Professional Documents
Culture Documents
EXAMINATION QUESTIONS
IN
CIVIL LAW
ARRANGED BY TOPIC
(1975 – 2004)
Page 1 of 391
This work is not intended for sale or commerce. This work is
for all those who desire to have a deeper understanding of the issues
intended for law students from the provinces who, very often, are
schools and students. Share to others this work and you will be richly
We would like to seek the indulgence of the reader for some Bar
Questions which are improperly classified under a topic and for some
topics which are improperly or ignorantly phrased, for the authors are just
Bar Reviewees who have prepared this work while reviewing for the Bar
Exams under time constraints and within their limited knowledge of the
The Authors
Page 2 of 391
Table of Contents
Persons ..........................................................................................................11
Conflict of laws ............................................................................................25
Adoption .........................................................................................................52
Family Code ..................................................................................................58
Succession ..................................................................................................112
Donations ...................................................................................................157
Modes of Acquiring Ownership ...........................................................167
Property .......................................................................................................169
LTD .................................................................................................................211
Prescription .................................................................................................245
Contracts ....................................................................................................250
Estoppel .......................................................................................................263
Natural obligations ...................................................................................265
Obligations .................................................................................................265
Trusts ............................................................................................................297
Sales .............................................................................................................301
Lease .............................................................................................................324
Common carriers ......................................................................................335
Agency ..........................................................................................................339
Partnership ..................................................................................................346
Commodatum & Mutuum .......................................................................352
Deposit ..........................................................................................................356
Surety ............................................................................................................358
Antichresis
Mortgage
Pledge ...........................................................................................................363
Quasi-contracts .........................................................................................367
Torts and damages ...................................................................................372
Aleatory contracts; gambling ...............................................................390
Compromises and arbitration ...............................................................390
Page 3 of 391
Detailed Table of Contents
Persons ..........................................................................................................11
civil register...................................................................................................12
conclusive presumption of knowledge of the law ..........................................13
decisions of inferior courts ............................................................................14
duty of judges to render judgment ................................................................14
effect of obiter and dissenting opinion; decisions of the SC..........................14
effectivity of laws...........................................................................................14
emancipation ................................................................................................15
equity ............................................................................................................16
human relations ............................................................................................16
ignorance of the law vs mistake of fact ........................................................17
independent civil action ................................................................................17
juridical capacity vs capacity to act ...............................................................18
natural persons .............................................................................................19
prejudicial question .......................................................................................19
presumption of simultaneous death ..............................................................20
prospectivity of laws; exceptions...................................................................22
restrictions on capacity to act........................................................................22
use of surnames ...........................................................................................23
waiver ...........................................................................................................23
Conflict of laws ............................................................................................25
Art. 15, 16 & 17 ............................................................................................ 25
cognovit; borrowing statute; characterization................................................32
effect of divorce granted to former Filipinos ..................................................32
effect of divorce secured abroad...................................................................33
forum non conveniens & lex loci contractus & long arm statute....................34
laws governing contracts ..............................................................................36
laws governing contracts of carriage ............................................................36
laws governing divorce .................................................................................37
laws governing marriages .............................................................................38
laws governing real and personal property ...................................................40
laws governing succession ...........................................................................40
laws governing wills ......................................................................................43
nationality theory...........................................................................................44
naturalization ................................................................................................45
operation of foreign laws upon resident ........................................................46
processual presumption................................................................................47
renvoi doctrine ..............................................................................................47
significant relationships theory......................................................................49
theory of effective nationality ........................................................................49
torts; prescriptive period ...............................................................................49
Adoption .........................................................................................................52
qualifications of adopter................................................................................52
successional rights of adopted child .............................................................55
who are considered as natural parents.........................................................56
Family Code ..................................................................................................58
Annulment
effects; requisites before remarriage .....................................................59
fraud ......................................................................................................60
grounds..................................................................................................62
judicial declaration .................................................................................62
Page 4 of 391
Legal Separation; prescription of actions...............................................63
proper party ...........................................................................................63
psychological incapacity ........................................................................64
art. 26 ...........................................................................................................64
declaration of nullity: annulment: legal separation: separation of property –
grounds.........................................................................................................66
divorce; void marriages.................................................................................67
donations by reason of marriage; effect of declaration of nullity ...................67
effect of divorce; void marriages ...................................................................68
emancipation ................................................................................................69
family ............................................................................................................69
family home ..................................................................................................70
legal separation ............................................................................................71
grounds..................................................................................................71
proper party ...........................................................................................72
nullity; annulment; legal separation; grounds................................................72
parental authority ..........................................................................................73
paternity and filiation.....................................................................................75
presumptive legitime.....................................................................................80
property regime of unions without marriage..................................................81
property relations ..........................................................................................83
charges..................................................................................................91
conjugal partnership pf gains.................................................................92
dissolution of partnership; custody of children .......................................93
donations between spouses ..................................................................94
marriage settlements .............................................................................94
separation of property............................................................................96
requisites of marriage ...................................................................................97
retroactive application; vested rights...........................................................103
rights and obligations of husband and wife.................................................103
special parental authority; liability of teachers.............................................105
support........................................................................................................105
void marriages ............................................................................................106
legal personality to seek declaration of nullity......................................109
property regime ...................................................................................110
psychological incpacity ........................................................................110
Succession
acceptance, repudiation, collation...............................................................112
amount of successional rights.....................................................................112
barrier between illegitimate and legitimate relatives ...................................112
capacity to inherit; conditional devise .........................................................113
collation ......................................................................................................114
disinheritance..............................................................................................115
donation of a spouse’s share ......................................................................120
incapacity....................................................................................................121
intestate heirs .............................................................................................121
intestate proceedings; jurisdiction...............................................................123
intestate succession ...................................................................................123
joint wills .....................................................................................................136
legal separation; effect................................................................................136
legitime .......................................................................................................136
order of succession and sharing; right of representation, institution, accretion
....................................................................................................................138
partition .......................................................................................................139
preterition....................................................................................................139
probate .......................................................................................................141
renunciation; compromise...........................................................................144
Page 5 of 391
representation.............................................................................................144
reserva troncal ............................................................................................145
right of representation.................................................................................148
testate succession ......................................................................................148
transmission of rights to succession ...........................................................149
when death takes place; pesumptive legitime.............................................150
wills.............................................................................................................151
codicil...................................................................................................151
formalities ............................................................................................151
revocation ............................................................................................154
testamentary intent ..............................................................................155
witnesses to holographic wills..............................................................156
Donations
Donation & Sales ownership of the thing donated ......................................157
Annulment...................................................................................................157
donations mortis causa...............................................................................160
donee’s civil personality..............................................................................161
effect of illegal and immoral conditions .......................................................161
kinds ...........................................................................................................162
mortis causa; formalities .............................................................................163
requisited for perfection ..............................................................................163
revocation ...................................................................................................164
valid acceptance .........................................................................................165
Modes of Acquiring Ownership ...........................................................167
Property
accession....................................................................................................169
chattel mortgage over immovables .............................................................173
co-ownership ..............................................................................................173
easements ..................................................................................................180
good faith/ bad faith ....................................................................................189
hidden treasure...........................................................................................196
immovable properties; chattel mortgage over immovables.........................198
nuisance .....................................................................................................199
possession vs occupation ...........................................................................201
possession; 559..........................................................................................201
possession; squatting .................................................................................204
real vs personal property ............................................................................205
rights of a property owner; limitations .........................................................207
usufruct .......................................................................................................207
LTD .................................................................................................................211
acquisition of lands; citizenship requirement ..............................................211
Act 3344 .....................................................................................................212
amendment of entries in a certificate of title ...............................................212
annotation of lis pendens............................................................................213
annotations; classification ...........................................................................213
foreshore lands ...........................................................................................214
homestead ..................................................................................................214
increase of area by accession ....................................................................217
indefeasibility of title....................................................................................217
IPV
adverse claims ......................................................................................217
buyer in good faith; laches.....................................................................218
collateral attack .....................................................................................218
constructive trust ...................................................................................219
effect of entry in day book; acquisitive prescription; laches ...................219
effect of laches ......................................................................................220
Page 6 of 391
foreclosure of registered lands; prescription..........................................220
forged deed as a root or title..................................................................221
forgery; innocent purchaser for value ....................................................223
fraud in the procurement of patent ........................................................224
free patents; jurisdiction of Director of Lands ........................................225
government lands..................................................................................225
innocent purchaser for value .................................................................226
lis pendens ............................................................................................227
mirror principle.......................................................................................227
notice of lis pendens; transferee pendente lite ......................................228
reconveyance ........................................................................................229
registration as the operative act of conveying the land..........................230
remedies; prescriptive period ................................................................230
remedies; reconveyance .......................................................................231
reopening of a decree of registration.....................................................232
sale of unregistered lands .....................................................................236
unregistered land...................................................................................236
use of fraud in aplication of title; prescriptive period for reconveyance .237
judicial confirmation of imperfect title ..........................................................238
judicial reconstitution of title ........................................................................239
ministerial duty of the Register of deeds to register ....................................240
procedure; consulta ....................................................................................241
reclamation of foreshore lands....................................................................241
redemption..................................................................................................242
scope of registration ...................................................................................242
torrens vs recording ....................................................................................243
writ of possession .......................................................................................243
Prescription .................................................................................................245
acquisitive; movable ...................................................................................246
just title .......................................................................................................246
laches .........................................................................................................247
real rights ....................................................................................................248
Contracts
annulment of contracts; capacity to sue......................................................250
annulment of contracts; prescriptive period ................................................250
consensual vs real contracts.......................................................................251
consent; invitation to bid .............................................................................251
consideration; validity .................................................................................252
form of contracts .........................................................................................252
inducing another to violate a contract .........................................................253
innominate contracts...................................................................................253
obligatory nature of contracts......................................................................254
perfection of contracts; obligations with a period ........................................255
privity of contract.........................................................................................255
reformation of instruments ..........................................................................256
rescission of contracts; capacity to sue ......................................................256
Statute of Frauds ........................................................................................257
stipulation pour atrui ...................................................................................259
void contracts; in pari delicto principle ........................................................260
void contracts; usurious interests................................................................260
void vs voidable contracts...........................................................................261
void/unenforceable contracts ......................................................................261
voidable contracts.......................................................................................261
Estoppel .......................................................................................................263
Natural obligations ...................................................................................265
Obligations
Page 7 of 391
alternative/ facultative obligations ...............................................................265
alternative/facultative obligations ................................................................265
civil vs natural oblig.....................................................................................266
conditional obligations ................................................................................267
exemption from liability due to fortuitous events; exceptions ......................270
extinguishment of a cause of action............................................................270
extinguishment
assignment of rights ............................................................................270
compensation ......................................................................................271
compensation vs payment............................................................272
compensation: payment: confusion: set-off ..................................273
condonation .........................................................................................273
dation...................................................................................................274
dation in payment vs assignment .................................................275
extraordinary inflation or deflation........................................................275
loss ......................................................................................................276
loss; impossible service................................................................277
novation ...............................................................................................277
payment...............................................................................................281
consignation, set-off .....................................................................283
application ....................................................................................284
consignation, when applicable......................................................284
fortuitous events .........................................................................................285
joint/ solidary liability ...................................................................................286
loss of the thing due....................................................................................290
loss of the thing due; force majeure............................................................290
nature and effect of obligations...................................................................291
obligation to deliver a determinate thing; effect of loss ...............................291
obligation to deliver a generic thing ............................................................292
obligation to give; obligation to do...............................................................293
obligations with a penal clause ...................................................................294
obligations with a period .............................................................................295
suspensive period dependent upon will of debtor................................297
Trusts ............................................................................................................297
Sales
Sales & Donation; ownership of the thing sold............................................301
Art. 1592 .....................................................................................................301
assignment of credit....................................................................................302
conditional sale vs absolute sale ................................................................302
contract of sale vs agency to sell ................................................................303
contract of sale vs contract to sell...............................................................303
contract to sell.............................................................................................303
contract to sell vs contract of sale...............................................................304
double sales................................................................................................304
effect of oral sale ........................................................................................306
equitable mortgage .....................................................................................307
Maceda law.................................................................................................310
option contract ............................................................................................312
option; earnest money; Art. 1592................................................................312
pacto de retro; when not .............................................................................313
perfected sale .............................................................................................314
Recto law ....................................................................................................315
redemption (conventional and legal)...........................................................317
redemption; legal; by co-owners..........................................................318
right of first refusal ......................................................................................319
right of repurchase......................................................................................320
tradition .......................................................................................................320
Page 8 of 391
transfer of ownership ..................................................................................321
vendor’s lien................................................................................................322
who bears risk of loss .................................................................................322
Lease .............................................................................................................324
Lease of urban lands ..................................................................................325
contract for a piece of work.........................................................................326
contract for a piece of work; liability of architects/contractors................326
contract of labor ..........................................................................................327
effect of death of lesee ...............................................................................327
ejectment ....................................................................................................327
extinguishment............................................................................................328
implied new lease .......................................................................................328
lease of rural lands .....................................................................................329
lease with a term.........................................................................................329
liability for hidden defects ...........................................................................330
option to buy ...............................................................................................331
reduction of rent..........................................................................................331
rights and obligations of leasee and lessor .................................................332
sublease .....................................................................................................332
sublease; delay in payment of rentals ...................................................333
Common carriers ......................................................................................335
Agency ..........................................................................................................339
agency vs sale ............................................................................................339
appointment of sub-agent ...........................................................................339
authority to sell does not include authority to collect...................................340
commission.................................................................................................340
coupled with an interest ..............................................................................340
general vs special agency ..........................................................................342
liability of an agent ......................................................................................342
to render an account .............................................................................343
powers of the agent ....................................................................................343
termination; death or principal: double sales ..............................................344
termination; effect of death of agent ...........................................................344
Partnership ..................................................................................................346
conveyance of a partner’s share dissolution ...............................................346
dissolution...................................................................................................346
effect of death of partner.............................................................................347
obligations of a partner ...............................................................................347
partner by estoppel .....................................................................................348
partner vs lender (debtor) ...........................................................................348
revocation of manager’s power; liability of an industrial partner..................349
who can form partnerships; spouses; corporations.....................................350
Commodatum & Mutuum .......................................................................352
Commodatum .............................................................................................352
Commodatum vs usufruct......................................................................352
Commodatum; liabilties of a bailee.......................................................353
Mutuum
vs commodatum ....................................................................................353
interests.................................................................................................353
Deposit ..........................................................................................................356
Surety ............................................................................................................358
recovery of deficiency .................................................................................358
Antichresis
vs pledge and mortgage .............................................................................359
Mortgage
Page 9 of 391
Chattel mortgage ........................................................................................360
chattel mortgage vs pledge.........................................................................360
effect of loss of thing mortgaged upon principal oblig .................................361
pactum commissorium................................................................................361
real & chattel; future loans ..........................................................................362
real estate mortgage vs sale with repurchase.............................................362
right of redemption vs equity of redemption ................................................363
Pledge ...........................................................................................................363
effect of loss of thing pledged upon principal obligation: immediate
demandability of principal oblig...................................................................364
vs mortgage; antichresis .............................................................................365
use of the thing pledged .............................................................................365
Quasi-contracts .........................................................................................367
Negotiorium gestio......................................................................................367
1474; reasonable value ..............................................................................370
solutio indebiti .............................................................................................370
Torts and damages ...................................................................................372
abuse of right ..............................................................................................373
acts contrary to morals ...............................................................................374
actual and moral damages .........................................................................374
breach of contract .......................................................................................375
collapse of structures..................................................................................375
common carriers .........................................................................................376
damages .....................................................................................................376
damages arising from death of unborn child ...............................................377
damages; moral damages & atty fees ........................................................378
death indemnity ..........................................................................................378
defense; due diligence in selection .............................................................379
filing of separate civil action; need for reservation ......................................379
human relations ..........................................................................................380
insurance; subrogation ...............................................................................382
loss of an unborn child ................................................................................382
product liability ............................................................................................383
quasi- delict.................................................................................................383
vicarious liability..........................................................................................384
defenses; fortuitous event...........................................................................385
liability of employer for damage caused by employees; defense of due diligence
....................................................................................................................385
motor vehicle mishaps; solidary liability of owner who was in the vehicle...386
primary liability vs subsidiary liability of employers .....................................387
vicarious liability..........................................................................................388
Aleatory contracts; gambling ...............................................................390
Compromises and arbitration ...............................................................390
Page 10 of 391
00; Civil law vs common law; trend and governance
1997 No. 1:
How would you compare the Civil Law system in its governance and trend with that of the
Common Law system?
Answer:
As regards "governance":
Governance in Civil Law is codal, statutory and written law. It is additionally derived from
case law. Common law is basically derived from case law.
As regards "trend":
Civil law is now tending to rely more and more on decisions of the courts explaining the
laws. Common law is now codifying laws more and more. So they are now merging towards similar
systems.
Additional Answers:
1. Common law refers to the traditional part of the law as distinct from legislation; it refers
to the universal part of law as distinct from particular local customs (Encyclopedia Americana, Vol.
7).
On the other hand, civil law is understood lo be that branch of law governing the relationship
of persons in respect of their personal and private interests as distinguished from both public and
international laws.
In common law countries, the traditional responsibility has for the most part been with the
judges; in civil law countries, the task is primarily reposed on the lawmakers. Contemporary
practices, however, so indicate a trend towards centralizing that function to professional groups that
may indeed, see the gradual assimilation in time of both systems. [Vitug, Civil. Law and
Jurisprudence, p. XX)
2. In Civil Law. the statutes theoretically take precedence over court decisions interpreting
them; while in Common Law, the court decisions resolving specific cases are regarded as law rather
than the statutes themselves which are, at the start, merely embodiments of case law. Civil Law is
code law or written law, while Common Law is case law. Civil Law adopts the deductive method -
from the general to the particular, while the Common Law uses the inductive approach - from the
particular to the general. Common Law relies on equity. Civil Law anchors itself on the letter of the
law. The civilists are for the judge-proof law even as the Common Law Is judge-made law. Civil Law
judges are merely supposed to apply laws and not interpret them.
00; Civil law; definition; sources
1977 No. I-a
What is civil law? What are the sources of the New Civil Code of the Philippines?
Answer
Civil Law is defined as the mass of precepts which determines and regulates those relations
of assistance, authority and obedience existing among members of a family as well as among
members of a society for the protection of private interests.
The sources of the Civil Code of the Philippines are:
(1) Civil Code of Spain of 1889;
(2) Codes and laws of other countries, such as Spain, the various states of the United
States, especially California and Louisiana, France, Argentina, Germany, Mexico, Switzerland,
England and Italy;
(3) Judicial decisions of the Supreme Courts of the Philippines, of various states of the
United States, of Spain, and of other countries;
(4) Philippine laws or statutes, such as the Code of Civil Procedure (Act No. 190), the
Rules of Court, the Marriage Law (Act No. 3613), and the Divorce Law (Act No. 2710);
(5) Works of jurists of various nations;
(6) Filipino customs and traditions; and
(7) The Code Commission itself.
00; Persons
Page 11 of 391
1988 No 1;
(c) As a rule, once the criminal action has been commenced, the civil action
for damages arising from the offense charged shall be suspended until the final
termination of the criminal action. What are the exceptions to said rule as provided
by the Civil Code?
Answer:
(c) The exceptions are as follows:
(1) Where the civil action is based on an obligation not arising from the act
or omission complained of as a felony, such as when the basis of the civil action is
culpa contractual, culpa aquiliana, etc. (Arts. 31, 2177, CC).
(2) Where the law grants to the injured party the right to institute a civil action
which is entirely separate and independent from the criminal action, such as when
the action is based on (a) interferences by public officers or employees or by private
individuals with civil rights and liberties; (b) defamation; (c) fraud; (d) physical
injuries; or (e) refusal or neglect of a city or municipal police officer to "render aid or
protection in case of danger to life or property (Arts. 32,33, 34, CC).
(3) Where the question to be resolved in the civil action is prejudicial to the
criminal action (Art. 36, CC).
Alternative Answers to: No. 1 (a) and (b)
(a) A prejudicial question is a question which arises in a civil suit, the
resolution of which is determinative of the guilt or innocence of the accused.
Its essential elements, as prescribed by Section 5 of Rule 111 are: (a) the
civil action involves an issue raised in the criminal action; and (b) the resolution of
such issue determines whether or not the criminal action may proceed.
Its effect upon a criminal case is to suspend the criminal case if one has
already been commenced.
(b) Considering that the acquittal is not based on reasonable doubt but on a
positive finding of innocence (he was not negligent) the civil action can no longer
prosper.
The civil liability arising from the act complained of as a felony is barred by
the finding of innocence. However, the civil action for damages based on an
obligation ex-contractu is not deemed barred because of article 31 of the Civil Code.
00; Persons; civil register
1975 No. VIII
An illegitimate child of a Chinese father and a Filipino mother was registered
in the Civil Registry as a Chinese. She filed a petition for the correction of the entry
to make her citizenship read 'Filipino" in view of the absence of marriage between
her parents. Will the petition prosper? Why?
Answer
Not the petition will not prosper. While ostensibly, the action seeks a mere
correction of an entry in the Civil Registry, it in effect requests the judicial declaration
of Philippine citizenship. The correction is not merely of a clerical error and therefore
cannot be made through a petition for the correction of an entry in the civil register.
In a line of decisions the Supreme Court has consistently refused to entertain
petitions of this nature. (China v. Republic, 27 SCRA 447)
00; Persons; civil register; correction of entries
Page 12 of 391
1987 No. 3:
Celso Lim would like to correct an allegedly wrong entry in the birth certificate
of one of his sons, Celso Jr., describing the latter as a Chinese national and not as a
Filipino. Among the evidence Celso Lim had are his own birth certificate describing
him as a Filipino, the birth certificate of his other children, all describing them as
Filipinos and a court decision describing his father (Celso, Jr.'s grandfather) as a
Filipino.
(a) What action must Celso Lim take to ensure the effective correction of
the allegedly wrong entry in his son's birth certificate?
(b) Who should be made parties to such action or proceeding?
Answer:
a, Celso must file a petition in an adversary proceeding to correct the
erroneous entry. In the case of Republic v. Valencia, (L-32181, March 5, 1986), it
was ruled that not only clerical errors can be the subject-matter of the petition, but
even the controversial entries can be corrected.
b. Under Rule 108 of the Rules of Court, he should notify the Civil Registrar
and all the persons affected or who have an interest in the subject matter of the
petition, including the Solicitor General.
00; Persons; civil registry
1981 No. 18
(c) True or false? -- The records of a person's birth, as kept by the Civil
Registrar, is a public record and may be inquired into by a person interested.
Answer
(c) False. According to the Child and Youth Welfare Code, the records of a
person's birth shall be kept strictly confidential and no information relating thereto
shall be issued except in certain cases enumerated in the law. (See Art. 7).
00; Persons; conclusive presumption of knowledge of the law
1985 No. 1
A) Although far from reality, everyone is conclusively presumed to know the
law pursuant to Article 3 of the New Civil Code which states that "ignorance of the
law excuses no one from compliance therewith."
Discuss the underlying philosophy behind said pro vision.
Answers:
A) 1. The philosophy of the law is founded upon public policy. The rule
excludes ignorance as an excuse for not complying with the law. Acts contrary to
law should not have the same effects as when done conformably with the law
merely because of ignorance,
2. The philosophy of the law is founded upon public policy. The rule excludes
ignorance as an excuse for not complying with the law. Acts contrary to law
should not have the same effects as when done conformably with the law merely
because of ignorance. It is based on necessity and expediency.
3. Ignorance of the law does not excuse compliance with the law of the land
(Art. 3, Civil Code) whether civil or penal and whether substantive or remedial. This
principle is founded not only on expediency and public policy but on necessity;
otherwise, an easy shelter from a disregard of the law may easily and conveniently
be available.
Page 13 of 391
4. Ignorance of the law does not excuse compliance with the law of the land
(Art. 8, Civil Code) whether civil or penal and whether substantial or remedial
(People vs. Malvar, 21 SCRA 1119). This principle is founded not only on
expediency and public policy but on necessity (see Zulueta vs. Zulueta, 1 Phil 256);
otherwise an easy shelter from a disregard of the law may easily and conveniently
be available.
00; Persons; decisions of inferior courts
1994 No. 4:
1) Are decisions of the Court of Appeals considered laws?
Alternative Answers:
1) a) No, but decisions of the Court of Appeals may serve as precedents
for inferior courts on points of law not covered by any Supreme Court decision, and
a ruling of the Court of Appeals may become a doctrine. (Miranda u. Imperial 77
Phil. 1066).
b) No. Decisions of the Court of Appeals merely have persuasive, and
therefore no mandatory effect. However, a conclusion or pronouncement which
covers a point of law still undecided may still serve as judicial guide and it is possible
that the same maybe raised to the status of doctrine. If after it has been subjected to
test in the crucible of analysis, the Supreme Court should find that it has merits and
qualities sufficient for its consideration as a rule of jurisprudence (Civil Code, Paras).
00; Persons; duty of judges to render judgment
1977 No. XX-b
According to the Civil Code, no judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the laws. How should
the judge or court then decide the controversy before him?
Answer
The judge shall apply the custom of the place. This can easily be inferred
from the Civil Code (Arts. 9, et seq., Civil Code). In default thereof, he shall apply the
general principles of law and justice.
00; Persons; effect of obiter and dissenting opinion; decisions of the SC
1994 No. 4:
2) What are the binding effects of an obiter dictum and a dissenting opinion?
3) How can a decision of the Supreme Court be set aside?
Alternative Answers:
2) None. Obiter dictum and opinions are not necessary to the determination
of a case. They are not binding and cannot have the force of official precedents. It
is as if the Court were turning aside from the main topic of the case to collateral
subjects: a dissenting opinion affirms or overrules a claim, right or obligation. It
neither disposes nor awards anything it merely expresses the view of the dissenter.
(Civil Code, Paras]
3) A decision of a division of the Supreme Court maybe set aside by the
Supreme Court sitting en banc, a Supreme Court decision may be set aside by a
contrary ruling of the Supreme Court itself or by a corrective legislative act of
Congress, although said laws cannot adversely affect those favored prior to the
Supreme Court decision. [Civil Code, Paras).
00; Persons; effectivity of laws
Page 14 of 391
1990 No 14:
After a devastating storm causing widespread destruction in four Central
Luzon provinces, the executive and legislative branches of the government agreed
to enact a special law appropriating P1 billion for purposes of relief and rehabilitation
for the provinces. In view of the urgent nature of the legislative enactment, ft is
provided in its effectivity clause that it shall take effect upon approval and after
completion of publication in the Official Gazette and a newspaper of general
circulation in the Philippines. The law was passed by the Congress on July 1, 1990.
signed into law by the President on July 3, 1990, and published in such newspaper
of general circulation on July 7, 1990 and in the Official Gazette on July 10, 1990.
(a) As to the publication of said legislative enactment, is there sufficient
observance or compliance with the requirements for a valid publication? Explain
your answer.
(b) When did the law take effect? Explain your answer.
(c) Can the executive branch start releasing and disbursing funds
appropriated by the said law the day following its approval? Explain your answer.
Answer:
(a) Yes, there is sufficient compliance. The law itself prescribes the
requisites of publication for its effectivity, and all requisites have been complied with.
(Article 2, Civil Code)
(b) The law takes effect upon compliance with all the conditions for
effectivity, and the last condition was complied with on July 10, 1990. Hence, the"
law became effective on that date.
(c) No. It was not yet effective when it was approved by Congress on July 1,
1990 and approved by the President on July 3, 1990. The other requisites for its
effectivity were not yet complete at the time.
00; Persons; emancipation
1986 No. 2:
Mr, Mamirapal, 19 years old and married, seeks to do the following:
1. Lend his money at interest
2. Donate a piece of his land to his infant son.
3. Sell his car.
4. Sue his neighbor for damages.
The land, money, and car are Mamirapal's separate property derived from his
own income. He is not sure whether he can legally do all these things without his
father's consent and assistance. He comes to you for advice. What advice will you
give him?
Answer:
I will advice Mamirapal: (1) to lend his money at interest without securing his
father's consent or assistance; (2) to donate a piece of his land to his infant son. but
with father's consent; (3) to sell his car without father's consent or assistance; and
(4) to sue his neighbor for damages, but with his father's assistance. Although
Mamirapal is already emancipated, his emancipation is not perfect or plenary in
character. Under the law, he cannot borrow money or alienate or encumber real
property without the consent of his father. Neither can he sue or be sued without the
assistance of his father. It is obvious that only Nos. (2) and (4) fall within the purview
of these exceptions.
Page 15 of 391
(Note - The above answer is based upon Art. 399 of the Civil Code).
Answer The C.C. provides that an emancipated minor cannot borrow
money, alienate or encumber real property without the consent of his parent or
guardian. Neither can he sue or be sued without the assistance of his parent or
guardian. Therefore, the answer to questions:
1) Yes, he can legally do it alone;
2) No, because donation is a form of alienation;
3) Yes, as property is movable;
4) He needs the assistance of his father.
00; Persons; equity
2003 No I
It is said that “equity follows the law” What do you understand by this phrase,
and what are its basic implications?
Suggested Answer:
“Equity Follows the law” means that courts exercising equity jurisdiction are
bound by rules of law and have no arbitrary discretion to disregard them. (Arsenal v
IAC, 143 SCRA 40 [1986]). Equity is applied only in the absence of but never
against statutory law. (Toyota Motor Phil. V CA 216 SCRA 236 [1992]). 5%
00; Persons; human relations
1978 No. I-a
B, a married man, by force and intimidation, succeeded in having sexual
intercourse with A, single, without her consent. As a result, A became pregnant. A
sued B for damages, Is B liable for damages? Why?
Answer
B is liable for damages. From the factual setting stated in the problem, it is
clear that B's act is contrary to law and that he has willfully caused damage to A. As
a matter of fact, he has committed the crime of rape. According to the Civil Code,
every person who, contrary to law, willfully or negligently causes damage to another,
shall indemnify the latter for the same. Consequently, B is liable for compensatory
damages, moral damages, exemplary damages and attorney's fees.
(NOTE: The above answer is based on Art. 20 of the Civil Code and on the
corresponding provisions of the Code on damages, such as Arts. 2202 and 2204
with respect to compensatory damages, Arts. 2219 with respect to moral damages,
Arts. 2230 and 2234 with respect to exemplary damages, and Art. 2208 with respect
to attorney's fees.)
Alternative Answer
B is liable for damages. It must be observed that his act which has caused
damage to A may be considered as a crime or as a quasi-delict. It is now well-
settled doctrine in this jurisdiction that his act gives rise to two separate and
independent liabilities—first, the civil liability arising from crime (culpa criminal) and
second, the civil liability arising from quasi-delict (culpa aquilana). These two
liabilities may be enforced by A against B simultaneously or successively. What is
barred by the law is double recovery. Whether based on the crime or on the quasi-
delict, B is liable for compensatory damages, moral damages, exemplary damages
and attorney's fees.
Page 16 of 391
(NOTE: The above answer is based on Elcano v. Hill, 77 SCRA 98. It has
also been suggested that an answer based on Article 21 of the Civil Code should
also be accepted as a correct answer.)
00; Persons; ignorance of the law vs mistake of fact
1996 No. 1:
1) Is there any difference in their legal effect between ignorance of the law
and ignorance or mistake of fact?
Answer;
Yes, there is a difference. While ignorance of the law is not an excuse for not
complying with it, ignorance of fact eliminates criminal intent as long as there is no
negligence (Art, NCC). In addition, mistake on a doubtful or difficult question of law
may be the basis of good faith (Art. 526. NCC). Mistake of fact may, furthermore,
vitiate consent in a contract and make it voidable (Art. 1390. NCC).
Alternative Answer:
Yes. ignorance of the law differs in legal effect from Ignorance or mistake of
fact. The former does not excuse a party from the legal consequences of his
conduct while the latter does constitute an excuse and is a legal defense.
00; Persons; independent civil action
1983 No. 1
After an altercation with B, A hit B's car with a piece of wood, breaking the
windshield. When C came along and tried to pacify A, the latter stabbed the former,
causing injuries which would have been fatal were it not for timely medical attention.
A was charged with frustrated homicide and malicious mischief. Two
separate civil actions for damages were also filed against him, one by B and the
other by C.
A moved for the suspension of the civil actions until after the termination of
the criminal cases.
Resolve with reasons.
Answer
It should be denied in so far as the civil action for damages arising from B's
injuries is concerned. In cases of physical injuries, which have been held to include
homicide, whether consummated or frustrated, a civil action for damages, entirely
separate and distinct from the criminal action may be brought by the injured party
and shall proceed independently of the criminal proceeding.
It should, however, be sustained as to the civil action to recover indemnity for
the damage to the taxi, it not being one of the cases specified in the Code in which
an independent civil action may be maintained. For this reason, it must be held in
abeyance until the termination of the criminal action.
00; Persons; independent civil actions
1976 No. I-a
During a brawl in a basketball game, A Attacks B with a bottle and causes
physical injuries. If B files a civil case against A for damages and during its
pendency a criminal case is filed against A, should the civil case be suspended
meanwhile? Explain.
(Abellana vs. Marave, 57 SCRA 106)
Answer
Page 17 of 391
No, because the civil action for damages arising from physical injuries is an
independent civil action and is entirely separate and distinct from the criminal action.
(Article 33)
00; Persons; independent civil actions
1976 No. I-b
If a criminal case is filed first, may the civil case be filed during the pendency
of the criminal case or later, even without a reservation? Explain.
Answer
Yes. The civil case may be filed during the pendency of the criminal case
even without a reservation, it being an independent, civil action. It is a substantive
right and cannot be affected or modified by the Rules of Court. (Abellana v. Marave,
57 SCRA 106)
2. If the criminal case is no longer pending, there are two possibilities. There
is either an acquittal or conviction.
If there is an acquittal based on a positive finding of innocence with a
pronouncement that the facts from which the civil case might arise do not exist, then
the civil action cannot be filed; but if it is an acquittal based on reasonable doubt,
then the civil action may still prosper.
If the criminal cage resulted in conviction, whether damages were awarded or
not, the civil case may no longer prosper, if any of the following circumstances took
place:
(a) If a private prosecutor appeared in the criminal case, which is an
indication that the civil action was instituted together with the criminal case; or
(b) If the injured party in the civil case actively participated and/or
intervened in the criminal case. (Manio vs. Gaddi, 44 SCRA 198 (1972)
00; Persons; independent civil actions
1976 No. I-c
Does Article 33 of the Civil Code on separate civil action for damages arising
from injuries require that there be a reservation in the criminal case to file a separate
civil action? Explain
Answer
Best Answer:
No, because Article 33 provides that it is separate and distinct from the
criminal action and may proceed independently of the criminal action. It is a
substantive right and cannot be rendered nugatory by the Rules of Court. The power
of the Supreme Court to promulgate rules is limited to pleadings, practice and
procedure. (Abellana vs-Marave, supra)
Alternative Answer
1. Yes, because Section 2, Rule 111 in relation to Article 33 requires a
reservation in order to take out the civil case from the jurisdiction of the criminal
court. The civil liability resulting from damages and the law accord the injured party
an option to reserve or not to reserve. (Padua v. Robles)
2. Yes, because the general rule is that when a criminal action is filed, the
civil action is impliedly instituted in the same criminal case,
00; Persons; juridical capacity vs capacity to act
1996 No. 1:
Page 18 of 391
2) Distinguish juridical capacity from capacity to act, Answer:
Juridical capacity is the fitness to be the subject of legal relations while
capacity to act Is the power or to do acts with legal effect. The former is inherent in
every natural person and is lost only through death while the latter is merely
acquired and may be lost even before death (Art. 37, NCC).
Alternative Answer;
Juridical capacity, as distinguished from capacity to act: (a) the former is
passive while the latter is active, (b) the former is inherent in a person while the
latter is merely acquired, (c) the former is lost only through death while the latter
may be lost through death or restricted by causes other than death, and Id) the
former can exist without capacity to act while the latter cannot exist without juridical
capacity.
00; Persons; natural persons
1999 No I.
Elated that her sister who had been married for five years was pregnant for
the first time, Alma donated P100,000.00 to the unborn child. Unfortunately, the
baby died one hour after delivery. May Alma recover the P100.000.00 that she had
donated to said baby before it was born considering that the baby died? Stated
otherwise, is the donation valid and binding? Explain. (5%)
ANSWER:
The donation is valid and binding, being an act favorable to the unborn child,
but only if the baby had an intra-uterine life of not less than seven months and pro-
vided there was due acceptance of the donation by the proper person representing
said child. If the child had less than seven months of intra-uterine life, it is not
deemed born since it died less than 24 hours following its delivery, in which ease the
donation never became effective since the donee never became a person, birth
being determinative of personality.
ALTERNATIVE ANSWER:
Even if the baby had an intra-uterine life of more than seven months and the
donation was properly accepted, it would be void for not having conformed with the
proper form. In order to be valid, the donation and acceptance of personal property
exceeding five thousand pesos should be in writing. (Article 748, par. 3)
00; Persons; prejudicial question
1988 No 1;
(a) What is' a prejudicial question? What are its elements? What is its effect
upon a criminal action?
Answer:
(a) A prejudicial question is a question which arises in a case, the resolution
of which is a logical antecedent of the issue involved in said case, and the
cognizance of which pertains to another tribunal (People vs. Aragon 94 Phil. 357;
Jimenez vs. Aceria 22 SCRA 1380).
It has two elements. They are: First, that it must be determinative of the guilt
or innocence of the accused in the criminal case; and second, jurisdiction to try said
question must be lodged in another tribunal (Ibid.)
Its effect upon a criminal case is to suspend it if one has already been
commenced (Article 36, CC). This is of course, the reverse of the ordinary rule of
procedure. The reason for this is that the resolution of the question is determinative
of the guilt or innocence of the accused in the criminal case.
Page 19 of 391
00; Persons; prejudicial questions
1997 No. 3:
In the context that the term is used in Civil Law, state the (a) concept, (b)
requisites and (c) consequences of a prejudicial question,
Answer:
(a) Concept
A prejudicial question is one which must be decided first before a criminal
action may be instituted or may proceed because a decision therein is vital to the
judgment in the criminal case. In the case of People vs. Adelo Aragon (L-5930, Feb.
17, 1954), the Supreme Court defined it as one which arises in a case, the
resolution of which question is a logical antecedent of the issues involved in said
case and the cognizance of which pertains to another tribunal (Paras, Vol. 1, Civil.
Code Annotation, 1989 ed. p, 194).
(b) Requisites
1, The prejudicial question must be determinative of the case before the
court.
2. Jurisdiction to try said question must be lodged in another tribunal.
Additional Answer:
1. The civil action involves an issue similar or intimately related to the issue
raised in the criminal action, and
2. the resolution of such issue determines whether or not the criminal action
may proceed.
(c) Consequences
The criminal case must be suspended. Thus, in a criminal case for damages
to one's property, a civil action that involves -the ownership of said property should
first be resolved (De Leon vs. Mabanag. 38 Phil. 202)
00; Persons; presumption of simultaneous death
1998 No III.
Jaime, who is 65, and his son, Willy, who is 25, died in a plane crash. There
is no proof as to who died first. Jaime's only surviving heir is his wife, Julia, who is
also Willy's mother. Willy's surviving heirs are his mother, Julia and his wife, Wilma.
1. In the settlement of Jaime's estate, can Wilma successfully claim that
her late husband, Willy had a hereditary share since he was much younger than his
father and, therefore, should be presumed to have survived longer? [3%]
2. Suppose Jaime had a life insurance policy with his wife, Julia, and his
son, Willy, as the beneficiaries. Can Wilma successfully claim that one-half of the
proceeds should belong to Willy's estate? |2%J
Answer:
1. No, Wilma cannot successfully claim that Willy had a hereditary share in
his father's estate. Under Art. 43, Civil Code, two persons "who are called to
succeed each other" are presumed to have died at the same time, in the absence of
proof as to which of them died first. This presumption of simultaneous death applies
in cases involving the question of succession as between the two who died, who in
this case are mutual heirs, being father and son.
Answer:
Page 20 of 391
2. Yet, Wilma can invoke the presumption of survivorship and claim that one-
half of the proceeds should belong to Willy's estate, under Sec. 3 (jj) par. 5 Rule
131, Rules of Court, as the dispute does not involve succession. Under this
presumption, the person between the ages of 15 and 60 years is deemed to have
survived one whose age was over 60 at the time of their deaths. The estate of Willy
endowed with juridical personality stands in place and stead of Willy, as beneficiary.
00; Persons; presumption of simultaneous death
1999 No II.
Mr. and Mrs. Cruz, who are childless, met with a serious motor vehicle
accident with Mr. Cruz at the wheel and Mrs. Cruz seated beside him, resulting in
the instant death of Mr. Cruz. Mrs. Cruz was still alive when help came but she also
died on the way to the hospital. The couple acquired properties worth One Million (PI
,000,000.00) Pesos during their marriage, which are being claimed by the parents of
both spouses in equal shares. Is the claim of both sets of parents valid and why?
(3%)
(b) Suppose in the preceding question, both Mr. and Mrs. Cruz were already
dead when help came, so that no-body could say who died ahead of the other,
would you answer be the same to the question as to who are entitled to the
properties of the deceased couple? (2%)
ANSWER:
(a) No, the claim of both parents is not valid. When Mr. Cruz died, he was
succeeded by his wife and his parents as his intestate heirs who will share his estate
equally. His estate was 0.5 Million pesos which is his half share in the absolute
community amounting to 1 Million Pesos. His wife, will, therefore, inherit O.25
Million Pesos and his parents will inherit 0.25 Million Pesos.
When Mrs. Cruz died, she was succeeded by her parents as her intestate
heirs. They will inherit all of her estate consisting of her 0.5 Million half share in the
ab-solute community and her 0.25 Million inheritance from her husband, or a total of
0.750 Million Pesos.
In sum, the parents of Mr. Cruz will inherit 250,000 Pesos while the parents of
Mrs. Cruz will inherit 750,000 Pesos.
(b) This being a case of succession, in the absence of proof as to the time
of death of each of the spouses, it is presumed they died at the same time and no
transmission of rights from one to the other is deemed to have taken place.
Therefore, each of them is deemed to have an estate valued at P500,000,00, or
one-half of their conjugal property of PI million. Their respective parents will thus
inherit the entire PI Million in equal shares, OT P5OO,000.00 per set of parents.
00; Persons; presumption of simultaneous death
2000 No III.
b) Cristy and her late husband Luis had two children, Rose and Patrick, One
summer, her mother-in-law, aged 70, took the two children, then aged 10 and 12,
with her on a boat trip to Cebu. Unfortunately, the vessel sank en route, and the
bodies of the three were never found. None of the survivors ever saw them on the
water. On the settlement of her mother-in-law's estate, Cristy files a claim for a share
of her estate on the ground that the same was inherited by her children from their
grandmother in representation of their father, and she Inherited the same from them.
Will her action prosper? (2%)
SUGGESTED ANSWER:
Page 21 of 391
No, her action will not prosper. Since there was no proof as to who died first,
all the three are deemed to have died at the same time and there was no
transmission of rights from one to another, applying Article 43 of the New Civil Code.
ALTERNATIVE ANSWER:
No, her action will not prosper. Under Article 43 of the New Civil Code,
inasmuch as there is no proof as to who died first, all the three are presumed to
have died at the same time and there could be no transmission of rights among
them. Her children not having inherited from their grandmother. Cristy has no right to
share in her mother-in-law's estate. She cannot share in her own right as she is not
a legal heir of her mother-in-law. The survivorship provision of Rule 131 of the Rules
of Court does not apply to the problem. It applies only to those cases where the
issue involved is not succession.
00; Persons; prospectivity of laws; exceptions
1977 No, I-b
Give five (5) exceptions to the rule that laws shall have no retroactive effects.
Answer
The following are the exceptions to the rule that laws shall have no
retroactive effect:
(1) When the law itself expressly provides for its retroactivity (Art. 4, CC).
(2) When the law is penal insofar as it favors the accused who is not a
habitual criminal, even though at the time of the enactment of such law final
sentence has already been rendered (Art. 22, Rev. Penal Code).
(3) When the law is procedural so long as it does not affect or change
vested rights (Aguillon vs. Dir. of Lands, 17 Phil. 560).
(4) When the law creates new substantive rights (Arts. 2253, 2263,
CC; Bona vs. Briones, 38 Phil. 276).
(5) When the law Is curative in character in the sense that the purpose for its
enactment is to cure defects or imperfections in judicial or administrative
proceedings.
00; Persons; restrictions on capacity to act
1985 No. 1
B) Among the restrictions on capacity to act are minority, insanity, deaf-
mutism, prodigality and civil interdiction, all of which do not exempt the incapacitated
person from "certain obligations."
Explain and discuss the said rule and illustrate its application by specific
examples.
Answers:
B) 1. Such incapacitated person is not exempt from all obligations except
those arising from contracts. In other words, he is liable if the obligation arises from
law, from delicts, from quasi-delicts.
2. The general rule may be illustrated as follows: An incapacitated person is
not exempt from civil liability except those arising from contracts; so he can be liable
for a crime committed by him. He may not be criminally liable but he is a civilly liable.
One may be insane but does not exempt him from his legal obligation to support his
family,
Page 22 of 391
3. A minor under 15 may commit a crime. He might have committed it
without discernment and therefore would be free or exempt from the civil liability.
With regard to property relations, a 5-year-old child may inherit property and the fact
that the new owner of the property is incapacitated does not exempt the property
and himself from the burden of easement.
4. The rule is based upon lack of voluntariness of the act due to physical or
mental defects, and upon the necessity of protection by the State because of
disabilities. Despite incapacity, a minor may be liable for crime. An insane person
must recognize legal easements on his property. A person civilly interdicted may be
liable for quasi-delict.
5. Minority, Insanity, deaf-mutism, prodigality and civil interdiction are
mere restrictions on capacity to act and do not necessarily exempt the incapacitated
person from certain obligations. Among such obligations are those arising from his
acts or from property relations. Accordingly, a minor may be estopped by his
misrepresentations; and an infant may be held civilly liable for his tortious conduct, a
rule that is more preferable than to let the guiltless victim suffer the loss.
6. Minority, insanity, deaf-mutism, prodigality and civil interdictions are mere
restrictions on capacity to act and do not necessarily exempt the incapacitated
person from certain obligations. Among such obligations an those arising from his
acts or from property relations (Arts. 38-39, Civil Code). Accordingly, a minor may be
estopped by his misrepresentation (Mercado vs. Espiritu, 37 Phil. 215); and
an infant may be held liable for his tortious conduct, a rule that is preferable than to
let the guiltless victim suffer the lost (See Magtibay vs. Tiangco, 74 Phil. 676),
00; Persons; use of surnames
1975 No. VII
A mother who had a natural child subsequently married a man other than the
child's father. The child filed a petition to change his surname from the father's name
to that of the step-father who has no objection thereto. May the petition be granted?
Why?
Answer
Yes, the petition may be granted. While it is true that a natural child shall
employ the surname of the recognizing parent or that of the father if acknowledged
by both parents, this does not mean that such child is prohibited by law from taking
another surname for justifiable reasons. The purpose of the law in allowing a change
of name is to give a person an opportunity to improve his personality and promote
his best interests. To allow the child here to change his name would eliminate the
stigma of illegitimacy which he would continue to bear if his surname were to be that
of his illegitimate father. Furthermore, the stepfather is agreeable to the child's using
his surname.
The court, therefore, in the sound exercise of its discretion may grant the
petition. (Calderon v. Republic, 19 SCRA 721)
00; Persons; waiver
1978 No. V-b
A was a consistent scholar and honor student for three (3) years in Manuel L.
Quezon (MLQ) University and he enjoyed free tuition privileges. In his fourth year,
he decided to study in a University in Davao as his father died and he had to stay
with his mother. He needed the transcripts of his records in MLQ University, but
MLQ refused to issue them until he had refunded the whole amount of tuition fees
given to him for three (3) years of his stay, alleging that he had signed an agreement
Page 23 of 391
beforehand and waiving his right to transfer to another university without having
refunded the cash equivalent of his scholarship. A was forced to refund the amount
as he did not want to be late for his enrollment in the Davao University. Later, he
sued for its return. Can A recover the amount he refunded to MLQ University?
Reasons for your answer.
Answer
Yes, A can recover the amount he refunded to MLQ University. The waiver
signed by A is contrary to public policy, and therefore, null and void. Scholarship
grants are awarded in recognition of merit and not to attract and keep brilliant
students in school for their propaganda value. To look at such grants as a business
scheme designed to increase the business potential of an educational institution is
not only inconsistent with sound public policy bat also good morals.
(NOTE: The above answer is based on Cui vs. Arellano University, L-15127,
May 30, 1961 applying Art. 1306 of the New Civil Code.)
00; Persons; waiver of rights
2004 No. IX
B. DON, an American businessman, secured parental consent for the
employment of five minors to play certain roles in two movies he was producing at
home in Makati. They worked at odd hours of the day and night, but always
accompanied by parents or other adults. The producer paid the children talent fees
at rates better than adult wages.
But a social worker, DEB, reported to OSWD that these children often missed
going to school. They sometimes drank wine, aside from being exposed to drugs.
In some scenes, they were filmed naked or in revealing costumes. In his defense,
DON contended all these were part of artistic freedom and cultural creativity. None
of the parents complained, said DON. He also said they signed a contract
containing a waiver of their right to file any complaint in any office or tribunal
concerning the working conditions of their children acting in the movies.
Is the waiver valid and binding? Why or why not? Explain. (5%)
00; Persons; waiver of rights
1977 No. XX-a
Rights may be waived In what cases may waiver be prohibited and declared
null and void?
Answer
Waiver is prohibited when it is contrary to law, public order, public policy,
morals or good customs, or prejudicial to a third person with a right recognized by
law, (Art. 6, Civil Code).
Page 24 of 391
01; Conflict of laws
1981 No. 18
(b) True or false? -- A woman loses her citizenship when she marries a
foreigner and under the national law of the husband she automatically acquires his
citizenship by marriage.
Answer
(b) False. Under the 1973 Constitution, a female citizen of the Philippines
who marries an alien shall retain her citizenship. Consequently, she does not
necessarily acquire her husband's nationality.
01; Conflict of laws; Art. 15
1998 No II.
Francis Albert, a citizen and resident of New Jersey, U.S.A., under whose law
he was still a minor, being only 20 years of age, was hired by ABC Corporation of
Manila to serve for two years as its chief computer programmer. But after serving for
only four months, he resigned to join XYZ Corporation, which enticed him by offering
more advantageous terms. His first employer sues him in Manila for damages
arising from the breach of his contract of employment. He sets up his minority as a
defense and asks for annulment of the contract on that ground. The plaintiff disputes
this by alleging that since the contract was executed in the Philippines under whose
law the age of majority is 18 years, he was no longer a minor at the time of
perfection of the contract.
1, Will the suit prosper? [3%]
2. Suppose XYZ Corporation is impleaded as a co-defendant, what would
be the basis of its liability, if any? [2%]
Answer:
1. The suit will not prosper under Article 15, Civil Code, New Jersey law
governs Francis Albert's capacity to act, being his personal law from the standpoint
of both his nationality and his domicile. He was, therefore, a minor at the time he
entered into the contract.
Alternative Answer:
1. The suit will not prosper. Being a U.S. national, Albert's capacity to enter
into a contract is determined by the law of the State of which he is a national, under
which he to still a minor. This is in connection with Article 15 of the Civil Code which
embodies the said nationality principle of lex patriae. While this principle intended to
apply to Filipino citizens under that provision, the Supreme Court in Recto v. Harden
is of the view that the status or capacity of foreigners is to be determined on the
basis of the same provision or principle, i.e., by U.S. law in the present problem.
Plaintiffs argument does not hold true, because status or capacity is not
determined by lex loci contractus but by lex patriae.
Another Answer:
1. Article 17 of the Civil Code provides that the forms and solemnities of
contracts, wills and other public instruments shall be governed by the laws of the
country in which they are executed.
Since the contract of employment was executed in Manila, Philippine law
should govern. Being over 18 years old and no longer a minor according to
Philippine Law, Francis Albert can be sued. Thus, the suit of ABC Corporation
against him for damages will prosper*
Page 25 of 391
Answer:
2. XYZ Corporation, having enticed Francis Albert to break his contract
with the plaintiff, may be held liable for damages under Art. 1314, Civil Code.
Alternative Answer:
2. The basis of liability of XYZ Corporation would be Article 28 of the Civil
Code which states that:
"Unfair competition in agricultural, commercial, or industrial enterprises or in
labor through the use of force, intimidation, deceit, machination or any other unjust,
oppressive or highhanded method shall give rise to a right of action by the person
who thereby suffers damage."
Another Answer:
2. No liability arises. The statement of the problem does not in any way
suggest intent, malice, or even knowledge, on the part of XYZ Corporation as to the
contractual relations between Albert and ABC Corporation.
01; Conflict of laws; Art. 15; legal capacity
1995 No, 2:
3. What law governs the capacity of the Filipino to buy the land? Explain your
answer and give its legal basis.
Answer:
Philippine law governs the capacity of the Filipino to buy the land. In addition
to the principle of lex rei sitae given above. Article 15 of the NCC specifically
provides that Philippine laws relating to legal capacity of persons are binding upon
citizens of the Philippines no matter where they are.
01; Conflict of laws; Art. 15; legal capacity; capacity to contract
1995 No, 2:
2. What law governs the capacity of the Japanese to sell the land? Explain
your answer and give its legal basis.
Answer:
Japanese law governs the capacity of the Japanese to sell the land being his
personal law on the basis of an interpretation of Art. 15, NCC.
Alternative Answers;
a) Since capacity to contract is governed by the personal law of an
individual, the. Japanese seller's capacity should be governed either by his national
law (Japanese law) or by the law of his domicile, depending upon whether Japan
follows the nationality or domiciliary theory of personal law for its citizens.
b) Philippine law governs the capacity of the Japanese owner in selling the
land. While as a general rule capacity of persons is governed by the law of his
nationality, capacity concerning transactions involving property is an exception.
Under Article 16 of the NCC. the capacity of persons in transactions involving title to
property is governed by the law of the country where the property is situated.
Since the property Is in the Philippines, Philippine law governs the capacity of the
seller.
01; Conflict of laws; Art. 16
2001 No I
Page 26 of 391
Alex was born a Filipino but was a naturalized Canadian citizen at the time of
his death on December 25,1998. He left behind a last will and testament in which he
bequeathed all his properties, real and personal, In the Philippines to his
acknowledged illegitimate Fillpina daughter and nothing to his two legitimate Filipino
sons. The sons sought the annulment of the last will and testament on the ground
that it deprived them of their legitimes but the daughter was able to prove that there
were no compulsory heirs or legitimes under Canadian law. Who should prevail?
Why? (5%)
SUGGESTED ANSWER
The daughter should prevail because Article 16 of the New Civil Code
provides that intestate and testamentary succession shall be governed by the
national law of the person whose succession is under consideration.
01; Conflict of laws; Art. 16
1995 No, 2:
While in Afghanistan, a Japanese by the name of Sato sold to Ramoncito, a
Filipino, a parcel of land situated in the Philippines which Sato inherited from his
Filipino mother.
1. What law governs the formality in the execution of the contract of sale?
Explain your answer and give its legal basis.
Answer:
Under Art. 16 par. 1, NCC, real property is subject to the law of the country
where it is situated. Since the property is situated in the Philippines, Philippine law
applies. The rule of lex rei sitae in Article 16 prevails over lex loci contractu in Article
17 of the NCC.
Alternative Answer:
Afghanistan law governs the formal requirements of the contract since the
execution is in Afghanistan. Art. 17 of the Civil Code provides that the forms and
solemnities of contracts, wills, and other public Instruments shall be governed by the
laws of the country in which they are executed. However, if the contract was
executed before the diplomatic or consular officials of the Republic of the Philippines
in Afghanistan, Philippine law shall apply.
01; Conflict of laws; Art. 16
1985 No. 11
A, a Filipino, 18 years of age, married and residing in a foreign country,
having run out of money, borrowed P60,000.00 from B and to secure its payment,
executed a real mortgage on a house and lot owned by him in Manila. Under the law
of the country where he resides., he is deemed to be of age and the real estate
mortgage is valid. The loan not having been paid on maturity, B brought an action in
Manila to foreclose the mortgage and recover what is due him.
a) May the real estate mortgage be foreclosed? Reasons.
b) May B recover the loan of P50.000.00 due him as an unsecured debt and
have the mortgaged property levied upon and sold for the satisfaction thereof?
Discuss.
Answers:
(a) and (b)
1. Since A is 18 years of age and is a minor in our country, his real property
is governed by our law, and therefore, the mortgage is voidable and can be
Page 27 of 391
enforced subject to the defense of minority. The law provides that an emancipated
minor cannot borrow money. By analogy with the ruling in the case of a conveyance
of conjugal real property by the husband without the consent of the wife that held
that conveyance void, the mortgage is likewise void.
2. Laws relating to family rights and duties or to the status, condition and
legal capacity of persons are binding upon the citizens of the Philippines even
though living abroad.
A is a minor emancipated by marriage. Hence, he cannot borrow money or
alienate or encumber real property without the consent of his father, mother or
guardian. The real estate mortgage cannot be foreclosed and there can be no
recovery because both contracts were not validly executed.
3. The law provides that an emancipated minor cannot borrow money or
alienate or encumber real property without the consent of his father or mother, or
guardian (Art. 399). Applying by analogy the ruling in the case of conveyance of
conjugal real property by the husband without the wife's consent that held that
conveyance void (Garcia re. Court of Appeals), the loan and the real estate
mortgage contracted by A should be declared void. The real estate mortgage may
not thus be foreclosed.
For the reason addressed above, the rules on void contracts would apply that
may generally negate recovery by either party thereunder (Art, 1412, Civil Code),
4. The loan is merely voidable under Art. 1390 being a contract where one is
incapable of giving consent. Until annulled, the loan, as well as the real estate
mortgage are binding between the parties.
When & contract is voidable because of such incapacity, the incapacitated is
"not obliged to make any restitution except insofar as he has benefited by the thing
or price received by him" (Art. 1399, Civil Code).
01; Conflict of laws; Art. 17; contracts contrary to public policy
1996 No 18:
Alma was hired as a domestic helper in Hongkong by the Dragon Services,
Ltd., through its local agent. She executed a standard employment contract
designed by the Philippine Overseas Workers Administration (POEA) for overseas
Filipino workers. It provided for her employment for one year at a salary of
US$1,000.00 a month. It was submitted to and approved by the POEA. However,
when she arrived In Hongkong, she was asked to sign another contract by Dragon
Services, Ltd. which reduced her salary to only US$600.00 a month. Having no
other choice. Alma signed the contract but when she returned to the Philippines, she
demanded payment of the salary differential of US$400.00 a month. Both Dragon
Services, Ltd. and its local agent claimed that the second contract is valid under the
laws of Hongkong, and therefore binding on Alma.
Is their claim correct? Explain. Answer:
Their claim is not correct. A contract is the law between the parties but the
law can disregard the contract if it is contrary to public policy. The provisions of the
1987 Constitution on the protection of labor and on social justice (Sec. 10. Art II)
embody a public policy of the Philippines. Since the application of Hongkong law in
this case is in violation of that public policy, the application shall be disregarded by
our Courts. (Cadalin v. POEA. 238 SCRA 762)
Alternative Answers;
a) Their claim is not correct. Assuming that the second contract is binding
under Hongkong law, such second contract Is invalid under Philippine law which
Page 28 of 391
recognizes as valid only the first contract. Since the case is being litigated in the
Philippines, the Philippine Court as the forum will not enforce any foreign claim
obnoxious to the forum's public policy. There is a strong public policy enshrined in
our Constitution on the protection of labor. Therefore, the second contract shall be
disregarded and the first contract will be enforced. (Cadalin v. POEA, 238 SCRA
762).
b) No, their claim is not correct. The second contract executed In Hongkong,
partakes of the nature of a waiver that is contrary to Philippine law and the public
policy governing Filipino overseas workers. Art. 17, provides that our prohibitive
laws concerning persons, their acts, or their property or which have for their object
public order, public policy and good customs shall not be rendered ineffective by
laws or conventions agreed upon in a foreign country. Besides. Alma's consent to
the second contract was vitiated by undue influence, being virtually helpless and
under financial distress in a foreign country, as indicated by the given fact that she
signed because she had no choice. Therefore, the defendants claim that the
contract is valid under Hongkong law should be rejected since under the doctrine of
processual presumption a foreign law is deemed similar or identical to Philippine law
in the absence of proof to the contrary, and such is not mentioned in the problem as
having been adduced.
01; Conflict of laws; Art. 17; labor contracts
1991 No 7;
A. The Japan Air Lines (JAL), a foreigner corporation licensed to do
business in the Philippines, executed in Manila a contract of employment with
Maritess Guapa under which the latter was hired as a stewardess on the aircraft
plying the Manila-Japan-Manila route. The contrast specifically provides that (1) the
duration of the contract shall be two (2) years, (2) notwithstanding the above
duration, JAL may terminate the agreement at any time by giving her notice in
writing ten (10) days in advance, and (3) the contract shall be construed as
governed under and by the laws of Japan and only the court in Tokyo, Japan shall
have the jurisdiction to consider any matter arising from or relating to the contract.
JAL dismissed Maritess on the fourth month of her employment without giving
her due notice. Maritess then filed a complaint with the Labor Arbiter for
reinstatement, backwages and damages. The lawyer of JAL contends that neither
the Labor Arbiter nor any other agency or court In the Philippines has jurisdiction
over the case in view of the above provision (3) of the contract which Maritess
voluntarily signed. The contract Is the law between her and JAL.
Decide the issue.
B. Where under a State's own conflicts rule that domestic law of another
State should apply, may the courts of the former nevertheless refuse to apply the
latter? If so, under what circumstance?
Answer,
A, Labor Legislations are generally intended as expressions of public policy
on employer-employee relations. The contract therefore, between Japan Air Lines
(JAL) and Maritess may apply only to the extent that its provisions are not
inconsistent with Philippine labor laws intended particularly to protect employees.
Under the circumstances, the dismissal of Maritess without complying with
Philippine Labor law would be invalid and any stipulation in the contract to the
contrary is considered void. Since the law of the forum in this case is the Philippine
law. the issues should-be resolved in accordance with Philippine law.
B. The third paragraph of Art. 17 of the Civil Code provides that:
Page 29 of 391
"Prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country."
Accordingly, a state's own conflict of laws rule may, exceptionally be
inapplicable, given public policy considerations by the law of the forum.
Going into the specific provisions of the contract in question, I would rule as
follows:
1. The duration of the contract is not opposed to Philippine law and it can
therefore be valid as stipulated;
2. The second provision to the effect that notwithstanding duration, Japan
Air Lines (JAL) may terminate her employment is invalid, being inconsistent with our
Labor laws;
3. That the contract shall be construed as governed under and by the laws
of Japan and only the courts of Tokyo, Japan shall have jurisdiction, is invalid as
clearly opposed to the aforecited third paragraph of Arts. 17 and 1700 of the Civil
Code, which provides:
"Art. 1700. The relations between capital and labor are not merely
contractual. They are so impressed with public interest that labor contracts must
yield to the common good. Therefore, such contracts are subject to the special laws
on labor unions, collective bargaining, strikes and lockouts, closed shop, wages,
working conditions, hours of labor and similar subjects."
Alternative Answer;
A. When a contract has a foreign element such as in the factual setting stated
in the problem where one of the parties is a foreign corporation, the contract can be
sustained as valid particularly the stipulation expressing that the contract is
governed by the laws of the foreign country. Given this generally accepted principle
of international law, the contract between Maritess and JAL is valid and it should
therefore be enforced.
01; Conflict of laws; Arts 15, 16 & 17
1998 No I.
Juan is a Filipino citizen residing in Tokyo, Japan. State what laws govern:
1. His capacity to contract marriage in Japan, [ 1%]
2. His successional rights as regards his deceased Filipino father's property
in Texas, U.S.A. [1%]
3. The extrinsic validity of the last will and testament which Juan executed
while sojourning in Switzerland. [2%]
4. The intrinsic validity of said will. (1%) Answer:
1. Juan's capacity to contract marriage is governed by Philippine
law - i.e., the Family Code -pursuant to Art. 15, Civil Code, which provides that our
laws relating to, among others, legal capacity of persons are binding upon citizens of
the Philippines even though living abroad.
Answer:
2. By way of exception to the general rule of lex rei sitae prescribed by the
first paragraph of Art. 16. Civil Code, a person's successional rights are governed by
the national law of the decedent (2nd par.. Art. 16). Since Juan's deceased father
was a Filipino citizen, Philippine law governs Juan's successional rights.
Page 30 of 391
Another Answer:
2. Juan's successional rights are governed by Philippine law, pursuant to
Article 1039 and the second paragraph of Article 16, both of the Civil Code. Article
1039, Civil Code, provides that capacity to succeed shall be governed by the "law of
the nation" of the decedent, i.e.. his national law. Article 16 provides In paragraph
two that the amount of successional rights, order of succession, and intrinsic validity
of testamentary succession shall be governed by the "national law" of the decedent
who is identified as a Filipino in the present problem.
Answer:
3. The extrinsic validity of Juan's will is governed by (a) Swiss law, It being
the law where the will was made (Art. 17. 1st par. Civil Code), or (b) Philippine law,
by implication from the provisions of Art. 816, Civil Code, which allows even an alien
who is abroad to make a will in conformity with our Civil Code.
Answer:
4. The intrinsic validity of his will is governed by Philippine law, it being his
national law. (Art. 16, Civil Code)
01; Conflict of laws; Arts 15, 16, 17
2002 No III
Felipe and Felisa, both Filipino citizens, were married in Malolos, Bulacan on
June 1, 1950. In 1960 Felipe went to the United States, becoming a U.S. citizen in
1975. In 1980 the obtained a divorce from Felisa, who was duly notified of the
proceedings. The divorce decree became final under California Law. Coming back
to the Philippines in 1982, Felipe married Sagundina, A Filipino Citizen. In 2001,
Filipe, then domiciled in Los Angeles, California, died, leaving one child by Felisa,
and another one by Sagundina. He left a will which he left his estate to Sagundina
and his two children and nothing to Felisa.
Sagundina files a petition for the probate of Felipe’s will. Felisa questions the
intrinsic validity of the will, arguing that her marriage to Felipe subsisted despite the
divorce obtained by Felipe because said divorce is not recognized in the Philippines.
For this reason, she claims that the properties and that Sagundina has no
successional rights.
A. Is the divorce secured by Felipe in California recognizable and valid in
the Philippines? How does it affect Felipe’s marriage to Felisa? Explain. (2%).
B. What law governs the formalities of the will? Explain. (1%)
C. Will Philippine law govern the intrinsic validity of the will? Explain. (2%)
SUGGESTED ANSWER:
A. (1.) The divorce secured by Felipe in California is recognizable and
valid in the Philippines because he was no longer a Filipino at that time he secured
it, Aliens may obtain divorces abroad which may be recognized in the Philippines
provided that they are valid according to their national law (Van Dorn V. Romillo, Jr.,
139 SCRA 139 [1985]; Quita v. Court of Appeals, 300 SCRA 406 [1998]; Llorente v.
Court of Appeals, 345 SCRA 595 [2000] ).
(2). With respect to Felipe the divorce is valid, but with respect to Felisa it is
not. The divorce will not capacitate Felisa to remarry because she and Felipe were
both Filipinos at the time of their marriage. However, in DOJ Opinion No. 134 series
of 1993, Felisa is allowed to remarry because the injustice sought to be corrected by
Article 26 also obtains in her case.
Page 31 of 391
B. The foreigner who executes his will in the Philippines may observed the
formalities described in:
1. The Law of the country of which he is a citizen under Article 817 of the
New Civil Code, or
2. the law of the Philippines being the law of the place of execution under
Article 17 of the New Civil Code.
C. Philippine law will not govern the intrinsic validity of the will. Article 16
of the New Civil Code provides that intrinsic validity of testamentary provisions shall
be governed by the National Law of the person whose succession is under
consideration. California law will govern the intrinsic validity of the will.
01; Conflict of laws; cognovit; borrowing statute; characterization
1994 No 1;
In Private International Law (Conflict of Laws) what is:
1} Cognovit?
2) A borrowing statute?
3) Characterization?
Alternative Answers;
1) a) Cognovit is a confession of judgment whereby a portion of the
complaint is confessed by the defendant who denies the rest thereof (Philippine law
Dictionary, 3rd Ed.) (Ocampo v. Florenciano, L-M 13553, 2/23/50),
b) Cognovit Is a "statement of confession" Oftentimes, it is referred to as a
"power of attorney" or simply as a "power", it is the written authority of the debtor
and his direction to the clerk of the district court, or justice of the peace to enter
judgment against the debtor as stated therein. (Words and Phrases, vol. 7, pp. 115-
166).
c) Cognovit is a plea in an action which acknowledges that the defendant did
undertake and promise as the plaintiff in its declaration has alleged, and that it
cannot deny that it owes and unjustly detains from the plaintiff the sum claimed by
him in his declaration, and consents that judgment be entered against the defendant
for a certain sum. [Words and Phrases, vol. 7, pp. 115-166).
d) Cognovit is a note authorizing a lawyer for confession of judgment by
defendant.
2) "Borrowing Statute" - Laws of the state or jurisdiction used by another
state in deciding conflicts questioned involved in the choice of law (Black's Law
Dictionary, 5th ed. 1979).
3) a) "Characterization" is otherwise called "classification" or "qualification." It
is the process of assigning a disputed question to its correct legal category (Private
International Law, Salonga).
b) "Characterization" is a process in determining under what category a
certain set of facts or rules fall. (Paras, Conflict of Laws, p. 94. 1984 ed.)
01; Conflict of laws; effect of divorce granted to former Filipinos
1997 No. 2:
In 1977, Mario and Clara, both Filipino citizens, were married in the
Philippines. Three years later, they went to the United States of America and
established their residence in San Francisco, California. In 1987, the couple applied
for, and were granted, U.S. citizenship. In 1989, Mario, claiming to have been
Page 32 of 391
abandoned by Clara, was able to secure a decree of divorce in Reno, Nevada,
U.S.A.
In 1990, Mario returned to the Philippines and married Juana who knew well
Mario's past life.
(a) Is the marriage between Mario and Juana valid?
(b) Would the renvoi doctrine have any relevance to the case?
Answer;
(a) Yes, because Phil law recognizes the divorce between Mario and Clara
as valid.
(b) No, (pls see renvoi)
01; Conflict of laws; effect of divorce secured abroad
1978 No. X
Ana and Basilio, both Filipino citizens and of legal age, were married in 1950
in Antique but they never lived together. Ana subsequently left the Philippines and
secured a divorce in Nevada, United States in 1953 on the ground of extreme
mental cruelty. In 1955, Ana sought papal dispensation of the marriage and then
married Carl, an American, in Nevada. She lived with him in California and begot
children. She acquired American citizenship in 1959.
1. Will the divorce decree obtained abroad be accorded validity in the
Philippines? What law supports your answer?
2. What is the status of the marriage of Ana and Carl under our laws?
Reasons for your answer.
Answer
1. The divorce decree obtained abroad is not accorded validity in the
Philippines. The following laws support this answer:
(a) The Civil Code states that laws relating to family rights and duties, or to
the status, condition and legal capacity of persona are binding upon citizens of the
Philippines, even though living abroad. It is clear that the divorce decree, which
affects the status and conditions of Ana and Basilio, is not valid under Philippine
laws.
(b) It is a well-settled rule in this jurisdiction that absolute divorce is contrary
to public policy. The Civil Code states that a declaration of public policy cannot be
rendered ineffective by a judgment promulgated in a foreign country.
(NOTE: The above answer is based on Arts. I5 and 17, par. 3, Civil Code and
on decided cases.)
2. The marriage of Ana and Carl is void under the Philippine laws for the
following reasons:
(a) Ana is still married to Basilio under Philippine laws. The decree of
absolute divorce which she obtained in Nevada is not valid in the Philippines for the
reasons stated above. The papal dispensation which she also obtained is not
also valid under Philippine laws.
(b) True, the Civil Code provides that a marriage celebrated outside of the
Philippines in accordance with the laws in force in the country where it is celebrated,
and valid there as such, shall also be valid in this country. But there are exceptions
to this rule. This rule cannot be applied if the marriage is bigamous, polygamous, or
incestuous as determined by Philippine laws. The marriage of Ana and Carl is
certainly bigamous as determined by Philippine laws.
Page 33 of 391
(NOTE: The above answer is based on Arts. 83 and 71 of the Civil Code.)
01; Conflict of laws; effect of divorce secured abroad
1983 No. 19:
A, a Filipino woman, and B, an American, were married and initially lived in
Manila. They later established their domicile in Texas, of which state B is a citizen,
and there obtained an absolute divorce in accordance with the laws of Texas. A
afterwards returned to the Philippines and married a Filipino.
Evaluate the validity of the divorce and the subsequent marriage of A, citing
reasons.
Answer
B will succeed. The divorce granted in Texas cannot be recognized in the
Philippines, in so far as A is concerned. She is a Filipino and is bound by local law
which does not sanction an absolute divorce. B, therefore, remains to be her
husband notwithstanding the divorce.
However, the contrary view is not without legal basis. By adopting the
principle of nationality in Art. 15, under which one's personal law is the law of his
nation, the Civil Code accepts, that an alien woman married to a Filipino may validly
obtain a divorce abroad in accordance with her national law. By recognizing the
validity of such a divorce, it in effect admits its effectiveness in respect of both
spouses. No other solution is possible except the contrary one which, as the
problem above posed shows, leaves one party married to a man or woman who has
ceased to be a spouse and gives rise to bizarre social problems as well as intricate
legal questions.
01; Conflict of laws; forum non conveniens & lex loci contractus
2002 No XIII.
Felipe is a Filipino citizen. When he went to Sydney for vacation, he met a
former business associate, who proposed to him a transaction which took him to
Moscow. Felipe brokered a contract between Sydney Coals Corp. (Coals), an
Australian firm, and Moscow Energy Corp. (Energy), a Russian firm, for Coals to
supply coal to Energy on a monthly basis for three years. Both these firms were not
doing, and still do not do, business in the Philippines. Felipe shuttled between
Sydney and Moscow to close the contract. He also executed in Sydney a
commission contract with Coals and in Moscow with Energy, under which contracts
he was guaranteed commissions by both firms based on a percentage of deliveries
for the three-year period, payable in Sydney and in Moscow, respectively, through
deposits in accounts that he opened in the two cities. Both firms paid Felipe his
commission for four moths, after which they stopped paying him. Felipe learned from
his contacts, who are residents of Sydney and Moscow, that the two firms talked to
each other and decided to cut him off. He now files suit in Manila against both Coals
and Energy for specific performance.
A. Define or explain the principle of “lex loci contractus”. (2%)
B. Define or explain the rule of “forum non conveniens” (3%)
C. Should the Philippine court assume jurisdiction over the case? Explain.
(5%)
SUGGESTED ANSWER:
A. Lex loci contractus may be understood in two senses, as follows:
Page 34 of 391
(1) It is the law of the place where contracts, wills, and other public
instruments are executed and governs their “forms and solemnities”, pursuant to the
first paragraph, Article 17 of the New Civil Code; or
(2) It is the proper law of the contract; e.i., the system of law intended to
govern the entire contract, including its essential requisites, indicating the law of the
place with which the contract has its closest connection or where the main elements
of the contract converge. As illustrated by Zalamea v. Court of Appeals (228 SCRA
23 [1993]), it is the law of the place where the airline ticket was issued, where the
passengers are nationals and residents of, and where the defendant airline
company maintained its office.
ALTERNATIVE ANSWER:
A. Under the doctrine of lex loci contractus, as a general rule, the law of
the place where a contract is made or entered into governs with respect to its nature
and validity, obligation and interpretation. This has been said to be the rule even
though the place where the contract was made is different from the place where it is
to be performed, and particularly so, if the place of the making and the place of
performance are the same (United Airline v. CA, G.R. No. 124110, April 20, 2001).
SUGGESTED ANSWERS:
B. Forum non conveniens means that a court has discretionary authority
to decline jurisdiction over a cause of action when it is of the view that the action
may be justly and effectively adjudicated elsewhere.
C. No, the Philippine courts cannot acquire jurisdiction over the case of
Felipe. Firstly, under the rule of forum non conveniens, the Philippine court is not a
convenient forum as all the incidents of the case occurred outside the Philippines.
Neither are both Coals and Energy doing business inside the Philippines. Secondly,
the contracts were not perfected in the Philippines. Under the principle of lex loci
contractus, the law of the place where the contract is made shall apply. Lastly, the
Philippine court has no power to determine the facts surrounding the execution of
said contracts. And even if a proper decision could be reached, such would have no
biding effect on Coals and Energy as the court was not able to acquire jurisdiction
over the said corporations. (Manila Hotel Corp. v. NLRC. 343 SCRA 1, 13-14[2000])
01; Conflict of laws; forum non-conveniens; long-arm statute
1994 No. 2:
1) What is the doctrine of Forum non conveniens?
2) What is a "long arm statute"? Alternative Answers:
1) a) Forum non conveniens is a principle in Private International Law that
where the ends of justice strongly indicate that the controversy may be more suitably
tried elsewhere, then jurisdiction should be declined and the parties relegated to
relief to be sought in another forum. (Moreno. Philippine Law Dictionary, p. 254,
1982 ed.).
b) Where in a broad sense the ends of justice strongly indicate that the
controversy may be more suitably tried elsewhere, then jurisdiction should be
declined and the parties relegated to relief to be sought in another forum. (Handbook
on Private International Law, Aruego).
c) Forum non conveniens means simply that a court may resist imposition
upon Its jurisdiction even when jurisdiction Is authorized by the letter of a general
venue statute. (Salonga. Private International Law. p, 51. 1967 ed.)
d) Forum non conveniens is a doctrine whereby a court of law having full
Jurisdiction over a case brought in a proper venue or district declines to determine
Page 35 of 391
the case on its merits because Justice would be better served by the trial over the
case in another jurisdiction. (Webster's Dictionary)
(2} a) Long arm statute is a legislative act which provides for personal
jurisdiction, via substituted service or process, over persons or corporations which
are non-residents of the state and which voluntarily go into the state, directly or by
agent or communicate with persons in the state for limited purposes, inactions which
concern claims relating to performance or execution of those purposes (Black's Law
Dictionary, 5th Ed. 1979).
b) Long arm statute refers simply to authorized substituted service.
01; Conflict of laws; laws governing contracts
1992 No 14:
X and Y entered into a contract in Australia, whereby it was agreed that X
would build a commercial building for Yin the Philippines, and in payment for the
construction, Y will transfer and convey his cattle ranch located In the United States
in favor of X.
What law would govern:
a) The validity of the contract?
b) The performance of the contract?
c) The consideration of the contract?
Answer:
(a) The validity of the contract will be governed by Australian law, because
the validity refers to the element of the making of the contract in this case.
(Optional Addendum:"... unless the parties agreed to be bound by another
law".}
(b) The performance will be governed by the law of the Philippines where the
contract Is to be performed.
(c) The consideration will be governed by the law of the United States where
the ranch is located.
(Optional Addendum: In the foregoing cases, when the foreign law would
apply, the absence of proof of that foreign law would render Philippine law
applicable under the "eclectic theory".)
01; Conflict of laws; laws governing contracts of carriage
1995 No. 10:
On 8 December 1991 Vanessa purchased from the Manila office of Euro-Aire
an airline ticket for its Flight No. 710 from Dallas to Chicago on 16 January 1992.
Her flight reservation was confirmed. On her scheduled departure Vanessa checked
in on time at the Dallas airport. However, at the check-in counter she discovered that
she was waitlisted with some other passengers because of intentional overbooking,
a Euro-Aire policy and practice. Euro-Alre admitted that Vanessa was not advised of
such policy when she purchased her plane ticket. Vanessa was only able to fly two
days later by taking another airline.
Vanessa sued Euro-Aire In Manila for breach of contract and damages. Euro-
Aire claimed that it cannot be held liable for damages because Its practice of
overbooking passengers was allowed by the U.S. Code of Federal Regulations.
Vanessa on the other hand contended that assuming that the U.S. Code of Federal
Regulations allowed Intentional overbooking, the airline company cannot invoke the
U.S. Code on the ground that the ticket was purchased in Manila, hence, Philippine
Page 36 of 391
law should apply, under which Vanessa can recover damages for breach of contract
of carriage.
Decide. Discuss fully. Answer;
Vanessa can recover damages under Philippine law for breach of contract of
carriage, Philippine law should govern as the law of the place where the plane
tickets were bought and the contract of carriage was executed. In Zalamea v. Court
of Appeals (G.R No. 104235, Nov. 10, 1993) the Supreme Court applied Philippine
law in recovery of damages for breach of contract of carriage for the reason that it is
the law of the place where the contract was executed.
Alternative Answer:
If the violation of the contract was attended with bad faith, there is a ground to
recover moral damages. But since there was a federal regulation which was the
basis of the act complained of, the airline cannot be in bad faith. Hence, only actual
damages can be recovered. The same is true with regards to exemplary damages.
01; Conflict of laws; laws governing divorce
1987 No. 1:
Alma, a Filipino citizen went to the United States on a tourist visa. Wanting to
legalize her stay and obtain permanent employment, she married John, an American
citizen, for a fee, with the understanding that after a year, John would divorce her.
As agreed upon the two obtained a divorce in Reno, Nevada.
(a) Suppose that after the divorce Alma consults you on the question of
how she can now marry her childhood sweetheart Rene, in the Philippines
preferably, or if that cannot to done, in some other country where Alma and Rene
are prepared to go so that they can be joined in wedlock and live the life they had
dreamed about. What advice will you give Alma. Explain.
(b) Suppose on the other hand that Alma and John decided to give their
marriage a try. They had seven years of marriage. Alma eventually became an
American citizen, but the marriage soured and ended up in a divorce, just the same.
This time Alma wants a marriage for keeps, so she comes back to the
Philippines to Rene who, ever faithful, has waited for seven long years. Can she and
Rene contract a valid marriage? Explain.
Answer:
(First Assumption)
a. Assuming that the marriage of Alma and John is valid, then the divorce
obtained by them is void because of Article 15 of the Civil Code. Hence a marriage
between Alma and Rene in the Philippines or elsewhere will be bigamous. The
advice to Alma, therefore, is for her not to marry Rene.
b. Since Alma became an American citizen and presumably she had that
citizenship at the time of the divorce, if the divorce is valid under the American law or
the law of her nationality at that time, then she would be released from her marriage
with John. Alma and Rene can contract a valid marriage when she comes back to
the Philippines.
(Second Assumption)
a. Assuming that the marriage of Alma and John is fictitious, there having
been no real intent to enter into the marriage, and there having been no consent at
all since Alma's intention was merely to legalize her stay and obtain permanent
employment, the marriage between Alma and John is void. On this premise, my
Page 37 of 391
advice to Alma would be that she can now marry her childhood sweetheart Rene in
the Philippines or in any other country for that matter.
b. Assuming, upon the other hand, that Alma and John did intend to marry
and give their marriage a try, and Alma eventually became an American citizen, the
divorce would be valid. Hence, she and Rene can contract a valid marriage upon
her return to the Philippines.
01; Conflict of laws; laws governing marriages
1992 No 1:
In 1989, Maris, a Filipino citizen, married her boss Johnson, an American
citizen, In Tokyo in a wedding ceremony celebrated according to Japanese laws.
One year later, Johnson returned to his native Nevada, and he validly obtained in
that state an absolute divorce from his wife Maris.
After Maris received the final judgment of divorce, she married her childhood
sweetheart Pedro, also a Filipino citizen, in a religious ceremony in Cebu City,
celebrated according to the formalities of Philippine law. Pedro later left for the
United States and became naturalized as an American citizen. Maris followed Pedro
to the United States, and after a serious quarrel, Marts filed a suit and obtained a
divorce decree issued by the court in the state of Maryland.
Maris then returned to the Philippines and in a civil ceremony celebrated in
Cebu City according to the formalities of Philippine law, she married her former
classmate Vincent likewise a Filipino citizen.
a) Was the marriage of Maris and Johnson valid when celebrated? Is their
marriage still validly existing now? Reasons.
Answer:
(a) The marriage of Mans and Johnson was valid when celebrated because
all marriages solemnized outside the Philippines (Tokyo) in accordance with the
laws in force in the country where they are solemnized (Japan), and valid there as
such, are also valid in the Philippines.
Their marriage no longer validly subsists, because it has been dissolved by
the absolute divorce validly obtained by Johnson which capacitated Maris to remarry
(Art. 26. Family Code).
01; Conflict of laws; laws governing marriages celebrated abroad
1975 No. 1
X and Y, both Filipino citizens and cousins within the fourth degree of
consanguinity entered into a marriage contract in Hongkong. Assuming that the
marriage is valid in Hongkong, is such marriage valid in the Philippines? Why?
Answer:
No, the marriage will be considered void in the Philippines. Under Article 71
of the Civil Code, all marriages performed outside the Philippines in accordance with
the laws in force in the country where they were performed, and valid there as such,
shall also be valid in the country, except bigamous, polygamous, or incestuous
marriages as determined by Philippine Law. A marriage between first cousins is
incestuous and void ab initio under Article 81 of the Civil Code.
Moreover, under Article 15 of the Civil Code, laws relating to family rights and
duties, or to the status, condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad. Article 81(3), which provides
that marriages between collaterals within the fourth civil degree are void ab initio is a
Page 38 of 391
law relating to the legal capacity of persons and is thus binding upon Filipinos, even
though they are abroad.
01; Conflict of laws; laws governing marriages; forms and solemnities
2003 No II
Gene and Jane, Filipino, met and got married in England while both were
taking up post-graduate courses there. A few years after their graduation, they
decided to annul their marriage. Jane filed an action to annul her marriage to Gene
in England on the ground of latter’s sterility, a ground for annulment of marriage in
England. The English court decreed the marriage annulled. Returning to the
Philippines, Gene asked you whether or not he would be free to marry his former
girlfriend. What would your legal advice be? 5%
Suggested Answer:
No, Gene is not free to marry his former girlfriend. His marriage to Jane is
valid according to the forms and solemnities of British law, is valid here (Article 17,
1st par., NCC). However, since Gene and Jane are still Filipinos although living in
England, the dissolution of their marriage is still governed by Philippine law (Article
15, NCC). Since, sterility is not one of the grounds for the annulment of a marriage
under Article 45 of the Family Code, the annulment of Gene’s marriage to Jane on
that ground is not valid in the Philippines (Article 17, NCC)
Alternative Answer:
Yes, Gene is free to marry his girlfriend because his marriage was validly
annulled in England. The issue of whether or not a marriage is voidable, including
the grounds therefore, is governed by the law of the place where the marriage was
solemnized (lex loci celebrationis). Hence, even if sterility is not a ground to annul
the marriage under the Philippine law, the marriage is nevertheless voidable
because sterility makes the marriage voidable under English law. Therefore,
annulment of the marriage in England is valid in the Philippines.
01; Conflict of laws; laws governing marriages; forms and solemnities
1989 No. 1:
(1) Robert and Evelyn, both Filipinos, met in Los Angles, California. They
agreed to get married on June 10, 1989. On June 7, 1989, Robert flew to New York
due to an urgent business matter but intended to return to Los Angeles on June 9,
1989, in time for the wedding. The business emergency of Robert, however, lasted
longer than he expected so that he failed to return to Los Angeles as planned. In
order not to postpone the wedding, Robert immediately called his brother Val who
was also residing at Los Angeles to stand as his proxy at the wedding, which the
latter did. Is the marriage of Robert and Evelyn valid in the Philippines? Give your
reasons,
Answer:
If the marriage was performed in accordance with the laws of California and
valid there, then the marriage is likewise valid in the Philippines.
Alternative Answer:
Since the problem does not state the California law on marriage by proxy, the
presumption in Private International Law is that the California law is the same as the
Philippine law. Therefore, the marriage would be void.
(2) While "X", an Associate Justice of the Court of Appeals, was vacationing
in Cebu City, he was requested to solemnize the marriage of Serge and Joan in the
residence of Serge's parents. "X" could not refuse the request of both the parents of
Page 39 of 391
the couple because they were his relatives. On the day set for the wedding, there
were so many visitors at the residence of Serge's parents so that "X" decided to
solemnize the marriage at the kiosk of the public plaza located nearby, Is the
marriage of Serge and Joan valid? Give your reasons.
Answer:
Yes, because the requirement that the marriage be solemnized in a public
place is not an essential requisite of the law.
01; Conflict of laws; laws governing real and personal property
1988 No. 12:
(a) Pursuant to private international law or conflict of laws, to what law is real
property as well as personal property subject? Are there any exceptions to the rule?
If there are, name them.
Answer:
(a) Real property as well as personal property is subject to the law of the
country where it is situated (Art. 16, par. 1, CC). There are, however, two exceptions
to this rule. They are: (1) under the second paragraph of Art. 16, which declares
that testamentary and intestate succession, both with respect to the order of
succession, the amount of successional rights and the intrinsic validity of
testamentary provisions shall be regulated by the national law of the decedent; and
(2) under No. 2 Art. 124, which declares that if the husband is a foreigner and the
wife is a Filipino, their property relations shall be governed by the husband's national
law, without prejudice to the provisions of the Civil Code with regard to immovable
property.
01; Conflict of laws; laws governing succession
1986 No. 13:
Mr. Burnside, a citizen of the State of California but domiciled in the
Philippines, made a will in Manila providing that his estate should be distributed in
accordance with Philippine law. At the time of his death, Burnside's estate consisted
of bank accounts in various Philippine banks.
Is the testamentary provision valid? Explain.
What law would govern if Burnside had not made such a testamentary
provision. Explain.
Answer:
The testamentary provision is not valid. According to the Civil Code, there are
four aspects of succession which are governed by the national law of the decedent if
he is a foreigner. They are: first, the order of succession; second, the amount of
successional rights; third, the intrinsic validity of testamentary provisions; and fourth,
the capacity to succeed. It is obvious that the proviso in Burnside's will providing that
his estate shall be distributed in accordance with Philippine Law is contrary to the
explicit mandate of the Civil Code. Therefore, it is void.
If Burnside had not made the above-stated testamentary provision, applying
the doctrine of single renvoi, the law of the Philippines shall be applied. Under the
law of the Philippines, the national law of Burnside shall govern. That means the law
of California. Now, what does the law of California say? According to the conflicts-
rule-law of California, the internal law of Burnside's domicile shall govern and not the
law of California. So, the case is referred back (renvoi) to the internal law of the
Philippines. The law of the Philippines shall, therefore, be applied in the distribution
of Burnside's estate,
Page 40 of 391
(Note: .The answer to the first question is based upon Arts. 16, par. 2, and
1039 of the Civil Code and upon Bellis vs. Bellis, 20 SCR A 358. The answer to the
second question is based upon Art. 16, par. 2, of the Civil Code and upon Aznar vs.
Christensen-Garcia, 7 SCRA 95.)
Answer - The validity of the testamentary provision would depend on whether
the law of California allows such choice.
If Burnside had not made such testamentary provision, Philippine law would
govern, as in the case of Aznar, it was found that California adopts the domiciliary
theory. As the decedent is domiciled in the Philippines, the Philippine law on
succession will apply.
Answer - The laws of the country of which a person is a citizen shall govern
the intrinsic validity of his will — as to the order of succession and amounts to be
distributed to his heirs. The testamentary provision is therefore invalid. However, the
provision shall be given effect not by reason of its validity but because of Philippine
laws which have to govern property situated in the Philippines.
Because his estate consisted only of bank accounts in Philippine banks,
Philippine law should still govern.
01; Conflict of laws; laws governing succession
1988 No. 12:
(b) What are the four aspects of succession which are governed by the
national law of the decedent if he is a foreigner?
Answer:
(b) The four aspects of succession which are governed by the national law of
the decedent if he is a foreigner are: first, the order of succession; second, the
amount of successional rights; third, the intrinsic validity of testamentary provisions;
and fourth, the capacity to succeed. (Arts, 16, par. 2, 1039, CC; sec Bellis vs. Bellis.
20 SCRA 358.)
01; Conflict of laws; laws governing succession
1976 No. V-b
Which law shall govern the successional rights? Explain.
Answer
Article 16, paragraph 2 provides that successional rights shall be regulated by
the national law of the person whose succession is under consideration. Since B is a
citizen of Texas, the law that should govern successional rights should be the law of
Texas. However, if the law of Texas recognizes the domiciliary rule that
successional rights shall be governed by the law of the domicile of the decedent,
then, Philippine Law on Succession shall apply.
01; Conflict of laws; laws governing succession
1980 No. VI
(b) "U", an American citizen who used to stay in New York, married "V", a
Filipina. They lived in Manila, "U" died leaving a will disposing of his real and
personal properties both in Manila and New York according to the laws of New York.
The will was presented for probate in Manila, "V" assailed the validity of the will
claiming that the properties of "U" must be distributed according to Philippine laws
where "U" was domiciled at the time of his death.
How would you resolve the issue?
Answer
Page 41 of 391
(b) The will itself should be admitted to probate.
It must be observed that the issue raised by "V" involves the intrinsic validity
of testamentary provisions. It is well-settled that a probate court cannot, as a general
rule, inquire into the validity of testamentary provisions. Its area of inquiry is limited.
It can only inquire into the following: (a) the due execution of the will; and (b) the
testamentary capacity of the testator.
There are, however, some exceptions to the above rule. Assuming then that
the case at bar falls under one of these exceptions, as far as the contention of "V" is
concerned, we must distinguish. Thus —
If under New York law, there is no conflicts law rule declaring that it will be
the decedent's domiciliary law that will govern, then "V" is not correct. This is so
because according to our Civil Code, it will be the .decedent's national law that will
govern. (Art. 16, par. 2, Civil Code).
However, if under New York law, there is a conflicts law rule declaring that it
will be the decedent's domicilliary law that will govern, then "V" is correct. It is now a
settled doctrine in this jurisdiction that when the Civil Code says that it will be the
decedent's national law that will govern, it refers not only to the internal law of the
decedent's state with respect to succession but even to the conflicts law rule. So, the
case is referred back (renvoi) to the internal law of the Philippines where the
decedent was domiciled at the time of his death. Consequently, as far as the
distribution of "U's" properties is concerned, it should be the law of the Philippines
that will govern and not the law of New York, (Agnar vs. Christensen-Garcia, 7
SCRA 95; Bellis vs. Bellis, 20 SCRA S58.)
(Note: If the bar candidate attacks the problem directly by invoking the
provision of the second paragraph of Art. 16 of the Civil Code, the Committee
respectfully recommends that the answer should be considered as correct. If the
candidate attacks the problem from the procedural point of view, basing his answer
on Art. 838 of the Civil Code in relation to the Rules of Court, the Committee
respectfully recommends that due credit should -be given.)
01; Conflict of laws; laws governing succession of aliens
1984 No, 20
A, a foreigner, married B, a Filipino, and settled in the Philippines. They begot
a son, C. Under the laws of A's country, the system of complete separation of
property is followed, and the husband can freely dispose of his properties without
restriction.
During the marriage, A bought a large number of shares of Philex Mining
Company out of his salary as a World Bank consultant.
Upon A's death, it was found that he left a will leaving all his Philex shares —
the only property acquired during his marriage — exclusively to his brother D, totally
omitting B and C. B and C, therefore, opposed the will on the ground of the
preterition of C, among others. Additionally, B claimed that 1/2 of the Philex shares
of stock should pertain to her as her conjugal share.
Is the will valid? If you were the judge, how would you rule on the issues
raised by B and C?
Answer:
A. Furnished by Office of Justice Palma
Under Article 16 of the Civil Code, in testamentary succession, the intrinsic
validity of testamentary shall be regulated by the national law of A's country. Thus,
since the laws of A's country allow him to freely dispose of his property, the
Page 42 of 391
testamentary dispositions in favor of his brother would be valid even though he
totally omits his wife and son. B, is also not entitled to one-half of the Philex shares.
Under Art. 124, the law of the husband's country shall govern their property
relations, which, in this case, was the system of complete separation of property.
Since the Philex shares were acquired by A out of his salary, the shares belonged
exclusively to him.
B. Comments and Suggested Answer
We agree with the answer of the Bar Examiner, However, if the bar candidate
will hold that the will is valid on the ground that the questions of preterition and
intrinsic validity of testamentary provisions are questions which a probate court
cannot determine, and then, he finally resolves the issues of preterition and intrinsic
validity of testamentary provisions correctly, said answers should be considered a
correct answer.
01; Conflict of laws; laws governing sucession of aliens
1995 No. 15:
Michelle, the French daughter of Penreich, a German national, died in Spain
leaving real properties in the Philippines as well as valuable personal properties in
Germany.
1. What law determines who shall succeed the deceased? Explain your
answer and give its legal basis.
2. What law regulates the distribution of the real properties in the
Philippines? Explain your answer and give its legal basis.
3. What law governs the distribution of the personal properties in Germany?
Explain your answer and give its legal basis.
Answer:
Assuming that the estate of the decedent is being settled in the Philippines)
1. The national law of the decedent (French law) shall govern in determining
who will succeed to his estate. The legal basis is Art. 16 par. 2, NCC.
Alternative Answer:
French law shall govern the distribution of his real properties in the
Philippines except when the real property is land which may be transmitted to a
foreigner only by hereditary succession.
2. The distribution of the real properties in the Philippines shall be governed
by French law. The legal basis is Art. 16, NCC).
3. The distribution of the personal properties in Germany shall be governed
by French law. The legal basis is Art. 16, NCC).
01; Conflict of laws; laws governing wills executed abroad
1975 No. II
A, while traveling in Tokyo, Japan executed his will before a diplomatic official
of the Philippines. Only two witnesses signed the attestation clause. Upon his return
to the Philippines A filed a petition to probate the will. The petition is opposed on the
ground that the will is not attested by three witnesses. Assuming that in Japan only
two witnesses are required to attest a will, may the will of A be admitted to probate?
Why?
Answer
Page 43 of 391
No, A's will may not be admitted to probate in the Philippines. Although under
Article 815, a Filipino in a foreign country is authorized to make a will in any form
established by the law of the country in which he may be. Article 17 of the Civil Code
is more explicit and provides that when acts, such as will are executed in a foreign
country before diplomatic or consular officials of the Philippines, the solemnities
established by Philippine laws shall be observed in their execution. Article 17,
paragraph 2, is more of a special provision while Article 815 is but a reiteration of the
general principle of lex loci celebraciones embodied in the first paragraph of Article
17. One of title solemnities required by our laws regarding wills is the attestation and
subscription of at least three witnesses. (Art 805, par. 1)
01; Conflict of laws; laws governing wills of an alien
1985 No. 10:
C) An Englishman, who had resided in the Philippines for a long time,
executed a will in France, disposing of his real and personal properties in the
Philippines.
What law governs the validity of his will? Discuss.
Answers:
C) 1. With respect to the intrinsic validity of the will, it is English law in force
at the time of his death. That rule is absolute without any exception. With respect
however to the extrinsic or formal validity of the will, it is the law of England or of
France or of the Philippines in force at the time of the execution of the will
2. Article 16—Real property as well as personal property is subject to the law
of the country where it is situated. However, the order of succession, the amount of
successional rights and the intrinsic validity of the testamentary provisions shall be
regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the
country wherein said property may be found.
3. Article 16 and Article 1039 provide as follows:
"Art. 16. Real property as well as personal property is subject to the law of
the country where it is situated.
"However, intestate and testamentary Successions, both with respect to the
order of succession and to the amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found,"
"Art. 1039. Capacity to succeed is governed by the law of the nation of the
decedent."
4. The extrinsic validity of a will of an alien is governed by the law of the
place where the will is executed, where he resides, where he is a national or by the
Civil Code (Arts, 17 and 816). The intrinsic validity of the will, however, shall be
governed by the law of England since the nationality law governs (Art. 16, Civil
Code).
01; Conflict of laws; nationality theory
2004 No. VII
A. PH and LV are HK Chinese. Their parents are now Filipino citizens who
live in Manila. While still students in MNS State, they got married although they are
first cousins. It appears that both in HK and in MNS State first cousins could marry
legally.
Page 44 of 391
They plan to reside and set up business in the Philippines. But they have
been informed, however, that the marriage of first cousins here is considered void
from the beginning by reason of public policy. They are in a dilemma. They don’t
want to break Philippine law, much less their marriage vow. They seek your advice
on whether their civil status will be adversely affected by Philippine domestic law?
What is your advice? (5%)
01; Conflict of laws; nationality theory; effect of divorce secured abroad
1981 No. 4:
Spouses, husband "H" and wife "W", Filipinos, with a child, decided that "H",
a doctor, would go to the U.S. to find employment there and then "W" would join
him. When in the U.S., "H" wrote that to establish U.S. residence, he would have to
obtain a divorce, marry an American girl, and once a U.S. resident, divorce his
American wife and then remarry "W" "W" agreed.
Four years later, "H", now a U.S. resident and having divorced his American
wife, returns to the Philippines and finds that his wife, "W", has married a wealthy
man in a ceremony celebrated in Hongkong and is happily living with him in Manila.
a) Was the marriage and divorce obtained by "H" in the U.S. valid?
b) Was the marriage of "W" in Hongkong valid?
Answer
(a) Both divorce and marriage are not valid in the Philippines.
The divorce is not valid for the following reasons:
(1) We adhere to the nationality theory. The Civil Code declares that laws
relating to family rights and duties, or the status, condition and legal capacity of
persona are binding upon citizens of the Philippines even though living abroad.
Divorce certainly affects the status and condition of persons. Since absolute divorce
is not recognized in this country except among Muslims, therefore, the decree of
absolute divorce obtained by "H" is not valid
(2) It is well-settled that absolute divorce is contrary to public policy.
According to the Civil Code, this declaration of public policy cannot be rendered
ineffective by a judgment promulgated in a foreign country,
The marriage of "H" to an American woman is not also valid. True, we adhere
to the principle of locus regit actum— a marriage valid where celebrated is also valid
in the Philippines, but excepted from this rule are bigamous, polygamous and
incestuous marriages as determined by Philippine law. Since the divorce obtained
by "H" from "W" is not valid in this country as stated above, the subsequent marriage
to an American woman is dearly bigamous as determined by Philippine law.
Therefore, the marriage is not valid.
(Note: The above answers are based on Arts. 15,17, par. 3, and 71 of the
Civil Code and on decided cases.)
(b) Using the same line of reasoning, "W's" marriage to another man in
Hongkong is not also valid. Since the decree of absolute divorce obtained by her
husband "H" in the U.S. is not valid under Philippine law for the reasons stated
above, her marriage in Hongkong to another man is clearly bigamous as determined
by Philippine law. Therefore, it is not valid.
(Note: The above answer is based on Arts. 16 and 71 of the Civil Code.)
01; Conflict of laws; naturalization
2003 No III
Page 45 of 391
Miss Universe, from Finland, came to the Philippines on a tourist visa. While
in this country, she fell in love with and married a Filipino doctor, Her tourist visa
having been expired and after the maximum extension allowed therefore, the
Bureau of Immigration and Deportation (BID) is presently demanding that she
immediately leave the country but she refuses to do so, claiming that she is already
a Filipino Citizen by her marriage to a Filipino citizen. Can the BID still order the
deportation of Miss Universe? Explain. 5%
Suggested Answer:
Yes, the BID can order the deportation of Miss Universe. The marriage of an
alien woman to a Filipino does not automatically make her a Filipino Citizen. She
must first prove in an appropriate proceeding that she does not have any
disqualification for Philippine citizenship. (Yung Uan Chu v. Republic of the
Philippines, 158 SCRA 593 [1988]). Since Miss Universe is still a foreigner, despite
her marriage to a Filipino doctor, she can be deported upon expiry of her allowable
stay in the Philippines.
Another suggested Answer:
No, the Bureau of Immigration cannot order her deportation. An alien woman
marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipino if she is
not disqualified to be a citizen of the Philippines (Mo Ya Lim v Commission of
Immigration, 41 SCRA 292 [1971]), (Sec 4, Naturalization Law). All that she has to
do is prove in the deportation proceeding the fact of her marriage and that she is not
disqualified to become a Filipino Citizen.
Another suggested Answer:
It depends. If she is disqualified to be a Filipino citizen, she may be deported.
If she is not disqualified to be a Filipino citizen, she may not be deported. An alien
woman who marries a Filipino citizen becomes one. The marriage of Miss Universe
to the Filipino doctor did not automatically make her a Filipino citizen. She still has
to prove that she is not disqualified to become a citizen.
01; Conflict of laws; operation of foreign laws upon resident
1977 No, I-c
Cite five (5) provisions of the New Civil Code which recognize the operation
of foreign laws upon residents of the Philippines.
Answer
Some of the provisions of the Civil Code which sanction the operation of
foreign laws upon Philippine residents are:
(a) Art. 16, paragraph 2, which states that intestate and testamentary
successions, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under
consideration.
(b) Art. 17, paragraph 1, which states that the forms and solemnities of
contracts, wills, and other public instruments shall be governed by the laws of the
country in which they are executed.
(c) Art. 66, which states that when either or both of the contracting parties
(to a marriage contract) are citizens or subjects of a foreign country, it shall be
necessary, before a marriage license can be obtained, to provide themselves with a
certificate of legal capacity to contract marriage, to be issued by their respective
diplomatic or consular officials.
Page 46 of 391
(d) Art. 71, which states that all marriages performed outside the
Philippines in accordance with the laws in force in the country where they were
performed, and valid there as such, shall also be valid in this country, except
bigamous, polygamous, or incestuous marriages as determined by Philippine law.
(e) Art. 124, No. (2), which states that if the husband is a foreigner and the
wife is a citizen of the Philippines, (as far as their property relations are concerned),
the laws of the husband's country shall be followed without prejudice to the
provisions of the Civil Code with regard to immovable property.
(f) Art. 815, which states that when a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by the law of the country in
which he may be. Such will may be probated in the Philippines.
(g) Art. 816, which states that the will of an alien who is abroad produces
effect in the Philippines if made with the formalities prescribed by the law of the
place in which he resides, or according to the formalities observed in his country, or
in conformity with those which the Civil Code of the Philippines prescribes.
(h) Art. 817, which states that a will made in the Philippines by a citizen or
subject of another country, which is executed in accordance with the law of the
country of which he is a citizen or subject, and which might be proved and allowed
by the law of his own country, shall have the same effect as if executed according to
the laws of the Philippines.
(i) Art. 1039, which states that capacity to succeed is governed by the law of
the nation of the decedent.
(j) Art. 1753, which states that the law of the country to which the goods are
to be transported shall govern the liability of the common carrier for their loss,
destruction, or deterioration.
01; Conflict of laws; processual presumption
1976 No. V-c
May our courts take judicial notice of the laws of Texas, U.S.A.? Explain.
Answer
No, because our courts may take judicial notice only of local laws, arid foreign
laws must be pleaded and proved in evidence. However, in the absence of proof of
what the foreign law is, it shall be presumed that the foreign law is the same as the
Philippine law. (Miciano vs. Brimo)
01; Conflict of laws; renvoi doctrine
1997 No. 2:
In 1977, Mario and Clara, both Filipino citizens, were married in the
Philippines. Three years later, they went to the United States of America and
established their residence in San Francisco, California. In 1987, the couple applied
for, and were granted, U.S. citizenship. In 1989, Mario, claiming to have been
abandoned by Clara, was able to secure a decree of divorce in Reno, Nevada,
U.S.A.
In 1990, Mario returned to the Philippines and married Juana who knew well
Mario's past life.
(a) Is the marriage between Mario and Juana valid?
(b) Would the renvoi doctrine have any relevance to the case?
Answer;
Page 47 of 391
(a) Yes, because Phil law recognizes the divorce between Mario and Clara
as valid.
(b) No, The renvoi doctrine is relevant in cases where one country applies
the domiciliary theory and the other the nationality theory, and the issue involved is
which of the laws of the two countries should apply to determine the order of
succession, the amount of successional rights, or, the intrinsic validity of
testamentary provisions. Such issue is not involved in this case.
Alternative Answer;
Yes. "Renvoi" - which means "referring back" is relevant because here, we
are applying U.S. law to Mario, being already its citizen, although the formalities of
the second marriage will be governed by Philippine law under the principle of lex loci
celebrationis.
01; Conflict of laws; renvoi doctrine
1988 No. 12:
(c) A, a citizen of California, U.S.A. but domiciled in the Philippines, died
testate in Manila, survived by two acknowledged natural children, B and C. In his
will, he left more than P500,000.00 to B and only P3,000.00 to C. It is admitted that
under the Civil Code of California, the domiciliary law of the decedent shall govern
questions involving the validity of testamentary provisions, C, who is contesting the
validity of the disposition in favor of B now contends that the Philippine laws with
respect to succession are applicable. Is this correct? Give your reasons.
Answer:
(c) Yes, this is correct. The doctrine of renvoi is applicable in the instant
case. Although the Civil Code in Art, 16 states that the intrinsic validity of
testamentary provisions shall be regulated by the decedent's national law,
nevertheless, the Civil Code of California declares that the decedent's domiciliary
law shall govern. Hence, the question shall be referred back to the decedent's
domicile. In other words, the laws of the Philippines with respect to succession shall
govern. Consequently, in the partition of the estate, C shall be given a share which
must not be less than his legitime. (Aznar vs. Garcia, 7 SCRA 93).
01; Conflict of laws; renvoi doctrine
1976 No. V-a
A and B, husband and wife respectively, are both citizens of Texas, U.S.A.
and domiciled in Manila. B dies in Quezon City, leaving properties in Makati, Rizal.
Illustrate how the renvoi doctrine operates.
Answer
According to the Civil Code which follows the Nationality Theory (Article 16),
successional rights are governed by the law of the nation of the decedent; but
according to the domiciliary theory, successional rights are determined by the law of
his domicile. B, being an American citizens but domiciled in Manila, there lies the
conflict. If the Texas law follows the domiciliary theory, therefore, the Texas law will
refer the matter to Philippine Law, the situs of B's domicile, in which case the
Philippine law will apply. This is how the renvoi doctrine operates.
01; Conflict of laws; renvoi doctrine; characterization
1977 No. XIX-a
When the conflicts rule of the forum refers a matter to a foreign law for
decision, is the reference to the corresponding conflicts rule of that foreign law, or is
the reference to the purely internal rules of the foreign system?
Page 48 of 391
Answer
The reference is to the corresponding conflicts rule of the foreign law. This
was the answer of the Supreme Court in the Christensen case (Aznar vs.
Christensen-Garcia) where it accepted the renvoi. If such conflicts rule says that the
internal law of the decedent's domicile shall govern, and he was domiciled in the
Philippines at the time of his death, the case is referred back (renvoi) to the internal
law of the Philippines. The Philippine court must, therefore, apply the law of the
Philippines.
01; Conflict of laws; significant relationships theory
1994 No. 20:
Able, a corporation domiciled in State A, but, doing business in the
Philippines, hired Eric, a Filipino engineer, for its project in State B. In the contract of
employment executed by the parties in State B, it was stipulated that the contract
could be terminated at the company's will, which stipulation is allowed in State B.
When Eric was summarily dismissed by Able, he sued Able for damages in the
Philippines.
Will the Philippine court apply the contractual stipulation?
Alternative Answers:
a) Using the "significant relationships theory", there are contacts significant
to the Philippines. Among these are that the place of business is the Philippines, the
employee concerned is a Filipino and the suit was filed in the Philippines, thereby
justifying the application of Philippine law. In the American Airlines case the Court
held that when what is involved is paramount state Interest such as the protection of
the rights of Filipino laborers, the court can disregard choice of forum and choice of
law. Therefore the Philippine Court should not apply the stipulation in question.
b) No, lex fori should be applied because the suit is filed in Philippine courts
and Eric was hired in the Philippines. The Philippine Constitution affords full
protection to labor and the stipulation as to summary dismissal runs counter to our
fundamental and statutory laws.
01; Conflict of laws; theory of effective nationality
1977 No. XIX-b
A was considered a Chinese citizen under Nationalist China laws and a
Japanese under the laws of Japan. He died in Manila, leaving properties in the
Philippines. Before his death, he was domiciled in Japan, How should a Philippine
Court adjudicate the successional rights to his estate?
Answer
The Philippine Court should adjudicate the successional rights to A's estate in
accordance with Japanese law. This solution is in conformity with the theory of
effective nationality and the conflict of nationality laws of the Hague Convention. It is
obvious that A himself preferred Japanese law to Chinese law because he was not
only a citizen but also a domiciliary of Japan. True, we adhere to the nationality
theory (Art. 16, Civil Code), but here, the domiciliary theory merely comes to the
rescue of the nationality theory.
01; Conflict of laws; torts; prescriptive period
2004 No. VII
B. In a class suit for damages, plaintiffs claimed they suffered injuries from
torture during martial law. The suit was filed upon President EM’s arrival on exile in
HI, a U.S. state. The court in HI awarded plaintiffs the equivalent of P100 billion
Page 49 of 391
under the U.S. law on alien tort claims. On appeal, EM’s Estate raised the issue of
prescription. It argued that since said U.S. law is silent on the matter, the court
should apply: (1) HI’s law setting a two-year limitation on tort claims; or (2) the
Philippine law which appears to require that claims for personal injury arising from
martial law be brought within one year.
Plaintiffs countered that provisions of the most analogous federal statute, the
Torture Victims Protection Act, should be applied. It sets ten years as the period for
prescription. Moreover, they argued that equity could toll the statute of limitations.
For it appeared that EM had procured Constitutional amendments granting himself
and those acting under his direction immunity from suit during his tenure.
In this case, has prescription set in or not? Considering the differences in the
cited laws, which prescriptive period should be applied: one year under Philippine
law, two years under HI’s law, ten years under U.S. federal law, or none of the
above? Explain. (5%)
01; Conflicts of law; Art. 15
2004 No. II
A. Distinguish briefly but clearly between: 5. Domiciliary theory and
nationality theory of personal law. (5%)
01; Conflicts of Law; art. 16; capacity to succeed
1991 No 8:
Jacob, a Swiss national, married Lourdes, a Filipina, in Berne, Switzerland.
Three years later, the couple decided to reside in the Philippines. Jacob
subsequently acquired several properties in the Philippines with the money he
inherited from his parents. Forty years later. Jacob died intestate, and is survived by
several legitimate children and duly recognized illegitimate daughter Jane, all
residing in the Philippines.
(a) Suppose that Swiss law does not allow illegitimate children to inherit, can
Jane, who is a recognized illegitimate child, inherit part of the properties of Jacob
under Philippine law?
(b) Assuming that Jacob executed a will leaving certain properties to Jane as
her legitime in accordance with the law of succession in the Philippines, will such
testamentary disposition be valid?
Answer:
A. Yes. As stated in the problem. Swiss law does not allow illegitimate
children to inherit Hence, Jane cannot inherit the property of Jacob under Philippine
law.
B. The testamentary disposition will not be valid if it would contravene Swill
law; otherwise, the disposition would be valid. Unless the Swiss law is proved, it
would be presumed to be the same as that of Philippine law under the doctrine of
processual presumption.
01; Conflicts of Law; art. 17; laws governing wills executed abroad
1993 No. 3;
A, a Filipino, executed a will in Kuwait while there as a contract worker.
Assume that under the laws of Kuwait, it is enough that the testator affix his
signature to the presence of two witnesses and that the will need not be
acknowledged before a notary public.
May the will be probated in the Philippines? Answer:
Page 50 of 391
Yes. Under Articles 815 and 17 of the Civil Code, the formality of the
execution of a will is governed by the law of the place of execution. If the will was
executed with the formalities prescribed by the laws of Kuwait and valid there as
such, the will is valid and may be probated in the Philippines.
Page 51 of 391
02; Adoption; qualification of adopter
1977 No. II-b
Spouses H and W filed a petition to adopt S, the 4-year old brother of W. The
City Fiscal objected, because "the adoption would result in an incongruity, where S
would be the son of his own sister". Should the petition be granted?
Answer
Yes, the petition should be granted assuming that all of the requisites of a
valid adoption arc present and that the adoption is for the best interest of S, There is
no law which prohibits it. True, such adoption would result in a dual relationship
between W and S, but this should not prevent the adoption. One is by nature, while
the other is by legal fiction. (Santos, Jr. vs. Rep., 21 SCRA 379.)
02; Adoption; qualifications of adopter
1996 No. 6:
2) Tess, a former Fillpina, now a naturalized American, and Gary, her
American husband, filed a petition for adoption of her three-year old nephew, one of
the eleven children of her destitute sister in Tondo. She had been supporting the
child since his birth, and being childless, she and her husband have come to love
him as their own son. They are both well-employed in the United States.
If you were the judge, will you grant the adoption? Explain.
Answer:
No, I will not grant the adoption. Tess and Gary must adopt jointly under Art.
185 of the Family Code. They do not fall in any of the exceptions to this rule. In
addition, both Tess and Gary must be qualified to adopt. While Tess is qualified to
adopt under Article l84[3](a) of the FC, Gary is not so qualified because he Is an
alien and he does not fall under any of the exceptions. Hence, the adoption must be
denied (Toledano v. CA. 233 SCRA 9; Republic v. CA. 22 7 SCRA 401).
02; Adoption; qualifications of adopter
2000 No V.
Sometime in 1990, Sarah, born a Filipino but by then a naturalized American
citizen, and her American husband Tom, filed a petition In the Regional Trial Court
of Makati, for the adoption of the minor child of her sister, a Filipina. Can the petition
be granted? (5%)
SUGGESTED ANSWER;
It depends. If Tom and Sarah have been residing in the Philippines for at least
3 years prior to the effectivity of RA 8552, the petition may be granted. Otherwise,
the petition cannot be granted because the American husband is not qualified to
adopt.
While the petition for adoption was filed in 1990, it was considered refiled
upon the effectivity of RA 8552, the Domestic Adoption Act of 1998. This is the law
applicable, the petition being still pending with the lower court.
Under the Act, Sarah and Tom must adopt jointly because they do not fall in
any of the exceptions where one of them may adopt alone. When husband and wife
must adopt jointly, the Supreme Court has held in a line of cases that both of them
must be qualified to adopt. While Sarah, an alien, is qualified to adopt under Section
7(b)(i) of the Act for being a former Filipino citizen who seeks to adopt a relative
within the 4th degree of consanguinity or affinity, Tom, an alien, is not qualified
because he is neither a former Filipino citizen nor married to a Filipino. One of them
not being qualified to adopt, their petition has to be denied. However, if they have
Page 52 of 391
been residents of the Philippines three years prior to the effectivity of the Act and
continues to reside here until the decree of adoption is entered, they are qualified to
adopt the nephew of Sarah under Section 7(b) thereof, and the petition may be
granted.
ALTERNATIVE ANSWER;
Since the petition was filed before the effectivity of the Domestic Adoption Act
of 1998, the Family Code is the law applicable.
Under the FC, Sarah and Tom must adopt jointly because they do not fall in
any of the exceptions where one of them may adopt alone. Under a long line of
cases decided by the Supreme Court, when husband and wife must adopt Jointly,
both of them must be qualified to adopt. While Sarah is qualified to adopt under
Article 184(3) (a) for being a former Filipino citizen who seeks to adopt a relative by
consanguinity, Tom is not. He is not a former Filipino citizen and neither is he
married to a Filipino. One of them not being qualified to adopt, the petition must be
denied.
02; Adoption; qualifications of adopter
2001 No II
A German couple filed a petition for adoption of a minor Filipino child with the
Regional Trial Court of Makati under the provisions of the Child and Youth Welfare
Code which allowed aliens to adopt. Before the petition could be heard, the Family
Code, which repealed the Child and Youth Welfare Code, came into effect.
Consequently, the Solicitor General filed a motion to dismiss the petition, on the
ground that the Family Code prohibits aliens from adopting. If you were the judge,
how will you rule on the motion? (5%)
SUGGESTED ANSWER
The motion to dismiss the petition for adoption should be denied. The law that
should govern the action is the law in force at the time of filing of the petition. At that
time, it was the Child and Youth Welfare Code that was in effect, not the Family
Code. Petitioners have already acquired a vested right on their qualification to adopt
which cannot be taken away by the Family Code. (Republic v. Miller G.R. No.
125932, April 21, 1999, citing Republic v. Court of Appeals, 205 SCRA 356)
ALTERNATIVE ANSWER
The motion has to be granted. The new law shall govern their qualification to
adopt and under the new law, the German couple is disqualified from adopting. They
cannot claim that they have already acquired a vested right because adoption is not
a right but a mere privilege. No one acquires a vested right on a privilege.
[Note: If the examinee based his answer on the current law, RA 8552, his
answer should be considered correct. This question is based on the repealed
provision of the Family Code on Adoption.]
02; Adoption; qualifications of adopter
2003 No VII.
Lina, a former Filipina who became an American citizen shortly after her
marriage to an American husband, would like to adopt in the Philippines, jointly with
her husband, one of her minor brothers. Assuming that all the required consents
have been obtained, could the contemplated joint adoption in the Philippine
prosper? Explain.
SUGGESTED ANSWER:
Page 53 of 391
Yes, Lina and her American husband can jointly adopt a minor brother of Lina
because she and her husband are both qualified to adopt. Lina, as a former Filipino
citizen, can adopt her minor brother under Sec. 7(b)(i) of RA 8552 (Domestic
Adoption Act of 1998), or under Art. 184 (3)(1) of the Family Code. The alien
husband can now adopt under Sec. 7(b) of RA8552. The Supreme Court has held in
several cases that when husband and wife are required to adopt jointly, each one of
them must be qualified to adopt in his or her own right (Republic v. Toledano, 233
SCRA 9 (1994). However, the American husband must comply with the
requirements of the law including the residency requirement of three (3) years.
Otherwise, the adoption will not be allowed.
02; Adoption; qualifications of adopters
1976 No. IV-b
If A is a non-resident Italian, may he adopt a Filipino child? Explain.
Answer
It depends, if he is qualified by the law of Italy to adopt, then he may so adopt
provided that the Philippines has not broken off diplomatic relations with Italy; but if
he is so disqualified, then he may not adopt.
02; Adoption; qualifications of adopters
1976 No. IV-c
Who may not adopt?
Answer
Under Article 28, P.D. 603, the following persons may not adopt :
(a) A married person without the written consent of the spouse;
(b) The guardian with respect to the ward prior to final approval of his
accounts;
(c) Any person who has been convicted of & crime involving moral turpitude;
(d) An alien who is disqualified to adopt according to the laws of his own
country or one with whose government the Republic of the Philippines has broken
diplomatic relations.
02; Adoption; qualifications of the adopter
1976 No IV-a
A wishes to adopt B but has certain doubts on the following matters: May A
adopt B if A has already 3 legitimate children? Explain.
Answer
Yes, under Article 27 of P.D. 603, any person of age and in full possession of
his civil rights may adopt: Provided, (1) That he is in a position to support and care
for his legitimate, legitimated, acknowledged natural children by legal fiction, or other
illegitimate children, in keeping with the means, both material and otherwise, of the
family; and (2) The children by nature, 14 years and above of the adopting parents
give written consent to the adoption.
02; Adoption; qualifications of the adopters
1995 No. 3:
In 1980 spouses Felisa and George, both Filipino citizens, migrated to the
United States. Six years later they became American citizens. In 1989 they jointly
filed a petition before the Regional Trial Court of Malabon seeking to adopt Gildah
Page 54 of 391
the 10-year old daughter of Helen, Felisa's younger sister. The government opposed
the petition on the ground that Felisa and George were disqualified since they were
already American citizens.
1, How will you resolve the petition? Explain.
2. Will your answer be the same if George were a natural-born American
citizen? Explain.
3. Will your answer be the same if Felisa were the Illegitimate parent of
Gilda? Explain.
4. Going back to the basic facts, suppose Felisa acquired her American
citizenship during the pendency of the petition for adoption, will your answer be the
same as in Question No 1?
Explain.
Answer;
1. The petition should be denied because George is not qualified to adopt.
As husband and wife, they have to adopt Jointly under Article 185 of the Family
Code. Their case does not fall in any of the exceptions where a spouse may adopt
alone. In Republic u. Toledano, (233 SCRA 9), the Court ruled that both spouses
must be qualified to adopt when required by law to adopt Jointly. Being aliens, Fellsa
and George are, as a rule, disqualified to adopt under Art. 184 of the FC. While
Fellsa falls In one of the exceptions to this rule, being a former Filipino who seeks to
adopt a relative by consanguinity, George does not. He does not seek to adopt his
relative by consanguinity, or a legitimate child of his spouse and neither Is his
spouse a Filipino. One of the spouses being disqualified to adopt, the petition has to
be denied.
Alternative Answer;
Since the adopters are former Filipino citizens and the child sought to be
adopted is a relative by consanguinity of one of them, and since the rule of joint
adoption by spouses Is duly complied with, the petition should be granted.
2. The answer will be the same if George were a natural-born American.
He will still not fall in any of the exceptions to the disqualification of aliens.
Alternative Answer;
No, my answer will be different because in that case, while Fellsa Is qualified
to adopt, the petition for joint adoption cannot be granted. It should be converted into
a petition only by Felisa. It cannot be granted as a joint petition but can be granted
as an individual petition.
3. No. the answer will be different. In such a case, Felisa may adopt alone.
Her case falls under the exception to the rule in Art, 185 requiring husband and wife
to adopt jointly, because she seeks to adopt her own illegitimate child. She is
qualified to adopt alone under Art, 184 because she is a former Filipino citizen who
seeks to adopt a relative by consanguinity. Hence, the court may decree the
adoption of Gilda by Felisa.
4. Yes, the answer will be the same as in No. 1. The adopter must be
qualified to adopt not only on the date of filing of the case, but also on the date of
judgment.
02; Adoption; successional rights of adopted child
2004 No. VIII
A. A Filipino couple, Mr. and Mrs. BM, Jr., decided to adopt YV, an orphan
from St. Claire’s orphanage in New York City. They loved and treated her like a
Page 55 of 391
legitimate child for they have none of their very own. However, BM, Jr., died in an
accident at sea, followed to the grave a year later by his sick father, BM, Sr. Each
left a sizable estate consisting of bank deposits, lands and buildings in Manila. May
the adopted child, YV, inherit from BM, Jr.? May she also inherit from BM, Sr.? Is
there a difference? Why? Explain. (5%)
02; Adoption; successional rights of adopted child
1979 No. XV
H died intestate leaving his legal wife, W, and his legally adopted son AS. In
the proceedings for the settlement of his estate, M the widowed mother of H,
intervened and claims for a share in the estate of H, AS opposes the claim of M
contending that since under the law he is given the same rights as if he were a
legitimate child, he excludes M from the estate of H. Should this opposition be
sustained? Why?
Answer
The opposition of AS should not be sustained. True, under our law, an
adopted child shall be entitled to the same successional rights as a legitimate child,
but then there is an exception. According to the law, if the adopter is survived by
legitimate parents or ascendants and by an adopted child, the latter shall not have
more successional rights than an acknowledged natural child. This merely means
that the adopted child cannot exclude the legitimate parents or ascendants in the
succession and that his legitimate or legal share shall be the same as that to which
an acknowledged natural child would be entitled. In the instant case, since H died
intestate, the share of M will therefore be 1/2; W, 14-; and AS, 1/4. (Art. 1000, Civil
Code; Del Rosario vs, Conanan, 76 SCRA 136).
02; Adoption; who are considered as natural parents
1981 No. 3
"M", an unwed mother, gave her child for adoption to a childless couple, "B-
C", for which "B-C" paid "M" P20.000.00. In the civil register of births, the father was
listed as "father unknown."
Two years later, after "B-C" learned to love the child as their own and
adoption proceedings commenced with the required publication, "F", father of the
child appeared to oppose the adoption and to seek custody of the child. "M" sided
with "B-C" claiming that "F" had abandoned her when he learned that she was
pregnant and declaring that she wanted "B-C" to keep the child
a) Could "F" frustrate the adoption and custody of the child? Explain.
b) Could "B-C" recover the P20,000.00 they had paid from either "F" or "M"?
Reasons.
Answer
(a) "F" cannot frustrate the adoption and custody of the child.
The Child and Youth Welfare Code, which is now the governing law on
adoption, expressly states that the written consent of the maternal parents is
necessary. Correlated with pertinent provisions of both the Welfare Code and the
Civil Code, the words "natural parents" can refer only to the parent or parents with
parental authority. Thus, if the child is spurious, the one with parental authority
would be the mother; if the child is natural, the one with parental authority would be
the parent who is the first to' recognize the child. In the instant case, it is obvious
that "M", not "F", has parental authority over the child. Consequently, her written
consent to the adoption would be sufficient. Besides, "F" has clearly abandoned the
Page 56 of 391
child. Even on that score alone, he could not resist the adoption and custody of the
child by "B-C"
(Note: The above answer is based on Art. 31 of PD 603 and on Arts. 288 and
311, par. 2, of the Civil Code.)
(b) "B-C" cannot recover the P20,000.00 which they had paid to "M" from
either "F" or "M", The reason is obvious. They bought the child from "M"; the latter
sold the child to them. Under the law, "M" is criminally liable. The principle of pari
delicto (insofar as the money is concerned) is now applicable. The law will not aid
either party to an illegal agreement; it leaves them where they are.
(Note: The above answer is based on Art. 14-11 of the Civil Code in relation
to Art. 59 of the Child and Youth Welfare Code.)
Page 57 of 391
02; Family Code
1987 No. 2:
A to was the registered owner of a passenger jeepney, which was involved in
a collision accident with a vegetable truck, resulting in the death of four passengers
and injuries to three. At the time of the accident, Ato was legally married to Maria but
was cohabiting with Tonia in a relationship akin to that of husband and wife.
Could the heirs of the dead passengers and the injured persons recover
damages from:
(a) Ato?
(b) Maria?
(c) Tonia?
Explain each case. Answer:
a. Ato - Yes. Insofar as the dead passengers are concerned, the heirs can
recover damages on the basis of culpa contractual. If the injured persons are also
passengers, Ato is likewise liable on the same basis of culpa contractual. However,
if the injured persons are not passengers, then the liability for damages of Ato will
be on the basis of a quasi-delict.
b. Maria - In view of the ruling in Juaniza v. Jose (89 SCRA 306) that the
passenger jeepney acquired by the husband during an illicit cohabitation with
the paramour is conjugal property, Maria is liable to the same extent as Ato insofar
as the conjugal property in the marriage between Ato and Maria could be
answerable. But as regards her paraphernal property, Maria cannot be held
answerable.
c. Tonia - No, In Juaniza v. Jose the paramour of the owner of the passenger
jeepney that figured in an accident was held to be not a co-owner, and therefore not
liable for damages. Article 144 is inapplicable.
02; Family Code
1987 No. 16:
Manny and Nita, husband and wife, decided to separate by mutual
agreement. They had a contract prepared, signed it and had it notarized, providing
for their separation and for the extra-judicial liquidation of their conjugal assets. They
likewise agreed to live separately and that if either spouse should find a more
compatible partner, the other would raise no objection and would refrain from taking
any judicial action against the other.
Determine the validity of each of the provisions of the agreement. Explain
briefly.
Answer:
1. The provision for their separation is void.
2. The provision for the extra-judicial liquidation of their conjugal assets is
void.
3. The agreement to live separately is void.
4. The agreement that should either spouse find a more compatible partner,
the other would raise no objection and would refrain from taking any judicial action
against the other is void.
Page 58 of 391
The aforementioned stipulations are all void because they are contrary to law,
morals, good custom, public order and public policy. The specific provision of law is
Article 221 of the Civil Code.
02; Family Code; annulment; effects; requisites before remarriage
1990 No 10:
The marriage of H and W was annulled by the competent court. Upon finality
of the judgment of nullity. H began looking for his prospective second mate. He fell
in love with a sexy woman S who wanted to be married as soon as possible, i.e.,
after a few months of courtship. As a young lawyer, you were consulted by H,
(a) How soon can H be joined in lawful wedlock to his girlfriend S? Under
existing laws, are there certain requisites that must be complied with before he can
remarry? What advice would you give H?
(b) Suppose that children were born from the union of H and W, what would
be the status of said children? Explain your answer.
(c) If the subsequent marriage of H to S was contracted before
compliance with the statutory condition for its validity, what are the rights of the
children of the first marriage (i.e., of H and W) and of the children of the subsequent
marriage (of H and S)?
Answer:
(a) H, or either spouse for that matter, can marry again after complying with
the provisions of Article 52 of the Family Code, namely, there must be a partition
and distribution, of the properties of the spouses, and the delivery of the children's
presumptive legitimes. which should be recorded in the appropriate civil registry and
registries of property. H should be so advised.
Alternative Answer: for (a)
The following are the requisites prescribed by law and I the advice to H is to
comply with them, namely:
(1) If either spouse contracted the marriage in bad faith, his or her share of
the net profits of the community property
: or conjugal partnership property shall be forfeited in favor of the common
children or, if there are none, the children of the guilty spouse by a previous
marriage or, in default of children, the innocent spouse;
(2) Donations by reason of marriage shall remain valid except that if the
donee contracted the marriage in bad faith, such donations made to said donee are
revoked by operation
of law;
(3) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate succession;
(4) If both spouses of the subsequent marriage acted in bad faith all
donations by reason of marriage and testamentary dispositions made by one in
favor of the other are revoked by operation of law.
(5) The judgment of annulment of the marriage, the partition and distribution
of the properties of the spouses, and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and registers of property,
(Articles 53. 52, 43. 44. Family Code).
Page 59 of 391
(b) The children born from the union of H and W would be legitimate children
if conceived or born before the decree of annulment of the marriage (under Art. 45 of
the Family Code) has become final and executory (Art. 54, Family Code}.
(c) The children of the first marriage shall be considered legitimate children if
conceived or born before the Judgment of annulment of the marriage of H and W
has become final and executory. Children conceived or born of the subsequent
marriage shall likewise be legitimate even if the marriage of H and S be null and void
for failure to comply with the requisites of Article 52 of the Family Code (Article 53,
Family Code).
As legitimate children, they have the following rights;
(1) To bear the surnames of the father and the mother in conformity with the
provisions of the Civil Code on Surnames;
(2) To receive support from their parents, their ascendants, and in proper
cases, their brothers and sisters, in conformity with the provisions of this Code on
Support; and
(3) To be entitled to the legitime and other successional rights granted to
them by the Civil Code (Article 174, Family Code).
02; Family Code; annulment; fraud
1986 No. 3:
After a whirlwind courtship of two weeks, Marikit, starry-eyed and captivated,
got married to Mr. Masanting. Soon after the honeymoon, however, Marikit
discovers that Masanting was not the knight in shining armor she thought she
married. She received official information that Masanting had been dishonorably
discharged from the army for desertion. She also learned that Masanting had a
string of liaisons with all kinds of women during his army career. What infuriated
Marikit was that Masanting had concealed all of these from her and, in fact, had
woven tales of gallantry on the battlefield and of deep religious conviction which
made him lead a pure life. Promptly upon discovering the truth about Masanting and
within the first year of their marriage, Marikit sues to annul the marriage on grounds
of deception and fraud. Will her action prosper? Explain,
Answer:
Her action for annulment will not prosper.
The fraud and deceit do not constitute fraud as a ground for annulment of a
marriage. The C.C. provides that no other misrepresentation or deceit as to
character, rank, fortune or chastity other than those enumerated shall constitute
fraud as well as a ground for annulment of marriage.
Answer - Marikit's action will not prosper. According to the Civil Code, any of
the following shall constitute fraud which will entitle a contracting party to ask for the
annulment of the contract of marriage:
(1) misrepresentation as to the identity of the contracting parties;
(2) non-disclosure of the previous conviction of the other party of a crime
involving moral turpitude, and the penalty imposed was imprisonment for two years
or more;
(3) concealment by the wife of the fact that at the time of the marriage, she
was pregnant by a man other than her husband.
No other misrepresentation with respect to character, rank, fortune or chastity
shall entitle a contracting party to ask for the annulment of the marriage.
Page 60 of 391
It is clear that the misrepresentation employed by Masanting are merely
deceptions with respect to character and chastity. Therefore, there is no ground for
Marikit's asking for the annulment of her marriage to Masanting.
(Note — The above answer is based on Art. 86 of the Civil Code.)
02; Family Code; annulment; fraud
1975 No. IV
The plaintiff, a first year law student, met the defendant in March, 1968. After
several meetings, they became engaged on September 19, 1968 and were married
on November 28, 1968. After living together for only 88 days, the defendant gave
birth to a child of nine (9) months on February 23, 1969. As a result, the plaintiff
abandoned the defendant and then filed a suit for annulment of marriage alleging
that his consent to. the marriage was secured by the assurance of the defendant
that she was a virgin. Decide the case.
Answer
Annulment should not be granted. To constitute fraud as a ground for
annulment, the wife must have concealed the fact that at the time of marriage, she
was pregnant by another man. The wife having given birth less than 3 months after
the marriage was already 6 months pregnant at the time of the marriage so that the
husband knowing of the pregnancy of the wife at the time of marriage is deemed to
have acknowledged the paternity of the child. (Art. 258)
02; Family Code; annulment; fraud
1976 No. II-b
A and B married. May it be annulled if B concealed the fact that she was no
longer a virgin at the time of the marriage or if A became impotent afterwards.
Explain.
Answer
The marriage cannot be annulled on either ground because concealment of
non-virginity does not constitute fraud. It is concealment by the wife that at the time
of marriage she was pregnant by a man other than her husband, which constitute
fraud. Misrepresentation as to chastity does not constitute a ground for annulment.
Impotence, to be considered a ground for annulment, must exist at time of the
marriage. As A became impotent after the marriage, it is not a ground for annulment.
02; Family Code; annulment; fraud
1978 No. II-a
1. Is the non-disclosure to a wife by her husband of pre-marital relationship
with another woman a ground for annulment of marriage? Give reasons for your
answer.
2. Is the fact of pregnancy of the wife at the time of the marriage by a man
other than her husband a ground for annulment of marriage? Explain fully.
Answer
1. The non-disclosure to a wife by her husband of pre-marital relationship
with another woman is not a ground for annulment of marriage. True, under our law
on marriage, fraud is a ground for annulment. However, it has a very technical and
limited meaning. There are only three instances of fraud enumerated by the law
which will justify or entitle a spouse in proceeding against the other for the
annulment of their marriage and the above-mentioned non-disclosure is not one of
them. Besides, and this is decisive, the law itself declares that no other
Page 61 of 391
misrepresentation or deceit as to chastity shall constitute such fraud as will give a
ground for the annulment of marriage.
2. The fact of pregnancy of the wife at the time of the marriage by a man
other than the husband is not in itself a ground for annulment of marriage. The law is
explicit. It is the concealment by the wife of the fact that at the time of the marriage,
she was pregnant by a man other than her husband which is a ground for
annulment. So, if there was no concealment or even the possibility of concealment,
such as when the wife was already six months pregnant at the time of the
celebration of the marriage, there would be no ground for annulment. At such an
advanced stage of pregnancy, concealment would be impossible.
(NOTE: The above answers are based on Articles 85, No. 5, and 86 of the
Civil Code and on Buccat vs. Buccat, 72 Phil. 19.)
02; Family Code; annulment; grounds
1991 No 4:
A. One of the grounds for annulment of marriage is that either party, at the
time of their marriage was afflicted with a sexually-transmissible disease, found to
be serious and appears incurable. Two (2) years after their marriage, which took
place on 10 October 1988, Bethel discovered that her husband James has a
sexually-transmissible disease which he contracted even prior to their marriage
although James did not know it himself until he was examined two [2) years later
when a child was already born to them. Bethel sues James for annulment of their
marriage. James opposes the annulment on the ground that he did not even know
that he had such a disease so that there was no fraud or bad faith on his part.
Decide.
B. Suppose that both parties at the time of their marriage were similarly
afflicted with sexually-transmissible diseases, serious and Incurable, and both knew
of their respective infirmities, can Bethel or James sue for annulment of their
marriage?
Answer;
A. The marriage can be annulled. because good faith is not a defense when
the ground is based upon sexually-transmissible disease on the part of either party.
B. Yes. the marriage can still be annulled because the feet that both of them
are afflicted with sexually-transmissible diseases does not efface or nullity the
ground.
Alternative Answer;
B. No, the marriage can no longer be annulled, because the fact that both
were afflicted and that both knew of their respective infirmities constitutes a waiver
of that ground.
02; Family Code; annulment; judicial declaration
1993 No. 19:
Maria and Luis, both Filipinos, were married by a Catholic priest in Lourdes
Church, Quezon City in 1976, Luis was drunk on the day of his wedding. In fact, he
slumped at the altar soon after the ceremony. After marriage, Luis never had a
steady job because he was drunk most of the time. Finally, he could not get
employed at all because of drunkenness. Hence, it was Maria who had to earn a
living to support herself and her child begotten with Luis. In 1986, Maria filed a
petition in the church matrimonial court in Quezon City to annul her marriage with
Page 62 of 391
Luis on the ground of psychological incapacity to comply with his marital obligation.
Her petition was granted by the church matrimonial court.
1) Can Maria now get married legally to another man under Philippine laws
after her marriage to Luis was annulled by the church matrimonial court? Explain.
2) What must Maria do to enable her to get married lawfully to another man
under Philippine laws?
Answers;
1) No, Maria cannot validly contract a subsequent marriage without a court
declaration of nullity of the first marriage. The law does not recognize the church
declaration of nullity of a marriage.
2) To enable Maria to get married lawfully to another man. she must obtain
a judicial declaration of nullity of the prior marriage under Article 36 Family Code.
02; Family Code; annulment; Legal Separation; prescription of actions
1996 No. 5:
2) Bert and Baby were married to each other on December 23,1988. Six
months later, she discovered that he was a drug addict. Efforts to have him
rehabilitated were unsuccessful.
Can Baby ask for annulment of marriage, or legal separation? Explain.
Answer;
No, Baby cannot ask for annulment of her marriage or for legal separation
because both these actions had already prescribed.
While concealment of drug addiction existing at the time of marriage
constitutes fraud under Art. 46 of the FC which makes the marriage voidable under
Art. 45 of the FC, the action must, however, be brought within 5 years from the
discovery thereof under Article 47(3), FC, Since the drug addiction of Bert was
discovered by Baby In June 1989, the action had already prescribed in June of
1994. Although drug addiction is a ground for legal separation under Art. 55(5) and
Art. 57 of the FC requires that the action must be brought within 5 years from the
occurrence of the cause. Since Bert had been a drug addict from the time of the
celebration of the marriage, the action for legal separation must have been brought
not later than 23 December 1993. Hence, Baby cannot, now, bring the action for
legal separation.
02; Family Code; annulment; proper party
1995 No. 14:
Yvette was found to be positive for HIV virus, considered sexually
transmissible, serious and incurable. Her boyfriend Joseph was aware of her
condition and yet married her. After two (2) years of cohabiting with Yvette, and in
his belief that she would probably never be able to bear him a healthy child, Joseph
now wants to have his marriage with Yvette annulled. Yvette opposes the suit
contending that Joseph is estopped from seeking annulment of their marriage since
he knew even before their marriage that she was afflicted with HIV virus.
Can the action of Joseph for annulment of his marriage with Yvette prosper?
Discuss fully.
Answer;
No Joseph knew that Yvette was HIV positive at the time of the marriage. He
is, therefore, not an injured party. The FC gives the right to annul the marriage only
to an injured party. [Art. 47 (5), FC]
Page 63 of 391
Alternative Answer:
The action for annulment can prosper because the prescriptive period of five
(5) years has not yet lapsed. [Art. 45 (6), FC].
02; Family Code; annulment; proper party
1990 No 13:
D and G, age 20 and 19, respectively, and both single, eloped and got
married to each other without parental consent in the case of G, a teenaged student
of an exclusive college for girls. Three years later, her parents wanted to seek
judicial annulment on that ground. You were consulted and asked to prepare the
proper complaint. What advice would you give G's parents? Explain your answer.
Answer:
G himself should file the complaint under Article 45 of the Family Code, and
no longer the parents because G is already 22 years of age.
02; Family Code; annulment; psychological incapacity
1996 No. 3:
On April 15, 1983, Jose, an engineer, and Marina, a nurse, were married to
each other in a civil ceremony in Boac. Marinduque. Six months after their marriage,
Jose was employed in an oil refinery in Saudi Arabia for a period of three years.
When he returned to the Philippines. Marina was no longer living in their house, but
In Zamboanga City, working in a hospital. He asked her to come home, but she
refused to do so, unless he agreed not to work overseas anymore because she
cannot stand living alone. He could not agree as in fact, he had signed another three
year contract. When he returned In 1989, he could not locate Marina anymore. In
1992. Jose filed an action served by publication Ina newspaper of general
circulation. Marina did not file any answer, A possible collusion between the parties
was ruled out by the Public Prosecutor. Trial was conducted* and Marina neither
appeared nor presented evidence In her favor.
If you were the judge, will you grant the annulment. Explain.
Answer:
As judge, I will not grant the annulment. The facts do not show any taint of
personality disorder on the part of the wife Marina so as to lend substance to her
husband's averment of psychological Incapacity within the meaning of Art 36 of the
Family Code. In Santos vs. CA (240 SCRA 20), this particular ground for nullity of
marriage was held to be limited only to the most serious cases of personality
disorders (dearly demonstrative of utter sensitivity or inability to give meaning and
significance to the marriage. Marina's refusal to come home to her husband unless
he agreed not to work overseas, far from being indicative of an insensitivity to the
meaning of marriage, or of a personality disorder, actually shows a sensitive
awareness on her part of the marital duty to live together as husband and wife. Mere
refusal to rejoin her husband when he did not accept the condition imposed by her
does not furnish any basis for concluding that she was suffering from psychological
Incapacity to discharge the essential marital obligations.
Mere intention to live apart does not fall under Art. 36, FC. Furthermore, there
is no proof that the alleged psychological incapacity existed at the time of the
marriage.
02; Family Code; art. 26
1999 No IV.
Page 64 of 391
Ben and Eva were both Filipino citizens at the time of their marriage in 1967,
When their marriage turned sour, Ben went to a small country in Europe, got himself
naturalized there, and then divorced Eva in accordance with the law of that country,
Later, he returned to the Philippines with his new wife.
Eva now wants to know what action or actions she can file against Ben. She
also wants to know if she can likewise marry again. What advice can you give her?
{5%)
ANSWER:
Considering that Art. 26(2nd par.) contemplates a divorce between a
foreigner and a Filipino, who had such respective nationalities at the time of their
marriage, the divorce in Europe will not capacitate the Filipino wife to remarry. The
advice we can give her is either to file a petition for legal separation, on the ground
of sexual infidelity and of contracting a bigamous marriage abroad, or to file a
petition to dissolve the conjugal partnership or absolute community of property as
the case maybe.
ALTERNATIVE ANSWER:
Eva may file an action for legal separation on the grounds of sexual infidelity
of her husband and the contracting by her husband of a bigamous marriage abroad.
She may remarry. While a strict interpretation of Article 26 of the Family Code
would capacitate a Filipino spouse to remarry only when the other spouse was a
foreigner at the time of the marriage, the DOJ has issued an opinion (Opinion 134 s.
of 1993) that the same injustice sought to be cured by Article 26 is present in the
case of spouses who were both Filipino at the time of the marriage but one became
an alien subsequently. Said injustice is the anomaly of Eva remaining married to her
husband who is no longer married to her. Hence, said Opinion makes Article 26
applicable to her case and the divorce obtained abroad by her former Filipino
husband would capacitate her to remarry. To contract a subsequent marriage, all
she needs to do is present to the civil registrar the decree of divorce when she
applies for a marriage license under Article 13 of the Family Code.
02; Family Code; art. 26
1996 No. 5:
1) Flor and Virgillo were married to each other in Roxas City in 198O. In
1984, Flor was offered a teaching Job in Canada, which she accepted. In 1989, she
applied for and was granted Canadian citizenship. The following year, she sued for
divorce from Virgilio in a Canadian court. After Virgilio was served with summons,
the Canadian court tried the case and decreed the divorce. Shortly thereafter, Flor
married a Canadian.
Can Virgilio marry again in the Philippines? Explain. Answer;
No, Virgilio cannot validly remarry. His case is not covered by Article 26 of the
Family Code, For said Article to be applicable, the spouse who filed for divorce must
be a foreigner at the time of the marriage. Since both of them were Filipinos at the
time of the marriage, the divorce obtained by Flor did not capacitate Virgilio to
remarry. The fact that Flor was already an alien at the time she obtained the divorce
does not give Virgilio the capacity to remarry under Philippine Law.
Alternative Answers;
a) Yes, Virgilio can validly remarry. Art. 26 of the FC, merely States the alien
spouse without taking into consideration his or her nationality at the time of the
marriage. While his case is not covered by the letter of Article 26 FC, it is, however,
covered by the spirit of said Article, The injustice to the Filipino spouse sought to be
Page 65 of 391
cured by said Article Is present in this case. (Department of Justice Opinion No. 134
Series of 1993).
b) Although the marriage originally involved Filipino citizens, it eventually
became a marriage between an alien and a Filipino after Flor became a Canadian
citizen. Thus, the divorce decree was one obtained by an alien spouse married to a
Filipino. Although nothing is said about whether such divorce did capacitate Flor to
remarry, that fact may as well be assumed since the problem states that she married
a Canadian shortly after obtaining the divorce. Hence, Virgillo can marry again
under Philippine law, pursuant to Art. 26. FC which applies because Flor was
already an alien at the time of the divorce.
02; Family Code; declaration of nullity: annulment: legal separation:
separation of property – grounds
2003 No VI
Which of the following remedies, i.e., (a) declaration of nullity of marriage, (b)
annulment of marriage, (c) legal separation, and/or (d) separation of property, can
an aggrieved spouse avail himself/herself of-
(i) If the wife discovers after the marriage that her husband has “AIDS”.
(ii) If the wife goes (to) abroad to work as a nurse and refuses to come
home after the expiration of her three-year contract there.
(iii) If the husband discovers after the marriage that his wife has been a
prostitute before they got married.
(iv) If the husband has a serious affair with his secretary and refuses to
stop notwithstanding advice from relatives and friends.
(v) If the husband beats up his wife every time he comes home drunk. 5%
SUGGESTED ANSWER:
(i) Since AIDS is a serious and incurable sexually-transmissible disease,
the wife may file an action for annulment of the marriage on this ground whether
such fact was concealed or not from the wife, provided that the disease was present
at the time of the marriage. The marriage is voidable even though the husband was
not aware that he had the disease at the time of marriage.
(ii) If the wife refuses to come home for three (3) months from the
expiration of her contract, she is presumed to have abandoned the husband and he
may file an action for judicial separation of property. If the refusal continues for more
than one year from the expiration of her contract, the husband may file the action for
legal separation under Art. 55 (10) of the Family Code on the ground of
abandonment of petitioner by respondent without justifiable cause for more than one
year. The wife is deemed to have abandoned the husband when she leaves the
conjugal dwelling without any intention of returning (Article 101, FC). The intention
not to return cannot be presumed during the 30year period of her contract.
(iii) If the husband discovers after the marriage that his wife was a
prostitute before they got married, he has no remedy. No misrepresentation or
deceit as to character, health, rank, fortune or chastity shall constitute fraud as legal
ground for an action for the annulment of marriage (Article 46 FC).
(iv) The wife may file an action for legal separation. The husband’s sexual
infidelity is a ground for legal separation 9Article 55, FC). She may also file an action
for judicial separation of property for failure of her husband to comply with his martial
duty of fidelity (Article 135 (4), 101, FC).
Page 66 of 391
(v) The wife may file an action for legal separation on the ground of
repeated physical violence on her person (Article 55 (1), FC). She may also file an
action for judicial separation of property for failure of the husband to comply with his
marital duty of mutual respect (Article 135 (4), Article 101, FC). She may also file an
action for declaration of nullity of the marriage if the husband’s behavior constitute
psychological incapacity existing at the time of the celebration of marriage.
02; Family Code; divorce; void marriages
1992 No 1:
In 1989, Maris, a Filipino citizen, married her boss Johnson, an American
citizen, In Tokyo in a wedding ceremony celebrated according to Japanese laws.
One year later, Johnson returned to his native Nevada, and he validly obtained in
that state an absolute divorce from his wife Maris.
After Maris received the final judgment of divorce, she married her childhood
sweetheart Pedro, also a Filipino citizen, in a religious ceremony in Cebu City,
celebrated according to the formalities of Philippine law. Pedro later left for the
United States and became naturalized as an American citizen. Maris followed Pedro
to the United States, and after a serious quarrel, Marts filed a suit and obtained a
divorce decree issued by the court in the state of Maryland.
Maris then returned to the Philippines and in a civil ceremony celebrated in
Cebu City according to the formalities of Philippine law, she married her former
classmate Vincent likewise a Filipino citizen.
b) Was the marriage of Maris and Pedro valid when celebrated? Is their
marriage still valid existing now? Reasons.
c) Was the marriage of Marts and Vincent valid when celebrated? Is their
marriage still validly existing now? Reasons.
d) At this point in time, who is the lawful husband of Marts? Reasons.
Answer:
(b) The marriage of Maris and Pedro was valid when celebrated because
the divorce validly obtained by Johnson in Manila capacitated Maris to marry Pedro.
The marriage of Maris and Pedro is still validly existing, because the marriage
has not been validly dissolved by the Maryland divorce [Art. 26, Family Code).
(c) The marriage of Maris and Vincent is void ab initio because it is a
bigamous marriage contracted by Maris during the subsistence of her marriage with
Pedro (Art 25 and 41, Family Code).
The marriage of Maris and Vincent does not validly exist because Article 26
does not apply. Pedro was not a foreigner at the time of his marriage with marts and
the divorce abroad (in Maryland) was initiated and obtained not by the alien spouse,
but by the Filipino spouse. Hence, the Maryland divorce did not capacitate Marts to
marry Vincent.
(d) At this point in time, Pedro is still the lawful husband of Maris because
their valid marriage has not been dissolved by any valid cause (Art. 26. Family
Code),
02; Family Code; donations by reason of marriage; effect of declaration of
nullity
1996 No. 6:
1) On the occasion of Digna's marriage to George, her father gave her a
donation propter nuptias of a car. Subsequently, the marriage was annulled because
of the psychological immaturity of George.
Page 67 of 391
May Digna's father revoke the donation and get back the car? Explain,
Answer:
No, Digna's father may not revoke the donation because Digna was not in
bad faith, applying Art. 86(3) of the Family Code.
Alternative Answer;
a) Yes, the donation is revocable. Since the ground for the annulment of the
marriage is the psychological immaturity of George, the judgment was in the nature
of a declaration of nullity under Art. 36 of the FC and, therefore, the donation may be
revoked under Art. 86( 1) of the FC for the reason that the marriage has been
judicially declared void ab initio.
b) No, the donation cannot be revoked.
The law provides that a donation by reason of marriage may be revoked by
the donor if. among other cases, the marriage is judicially declared void ab initio
[par. (1) Art. 86. Family Code], or when the marriage is annulled and the donee
acted in bad faith [par. (3), Id.]. Since the problem states that the marriage was
annulled and there is no intimation of bad faith on the part of the donee Digna. the
conclusion is that the donor cannot revoke the donation.
c) Yes, the donation can be revoked.
The ground used in dissolving the marriage was the psychological immaturity
of George, which is not a ground for annulment of marriage. If this term is equated
with psychological Incapacity as used In Art. 36 of the Family Code, then it is a
ground for declaration of nullity of the marriage. Consequently, par. (1) of Art. 86,
FC, is the applicable law. Since Art. 86 of the FC makes no qualification as to who
furnished the ground or who was in bad faith in connection with the nullification of
the marriage, the conclusion is that Digna's father may revoke the donation and get
back the car.
02; Family Code; effect of divorce; void marriages
1980 No. II
(b) "E" and "F", Filipino citizens, were married in the Philippines. Later, they
separated. "E", the husband, went to San Francisco, California, to live there
permanently. He obtained a divorce in California from "F" on grounds of desertion
and mental cruelty. Thereafter, he married "G", a Filipina, who did not know that "E"
was previously married. "E" and "G" had two children "H" and "I". They came back to
the Philippines where "E" died.
Discuss (1) the validity of the divorce obtained by '"E" in California; (2) the
validity of the marriage of "E" to "G"; and (3) the legal status of "H" and "I".
Answer
(b) 1. The decree of absolute divorce obtained by "'E" in California is not valid
in the Philippines for the following reasons:
(a) Absolute divorce is not recognized in the Philippines. According to
the Civil Code, laws resulting to family rights and duties, or to the status,
condition, and legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad (Art. 15).
(b) Well-settled is the rule that absolute divorce is contrary to public policy.
According to the Civil Code, this declaration of public policy cannot be rendered
nugatory by the decree of absolute divorce obtained by "E" in California (Art. 17,
par. 3).
Page 68 of 391
2. The marriage of "E" to "G" is not valid. It is void from the very beginning by
reason of a prior subsisting marriage (Art. 83, par. l Civil Code), From the point of
view of Philippine law, since the decree of absolute divorce obtained by "E" in
California is not valid, he is still married to "F".
3. "H" and "I" are natural children by legal fiction. The reason is that they are
children born of a marriage which is void (Art. 89, Civil Code).
02; Family Code; emancipation
1993 No. 15:
Julio and Lea, both 18 years old, were sweethearts. At a party at the house of
a mutual friend. Lea met Jake, also 18 years old, who showed interest in her. Lea
seemed to entertain Jake because she danced with him many times. In a fit of
jealousy. Julio shot Jake with his father's 38 caliber revolver which, before going to
the party he was able to get from the unlocked drawer Inside his father's bedroom.
Jake died as a result of the lone gunshot wound he sustained. His parents sued
Julio's parents for damages arising from quasi-delict. At the time of the incident,
Julio was 18 years old living with his parents. Julio's parents moved to dismiss the
complaint against them claiming that since Julio was already of majority age, they
were no longer liable for his acts.
1) Should the motion to dismiss be granted? Why?
2) What is the liability of Julio's parents to Jake's parents? Explain your
answer.
Answer:
1) No, the Motion to Dismiss should not be granted. Article 236 of the Family
Code as amended by Republic Act 6809, provides in the third paragraph that
"nothing in this Code shall be construed to derogate from the duty or responsibility of
parents and guardians for children and wards below twenty-one years of age
mentioned in the second and third paragraphs of Article 2180 of the Civil Code".
2) The liability of Julio's parents to Jake's parents arises from quasi-delict
(Arts. 2176 and 2180 Civil Code) and shall cover specifically the following:
a) P50,000.00 for the death of the son;
b) such amount as would correspond to lost earning capacity; and
c) moral damages.
02; Family Code; family
1991 No 1:
A. How does the 1987 Constitution strengthen the family as an Institution?
B. Do the Constitutional policy on the family and the provision that marriage
is the foundation of the family and shall be protected by the State bar Congress from
enacting a law allowing divorce in the Philippines?
Answer:
A. Sec, 2, Article II of the Constitution provides that:
The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from conception. The natural and
primary right and duty of parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the support of the Government.
Section I, Article XV, further provides that:
Page 69 of 391
The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.
(Note: The Committee recommends that a citation of either one of the
provisions be credited as a complete answer).
Answer;
B, No, the Constitutional policy, as well as the supporting provision, does
not amount to a prohibition to Congress to enact a law on divorce. The Constitution
only meant to help the marriage endure, to "strengthen its solidarity and actively
promote its total development."
Alternative Answer;
B. Yes. Congress is barred from enacting a law allowing divorce, since
Section 2 of Article XV provides:
"Sec. 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State."
Since marriage is "Inviolable", it cannot be dissolved by an absolute divorce.
02; Family Code; family home
1989 No. 4:
(2) What is "Family Home" and when is it deemed constituted? Who are the
beneficiaries thereof?
Answer:
The "Family Home" is the dwelling house where the husband, the wife, and
their family including the unmarried head of the family reside and the land on which
it is situated.
The "Family Home" is deemed constituted on a house and lot from the time it
is occupied as a family residence.
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.
02; Family Code; family home
1994 No. 13:
In 1991, Victor established judicially out of conjugal property, a family home
in Manila worth P200.000.00 and extrajudicially a second family home in Tagaytay
worth P50.000.00. Victor leased the family home in Manila to a foreigner. Victor and
his family transferred to another house of his in Pasig.
Can the two family homes be the subject of execution on a judgment against
Victor's wife for non-payment of the purchase in 1992 of household appliances?
Answer;
The two (2) so-called family homes can be the subject of execution. Neither
of the abodes are considered family homes because for purposes of availing the
benefits under the Family Code, there can only be one (1) family home which is
defined as the "dwelling house" where the husband and the wife and their family
Page 70 of 391
actually "reside" and the land on which it is situated. (Arts. 152 and 161, Family
Code)
02; Family Code; legal separation
2002 No II.
C. If drug addiction, habitual alcoholism, lesbianism or homosexuality
should occur only the marriage, would this constitute grounds for a declaration of
nullity or for legal separation, or would they render the marriage voidable? (1%).
SUGGESTED ANSWER:
C. In accordance with law, if drug addiction, habitual alcoholism,
lesbianism or homosexuality should occur only during the marriage, they:
1. Will not constitute as ground for declaration of nullity (Art. 36, Family
Code);
2. Will constitute as grounds for legal separation (Art. 56, FC) and
3. will not constitute as grounds to render the marriage voidable
(Art.45and 46, FC)
02; Family Code; legal separation
1989 No. 4:
{1} Cadio and Corona contracted marriage on June 1, 1982. A few days after
the marriage, Corona discovered that Cadio was a homosexual. As homosexuality
was not a ground for legal separation under the Civil Code, there was nothing that
Corona could do but bear with her problem. The couple, however, stated to live
separately. With the enactment of the Family Code, Corona decided to be legally
separated from Cadio based on the new ground of homosexuality. Corona brought
her action for legal separation on September 15, 1988. Will the action prosper? Give
your reasons.
Answer:
Yes, the action will prosper because the "cause" arose only on August 3,
1988, the effectivity of the Family Code and the action had not yet prescribed.
Alternative Answer:
The action will prosper. The offense of homosexuality as a continuing offense
can be a ground for legal separation. The prescriptive period of five years will apply
only when the offense has a fixed period of time and, therefore, the date of its
occurrence can be computed.
02; Family Code; legal separation; grounds
1975 No. V
What are the grounds for legal separation?
Answer
Under Article 97 of the Civil Code, a petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage on the part of
the husband as defined in the Penal Code; and
(2) An attempt by one spouse against the life of the other.
02; Family Code; legal separation; grounds; prescriptive period
1994 No 12;
Page 71 of 391
Rosa and Ariel were married in the Catholic Church of Tarlac, Tarlac on
January 5. 1988. In 1990, Ariel went to Saudi Arabia to work. There, after being
converted into Islam, Ariel married Mystica, Rosa learned of the second marriage of
Ariel on January 1, 1992 when Ariel returned to the Philippines with Mystica. Rosa
filed an action for legal separation on February 5, 1994,
1) Does Rosa have legal grounds to ask for legal separation?
2) Has the action prescribed?
Alternative Answers;
1) a) Yes, the abandonment of Rosa by Ariel for more than one (1) year is a
ground for legal separation unless upon returning to the Philippines, Rosa agrees to
cohabit with Ariel which is allowed under the Muslim Code. In this case, there is
condonation.
b) Yes. The contracting of a subsequent bigamous marriage whether in the
Philippines or abroad is a ground for legal separation under Article 55(7) of the
Family Code. Whether the second marriage is valid or not, Ariel having converted
into Islam, is immaterial.
2) No. Under Article 57 of the Family Code, the aggrieved spouse must file
the action within five (5) years from the occurrence of the cause. The subsequent
marriage of Ariel could not have occurred earlier than 1990, the time he went to
Saudi Arabia. Hence, Rosa has until 1995 to bring the action under the Family
Code.
02; Family Code; legal separation; proper party
1979 No. III
PB, a good for nothing gigolo, married RH, a rich old maid who inherited
considerable properties from both her deceased parents. Even after the marriage,
PB continued his philandering ways. When RH caught him having scandalous
relations with another woman, they had a terrible quarrel, so RH filed an action for
legal separation. After the evidence for both parties have already been submitted but
before the court had rendered a decision, RH died in an automobile accident leaving
no heirs but her husband and another spinster sister. PB then moved for the
dismissal of the action so the only sister of RH filed an opposition thereto and
prayed that she be substituted for RH contending that if the action were to be
dismissed, PB would be able to inherit a sizeable sum from the estate of the
deceased. Should the opposition and prayer for substitution be sustained?
Answer
The opposition and prayer for substitution cannot be sustained. An action for
legal separation which involves nothing more than the bed-and-board separation of
the spouses is purely personal. The Civil Code recognizes this. Being personal in
character it follows that the death of a party to the action causes the death of the
action.
Even if the action involves property rights, the abatement will still apply. A
review of the effects of legal separation and the corresponding rights thereunder
shows that they are solely the effects of legal separation; hence, they cannot survive
the death of the plaintiff if it occurs prior to the decree. (Lapuz Sy vs. Eugemio, 43
SCRA 1771),
02; Family Code; nullity; annulment; legal separation; grounds
1997 No. 5;
Page 72 of 391
Under what conditions, respectively, may drug addiction be a ground, if at all,
(a) for a declaration of nullity of marriage, (b) for an annulment of the marriage
contract, and (c) for legal separation between the spouses?
Answer:
(a) Declaration of nullity of marriage:
1. The drug addiction must amount to psychological incapacity to comply
with the essential obligations of marriage;
2. It must be antecedent (existing at the time of marriage),, grave and
incurable:
3. The case must be filed before August 1. 1998. Because if they got
married before August 3, 1998, it must be filed before August 1, 1998.
(b) Annulment of the Marriage Contract:
1. The drug addiction must be concealed; 2. It must exist at the time of
marriage;
3. There should be no cohabitation with full knowledge of the drug addiction;
4. The case is filed within five (5) years from discovery.
(c) Legal Separation;
1. There should be no condonation or consent to the drug addiction;
2. The action must be filed within five (5) years from the occurrence of the
cause.
3. Drug addiction arises during the marriage and not at the time of marriage.
02; Family Code; parental authority
2004 No. II
A. Distinguish briefly but clearly between: 2. Substitute parental authority
and special parental authority.
02; Family Code; parental authority; custody
1979 No. I
Boy and Girlie were married when "both were barely 20 years old, Boy being
then merely a student, while Girlie worked as a clerk in a business firm. They lived
with Boy's parents. Boy stopped schooling so he did not finish college and did not
have any job, but had tried but failed in all kinds of business. On the contrary he
incurred huge gambling debts. Girlie on the other hand had been continuously
promoted and rose to become executive secretary of the company where she
worked, receiving P5,000.00 a month salary. They begot one son to whom Boy's
parents became very attached. When the child was 6 years old, Boy's parents
brought the child with them to Baguio for the summer vacation. At this time, because
of the suspicious conduct of Girlie, Boy accused her of having an affair with another
man so they had a terrible quarrel. Girlie therefore went to live with her own parents.
After Boy's parents returned from Baguio with the child, Girlie went to fetch him but
Boy and his parents refused to surrender the child to her, saying that she is unfit to
have custody of the child because of her affair with another man. After serious
efforts for an amicable settlement failed, Girlie filed an action for custody of the child.
Will her action prosper? Why?
Answer
Girlie's action will prosper. True, the child is already six years old, and
therefore, the principle of custodial preference for the mother is not applicable.
Page 73 of 391
According to the law, this principle is applicable only to children under five years of
age (Child and Youth Welfare Code), But then, in cases involving custody of
children, the welfare or interest of the child is always paramount. With this as
criterion, the custody of the child should be awarded to the more suitable parent.
Morally and materially, Girlie has a definite edge over her husband Boy. She is self-
reliant. She had been continuously promoted and rose to become secretary of the
company where she works, and is now receiving P5,000.00 a month salary. That
she is having an affair with another man is baseless. There is no evidence which will
support it. Boy, on the other hand, is not a suitable guardian of his child. He is
addicted to gambling; he has no job; obviously, he has no character to speak of.
True, the parents of Boy are attached to the child, but if custody is awarded to Boy, it
will be Boy and not his parents who will exercise parental authority over the person
and property of the child.
Alternative Answer
Assuming that Girlie is having an affair with another man and that this can be
established by competent evidence, it is submitted that Girlie's action will not
prosper. It must be observed that the child is already six years old. Therefore, he
can be separated from his mother. Under the Child and Youth Welfare Code, the
principle of custodial preference for the mother is applicable only to children under
five years of age. Hence the paramount criterion to consider is the welfare of the
child. True, Boy is a gambler and has no job. But his parents who are well-to-do and
are attached to the child can supply the deficiency. Besides, Boy is still young. He
can still reform; he can still find a job. Furthermore, as between a father who is a
gambler and a mother who is immoral, preference should be given to the former.
02; Family Code; parental authority; custody
1981 No. 4:
Spouses, husband "H" and wife "W", Filipinos, with a child, decided that "H",
a doctor, would go to the U.S. to find employment there and then "W" would join
him. When in the U.S., "H" wrote that to establish U.S. residence, he would have to
obtain a divorce, marry an American girl, and once a U.S. resident, divorce his
American wife and then remarry "W" "W" agreed.
Four years later, "H", now a U.S. resident and having divorced his American
wife, returns to the Philippines and finds that his wife, "W", has married a wealthy
man in a ceremony celebrated in Hongkong and is happily living with him in Manila.
c) Could "H" obtain custody of the child?
d) Could "H" charge "W" with bigamy or adultery? Explain each of your
answers?
Answer
(c) If the child is under five years old, "H" cannot obtain custody over him.
According to the law, no child under five years of age shall be separated from the
mother unless the court finds compelling reasons to do so. ."Compelling reasons"
refer to reasons of health rather than reasons of morality. However, if the child is
already five years old or over, then it is the best interest of the child that will be
considered, taking into account the respective resources and the social and moral
situations of the contending parents.
(Note: The above answer is based on Art. 17, par. 3 PD 603 and on decided
cases, notably Unson vs. Navarro, L-52242, Nov. 17,1980.)
(d) "H" can charge "W" with adultery but not with bigamy. Undoubtedly, all of
the elements of adultery as deemed and punished in the Revised Penal Code are
Page 74 of 391
present. It is different in the case of bigamy. Since the bigamy was committed
outside of our territorial jurisdiction, it is not triable by our courts.
(Note: The above answer is based on the Revised Penal Code, especially
Art. 2 of said Code. See also, Salonga's Private International Law and Paras'
Conflict of Laws.)
02; Family Code; parental authority; rescission of adoption
1994 No, 7:
In 1975, Carol begot a daughter Bing, out of wedlock. When Bing was ten
years old, Carol gave her consent for Bing's legal adoption by Norma and Manuel,
which was granted by the court in 1990. In 1991, Carol learned that Norma and
Manuel were engaged in a call-girl-ring that catered to tourists. Some of the girls
lived with Norma and Manuel. Carol got Bing back, who in the first place wanted to
return to her natural mother.
1) Who has a better right to the custody of Bing. Carol or Norma?
2) Aside from taking physical custody of Bing, what legal actions can Carol
take to protect Bing? Alternative Answers;
1) a) It depends on whether or not Bing was at least 18 years old at the
time Carol asserts the prerogative to take custody of Bing. If she was at least 18
years old. then she is no longer under parental authority and neither Carol nor
Norma can assert the prerogative to take custody. However, if she was less than 18
years old, then Norma has a better right since the adoption by Norma of Bing
terminates the parental authority of Carol over Bing.
b) The natural mother, Carol, should have the better right in light of the
principle that the child's welfare is the paramount consideration in custody rights.
Obviously, Bing's continued stay in her adopting parents' house, where interaction
with the call girls is inevitable, would be detrimental to her moral and spiritual
development. This could be the reason for Bing's expressed desire to return to her
natural mother. It should be noted, however, that Bing is no longer a minor, being 19
years of age now. It is doubtfu1 that a court can still resolve the question of custody
over one who is sui juris and not otherwise incapacitated.
2) a) On the assumption that Bing is still a minor or otherwise
incapacitated, Carol may petition the proper court for resolution or rescission of the
decree of adoption on the ground that the adopting parents have exposed, or are
exposing, the child to corrupt influence, tantamount to giving her corrupting orders or
examples. She can also ask for the revesting in her of parental authority over Bing.
If. however. Bing Is already 19 years of age and therefore no longer a minor, it is not
Carol but Bing herself who can petition the court for judicial rescission of the
adoption, provided she can show a ground for disinheritance of an ascendant.
b) Carol may file an action to deprive Norma of parental authority under
Article 231 of the Family Code or file an action for the rescission of the adoption
under Article 191 in relation to Article 231 (2) of the Family Code.
02; Family Code; paternity and filiation
1999 No VI.
(a) Two (2) months after the death of her husband who was shot by unknown
criminal elements on his way home from office,( Rose married her childhood
boyfriend, and seven (7) months after said marriage, she delivered a baby. In the
absence of any evidence from Rose as to who is her child's father, what status does
the law give to said child? Explain. (2%)
Page 75 of 391
(b) Nestor is the illegitimate son of Dr. Perez. When Dr. Perez died, Nestor
intervened in the settlement of his father's estate, claiming that he is the illegitimate
son of said deceased, but the legitimate family of Dr. Perez is denying Nestor's
claim. What evidence or evidences should Nestor present so that he may receive his
rightful share in his father's estate? (3%)
ANSWER:
(a) The child is legitimate of the second marriage under Article 168(2) of the
Family Code which provides that a "child born after one hundred eighty days
following the celebration of the subsequent marriage is considered to have been
conceived during such marriage, even though It be born within three hundred days
after the termination of the former marriage."
(b) To be able to inherit, the illegitimate filiation of Nestor must have been
admitted by his father In any of the following: (1) the record of birth appearing in the
civil register, (2) a final judgment, (3) a public document signed by the father, or (4) a
private handwritten document signed by the lather (Article 17S in relation to Article
172 of the Family Code).
02; Family Code; paternity and filiation
2004 No. III
A. RN and DM, without any impediment to marry each other, had been living
together without benefit of church blessings. Their common-law union resulted in
the birth of ZMN. Two years later, they got married in a civil ceremony. Could ZMN
be legitimated? Reason. (5%)
02; Family Code; paternity and filiation
1989 No. 5:
(1) What are the grounds for impugning the legitimacy of a child?
Answer:
Legitimacy of a child may be impugned only on the following grounds:
(1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days which immediately
preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse with
his wife;
(b) the fact that the husband and wife were living separately in such a way
that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented sexual
intercourse:
(2) That it is proved that for biological or other scientific reasons, the child
could not have been that of the husband, except in the instance provided in the
second paragraph of Art. 164; or
(3) That in case of children conceived through artificial insemination, the
written authorization or ratification of either parent was obtained through mistake,
fraud, violence, Intimidation, or undue influence.
{4) Felix, a Filipino doctor of medicine, married Monique, an Italian nurse, in
1985. It was later discovered that Monique cannot bear a child so that the couple
decided to adopt one. Can they jointly adopt Marie, the 19-year old niece of
Monique? Explain.
Answer:
Page 76 of 391
Since the child to be adopted is an Italian citizen, the joint adoption cannot be
effected. Had the child been a relative by consanguinity of the Filipino spouse, the
adoption would have been valid under the Philippine law.
02; Family Code; paternity and filiation
1995 No. 7:
Abraham died intestate on 7 January 1994 survived by his son Braulio.
Abraham's older son Carlos died on 14 February 1990.
Danilo who claims to be an adulterous child of Carlos intervenes in the
proceedings for the settlement of the estate of Abraham in representation of Carlos.
Danilo was legally adopted on 17 March 1970 by Carlos with the consent of the "
latter's wife.
1. Under the Family Code, how may an illegitimate filiation be proved?
Explain.
2. As lawyer for Danilo, do you have to prove Danilo's illegitimate filiation?
Explain.
3. Can Danilo inherit from Abraham in representation of his father Carlos?
Explain.
Answer:
1. Under Art. 172 in relation to Art. 173andArt. 175 of the FC, the filiation of
illegitimate children may be established in the same way and by the same evidence
as legitimate children. Art. 172 provides that the filiation of legitimate children is
established by any of the following: (1) the record of birth appearing in the civil
register or a final Judgment; or (2) an admission of legitimate filiation in a public
document or a private handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) the open and continuous possession of the status of a legitimate child; or (2) any
other means allowed by the Rules of Court and special laws.
2. No. Since Danilo has already been adopted by Carlos, he ceased to be
an illegitimate child. An adopted child acquires all the rights of a legitimate child
under Art, 189 of the FC.
3. No, he cannot. Danilo cannot represent Carlos as the latter's adopted
child in the inheritance of Abraham because adoption did not make Danilo a
legitimate grandchild of Abraham. Adoption is personal between Carlos and Danilo.
He cannot also represent Carlos as the latter's illegitimate child because in such
case he is barred by Art. 992 of the NCC from inheriting from his illegitimate
grandfather Abraham.
Alternative Answer;
An adopted child's successional rights do not include the right to represent
his deceased adopter in the inheritance of the latter's legitimate parent, in view of
Art. 973 which provides that in order that representation may take place, the
representative must himself be capable of succeeding the decedent. Adoption by
itself did not render Danilo an heir of the adopter's legitimate parent. Neither does
his being a grandchild of Abraham render him an heir of the latter because as an
illegitimate child of Carlos, who was a legitimate child of Abraham, Danilo is
Incapable of succeeding Abraham under Art. 992 of the Code.
02; Family Code; paternity and filiation
1979 No. IV
Page 77 of 391
SL, a widower, died intestate leaving a big estate. In due course, his only
legitimate son, BL, executed an affidavit extrajudicially adjudicating unto himself title
to all the properties of the estate on the basis of which the properties were
registered in his name. CL, claiming to be an acknowledged natural child, filed an
action demanding for a share of the properties. As proof of her claim of being an
acknowledged natural child, she presented her marriage contract when she was
married at the age of 16, wherein it is stated that her father, SL, had given his
consent to said marriage. Will her action prosper? Why?
Answer
CL's action will not prosper. Under the Civil Code, voluntary recognition is
effected either by the record of birth, or by a will or by a statement before a court of
record, or by means of any authentic writing. By authentic writing, the law refers to
any genuine instrument, whether public or private, written in the handwriting of the
maker or duly signed by the maker in his handwriting Obviously, in this sense, a
marriage contract is not an authentic writing within the meaning of the law.
Therefore, CL is not an acknowledged natural child of SL. It would be different if she
had presented as additional evidence of her status the written consent of SL to her
marriage. That would have been sufficient to establish the fact of voluntary
recognition effected by means of an authentic writing. Her action in such a case will
then prosper.
02; Family Code; paternity and filiation
1982 No. 2
"A" and "B", man and woman not related to each other, both single and of
age, had an illicit relation. A child "C" was born out of that relation. Subsequently "A"
married "X". Notwithstanding the marriage, "A" and "B" continued their illicit relation,
and two years later, another child "D" was born to them. After the death of "X", "A"
married "B".
(a) What is the legal status of the children "C" and "D"?
(b) After the marriage, "A" and "B" recognized "C" and "D". What effect has
such recognition on the legal status of "C" and "D"? Reasons.
Answer
(a) "C" is a natural child, while "D" is an illegitimate child not natural (spurious
child).
According to the Civil Code, children born outside wedlock of parents, who, at
the time of the conception of the former, were not disqualified by any impediment to
marry each other are natural. It is clear that "C" falls within the purview of this
definition. However, in the case of "D", it is different. Since he was conceived at a
time when his father "A" was already married to "X", he is clearly an adulterous child.
He is, therefore, an illegitimate child not natural (spurious child).
(Note: The above answer is based on Arts. 269 and 287 of the Civil Code.
The Committee respectfully recommends that if the bar candidate attacks the
problem from the point of view of the two requisites which must be present in order
that child shall be considered as a natural child, it should be considered a correct
answer.)
(b) "C" is now promoted to the category of a legitimated child. "D", on the
other hand, is still an illegitimate child not natural (spurious child).
All of the requisites of legitimation are present in the case of "C". In the first
place, he is a natural child; in the second place, there was a .subsequent marriage
of the parents to each other; and in the third place, he was recognized by both of his
Page 78 of 391
parents as their child after the celebration of their marriage. Consequently, he is now
a legitimated child.
However, in the case of "D", being a spurious, and not a natural, child, he can
never be legitimated. Consequently, he is still an illegitimate child not natural
(spurious child).
(Note: The above answer is based on Arts, 269, 270 and 271 of the Civil
Code.)
02; Family Code; paternity and filiation
1983 No. 3
Out of the illicit relations between A, a married man, and B, an unmarried
woman, a child, C, was born two months before the death of A's wife. A month after
his wife's death, A married B.
What is C's status? Why?
Answer
C is a spurious child, its parents being incapable of marrying each other at
the time of its conception. Their subsequent marriage cannot, therefore, legitimize C.
02; Family Code; paternity and filiation
1985 No. 2
A and B were married on January 1, 1980, Two weeks later, on their way
home from honeymoon, the car A was driving turned turtle. A died instantly while B
was unharmed. A month thereafter, B had illicit relations with C. On October 15,
1980, B gave birth to X. In X's birth certificate, B declared that X's father is C.
Resolve the issue of X's paternity with reasons.
Answers:
1. X is presumed to be the legitimate child of A because X was born after
180 days from the celebration of the marriage and within 300 days after the
dissolution of the marriage due to the death of A. The declaration of B (the mother)
has no legal effect
2. A child born after 180 days following the celebration of a marriage, and
before 300 days following its dissolution, or the separation of the spouses, is quasi-
conclusively presumed to be legitimate. Against this presumption, no evidence shall
be admitted other than that of the physical impossibility of the husband having
access to his wife within the first 120 days (period of conception) of the 300 days
which preceded the birth of the child. (Macadangdang vs. Court of Appeals, L-
40542, 12 Sept. 1980). This physical impossibility may be caused by—
1) The impotence of the husband;
2) The fact of the husband and wife living separately in such a way that
access was not possible; or
3) The serious illness of the husband.
(Art. 255, Civil Code).
None of the above exclusionary instances are shown. Accordingly, X must be
considered a legitimate child of A and B.
02; Family Code; paternity and filiation; rights of legitimate children
1990 No 8:
Page 79 of 391
B and G (college students, both single and not disqualified to marry each
other) had a romantic affair, G was seven months in the family way as of the
graduation of B. Right after graduation B went home to Cebu City. Unknown to G, B
had a commitment to C (his childhood sweetheart) to marry her after getting his
college degree. Two weeks after B marriage In Cebu City, G gave birth to a son E in
Metro Manila.
After ten years of married life in Cebu, B became a widower by the sudden
death of C in a plane crash. Out of the union of B and C, two children, X and Y were
born. Unknown to CT while on weekend trips to Manila during the last 5 years of
their marriage, B Invariably visited G and lived at her residence and as a result of
which, they renewed their relationship. A baby girl F was born to B and G two years
before the death of C. Bringing his family later to Manila, B finally married G.
Recently. G died.
What are the rights of B's four children: X and Y of his first marriage; and E
and F, his children with G? Explain your answer.
Answer:
Under the facts stated, X and Y are legitimate children of B and G. E is the
legitimate children of B and G. E is the legitimated child of B&G. F is the illegitimate
child of B and C. As legitimate children of B and C, X and Y have the following
rights:
(1) To bear the surnames of the father and the mother, in conformity with the
provisions of the Civil Code on Surnames;
(2) To receive support from their parents, their ascendants, and in proper
cases, their brothers and sisters, in-conformity with the provisions of the Family
Code on Support; and
(3) To be entitled to the legitime and other successional rights granted to
them by the Civil Code. (Article 174, Family Code). E is the legitimated child of B
and G. Under Art. 177 of the Family Code, only children conceived and born outside
of wedlock of parents who, at the time of the conception of the former, were not
disqualified by any impediment to marry each other may be legitimated. E will have
the same rights as X and Y. F is the illegitimate child of B and G. F has the right to
use the surname of G, her mother, and is entitled to support as well as the legitime
consisting of 1/2 of that of each of X, Y and E. (Article 176, Family Code)
02; Family Code; presumptive legitime
1999 No V
What do you understand by "presumptive legitime", in what case or cases
must the parent deliver such legitime to the children, and what are the legal effects
in each case if the parent fails to do so? (5%)
ANSWER
Presumptive legitime is not defined in the law. Its definition must have been
taken from Act 2710, the Old Divorce Law, which required the delivery to the
legitimate children of "the equivalent of what would have been due to them as their
legal portion if said spouse had died intestate immediately after the dissolution of the
community of property." As used in the Family Code, presumptive legitime is
understood as the equivalent of the legitimate children's legitimes assuming that the
spouses had died immediately after the dissolution of the community of property.
Presumptive legitime is required to be delivered to the common children of
the spouses when the marriage is annulled or declared void ab initio and possibly,
when the conjugal partnership or absolute community is dissolved as in the case of
Page 80 of 391
legal separation. Failure of the parents to deliver the presumptive legitime will make
their subsequent marriage null and void under Article 53 of the Family Code.
02; Family Code; property regime of unions without marriage
1998 No V.
In 1973. Mauricio, a Filipino pensioner of the U.S. Government, contracted a
bigamous marriage with Erlinda, despite the fact that his first wife, Carol, was still
living. In 1975. Mauricio and Erlinda jointly bought a parcel of riceland, with the title
being placed Jointly in their names. Shortly thereafter, they purchased another
property (a house and lot) which was placed in her name alone as the buyer. In
1981, Mauricio died, and Carol promptly filed an action against Erlinda to recover
both the riceland and the house and lot, claiming them to be conjugal property of the
first marriage. Erlinda contends that she and the late Mauricio were co-owners of the
riceland; and with respect to the house and lot, she claims she is the exclusive
owner. Assuming she fails to prove that she had actually used her own money in
either purchase, how do you decide the case? [5%]
Answer;
Carol's action to recover both the riceland and the house and lot is well-
founded. Both are conjugal property, in view of the failure of Erlinda, the wife In a
bigamous marriage, to prove that her own money was used In the purchases made.
The Supreme Court In a case applied Art. 148. Family Code, despite the fact that
the husband's death took place prior to the effectivity of said law. However, even
under Art. 144, Civil Code, the same conclusion would have been reached in view of
the bigamous nature of the second marriage.
Another Answer:
Under Article 148 of the Family Code, which applies to bigamous marriages,
only the properties acquired by both parties through their actual joint contribution of
money, property or industry shall be owned by them in common in proportion to their
respective contributions. Moreover, if one of the parties is validly married to another,
his share In the co-ownership shall accrue to the absolute community /conjugal
partnership existing in such valid marriage.
Thus, in this case, since Erlinda failed to prove that she used her own money
to buy the riceland and house and lot, she cannot claim to be the co-owner of the
riceland nor the exclusive owner of the house and lot. Such properties are
Mauricio's. And since his share accrues to the conjugal partnership with Carol, Carol
can validly claim such properties to the exclusion of Erlinda. (Art. 144, Civil Code).
02; Family Code; property regime of unions without marriage
2000 No II.
For five years since 1989, Tony, a bank Vice-president, and Susan, an
entertainer, lived together as husband and wife without the benefit of marriage
although they were capacitated to many each other. Since Tony's salary was more
than enough for their needs, Susan stopped working and merely "kept house".
During that period, Tony was able to buy a lot and house in a plush subdivision.
However, after five years, Tony and Susan decided to separate.
a) Who will be entitled to the house and lot ? (3%) SUGGESTED
ANSWER:
Tony and Susan are entitled to the house and lot as co-owners in equal
shares. Under Article 147 of the Family Code, when a man and a woman who are
capacitated to marry each other lived exclusively with each other as husband and
wife, the property acquired during their cohabitation are presumed to have been
Page 81 of 391
obtained by their joint efforts, work or industry and shall be owned by them in equal
shares. This is true even though the efforts of one of them consisted merely in his or
her care and maintenance of the family and of the household.
b) Would it make any difference if Tony could not marry Susan because he
was previously married to Alice from whom he is legally separated? (2%)
SUGGESTED ANSWER;
Yes, it would make a difference. Under Article 148 of the Family Code, when
the parties to the cohabitation could not marry each other because of an
impediment, only those properties acquired by both of them through their actual joint
contribution of money, property, or Industry shall be owned by them in common in
proportion to their respective contributions. The efforts of one of the parties in
maintaining the family and household are not considered adequate contribution in
the acquisition of the properties.
Since Susan did not contribute to the acquisition of the house and lot, she has
no share therein. If Tony cohabited with Susan after his legal separation from Alice,
the house and lot is his exclusive property. If he cohabited with Susan before his
legal separation from Alice, the house and lot belongs to his community or
partnership with Alice.
02; Family Code; property regime of unions without marriage
1992 No, 2:
In 1989, Rico, then a widower forty (40) years of age, cohabited with Cora, a
widow thirty (30) years of age. While living together, they acquired from their
combined earnings a parcel of riceland.
After Rico and Cora separated, Rico lived together with Mabel, a maiden
sixteen (16) years of age. While living together. Rico was a salaried employee and
Mabel kept house for Rico and did full-time household chores for him. During their
cohabitation, a parcel of coconut land was acquired by Rico from his savings.
After living together for one (1) year, Rico and Mabel separated. Rico then
met and married Letty, a single woman twenty-six (26) years of age. During the
marriage of Rico and Letty, Letty bought a mango orchard out of her own personal
earnings.
a) Who would own the riceland, and what property regime governs the
ownership? Explain.
b) Who would own the coconut land, and what property regime governs the
ownership? Explain.
c) Who would own the mango orchard, and what property regime governs
the ownership? Explain.
Answer:
(a) Rico and Cora are the co-owners of the riceland. The regime is that of co-
ownership (Art. 147, Family Code, first paragraph).
(Optional Addendum: However, after Rico's marriage to Letty, the half
interest of Rico in the riceland will then become absolute community property of Rico
and Letty.)
(b) Rico is the exclusive owner of the coconut land. The regime is a
sole/single proprietorship (Art. 148. Family Code, first paragraph is applicable, and
not Art. 147 Family Code).
(Optional Addendum: However, after Rico's marriage to Letty, the coconut
land of Rico will then become absolute community property of Rico and Letty.)
Page 82 of 391
(c) Rico and Letty are the co-owners. The regime is the Absolute
Community of Property (Arts, 75,90and9l, Family Code).
02; Family Code; property regime of unions without marriage
1978 No. II-b
A and B lived together publicly as husband and wife for fifteen (15) years in a
house in Bel Air Subdivision acquired during that time. A died intestate. His
legitimate wife C and his two (2) legitimate children sought to include said house in
the estate of the deceased. B objected on the ground that it was acquired during the
period of their cohabitation.
1. What rules govern the relationship of A and B with regard to property
acquired by them during the period of their cohabitation?
2. What conditions must be shown before B can claim any right over property
acquired during that relationship?
Answer
1. The relationship of A and B with regard to property acquired by either or
both of them through their work or industry or their wages and salaries shall be
governed by the rules on co-ownership.
2. B must show that she and A were living together as husband and wife
without getting married; that the property was acquired by either or both of them
through their work or industry or their wages and salaries during the period of her
cohabitation with A; and that she and A had really contributed to the acquisition of
the property.
(NOTE: The above answers are based on Article 144 of the Civil Code and
on Yaptinchay vs. Torres, 28 SCR A 489.)
02; Family Code; property relations
1997 No. 4:
Luis and Rizza, both 26 years of age and single, live exclusively with each
other as husband and wife without the benefit of marriage, Luis is gainfully
employed, Rizza is not employed, stays at home, and takes charge of the household
chores.
After living together for a little over twenty years, Luis was able to save from
his salary earnings during that period the amount of P200,000.00 presently
deposited in a bank. A house and lot worth P500,000.00 was recently purchased for
the same amount by the couple. Of the P500.000.00 used by the common-law
spouses to purchase the property, P200.000.00 had come from the sale of palay
harvested from the hacienda owned by Luis and P300.000,00 from the rentals of a
building belonging to Rizza. In fine, the sum of P500.000.00 had been part of the
fruits received during the period of cohabitation from their separate property, A car
worth P100.000.00. being used by the common-law spouses, was donated Just
months ago to Rizza by her parents.
Luis and Rizza now decide to terminate their cohabitation, and they ask you
to give them your legal advice on the following:
(a) How, under the law. should the bank deposit of P200,000.00t the house
and lot valued at P500.000.00 and the car worth P100.000.00 be allocated to them?
(b) What would your answer be (to the above question) had Luis and Rizza
been living together all the time, ie., since twenty years ago, under a valid marriage?
Answer:
Page 83 of 391
a) Art. 147 of the Family Code provides in part that when a man and a
woman who are capacitated to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a void marriage, their
wages and salaries shall be owned by them In equal shares and the property
acquired by both of them through their work or Industry shall be governed by the
rules of co-ownership.
In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their Joint efforts, worker
Industry, and shall be owned by them In equal shares. A party who did not
participate in the acquisition by the other party of any property shall be deemed to
have contributed Jointly in the acquisition thereof if the former's efforts consisted in
the care and maintenance of the family and of the household.
Thus:
1) the wages and salaries of Luis in the amount of P200,000.00 shall be
divided equally between Luis and Rizza.
2) the house and lot valued at P500.000.00 having been acquired by both
of them through work or industry shall be divided between them in proportion to their
respective contribution, in consonance with the rules on co-ownership. Hence, Luis
gets 2\5 while Rizza gets 3\5 of P500.000.00.
3) the car worth P100,000.00 shall be exclusively owned by Rizza, the same
having been donated to her by her parents.
(b) The property relations between Luis and Rizza, their marriage having
been celebrated 20 years ago (under the Civil Code) shall be governed by the
conjugal partnership of gains, under which the husband and wife place in a common
fund the proceeds, products, fruits and income from their separate properties and
those acquired by either or both spouses through their efforts or by chance, and
upon dissolution of the marriage or of the partnership, the net gains or benefits
obtained by either or both spouse shall be divided equally between them (Art. 142.
Civil Code).
Thus:
1) The salary of Luis deposited in the bank in the amount of P200.000.00
and the house and lot valued at P500,000.00 shall be divided equally between Luis
and Rizza.
2) However, the car worth P1OO.000,00 donated to Rizza by her parents
shall be considered to her own paraphernal property, having been acquired by
lucrative title (par. 2, Art. 148, Civil Code).
02; Family Code; property relations
1975 No. VI
The husband sold with right of repurchase a parcel of land belonging to the
conjugal partnership without his wife's consent. Later the wife consented to the
extension of the period of conventional redemption agreed to by the buyer and her
husband. Is the sale valid or void? Why?
Answer
The sale, although originally voidable under Articles 166 and 173 for having
been entered into without the wife's consent, was ratified or validated when the wife
gave her conformity to the extension of the period of redemption. (Lanuza v. de
Leon, 20 SCRA 369)
02; Family Code; property relations
Page 84 of 391
1975 No. IX
A husband and his wife, with conjugal funds, constructed a building on a lot
owned by the wife's parents. Subsequently, the parents donated said lot to the wife.
Who now owns the land? Explain.
Answer:
When the lot was donated to the wife by her parents, it became her
paraphernal property as it was acquired by lucrative title during marriage under Art.
148(2) and the donation transmitted to her the rights of a land-owner over a building
constructed on it.
Art. 158, paragraph 2 applies when the building was constructed on land
belonging to one of the spouses. Since the lot belongs to the wife's parents at the
time the building was constructed. Article 158, paragraph 2 of the Civil Code is not
applicable. (Caltex v. Felias, 108 Phil. 873)
02; Family Code; property relations
1976 No. III-a
After a whirlwind courtship, A and B decide to marry each other and consult
you on property rights. Will a Mercedez-Benz sedan that A bought while still single,
continue to be his exclusive property? Explain.
Answer
Yes, according to Article 148, paragraph 1, the following shall be the
exclusive property of each spouse:
1. That which is brought to the marriage as his or her own; "x x x
xx x"
02; Family Code; property relations
1976 No. III-b
A & B married. Will the prizes of Fremyo Savings bonds purchased during the
marriage, be considered conjugal property?
Answer
Yes, according to Article 160, properties acquired during marriage is
presumed to belong to the conjugal partnership unless it is proved that it was bought
by exclusive funds of either spouse. Hence prizes of the bond shall be considered
an increment of the conjugal property.
02; Family Code; property relations
1976 No. III-c
May gambling debts contracted by either spouse without the consent of the
other, be charged against the community? Explain.
Answer
No, according to Article 164, whatever may be lost during the marriage in any
kind of gambling, betting or game, whether permitted or prohibited by law, shall be
borne by the loser, and shall not be charged to the conjugal partnership.
02; Family Code; property relations
1977 No. II-c
There are cases where the husband as administrator of the conjugal
partnership need not secure the consent of the wife in order to dispose or
encumber conjugal property. Mention five (5) of said cases.
Page 85 of 391
Answer
The husband does not have to secure his wife's consent in the following
cases:
a. Alienations or encumbrances of personal property belonging to the
conjugal partnership, except donations which are not moderate donations for
charity (Art. 174, CC).
b. Alienations or encumbrances of real property belonging to the conjugal
partnership acquired before the effectivity of the new Civil Code (Art. 166, CC),
except donations which are not moderate donations for charity (Art, 174, CC).
c. Alienations or encumbrances of real property belonging to the conjugal
partnership acquired after the effectivity of the new Civil Code in the following
cases:
(1) When the wife has been declared a non composmentis;
(2) When the wife has been declared a spendthrift;
(3) When the wife is under civil interdiction;
(4) When the wife is confined in a leprosarium;
(5) Moderate donations for charity;
(6) Donations made or promised to the common children for securing
their future or the finishing of a career; and
(7) Those made in order to pay the obligations of the conjugal partnership.
(See Arts. 166, 162, 171, 174, CC.)
The wife may bind the conjugal partnership in the following cases;
(1) When the obligation is contracted for the daily expenses of the family
(Art. 115, CC).
(2) When the obligation is contracted in her business or profession, provided
that it has redounded to the benefit of the family. (Art. 117, CC).
(3) When she acts as the agent of her husband.
(4) When the administration of the conjugal partnership has been transferred
to her (Arts. 112, 168, 196, CC).
(5) Moderate donations for charity (Art. 174. CC).
02; Family Code; property relations
1978 No. III-a
A and B, a year after marriage, built a residential house on land belonging to
the latter as her paraphernal property, using conjugal funds for its construction. Their
marital life proving unhappy, they agreed to separate. Neither took the trouble to
obtain judicial separation. Sometime later, a big fire reduced the house to ashes.
Upon the death of B, the wife, there was a liquidation of the conjugal property. A, the
surviving spouse, contended that the lot should form part of the conjugal estate. The
heirs of B, the deceased wife, claimed that after the house was burned, having the
lot vacant once more, it reverted to its status of being paraphernal. Decide the case
with reasons.
Answer
A's contention that the lot should form part of the conjugal estate is not
correct. Under the Civil Code, B retains her right of ownership of the lot until she is
paid its value. It is now a well-settled doctrine that payment of the value of the lot
Page 86 of 391
can be made only once the conjugal partnership is dissolved and there is a
subsequent liquidation of the conjugal partnership properties. In other words, before
the lot can be converted or transformed into conjugal property, it is essential that the
condition that its value shall be reimbursed to B or her legal heirs must be complied
with. Such reimbursement can only take place during the liquidation proceedings.
Obviously, compliance with this condition presupposes that the building constructed
on the lot must still be in existence at the time of liquidation of the conjugal
partnership properties. In the instant case, the building was destroyed before the
condition could be complied with. The lot, therefore, never ceased to be
paraphernal.
(NOTE: The above answer is based on Art. 158, par. 2, Civil Code and on
Vda. de Padilla vs. Paterno, 113 Phil 656. See also Maramba vs. Lorenzo, 20 SCR
A 474.)
02; Family Code; property relations
1985 No. 3
At the time of the dissolution of the marriage by the death of (the husband) A,
he and his wife, B, were possessed of the following properties:
1) A house and lot 1/3 of the price of which A paid before his marriage, 1/3
during the marriage from his salary, and the balance also during the marriage from
money B received in payment of a loan obtained from her while still single; and
2) An apartment house constructed on a parcel of lot donated to 6 prior to
the marriage.
Who owns the foregoing properties and what obligations, if any, does the
owner have for the improvements introduced thereon? Discuss.
Answer:
I) 1. The house and lot is a separate property of A subject to reimbursement
of 1/3 of the price to the conjugal partnership and another 1/3 to his wife B.
2. If the sale was made before the marriage and there is no reservation of the
ownership then the property is capital of the husband but he must reimburse the
conjugal partnership for 1/3 of the price and wife another 1/3 of the price.
3. If there is a reservation of ownership and the ownership will transfer
after the full payment of the price, then the property is 1/3 capital, 1/3 conjugal
and 1/3 paraphernal.
4. If it was acquired during the marriage, then the property is 1/3 separate,
1/3 conjugal and 1/3 paraphernal.
5. Inasmuch as the property was acquired and 1/3 of the price was paid out
of exclusive property, 1/3 from the conjugal property, and 1/3 from the exclusive
property of B, then each will own the property proportionately—1/3 to A, 1/3 to the
conjugal partnership and 1/3 to B.
6. The house and lot is exclusive in nature, but A shall reimburse the
conjugal partnership of gains for the 1/3 price paid during the marriage which
came from conjugal funds {salary of A) and B for the 1/3 balance which was
sourced from her paraphernal (see Art. 148, in relation to Art. 153, Civil Code;
Lorenzo vs. Nicolas, 91 Phil 686).
2) 1. The apartment house is owned by the conjugal partnership subject to
reimbursement to B for the value of the land. Improvements made on separate
property from advancements of the conjugal partnership or the industry of either
spouse belong to the conjugal partnership.
Page 87 of 391
2. If the house was constructed at the expense of the conjugal funds, the
land become automatically conjugal property but the payment of the price could be
nude after the liquidation.
3. If the house was constructed before the donation, then the house and lot
are paraphernal.
4. The apartment house is conjugal if it was constructed during the marriage
utilizing conjugal funds. In this event, the lot shall also be considered conjugal and B
shall be considered a creditor of the partnership for the value of the lot payable upon
liquidation of the conjugal partnership (Art. 158, Civil Code; Calimlim-Canullas vs.
Judge Fortun) under other circumstances, or where the above conditions do not
concur, .said pieces of property may be or remain exclusive in nature.
02; Family Code; property relations
1994 No. 6;
Paulita left the conjugal home because of the excessive drinking of her
husband, Alberto. Paulita, out of her own endeavor, was able to buy a parcel of land
which she was able to register under her name with the addendum "widow." She
also acquired stocks in a listed corporation registered In her name. Paulita sold the
parcel of land to Rafael, who first examined the original of the transfer certificate of
title.
1) Has Alberto the right to share in the shares of stock acquired by Paulita?
2) Can Alberto recover the land from Rafael?
Alternative Answers:
1. a) Yes. The Family Code provides that all property acquired during the
marriage, whether the acquisition appears to have been made, contracted or
registered in the name of one or both spouses, is presumed to be absolute
community property unless the contrary is proved.
b) Yes. The shares are presumed to be absolute community property having
been acquired during the marriage despite the fact that those shares were
registered only in her name. Alberto's right to claim his share will only arise,
however, at dissolution.
c) The presumption is still that the shares of stock are owned in common.
Hence, they will form part of the absolute community or the conjugal partnership
depending on what the property regime is.
d) Since Paulita acquired the shares of stock by onerous title during the
marriage, these are part of the conjugal or absolute community property, as the case
maybe (depending on whether the marriage was celebrated prior to. or after, the
effectivity of the Family Code). Her physical separation from her husband did not
dissolve the community of property. Hence, the husband has a right to share in the
shares of stock.
2) a) Under a community of property, whether absolute or relative, the
disposition of property belonging to such community is void if done by just one
spouse without the consent of the other or authority of the proper court. However,
the land was registered in the name of Paulita as "widow". Hence, the buyer has the
right to rely upon what appears in the record of the Register of Deeds and should,
consequently, be protected. Alberto cannot recover the land from Rafael but would
have the right of recourse against his wife,
b) The parcel of land is absolute community property having been acquired
during the marriage and through Paulita's industry despite the registration being only
in the name of Paulita. The land being community property, its sale to Rafael without
Page 88 of 391
the consent of Alberto is void. However, since the land is registered in the name of
Paulita as widow, there is nothing in the title which would raise a suspicion for
Rafael to make inquiry. He, therefore, is an innocent purchaser for value from whom
the land may no longer be recovered.
c) No. Rafael is an innocent purchaser in good faith who, upon relying on the
correctness of the certificate of title, acquires rights which are to be protected by the
courts.
Under the established principles of land registration law, the presumption is
that the transferee of registered land is not aware of any defect in the title of the
property he purchased. (See Tojonera v. Court of Appeals, 103 SCRA 467).
Moreover, the person dealing with registered land may safely rely on the correctness
of its certificate of title and the law will in no way oblige him to go behind the
certificate to determine the condition of the property. [Director of Lands v. Abache, et
al. 73 Phil. 606). No strong considerations of public policy have been presented
which would lead the Court to reverse the established and sound doctrine that the
buyer in good faith of a registered parcel of land does not have to look beyond the
Torrens Title and search for any hidden defect or inchoate right which may later
Invalidate or diminish his right to what he purchased. (Lopez v. Court of Appeals.
189 SCRA 271)
d) The parcel of land is absolute community property having been acquired
during the marriage and through Paulita's industry despite registration only in the
name of Paulita. The land being community property, its sale to Rafael without the
consent of Alberto is void.
02; Family Code; property relations
1987 No. 12:
Spouses Martin and Tecla bought a parcel of land on installment. At the time
the total sale price was paid, Martin had left the conjugal abode and was cohabiting
with Tina. Notwithstanding such separation, Tecla religiously paid the installments
as they fell due out of her earnings from a small sari-sari store. After the total
purchase price had been paid, Martin had the property titled in the name of "Martin
married to Tina." Tecla died and her two children by Martin demanded partition of
the property and their mother's share. Mariin and Tina refused, claiming that the
property belonged to their "conjugal partnership." No proof was presented that
Martin married Tina during or after the death of Tecla.
To whom does the property titled in the name of "Martin married to Tina
belong? How would the property be divided among Martin, the two children of Martin
and
Tecla and Tina? Explain.
Answer:
The property is conjugal property,— 1/2 belongs to Martin and the other
half of Tecla. However, 1/2 belonging to Tecla will be divided among Martin and the
two children, each of them getting 1/3 of that 1/2.
02; Family Code; property relations
1989 No, 3:
(1) What properties are excluded from the regime of absolute community of
property between spouses?
Answer:
The following shall be excluded from the community property:
Page 89 of 391
(1) Property acquired during the marriage by gratuitous title by
either spouse, and the fruits as well as the income thereof, if any, unless it is
expressly provided by the donor, testator or grantor that they shall form part of the
community property;
(2) Property for personal and exclusive use of either spouse; however,
jewelry shall form part of the community property;
(3) Property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as well as the
income, if any, of such property.
(2) When should the property relations of the spouses be mandatorily
governed by the regime of complete separation of property?
Answer:
Should the surviving spouse contract a subsequent marriage without
complying with the requirement that the community or conjugal property be
liquidated judicially or extra-judicially within one year from the death of the deceased
spouse, a mandatory regime of complete separation of property shall govern the
property relations of the subsequent marriage.
02; Family Code; property relations
1995 No. 9:
2. Suppose Tirso and Tessie were married on 2 August 1988 without
executing any ante nuptial agreement. One year after their marriage, Tirso while
supervising the clearing of Tessie's inherited land upon the latter's request,
accidentally found the treasure not in the new river bed but on the property of
Tessie. To whom shall the treasure belong? Explain.
Answer:
2. Since Tirso and Tessie were married before the effectivity of the Family
Code, their property relation is governed by conjugal partnership of gains. Under Art.
54 of the Civil Code, the share of the hidden treasure which the law awards to the
finder or the proprietor belongs to the conjugal partnership of gains. The one-half
share pertaining to Tessie as owner of the land, and the one-half share pertaining to
Tirso as finder of the treasure, belong to the conjugal partnership of gains.
02; Family Code; property relations
1980 No. I
(a) "A" and "B" were husband and wife. During their marriage, they built a
house on a lot exclusively owned by "B", the wife, with funds earned by "A", the
husband. They had no children. Upon the death of "B", her relatives claimed the
house and lot from "A", the husband. The husband refused.
Decide the controversy.
Answer
(a) "A", the husband, is correct when he refused to give the house and lot to
the relatives of "B".
The funds used in constructing the house are conjugal. This is so because
such funds were earned by "A". Therefore, the house is conjugal True, the lot upon
which the house is constructed is paraphernal But then, according to the Civil Code,
it will also become conjugal upon compliance with the condition that its value shall
be reimbursed by the conjugal partnership to the wife. This condition can be fulfilled
only during the liquidation of the conjugal partnership. This is well-settled. Assuming
then that this condition has been fulfilled, both house and lot are conjugal in
Page 90 of 391
character. One-half (1/2) thereof belongs to "A", while the other one-half (1/2)
belongs to the estate of "B".
To whom shall the estate of "B" pass? Assuming that "B" died intestate and
assuming further that the relatives of "B" are brothers and sisters and/or nephews
and nieces, one-half (1/2) thereof shall pass to "A" and the other one-half (1/2) shall
pass to such relatives in accordance with the rules of intestacy. However, if such
relatives are not brothers and sisters and/or nephews and nieces, the entire estate
shall pass to "A" alone in accordance with the rules of intestacy.
(NOTE: The above answer is based on Art. 158, par. 2, Civil Code, and on
the cases of Coingco vs. Flores, 84 Phil 284; Vda. de Padilla vs. Paterno, 113 Phil.
656; and Maramba vs. Lozano, 20 SCR A 474).
02; Family Code; property relations; charges
2000 No I
a) As finance officer of K and Co., Victorino arranged a loan of P5 Million
from PNB for the corporation. However, he was required by the bank to sign a
Continuing Surety Agreement to secure the repayment of the loan. The corporation
failed to pay the loan, and the bank obtained a judgment against it and Victorino,
jointly and severally. To enforce the judgment, the sheriff levied on a farm owned by
the conjugal partnership of Victorino and his wife Elsa. Is the levy proper or not?
(3%)
SUGGESTED ANSWER:
The levy is not proper there being no showing that the surety agreement
executed by the husband redounded to the benefit of the family. An obligation
contracted by the husband alone is chargeable against the conjugal partnership only
when it was contracted for the benefit of the family. When the obligation was
contracted on behalf of the family business the law presumes that such obligation
will redound to the benefit of the family. However, when the obligation was to
guarantee the debt of a third party, as in the problem, the obligation is presumed for
the benefit of the third party, not the family. Hence, for the obligation under the
surety agreement to be chargeable against the partnership it must be proven that
the family was benefited and that the benefit was a direct result of such agreement,
(Ayala Investment v. Ching, 286 SCRA 272)
02; Family Code; property relations; charges
1979 No. V
H was engaged in the business of buying and selling rice. In the course
thereof, he incurred a P20,000.00 indebtedness from his supplier of rice. Because of
his gambling losses, his business went bankrupt and soon thereafter, he and his
wife W quarreled and live separately ever since. A year after they had separated,
H's creditor sued him and obtained a favorable judgment which however cannot be
enforced against H because he had no property at all. H's creditor now seeks to
enforce the judgment against W's brand new car which she had bought out of her
salary from the company where she works. The car is registered in W's maiden
name which she had resumed using. May the car be levied upon to answer for the
judgment? Why?
Answer
Yes, W's car may be levied upon to answer for the judgment. It must be
observed that the obligation of H is an obligation which had redounded to the benefit
of his family. Under the Civil Code, the conjugal partnership is liable for the payment
of such obligation. The fact that H's business went bankrupt because of his gambling
losses does not affect the liability of the partnerships for the obligation. Neither does
Page 91 of 391
the separation de facto of H and W have any effect. Under the law, such separation
does not terminate the conjugal partnership of grains existing between them. But
how about the fact that the car was bought to W out of her salary? Under the Civil
Code, W's salary is conjugal. Subsequently, heir car which she bought with her
salary would then be classified as properly acquired during the marriage with
conjugal funds by onerous title. As to the same Code, the car is also conjugal. Being
conjugal, it may be levied upon to answer for the judgment.
02; Family Code; property relations; charges and expenses
1985 No. 4
A) Aside from the foregoing assets, A and B in the preceding question had
these obligations outstanding at the time of A's death—
1) A debt contracted by B for the repair of the house and apartment
building above referred to; and
2) A shortage in A's account as cashier of the firm where he was employed:
Against whom are these obligations chargeable? Score your reasons.
Answers:
A) 1. With respect to the house since it is a separate property of the husband,
minor repairs are to be shouldered by the conjugal partnership but major repairs are
for the account of the owner (husband A). With respect to the apartment building,
which is conjugal, then the major and minor repairs are for the account of the
conjugal partnership.
2) The debt is chargeable against the conjugal partnership since it redounds
to the benefit of the partnership.
3) The debt contracted by B for the repair of the house is an exclusive
obligation of the husband A, but the repair cost on the apartment house being
conjugal in nature, although contracted by B, the debt shall be borne by the conjugal
partnership (Art. 161, Civil Code).
2) 1. If this shortage is a civil liability and the obligation is contracted by
A in his employment as cashier from which he derives the support of the family then
the shortage is chargeable against the conjugal partnership. But if A was convicted
and ordered to pay the shortage, it is chargeable against his separate property,
2. If the shortage wag incurred due to fraud or crime, it is chargeable against
the separate property of A. But if A acted in good faith, the shortage is chargeable
against the conjugal partnership since the obligation was incurred in the exercise of
his profession, which redounds to the benefit of the family.
3) Fines and pecuniary indemnities imposed upon the spouses shall not
be charged to the conjugal partnership; if, however, the spouse liable therefore has
no sufficient exclusive property, said obligation may be enforced against the
partnership assets after the responsibilities mentioned in Art. 151 would have been
covered, but at the time of .the liquidation of the partnership, the said spouse shall
be charged for such payment (Art. 161, Civil Code).
02; Family Code; property relations; conjugal partnership pf gains
1998 No VI.
In 1970, Bob and Issa got married without executing a marriage settlement.
In 1975, Bob inherited from his father a residential lot upon which, in 1981, he
constructed a two-room bungalow with savings from his own earnings. At that time,
the lot was worth P800.000.00 while the house, when finished cost P600,000.00. In
Page 92 of 391
1989t Bob died, survived only by his wife, Issa and his mother, Sofia. Assuming that
the relative values of both assets remained at the same proportion:
1. State whether Sofia can rightfully claim that the house and lot are not
conjugal but exclusive property of her deceased son. [3%]
2. Will your answer be the same if Bob died before August 3, 1988? [2%]
Answer;
1. Since Bob and Sofia got married In 1970, then the law that governs is the
New Civil Code (Persons), in which case, the property relations that should be
applied as regards the property of the spouses is the system of relative community
or conjugal partnership of gains (Article 119, Civil Code). By conjugal partnership of
gains, the husband and the wife place in a common fund the fruits of their separate
property and the income from their work or Industry (Article 142, Civil Code). In this
instance, the lot inherited by Bob in 1975 is his own separate property, he having
acquired the same by lucrative title (par. 2, Art. 148, Civil Code). However, the
house constructed from his own savings in 1981 during the subsistence of his
marriage with Issa is conjugal property and not exclusive property in accordance
with the principle of "reverse accession" provided for in Art. 158, Civil Code.
Another Answer:
1. Sofia, being her deceased son's legal heir concurring with his surviving
spouse (Arts. 985, 986 and 997, Civil Code), may rightfully claim that the house and
lot are not conjugal but belong to the hereditary estate of Bob. the value of the land
being more than the cost of the improvement (Art. 120, Family Code).
Answer:
2. Yes, the answer would still be the same. Since Bob and Issa contracted
their marriage way back in 1970, then the property relations that will govern is still
the relative community or conjugal partnership of gains (Article 119, Civil Code). It
will not matter if Bob died before or after August 3. 1988 (effectivity date of the
Family Code], what matters is the date when the marriage was contracted. As Bob
and Issa contracted their marriage way back in 1970. the property relation that
governs them is still the conjugal partnership of gains. (Art. 158, Civil Code)
Another Answer:
2. If Bob died be fore August 3, 1988. which is the date the Family Code
took effect, the answer will not be the same. Art. 158. Civil Code, would then apply.
The land would then be deemed conjugal, along with the house, since conjugal
funds were used in constructing it. The husband's estate would be entitled to a
reimbursement of the value of the land from conjugal partnership funds.
02; Family Code; property relations; dissolution of partnership; custody of
children
1978 No I-b
Ester Santos and Pedro Reyes were married on September 7, 1962 and had
two (2) children, a girl of four (4) years and a boy of eleven (11) years of age. In
1976, Ester left the conjugal home in Zamboanga and resided in Manila. Ester and
Pedro reached an amicable settlement respecting custody of children, support,
separation of property and dissolution of the conjugal partnership. It was agreed that
the custody of the girl be given to the mother and that of the boy to the father.
Subsequently, the mother questioned in court the validity of the agreement with
respect to the custody of her son.
1. Is the amicable settlement valid with respect to the separation of property
and dissolution of the conjugal partnership? Reasons,
Page 93 of 391
2. Is the amicable settlement valid with respect to the custody of the
children? Reasons.
Answer
1. The amicable settlement with respect to the separation of property and
dissolution of the conjugal partnership is not valid unless judicially approved. The
Civil Code is explicit. According to one provision, separation of property between the
spouses during the marriage shall not take place save by virtue of a judicial order.
According to another provision, every extrajudicial agreement, during marriage, for
the dissolution of the conjugal partnership between husband and wife shall be void
and of no effect.
(NOTE: The above answer is based on Articles 190 and 221 of the Civil
Code.)
2. The amicable settlement with respect to the custody of the children is valid
provided that it is for their best interest and welfare. It is a well-settled rule in this
jurisdiction that in questions involving- custody of children, their interest and welfare
are always paramount. As a matter of fact, the law now declares it. Here, the
custody of the girl, who is four years aid, is given to the mother. There is no violation
of the law either under the Civil Code or under the Child and Youth Welfare Code.
The custody of the boy, who is eleven years old, is given to the father. There is also
no violation of the law either under the Civil Code or under the Child and Youth
Welfare Code.
(NOTE: The above answer is based on decided cases as well as pertinent
provisions of the Welfare Code, such as Articles 8 and 17.)
02; Family Code; property relations; donations between spouses
1977 No. III-b
H donated a parcel of land to W, his common-law wife. Later, they married,
but soon afterwards H died, survived only by a sister, S and W. S sued to recover
the property donated, but W resisted. Decide with reasons.
Answer
The action will prosper but only with respect to one-half of the property. As
held by the Court of Appeals in a 1954 decision (Buenaventura vs. Bautista, 60 Off
Gaz, 3679), the prohibition of donations between spouses during the marriage is
applicable to common-law relationship for the following reasons: The reason behind
the law that the donation was probably due to undue and improper influence is also
true with greater force in extra-marital relations. Besides, so long as marriage
remains the cornerstone of our family law, reason and morality demand that the
disabilities which are attached to marriage should likewise be attached to extra-
marital relation.
The lack of validity of the donation made by H to W, however, does not mean
that the entire property shall be given to S Because of her marriage to H, W is
entitled to one-half of the property and the plaintiff, as the surviving sister, to the
other half (Art. 1001, Civil Code).
02; Family Code; property relations; marriage settlements
1995 No, 6;
On 10 September 1988 Kevin, a 26-year old businessman, married Karla. a
winsome lass of 18. Without the knowledge of their parents or legal guardians,
Kevin and Karla entered into an ante-nuptial contract the day before their marriage
stipulating that conjugal partnership of gains shall govern their marriage. At the time
Page 94 of 391
of their marriage Kevin's estate was worth 50 Million while Karla's was valued at 2
Million.
A month after their marriage Kevin died in a freak helicopter accident. He left
no will, no debts, no obligations. Surviving Kevin, aside from Karla, are his only
relatives: his brother Luis and first cousin Lilia.
1. What property regime governed the marriage of Kevin and Karla?
Explain.
2. Determine the value of the estate of Kevin,
3. Who are Kevin's heirs?
4. How much is each of Kevin's heirs entitled to inherit?
Answer;
1. Since the marriage settlement was entered into without the consent and
without the participation of the parents (they did not sign the document), the
marriage settlement is Invalid applying Art. 78, F.C. which provides that a minor
who according to law may contract marriage may also enter into marriage
settlements but they shall be valid only if the person who may give consent to the
marriage are made parties to the agreement. (Karla was still a minor at the time the
marriage settlement was executed In September 1988 because the law, R.A. 6809,
reducing the age of majority to 18 years took effect on 18 December 1989). The
marriage settlement being void, the property regime governing the marriage Is,
therefore, absolute community of property, under Art. 75 of the FC.
2. All the properties which Kevin and Karla owned at the time of marriage
became community property which shall be divided equally between them at
dissolution, Since Kevin owned 50 Million and Karla. 2 Million, at the time of the
marriage, 52 Million constituted their community property. Upon the death of Kevin,
the community was dissolved and half of the 52 Million or 26 Million is his share in
the community. This 26 Million therefore is his estate.
3. Karla and Luis are the Intestate heirs of Kevin.
4. They are entitled to share the estate equally under Article 1001 of the
NCC. Therefore. Karla gets 13 Million and Luis gets 13 Million.
02; Family Code; property relations; marriage settlements
1991 No 3:
Bar Candidates Patricio Mahigugmaon and Rowena Amor decided to marry
each other before the last day of the 1991 Bar Examinations. They agreed to
execute a Marriage Settlement. Rowena herself prepared the document in her own
handwriting. They agreed on the following: (1) a conjugal partnership of gains; (2)
each donates to the other fifty percent (50%) of his/her present property, (3) Rowena
shall administer the conjugal partnership property; and (4) neither may bring an
action for the annulment or declaration of nullity of their marriage. Both signed the
agreement in the presence of two (2) witnesses. They did not, however,
acknowledge it before a notary public.
(a) As to form, is the Marriage Settlement valid? May it be registered in the
registry of property? If not, what steps must be taken to make it registerable?
(b) Are the stipulations valid?
(c) If the Marriage Settlement is valid as to form and the above stipulations
are likewise valid, does it now follow that said Marriage Settlement Is valid and
enforceable?
Answer:
Page 95 of 391
A. Yes, it is valid as to form because it is in writing.
No, it cannot be registered in the registry of property because it is not a public
document. To make it registerable, it must be reformed and has to be notarized.
B. Stipulations (1) and (3) are valid because they are not contrary to law.
Stipulation (4) is void because it is contrary to law. Stipulation (2) is valid up to 1/5
of their respective present properties but void as to the excess (Art 84, Family
Code).
C. No. on September 15,1991. the marriage settlement is not yet valid and
enforceable until the celebration of the marriage, to take place before the last day of
the 1991 bar Examinations.
Alternative Answers:
A. Yes, it is valid as between the parties but not as against third persons.
No, because it is not a public document. To make it registerable, it must be reformed
and has to be notarized.
B. It depends. As between the parties, stipulations (1) and (3) are valid
because they are not contrary to law. Stipulation (2) is void because it is contrary to
law. Stipulation (2) is valid up to 1/5 of their respective present properties but void
as to the excess (Art. 84, Family Code).
02; Family code; property relations; separation of property
1984 No. 1
Spouses Pedro and Maria decided to separate, and to voluntarily dissolve
their conjugal partnership. Hence, they executed a public document wherein they
declared that they had no debts, that they were voluntarily dissolving their conjugal
partnership, and that each of them would thereafter be free to acquire or dispose of
any property independently of the other. Thereafter, they lived apart.
Pedro engaged in business which unfortunately failed. On the other hand,
Maria continued to be gainfully employed and was able to acquire properties through
her own efforts.
The creditors of Pedro obtained a judgment against the latter which they
could not satisfy because Pedro was insolvent-
Could the creditors of Pedro obtain satisfaction of the judgment out of the
properties of Maria? Explain.
Answer:
A. Furnished by the Office of Justice Palma
Yes, Under Act 190, the separation of properties between spouses during the
marriage shall not take place save in virtue of a judicial order. Not having been
submitted to the court for approval, the agreement to dissolve the conjugal
partnership is void and cannot have any legal effects. The properties acquired by
Maria, being conjugal in character, would therefore be answerable for the debts
incurred by Pedro in business.
B. Comments and Suggested Answer
We agree with the answer of the Bar Examiner. However, we suggest that
the following should also be accepted as a correct answer:
Yes, the creditors can obtain satisfaction of the judgment out of the properties
of Maria.
It is obvious that the properties of Maria are conjugal because they were
acquired through her own effort or industry (Art. 153, No. (2), Civil Code). It is also
Page 96 of 391
obvious that the obligations of Pedro are conjugal obligations because they have
benefited his family (Art. 1G1, No. (1), Civil Code). Therefore, creditors of Pedro can
proceed after the properties acquired by Maria.
But how about the agreement between Pedro and Maria to separate and
dissolve their conjugal partnership voluntarily? This agreement is void because it
was never approved by a competent court. Consequently, it cannot produce any
affect.
02; Family Code; requisites for valid marriages
1999 No III.
What is the status of the following marriages and why?
(a) A marriage between two 19-year olds without parental consent, (2%)
(b) A marriage between two 21-year olds without parental advice. (2%)
(c) A marriage between two Filipino first cousins in Spain where such
marriage is valid. (2%)
(d) A marriage between two Filipinos in Hongkong before a notary public.
(2%)
(e) A marriage solemnized by a town mayor three towns away from his
jurisdiction, (2%)
ANSWER:
(a) The marriage is voidable. The consent of the parties to the marriage
was defective. Being below 21 years old, the consent of the parties is not full without
the consent of their parents. The consent of the parents of the parties to the
marriage is indispensable for its validity.
(b) Between 21-year olds, the marriage is valid de-spite the absence of
parental advice, because such absence is merely an irregularity affecting a formal
requisite—i.e., the marriage license-and does not affect the validity of the marriage
itself. This is without prejudice to the civil, criminal, or administrative liability of the
party responsible therefor.
(c) By reason of public policy, the marriage between Filipino first cousins is
void [Art. 38, par. (1), Family Code], and the fact that it is considered a valid
marriage in a foreign country in this case, Spain— does not validate it, being an
exception to the general rule in Art. 96 of said Code which accords validity to all
marriage solemnized outside the Philippine x x x and valid there as such.
ALTERNATIVE ANSWER
The marriage it void. Under Article 96 of the Family Code, a marriage valid
where celebrated is valid in the Philippines except those marriages enumerated in
said Article which marriages will remain void even though valid where solemnized.
The marriage between first cousins is one of those marriages enumerated therein,
hence, it is void even though valid in Spain where it was celebrated.
By reason of Art. 15 in relation to Article 38 of the Civil Code, which applies to
Filipinos wherever they are, the marriage is void.
(d) It depends. If the marriage before the notary public is valid under
Hongkong Law, the marriage is valid in the Philippines. Otherwise, the marriage
that is invalid in Hongkong will be invalid in the Philippine!.
ALTERNATIVE ANSWER:
If the two Filipinos believed in good faith that the Notary Public is authorized
to solemnize marriage, then the marriage is valid.
Page 97 of 391
(e) Under the Local Government Code, a town mayor may validly solemnize
a marriage but said law is silent as to the territorial limits for the exercise by a town
mayor of such authority. However, by analogy, with the authority of members of the
Judiciary to solemnize a marriage, it would seem that the mayor did not have the
requisite authority to solemnize a marriage outside of his territorial jurisdiction.
Hence, the marriage is void, unless it was contracted with either or both parties
believing in good faith that the mayor had the legal authority to solemnize this
particular marriage (Art 35, par 2 Family Code).
ALTERNATIVE ANSWER:
The marriage is valid. Under the Local Government Code, the authority of a
mayor to solemnize marriages is not restricted within his municipality implying that
he has the authority even outside the territory thereof. Hence, the marriage he
solemnized outside his municipality is valid. And even assuming that his authority is
restricted within his municipality, such marriage will nevertheless, be valid because
solemnizing the marriage outside said municipality is a mere irregularity applying by
analogy the case of Navarro v Domagtoy, 259 Scra 129. In this case, the Supreme
Court held that the celebration by a judge of a marriage outside the jurisdiction of his
court is a mere irregularity that did not affect the validity of the marriage
notwithstanding Article 7 of the Family Code which provides that an incumbent
member of the judiciary is authorized to solemnize marriages only within the court’s
jurisdiction.
ANOTHER ALTERNATIVE ANSWER:
The marriage is void because the mayor has no authority to solemnize
marriage outside his jurisdiction.
02; Family Code; requisites of marriage
1989 No. 2:
(1) Paul, a 17-year old Filipino and a permanent resident in the United
States, married Jean, a 16-year old American in Las Vegas, Nevada. The parents
of both gave their consent to the marriage. The marriage is valid in Nevada. Is its
also valid in the Philippines? Give your reasons.
Answer:
No, the marriage is not valid. Under the Family Code, the law requires that
the contracting parties are at least eighteen (18) years of age.
Alternative Answer:
If the marriage took place before the effectivity of the Family Code, the
marriage will be valid since under the provisions of the Civil Code a marriage valid in
the place of celebration is valid in the Philippines except bigamous, polygamous,
and incestuous marriages as determined by Philippine law. The minimum age under
the old law was sixteen (16) for the male and fourteen (14) for the female.
02; Family Code; requisites of marriage
1995 No. 18:
Isidro and Irma, Filipinos, both 18 years of age, were passengers of Flight
No. 317 of Oriental Airlines. The plane they boarded was of Philippine registry.
While en route from Manila to Greece some passengers hijacked the plane, held the
chief pilot hostage at the cockpit and ordered him to fly Instead to Libya. During the
hijacking Isidro suffered a heart attack and was on the verge of death. Since Irma
was already eight months pregnant by Isidro, she pleaded to the hijackers to allow
the assistant pilot to solemnize her marriage with Isidro. Soon after the marriage,
Page 98 of 391
Isidro expired. As the plane landed in Libya Irma gave birth. However, the baby died
a few minutes after complete delivery.
Back in the Philippines Irma Immediately filed a claim for Inheritance. The
parents of Isidro opposed her claim contending that the marriage between her and
Isidro was void ab initio on the following grounds: (a) they had not given their
consent to the marriage of their son; (b) there was no marriage license; (c) the
solemnizing officer had no authority to perform the marriage; and, (d) the
solemnizing officer did not file an affidavit of marriage with the proper civil registrar.
1. Resolve each of the contentions ([a] to [d]) raised by the parents of Isidro.
Discuss fully.
Answer;
1. (a) The fact that the parents of Isidro and of Irma did not give their
consent to the marriage did not make the marriage void ab initio. The marriage is
merely voidable under Art 45 of the FC.
(b) Absence of marriage license did not make the marriage void ab initio.
Since the marriage was solemnized in articulo mortis, it was exempt from the license
requirement under Art. 31 of the FC.
(c) On the assumption that the assistant pilot was acting for and In behalf of
the airplane chief who was under disability, and by reason of the extraordinary and
exceptional circumstances of the case [ie. hostage situation), the marriage was
solemnized by an authorized officer under Art. 7 (3) and Art. 31. of the FC.
(d) Failure of the solemnizing officer to file the affidavit of marriage did not
affect the validity of the marriage. It is merely an irregularity which may subject the
solemnizing officer to sanctions.
Alternative Answer:
Considering that the solemnizing officer has no authority to perform the
marriage because under Art. 7 the law authorizes only the airplane chief, the
marriage is void, hence, a, c, and d are immaterial.
02; Family Code; requisites of marriage
1976 No. II-a
A, 19, male and B, 17, female contract marriage. May the marriage be
annulled an the ground of underage? Explain.
Answer
It depends on whether the parental consent was given to the marriage. If the
parents did not give their consent, the marriage may be annulled; otherwise it cannot
be annulled.
02; Family Code; requisites of marriage
1976 No. II-c
If B is only 13 but her parents give their consent, is the marriage valid?
Explain.
Answer
No, The marriage is void.
02; Family Code; requisites of marriage
1984 No. 2
Page 99 of 391
In 1974, Alfredo married Alicia, then only 16 years old, without the consent of
the latter's parents. After the birth of their only child, Alice, they separated.
In 197G, Alfredo married Benita with whom he begot one child, Benedicta.
Again, the union was not successful and the couple eventually separated.
In 1978, Alfredo married for the third time, His new bride, Consuelo, bore him
one child, Connie.
Unknown to Alfredo, his first wife, Alicia, died in 1977.
Discuss the validity of each of the three marriages of Alfredo and the status of
each of his children.
Answer:
A, Furnished by Office of Justice Palma
The marriage of Alfredo to Alicia is voidable, but at the instance only of Alicia
who was only 16 years old at the time (Art. 85, par. 1). Alfredo cannot ask for the
annulment of this marriage. The child Alice is legitimate (Art. 89).
The marriage of Alfredo to Benita is void, for being bigamous (Art. 80, par. 4).
The child Benedicta is a natural child by legal fiction (Art. 89).
The marriage of Alfredo to Consuelo is valid, since there was no pre-existing
marriage, in view of the dissolution of the marriage to Alicia upon the latter's death,
coupled with the fact that the marriage to Benita is void. The child Connie is
legitimate.
B, Comments and Suggested Answer
We agree with the answer of the Bar Examiner. However, we suggest that
the following should also be accepted as a correct answer;
The marriage of Alfredo to Alicia is voidable because of lack of parental
consent (Art. 85, No. (1), Civil Code), Hence, it is valid and binding until it is annulled
by a competent court. The child Alice is, therefore, legitimate since the marriage of
Alfredo and Alicia was never annulled.
The marriage of Alfredo to Benita is void because Alfredo married Benita
when his marriage to Alicia was still subsisting in the sense that it has not yet been
annulled. Consequently, the marriage is bigamous, and therefore, void (Art. 80, No.
(4), Civil Code . Hence, the child Benedicta is a natural child by legal fiction (Art. 89,
Civil Code).
The marriage of Alfredo to Consuelo is valid because there was no longer
any legal impediment to said marriage when it was celebrated. Alicia was already
dead and, of course, Alfredo's marriage to Benita is void. The child Connie is,
therefore, legitimate.
02; Family Code; requisites of marriage & void marriage
1993 No. 1:
A and B, both 18 years old, were sweethearts studying in Manila. On August
3, 1988, while in first year college, they eloped. They stayed in the house of a
mutual friend in town X, where they were able to obtain a marriage license. On
August 30, 1988, their marriage was solemnized by the town mayor of X in his
office. Thereafter, they returned to Manila and continued to live separately in their
respective boarding houses, concealing from their parents, who were living in the
province what they had done. In 1992, after graduation from college, A and B
decided to break their relation and parted ways. Both went home to their respective
towns to live and work.
Baldo----------------- 450,000
Wilma--------------- 250,000
Elvira----------------- 250,000
Ernie----------------- 50,000
1,000,000
ALTERNATIVE ANSWER;
The disinheritance of Wilma was effective because disrespect of, and raising
of voice to, her father constitute maltreatment under Article 919(6) of the New Civil
Code. She is, therefore, not entitled to inherit anything. Her inheritance will go to the
other legal heirs. The total omission of Elvira Is not preterition because she is not a
compulsory heir in the direct line. She will receive only her legitime. The legacy in
favor of Rosa is void under Article 1028 for being in consideration of her adulterous
relation with the testator. She is, therefore, disqualified to receive the legacy. Ernie
will receive the legacy In his favor because it is not inofficious. The institution of
Baldo, which applies only to the free portion, will be respected. In sum, the estate of
Lamberto shall be distributed as follows:
(Note: The above answer is based on Arts. 1278 and 1279, No. UK Civil
Code.)
07; Obligations; extinguishment; compensation vs payment
1998 No XIV.
1. Define compensation as a mode of extinguishing an obligation, and
distinguish it from payment. |2%]
2. X, who has a savings deposit with Y Bank in the sum of P1 ,000,000.00,
incurs a loan obligation with the said Bank in the sum of P800.000.00 which has
become due. When X tries to withdraw his deposit, Y Bank allows only P200.000.00
to be withdrawn, less service charges, claiming that compensation has extinguished
its obligation under the savings account to the concurrent amount of X's debt. X
contends that compensation is improper when one of the debts, as here, arises from
a contract of deposit. Assuming that the promissory note signed by X to evidence
the loan does not provide for compensation between said loan and his savings
deposit, who is correct? [3%]
Answer:
1. Compensation is a mode of extinguishing to the concurrent amount, the
obligations of those persons who In their own right are reciprocally debtors and
creditors of each other (Tolentino, 1991 ed., p. 365, citing 2 Castan 560 and Francia
vs. IAC. 162 SCRA 753). It involves the simultaneous balancing of two obligations in
order to extinguish them to the extent in which the amount of one is covered by that
of the other. (De Leon, 1992 ed., p. 221, citing 8 Manresa 401).
Payment means not only delivery of money but also performance of an
obligation (Article 1232, Civil Code). In payment, capacity to dispose of the thing
"Receipt
Received from Richard as down payment
For my 1995 Toyota Corolla with
plate No. XYZ-1 23.............. P50.000.00
Balance payable: 12/30/01........ P50 000.00
September 15, 2001.
SUGGESTED ANSWER
It is a contract of sale because the seller did not reserve ownership until he
was fully paid.
08; Sales; contract to sell vs contract of sale
1997 No. 15:
State the basic difference (only in their legal effects) -
(a) Between a contract to sell, on the one hand, and a contract of sale, on
the other;
Answer:
(a) In a contract of sale, ownership is transferred to the buyer upon delivery
of the object to him while in a contract to sell, ownership is retained by the seller until
the purchase price is fully paid. In a contract to sell, delivery of the object does not
confer ownership upon the buyer. In a contract of sale, there Is only one contract
executed between the seller and the buyer, while in a contract to sell, there are two
contracts, first the contract to sell (which is a conditional or preparatory sale) and a
second, the final deed of sale or the principal contract which is executed after full
payment of the purchase price.
08; Sales; double sales
2001 No XII
On June 15,1995, Jesus sold a parcel of registered land to Jaime. On June
30. 1995, he sold the same land to Jose. Who has a better right if:
a) the first sale is registered ahead of the second sale, with knowledge of
the latter. Why? (3%)
b) the second sale is registered ahead of the first sale, with knowledge of
the latter? Why? (5%)
SUGGESTED ANSWER:
(a) The first buyer has the better right if his sale was first to be registered,
even though the first buyer knew of the second sale. The fact that he knew of the
second sale at the time of his registration does not make him as acting in bad faith
because the sale to him was ahead in time, hence, has a priority in right. What
creates bad faith in the case of double sale of land is knowledge of a previous sale.
b) The first buyer is still to be preferred, where the second sale is registered
ahead of the first sale but with knowledge of the latter. This is because the second
buyer, who at the time he registered his sale knew that the property had already
been sold to someone else, acted in bad faith. (Article 1544, C.C.)
08; Sales; double sales
2004 No. IV
A. JV, owner of a parcel of land, sold it to PP. But the deed of sale was not
registered. One year later, JV sold the parcel again to RR, who succeeded to
register the deed and to obtain a transfer certificate of title over the property in his
own name.