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family home. elements, constitution, beneficiaries, guidelines for institution.

Under the Family Code, a family home is deemed constituted on a house and lot from the time it is
occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as
required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as
contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest
before extending credit to the spouses or head of the family who owns the home.

Article 155 of the Family Code also provides as follows:

Art. 155. The family home shall be exempt from execution, forced sale or attachment except:

(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have
rendered service or furnished material for the construction of the building.

Article 162 simply means that all existing family residences at the time of the effectivity of the Family
Code, are considered family homes and are prospectively entitled to the benefits accorded to a family
home under the Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have a
retroactive effect.

Is the family home of petitioner exempt from execution of the money judgment aforecited? No. The
debt or liability which was the basis of the judgment arose or was incurred at the time of the vehicular
accident on March 16, 1976 and the money judgment arising therefrom was rendered by the appellate
court on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case
does not fall under the exemptions from execution provided in the Family Code.

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of the family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate, who are living in the family home and who depend upon the head of the
family for lead support.

This enumeration may include the in-laws where the family home is constituted jointly by the husband
and wife.[11] But the law definitely excludes maids and overseers. They are not the beneficiaries
contemplated by the Code.

Under the Family Code, a family home is deemed constituted on a house and lot from the time it is
occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as
required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as
contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest
before extending credit to the spouses or head of the family who owns the home.



1. Whether the marriage between David and Leticia has been dissolved

2. Whether the filing of the judicial separation of property is proper


1. No. the trial court erred in recognizing the divorce decree which severed the bond of marriage
between the parties. Under Section 24 of Rule 132, the record of public documents of a sovereign
authority or tribunal may be proved by:

(1) an official publication thereof or

(2) a copy attested by the officer having the legal custody thereof. Such publication must be
authenticated by a seal of a consular official. Section 25 of the same Rule states that whenever a copy of
a document or record is attested for the purpose of evidence, the attestation must state that the copy is
a correct copy of the original. The attestation must be under the official seal of the attesting officer.
Based on the records, only the divorce decree was presented in evidence. The required certificates to
prove its authenticity, as well as the pertinent California law on divorce were not presented. Absent a
valid recognition of the divorce decree, it follows that the parties are still legally married in the
Philippines. The trial court thus erred in proceeding directly to liquidation.


Yes. Art 135 of the Family Code provides that: Art. 135. Any of the following shall be considered
sufficient cause for judicial separation of property: xxxx (6) That at the time of the petition, the spouses
have been separated in fact for at least one year and reconciliation is highly improbable. Separation in
fact for one year as a ground to grant a judicial separation of property was not tackled in the trial court

s de isio e ause, the trial ourt erro eously treated the petitio as

liquidation of the absolute community of properties. The records of this case are replete with evidence
that Leticia and David had indeed separated for more than a year and that reconciliation is highly
First, while actual abandonment had not been proven, it is undisputed that the spouses had been living
separately since 2003 when David decided to go back to the Philippines to set up his own business.
Second, Leticia heard from her friends that David has been cohabiting with Estrellita Martinez, who
represented herself as Estrellita Noveras. Editha Apolonio, who worked in the hospital where David was
once confined, testified that she saw the name of Estrellita listed as the wife of David in the Consent for
Operation form.
Third and more significantly, they had filed for divorce and it was granted by the California court in June
2005. Having established that Leticia and David had actually separated for at least one year, the petition
for judicial separation of absolute community of property should be granted.


Recognition of foreign judgment declaring nullity of marriage A recognition of a foreign judgment is

not an action to nullify a marriage. It is an action for Philippine courts to recognize the effectivity of a
foreign judgment, which presupposes a case which was already tried and decided under foreign law.
Article 26 of the Family Code further confers jurisdiction on Philippine courts to extend the effect of a
foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the
dissolution of the marriage. The second paragraph of Article 26 of the Family Code provides that
[w]here a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law.

The marriage between the late Sen. Tamano and Zorayda was celebrated in 1958, solemnized under civil
and Muslim rites. The only law in force governing marriage relationships between Muslims and non-
Muslims alike was the Civil Code of 1950, under the provisions of which only one marriage can exist at
any given time.

Under the marriage provisions of the Civil Code, divorce is not recognized except during the effectivity
of Republic Act No. 394 which was not availed of during its effectivity.

As far as Estrellita is concerned, Sen. Tamano s prior marriage to Zorayda has been severed by way of
divorce under PD 1083, the law that codified Muslim personal laws. However, PD 1083 cannot benefit
Firstly, Article 13(1) thereof provides that the law applies to marriage and divorce wherein both parties
are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance
with Muslim law or this Code in any part of the Philippines. But Article 13 of PD 1083 does not provide
for a situation where the parties were married both in civil and Muslim rites.


Held: Under Article 2 of the Family Code, consent as an essential requisite of marriage. Article 4 of the
same Code provides that the absence of any essential requisite shall render a marriage void ab initio.

Consent was not lacking between the parties. In fact, there was real consent because it was not vitiated
or rendered defective by any vice of consent. Their consent was also conscious and intelligent as they
understood the nature and the beneficial and inconvenient consequences of their marriage, as nothing
impaired their ability to do so. That their consent was freely given is best evidenced by their conscious
purpose of acquiring American citizenship through marriage. Such plainly demonstrates that they
willingly and deliberately contracted the marriage. There was a clear intention to enter into a real and
valid marriage so as to fully comply with the requirements of an application for citizenship. There was a
full and complete understanding of the legal tie that would be created between them, since it was that
precise legal tie which was necessary to accomplish their goal.

The CA characterized their marriage as one by way of jest. A marriage in jest is a pretended marriage,
legal in form but entered into as a joke, with no real intention of entering into the actual marriage
status, and with a clear understanding that the parties would not be bound. The ceremony is not
followed by any conduct indicating a purpose to enter into such a relation. It is a pretended marriage
not intended to be real and with no intention to create any legal ties whatsoever, hence, the absence of
any genuine consent. Marriages in jest are void ab initio, not for vitiated, defective, or unintelligent
consent, but for a complete absence of consent. There is no genuine consent because the parties have
absolutely no intention of being bound in any way or for any purpose.

The marriage is not at all analogous to a marriage in jest. They had an undeniable intention to be bound
in order to create a very bond necessary to allow the respondent to acquire American citizenship. Only a
genuine consent to be married would allow them to further their objective, considering that only a valid
marriage can properly support an application for citizenship. There was, thus, an apparent intention to
enter into the actual marriage status and to create a legal tie, albeit for a limited purpose. Genuine
consent was, therefore, clearly present.


It is without dispute that the family home, from the time of its constitution and so long as any of its
beneficiaries actually resides therein, is generally exempt from execution, forced sale or attachment.
However, this right can be waived or be barred by laches by the failure to set up and prove the status of
the property as a family home at the time of the levy or a reasonable time thereafter.

The settled rule is that the right to exemption or forced sale under Article 153 of the Family Code is a
personal privilege granted to the judgment debtor and as such, it must be claimed not by the sheriff, but
by the debtor himself before the sale of the property at public auction. It is not sufficient that the
person claiming exemption merely alleges that such property is a family home. This claim for exemption
must be set up and proved to the Sheriff.

For all intents and purposes, the petitioners negligence or omission to assert their right within a
reasonable time gives rise to the presumption that they have abandoned, waived or declined to assert
Since the exemption under Article 153 of the Family Code is a personal right, it is incumbent upon the
petitioners to invoke and prove the same within the prescribed period and it is not the sheriffs duty to
presume or raise the status of the subject property as a family home. (Spouses Araceli Oliva-De Mesa vs.
Spouses Claudio F. Acero, Jr., G.R. No. 185064, 16 January 2012)


For the family home to be exempt from execution, distinction must be made as to what law applies
based on when it was constituted and what requirements must be complied with by the judgment
debtor or his successors claiming such privilege. Hence, two sets of rules are applicable.If the family
home was constructed before the effectivity of the Family Code or before August 3, 1988, then it must
have been constituted either judicially or extra-judicially as provided under Articles 225, 229-231and 233
of the Civil Code.

Judicial constitution of the family home requires the filing of a verified petition before the courts and
the registration of the courts order with the Registry of Deeds of the area where the property is
Meanwhile, extrajudicial constitution is governed by Articles 240 to242 of the Civil Code and involves
the execution of a public instrument which must also be registered with the Registry of Property. Failure
to comply with either one of these two modes of constitution will bar a judgment debtor from availing
of the privilege. On the other hand, for family homes constructed after the effectivity of the Family Code
on August 3, 1988, there is no need to constitute extrajudicially or judicially, and the exemption is
effective from the time it was constituted and lasts as long as any of its beneficiaries under Art.154
actually resides therein.
Moreover, the family home should belong to the absolute community or conjugal partnership, or if
exclusively by one spouse, its constitution must have been with consent of the other, and its value must
not exceed certain amounts depending upon the area where it is located. Further, the debts incurred for
which the exemption does not apply as provided under Art. 155 for which the family home is made
answerable must have been incurred after August 3, 1988.And in both cases, whether under the Civil
Code or the Family Code, it is not sufficient that the person claiming exemption merely alleges that such
property is a family home. This claim for exemption must be set up and proved. In the present case,
since Ramos, et. al. claim that the family home was constituted prior to August 3, 1988, or as early as
1944, they must comply with the procedure mandated by the Civil Code.

There being absolutely no proof that the Pandacan property was judicially or extrajudicially constituted
as the Ramos family home, the laws protective mantle cannot be availed of by Ramos, et. al.

Parenthetically, the records show that the sheriff exhausted all means to execute the judgment but
failed because Ramos bank accounts were already closed while other properties in his or the companys
name had already been transferred, and the only property left was the Pandacan property.



Whether aprima facie showing is necessary before a court can issue a DNA testing order


Yes, but it is not yet time to discuss the lack of a prima facie case vis--vis the motion for DNA testing
since no evidence has, as yet, been presented by petitioner.


Issue: Whether or not DNA analysis can still be done even if the person is whose DNA is the subject is
Held: Yes.

The court held that The death of Rogelio does not ipso facto negate the application of DNA analysis so
long as there exist suitable biological samples of his DNA. The New Rules on DNA Evidence permits the
manner of DNA testing by using biological samples--organic material originating from the person's body,
for example, blood, saliva, other body fluids, tissues, hair, bones, even inorganic materials- that is
susceptible to DNA testing.

In case proof of filiation or paternity would be unlikely to adequately found or would be hard to get,
DNA testing, which examines genetic codes found from body cells of the illegitimate child and any
physical remains of the long dead parent could be resorted to.


ISSUE: WON petitioner who has remarried can singly adopt.


Petition was denied. The time the petitions were filed, petitioner had already remarried. Husband and
wife shall jointly adopt except in 3 instances which was not present in the case at bar. In case spouses
jointly adopts, they shall jointly exercised parental authority. The use of the word shall signifies that
joint adoption of husband and wife is mandatory. This is in consonance with the concept of joint
parental authority since the child to be adopted is elevated to the level of a legitimate child, it is but
natural to require spouses to adopt jointly. The affidavit of consent given by Olario will not suffice since
there are certain requirements that he must comply as an American Citizen. He must meet the
qualifications set forth in Sec7 of RA8552. The requirements on residency and certification of the aliens
qualification to adopt cannot likewise be waived pursuant to Sec 7. Parental authority is merely just one
of the effects of legal adoption. It includes caring and rearing the children for civic consciousness and
efficiency and development of their moral mental and physical character and well-being.

Joint adoption by husband and wife is mandatory

Please take note that Section 7 of RA 8552 provides that a husband and wife shall jointly adopt. This is a
mandatory requirement with the following exceptions:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the
other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other,
joint parental authority shall be exercised by the spouses.

The mandatory requirement is in consonance with the concept of joint parental authority over the child,
which is the ideal situation. 7 As the child to be adopted is elevated to the level of a legitimate child, it is
but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.


Having been born outside a valid marriage, the minor is deemed an illegitimate child of petitioner and
Respondent Loreta. Article 176 of the Family Code of the Philippines[12] explicitly provides that
illegitimate children shall use the surname and shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this Code. This is the rule regardless of whether the
father admits paternity.

it has been established that petitioner and Respondent Loreta were never married. Hence, that portion
of the CA Decision allowing the child to choose which parent to live with is deleted, but without
disregarding the obligation of petitioner to support the child.


No. Section 47(b) of Rule 39 of the Rules of Court pertains as bar by prior judgment or estoppels by
verdict, which is the effect of a judgment as a bar to the prosecution of the second action upon the
same claim, demand or cause of action. In Section 47(c) of the same rule, it pertains to res judicata in its
concept as conclusiveness of judgment or the rule of auter action pendant which ordains that issues
actually and directly resolved in a former suit cannot again be raised in any future case between the
same parties involving a different cause of action. Therefore, having expressly and impliedly concealed
the validity of their marriage celebration, petitioner is now deemed to have waived any defects therein.
The Court finds then that the present action for declaration of nullity of marriage on the ground of lack
of marriage license is barred. The petition is denied for lack of merit.


An independent civil action based on fraud initiated by the defrauded party does not raise a prejudicial
question to stop the proceedings in a pending criminal prosecution of the defendant for estafa through
falsification. This is because the result of the independent civil action is irrelevant to the issue of guilt or
innocence of the accused.
In the case at bar, we find no prejudicial question that would justify the suspension of the proceedings in
the criminal case (the Cavite criminal case). The issue in Civil Case No. SCA 1759 (the Pasig civil case) for
Injunctive Relief is whether or not respondent (Consing) merely acted as an agent of his mother, Cecilia
de la Cruz; while in Civil Case No. 99-95381 (the Manila civil case), for Damages and Attachment, the
question is whether respondent and his mother are liable to pay damages and to return the amount
paid by PBI for the purchase of the disputed lot. Even if respondent is declared merely an agent of his
mother in the transaction involving the sale of the questioned lot, he cannot be adjudged free from
criminal liability. An agent or any person may be held liable for conspiring to falsify public documents.
Hence, the determination of the issue involved in Civil Case No. SCA 1759 for Injunctive Relief is
irrelevant to the guilt or innocence of the respondent in the criminal case for estafa through falsification
of public document.

go-bangayan vs bangayan

ISSUE: Whether or not the marriage between Sally and Benjamin is bigamous.

HELD: No. The elements of bigamy are:

1. That the offender has been legally married.

2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent
spouse could not yet be presumed dead according to the Civil Code.

3. That he contracts a second or subsequent marriage.

4. That the second or subsequent marriage has all the essential requisites for validity.

In this case, the fourth element is not present. The marriage license presented by Sally was not
authentic as in fact, no marriage license was ever issued to both parties in view of the alleged marriage.
The marriage between them was merely in jest and never complied with the essential requisites of
marriage. Hence, there is no bigamous marriage to speak of.


The Local Civil registrars certification enjoyed probative value as her duty was to maintain records of
data relative to the issuance of a marriage license. There is a presumption of regularity of official acts in
favor of the local civil registrar. Gloria was not able to overcome this presumption hence it stands to
favor Abbas.

The fact that Abbas did sign the marriage contract does not make it conclusive that there was in fact a
valid marriage license issued to him nor does it cure the fact that no marriage license was issued to
Abbas. Article 4 of the Family Code is clear when it says, The absence of any of the essential or formal
requisites shall render the marriage void ab initio. Article 35(3) of the Family Code also provides that a
marriage solemnized without a license is void from the beginning.


The solemnization of a marriage without prior license is a clear violation of the law and invalidates a
marriage. Furthermore, the falsity of the allegation in the sworn affidavit relating to the period of Jose
and Felisas cohabitation, which would have qualified their marriage as an exception to the requirement
for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that the law
precisely required to be deposed and attested to by the parties under oath. Hence, Jose and Felisas
marriage is void ab initio. The court also ruled that an action for nullity of marriage is imprescriptible.
The right to impugn marriage does not prescribe and may be raised any time.


Respondent/heirs have NO legal standing to assail the validity of the second marriage after the death of
their father; because the rule on AM 02-11-10-SC shall govern the said petition, under the Family Code
of the Philippines. Particularly Sec 2, par. (a) Provides that a petition for Declaration of Absolute Nullity
of a Void Marriage may be filed solely by the husband or the wife.

Here the court resolved that; in Nial v. Bayadog case the heirs were allowed to file a petition for the
declaration of nullity of their fathers second marriage even after their fathers death because the
impugned marriage there was solemnized prior to the affectivity of the Family Code. Unlike in this case
Enrico v Heirs of Medinaceli where same holding cannot be applied because the marriage here was
celebrated in 2004 where the Family Code is already effective and under family code is embodied the
rule on AM 02-11-10-SC where this rule shall govern petitions for the declaration of absolute nullity of
void marriages and annulment of voidable marriages.

Nonetheless, as the heirs major concern here, the court supplied; that the heirs have still remedy to
protect their successional rights not in a proceeding for declaration of nullity, but upon the death of a
spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular


ISSUE: Whether Morigo must have filed declaration for the nullity of his marriage with Barrete before
his second marriage in order to be free from the bigamy case.

Morigos marriage with Barrete is void ab initio considering that there was no actual marriage ceremony
performed between them by a solemnizing officer instead they just merely signed a marriage contract.
The petitioner does not need to file declaration of the nullity of his marriage when he contracted his
second marriage with Lumbago. Hence, he did not commit bigamy and is acquitted in the case filed.


The elements of bigamy are as follows:

1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent
spouse could not yet be presumed dead according to the Civil Code;

3. That he contracts a second or subsequent marriage;

4. That the second or subsequent marriage has all the essential requisites for validity

All the elements are present when Mercado married Tan. When he married Tan, his first marriage was
still subsisting and was not declared void. In fact, Mercado only filed an action to declare his first
marriage void after Tan filed the bigamy case. By then, the crime of bigamy had already been

Under Article 40 of the Family Code, a judicial declaration of nullity of a void previous marriage must be
obtained before a person can marry for a subsequent time. Absent that declaration a person who
marries a second time shall be guilty of bigamy.


The Supreme Court also notes that even if a party has reason to believe that his first marriage is void, he
cannot simply contract a second marriage without having such first marriage be judicially declared as
void. The parties to the marriage should not be permitted to judge for themselves its nullity, for the
same must be submitted to the judgment of competent courts and only when the nullity of the marriage
is so declared can it be held as void, and so long as there is no such declaration the presumption is that
the marriage exists.

The Supreme Court ruled that a strict application of C.A. No. 142, as amended, in this case only leads to
absurdity something which could not have been intended by the lawmakers.

Under C.A. No. 142, as amended, save for some instances, a person is not allowed to use a name or an
alias other than his registered name or that which he was baptized. Under the law, what makes the use
of alias illegal is the fact that it is being used habitually and publicly in business transactions without
prior authorization by competent authority. In this case, Ursua merely used the name Oscar Perez
once, it was not used in a business transaction, the use of the name was with the consent of Oscar Perez
himself, and even if he used a different name, in this instance, he was not even required to disclose his
identity at the Office of the Ombudsman. When he was requesting a copy of the complaint, he need not
disclose his identity because the complaint is a public record open to the public.

In short, the evils sought to be avoided by the C.A. No. 142 was not brought about when Ursua used a
name other than his name. A strict application of the law is not warranted. When Ursua used the name
of Oscar Perez, no fraud was committed; there was no crime committed punishable under C.A. No. 142.
The purpose of the law is to punish evils defined therein so when no such evil was produced by Ursuas
act, said law need not be applied.


ISSUE: Whether or not the entries pertaining to sex and first name in the birth certificate may be
changed on the ground of gender re-assignment.

HELD: No. The Supreme Court ruled that the change of such entries finds no support in existing

Issue on the change of first name

passed. This law provides that it should be the local civil registrar that has jurisdiction in petitions for the
change of first names and not the regular courts. Hence, the petition of Silverio insofar as his first name
is concerned is procedurally infirm. Even assuming that the petition filed properly, it cannot be granted
still because the ground upon which it is based(gender re-assignment) is not one of those provided for
by the law. Under the law, a change of name may only be grounded on the following:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used by the petitioner and he
has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

Unfortunately, Silverio did not allege any of the above, he merely alleged gender re-assignment as the

Issue on the change of sex

This entry cannot be changed either via a petition before the regular courts or a petition for the local
civil registry. Not with the courts because there is no law to support it. And not with the civil registry
because there is no clerical error involved. Silverio was born a male hence it was just but right that the
entry written in his birth certificate is that he is a male. The sex of a person is determined at birth,
visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex reassignment, the determination of a persons
sex made at the time of his or her birth, if not attended by error, is immutable.

But what about equity, as ruled by the RTC?

No. According to the SC, this amounts to judicial legislation. To grant the changes sought by Silverio will
substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the
union of a man with another man who has undergone sex reassignment (a male-to-female post-
operative transsexual). Second, there are various laws which apply particularly to women such as the
provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code
and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, among
others. These laws underscore the public policy in relation to women which could be substantially
affected if Silverios petition were to be granted.

But the SC emphasized: If the legislature intends to confer on a person who has undergone sex
reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to
enact legislation laying down the guidelines in turn governing the conferment of that privilege.


The Court considered the compassionate calls for recognition of the various degrees of intersex as
variations which should not be subject to outright denial. SC is of the view that where the person is
biologically or naturally intersex the determining factor in his gender classification would be what the
individual, having reached the age of majority, with good reason thinks of his/her sex. As in this case,
respondent, thinks of himself as a male and considering that his body produces high levels of male
hormones, there is preponderant biological support for considering him as being a male. Sexual
development in cases of intersex persons makes the gender classification at birth inconclusive. It is at
maturity that the gender of such persons, like respondent, is fixed.



WON the second paragraph of Art 26 of the FC extends to aliens the right to petition a court of this
jurisdiction fro the recognition of a foreign divorce decree.


The alien spouse cannot claim under the second paragraph of Art 26 of the Family Code because the
substantive right it establishes is in favour of the Filipino spouse. Only the Filipino spouse can invoke the
second par of Art 26 of the Family Code.

The unavailability of the second paragraph of Art 26 of the Family Code to aliens does not necessarily
strip the petitioner of legal interest to petition the RTC for the recognition of his foreign divorce decree.
The petitioner, being a naturalized Canadian citizen now, is clothed by the presumptive evidence of the
authenticity of foreign divorce decree with conformity to aliens national law.


Moreover, a close reading of the entire Article 42 reveals that the termination of the subsequent
marriage by reappearance is subject to several conditions:

(1) the non-existence of a judgment annulling the previous marriage or declaring it void ab initio;

(2) recording in the civil registry of the residence of the parties to the subsequent marriage of the sworn
statement of fact and circumstances of reappearance;

(3) due notice to the spouses of the subsequent marriage of the fact of reappearance; and

(4) the fact of reappearance must either be undisputed or judicially determined.

The existence of these conditions means that reappearance does not always immediately cause the
subsequent marriage's termination. Reappearance of the absent or presumptively dead spouse will
cause the termination of the subsequent marriage only when all the conditions enumerated in the
Family Code are present.

Hence, the subsequent marriage may still subsist despite the absent or presumptively dead spouse's
reappearance (1) if the first marriage has already been annulled or has been declared a nullity; (2) if the
sworn statement of the reappearance is not recorded in the civil registry of the subsequent spouses'
residence; (3) if there is no notice to the subsequent spouses; or (4) if the fact of reappearance is
disputed in the proper courts of law, and no judgment is yet rendered confirming, such fact of

A second marriage is bigamous while the first subsists. However, a bigamous subsequent marriage may
be considered valid when the following are present.

1)The prior spouse had been absent for four consecutive years;

2)The spouse present has a well-founded belief that the absent spouse was already dead;

3)There must be a summary proceeding for the declaration of presumptive death of the absent spouse;

4)There is a court declaration of presumptive death of the absent spouse.

A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of
presumptive death, lacks the requirement of a well-founded belief56 that the spouse is already dead.
The first marriage will not be considered as. validly terminated. Marriages contracted prior to the valid
termination of a subsisting marriage are generally considered bigamous and void.57 Only a subsequent
marriage contracted in good faith is protected by law.

Therefore, the party who contracted the subsequent marriage in bad faith is also not immune from an
action to declare his subsequent marriage void for being bigamous. The prohibition against marriage
during the subsistence of another marriage still applies.


There is an express prohibition against foreigners owning land in the Philippines.

Art. XII, Sec. 7 of the 1987 Constitution provides: Save in cases of hereditary succession, no private
lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to
acquire or hold lands of the public domain.

In the case at bar, the respondent willingly and knowingly bought the property despite a constitutional
prohibition. And to get away with that constitutional prohibition, he put the property under the name of
his Filipina wife. He tried to do indirectly what the fundamental law bars him to do directly.
With this, the Supreme Court ruled that respondent cannot seek reimbursement on the ground of
equity. It has been held that equity as a rule will follow the law and will not permit that to be done
indirectly which, because of public policy, cannot be done directly.


A fictitious marriage is one where there is no marriage ceremony as required by Article 3(3) of the
Family Code which requires [a] marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal declaration that they take each
other as husband and wife in the presence of not less than two witnesses of legal age. Although Article
3(3) is found under the formal requisites of marriage, a marriage lacking a marriage ceremony also
lacks the essential requisite of [c]onsent freely given in the presence of the solemnizing officer under
Article 2(2) of the Family Code. Athough it is stated in Article 4 of the Family Code that [t]he absence of
any of the essential or formal requisites shall render the marriage void ab initio, fictitious marriages
have sometimes been viewed by jurisprudence differently from void marriages. For instance, in Morigo
vs People (GR 145226, 2004), the Supreme Court said that [t]he mere private act of signing a marriage
contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity.
Likewise in the recent case of Republic vs Olaybar (G.R. No. 145226, February 06, 2004), the Supreme
Court stated that for a fictitious marriage, there [is] no marriage to speak of.


whether or not the cancellation of entries in the marriage contract which$ in effect nullies the marriage
ma be undertaken in a Rule 108 proceeding"


The Olaybar case concerned a fictitious but registered marriage what was sought to be corrected
were the entries in the marriage certificate stating that respondent Merlinda Olaybar as wife was
married to Ye Son Sune on June 24, 2002 before Judge Mamerto Califlores at the Office of the Municipal
Trial Court in Cities (MTCC), Palace of Justice in Cebu City when in truth she did not appear before the
judge. When Merlinda discovered the existence of this marriage certificate when she tried to obtain a
CENOMAR (Certificate of No Marriage) with the NSO, she promptly filed a petition under Rule 108 to
cancel entries referring to her as wife before the RTC of Cebu City. She impleaded the Local Civil
Registrar of Cebu City, as well as her alleged husband, as parties to the case.

Brigido and Rita tied the knot on January 6, 1977. Since at the time of exchange of martial vows, the
operative law was the NCC and since they did not agree on a marriage settlement, the property relations
between them is the system of relative community or the conjugal partnership of gains. Under this
property relation, the husband and wife place in a common fund the fruits of their separate property
and the income from their work and industry. The husband and wife also own in common all the
property of the conjugal partnership of gains.


Family Code of the Philippines, enumerates six causes for having a marriage be declared void from the
beginning, to wit:

(1) when a marriage is contracted by any party below eighteen (18) years of age even with the consent
of parents or guardians;

(2) when a marriage is solemnized by any person not legally authorized to perform marriages, unless
such marriage was contracted with either or both parties believing in good faith that the solemnizing
officer had the legal authority to do so;

(3) when a marriage is solemnized without license, except those covered under Title I, Chapter 2 of the
Family Code;

(4) when a marriage is bigamous or polygamous and not falling under Article 41;

(5) when a marriage is contracted through mistake of one contracting party as to the identity of the
other; and

(6) a subsequent marriage which is void under Article 53.

A marriage between the following persons may also be declared null and void, whether their
relationship be legitimate or illegitimate:

(1) between ascendants and descendants of any degree; and

(2) between brothers and sisters, whether of the full or half blood (Article 37, Family Code of the

Apart from the foregoing, a marriage may be declared absolutely null and void for reasons of public
policy when it is contracted between the following persons:

(1) collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) step-parents and step-children;

(3) parents-in-law and children-in-law;

(4) adopting parent and the adopted child;

(5) surviving spouse of the adopting parent and the adopted child;

(6) surviving spouse of the adopted child and the adopter;

(7) an adopted child and a legitimate child of the adopter;

(8) adopted children of the same adopter; and

(9) parties where one, with the intention to marry the other, killed that other persons spouse, or his or
her own spouse (Article 38, Family Code of the Philippines).


(1) either party was 18 years of age or over but below twenty-one, and the marriage was solemnized
without the consent of his parents, guardian or person having substitute parental authority over the
party, in that order, unless after attaining the age of twenty-one, he/she freely cohabited with the other

(2) either party was of unsound mind, unless such party after coming to reason, freely cohabited with
the other as husband and wife;

(3) consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of
the facts constituting the fraud, freely cohabited with the other;

(4) the consent of either party was obtained by force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter freely cohabited with the other;

(5) either party was physically incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or

(6) either party was afflicted with a sexually-transmissible disease found to be serious and appears to be
incurable (Article 45, Id.)


1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common
child, or a child of the petitioner.
2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation.

3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance in such corruption or inducement.

4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned.

5. Drug addiction or habitual alcoholism of the respondent.

6. Lesbianism or homosexuality of the respondent.

7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or


8. Sexual infidelity or perversion.

9. Attempt by the respondent against the life of the petitioner.

10. Abandonment of petitioner by respondent without justifiable cause for more than one year.


Art. 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he
is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means
of the family.

Only minors may be adopted, except in the cases when the adoption of a person of majority age is
allowed in this Title.

In addition, the adopter must be at least sixteen years older than the person to be adopted, unless the
adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person
to be adopted. (27a, E. O. 91 and PD 603)

Art. 184. The following persons may not adopt:

(1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the
termination of their guardianship relation;

(2) Any person who has been convicted of a crime involving moral turpitude;

(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;

(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or

(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by
consanguinity of the latter.

Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules
on inter-country adoptions as may be provided by law.

Art. 185. Husband and wife must jointly adopt, except in the following cases:

(1) When one spouse seeks to adopt his own illegitimate child; or

(2) When one spouse seeks to adopt the legitimate child of the other.

Art. 187. The following may not be adopted:

(1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or,
prior to the adoption, said person has been consistently considered and treated by the adopter as his or
her own child during minority.

(2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and

(3) A person who has already been adopted unless such adoption has been previously revoked or
rescinded. (30a, E. O. 91 and PD 603)

tal authority of the parents by nature over the adopted shall terminate and be vested in the adopters,
except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over
the adopted shall be exercised jointly by both spouses; and

(3) The adopted shall remain an intestate heir of his parents and other blood relatives.


Art. 105. Subject to the provisions of the succeeding articles, the following are obliged to support each
other to the whole extent set forth in the preceding article:

(1) The spouses;

(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and

(5) Legitimate brothers and sisters, whether of full or half-blood

Chapter 2. The Family Home

Art. 152. The family home, constituted jointly by the husband and the wife or by an
unmarried head of a family, is the dwelling house where they and their family reside, and
the land on which it is situated. (223a)

Art. 153. The family home is deemed constituted on a house and lot from the time it is
occupied as a family residence. From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues to be such and is exempt
from execution, forced sale or attachment except as hereinafter provided and to the extent
of the value allowed by law.(223a)
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of a family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship
be legitimate or illegitimate, who are living in the family home and who depend upon the
head of the family for legal support.