supreme Court said that ones gender is
certificate or a baptismal certificate, they are
determined by birth by visual examination made by
required to submit a certificate of legal capacity
the birth attendant by looking at the childs genitals.
to contract marriage issued by their own
- The court, however, did not close its doors on
consular office.
possible change of gender by surgical operation.
- This may result to, say, a marriage between an
- The problem of Silverio is that there is no law that
18-year-old Filipina and a 15-year-old German
allows change of gender that allows change of
national.
gender because of surgery.
On Stateless Persons
- Sex re-assignment surgery, done in many countries,
is already a fact of life. - You cannot apply nationality theory because the
person is a citizen of no country. The nationality
The rule laid down in Silverio will only apply when the theory will not apply.
determination of the genitals of the baby is clearly - Article 21: He only has to submit an affidavit
defined. showing such legal capacity. The affidavit shall
show the circumstances by which it can be
Republic vs. Cagandahan inferred that the party is legally capacitated to
Facts: contract marriage.
- What happens when the child has a condition called - But whose law will determine?
CAH or intersex individuals? o PIL: While it impossible for an individual to
- Intersexuality have no citizenship, it is impossible for an
Applies to human beings who cannot be individual to be without domicile.
(Domiciliary Theory)
classified as either male or female because they
o Suppose a person is not a domicile of any
have the biological characteristics of both a man
and a woman. country, and only lives in the high seas,
Ruling: determine the temporary domicile. It will
- Where the person is biologically or naturally intersex, then be logically inferred that the place
the determining factor in his gender classification where he applies for marriage is where his
would be what the individual, at the time he reached temporary domicile is. The laws of the
temporary domicile will then prevail.
32
o Distinction with Lex Loci Celebrationis: - They did not actually intend to be bound by the
Only the effect is the same. It is not accurate effects of marriage.
to say that this principle applies to the legal b Mistake in identity of the party
capacity of stateless persons. - The consent should be with the other party and
3 Absence of any legal impediment not someone else.
- The parties must be free from any legal
impediments Do not confuse consent with motive.
- What must be absent? - Motive is not a requisite for marriage, neither is it a
o By reason of relationship: must be not less legal impediment.
than 4th degree from ascendant or 1st
degree of consanguinity. Republic of the Philippines vs. Liberty Albios
o By reason public policy: Marriages Facts:
mentioned in Article 38. - A case where the wife agreed to marry the husband
Sirs obiter: The marriage between the to be able to acquire his citizenship
adoptive parent and child of the adopted - The husband also agreed because he would be paid
child is nothing which is why they are $2,000.
allowed to marry. - After the marriage, the American husband vanished
On surviving spouse and adoptive into thin air and failed to help the wife.
parent: This does not apply when the - Albios filed for the declaration of nullity on the
marriage is dissolved by judicial ground of lack of consent because they entered into
declaration of nullity or annulment. Only the marriage without any intention to establish a
applies when one of them actually dies. conjugal and family life.
o Previous marriage and the manner it got Ruling:
dissolved. (Article 53 marriages) - There is consent as long as the parties intended to
o When a marriage is declared void under be bound by the contract of marriage, regardless of
their motives.
Article 40, the declaration should also
- The wife contracted marriage in order to facilitate the
include the partition, resolution and
registration on properties. This also acquisition of the citizenship.
includes the recording of the lands to - She also knows too well that in order to do that, she
the respective Registration of Deeds to must be bound by a valid marriage.
where the properties are located. - The premise of entering the marriage was clearly
entering into a valid marriage.
It is only when these three requirements are all present
that a person may be deemed to have legal capacity. Formal Requisites

Authority of Solemnizing Officer


Consent Freely Given The person who solemnized the marriage must
- Do not confuse this with vitiated consent be among those authorized in Article 7 of the
a Given in the presence of the solemnizing officer Family Code to solemnize the marriage.
b with at least 2 witnesses of legal age. The authority of the solemnizing officer to
The consent does not need to be expressed solemnize the marriage is presumed unless it is
since it can be deduced from the acts of the otherwise proven.
parties showing that they take each as husband It is not the duty of the solemnizing officer to
and wife. scrutinize the marriage license.

When is there absence of consent? General Rule: Defect in the authority of the
Examples: solemnizing officer will render the marriage void.
a Marriage in jest

33
Exception: If either one or both of the parties e The marriage must be done in the zone or area
believe in good faith that the person who solemnized of military operation.
their marriage is authorized by law to do so, then the f There must be a widespread military activity
marriage is considered valid. over an area and does not refer to a simulated
exercise.
Article 7: Persons Authorized to Solemnize Marriage 5 Consul-General or Vice Consul or Consul can
This is a manifestation that the State is a party of the solemnize a marriage if both parties are Filipino and
contract as it is represented by the solemnizing the marriage is done abroad. The consul is not only
officer. the solemnizing officer but performs the duties of the
civil registrar by issuing the marriage license.
1 Any incumbent member of the judiciary can - The marriage between a Filipino and a foreigner
solemnize a marriage only when the ceremony is by a consul is not considered valid.
held within its territorial jurisdiction, otherwise it is a 6 Mayors, vice mayor or acting mayor can
mere irregularity. solemnize marriages by virtue of the Sec. 444 of the
- Only incumbent, not resigned nor terminated Local Government Code which took effect on
- If this is not followed, the marriage solemnized January 1, 1992.
outside of the jurisdiction is valid but judge is - The only time they are allowed to solemnize
subject to administrative liabilities. outside their jurisdiction is when there is a
- Cases: request of their venue is writing.
Navarro vs. Domagtoy - If this isnt followed, the marriage is still valid but
Aranes vs. Occiano will subject the mayor to liability.
Berso vs. Daguman
2 A priest, an imam, a rabbi, a minister or pastor GOOD FAITH MARRIAGES (Art. 35, par. 2) if one or
following this certain conditions: both of the parties believe in good faith that the
a Registered with the Civil Registrar General solemnizing officer actually has authority, but in truth,
b Must be authorize by his/her church or religious does not, the marriage is still valid but will subject the
sect. person responsible for to civil, criminal and civil liability.
c Must act within the limits of the written authority - But then again, know the distinction between
granted to him by his church or religious sect. mistake of fact and mistake of law.
d At least one of the contracting parties belongs to - It is only in the mistake of fact that the marriage
the solemnizing officers church or religious sect. is valid. If it is mistake of law, the marriage is
3 A ship captain or airplane chief can solemnize void.
marriage only if one of the parties is at the point of
death and that the parties must be passengers or
crew members of the ship or airplane while it was in
transit.
- This includes stopovers Valid Marriage License
- Given the nature of the situation, where a - This is considered the most important requisite in the
voyage may have the possibility of extreme validity of marriage since it is in the issuance of the
emergencies. (Dili labot nang mu-sink na ha, license that the State can determine whether or not
just the requirement of dying) there are impediments in the marriage.
4 Military commander provided they follow the - The marriage license must be secured from the
requisites: Local Civil Registrar of the place where either party
a He must be a commissioner officer with a rank of resides, which takes 10 days from application before
2nd lieutenant ensign and above of the it is issued.
commanding military unit where the chaplain is - The license will be valid for 120 from the date of
assigned. issuance.
b The assigned chaplain is absent at the time of - Absence of marriage license will render the marriage
marriage is solemnized. void only when it is supported by the certification
c The marriage must in articulo mortis from the local civil registrar that no such marriage
d The contracting parties must be a member of his license was issued to the parties.
unit or a civilian.
34
- Any irregularities in the issuance of the marriage in a far and remote place and the ascertained the
license will not render the marriage void as long as it age and relationship of the parties and the absence
does not affect the legal capacity of both parties. of any legal impediments.
- The requirements are enumerated in Art. 11-16. The reason for this is to encourage couples
- But even if one or both of the contracting parties are to marry and legalize their relationship
suffering from a legal impediment and the local civil instead of cohabiting in an illicit relationship.
registrar knows about it, he CANNOT refuse to issue
the marriage license. 3 Article 33: Marriages among Muslims or
- He can prevent the marriage from happening by Members of Ethnic Cultural Communities
going to court and file for an injunction. It is the court Code of Muslim Personal Laws of the Philippines
that orders the marriage to not proceed. - Signed into law on Feb. 4, 1977
- The application for marriage license will be posted in - This is the governing law on persons and family
the bulletin board and 2 conspicuous places in order relations among Muslims.
to inform the public that two people want to get - Under this law, marriage license is not
married. The publication will last for 10 days. required for the validity of the marriage.
- Only the Local Civil Registrar where at least one of - Under the family code, marriage license is not a
the applicants is a resident can issue the marriage requirement for the validity of the marriage
license provided that both parties must be a Muslim or a
member of the Ethnic Community.
Exceptions to the requirement of marriage license:
1 Article 27-32: Marriage under Articulo Mortis 4 Article 34: Ratification of Marital
Articulo Mortis (Point of Death) Marriage Cohabitation
- This is a marriage done wherein one of the party - When the parties have already been living together
is at the point of death. This kind of marriage can as husband and wife for at least 5 years without any
be solemnized w/out the need of a marriage legal impediments to marry each other, the
license for necessity and practicability. requirement of a marriage license is no longer
- This can be solemnized by a ship captain or needed.
airplane chief or a military commander, all of - This is to not shame the people involved as a
which must be in according to article 7 of the common law marriage is a source of humiliation to
family code. the parties.
Duty of the person who solemnized the marriage under Requisites:
Articulo Mortis: a The party must live together as husband and
- He must execute an affidavit before the LCR stating wife for at least 5 years.
that he solemnized the marriage under articulo b There must be no legal impediments for them to
mortis and the he took all the necessary steps to marry each other.
ascertain the age and relationship of the contracting What to do:
parties and that he is convinced that they have no 1 Both parties must execute a joint affidavit stating
legal impediments to marry each other. the foregoing fact and have it notarized by a
- The original affidavit must submitted by him to the person duly authorized to administer the oath.
LCR where the marriage was performed within a 2 The Solemnizing officer must ascertain first the
period of 30 days qualifications of the contracting parties if there
are any legal impediments.
2 Article 28: Marriage in a Far and Remote
Place Ninal vs. Badayog
- If the parties are residing in a far and remote Facts:
place that it is difficult for them to secure the - The husband shot his wife to death.
required marriage license because their place has - 8 months after, the husband married Badayog
no means of transportation, they will exempted without applying for a marriage license. But made an
from the license requirement. affidavit stating that they have been cohabiting for 5
Duty of the person who solemnized the marriage: years.
- He must execute an affidavit after the celebration of
the marriage stating that he solemnized the marriage
35
- The children of the first marriage assailed the - It is now clear that the SC reverts back to the Ninal
marriage because their hereditary rights have been doctrine.
impaired. - The at least 5 year cohabitation must be
Ruling: characterized with exclusivity and free from legal
- For the ratification of marital cohabitation to apply, impediments.
the 5 year cohabitation period has to be
characterized by exclusivity and must be free from The one in Manzano is just an obiter dictum and does
any legal impediment. not create a precedent.
- It was established by evidence that the husband
married Badayog only after 10 months. This The falsity of an affidavit of marital cohabitation,
admitted that even during the lifetime of the 1 st wife, where the parties have in truth fallen short of the
they have been cohabiting with each other, minimum 5 year requirement, effectively renders the
therefore, not exclusive and free from legal marriage void ab initio for lack of marriage
impediment. license.

This case is seemed to be superseded by the case of Dayot vs. Dayot


Manzano vs. Sanchez. Facts:
Manzano vs. Sanchez Ruling:
Facts: - If the affidavit was falsified, it would mean that the
- An administrative complaint against a judge who marriage solemnized was not valid due to the
solemnized a marriage one the basis of Article 34 absence of a marriage license.
while still knowing that the husband was still married - The affidavit of cohabitation would take the place of
to someone else. the marriage license. Without it, it is equivalent to not
Ruling: having a marriage license.
- The SC had the occasion to enumerate the
requisites to be able to enjoy Article 34. A marriage which preceded the issuance of the marriage
- The SC said that one of the requisites for this apply, is license is void and that the subsequent issuance of
that the absence of legal impediments must be such license cannot render the marriage valid or add an
during the time of solemnization of the marriage. iota of validity to it.
- By clear implication, the SC abandoned the Ninal
doctrine.

Which controls? The issue has been mooted in the


ruling of Office of the Court Administrator vs. Judge
Necessario. Valid Marriage Ceremony
- The family code does not prescribe any particular
Office of the Court Administrator vs. Judge form of a marriage ceremony.
Necessario et.al. - It only imposes that:
Facts: a the parties will appear personally before the
- An administrative complaint against MTC judges in solemnizing officer
Cebu City. Accused of committing all the sins in the b personal declaration that they take each other
book. as husband and wife
- One of the illegal marriages solemnized were at c in the presence of at least two witnesses who
least 200 marriages solemnized under Article 34 are of legal age.
where the parties simply executed an affidavit of
martial cohabitation. What if they fail to sign the marriage certificate?
- It was noted by the OCA and the SC noted that - The personal declaration shall be contained in the
these marriages involved parties with ages 20 and marriage certificate
below when they executed the affidavit. By logical - The certificate is not a formal requisite.
conclusion, this would mean they were only 15 and - The personal declaration is made orally or in writing.
below when they started cohabiting with each other. - The law does not make the marriage certificate a
Ruling: requisite. It is only for evidentiary purposes.

36
- Its okay that they were not able to sign, so long as
there was a personal declaration made in front of the
solemnizing officer that they take each other as
husband and wife.

What makes the marriage void for not having a marriage


Irregularities in the formal
ceremony is when there is no personal declaration.
requisite do not affect the validity of the marriage but
the person responsible for such irregularity can be
Morigo vs. People
held civilly, criminally or administratively liable.
Ruling:
- The SC ruled that when the parties were only made
Instances of Irregularities:
to sign a marriage contract not in the presence of a
a Marriage solemnized in a place other than in a
solemnizing officer that is no marriage at all.
church or chamber of the judge.
b Absence of two witnesses who are of legal age.
Article 8: Venue of Marriage
c Issuance of a license in place where neither of
The venue of marriage stated in this article is directory in
the parties reside.
nature.
d Issuance of a license w/out the required
supporting papers or documents.
General Rule: a marriage solemnized by a judge
e Absence of a marriage contract.
outside of his court room or by a priest outside of the
f Issuance of license despite failure of the party to
church is valid however, the solemnizer can be held
present parental consent or parental advise
liable for it since this will become an irregularity in the
when required.
marriage.
g Issuance of license despite absence of posting
Exception:
notice and publication.
a When one of the party is at the point of death, it
h Failure to undergo marriage counseling.
knows no place.
i Failure to pay the required fee for marriage
b The marriage was contracted in a remote place.
license.
c When both of the parties request the
solemnizing officer in writing to solemnize it
Article 9, 10: Marriage License
elsewhere in sworn statement.
Marriage License
This serves as the authority given by the State
to the parties to enter into a contract of
marriage.
It is the concern of the state to make marriages
secure and stable institution.

Absence in any of the essential Article 11-16: Application for Marriage License
and formal requisite will render the marriage void. REQUIRED DOCUMENTS FOR APPLICATION OF
(Article 35) MARRIAGE LICENSE
a The original copy of birth certificate, in the
absence thereof, the original baptismal
certificate of the parties. This document is exempt
from documentary stamp tax and signature of the
official person is enough to prove its authenticity.
Defect in any of the essential Except in instances where:
requisite will make the marriage voidable or The parents of the party concerned will personally
annullable particularly to the giving of consent. appear before the local civil registrar and attest to
the fact that the said party is already of legal age.
When the local civil registrar shall be convinced by
merely looking at the personal appearance of the
party that they are of legal age.

37
When the party has been previously married. Information needed to be specified to the LCR:
b If either or the parties were previously married, a Full name of the contracting parties
the death certificate of the deceased spouse or the b Place of birth
judicial decree of absolute divorce, annulment of c Age and date of birth
marriage or declaration of nullity of marriage. d Civil status
c In case either party is between the ages of 18-21, e If previously married, how, when and where the
they must present a parents consent, absence of previous marriage was dissolved or annulled.
which will render the marriage voidable. f Present citizenship and citizenship
g Degree of relationship of the contracting parties.
h Full name, residence and citizenship of the
father.
This must be in an affidavit of sworn
i Full name, residence and citizenship of the
statement that the parents gave their consent.
mother.
j. Full name, residence and citizenship of the
guardian or person having charge, in case one
Preference is given to the father of the parties has neither father nor mother, and
otherwise the mother, surviving parent or legal is under 21 years old.
guardian of persons having charge of them shall
give the consent. Article 17-19: DUTIES OF THE LOCAL CIVIL
d If the party is between the ages of 21-25, parental REGISTRAR
advice is required.
a Upon receipt of the application for a marriage
license, the LCR must immediately post a notice to
Absence of which will not affect the inform the public of the impending marriage.
validity of the marriage but will delay the b The notice shall be posted in the bulletin board
issuance of the marriage for 3 months following outside of the LCR for 10 consecutive days showing
complete publication of the application. the name and residence of the couple.
This will request any person having knowledge
of any impediment to the marriage to inform the
local civil registrar about it.
This is in keeping of family tradition
c If the LCR will be informed of any impediment of a
e Certificate of marriage counseling in cases
party applying, he shall note down the particulars
where parental consent or parental advice is
thereof, but should not turn down the issuance of the
required.
marriage license.
Even if the LCR is made aware of the
impediments of the marriage, h is still duty
Failure to attach the counseling bound to issue the license except if he is
certificate will cause the suspension of the restrained by the court at his own instance or of
issuance of marriage license for 3 months. This any interested party.
is only an irregularity to the formal requisite. Only the court can intervene in issuing the
marriage license through a court order directing
the LCR from non-issuance.
If one or both of the parties are below 25 If there is really a legal impediment in the
years old, both of them must attend. marriage, the LCR issuing officer can petition
f If a party to the marriage is a foreigner, he must the court to restraint him from the issuing the
present a certificate of legal capacity to marry issued marriage license or have the other party petition
by his diplomatic or consular representative in the for it.
Philippines. d The LCR will collect payment of fees for the
g Place of issue for the Marriage License, the issuance of the marriage license in the amount of
parties should get a marriage license form the LCR 300. However, it is free of charged for indigent
in the municipality or city where either of the party people.
resides.
38
e It shall be the duty to prepare the documents such 6 Either or both parties have complied with the
as the marriage certificate and affidavit for the legal requirement regarding parental advice in
solemnization of marriage in another place without appropriate cases.
charge to all interested parties. 7 That the parties have entered into a marriage
f The LCR is the also the one to administer oaths to settlement, it any, attaching the copy thereof.
all parties interested and to prepare the documents Duty of the Solemnizing Officer
required. a It his duty to furnish either of the contracting
g The LCR concerned, shall be the one to enter to all parties the original marriage certificate and to
applications for marriage licenses filed with him in a send the duplicate and triplicate copies of it not
registry book strictly in order which shall be recorded later than 15 days to the Local Civil Registrar of
in the name of the applicants, the date of the the place where the marriage was solemnized,
marriage license was issued and such other data as the LCR in turn will issue a receipt to the
may be necessary. solemnizing officer.
- 1 copy to the couple
- 2 copies to the LCR
- 1 copy to keep for the solemnizing officer
Article 20: Life of the Marriage License b It shall also be his duty to keep the 4 th copy of
The marriage license once issued is valid anywhere in the marriage contract, the original marriage
the Philippine for a period of 120 days, if it is not used license and in some cases affidavit of the
within that period is it automatically expired. Marriages contracting parties regarding the solemnization
solemnized using an expired marriage licensed is of the marriage in a place other than his
considered null & void. jurisdiction.

Article 22-25: Marriage Certificate Is a photocopy of the Marriage Contract valid?


Marriage Certificate No, unless it emanated from the office of the
The best evidence to establish or prove marriage. Local Civil Registrar.
It is a certification issued by the solemnizing officer
that he performed or solemnized the marriage The rule is that if two persons dwelling together
between the parties. Absence of which will not presenting themselves as married shall be presumed to
invalidate the marriage since it is not an essential or be indeed married, in the absence of any counter-
a formal requisite. presumption or evidence showing the contrary.
- Semper Praesumitur Pro Patrimonio: Always
What should be declared in the Marriage Contract? presume marriage
1 The full name, sex and age of contracting The law favors morality over and immorality,
parties. marriage and not concubinage, legitimacy and
2 Their citizenship, religion and habitual not bastardy.
residence.
3 The date and precise time of the celebration of A marriage may be proved by evidence of any kind such
the marriage so as to determine at what point as parol evidence or testimony by one of the parties or
will govern the property relation of the parties. the witnesses to the marriage or by the person who
4 Must indicate that the proper marriage license solemnized the same.
has been issued according to law
Except in cases of: Competent evidence proving the fact of marriage
a Articulo Mortis 1 Public and open cohabitation as husband & wife
b Marriage in a far and remote place after the alleged marriage.
c Marriages among Muslims or members of 2 Birth & baptismal certificate of children born by
ethnic cultural communities the alleged spouses.
d Ratification of marital cohabitation 3 Statement of such marriages in subsequent
5 That both or either parties have secured the documents.
parental consent in appropriate cases.

39
status, condition and legal capacity which under Article
15 is governed by the national law.

1st situation: Marriage between foreigners in the


It is the burden of proof upon Philippines
the person who attacked the validity of marriage to - Pursuant to lex loci, the validity of the marriage
present a strong and satisfactory evidence to rebut should be governed by Philippine laws because
the presumption of its validity. The evidence to prove the marriage is solemnized here.
the invalidity of the marriage may even be presented - However, the legal capacity should be determined
for the first time on appeal. by their national law. (Consistent with Article 21)
- Do not be surprised that a 15-year-old German
Article 26: Lex Loci Celebraciones Rule in may be able to contract marriage here in the
Marriage Philippines
nd
1st paragraph: Lex Loci Celebraciones CONFLICT 2 situation: Mixed marriage in the Philippines
OF LAWS RULE - Rule: Lex Loci
This is based on the concept of international - Legal capacity of the foreigner is determined by
comity. the national law
This is rule in marriage wherein it means that if 3rd situation: Foreigners with marriage solemnized
the marriage is celebrated abroad and is abroad
considered valid there, it shall also be - Under Article 26, if it is valid where it was
considered valid in the Philippines. However, if solemnized, it is valid in the Philippines.
the marriage solemnized abroad is in violation of - If marriage by proxy is allowed, that is valid then.
our countrys laws and policies, our court is not - On Same-Sex marriage, there is always a good
bound to give effect to its validity. argument that pursuant to Article 26, it is valid. It
The reason for this is that a State is considered may not be valid, however, in Article 17 (par 3) of
the Family Code.
the conservator of its own moral and good order th
4 situation: Mixed marriage of a Filipino and foreigner
of society, thus, it has the right to declare what
abroad
marriages it will or will not recognize within its
- Rule: lex loci. BUT the Filipino is governed by the
borders.
exceptions in Article 26.
- A hybrid marriage: valid insofar as the foreigner
spouse and void insofar as the Filipino spouse.
Exception to the Lex Loci Celebraciones Rule:
- But this is a legal impossibility because marriage
Except those pointed out under Article 35 (1), (4),
is one indivisible concept.
(5), (6), 36, 37 and 38.
- How are we to treat this marriage? Prevailing
1 If the party who is a Filipino is below 18 years old.
opinion: our policy is in favor of marriage. The
2 If the marriage is bigamous or polygamous.
prevailing view is that our courts should consider
3 If contracted through mistake of identity of the other
the marriage. Otherwise, children will be
party.
considered illegitimate and will be prejudiced.
4 If the party whose previous marriage has been
5th situation: marriages by Filipinos abroad
annulled or declared void, contracts a second
- Rule: Lex loci
marriage but failed to record the judicial decree with
- But both of them are now governed by the
the LCR, to partition the conjugal properties and
exceptions
deliver the presumptive Legitime of their children.
5 Where one of the party is psychologically
Common law marriages considered abroad cannot be
incapacitated.
recognized here in the Philippines since our laws require
6 Marriages considered incestuous.
marriages solemnized abroad. The word solemnize
7 Marriages that are against public policy.
presupposes the performance of a marriage ceremony
which is absent in a common law marriage.
The prevailing theory is that all of these exceptions are
only applicable to Filipinos. This is mainly because of the
2nd paragraph: Effects of divorce to the Filipino
nationality theory. The above exceptions pertain to
spouse
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Cases: - Van Dorn vs. Romillo This capacity to remarry does not come
- Pilapil vs. Judge Somera automatically.
- This is a judicial act for him or her to be
The validity of the divorce decree must be capacitated to marry.
recognized to benefit both the spouses. - An order will be issued to allow him to marry. He
Requisites: will file a petition for declaratory relief.
a Must be a mixed marriage What should the Filipino spouse prove?
b Foreigner spouse is the one who secured the a Prove the existence and authenticity of the divorce
divorce abroad decree obtained abroad (Rule 132, Sec. 24 and 25
c After the divorce, the foreigner spouse must of the Rules of Court)
again be capacitated to remarry according to his o Presenting the official publication of the
national law. divorce decree
o When there is no publication, present the
When in a case of marriage between a Filipino citizen copy of the divorce decree
and a foreigner and it is the foreigner who filed for a o If the document is kept outside of the
divorce and after it was granted he must be capacitated Philippines, their authenticity can be
again to remarry according to his national law. This must established by presenting the authenticated
be proven as a fact by the Filipino spouse before he/she copy of the foreign document (Red Ribbon
is entitled to remarry again in our court. or consularized document)
In this case the divorced Filipino citizen is not o Must be attested by the legal custodian
considered an Ipso Facto capacitated to marry o Shall also contain a certification of the
again. The Filipino citizen must prove as a fact Philippine consular official stationed in the
the divorce as enforced by the foreign judgment country where the foreign decree was
by way of declaratory relief since our courts obtained.
dont take judicial notice on the laws of other b Equally important for the petitioner to demonstrate
countries. its conformity to the laws allowing the divorce decree
- Prove that the divorce decree is valid
If the Filipino spouse has acquired the citizenship of her - Petitioner will have to prove the foreign law
husband then such divorce is considered as valid here c It is also important to prove that the divorce decree
in our country because of our adherence to the capacitates the alien spouse to remarry
nationality principle in so far as the status of the person - Two kinds of divorce: Absolute (that
is concerned. capacitates the party to marry and Relative
The reckoning point is at the time when the (does not, similar to legal separation)
divorce decree was availed of.
Obrecido makes reference to a foreign law that needs to
If both of the parties are Filipino and one of them was be proved, it is not specific to which foreign law. Is it the
naturalized in a foreign country and later on obtained a foreign law to which the divorce decree was obtained?
divorce decree, that divorce decree will be valid. Or is it the foreign law of the alien spouse?
Republic vs. Obrecido: The reckoning point is NOT the - Obrecido says that it should be the foreign law
citizenship at the time of the marriage but at the time the of where the divorce decree was obtained.
divorce decree was obtained.
- In a case wherein the Filipino citizen is the one In Bayot vs. Bayot, the divorce decree was obtained by
who filed for a divorce in another country to his the wife, in Dominican Republic.
foreigner husband/wife, the foreigner spouse - At the time the divorce decree was obtained,
cannot anymore claim that he still an interest to she was American. Under her laws, divorce is
the properties of the Filipino citizen here in the recognized. The divorce decree obtained by the
Philippines or subsequently file an adultery case wife in the Dominican Republic is valid.
against the Filipino since the foreigner spouse - This ruling meant that the foreign law that must
has lost his legal standing against the Filipino for be proved is NOT the foreign law where the
the foreigner is already considered divorced by divorce decree was obtained, but the national
his national law. law of the alien spouse.

41
The alien spouse cannot avail of the remedy in par.2, of entries and ask for the recognition of the divorce
Article 26 if he/she wants to get married here in the decree in the same petition
Philippines. Under what provision of law can he/she - It is still necessary to prove the authenticity and
invoke? existence of the divorce decree and the national law
of the alien spouse who obtained the divorce decree
Gilbert Corpuz vs. Sto. Tomas
Facts: If the foreign judgement sought to be recognized is not
- Marriage between two Filipinos but subsequently the a divorce decree, it should be distinguished.
husband became a Canadian citizen
- He returned to the Philippines. But was surprised to In Fujiki vs. Marinay, the proper remedy is to file a
see his wife having illicit relationship petition for correction. Basically the same procedure.
- He asked for a divorce in Canada and was granted.
- He found another Filipina and wanted to be married. The difference lies in the matter that needs to be proved:
- He went to the LCR of Pasig to include the divorce - In foreign judgement: simply the existence and
decree to be annotated in the marriage certificate. authenticity of the foreign judgement. The foreign
But he was informed that he was not allowed law is not required to be determined.
because for any foreign judgement, to be valid in the o In Fujiki, what was the object was the judgement
Philippines, it has to be approved by the court in the that declared the marriage void by reason of
Philippines. bigamy. This is not against public policy.
- He filed for a petition for declaratory relief. - In a divorce decree: The existence and authenticity
- Issue: Can he have the same remedy? of the divorce decree AND the national law of the
Ruling: alien spouse
- Since the 2nd paragraph is intended for the benefit of
the Filipino spouse, he cannot invoke the same
benefit. VOID AND VOIDABLE MARRIAGES
- It does not mean that he has no remedy. It can be
Two Kinds of Defective Marriages
recognized under Rule 39, Sec. 48 of the Rules of
Court: the enforcement of foreign judgement.
VOID VOIDABLE
- Two options available:
Defective from the very Not defective from the
a Alien spouse may file a petition for recognition of
beginning beginning
the divorce decree Cannot be ratified Can be ratified
- Problem: if it is only for recognition, it is not Can be attacked Can only be attacked
enough to effect the corresponding change collaterally directly
of the records of marriage between the Direct action may be
spouses. It is simply the recognition and filed by an interested 3rd
does involve the change of interests in the Direct action can only be
party based on the
marriage filed by the spouses
ground
- Even if the court recognizes the divorce
decree, the record of the spouses will still be While voidable marriage
The nullity of marriage can
the same can only be questioned
be raised even after the
b To file a petition for correction or change of during the partys
death of the parties
entries in the Local Civil Registrar particularly lifetime.
change of marriage entries under Rule 108 of The action to nullify the The annulment of a
the Rules of Court marriage has no voidable marriage
- As he files the petition for recognition, the prescriptive period prescribes
alien spouse still needs to file this petition for General rule: void Voidable marriages can
correction marriages can only be be questioned by other
- It is the order for recognition that will be assailed by the parties of persons not a party to
used to effect the change of entries the marriage. the marriage.
- The SC observed that this very burdensome to the Cannot be ratified Can be ratified
spouses. Consistent with the policy of speedy trial, 35, 36, 37, 38, 40, 53 45
the alien spouse could file the petition for correction

42
case-to-case basis, as to whether a particular
Article 35: Void Ab Initio due to absence of essential situation falls under the psychological incapacity.
or formal requisites The Reason:
1 Those contracted by any party below eighteen years The presence of psychological incapacity
of age even with the consent of parents or guardians depends upon the facts of the case and it can be
2 Those solemnized by any person not legally clearly deduced that the absence of definition
authorized to perform marriages unless such was deliberately done because the situations
marriages were contracted with either or both parties contemplated by the law vary from one case to
believing in good faith that the solemnizing officer another.
had the legal authority to do
- One of the situations where good faith is taken Psychological Incapacity
into considerations. The basic determination of the existence of
3 Those solemnized without a license, except those psychological incapacity is the failure to comply
covered by the preceding Chapter with the marital obligation.
4 Those bigamous or polygamous marriages not Utter insensitivity and inability to give meaning
falling under article 41 which states presumptive and significance of marriage
death This is not insanity or mental illness
- Another instance where good faith is recognized
It refers to the inability of a party to the marriage
5 Those contracted through mistake of one contracting
to comply with the essential marital obligations
party as to the identity of the other
because of psychological reason. It is not a
6 Those subsequent marriages that void under Article
physical defect because a person who is
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psychological incapacitated is one who cannot
perform the essential marital obligations as
Collateral Attack of a Void Marriage
he/she refuses to do even if physically
The nullity of the marriage is not the principal or
capacitated to do so.
main issue of the case but is necessary to the
It can also refer to lack of appreciation of ones
resolution of the main case.
marital obligation and has nothing to do with
consent.
Good faith of the parties in entering the marriage is
immaterial and it does not validate an otherwise void
The general guide as to the determination as to whether
marriage.
there is psychological incapacity or not is the fact the
Psychological Incapacity refers to the failure to
Divorce vs. Void Marriages
comply with the essential marital obligation.
Divorce
- Quarrels and financial difficulties not constitute
- There is a valid marriage but the ground
psychological incapacity. Sexual infidelity on the
occurred subsequent to the celebration of
other hand, is not considered a psychological
the marriage.
incapacity if it is not proven that it already existed
Void in Ab Initio
before the marriage
- From the very beginning there was no
marriage.
Examples of Personality Disorder
- The ground for declaration of its nullity
a Dependent Personality
already existing at the time the marriage
- Husband in Te vs. Te
was celebrated but only manifested after its
b Anti-Social Disorders
solemnization.
- Wife in Te vs. Te
c Narcissistic Personality
- Kalaw vs. Fernandez
Article 36: Void because of Psychological Incapacity
d Senseless and protracted refusal to have sex
This was introduced by E.O. No. 227 on July 17,
with the other spouse
1987 as an amendment to the Family Code.
- Chi Ming Tsoi vs. ___
No clear definition of the psychological incapacity
e Pathological Liar
was given since the intention of the legislation was - Antonio vs. Reyes
to leave the determination of it to the courts on a f Immaturity
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- Halili vs. Halili - During the trial for declaration of nullity of marriage on
g Indifferent to the Needs of the wife the ground of psychological incapacity, expert
- Reyes vs. Reyes. testimonies of a psychologist or psychiatrist is not
a requirement for a declaration of psychological
ESSENTIAL CHARACTERISTICS OF incapacity and that it is not a condition sine qua non
PSYCHOLOGICAL INCAPACITY: for such declaration. The court may base its decision
1 Juridical antecedent on the totality of the evidence other than the findings of
- It must already be existing at the of the such expert witness. However, expert testimonies may
celebration of the marriage help in the resolution of the case.
2 Gravity
- It must be a very serious defect that it Testimony of the Psychologist did NOT constitute as
incapacitates the person concerned from sufficient evidence for Psychological Incapacity:
performing marital obligations When the diagnosis was only based on
3 Incurability interviews with petitioning spouse and that the
- It is not curable psychologist did not actually hear, see and
- Also refers to party not being able to afford evaluate the respondent who was alleged to be
the cure psychologically incapacitated. The testimony of
the psychologist constituted as hearsay.
It is clear from the foregoing elements that the intention Furthermore, the psychologist failed to explain
of the law has been to confine the meaning of how such personality disorder made the
psychological incapacity to the most serious cases of respondent psychologically incapacitated and to
personality disorders clearly demonstrative of an utter prove the same is so grave and permanent.
insensitivity or inability to give meaning and significance
to the marriage. Testimony of the Psychologist CONSTITUTE as
- The decisions of the matrimonial tribunal of sufficient evidence for Psychological Incapacity:
the Catholic Church involving psychological The Supreme Court ruled that lack of personal
incapacity as a group to annul the marriage examination and interview of the respondent or
is greatly helpful and persuasive to our Civil any person diagnosed with personality disorder,
Courts. Although our courts are not bound does not per se invalidate the testimony of the
by the decision of the matrimonial tribunal, doctors. Neither do their findings automatically
the said decision can be used by our Civil constitute hearsay that would result in their
Court as a guide in the determination of the exclusion in evidence. If the psychiatrist or
existence psychological incapacity. psychologists assessment were not based solely
on the narration or personal interview of the
Guilty Party can petition for nullity of marriage petitioner but also on other informants such as
- The action to declare the marriage void on the respondents own son, siblings and in-laws and
ground of psychological incapacity can be filed sister-in-law who all testified on their own
even by the incapacitated party. The law does not observations of respondents behavior and
prohibit the guilty party from bringing the action in interactions with them.
court as a void marriage is not ratifiable and the (Reyes vs. Reyes G.R. No. 185286)
Pari Delicto Rule will not apply here. - The testimony of the psychiatrist is found to
be general, not in depth, does not establish
link between actions of party and his
supposed psychological incapacity
The Party who is declared psychologically
incapacitated may still contract another marriage Moral Damages
- The psychological incapacity is relative to the - cannot be recovered from the guilty party in an
spouse concerned. One may be psychologically action for declaration of nullity of marriage on the
incapacitated with one while not with another. ground of psychological incapacity.
Thus, he/she can be remarry. - This is because a psychological incapacitated
person is not aware of his incapacity and therefore
Expert Testimonies cannot be held answerable for moral damage.
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MOLINA DOCTRINE AS AMENDED BY A.M. NO. 20-
11-10-SC
REQUISITES FOR PSYCHOLOGICAL INCAPACITY
a The burden of proof to show the nullity of marriage AS A GROUND FOR ANNULLMENT
belongs to the plaintiff. a A true inability to commit oneself to the essentials of
b The parties may medically or clinically identify the marriage.
root cause of the psychological incapacity alleged in b This inability to commit oneself must refer to the
the complaint by an expert; however this is not essential obligations of marriage:
anymore required but regarded as an option which Conjugal act
may be helpful in deciding the case. Community of life and love
c The incapacity must be proven to exist at the time of Rendering of mutual help
the celebration of the marriage, although it only The procreation and education of offspring
becomes apparent after the celebration of the c The inability must be tantamount to a psychological
marriage. abnormality.
d The incapacity must be shown to be medically or
clinically permanent or incurable, however this is not It is not enough to prove that the spouse failed to meet
regarded as an absolute fact against everyone in the his responsibility and duty as a married person; it is
same gender. essential that he must be shown to be incapable of
e The illness must also be grave enough to prevent doing so due to some psychological illness.
the party from assuming the essential marital
obligations. Dedel vs. Court of Appeals
f The essential marital obligations must be those - In this case, respondents sexual infidelity can hardly
mentioned in article 68-71 of the Family Code, as qualify as being mentally or psychically ill to such an
well as Article 220, 221 and 225. extent that she could not have known the obligations
g The interpretations given by the National Appellate she was assuming, or knowing them, could not have
Matrimonial Tribunal of the Catholic Church in the given a valid assumption thereof. It appears that
Philippines, while not controlling or decisive, should respondents promiscuity did not exist prior to or at
be given great respect by our courts. the inception of the marriage. What is, in fact,
disclosed by the records is a blissful marital union at
CANON 1095: CASES F PSYCHOLOGICAL its celebration, later affirmed in church rites, and
DISORDERS which produced four children.
a Hypersexuality-nymphomania - Respondents sexual infidelity or perversion and
b Hypersexuality-styriasis abandonment do not by themselves constitute
c Homosexuality psychological incapacity within the contemplation of
d Lesbianism the Family Code. Neither could her emotional
e Schizophrenia immaturity and irresponsibility be equated with
f Affective immaturity psychological incapacity. It must be shown that
g Anti-social personality disorder these acts are manifestations of a disordered
h Dependent personality disorder personality which make respondent completely
i Vaginismus or psychic impotence unable to discharge the essential obligations of the
j Sexual disorder marital state, not merely due to her youth,
k Psychoneurosis immaturity16 or sexual promiscuity.
l Lack of interpersonal integration
m Immature personality
n Obsessive-compulsive Personality
o Frigidity Article 37: Void because incestuous
p Alcoholism and gambling Marriages between the following are incestuous and void
q Liar, cheat and swindler from the beginning whether the relationship between the
r Sexual neurosis parties is legitimate or illegitimate:
s Hysterical personality 1 Between ascendants and descendants of any
t Psychic immaturity degree.
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- Ascendants and descendants no matter how 3 Between adopted and the relatives of his adopter.
far and how long 4 Between the adopted and the former spouse of his
2 Collateral blood relatives: brothers and sisters adopter or between the adopter and the former
- Between brothers and sisters, whether of full spouse of his adopted.
or half-blood. 5 Between step-brother and step-sister.

The reason why incestuous marriages are


prohibited by law: Article 39: Prescriptive Period
1 It would tend to create confusion of rights and duties Declaration for Absolute Nullity of a Marriage
incident to family relations. - Has no prescription period as amended by E.O
2 It is abhorrent to the nature, not only of civilized No. 227 dated July 17, 1987 and further amended by
men, but of barbarous and semi-civilized people. R.A. No. 8533 dated on Feb. 23, 1998.
3 Such intermarriages often result in deficient and - There is no prescriptive period for an action to
degenerate offspring. declare the marriage void since a null and void
marriage produces no legal effect, it being non-
Article 38: Void because against public policy existent.
The enumeration of void marriages in this article
are exclusive and good faith is immaterial. Article 40: Void Subsequent Marriages
a Between collateral blood relatives, whether When a marriage is void, a party to that marriage can
legitimate or illegitimate, up to 4th degree contract a subsequent marriage only after he/she has
b Between step-parents and step-children the previous marriage judicially declared null and void.
c Between parents-in-law and children-in-law
d Between the adopting parent & the adopted child A subsequent marriage contracted without having the
- Prohibition is only the adoptive parent and the first marriage declared judicially null and void is
adopted child considered void an initio.
- Everyone else is a 3rd party relationship. Ex: - The reason why it is important that the nullity of the
Adopting parent and the child of the adoptive marriage should be ascertained and declared by the
child court of competent jurisdiction is for the sake of good
- The effect of adoption is only personal to the order of society and for the peace of mind of all
parent and adopted child persons concerned.
e Between the surviving spouse of the adopted child - THIS DOES NOT CONTEMPLATE OF A
and the adopter SITUATION WHERE THE MARRIGE IS VOID.
- If the ground of the dissolution of the marriage is However, the Supreme Court has always ruled that
not death, the former spouse can validly marry the subsequent marriage is bigamous even if the 1 st
the adopted child marriage is void.
f Between the adopted children of the same adopter
g Between parties where on, with the intention to When the first marriage is undoubtedly void and a party
marry the other, killed the other persons spouse or to that marriage contracted a 2nd marriage w/out
his or her own spouse. obtaining first a judicial declaration of nullity of marriage,
No prior criminal conviction by the court is would the said party be guilty of bigamy? YES
required by the law. Mere preponderance of
evidence is required to prove the killing. Non-compliance of Article 40:
1st effect: The party incurs criminal liability
These marriages are considered against public policy - The SC consistently ruled that failure to
because they do not serve the fundamental objective of comply with Article 40 renders the
the state which is to nurture a stable family unit that can subsequent marriage as bigamous
effectively be the foundation of society. One should not put the law in his hands and decide for
himself the nullity of his marriage. He should let the
Valid Marriages: court declare the nullity of such before he can contract
1 Between adopted and the parents of his adopter. another marriage.
2 Between adopted and illegitimate children his
adopter.
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- The nullity of a previous marriage can only or solely - But if the beneficiary is the one acting in bad faith,
be established by a final judgment of the court the designation may be revoked eve if the
declaring such marriage void. designation is irrevocable
- Void and voidable marriages: WILL ONLY BE
DECLARED SUCH WHEN THE COURT SAYS SO 4th effect: INHERITANCE
- The party cannot enter into another valid marriage - The guilty spouse is disqualified from inheriting
- The reason why Article 40 was placed to begin with whether intestate or testamentary succession.
was to remove doubts as to the status of the second
marriage 5th effect: Children
- The children are considered LEGITIMATE
What happens if the 2nd marriage is the one void? Not
contemplated in Article 40.
Recent jurisprudence show that it doesnt matter if the Article 41-44: Declaration of Presumptive Death
2nd marriage is void because Art. 349 already punishes
the act of contracting another marriage during a Spouse is Presumed Dead
subsisting marriage. This is the only instance where there is a
valid bigamous marriage
Case: Tenebro If a spouse is absent for 4 consecutive years and the
The fact that the second marriage is void: present spouse has a reasonable and well-founded
- It is not an argument to the absence of bigamy belief that the absent spouse is already dead, he/she
- Even if it retroacts to the time of solemnization, may contract a second marriage provided that he/she
there are effects: first obtain a judicial declaration of presumptive death of
a The children are considered legitimate the absent spouse.
b Criminal liability for bigamy
Well-founded Belief
Procedure: A.M. 02-11-10-SC - Supreme Court states that the meaning of the
term well-founded belief is the exercise of that
Before the criminal case for bigamy was initiated, the degree of due care diligence required in
first was declared void already. What happens? searching for a missing spouse.
- The critical point to consider is the time of
solemnization of the 1st marriage and not the bigamy REQUIREMENTS FOR DECLARATION OF
complaint. PRESUMPTIVE DEATH
Case: People vs. Odtohan 1 The absentee spouse must have been absent for 4
or 2 years under the circumstance prescribed by law.
Does this apply to those marriages that solemnized 2 The present spouse must not know the whereabouts
before August 3, 1980? of the absent spouse.
- The Supreme Court has said in 1995 (Atienza vs. 3 There must be a well-founded belief that the absent
Brillantes) that Article 40 will have retroactive spouse is already dead.
application. 4 There must be an institution of a summary action for
the declaration of presumptive death of the absent
Case: Jarillo vs. People spouse.
5 There must be final judgment declaring the absent
For purposes of determining bigamy, the requirement of spouse presumptively dead.
liquidation and partition and etc. is not required.
The 4-year period can be shorted to 2 years if the
2nd effect: Donations presumptive death is under the circumstances of great
- Donations will be valid danger (Article 391 of the Civil Code)
- But if the donee acted in bad faith, the donation will If the absent spouse was on a vessel and the
be revoked by operation of law and forfeited same was lost during sea voyage and he has
pursuant to Art. 43 (2) not been heard of for two years since the loss.
3rd effect: Insurance
- Any insurance policy shall remain valid

47
The absent spouse was on an airplane which
was missing and such spouse was not heard of Affidavit of Reappearance:
for two years since the loss of the airplane. a. This shall be recorded in the office of the Local Civil
The absent spouse who was in the armed forces Registrar of the place where the present and the
has taken part in the war and has been missing subsequent spouse resides.
for two years. b. The recording of this document is the operative act
When the absent spouse has been in danger of that terminates the subsequent marriage without
death under other circumstances. prejudice to the outcome of any judicial proceeding
questioning the reappearance.
The judicial declaration of presumptive death under
Article 41 of the Family Code is mandatorily required by Who can execute the Affidavit?
law only for the purpose of capacitating the present a Reappearing spouse
spouse to remarry. b Or any interested party such as the parents of
spouses, their children, the remarried spouse or
The extraordinary absence is only for the purpose of even the subsequent spouse of the remarried
remarriage of the remaining spouse however, for the spouse.
division and liquidation of the estate and money of the
previous marriage, this will only happen after 4 years of Bigamous but Valid Marriage:
consecutive absence of the absentee spouse. - The fact that the absent spouse is still alive renders the
subsequent marriage as a bigamous but valid marriage.
General Rule: Judicial declaration of presumptive - This means that the second marriage is bigamous yet it
death is required as such is a presumption that arises is still valid by virtue of the judicial declaration of
from law. presumptive death.
Exception: No judicial declaration of presumption of
death is needed in cases of Article 390 and 391 of the
Civil Code before the effectivity of the Family Code, EFFECTS OF TERMINATION OF THE SUBSEQUENT
since these are presumption that arises from law MARRIAGE
Article 390: Article 43:
- The person has been absent for 7 years, it 1 The children of the subsequent marriage conceived
being unknown whether or not the absentee are considered legitimate. However, children born
still lives. after the second marriage is dissolved are considered
- The absentee shall be presumed dead for all illegitimate.
purposes except for succession, in which 2 The property relations of the parties; be it absolute or
cases, the absentee shall be presumed conjugal partnership, shall be dissolved and
dead after the lapse of 10 years. liquidated.
Article 391: The party who contracted the marriage in bad
- An absentee who is 75 years old and above faith shall forfeit his/her share in the net profit
is presumed dead if he has been absent for community property in favor of their common
5 years, still unknown whether or not the children, or if there none, the children of the guilty
absentee is still alive. spouse by a previous marriage or in default
thereof, by the innocent spouse.
The decision of the court declaring the spouse 3 A donation by reason of marriage made by the
presumptively dead under article 41 is unappealable and innocent spouse in favor of the guilty spouse is
is immediately executor since it falls under the Summary revoked by operation of law.
Judicial Proceedings in the Family Law. 4 The designation of the guilty spouse as the
beneficiary of the insurance policy of the innocent
ABSENT SPOUSE TURNS OUT TO BE ALIVE spouse may be revoked by the latter even if there is
If the absent spouse turns out to be alive, then the a designation that it is irrevocable.
subsequent marriage contracted by the present spouse 5 The party who contracted the subsequent marriage in
will be automatically terminated but only upon the bad faith shall be disqualified to inherit from the
execution of the affidavit of reappearance by the innocent spouse.
reappearing spouse or any of the interested party.
48
Article 44: If both parties are guilty of bad faith, the no longer claim concealment of pregnancy
marriage shall be void ab initio and all donations are when it is very obvious that the woman is
revoked by law. Since the marriage is void, the already pregnant.
separation of property will be governed by co-ownership - The reason why this is a ground for
under Article 147 or 148 of the Family Code. annulment is because, any child born after
- The subsequent marriage entered into after the the celebration of marriage is considered a
judicial declaration of presumptive death can legitimate child of the husband, and it would
only be terminated when the first spouse files an be unfair for the man to take care of the
affidavit of reappearance. child which is not his.
C Concealment of sexually transmissible disease,
regardless of nature, existing at the time of the
marriage.
Article 45-46: Grounds for Annulment of Marriage D Concealment of drug addiction, habitual
The grounds for the annulment of a voidable marriage alcoholism or homosexuality or lesbianism
enumerated in article 45 of the Family Code must existing at the time of marriage.
already be existing at the time of celebration of the - Only when it already existed at the time of
marriage. If the grounds occurred only after the the marriage and was concealed by said
celebration of the marriage it cannot be used as a party from the other
ground to annul the marriage.
4 The consent of either party was obtained through
Can be Ratified by Cohabitation force, intimidation or undue influence, unless when
(Cohabitation means sexual intercourse) such has disappeared or ceased to exist, the party
1 Absence of parental consent for a party who is over thereafter freely cohabited with the other as husband
18 but below 21 years of age. Unless, after reaching and wife.
the age of 21, such party freely cohabitated with the - This is appreciated only when the one of the
other and both lived together as husband and wife. contracting parties is compelled by a
2 Either party was of unsound mind, unless such party reasonable and well-founded fear of an
after coming to reason freely cohabited with other as imminent and grave evil upon his person
husband and wife. and property or upon the person or property
3 The consent of either party was obtained by fraud, of his/her spouse, descendants or
unless such party afterwards, with full knowledge of ascendants, to give his consent.
the facts constituting the fraud, freely cohabited with - To determine the degree of the intimidation,
other as husband and wife. the age, sex and condition of the person
- Vitiated consent must be proven by shall be borne in mind.
preponderance of evidence which may
include the actuation of the parties
previous to the marriage. CANNOT be ratified by Cohabitation
What constitutes fraud? Article 46: 5 Either party was physically incapable of
A Non-disclosure of a previous conviction by final consummating the marriage with the other, or such
judgment of the other party of a crime involving incapacity continues and appears to be incurable.
moral turpitude. - This refers to impotency and not sterility.
- It is not necessary for the spouse to verify - Potency is always presumed, thus,
first before the marriage whether or not the whoever claims that his/her spouse is
other spouse has a previous conviction impotent has the burden of proving it.
since the burden of proof is on the convicted However, the presumption of potency is
party to divulge is criminal records rebutted if the wife remains a virgin after
B Concealment by the wife of the fact that the time three years from the time of their
of the marriage, she was pregnant by a man cohabitation, which is called the Doctrine
other than his husband. of Triennial Cohabitation.
- This could only be appreciated as a fraud 6 Either party was inflicted with a sexually
when the concealment of the pregnancy is transmissible disease found to be serious and
still very possible. Thus, the husband could appears to be incurable.

49
- This is a ground to annul of marriage if it The defendant shall be served with summons and a
is both serious and incurable. It can be a copy of the complaint whereby he is given 15 days
ground if it already existed at the time of to file his answer from receipt thereof.
the marriage and it was concealed by the
guilty spouse. If no answer is filed by the defendant within 15 days:
The grounds for annulment is exclusive, thus, only those The court cannot declare the defendant in default
specified in Articles 45-46 of the Family Code shall be The court will order the prosecuting attorney or fiscal
considered. assigned to it to enter his appearance for the State
- To take steps to prevent collusion between the
Article 47: Prescriptive Period for Annulment of parties
Marriage - To insure that evidence is not fabricated or
If the ground is absence of parental consent suppressed
- The prescriptive period is 5 years from the time - To defend a valid marriage
the party who did not secure the parental - To expose an invalid one
consent reaches 21 years old. After conducting an investigation, the fiscal is
- The parents of the party who did not acquire a mandated by law to make a report to the court on
parental consent can also annul the marriage at the result of his investigation. If there is no collusion
any time before their son/daughter reaches 21 the fiscal will submit a report of no collusion to the
years old. In this order: father, mother, legal court.
guardian
If the ground is insanity The court cannot render judgment on the basis of
- No prescriptive period but will be ratified by stipulation of facts or confession of judgment. An
cohabitation if after the insane becomes sane Annulment case cannot be terminated compromise
still continued to cohabit with the other spouse. agreement and no valid compromise is legally possible
- The sane spouse or the relatives or guardian of on the issue of the validity of marriage
the insane spouse may annul the marriage at - A full blown hearing is required in case where
any time before the death of either spouse. the plaintiff is required to prove his case in court.
- The insane spouse may annul the marriage only The policy of the State is to be cautious and
during his lucid interval. strict in granting annulment of marriage, thus,
If the ground is fraud the law strictly prohibits the annulment of
- The action prescribed after 5 years from the marriage w/out trial.
discovery of the fraud.
If the ground is vitiated consent through force, The State shall be represented by the OSG or by the
intimidation or undue influence Fiscal in all cases of nullity and annulment of
- The prescriptive period is 5 years from the time the marriage:
force, intimation or undue influence ceased to exist. Although Article 48 does not specifically state the
- The party may only be instituted by the party whose OSG, such office is nevertheless can intervene in
consent was vitiated. the proceeding considering that issue of validity of
If the ground is physical incapability to consummate the marriage is vested with public interest.
the marriage or sexually transmissible disease
- This is physical incapability to do the sexual act. General Rule: The Fiscal must actively intervene in the
- The action for annulment can be filed by the case and submit a report to the court that there was no
injured party within 5 years from the time of the collusion between the parties.
celebration of the marriage. Exception: If the annulment or declaration of nullity of
marriage was strongly opposed & heatedly contested by
Article 48-49: Procedures in Annulment & Nullity of the defendant by hiring a lawyer who filed several
Marriage pleadings and actively participated in the trial of the
STEP 1: case.
Filing in the Family Court the complaint for Annulment or The non-intervention of the fiscal to assure lack of
Declaration of Marriage collusion between the parties is not fatal to the
validity of the proceedings in court especially when it
was not shown that evidence was suppressed or
50
fabricated by any of the parties. In this case, the This upon application under oath of any parties may
strict application of Article 48 and 60 of the Family issue provisional orders and protection orders with
Code is unwarranted. or w/out a bond, for such period and under such
terms and conditions as the court may deem
necessary.
Compromise Agreement of Property Separation: Includes:
The partial voluntary separation of property agreed 1 Spousal support
upon by the parties through a compromise 2 Child support
agreement approved by the court prior to the 3 Child custody
declaration of nullity of marriage is valid. 4 Visitation rights
5 Hold departure order
6 Order of protection

STEP 2: Article 50-54: Decree of Annulment and Nullity of


During the Pendency of the Action of Annulment or Marriage
Declaration of Nullity of Marriage
The support of the spouses and the custody & Effects of Annulment and Nullity of Marriage
support of the common children: Shall be according to Article 43 of the Family Code
General Rule: The support of the spouses and the 1 Children under voidable marriage will still be considered
custody and support of the common children will be legitimate however for children born under a void
primarily governed by whatever agreement the parties marriage, they will become illegitimate children
have made. Except:
Children conceived and born before the nullity of
In the absence of such agreement: marriage on the ground of psychological incapacity
The support of the spouse and common children under 36 became final are considered legitimate
- Shall be taken from the conjugal or absolute Children conceived and born of subsequent void
community until the marriage is dissolved. marriage under Article 53 are also considered
The custody of the common children legitimate.
- This shall be resolved in accordance with Article 2 Properties may be separated to whatever agreement
213 of the Family Code which states that in they may have agreed to.
case of separation of the parents, parental 3 Donations to one another will remain valid but if the done
authority shall be exercised by the parent is the guilty spouse, then the donation will be revoked by
designated by the court. The court shall take operation of law.
into account all relevant considerations, 4 Insurance beneficiaries designated to the guilt spouse
especially the choice of the child over 7 may be revoked even if it is irrevocable.
years old, unless the parent chosen is unfit. 5 The guilty spouse is barred from inheritance to the
No child under 7 years old shall be separated innocent spouse either by testate or intestate
from the mother unless the court finds succession.
compelling reasons to order otherwise.
- Should the court award the custody of the child Dissolution of the conjugal partnership
to one parent during the pendency of the case, a The properties will be liquidated and distributive
the other spouse should have visitation rights according to the comprise agreement of the spouses
unless the court, for some compelling reason, or to their pre-nuptial agreement. However, absence
deprives him or her of such rights. However, of which, the absolute community of property regime
visitation can be reinstated if it showed that the will govern.
deprivation is too harsh or is no longer present. b If the union is without marriage
- The property regime shall be governed by the
STEP 3: rule of co-ownership provided for in Articles147
Upon receipt of verified petition for declaration of & 148, and not the conjugal partnership of gains
absolute nullity of Marriage or Annulment of Marriage or or absolute community property.
Legal Separation c All creditors of both parties must be notified and the
The Court may issue Provisional Orders: conjugal dwelling shall be adjudicated in favor of the
51
spouse with whom majority of the common children to engage in prostitution or connivance in such
choose to remain. corruption or inducement.
4 Final judgment sentencing the respondent to
Presumptive Legitime imprisonment of more than 6 years, even if
- This is the part of the testators property which pardoned.
he cannot dispose of because the law has 5 Drug addiction or habitual alcoholism of the
reserved it for certain heirs called compulsory respondent.
heirs. 6 Lesbianism or homosexuality of the respondent.
The presumptive Legitime of the children shall be 7 Contracting of the respondent of a subsequent
delivered to them in cash, property or sound bigamous marriage, whether in the Philippines or
security and it must be provided in the decree abroad.
- This is only required only in the dissolution of 8 Sexual infidelity or perversion
marriage in Article 40. It is not required in other - Sexual perversion is determined on a case-to-
forms of void marriages because said marriages case basis
are to be governed by co-ownership. 9 Attempt by the respondent against the life of the
The partition and distribution of the properties of the petitioner
spouses and the delivery of the presumptive legitimes to - This must not be justified by self-defense or that
be children shall be recorded in the Office of the LCR the spouse attacked was caught in flagrante
and in the Registry of Deeds in order to bind the 3 rd delicto having carnal knowledge with another
person. man or woman.
- Non-compliance of the said requirement will - Criminal conviction is not required as the
render the subsequent marriage of the parties attempt on the life of another spouse may be
null and void proven by preponderance of evidence.
10 Abandonment of petitioner by respondent without
justifiable cause for more than 1 year.

LEGAL SEPARATION Criminal conviction of adultery or concubinage


Legal Separation a.k.a. Relative Divorce - is not required in the action for legal separation.
- This does not dissolve the marriage as it is The court may grant legal separation by mere
nothing more than a separation in bed-and- preponderance of evidence.
board (a mensa et thoro) of the spouses. - Other acts of sexual infidelity short of adultery
- In the eyes of the law, the husband and wife are and concubinage are enough as long as the
still married to each other but they are already said acts constitute a clear betrayal of the trust
allowed to live separately. of one spouse. Thus, even a husband single act
of sexual intercourse with another woman is
Article 55: Grounds for Legal Separation already ground for legal separation.
Grounds for Legal Separation:
These are exclusive grounds and therefore no other Lesbianism, homosexuality, drug addiction and
grounds for legal separation can be invoked except habitual alcoholism
those stated in Article 55 - Can only be a ground for legal separation if they
These grounds need not to exist prior to the occur during the marriage.
- If said defects already existed before the
marriage as they even usually occur after the
marriage and they were concealed from the
marriage
other spouse, they could be grounds for
annulment of marriage.
1 Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
Article 56-57: Defense for Legal Separation
child or a child of the petitioner.
Grounds for Dismissal for Legal Separation:
2 Physical violence or moral pressure to compel the
1 Where the aggrieved party condoned the
petitioner to change religious or political affiliation.
offense or act complained of
3 Attempt of respondent to corrupt or induce the
petitioner, a common child, or child of the petitioner

52
2 Where the aggrieved party has consented to the Article 58-59: Procedures for Legal Separation
commission of the offense or act constituting the Note: Death of one party extinguishes a pending action
grounds for legal separation for legal separation.
3 Where there is connivance between the parties
in the commission of the offense or act STEP 1:
constituting the ground for legal separation Filing in the Family Court the complaint for Annulment or
4 Where both parties have given ground for legal Declaration of Marriage
separation
5 Where there is collusion between the parties to The defendant shall be served with summons and a
obtain the decree of legal separation copy of the complaint whereby he is given 15 days
6 Where the action is barred by prescription to file his answer from receipt thereof.
- An action for legal separation shall be filed
within 5 years from the time of occurrence of If no answer is filed by the defendant within 15 days:
the cause. The court cannot declare the defendant in default
The court will order the prosecuting attorney or fiscal
The court may take judicial notice of prescription. If assigned to it to enter his appearance for the State
prescription is apparent from the allegations in the - To take steps to prevent collusion between the
complaint for legal separation, the court can dismiss it parties
motu proprio. Thus, even if prescription is not - To insure that evidence is not fabricated or
interposed as a defense but it becomes manifest after suppressed
trial, the court may stil dismiss the complaint. - To defend a valid marriage
- To expose an invalid one
Condonation After conducting an investigation, the fiscal is
An act of forgiving and is given after the fact, mandated by law to make a report to the court on
while consent is given after the act that gives the result of his investigation. If there is no collusion
rise to the ground for legal separation. the fiscal will submit a report of no collusion to the
Consent court.
You allowed such ground to happen
Connivance General Rule: The Fiscal must actively intervene in the
This happens when the spouse participated in case and submit a report to the court that there was no
the downfall of the other as by providing actively collusion between the parties.
the opportunity for the wrong doing directly or
indirectly. Exception: If the annulment or declaration of nullity of
Mutual Guilt marriage was strongly opposed & heatedly contested by
This means that both parties are at fault or have the defendant by hiring a lawyer who filed several
given ground for legal separation. pleadings and actively participated in the trial of the
You cannot come to court if you are a guilty case.
The non-intervention of the fiscal to assure lack of
party.
Collusion collusion between the parties is not fatal to the
This refers to an arrangement between the validity of the proceedings in court especially when it
was not shown that evidence was suppressed or
spouses to obtain a decree of legal separation
fabricated by any of the parties. In this case, the
by secret maneuvers or pretensions by making it
strict application of Article 48 and 60 of the Family
appear that a valid ground exist even if there is
Code is unwarranted.
none.
Also included as a ground for dismissal for
STEP 2:
petitions of nullity and annulment
Before the court will commence to the hearing of the
case, it should allow a Six Months Cooling-off Period to
PRESCRIPTION
lapse from the filing of the complaint
- The reckoning point of the 5 year period is the
This is intended to give the parties enough time to
time of the occurrence of the cause
further contemplate their positions and allow the
healing balm of time to aid them in the process.
53
This is a mandatory requirement and its non-
compliance renders the decision infirm. However,
what is only prevented is the hearing of the case on
its merits. It does not involve the hearing of other
incidents such as custody of minor children, support
pendete lite and alimony.
The court may also entertain prayers of injunctions
within the period or even motion to dismiss.
Suppor
Why is this only peculiar to legal separation and not t of the parties and their common children and
to voidable and void marriage? custody
- As distinguished from void and voidable - The support for the parties and their common
marriage, the grounds for legal separation have children will be taken from the absolute
nothing to do with the status of the marriage community or conjugal partnership.
- It only governs the relationship of the parties - If the court awards the custody of their minor
- In void and voidable marriages, it involves the children to one spouse, the other spouse should
status of the marriage itself. We cannot be given visitorial rights.
compromise the status of a marriage.
Article 63-64: Effects of Legal Separation
No court may render judgement on the basis of EFFECTS OF LEGAL SEPARATION:
confession or a stipulation of facts. 1 The spouses shall be entitled to live separately from
- Also for nullity and annulment cases each other, but the marriage bond shall not be
- The court is required to conduct trial and present severed.
their respective evidences 2 The absolute community or conjugal partnership
shall be dissolved and liquidated but the offending
STEP 3: spouse shall have no right to any share of the net
Spouses are entitled to live separately from each other profits, which shall be forfeited in accordance with
After the filing of the petition for legal separation the article 43(2).
parties are already entitled to live separately from 3 The custody of the minor children shall be awarded
each other. to the innocent spouse, subject to the provisions of
213 of this code.
4 The offending spouse shall be disqualified form
inheriting from 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.
5 A donation by reason of marriage made by the
innocent spouse in favor of the guilty spouse is
Admini revoked by operation of law.
stration of Conjugal Properties - The action to revoke the donation under Legal
- In the absence of written agreement of both Separation must be brought within five years
parties as to the administration of the absolute from the time the decree of legal separation has
community or conjugal partnership property shall become final.
be decided by the court. 6 The designation of the guilty spouse as the
- If neither of the parties is fit to administer it, the beneficiary of the insurance policy of the innocent
court may appoint a third person to manage the spouse may be revoked by the latter even if there is
community properties. a designation that it is irrevocable.

Article 65-66: Effects of Reconciliation

54
A corresponding joint manifestation under oath signed by because of a breach of marital obligation.
them shall be filed with the court in the same proceeding Reason for the rule: The Conjugal property will be made to
answer for the damages.
for legal separation Exception: If the property regime is complete separation of
Effects: property, one can seek damages under Article 19, 20 & 21
A For pending cases of the Civil Code (Abuse of Rights)
- It shall be terminated right away
Remedies if one of the spouses neglects his duties or commits
B If the decree has already been issued acts which tend to bring danger, dishonor or injury to the other
- The decree shall be set aside. or to the family:
C Separation of properties and any forfeiture of a When the inability falls under psychological incapacity
declaration of nullity of marriage (Article 36)
share to the guilty party already effected b When the spouse designated as the administrator of
- This shall continue to subsist, unless the conjugal or community property is guilty of some acts of
spouses agree to revive their former property mismanagement - the other spouse can ask the court
regime. for receivership. (Article 101)
c The aggrieved spouse can ask the court that he or she
be the sole administrator of the conjugal or community
Joint Manifestation of Reconciliation specifications: property. (Article 101)
1 The properties to be contributed anew to the d Judicial separation of property. (Article 101)
e When the spouse is guilty of physical, psychological,
restored regime
economic abuse directed against the other, the
2 Those to be retained as separate properties of aggrieved spouse can ask the court for temporary or
each spouse permanent protection order (VAWC)
3 The names of all their known creditors, their f Criminal charges if acts of the other spouse amount to
a crime
addresses and the amounts owing to them - In our jurisdiction, a husband can rape his wife
under the Anti-VAWC Law
The agreement of revival must be in writing and attached g Injunction Mandatory (commands the performance of
to the motion filed in court trying the legal separation an act) and prohibitory (enjoins or prohibits the
commission of an act) injunction
case. Creditors of both parties must be duly notified by
furnishing them copies of both the agreement and the Can the court issue a mandatory injunction directing the
motion. offending spouse to perform his marital obligations or
prohibitory injunction enjoining the offending spouse from
- Once the court approves the agreement, the performing an act?
order of the court must be recorded in the Prohibitory Yes, the court can issue a prohibitory
proper registries of properties. injunction against the offending spouse for acts
- Those creditors that were not listed or not which tend to bring dishonor, danger or injury
against the family.
notified shall not be prejudiced by the recording
Mandatory No, because marital obligations are
of the order in the proper registries. personal and consensual in nature. (Except support
failing to do so would lead to contempt of court)

On Profession
Title III - RIGHTS AND OBLIGATIONS BETWEEN HUSBAND Either spouse may exercise any legitimate profession,
AND WIFE occupation, business or activity without the consent of the
other. The latter may object only on valid, serious and moral
Essential marital obligations: grounds.
1 The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help Who will answer or shoulder the debt incurred in the exercise
and support. (Article 68) of their respective occupations?
2 The husband and wife shall fix the family domicile. In case
of disagreement, the court shall decide. (Article 69) IMMORAL/ILLEGTIMATE occupation without consent:
3 The spouses are jointly responsible for the support of the Article 73
family. (Article 70) When objection is raised by the other spouse:
4 The right to administer and manage the household shall - The court will decide if there is basis on the objection
be the right and duty of both spouses. (Article 71) (valid, serious or moral grounds)
If the court finds it to be immoral:
Note: Except for support, the courts cannot compel the - The court will determine if benefit redounded to the
husband and wife to do these duties. It is the moral obligation family before or after the objection was made.
of the spouses that should constitute the motivating factor for
making them observe the said duties and obligations which are If before: The debt or obligation incurred by the spouse in
highly personal. pursuit of an immoral profession shall be chargeable only
against the spouse concerned. (Article 73)
This means that there can be no action for damages merely - For this to apply, the innocent spouse must have no
55
knowledge of the other spouses engagement in an G Tractors Inc. v. CA and Spouses Nicacio (?)
immoral activity such that he could not have Facts:
interposed any objection. Involves a contract between the husband and G Tractors
Inc, allegedly without the consent of the wife where the
If after: Any debt or obligation incurred by the spouse in pursuit husband leased some heavy equipment from G Tractors,
of the immoral profession may be charged against the conjugal Inc. in pursuit of his logging business.
or community property. For failing to pay the stipulated rental for the equipment, G
- This is what is known as the Equitable Principle of Tractors went to court and filed an action for the collection of
Estoppel where one could not avoid responsibility and sums of money. The court ruled in favor of G Tractors.
yet continue receiving the benefits. This will make The wife contended that the obligation incurred by the
sure that the other spouse, who did not object, should husband arising from the contract with G Tractors is a
likewise share in the liability. personal debt of the husband because it was entered into
without her consent and involvement.
MORAL/LEGITIMATE occupation without consent: Article Ruling:
94 par 3 (ACP) or Article 121, par 3 (CPG) The Supreme Court rejected the argument of the wife,
holding that the contract entered into by the husband is of
Distinguish between two factual situations:
such nature that it is normally expected to produce benefit
1 Obligation or loss incurred from an isolated transaction for the family. It is an exercise of business, normally
presumed to be intended for the benefit of the family.
Rule: Any obligation cannot be charged against the ACP or Therefore, it is not required that there should be actual
CPG but to the separate, exclusive properties of the debtor benefit that redounded to the family, even if losses are
spouse. In order for the obligation to be chargeable against
the ACP or CPG, there should be proof of actual benefit that TITLE IV PROPERTY RELATIONS BETWEEN HUSBAND
redounded to the benefit of the family. AND WIFE
Ayala Investment v. CA and Spouses Ching
Facts:
The husband was the vice-president of Philippine Blooming
Mills. When the corporation was suffering from financial Chapter 1: General Provisions
difficulty, the corporation applied for a loan with Ayala
Investment. As a condition for the approval of the loan Article 74
application, Ayala required the husband to execute a surety The property relations between husband and wife shall be
agreement to guarantee the payment of the corporations governed in the following order:
corporate loan. The husband as vice president executed a 1 By marriage settlements executed before the
surety agreement, binding himself jointly and severally with marriage;
the corporation. When the corporation failed to pay the loan, 2 By the provisions of the Code; and
Ayala went to court and filed an action for collection of sums 3 By the local customs.
of money not only against the corporations, but also against
the husband. Marriage Settlements (Article 75-81):
The trial court ruled in favor of Ayala and pending appeal, A contract between the would-be spouses before the
the court granted the execution. celebration of the marriage, embodying the terms and
The wife objected, contending that the obligation did not conditions of their agreement as the manner by which their
redound to the benefit of the family and therefore, the CPG property relations is to be governed.
should not be held liable to satisfy the judgement of the
Court.
Without a marriage settlement or when the regime is void, the
Ruling:
default property regime is the system of absolute community of
The Supreme Court sustained the wifes argument. The
property.
contract entered into by the husband is of such nature that is
not normally expected to benefit the family. The husband
Any modifications, in order to be valid, must be made before
was not the recipient of the loan obligation, but only a
the celebration of the marriage subject to the following
guarantor. The beneficiary being the corporation and not the
family. provisions:
a Article 66
The only way the CPG may be held liable to satisfy the b Article 67
judgment is to show that the family actually benefited out of c Article 128
d Article 135
2 Obligation or loss is incurred in pursuit of an ordinary e Article 136
transaction normally expected to produce benefit to the
family by its very nature. The marriage settlement shall be in writing, signed by the
parties and executed before the celebration of the marriage.
Rule: Any obligation incurred may be charged against the And in order to not prejudice third persons, they must be
ACP or CPG. It is not required that there should be proof of
registered in the local civil registrar as well as the proper
actual benefit to the family. registries of property. If there is a donation of an immovable
property, the marriage settlement must be a public instrument,
i.e. it must be notarized.

The following must be weighed in ascertaining the fairness and


reasonableness of the provisions of the marriage settlement:

56
a The relative situation of the parties Donations by reason of marriage made by one would-be
b their respective ages, health and experience spouse
c their respective properties This donation may be done through:
d their respective family ties and connections a Marriage settlement
e the spouses needs b Separate deed of donation
f other factors that tend to show that the agreement was
understandingly made Marriage Settlement Separate Deed of
Donation
If a person, upon whom a sentence of civil interdiction has There must be a marriage There should also be a
been pronounced or who is subject to any other disability, the settlement that must marriage settlement.
guardian appointed shall be made a party in the marriage stipulate a property regime
settlement executed by the said person. other than ACP
- Because if it is ACP, it
In the absence of a contrary stipulation in the marriage would be a useless
settlement, the property relations shall be governed by donation for the donor
Philippine laws, regardless of the place of the celebration of would end up being the
the marriage and their residence. owner just the same
- Donation is a mode of
Exceptions to this rule: acquiring property
a When both are aliens which stipulates a loss
b With respect to the extrinsic validity of contracts affecting of the donor and a gain
property not situated in the Philippines and executed in the of the done
country where the property is located The donor may not donate Not subject to the 1/5
c With respect to the extrinsic validity of contracts entered more than 1/5 of their limitation.
into the Philippines but affecting property situated in a present property. - In this case, there is no
foreign country whose laws require different formalities for - A marriage settlement is possibility of undue
its extrinsic validity. just like an ordinary influence because this
contract which is a unilateral act and
Most importantly, everything stipulated in the marriage undergoes the process there is no process of
settlements shall be rendered void of the marriage does not of negotiation. negotiation
take place. - The exercise of undue
influence is a common
Chapter 2: Donations by Reason of Marriage occurrence. This
limitation is imposed by
2 kinds of Donations: law to avoid this undue
a Donations Propter Nuptias donations in consideration of influence.
marriage If the marriage does not take If the marriage does not take
b Ordinary donations done during the existence of the place, the donation is void. place, donation is not
marriage rendered void. It is only
revocable and under Article
Donation by reason of marriage 86, only voidable 5 years
A kind of donation incorporated in the marriage settlement, from the time the marriage
because normally a donation is executed through a separate was supposed to take place.
deed of donation.
- Simply a donation, the consideration of which is Note: The rules under Title III of Book III of the Civil Code must
marriage. be observed. That is:
- Executed before the marriage - The donation must be accepted by the done
- Can be done by a third-party in favor of one or both personally or through an SPA
spouses OR one would-be spouse in favor of the - The donation must be made during the lifetime of both
other spouse parties
- Donation of a movable may be made orally or in
Donations by reason of marriage made by a third-party in favor writing
of one or both of the would-be spouses:
Rules: On Ordinary Donations (Article 87)
1 Can only be done in a separate deed of donation Executed DURING the marriage by one spouse in favor of the
2 Valid even if the would-be spouses do not execute a other or by one spouse in favor of a third party with or without
marriage settlement consent of the other spouse
3 Not governed by the not more than 1/5 limitation
because it is a pure act of liberality, no negotiation Rules:
and no danger of undue influence 1 Neither spouse may donate to the other during the
4 The donor cannot donate all his properties should retain marriage, regardless of the value of the property or the
some enough for his sustenance and for his compulsory property regime that governs their property relations.
heirs. If he donates all, it can be subject to collation to the 2 Donations made by either spouse in favor of a third
extent that it impairs the legitime. party involving a property belonging to the ACP or
5 Revocable at the option of the donor only when the CPG is considered a form of disposition which requires
marriage does not materialize
57
the consent of the other for purposes of validity. If without property.
consent: Donation is void.
3 When the marriage takes place without the consent of the
Exception (to both): Moderate donation or gift on the occasion parents of one or both of the contracting parties
of family rejoicing. Moderate depends on the capacity of the - Again, within 5 years.
donor.
4 When the marriage is annulled
This prohibition shall also apply to persons living together as
husband and wife without a valid marriage. In conflict with Art 50 in relation to Art 43 which states that
Cirila Arcaba v. Tabancura, et.al. donations made to the donee who acted in bad faith are
Facts: revoked by operation of law.
This involved an old man who stipulated a donation to his
alleged house help who turned out to be his lover. Tw o conflicting views:
Ruling: a Art 86 should prevail over Art 50 and 43 because it is
the later provision
The Supreme Court ruled that the donation was void under b Art 43 is more consistent with the purpose of the law
Article 87 of the Family Code. punish the donee who acted in bad faith (This is Sir
Ts opinion as well)
Instances where a donation by reason of marriage is 5 When there is a decree of legal separation
rendered voidable at the instance of the donor (Article 86): Exception: If donee acted in bad faith - revoked by
operation of law
1 If the marriage is not celebrated:
6 When the donation by reason of marriage is subject to a
Distinguish between donations by reason of marriage resolutory condition and the resolutory condition is
executed in a marriage settlement from that executed in a complied with.
separate deed of donation: - If the donation by reason of marriage is subject to a
Marriage settlement: Donation is void. resolutory condition, it is immediately valid and
Separate deed of donation: Donation is revocable at effective. But when the resolutory condition takes
the instance of the donor place, it is revocable.
- A Resolutory Condition, which means it is immediately
2 If the marriage is judicially declared as void demandable at one but deemed extinguished upon
the happening of the condition.
General rule: Donation is revocable, 5 years from the finality of - In comparison with Suspensive Condition, which is an
the decision of the court declaring the marriage void. Applies obligation that is not demandable until and unless the
regardless of whether the donee acted in bad faith. condition is complied with.
Exceptions: 7 When the donee is guilty of acts of ingratitude
a If the marriage is declared void on the ground of Article 765 of the Civil Code:
Article 40 (subsequent marriage entered into without a Commission of any crime of the donee against the
the benefit of a judicial declaration for the absolute person, property of honor of the donor or his wife or
nullity the previous marriage) - revoked by operation children
of law if donee acted in bad faith as stipulated in b Imputation by the donee of any crime against the
Article 50 in relation to Article 43 donor
b If the marriage is judicially declared void under Article c Any acts involving moral turpitude against the
44 (one of the spouses who was previously married donor, his wife or children
but his/her spouse was declared presumptively dead d Unjustifiable refusal to support on the part of the
but that spouse and the subsequent spouse knew at donee if the donee is morally and legally obliged to
the time that the subsequent marriage was celebrated give support
that the missing spouse was alive which means they
acted in bad faith) revoked by operation of law Chapter 3: System of Absolute Community
c If the marriage is declared void by reason of
being bigamous Article 35 par 4 (subsequent What constitutes community property (Article 91):
marriage is bigamous and void because the first The community property shall consist of all the property owned
marriage is valid) - not revocable but void by reason by the spouses at the time of the celebration of the marriage or
of public policy (also refer to Article 739 which acquired thereafter.
provides that donations made by persons who were
guilty of adultery or concubinage at the time of the Exception:
donation is void) 1 Properties indicated to be exclusive in the
marriage settlement
Prescription period (for revocable): 5 years from the time of the 2 Properties excluded pursuant to Article 92
finality of the decision declaring the marriage void
Properties excluded from the Community Property (Article
If the donee, in a donation revoked by operation of law, refuses 92):
to return the property, the donor should file an action for 1 Property acquired during the marriage by gratuitous title
reconveyance of the property donated, within eight years when by either spouse, and the fruits as well as the income
it is a movable property or thirty years if it involves real
58
thereof reimbursement, to be charged against the parent
Gratuitous title properties acquired without burden to the spouse concerned at the time of liquidation.
person who acquired it. The property is acquired by pure
liberality. Ex: Donated, inheritance. 2 All debts and obligations incurred during the marriage by
the designated administrator spouse for the benefit of the
Remember, only those acquired during the existence of community. Or the debt and obligation incurred by the
the marriage. If it was acquired before the marriage, it non-administrator spouse, with the consent of the other,
becomes part of the Absolute Community. which redounded to the benefit of the family.

Except: If it is expressly provided by the donor, testator or 3 All debts and obligations incurred by either spouse without
grantor that they shall form part of the community property the other's consent but redounded to the benefit of the
family.
2 Property for personal and exclusive use of either spouse, - Refer to the 2 situations under Moral Occupation
acquired before or during the marriage.
Except: Jewelry shall form part of the community property. 4 Taxes, liens, charges and expenses including major or
Actually, anything that is valuable. minor repairs upon the common property.

3 Property acquired before the marriage by either spouse 5 All taxes and expenses for preservation during the
who has legitimate descendants by a former marriage, marriage upon the separate properties of either spouse
and the fruits as well as the income of such property. used by the family.
- If the separate property is not being used for the
Abregana v. Abrenica benefit of the family, this provision does not apply

This case involves a lawyer, Atty. Abrenica, who was sued by 6 Expenses to enable either spouse to complete any
his partners for failing to account of the proceeds of the profession for self-improvement
partnership. Atty. Abrenica lost in the case. Subsequently, his
house and lot and his 2 cars were levied in execution when
the judgment became final. 7 Antenuptial debts or debts incurred before the marriage
which redounded to the benefit of the family.
Atty. Abrenica and his wife argued that these were part of the - There must be actual benefit that redounded to the
community property. However, it was then known that Atty. benefit of the family for antenuptial debts to be
Abrenica was previously married but it was dissolved. In the charged against the ACP.
first marriage, there were 3 children.
8 The value of the property donated or promised by birth
Applying the 3rd paragraph of Article 92, these properties
spouses to common children for the purpose of
were acquired by him before the marriage and he has
legitimate descendants by the former marriage. These completing a vocational or professional course for self-
properties are then exclusive. Therefore, are answerable of improvement
the personal liabilities of Atty. Abrenica.
9 Personal to the debtor spouse a) antenuptial debts
What happens when the property acquired during the marriage which did not redound to the benefit of the family b)
by gratuitous title was exchanged, bartered or sold? What will support of the illegitimate children and c) liability arising
become of the proceeds of the sale of the exclusive property? from crime or quasi -delict when the separate properties
of the debtor spouse are insufficient (advance
Two conflicting views: reimbursement mechanism)
a Whatever property that the spouse receives during 10 Litigation expenses between spouses unless the suit is
the marriage in exchange of his or her exclusive groundless.
property, will become common.
- The property now acquired does not fall under the If the assets or properties of the ACP are not sufficient to
statutory and contractual exclusions. satisfy all the obligations, (except par9) the spouses are
- Also consistent with the general rule that those solidary liable of the balance of the obligation with their
acquired during the marriage are part of the respective separate properties.
community property.
Solidary obligation - when the obligation may be demandable
Charges Upon and Obligations of the Absolute Community against more than one debtor. The creditor can demand the
of Property (Article 94): fulfillment of the entire obligation from any of the debtors.
Charges, obligations and liabilities that ACP is required by law
to settle. Example: The creditor can compel either the husband or the
wife to pay the entire obligation. However, the spouse who was
1 Support for the spouses, for the common children and for compelled to pay the entire obligation can demand from the
the legitimate children of either spouse husband his share in the obligation.
- Support for illegitimate children is not chargeable
against the common property. It is the personal Note:
obligation of the parent spouse concerned. However, This solidary obligation principle imposed on either spouse with
in case of absence or insuffiency of the personal respect to their separate properties applies only insofar as the
properties of the parent spouse to support the obligations mentioned in Article 94, except par 9. Because par
illegitimate child, it may be taken from the 9 are personal liabilities - the only principle applicable is the
common property by way of advances subject to advance reimbursement mechanism.
59
Obligations incurred during the marriage by either spouse Principle of Advance Reimbursement Mechanism
without the consent of the other and which did not redound to ACP - this principle applies without need for securing the
the benefit of the family -- not covered under par 9. (Only obligations which pertain to the absolute community -
antenuptial debts are covered) advances are made
CPG - this mechanism may only be resorted to if the
Efren Pana v. Heirs of Jose Juanete obligations which pertain to the conjugal partnership are
already covered by the assets of the CPG. In other words, the
Illustrative of the principle of advance reimbursement mechanism. obligations pertaining to the partnership are secured first
Involves a criminal case for murder initially filed against the before the assets of the partnership may be charged with the
husband along with other alleged co-conspirators. But during the personal debts of either spouse under the advance
trial, only the wife was convicted, but the husband was acquitted. reimbursement mechanism.
The wife was also adjudged civilly liable.
Reason for distinction: In ACP, the spouses have fewer
When the civil liability was sought to be enforced against the ACP,
the husband objected considering that civil liability arising from
exclusive properties. In CPG, the spouses are normally
crime is exactly the item mentioned in par 9 -- personal to the expected to have more separate properties.
wife, hence should not be enforced against the community.
Game of chance (Article 95)
The Supreme Court ruled that while it is not chargeable against Whatever may be lost during the marriage in any game of
the community, the ACP however is obligated by law to advance. chance, betting, sweepstakes, or any other kind of gambling,
However, it was argued that this advance should be made when whether permitted or prohibited by law, shall be borne by the
the liquidation should be done. But the SC said that there is no loser and shall not be charged to the community.
necessity for liquidation first before advance could be made.
Except: Winnings therefrom shall form part of the
Go v. CA community property.
Illustrates an obligation which arose from a breach of contract
consisting of damages imposed by the court. Involves a video- Ownership, Administration, Enjoyment and Disposition of
taking service during the marriage of spouses Ong. The wife was the Absolute Property (Article 96 for ACP and Article 124
engaged to take the video of the wedding. Ho ever, she was not for CPG)
able to deliver the video recording. It was erased, allegedly. An
action for damages was filed. Court sustained the plaintiff and an Rules:
award of damages was adjudged against the wife. 1 Administration and enjoyment of ACP shall belong to the
spouses jointly. Joint administration by the husband and
But when the civil liability was sought to be enforced, the ACP the wife. BUT in case of disagreement, the decision of the
was levied for execution. It was argued that the liability should not husband prevails, subject to the right of the wife to go to
be enforced against the community because it was the personal court to annul the transaction entered into by the husband
obligation of the wife. This argument was sustained by the SC. implementing his decision.
2 Any transaction entered into by the husband over the
Supreme Court said that while either spouse may pursue a objection by the wife, is revocable - the wife has the right
legitimate profession, business or activity, in this case the contract
to question the transaction within 5 years from the date of
was purely between the wife and spouses Ong. The SC said that
the contract implementing the decision. If the wife does
not question within that period, then the contract is valid.
it is the personal obligation of the wife and therefore cannot be
enforced against the ACP. The issue on advance reimbursement
Note: The status of the transaction, disposition or
mechanism was not taken up in the case, although the issues are
encumbrance, administration of property - revocable only
essentially the same.
within 5 years.
Note:
The SC in Go v. CA invoked Art 94 par 3 mentioned that any Sole power of administration (2nd par of Article 96):
spouse may pursue any legitimate profession, business or In the event that either spouse is incapacitated or unable to
activity. If this is the kind of activity, this is presumed to be for participate in the management, the other spouse may go to the
the benefit of the family and therefore chargeable against the court through a summary proceeding and ask for the sole
ACP even when the transaction results in losses, as power of administration.
distinguished from an isolated transaction. - This sole power of administration does not include the
right to dispose or encumber any common property.
Go v. CA - video shooting is an occupation presumed to be for Only acts of administration and not acts of disposition
the benefit of the family, consistent with the ruling in Tractors or encumbrance.
Inc. But the SC saw it the other way. SC may have in mind
par9. Problem is, it forgets the advance reimbursement Requirement for disposition or encumbrance to be valid:
mechanism. 1 There must be consent of the non-participating spouse
2 If incapacitated to give consent, court authority is required.
The Supreme Court emphasized the principle of contracts but
overlooks the charges on ACP. The principle that only parties In the absence of a written consent or court order, any
are liable - true in ordinary contract. But when it involves disposition or encumbrance is VOID.
liabilities sought to be enforced in the ACP - provisions of the
Family Code. How to distinguish 2nd par from 1st:

Atty.T's personal take - ruling in Go is not accurate. Legarda and Mauis:


60
An opinion was expressed that the first par of 96 and 124, because a void contract cannot be ratified. (Hence it is more of
pertains only to acts of administration. The rule that says in a voidable contract since it is a continuing offer)
case of disagreement, the decision of the husband prevails,
subject to the right of the wife to go to court within 5 years -- When the disposition is made by the wife
applies only if the acts performed by the husband pertaining to
acts of administration. So that if the acts pertain to disposition First paragraph: Administration jointly exercised by both. And in
or encumberance, there is only one rule- without the consent of case of disagreement, husband's decision prevails. This
the other spouse, the disposition or encumberance is VOID. contemplates of a situation where the encumbrance or
disposition is from the initiative of the husband.
Criticized the Supreme Court when it decided the case of
Ravina v. Abrille -- exactly illustrates the 1st par of 96. If the disposition or encumbrance is made by the wife over the
objection of the husband -- DO NOT apply the 1st par of Art 96
Ravina v. Abrille
Sta. Maria's opinion: The transaction entered into by the wife
Both the husband and the wife jointly administered the over the husband's objection can be assailed as:
community property but when the husband decided to dispose a unenforceable (because of lack of authority)
of the common property, the wife objected to the extent that b can be assailed as void on the ground that it was
she even sent a letter to the prospective buyer making clear made contrary to law or policy
her objection to the sale.

The SC ruled that the contract entered into by the husband


Second paragraph: Only one is administering the common
and the buyer is revocable. The sale was entered into by the property because the other spouse is incapacitated either due
husband without the consent of the w ife. to illness, absence.
Doesn't matter who makes the disposition or encumbrance =
Applying the 1st par of Art96 - transaction is only revocable w still void
ithin 5 years from the date of the contract implementing the
decision. The filing of the action to nullify the transaction by Dissolution of the Absolute Community Regime (Article
the w ife was within the prescriptive period. The SC did not 99):
rule that the transaction is void even if it was entered into even
without the consent of the w ife -- Consistent w ith the 1st par
of 96 and 124. If there is objection, the contract is only The absolute community terminates:
revocable -- because the parties exercised joint administration 1 Upon the death of either spouse
of the properties. 2 When there is a decree of legal separation
3 When the marriage is annulled or declared void
4 In case of judicial separation of property during the
Mario Schuzi v. Guzon, Fuentes v. Roca and Giang v. marriage under Articles 134 to 138.
Giang
Separation in Fact (Article 100)
Demonstrative of the 2nd par. One of the spouses sold a
The separation in fact between husband and wife shall not
common property without the consent of the other spouse
because the latter was unable to participate in the affect the regime of absolute community.
administration -- separated de facto for 30 years.
Exceptions:
The SC, consistent w ith the 2nd par succinctly ruled that the
contract was VOID because of lack of consent of the other a The spouse who leaves the conjugal home or refuses
spouse. to live therein, without just cause, shall not have the
right to be supported
b When the consent of one spouse to any transaction of
Based on these existing jurisprudence, it is now established
the other is required by law, judicial authorization shall
that:
be obtained in a summary proceeding.
c In the absence of sufficient community property, the
1st par - joint administration of the property regime, with the
separate property of both spouses shall be solidarily
knowledge of the other spouse but with objection, thereby
liable for the support of the family.
resulting in disagreement. -- ONLY REVOCABLE
Abandonment or failure to comply with obligations to the
Disposition made without the knowledge of the other spouse
family (Article 101):
even if joint administration -- VOID (because of the absence of
If a spouse, without just cause, abandons the other or fails to
the chance for objection)
comply with his or her obligations to the family, the aggrieved
spouse may petition the court for:
However, while VOID, the transaction is considered a
1 Receivership
continuing offer on the part of the consenting spouse and the
2 Judicial separation of property
third party which may be perfected as a binding contract the
3 Authority to be the sole administrator of the absolute
moment the court authorizes the transaction or acceptance by
community
the other spouse.
A spouse is deemed to have abandoned the other when one
Most authors are of the opinion that when the non-consenting
has eft the conjugal dwelling for a period of 3 months without
spouse eventually gives consent or when the court authorizes
any intention of returning. (Failed to give any information as to
the transaction -- the contract is an altogether NEW contract.
his or her whereabouts)
It is not accurate to say that a void contract is ratified --
Liquidation of the Absolute Community Assets and
61
Liabilities: other spouse as required by law.
Takes place when the ACP is terminated.
This can be done:
When is ACP terminated? (Article 99) a Extrajudicially Preparing a document denominating
1 Death of either spouse the extra judicial settlement of the estate of the
2 Decree of legal separation deceased person. The property there will be
3 Annulment or nullity adjudicated in favor of the estate, payment of debts
4 Judicial separation of property and the remaining property will be distributed to the
surviving heirs. Done only if the parties can agree.
Upon the dissolution of the absolute community, the b Judicially If the parties could not agree, the court will
following procedure shall apply (Article 102 and 129): decide as to which portion of the property goes to
whom.
1 Inventory has to be prepared -- all the common properties
belonging to the ACP and all the separate properties of
either spouse. Effects of non-compliance of liquidation within 1 year from
death of the deceased Art 103 and 130:
2 Personal obligations of the parties shall be paid out of their
separate properties and the obligations pertaining to the 1 Any disposition of the property belonging to the ACP or
absolute community shall be paid out of the common CPG shall be void.
property. 2 If the surviving spouse contracts a subsequent marriage
- In case of insufficiency of the ACP to cover all without complying with the requirement of liquidation
liabilities -- apply solidary obligation on the part of mandatory that the property regime that will govern the
the spouses (any balance of the ACP shall be subsequent marriage is complete separation of property
paid by their respective separate properties)
regime.
3 If after deducting all the debts, there remains properties
belonging to them separately -- these shall be returned to First effect: Disposition is void
them.
The SC interpreted this provision in an entirely different way.
4 If there remains properties belonging to the ACP (net
assets) -- divided equally between the spouses.
Heirs of Protacio Go v. Ester Servacio
Unless: Involves a property left by the deceased who was married.
a A different proportion or division was agreed upon in Without liquidation of the CPG, the surviving spouse
the marriage settlement (husband) along with one of the children, Rito Go, sold a
b There has been a voluntary waiver of such share portion of the estate left by the deceased (wife). When the
other children knew of the sale, they filed an action to annul
the transaction invoking the provision which says that any
5 The presumptive legitimes of the common children shall
disposition of the property belonging to the ACP or CPG
be delivered upon partition. This shall not prejudice future without complying with the requirement of obligation is VOID.
inheritance.
The Supreme Court ruled that if a portion of the property
6 The conjugal dwelling and the lot on which it is situated belonging to the ACP of CPG is sold without complying with
shall be adjudicated to the spouse with whom the majority the requirement of liquidation, the disposition is not
of the common children choose to remain. (Only applies to necessarily void especially if after liquidation it will be
ACP or CPG) determined that the other heirs who did not participate in the
disposition still gets their own share. Because obviously, the
requirement of liquidation is for the purpose of protecting the
What is the effect if the property regime is terminated by interests of the creditors and the heirs.
death? (Article 103 and 130)
If at the end of the day, it can be determined that the other
Rule 103 and 130: - where marriage is extinguished by death, heirs are still able to get their respective shares, then there is
the natural process of settlement of the estate will follow. This no problem. In this case, the portion sold by two is even lesser
than what they are entitled to get.
is done in a special proceeding involving the settlement of the
estate of a deceased person. On the rules of co-ownership, a co-owner has the right to
encumber or dispose the share even without the consent of
The Estate may be settled in two ways: the other. (Article 493 of the NCC)
1 Probate testate proceedings If a person died with a will,
the will shall be probated and the estate distributed
according to the terms and conditions of the will 103 What is only void is the portion belonging to the other
non-consenting heirs
2 Intestate proceedings if a person died without a will, the
estate will be settled in court and intestacy and rules on
The rule now: the disposition made without liquidation is void in
intestate succession will follow
so far as the interest of the non-consenting heirs.
The same proceedings will be applied when the person who
died is married. The surviving spouse is required to Chapter 4 Conjugal Partnership of Gains
liquidate the estate within one year upon the death of the

62
Otherwise known as the relative community property regime. 7 Anything acquired by chance, betting, sweepstakes,
Should be stipulated in the marriage settlement. Jointly owned gambling, whether legal or illegal. Winnings form part of
by the parties. the CPG. Losses are suffered by the debtor spouse.

What governs CPG: Note: Any or all properties acquired during the marriage under
1 Marriage settlement the CPG are presumed to be conjugal. This presumption holds
2 Rules on contract of partnership true even if the property is registered under the name of one
3 Family Code spouse only and even if it was acquired during a cohabitation
with another party and registered to the paramour. (Article
Properties that form part of the conjugal partnership: 116)

1 Under this regime, the husband and wife place in a Procopio Villanueva v. CA
common fund the proceeds, products, fruits and income
from their separate properties and those acquired by Husband was separated de facto with his wife to cohabit with
either or both spouses through their efforts or by chance. Pacita. Husband acquired various properties during the
- What is acquired by them before and at the time of cohabitation registered under the name of Pacita.
the marriage, remains theirs.
- Fruits: Any improvement or addition to the personal Whether or not the property is Pacita's or that of the CPG or
property. Can be industrial (ex: buildings), natural (ex. ACP of the valid marriage.
Piglets, plants), civil (Ex: rental) fruits.
SC ruled that whatever property acquired during the existence
2 Any acquired by the spouses through their efforts or by of the ACP or CPG, is presumed to be the property of the
chance CPG or ACP, even if acquired during cohabitation.
- Salary, winnings in gambling, hidden treasures.
3 Upon the termination of the marriage, the net assets that Same principle in the case of Bell Codero v. CA and Josefina
either spouse obtained will be conjugal. v. Iron Works

Exclusive property of each spouse (Article 109):


The following specific properties are conjugal partnership
1 Properties brought by either spouse into the marriage
properties (Article 117):
1 Properties acquired through onerous title during the 2 Properties acquired during the marriage by gratuitous title
marriage by either spouse Substantially the same as Art 92 ACP statutory exclusions,
- Onerous: acquired for valuable consideration
but actually different.
other than the generosity of the grantor
CPG - property acquired during the marriage by gratuitous
title is always exclusive property of the spouse who
2 Properties acquired by work, labor, industry, profession or
acquired it without exception)
occupation. (Income as a lawyer, any business, etc.)
ACP- property acquired during the marriage by gratuitous
3 Fruits and income of the common properties and net fruits title is exclusive property of the spouse who acquired it
of the exclusive properties. except when the grantor provides that it be part of the
Net fruits already took into consideration in producing common property.
the fruit.
3 Property acquired by right of redemption, barter or
4 Share in the hidden treasure exchange using the property belonging solely to the
Rule in Article 483 of the NCC - owner of the property spouse
where the property was found gets everything. But if a
finder is a third party, the finder gets 50% and the owner of Redemption right to get back ones property where it
the property gets the other half was earlier conveyed to another.
- If found in the exclusive properties CPG Example: Before the marriage, the husband obtained a
- If either spouse is only a finder and the property loan from the bank and by way of collateral, he mortgaged
belongs to a third party - the finder spouse gets his property. For failure to pay, the bank foreclosed the
50% and goes to the CPG property and sold in favor of a third party.

5 Property acquired through occupation - fishing or hunting Under the law, if a property mortgaged in foreclosed, the
- Occupation here is not profession. mortgagor owner has one year to redeem the property
- The difference is in the mode of acquisition - sold at the foreclosure sale.
there is no previous owner (Civil Code definition)
- There is an element of chance Rule if the 1 year period falls during the existence of the
marriage: (Property was foreclosed before the marriage
6 Livestock existing at the time of dissolution in excess of
but the redemption period falls due during the marriage)
those brought into the marriage by each

63
- The property acquired by redemption will not Absolute Contract of Sale a kind of contract whereby the
form part of the CPG by express provision of law property is transferred to the buyer upon the delivery
regardless of whether the purchase price has not been fully
Barter - Same principle holds if either spouse receives paid
another property during the marriage in exchange or Contract to Sell ownership is given to the property only upon
substitution of his or her own exclusive property the payment of the full purchase price

Rule in ACP is different: When an exclusive property is Note: If paid out of the exclusive funds, falls under the 3 rd kind
exchanged with another property, the property will be part of exclusive property and not in this Article.
of the common property
Credits (Article 119)
Sale during the marriage: What will become of the cash or If either of the spouses extended loan to someone else but the
the purchase price? payment was made during the marriage. (The loan is
Conflicting views: exclusively owned by either spouse but the payment is
a Exclusive because a sale transaction is essentially received during the marriage)
a barter transaction
b Conjugal because cash in exchange of the property Rules:
is the proceeds of the exclusive property
1 If payment is received during the marriage corresponding
c If the exclusive property sold during the marriage for
to the principal amount = EXCLUSIVE PROPERTY
profit the original value is exclusive and the
2 Payment received during the marriage corresponding to
excess/profit conjugal because it is considered as a
the interest that accrued before the marriage =
fruit or income
EXCLUSIVE
3 Payment received during the marriage corresponding to
4 That which is purchased with exclusive money of the the interest that accrued during the marriage =
husband or the wife CONJUGAL (essentially considered fruits of the exclusive)
Example: Spouse inherited a bank deposit from parents
and purchases a property using such money How about a property is acquired using money borrowed by
either spouse from a third party? Say, husband borrowed
Rights of Spouses with regard to their exclusive money from a friend and using such money husband
properties: purchased a property. What is the status of the property
1 They retain the ownership, possession, administration and purchased?
enjoyment of their exclusive properties. (Article 110, par.1)
2 May, during the marriage, transfer the administration of his
Rule: Any property acquired during the marriage using the
or her exclusive property to the other by means of a public
instrument, which shall be recorded in the registry of exclusive money of either spouse = Exclusive
property of the place where the property is located. (Article
110, par.2) Determining factor: The ownership of the money used in the
3 May mortgage, encumber, alienate or otherwise dispose of repayment of the loan.
his or her exclusive property, without the consent of the
other spouse, and appear alone in court to litigate with If paid out of the exclusive money = property is
regard to the same. exclusive
If paid out of conjugal money - property is conjugal
Installments (Article 118):
Property bought on installment paid partly from exclusive funds
Wong v. IAC
of either or both spouses and partly from conjugal funds.
Transaction entered into by the husband who are separated
The ownership depends: de facto with his wife. Husband borrowed money from his
- If the ownership is vested upon the delivery of the friend to buy a property. The wife also borrowed money from
property which happened before the marriage, then is which she was charged for estafa. To satisfy the civil liability,
it exclusive. the sheriff levied on execution the property purchased by the
- If it is vested on the last payment which happened husband using the money he borrowed from his friend.
during the marriage, then it is conjugal subject to
reimbursement. Issue: Whether or not the property of the husband acquired
through the borrowed money can be levied for execution to
satisfy the obligation which was personal to the wife.
Note: Always remember that if the property became conjugal,
the spouse who owned it shall be reimbursed. The SC ruled that any property acquired during the marriage
is presumed to be conjugal and there was no evidence that
Note: The buyer may become the owner without the full the money used for the repayment of the loan belongs
payment. exclusively to the husband. Therefore it is a conjugal property
and can be levied for execution.

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In a litigation, either spouse obtains a judgment award in the Land 2M
form of damages adjudicated by the court. Who gets to own Building 2m
the damages? Resulting increase in value 1M
Add the resulting increase 1M to the cost of
Zulueta v. Pan American World Airways improvement 2M = 3M
3M > value of the land 2M
Husband filed a case against the airline company for breach
of contract of carriage. They won and damages were Exclusive - When the cost of improvement and the resulting
awarded. increase are not more than the value of the property
exclusively owned by the spouse at the time of the
Issues: Whether or not the damages awarded by the court
improvement (CPG is entitled to reimbursement during
forms part of the conjugal partnership.
liquidation)
The Supreme Court ruled that if the damages awarded by the
court arose from a transaction financed by the conjugal How to determine the greater value
partnership = Conjugal. It was established that the plane Example: Land belonging to husband exclusively is 2M. Out of
tickets were purchased using conjugal funds. Hence, the the conjugal funds, a building was constructed during the
marriage on such land. The cost of improvement is 2M.
Lilius v. Manila Railroad Land 2M, Building 2M = 4M

Involves a suit for quasi-delict filed against manila railroad Cost of improvement and resulting increase in value of the
arising from a vehicular accident. The plaintiffs were awarded.
property: Due to the improvement, the land now may cost 5M.
Issue: Whether or not the damages awarded by the court
should form part of the conjugal partnership. The Supreme (1M resulting increase in value)
Court ruled that the damages arose from physical injuries
which are personal to the person concerned. Hence, it is a Note: Ownership will only be transferred either to the CPG or
personal property of the one whose injury was compensated. to the spouse upon reimbursement is made during liquidation.

Insurance Rules:
Suppose a car by the husband with a fire insurance is lost, If the property is to be awarded to the CPG, the land
who gets to own the insurance proceeds? remains to be owned by the spouse before the
reimbursement is made at the time of liquidation.
Determining factor: the money used for the procurement of the
insurance premium Significance: Before the ownership is transferred, the property
If paid out of exclusive money- exclusive which remains under the ownership cannot be levied on
If paid out of conjugal money conjugal execution to satisfy an obligation pertaining to the CPG.

Retirement benefits (Article 115) If the property is to be awarded to the spouse, the land is
Rule if during the marriage, either spouse received retirement considered to be part of the CPG before the
benefits, depends on the nature of the retirement benefit: reimbursement is made at the time of liquidation
If onerous (when the amount is the accumulation of
the portions of the spouse's salary of the years Significance: The spouse who owns the land cannot insist that
deducted from his monthly salary) conjugal he or she be paid rental for the occupancy of his land, even if
If gratuitous (extended out of pure liberality by the the building belongs to a third party, the CPG. Because
giver) - exclusive whatever rental that may be due would just the same end up
as a common fund interest income of the spouse exclusive
If improvement is introduced to the separate property property.
(Article 120)
Can be at the expense of the CPG or through the effort of Charges and Obligations of the CPG (Article 121):
either or both spouses.
1 The support of the spouse, their common children, and the
Note: The law discourages different ownership over the land legitimate children of either spouse; however, the support
and the building. Ownership should be uniformly owned by one of illegitimate children shall be governed by the provisions
person. of this Code on Support

2 All debts and obligations contracted during the marriage


Conjugal - When the cost of improvement and the resulting
by the designated administrator-spouse for the benefit of
increase in value are more than the value of the property at the
the conjugal partnership of gains, or by both spouses or by
time of the improvement (real owner is entitled to one of them with the consent of the other;
reimbursement during liquidation)
Example:

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3 Debts and obligations contracted by either spouse without Efren Pana v. Heirs of Jose Juanete
the consent of the other to the extent that the family may
have benefited; Illustrative of the principle of advance reimbursement
mechanism. Involves a criminal case for murder initially filed
4 All taxes, liens, charges, and expenses, including major or against the husband along with other alleged co-conspirators.
minor repairs upon the conjugal partnership property; But during the trial, only the wife was convicted, but the
husband was acquitted. The wife was also adjudged civilly
5 All taxes and expenses for mere preservation made liable.
during the marriage upon the separate property of either
spouse; When the civil liability was sought to be enforced against the
CPG, the husband objected considering that civil liability
arising from crime is exactly the item mentioned in par 9 --
6 Expenses to enable either spouse to commence or
personal to the wife, hence should not be enforced against the
complete a professional, vocational, or other activity for
conjugal partnership.
self-improvement;
The Supreme Court ruled that while it is not chargeable
7 Ante-nuptial debts of either spouse insofar as they have against the community, the CPG however is obligated by law
redounded to the benefit of the family; to advance. However, it was argued that this advance can
only be made if the other obligations pertaining to the CPG
8 The value of what is donated or promised by both spouses are covered. And this can only be determined upon
in favor of their common legitimate children for the liquidation.
exclusive purpose of commencing or completing a
professional or vocational course or other activity for self- But the SC said that for purposes of the advance mechanism
improvement; and requirement, it is not necessary to wait for liquidation.
Because the law only says covered, meaning it is enough
9 Expenses of litigation between the spouses unless the suit that at the time the advances is made, the properties of
is found to groundless. belonging to the CPG are enough to cover the obligations
pertaining to the CPG.
The charges and obligations of the CPG are slightly different
What can be done is a provisional or informal liquidation. The
from that of ACP [Art 94 (ACP) v. Art121 and 122 (CPG)]
danger there is that the possibility cannot be discounted that
the liquidation is actually made, the properties belonging to
Main difference: In case the debtor spouse has insufficient
exclusive separate properties to satisfy his or her debts or
obligations: Administration of the Conjugal Partnership Property
The rule is the same with Absolute Community. Art 96 ACP
ACP Art 94 - Advances subject to reimbursement (no need to Art 124 - CPG
first cover the obligations of the ACP)
CPG Art 121 and 122 - The CPG can only be made to make Liquidation of Conjugal Property (Article 129):
the advances once the obligations of the CPG are satisfied 1 Inventory - In the listing of the inventory of properties if the
CPG, any advances made shall be included in the list of
(principle of exhaustion)
properties belonging to the CPG as an asset. (par 2)
Whatever amount the CPG owes to either spouse,
Reason for distinction: In ACP, the spouses have fewer
shall be listed as the exclusive properties of either of
exclusive properties. In CPG, the spouses are normally
the spouses.
expected to have more separate properties.
2 Come up with list of obligations - personal obligations and
However, the Supreme Court ruled in the case of Pana v. Heirs obligations of CPG
of Juanete that there is no need to wait for liquidation for Each spouse shall be reimbursed for the use of
advances to be made in the conjugal partnership his/her exclusive funds in the acquisition of property
or for the value of his/her exclusive property, the
ownership of which has been vested by law in the
conjugal partnership

3 Deduct the personal obligations from the separate


properties and deduct the conjugal obligations from the
conjugal properties, etc.

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Chapter 5 Judicial Separation of Property Effect: Property relations between spouses is now to be
governed by complete separation of property regime
Three instances where the regime of complete separation of
properties governs the marriage: Chapter 6 Complete Separation of Property Regime

1 If stipulated in the marriage settlement Rights:


2 Article 103 and 130: If previous marriage was terminated
by death and spouse contracts a subsequent marriage 1 Article 145: Either spouse has absolute right to enjoy,
without complying with the requirement of liquidation administer, use, dispose, and encumber any of his or her
3 When during the existence of the marriage, the parties property without the consent of the other.
resorted to judicial separation of property
2 Article 145: To each spouse shall belong all earnings from
Judicial separation of property: Always require court approval his or her profession, business or industry and all fruits,
whether voluntary or involuntary natural, industrial or civil, due or received during the
marriage from his or her separate property
A Voluntary - Does not require any cause: mutual agreement
of the parties. Filing of a petition for voluntary separation 3 Can engage in any profession without the consent of the
of their properties (both should file) other

B Involuntary - When there is cause (aggrieved party is the Obligations (Article 146):
one filing the petition)
1 Jointly responsible for family expenses in proportion of
Grounds that require final judgment by the court: their income (in case of insufficiency or default thereof, to
i Civil interdiction the current market value of their separate properties)
ii Absentee
iii Loss of parental authority 2 Solidarily liable with their respective separate properties
Grounds that dont require final judgment by the court: with their creditors relating to family expenses (veco, pldt
iv Abandonment for 3 months bills)
v Mismanagement
vi Separation de facto for 1 year Chapter 7 Unions without marriage or under a void marriage

Revival of Property Regime (Article 141): Article 147 and 148 Property Regimes of Void Marriages
Suppose the court granted the judicial separation of property, (Co - Ownership)
may the parties agree to revive their property regime?
What is covered by Articles 147 and 148:
YES. Grounds for revival: (depends on the kind of judicial
separation) Article 147:

Involuntary - may be revived if the ground for the 1 A union between a man and a woman cohabiting with
involuntary judicial separation ceases each other, without the benefit of marriage but are
Voluntary the parties can always file a joint motion for capacitated to marry each other.
the revival of the previous property regime
2 Union under a void marriage; Capacitated to marry but
Can the revived property regime be in turn dissolved again under a void marriage. Void marriages other than void
voluntarily or involuntarily? because of incapacity to marry. (Age, sex, legal
impediment)
If the judicial separation was decreed involuntarily and
was revived may be dissolved again involuntarily if there 3 Void for absence of essential and formal requisites (except
is another ground lack of capacity to marry due to age, sex, legal
impediment)
If the judicial separation was decreed involuntarily and
was revived may be dissolved again voluntarily
4 Void for psychological incapacity
If the judicial separation was decreed voluntarily and was
revived may be dissolved again involuntarily
5 Void under Art 53 -- marriage dissolved under Art 40 or
If the judicial separation was decreed voluntarily was
annulled under Art 45 but one of the parties failed to
revived may NOT be dissolved again voluntarily comply with the requirement of liquidation, partition and
delivery -- subsequent marriage is void
Note: Voluntary can only be availed of once.
Rights and Obligations of Spouses after their Property 6 Void under Art 44 where a spouse obtained a judicial
Regime Is Judicially Dissolved by Judicial Separation declaration of presumptive death of his former spouse.

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Both spouses in the subsequent marriage acted in bad Do not be misled by the case of Carino v. Carino, where the
faith - therefore their marriage is void Supreme Court committed a very patent mistake

Structure of Property Relations of Article 147 (Co-


Carino v. Carino
ownership):
Involves a policeman named Juanito. His first wife was Susan
1 Wages and salaries earned during the cohabitation - co Igdao and the second wife is Susan Yi. Without obtaining a
owned by both even if earned only by one of them. judicial declaration of nullity of marriage of his previous
marriage, he contracted a second marriage. Juanito died. The
2 Properties acquired during the cohabitation by either tw o wives scrambled over a piece of Juanitos estate.
spouses using his or her exclusive money - exclusive Claiming that everything should go to her, the second w ife
separate property (there must be proof that the money filed an action in court for the collection of a sum of money. In
used exclusive belongs to the spouse who purchases the support of his position, the second wife assailed the validity of
property) the first marriage for lack of marriage license which was duly
established.
3 Properties acquired by both through their effort or industry
Issue: Who gets to own the estate left by Juanito?
-- co ownership
The Supreme Court ruled that the first marriage is void for
4 If only one of the parties is acting in good faith, the share lack of marriage license but it does not mean to say that the
of the party in bad faith on the co-ownership is forfeited: second marriage is valid just because the first marriage is
- Order of forfeiture is different from the rule in Article void, because under Art 40, without the judicial declaration of
43: a) common children or descendants then b) nullity of marriage, the subsequent shall likewise be void for
party's respective descendants being bigamous. Susan Yi therefore cannot claim to be the
legal wife.
5 Income and fruits of the separate exclusive properties --
exclusive Since the second marriage is void for being bigamous, the
property regime should be governed by Art 148 (co-
Note: Before the partition of the properties owned in common, ownership). Under 148, only the properties which are acquired
neither of the parties may dispose nor encumber any property by the parties through their actual joint contribution. In this
case, the property left by Juanito consists of his salary,
owned in common to a third party. BUT either of the spouse
acquired by Juanito alone. Susan Yi therefore got nothing.
encumber his or her share to the other co-owner.
The Supreme Court made a mistake because the marriage
Article 148: between Juanito and Susan Yi is exactly the marriage
contemplated under Article 40 because the subsequent
1 Union between a man and a woman, cohabiting as marriage was entered into without the benefit of the judicial
husband and wife but are incapacitated to marry each declaration of nullity of the first marriage. Hence, the property
other regime should have been liquidated according to the rules of
either Art 102 or 129 pursuant to Art 43.
2 Married but marriage is void because they are not
capacitated to marry each other: Structure of Property Relations under Article 148:
a Void marriage by reason of Art 4 -- essential requisite 1 Wages and salaries are exclusive to the party who earned
on legal capacity (same sex, below 18) them
b Void marriage under Art 37 incestuous marriage
c Void marriage due to public policy Art 38 2 Properties acquired using exclusive money are exclusive
d Void marriage under Art 35 par4 bigamous marriage
(first marriage valid, subsequent marriage void and 3 Only properties acquired through actual joint contribution
bigamous) in money, property and industry can form part of the co-
ownership
Note: Article 40 - void marriage but falls under ACP or CPG
4 It is indispensable that the party should show proof of
actual contribution
Valdez v. RTC and Dino v. Dino

Property regime of void marriages shall be governed by Art 5 If the party who acted in bad faith is validly married -
147 and 148 except when it is void by reason of Art 40. salaries and wages during the cohabitation belong to the
ACP or CPG of the valid marriage
The Supreme Court ruled that when the marriage is declared - Any property acquired during cohabitation - belongs
void, the property regime existing in the marriage is either that to the ACP or CPG existing in the valid marriage
under 147 or 148 and so such regime shall be liquidated in - If the party who acted in bad faith is not married -
accordance with the rules on co-ownership. The only share in the properties is forfeited
exception is when the marriage is declared void by reason of
Distinction: Art 43 from Art 147 and 148:

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1 Art 43, what is forfeited is the share of the party in bad Properties Co-ownership Co-ownership
faith in the net profits. In 148, the entire share is forfeited acquired by both without need to but there must
through their prove actual be proof of
2 In 43, order of forfeiture is different (common children joint effort or participation actual
only) In 147 and 148 (common children and descendants) industry participation in
the acquisition
Spouse acted in Share in the net If married
3 In 43, second in line is the descendants of the guilty
bad faith profits is salaries and
spouse, in 147 and 148 party's respective descendants
forfeited wages during
the cohabitation
Structure of Property Relations: belong to the
Article 147 Article 148 ACP or CPG of
Wages and Co-owned even Exclusive the valid
Salaries if earned by one marriage
of them only
Properties Exclusive but Exclusive but If unmarried
acquired using needs proof that does not need rule on forfeiture
exclusive money the money used proof Income and Exclusive Exclusive
exclusively fruits of the
belongs to the separate
spouse who exclusive
purchases the properties
property

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