Saint Louis University - College of Law

Comprehensive Reviewer in Persons and Family Relations

By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

PERSONS AND FAMILY RELATIONS C. According to force and effect:

1. Mandatory or Prohibitive Laws - those which
I. INTRODUCTION have to be complied with because they are
expressive of public policy.
LAW – is a rule of conduct promulgated by a 2. Permissive or Suppletory Laws – those
legitimate authority for the common good and which may be deviated from if the individual
observance of all. so desires.

CLASSIFICATION OF LAW CIVIL LAW – mass of precepts which determines

a.) Natural Law – promulgated impliedly in human
body and conscience.
1. Natural Moral Law – applies to our higher
faculties (do good and avoid evil).
2. Law of Nature – applies to both our higher
and lower faculties (law of gravity).
b.) Positive Law – promulgated expressly or
impliedly.
1. Divine Positive Law – like The Ten
Commandments.
2. Divine – Human Positive Law – like The
Commandments of the Catholic Church.
3. Human Positive Law – like Congressional
Statutes or Executive Orders.
CONCEPT OF LAW AS “DERECHO” AND “LEY”
Derecho is the general or abstract concept of law
which defines law as the science of moral rules
founded on rational nature of man, demandable and
reciprocal, and governs the free activity of man for
the realization of the individual and social ends.
Ley is the specific or material concept of law which
defines law as a rule of human conduct, just,
obligatory, promulgated by legitimate authority, and
of common observance and benefit.
HUMAN POSITIVE LAW - is a reasonable rule of
action, expressly or directly promulgated by
competent human authority for the common good,
and usually, but not necessarily, imposing a sanction
in case of disobedience.
and regulates the relations of assistance, authority
and obedience existing among members of family as
well as among members of society for the protection
of private interest, family relations and property
rights.
CIVIL CODE – collection of laws which regulates the
private relations of civil society, determining their
respective rights and obligations with reference to
persons, things, and civil acts.
Sources of the Civil Code of the Philippines
(REPUBLIC ACT NO. 386)
1. Civil Code of Spain of 1889
2. Codes and laws of other countries
3. Judicial decisions of the Supreme Court of the
Philippines and of various states
4. Philippine laws and statutes
5. Works of jurists and commentators of various
nations
6. Filipino customs and traditions
7. Code Commission itself
Effectivity of the Civil Code of the Philippines
The Civil Code of the Philippines took effect on
August 30, 1950. This date is exactly one year after
the Official Gazette publishing the Code was
released for circulation, the said release having been
made on August 30, 1949. (Lara v. Del Rosario, 94
Phil 778)

Essential Elements of Human Positive Law

a.) reasonable rule of action
b.) due promulgation
c.) promulgation by competent authority
d.) a sanction imposed for disobedience.

Classification of Human Positive Law

A. According to whether a right is given or

merely the procedure for enforcement is laid
down:
1. Substantive Law – that which establishes
rights and duties.
2. Remedial or Procedural Law – that which
prescribes the manner of enforcing legal
rights and claims.

B. According to the scope or content of the law:

1. Private Law – that which regulates the
relations of the members of a community
with one another. (Civil and Commercial
Laws )
2. Public Law – that which governs the
relations of the individual with the State or
ruler or community as a whole. (Political,
Criminal and Remedial Laws )

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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
II. EFFECT AND APPLICATION OF LAWS
EFFECTIVITY OF LAWS
Laws shall take effect after 15 days following the
completion of their publication in the Official Gazette,
or in a newspaper of general circulation, unless
otherwise provided. (Article 2, NCC as amended by
E.O. 200, 18 June 1987).
General Rule: Laws shall take effect after 15 days
following the completion of their publication in the
Official Gazette, or in a newspaper of general
circulation.
Exception: When the law provides for its own
affectivity, less than or greater than 15 days after
publication.
Publication Is Mandatory
The phrase “UNLESS OTHERWISE PROVIDED”
refers to the date of effectivity and not to the
requirement of publication, which cannot in any
event be omitted. It does not dispense the
requirement of publication. PUBLICATION is
INDISPENSABLE. (Tanada v. Tuvera, 146 SCRA
446) It is the prerogative of Congress to shorten or
lengthen the period of publication. HOWEVER, when
the law is penal in character, the 15-day period shall
not be shortened.
Omission would offend DUE PROCESS insofar as it
would deny the public the knowledge of the laws that
are supposed to govern them. Section 6 of the Bill of
Rights recognizes "the right of the people to
information on matters of public concern."
How Publication be Made
PUBLICATION MUST BE IN FULL or it is no
publication at all since its purpose is to inform
the public of the contents of the laws.
Where Publication be Made
In the Official Gazette or in a newspaper of general
circulation, it is NOT required that laws be published
in both.
What Must be Published
Laws of general application especially those penal or
punitive in character whether in the form of statutes,
Presidential Decrees, Executive Orders,
Administrative Rules and Regulations.
Rules and regulations must also be published if their
purpose is to ENFORCE or IMPLEMENT EXISTING
LAW.
The circulars issued by the MONETARY BOARD
must be published if they are meant not merely to
interpret but to "FILL IN THE DETAILS" of the
Central Bank Act.
The charter of a city must be published
notwithstanding that it applies to only a portion of the
national territory and directly affects only the
inhabitants of that place. Local Ordinances passed
by local legislative bodies must also be published.
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Not Covered By Publication Requirement
INTERPRETATIVE REGULATIONS AND THOSE
LAWS OR RULES WHICH ARE MERELY
INTERNAL IN NATURE, that is, regulating only the
personnel of the administrative agency and not the
public, need not be published.
Neither is publication required of the so-called LOI
issued by administrative superiors concerning the
rules or guidelines to be followed by their
subordinates in the performance of their duties.
IGNORANTIA LEGIS NON EXCUSAT
Ignorance of the law excuses no one from
compliance therewith. (Art. 3, NCC)
Concept
This rule is a conclusive presumption of law. It is
based on expediency as well as public policy and
necessity. So that ignorance of the law cannot be
used as a valid defense in favor of one who violated
a law. The rule refers only to mistakes of the
existence of a law rather than to mistakes with
regard to the application and interpretation of law.
The latter is called mistake of law which may be a
valid defense like mistake of fact.
Application: All domestic laws, mandatory or
prohibitive, and whether substantive or remedial on
grounds of expediency, policy, and necessity, to
prevent evasion of the law.
Exceptions:
1. Permissive or suppletory laws.
2. Foreign Laws
Ignorance of foreign law is not ignorance of the
law but ignorance of fact because foreign laws
must be alleged and proved as matters of fact,
there being, as a rule, no judicial notice of said
foreign laws.
Processual Presumption - if the foreign law is not
properly alleged and proved, the presumption is that
it is the same as our law.
LEX PROSPICIT, NON RESPICIT
Laws shall have no retroactive effect, unless the
contrary is provided. (Art. 4, NCC)
GENERAL RULE: Laws are prospective, not
retroactive.
REASON: If the rule was that laws were retroactive,
grave injustice would occur as they would punish
individuals for violations of laws not yet enacted.
While ignorance of the law does not serve as an
excuse, such ignorance refers only to laws that have
already been enacted.
EXCEPTIONS: PIERCER
 PENAL statutes favorable to the accused and
that the accused is not a habitual delinquent and
that the law does not provide for its non-
retroactive application.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
 INTERPRETATIVE statutes
 statute EXPRESSLY provides for retroactivity
(e.g. Art 256 of the Family Code)
Limitations:
 Ex post facto law
 Impairment of obligation and contracts
Illustration:
FACTS: Illegitimate children, born before the
effectivity of the FC were claiming illegitimate
filiation with the putative deceased father under
the old civil law stating that the right to be
recognized vests from the moment of birth and
succession vests from the moment of death of
the owner of property. The legal heirs of the
dececeased countered that their action is
already barred by the FC because the action for
illegitimate filiation based on open and
continuous possession of the status of
illegitimate children shall be filed during the
lifetime of the putative father. HELD: The action
is not barred because the rights of the
illegitimate children were already vested under
the old Civil Code. Rights of the illegitimate
children already vested under the old civil code
shall not be impaired. (Aruego, Jr. v. CA, 254 S
711; Bernabe v. Alejo, 21 January 2002)
 REMEDIAL statutes, as there is no vested right in
procedural laws.
NO retroactive effect, however, if it disturbs final
judgments or if it is more onerous to party
litigants.
 CURATIVE statutes, that is to cure defects or
imperfections in judicial or administrative
proceedings.
 EMERGENCY laws as they are authorized by the
police power of the state.
 If a substantive RIGHT be declared for the first
time, unless vested rights are impaired. (e.g.
Law that allows the illegitimates to use the
surname of the father)
MANDATORY / PROHIBITORY LAWS
Acts executed against the provisions of mandatory
or prohibitory laws shall be void, except when the
law itself authorizes their validity. (Art. 5, NCC)
Effect of Violation of Mandatory or Prohibitory
Laws:
GENERAL RULE: Acts executed against the
provisions of mandatory or prohibitory laws shall be
VOID.
EXCEPTIONS:
a.) When the law itself authorizes their validity. (e.g.
lotto, sweepstakes)
b.) When the law makes the act merely voidable.
Thus, subject to ratification.
c.) When the law makes the act valid but subjects
the wrongdoer to liability. (e.g. marriage
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solemnized by a person without legal authority;
W who got married within 300 days after death
of H)
d.) When the law makes the act itself void but
recognizes legal effects flowing therefrom. (e.g.
children of void marriage are illegitimates but
they have rights recognized under the law)
WAIVER OF RIGHTS
Rights may be waived, unless the waiver is contrary
to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right
recognized by law. (Art. 6, NCC)
Rules for the Waiver of Rights
General rule: Rights can be waived.
Exception: CPAN
1. When the waiver is Contrary to law, public order,
public policy, morals, or good customs.
2. If the waiver is Prejudicial to a 3rd person with a
right recognized by law.
3. Alleged rights which do not yet exist.
4. If the right is a Natural right such as right to be
supported, political rights, future inheritance
when intended to prejudice creditors.
RIGHTS – the power or privilege given to one
person and as a rule demandable of another. It may
be:
a. Real Rights (jus in rem) – enforceable against
the whole world. (Absolute rights)
b. Personal Rights (jus in personam) – enforceable
against a particular individual. (Relative Rights)
Note: Inherent, constitutional or fundamental rights
are, as a rule, not subject to contractual waivers.
Constitutional rights to be waived must comply with
the constitutional requirements. Statutory rights are
subject to waivers.
WAIVER – the intentional or voluntary
relinquishment of a known right, or such conduct as
warrants an inference of the relinquishment of such
right.
Requisites of Valid Waiver CCA-FORNO
1. The person waiving must be Capacitated to
make the waiver.
2. The waiver must be made Clearly, but not
necessarily express.
3. The person waiving must Actually have the right
which he is renouncing.
4. In certain instances, the waiver must comply
with certain FORmalities.
5. The waiver must NOt be contrary to law, public
order, public policy, morals or good customs, or
prejudicial to others with a right recognized by
law.
Illustration:
HELD: There was a void waiver in this case
because there was nothing to be waived. By the
time the right was waived, no definite
relationship between the children vis-à-vis
deceased. Assuming the waiver is valid, mother
has no authority to waive such rights of children
because she did not avail of judicial approval.
(Guy vs. CA, 502 SCRA 151)
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
JUDICIAL APPLICATION AND INTERPRETATION
OF LAWS
Judicial decisions applying or interpreting the laws or
the Constitution shall form a part of the legal system
of the Philippines. (Art. 8, NCC)
Are Judicial Decisions Laws?
Judicial decisions, though not laws, are evidence,
however, of what the laws mean and this is why they
are part of the legal system of the Philippines. The
interpretation placed upon the written law by
competent court has the force and effect of law.
RULES ON APPLICATION AND
INTERPRETATION OF LAWS
No judge or court shall decline to render judgment
by reason of the silence, obscurity or insufficiency of
the laws. (Art. 9, NCC)
Duty of the Court to Render Judgment
The court must give a decision, even if the law is
silent, obscure, or insufficient.
Stare Decisis Non Quieta Movere (adherence
to precedents) – once a case has been decided
one way, then another case, involving exactly
the same point at issue, should be decided in
the same manner. Judicial decisions interpreting
the law shall form part of the legal system of the
Philippines. Only SC can establish stare decisis
or legal doctrines. CA may in rare cases
establish stare decisis
Ratio Decidendi – final judgment which states
the reason for such judgment.
Obiter Dictum – opinions not necessarily to the
determination of a case. They are not binding
and cannot have the force of judicial precedents.
Effect of Silence, Obscurity or Insufficiency of
Laws
The court may apply any rule he desires as long as
the rule chosen is in harmony with general interest,
order, morals and public policy.
Judicial Aids
a. Customs which are not contrary to law, public
order, and public policy;
b. Equity and justice;
c. Decisions of foreign and local courts on similar
cases;
d. Opinions of highly qualified writers and
professors;
e. Rules of statutory construction;
f. Principles laid down in analogous instances.
Rules on Interpretation of Laws
1. If the Law is Clear – apply the law as it is. Dura
Lex Sed Lex - “The law may be hard, but it is
still the law.”
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The judge must impose death penalty though
contrary to his personal/religious belief. (Pp. v.
Veneracion, 249 S 251)
2. If the Law is not so Clear
In case of doubt in the interpretation or
application of laws, it is presumed that the
lawmaking body intended right and justice to
prevail. (Art. 10, NCC)
“Interpret not by the letter that kill but by the
spirit that gives life”
Cessante Ratione Cessat Ipsa Lex in
Criminal Law - When the reason for the law
ceases, the law automatically ceases to be one.
Computation of Periods
1 day – 24 hours; 1 month – actual number of days;
1 year – be computed based on 12 calendar
months. (Art. 13, NCC as Repealed by
Administrative Code; CIR v Primetown, Aug 28,
2007)
Calendar month: if months are designated by their
name, they shall be computed by the number of
days which they respectively have.
Computation of periods: the first day shall be
excluded, and last day included, unless the latter is a
Sunday or a legal holiday, in which event, the time
shall run until the end of the next day which is
neither a Sunday or a legal holiday.
NOTE: When the act and the period are
CONTRACTUAL, the act must be done on the last
day, even if the latter is a Sunday or a legal holiday.
APPLICABILITY OF CUSTOMS (Arts. 11 and 12,
NCC)
Custom - is a rule of human action/conduct
established by repeated acts and uniformly observed
or practiced as a rule of society, thru the implicit
approval of the lawmakers, and which is obligatory
and legally binding.
Requisites:
a. A custom must be proved as a fact, according to
the rules of evidence.
b. The custom must not be contrary to law, public
order or public policy.
c. There must be a number of repeated acts
(plurality of use).
d. The repeated acts must have been uniformly
performed.
e. There must be a juridical intention to make a
rule of social conduct.
f. There must be a sufficient lapse of time.
Custom Propter Legem v. Custom Contra Legem
Custom propter legem – not contrary to law.
Custom contra legem – contrary to law
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
HOW LAWS LOSE THEIR EFFECTIVITY (Art. 7,
NCC)
1. Lapse of a Law - laws which, without any
repeal, cease to have effect because they lapse
by their own terms. A law may expressly provide
that it shall be effective only for a fixed period.
2. Repeal - annulment of a law by a subsequent
one.
Express Repeal and Implied Repeal
Express Repeal – when the subsequent law
expressly provides that the prior law is repealed
(there is repealing clause).
Implied repeal – when there are inconsistencies
or irreconcilable differences between the prior
and the subsequent law.
Note: In both cases, the later enactment
prevails.
Effect of Repeal of Repealing Law on Law
First Repealed
1. When a law which expressly repeals a prior
law is itself repealed, the repeal of the
repealing law does not revive the first law
repealed, unless expressly so provided.
2. When a law which impliedly repeals a prior
law is itself repealed, the repeal of the
repealing law revives the prior law, unless
the language of the repealing law provides
otherwise.
3. Declaration of Unconstitutionality
Generally, an unconstitutional law confers no
right, creates no office, affords no protection and
justifies no acts performed under it, there are
instances when the operation and effects of the
declaration of its unconstitutionality may be
relaxed or qualified because the actual
existence of the law prior to such declaration is
an operative fact and may have consequences
which cannot justly be ignored.
Constitution – the fundamental law of the land
to which all other laws must conform.
Supremacy of the Constitution
When the courts declare a law to be inconsistent
with the Constitution, the former shall be void
and the latter shall govern. It is not supremacy
of the Supreme Court but supremacy of the
Constitution. This is pursuant to judicial power of
the court.
BINDING EFFECT OF LAWS (Art. 14, in relation to
Art. 2, Revised Penal Code)
Territoriality - Penal laws and those of public
security and safety shall be enforceable throughout
the territorial jurisdiction of the Philippines, subject to
the principles of public international law and to treaty
stipulation.
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General Rule: Laws are enforceable within the
territorial jurisdiction of the Philippines.
Exceptions:
1. Ex-territoriality - When the acts referred to
are executed before the diplomatic or
consular officials of the Republic of the
Philippines in a foreign country, the
solemnities established by Philippine laws
shall be observed in their execution.
2. Extra-territoriality – laws of the Philippines
is applicable outside its territory. (e.g. Art. 2,
RPC)
Generality - Penal laws and those of public security
and safety shall be obligatory upon all who live or
sojourn in Philippine territory, subject to the
principles of public international law and to treaty
stipulation.
General Rule: Laws are binding upon those
who live or sojourn in the Philippines.
Exceptions:
a. Principles of Public International Law.
b. Treaty stipulations (e.g. VFA)
c. Laws of preferential application (e.g. those
under RA 75)
THEORY OF STATUTES/CONFLICT OF LAW
RULES
Persons: NATIONALITY PRINCIPLE
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. (Art. 15,
NCC)
Nationality/Personal Theory - the status and
capacity of an individual are generally governed
by the law of his nationality.
Status - the sum total of a person’s rights,
duties, and capacities.
Characteristics of Status:
a. It is inalienable.
b. It is imprescriptible.
c. It cannot be the object of compromise.
d. The action to claim it cannot be renounced.
e. The rights arising from it cannot be
exercised by creditors.
Legal Capacity – power to do acts with legal
effects.
Protective Principle - 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.
(Art. 17, par. 3, NCC)
Domiciliary Theory - The basis for determining
personal law of an individual is his domicile.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Renvoi - It literally means a “referring back”. It

arises when one state follows the nationality
theory and the other the domiciliary theory, the
problem may be referred back to the law of the
first state. (See Discussion in Private
International Law)

Property: LEX REI SITAE (Mobilia Sequntur

Personam abandoned)

General Rule: Real property as well as personal

property is subject to the law of the country
where it is situated. (Art. 16 par 1, NCC)

Exception: Intestate and testamentary

SUCCESSION (capacity to succeed), order of
succession, amount of successional rights; and
intrinsic validity of testamentary provisions shall
be regulated by the NATIONAL LAW of the
person whose succession is under
consideration, whatever maybe the nature of the
property and regardless of the country wherein
said property may be found. (Art 16 Par 2, NCC)
Thus, the property of a deceased Filipino shall
be included in his estate.

Forms and Solemnities of Contracts and Wills:

LEX LOCI CELEBRATIONIS

It is a principle which applies the law of the place

where the contract was executed as far as the
formalities and solemnities (extrinsic validity) are
concerned.

General Rule: 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. (Art. 17, NCC)

Exceptions:
a. Lex loci voluntatis - The intrinsic validity of
contracts shall be governed by the law of the
place voluntarily selected. In case of
controversy, the court shall apply the court
of the forum.
b. Lex loci intentionis - The intrinsic validity of
contracts shall be governed by the law of the
place intended by the parties to the contract.

Lex Nationalis Lex rae sitae Lex loci

Art 15 Art 16 Celebrationis
Art. 17
Basis: Basis: Law of Basis: Law of
Nationality the place where the place where
the property is the contract
situated was executed
Covers: family Covers: Real Covers: forms
rights and and personal and solemnities
duties, status, properties (extrinsic
condition and validity)
legal capacity
Exception: Art Exceptions: Art Exception: Art
26 par 2, FC 16 par 2, NCC 26 par 1, FC

SUPPLETORY APPLICATION OF THE CIVIL

CODE OF THE PHILIPPINES

In matters which are governed by the Code of

Commerce and special laws, their deficiency shall
be supplied by the provisions of this Code. (Art. 18,
NCC)
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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
III. HUMAN RELATIONS
FUNDAMENTAL HUMAN RIGHTS
a. right to life
b. right to liberty
c. right to property
CHARACTERISTICS/ATTRIBUTES OF HUMAN
RIGHTS
a. inalienable – it cannot be passed by the State or
through certain contract.
b. Inherent – innate to human existence.
c. Indivisible
STANDARDS/NORMS OF HUMAN RIGHTS (Art
19, NCC)
Every person must, in the exercise of his rights and
in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good
faith. (Article 19, NCC)
NOTE: It is considered as cardinal law on human
conduct. It abolished the old rule which states that:
“He who uses a right injures no one.”
Principle of Abuse of Right
He who acts with abuse, his right ceases, and his
act becomes illicit, giving rise to liability. The term
refers to acts which are not illegal but nevertheless
make the actor liable for damages.
Elements of Abuse of Right
1. there is a legal right or duty (what right has been
abused?);
2. the exercised of such right is in bad faith (Bad
faith does not only connote bad judgment or
negligence; it imparts a dishonest purpose and
conscious doing of wrong); and
3. there is an intent to prejudice or injure others
(what is the intention?).
Standards to be Observed to Avoid Abuse of
Rights:
1. to act with justice
2. to give everyone his due
3. to observe honesty and good faith
Justice – acts must be done in accordance with
law.
Honesty – careful regard for other’s rights and
property.
Good Faith – honest intention to avoid taking
undue advantage of another.
Some Rules Observe Under Article 19
1. Where a person exercises his rights or performs
his duties, observing the standards under Article
19, but still causes damage to another.
a. actor benefited – liable but not beyond such
benefit and damage by virtue of equity.
b. actor did not benefit – no liability is created
by virtue of damnum absque injuria (damage
but no legal injury).
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2. Where a person exercises his rights but does so
arbitrarily or performs his duties in a manner that
is not in keeping with honesty and good faith, he
opens himself to liability.
INJURY - It refers to the legal wrong to be
redressed.
DAMAGE - It refers to the amount of money
awarded by the court to compensate for the loss or
injury suffered.
Purpose: It is awarded to compensate the
plaintiff for the loss or damage that he suffered,
not to enrich him, or to impose a penalty on the
wrongdoer.
Kinds: (MANTLE)
a. moral damages
b. actual or compensatory damages
c. nominal damages
d. temperate damages
e. liquidated damages
f. exemplary damages
LIABILITY EX-MALEFICIO OR EX-DELICTO (Art.
20 in rel. to Art. 100 of the Revised Penal Code)
Every person who, contrary to law, willfully (dolo) or
negligently (culpa) causes damage to another, shall
indemnify the latter for the same. (Article 20, NCC)
Negligence – failure to observe for the protection of
the interest of another person that degree of care,
precaution and vigilance which the circumstances
greatly demand.
Willful Act – if it is done with knowledge of its
injurious effect. It is not required that the act be done
purposely to produce the injury. The act need not be
committed against the person injured.
Civil Liability for Delict
Every person criminally liable for a felony is also
civilly liable. (Art. 100, RPC)
Civil liability for Quasi-delict
Whoever by act or omission causes damage to
another, there being fault or negligence, but no pre-
existing contractual relation between the parties, is
obliged to pay for the damage done (Art. 2176,
NCC).
ACTS CONTRARY TO MORALS, GOOD
CUSTOMS OR PUBLIC POLICY
Any person who willfully causes loss or injury to
another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter
for the damage. (ARTICLE 21, NCC)
Note: This refers to acts “CONTRA BONUS
MORES.”
Coverage: Any act or omission not contrary to law
but contrary to morals, good customs and public
policy.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Elements of Contra Bonus Mores
1. there must be an act which is legal;
2. the act must be contrary to morals, good
customs, public order or public policy; and
3. the act is done willfully with intent to injure.
Kinds
1. Breach Of Promise To Marry
General rule: Not an actionable wrong.
Exceptions:
When there has been sexual intercourse
a. The aggrieved party becomes pregnant and
subsequently delivers, she may ask the
other to RECOGNIZE THE CHILD, should
there be one, and PROVIDE SUPPORT to
said child. She can also recover
compensatory damages and hospitalization
expenses as well as attorney’s fees.
b. Sue for MORAL DAMAGES if there be
criminal or moral seduction, but not if the
intercourse was due to mutual lust; if the
cause be the promise to marry, and the
effect be the carnal knowledge, there is
criminal or moral seduction.
c. Sue for MORAL DAMAGES if the act of the
defendant constitutes a tort under Art 21.
d. Sue for ACTUAL DAMAGES, should there
be any, such as advanced money or
property upon the faith of the promise to
marry or expenses for the wedding
preparations on the ground that no person
can enrich himself unjustly at the expense of
another.
When there was no sexual intercourse
a. Sue for MORAL DAMAGES in case there
has been a deliberate desire to inflict loss or
injury or there has been an evident abuse of
right.
b. Sue for MORAL DAMAGES if the act of the
defendant constitutes a tort under Art 21.
c. Sue for ACTUAL DAMAGES, should there
be any, such as advanced money or
property upon the faith of the promise to
marry or expenses for the wedding
preparations on the ground that no person
can enrich himself unjustly at the expense of
another
Notes:
Moral seduction, although not punishable,
connotes the idea of deceit, enticement, superior
power or abuse of confidence on the part of the
seducer to which the woman has yielded
(Gashem Shokat Baksh vs CA)
Sexual intercourse is not by itself a basis for
recovery; damages could only be awarded if the
sexual intercourse is not a product of
voluntariness or mutual desire.
Civil seduction is different from criminal
seduction. In civil seduction, age of the victim is
immaterial.
Moral fault is something that works inside of a
man. Thus, it is not an actionable wrong.
8|P a g e
Qualified Seduction vs Simple Seduction
a. In qualified seduction there is a moral
ascendancy, while in simple seduction there
is no moral ascendancy.
b. In the first the victim is virgin, while in the
second the victim is no longer virgin but has
a high reputation.
2. Malicious Prosecution
Malicious Prosecution is one that is instituted
just to vex and humiliate the defendant despite
the absence of a cause of action or probable
cause against him.
Malicious prosecution in criminal cases,
elements
c. the fact of the prosecution and the further
fact that the defendant was himself the
prosecutor, and that the action was finally
terminated with acquittal;
d. that in bringing the action, the prosecutor
acted without probable cause; and
e. the prosecutor was actuated or impelled by
legal malice.
Malicious prosecution in civil cases,
elements
a. the defendant previously filed a civil action
against the plaintiff;
b. the action was dismissed for being lack of
merit or for being baseless, unfounded and
malicious;
c. the defendant who filed the previous
complaint as plaintiff was motivated by ill-will
or sinister design;
d. the present plaintiff suffered injury or
damage by reason of the previous complaint
against him.
Misconduct - implies a wrongful intention and not
merely error in judgment.
Article 20 and Article 21, Distinguished
Article 20 Article 21
The act is contrary to The act is contrary to
law morals, good customs or
public policy
The act is done either The act is done willfully
willfully or negligently
UNJUST ENRICHMENT
Basis: Equity
Article 22. Every person who through an act or
performance by another, or any other means,
acquires or comes into possession of something at
the expense of the latter without just or legal ground,
shall return the same to him.
Stated in another way, “No person shall unjustly
enrich himself at the expense of another.” One has
the duty to return what was acquired unjustly or
illegally EXCEPT when there is a legal right or
entitlement thereto (final judgment) or when there is
no causal relation between the one’s enrichment and
the other’s impoverishment.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Unjust enrichment and quasi-contracts have a
merger. Under Art. 22, the enrichment of the
defendant must acquire or come into possession of
something at the expense of another. Unjust
enrichment not due to acquisition or delivery of
something may still be recovered under quasi-
contract.
Enrichment is every patrimonial physical or moral
advantage, so long as appreciable in money.
Requisites of accion in rem verso
1. One party must be enriched;
2. The other party suffered a loss;
3. There must be a causal relation between the
two;
4. The enrichment must not be justifiable;
otherwise, there can be no recovery;
5. There must be no other way to recover such as
those based on contract, quasi-contract or
quasi-delict; and
6. The indemnity cannot exceed the loss or
enrichment, whichever is less.
NOTES:
 The incapacity of the defendant to enter into
contracts does not bar the accion in rem verso,
so long as he has been unjustly enriched.
 The indemnity does not include unrealized
profits because defendant’s enrichment is the
limit of his liability.
 Just or legal cause is always presumed, the
plaintiff has the burden of proving its absence.
 If a plaintiff delayed his action under the
contract, quasi-contract, crime or quasi-delict
and prescription had barred the action, he could
no longer have recourse to accion in rem verso.
Classification of Unjust Enrichment
1. Enrichment through the act of the injured party
(e.g. payment of a debt which does not exist;
payment by virtue of a contract which is void)
2. Enrichment without the act of the injured party
(e.g. defendant stealing the plaintiff’s property)
Accion in Rem Verso and Solutio Indebiti,
Distinguished
In accion in rem verso there is NO mistake; while in
the quasi-contract of solution indebiti (undue
payment) it is essential that there is mistake. Under
Article 2154, “If something is received and there is
no right to demand it, and it was duly delivered
through mistake, the obligation to return it arises.” In
case of solution indebiti, the remedy is Restitution,
that is, to return the thing acquired by mistake or
without legal ground to possess.
ARTICLE 23. Even when an act or event causing
damage to another’s property was not due to the
fault or negligence of the defendant, the latter shall
be liable for indemnity if through the act or event, he
was benefited.
NOTE: This pertains to the duty of a person to
indemnify even without fault provided he benefited.
The basis of which is equity.
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Extent of Liability
Indemnify the damage caused to the extent of
enrichment. The indemnity does not include
unrealized profits because defendant’s enrichment
is the limit of his liability. Plaintiff has the burden of
proving the extent of the benefit or enrichment of the
defendant.
UNFAIR COMPETITION
ARTICLE 24. protection of the underdog: In all
contractual, property or other relations, when one of
the parties is at a disadvantage on account of his
moral dependence, ignorance, indigence, mental
weakness, tender age of other handicap, the courts
must be vigilant for his protection.
NOTE: Such protection is only applicable in case of
DOUBT as to the interpretation of law governing the
conflict between parties where one is at the
disadvantage.
Rationale of the Article
The law is intended to protect the weak and ignorant
in the face of rigid and classical principle of equality
before the law. The government acts as parent of the
people which is in consonance with the promotion of
social justice.
Doctrine Of Parens Patriae
Literally means father or parent of his country. It
refers to the inherent power of the state and
authority of the State to provide protection of the
person and property of a person non sui juris. It is
the sovereign power of the state in safeguarding the
rights of person under disability. It is the obligation to
minimize the risk to those who, because of their
disability, are as yet unable to take care of
themselves.
Vigilant for his Protection - means that in case of
doubt, the doubt must be resolved in favor of the
underdog.
ARTICLE 28. Prohibited competition: 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 high-handed method shall give rise to
a right of action by the person who thereby suffers
damages.
Rationale of the Article
To promote free enterprise and to avoid monopoly in
business through unjust means.
Characteristics
1. it must involve an injury to a competitor or trade
rival; and
2. it must involve acts which are characterized as
“contrary to good conscience” or unlawful.
Test of Unfair Competition
Whether certain goods have been intentionally
clothed with an appearance which is likely to deceive
the ordinary purchaser exercising ordinary care.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Principle of Cutthroat Competition, Not Allowed
It exists when a person starts an opposing place of
business, not for the sake of profit to himself, but
regardless of loss, and for the sole purpose of
driving his competitor out of business so that later
on, he can take advantage of the effects of his
malevolent purpose.
THOUGHTLESS EXTRAVAGANCE
ARTICLE 25. Thoughtless extravagance in
expenses for pleasure or display during a period of
acute public want or emergency may be stopped by
order of the courts at the instance of any
government or private charitable institution.
Rationale of the Article
Thoughtless extravagance during emergencies may
incite the passions of those who cannot afford to
spend.
Remedy: Injunction
Filed by: Charitable Institution (either government or
private)
RESPECT FOR PERSONALITY AND DIGNITY OF
OTHERS
ARTICLE 26. Rights protected: Every person shall
respect the personal dignity, personality, privacy,
peace of mind, personal security, family relations,
and social intercourse.
Remedies In Case Of Violation: damages;
prevention; other relief. The action may be
dependent upon a criminal action like in defamation.
It may be independent action as it is covered by
quasi-delict.
Prohibited Acts: PMI-VO
1. Prying into the privacy of another’s residence.
Includes respect for one’s name, picture or
personality EXCEPT insofar as is needed for
publication of information and pictures of
legitimate news value.
PRIVACY - is the right of an individual to be
alone or to be free from unwarranted publicity, or
to live without unwarranted interference by the
public in matters which the public is not
necessarily concerned.
Limitations on Privacy
a. The right to privacy is limited whenever the
circumstances show a reasonable interest
on the part of the public in the conduct or
affairs of persons who have become public
characters.
b. Also, the right to privacy is limited by the
privilege similar to that of “fair comment” in
the law of defamation.
Torts Invading the Right to Privacy
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a. Appropriation for the defendant’s benefit, of
the plaintiff’s name or likeness;
b. Intrusion upon the plaintiff’s solitude as by
invading his home;
c. Public disclosure of private facts, consisting
of a cause of action in publicity, of a highly
objectionable kind, given to private
information about the plaintiff, even though it
is true and no action would lie to defamation;
d. Publicity which places the plaintiff in a false
light in the public eye.
Spheres of Privacy:
a. person
b. home/dwelling/residence
c. papers and effects
d. correspondence
e. bank deposits
2. Meddling with or disturbing the private life or
family relations of another.
A stranger would be liable irrespective of his
good motives, if he interferes with family
relations, whereas a parent or close relative
would not be liable unless there is malice proven
by the plaintiff. A distant relative could escape
liability if he proves good faith and honest
motives.
It includes alienation of the affections of the
husband or the wife.
Alienation of Affection, When Actionable
When the following elements concur:
a. Wrongful conduct of the defendant. The
defendant should have done acts calculated
to alienate affections of the husband or wife.
In a sense, the defendant must be a
pursuer, not merely the pursued.
b. Loss of affection or consortium.
c. Causal connection between such conduct
and loss.
3. Intriguing to cause another to be alienated from
his friends.
4. Vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of
birth, physical defect, or other personal
condition.
5. Other similar acts.
Some Acts Against Personal Security
1. Assault - an intentional, unlawful offer of physical
injury to another by force unlawfully directed
toward the person of another, under such
circumstances as will create a well-founded fear
of imminent peril, coupled with the apparent
present ability to effectuate the attempt if not
prevented.
2. Battery - actual infliction of any unlawful or
unauthorized violence on the person of another,
irrespective of its degree.
NEGLECT OR REFUSAL OF PUBLIC SERVANT
ARTICLE 27. Non-feasance: Any person suffering
material or moral loss because a public servant or
employee refuse or neglects, without just cause, to
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

perform his official duty may file an action for to answer for damages in case the complaint
damages and other relief against the latter, without should be found to be malicious.
prejudice to any disciplinary administrative action
that may be taken. Duty Of The Court: If in a criminal case, the
judgment of acquittal is based upon reasonable
Reason for the Article doubt, the court shall so declare. In the absence
of any declaration to that effect, it may be
To promote public office as a public trust. inferred from the text of the decision whether or
not the acquittal is due to that ground.
Requisites for Action
1. The defendant is a public official charged with Kinds of Acquittal
the performance of official duties. a. Acquittal based on reasonable doubt – when
2. The public servant or employee refuses or the guilt of the accused has not been proven
neglects to perform his official duty; beyond reasonable doubt.
3. There is no valid reason for the refusal or b. Acquittal based on innocence – when the
neglect to perform official duty. accused is not the author of the crime;
4. There is injury suffered by the plaintiff. c. Acquittal when the crime complained of did
not exist.
Non-feasance, Misfeasance, Malfeasance,
Distinguished Effects of Acquittal

Non-feasance – is the omission of some act which a. Acquittal which Bars Civil Action
ought to be performed; total neglect of duty. 1. whenever the accused has been found
to be not the author of the act;
Misfeasance – is the improper performance of some 2. that the supposed act attributed to the
act which might lawfully be done. accused did not exist;
3. if there is a finding that in the final
Malfeasance – is the performance of some act which judgment in the criminal action that the
ought not to be done. act or omission from which the civil
liability may arise did not exist. (Note:
Excuses for non-performance Republic v. Patanao: Tax liability is not
1. impossibility of performance; a mere civil liability arising from a crime
2. contributory negligence of the plaintiff; that could be wiped out by the judicial
3. ministerial officer acting in obedience to orders declaration of non-existence of the
of superiors; criminal acts charged).
4. officer with discretionary function, UNLESS, he 4. If due to justifying circumstances, civil
acted in arbitrary manner or with gross neglect. liability is extinguished. Except:
Avoidance of greater evil, in which case,
NOTE: Good faith or absence of malice is not a civil liability remains. (State of
defense for non-performance. It is only a mitigating Necessity)
factor.
Note: Acquittal in a criminal case bars
prosecution for the same offense, thus
DEPENDENT CIVIL ACTIONS / ACTIONS FOR appeal assailing the verdict of acquittal is
DAMAGES BASED ON CRIME/DELICT not warranted because of double jeopardy.
However, the civil aspect of the crime may
1. ARTICLE 29. Civil action not barred by be appealed or even the subject of a
acquittal: When the accused in a criminal separate civil action provided the acquittal is
prosecution is acquitted on the ground that his based on reasonable doubt.
guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same b. Acquittal which Does not Bar Civil Action
act or omission may be instituted. 1. the acquittal is based on reasonable
doubt, if the civil case has been
Reason: Difference in the proceedings. reserved; if there is reservation, the
judgment shall make a finding on the
Basis Criminal action Civil action civil liability of the accused;
Parties State v. Offended 2. if the decision contains a declaration
involved defendant party v. that the liability of the accused is not
defendant criminal but only civil in nature;
Rules Criminal Civil 3. the civil liability is not derived from or
involved procedure/penal procedure/ci based on the criminal act of which the
code vil code accused is acquitted.
Quantum of Proof beyond Prepondera 4. If due to exempting circumstances, civil
evidence reasonable nce of liability remains. Except: Paragraphs 4
doubt evidence (injury by mere accident) and 7 (lawful
Purpose For punishment For cause) of Article 12.
of the offender reparation of
damages 2. ARTICLE 20 (see discussion above)
3. ARTICLE 30 (civil action even if there is no
Filing Of Bond: Upon motion of the defendant, criminal action instituted)
the court may require the plaintiff to file a bond,
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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

When a separate civil action is brought to

demand civil liability arising from a criminal
offense, and no criminal proceedings are
instituted during the pendency of the civil case, a
preponderance of evidence shall likewise be
sufficient to prove the act complained of.
4. ARTICLE 35 (civil action even if there is no
independent civil action and criminal action
instituted)
INDEPENDENT CIVIL ACTIONS
Concept and Rationale
It is one that is brought distinctly and separately from
a criminal case allowed for considerations of public
policy regardless of the result of the criminal case.
It is for the purpose of allowing the citizen to
enforce his rights in a private action.

When a person, claiming to be injured by a Evidence Required: Preponderance of Evidence.

criminal offense, charges another with the same,
for which no independent civil action is granted Independent and dependent Civil Actions,
in this Code or any special law, but the court Distinguished
finds no reasonable grounds to believe that a
crime has been committed, or the prosecutor INDEPENDENT DEPENDENT
refuses or fails to institute criminal proceedings, Not based on delict. Based on delict.
the complainant may bring a civil action for No reservation is Reservation is upon the
damages against the alleged offender. required. discretion of the offended
party.
If during the pendency of the civil action, an Can proceed Can proceed
information should be presented by the simultaneously and simultaneously with the
prosecutor, the civil action shall be suspended separately from the criminal action ONLY
until the termination of the criminal proceedings. criminal action when no waiver,
regardless of the reservation, or prior filing
Upon motion of the defendant, the court may outcome of the latter. of the civil action is done.
require the plaintiff to file a bond, to answer for It may be filed before the It may be filed prior to
damages in case the complaint should be found institution of the criminal the institution of the
to be malicious. action and it cannot be criminal action but it will
suspended when the be suspended once the
Rule 111, Section 1, 2000 Rules of Criminal latter is instituted. criminal action is
Procedure: instituted until final
judgment in the criminal
When the criminal action is instituted, the civil action has been
action for the recovery of civil liability arising rendered.
from the offense charged shall be deemed
instituted UNLESS the offended party waives the 1. ARTICLE 31. When the civil action is based on
civil action, reserves the right to institute it an obligation not arising from the act or omission
separately or institutes the civil action prior to complained of as a felony, such civil action may
the criminal action. proceed independently of the criminal
proceedings and regardless of the result of the
Suspension of Separate Civil Action: Rule latter.
111, Section 2, 2000 Rules of Criminal
Procedure Civil Action Based on Other Sources of
Obligation Other than Delict – law, contract,
After the criminal action has been commenced, quasi-contract, quasi-delict
the separate civil action arising therefrom cannot
be instituted until final judgment has been 2. ARTICLE 32. Breach Of Constitutional Rights
entered in the criminal action. / Civil Liability for Violation of Constitutional
Rights
If the criminal action is filed after the said civil
action has already been instituted, the latter Persons Liable
shall be suspended in whatever state it may be 1. any public officer or employee
found before judgment on the merits. The 2. any private individual even if in good faith
suspension shall last until final judgment is
rendered in the criminal action… Limited liability / When Responsibility
Demandable from a Judge
During the pendency of the criminal action, the
running period of prescription of the civil action General Rule: The responsibility herein set forth
which cannot be instituted separately or whose is not demandable from a judge.
proceeding has been suspended shall be tolled.
Exception: Unless his act or omission
The extinction of the penal action does not carry constitutes a violation of the Penal Code or other
with it extinction of the civil action. However, the penal laws (see Art. 204 – 207 of the Revised
civil action based on delict shall be deemed Penal Code).
extinguished if there is a finding in a final
judgment in the criminal action that the act or NOTES:
omission from which the civil liability may arise  It is not necessary that the defendant should
did not exist. have acted with malice/bad faith to be liable.
Although the same normally involves
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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
intentional acts, it can be committed through
negligence.
 Public officer who is a defendant cannot
escape liability under the doctrine of state
immunity; the said doctrine applies only if
acts involved are done by officers in the
performance of their official duty within the
ambit of their powers.
 It only requires a preponderance of evidence
and the aggrieved party may ask for moral
and exemplary damages but in the latter
case, it depends upon the discretion of the
court.
3. Art. 33. Civil Liability for Defamation, Fraud,
Physical Injuries (In generic sense). In cases
of defamation, fraud, and physical injuries, a civil
action for damages, entirely separate and
distinct from the criminal action, may be brought
by the injured party.
Defamation – is an invasion of the interest in
reputation and good name, by communication to
others which tend to diminish the esteem in
which the plaintiff is held, or to excite adverse
feelings or opinion against him. It is any act,
writing or utterance which tend to prejudice or
humiliate another. It includes libel and slander.
Physical Injuries – covers all kinds of physical
injuries including attempted, frustrated or
consummated homicide. If resulted because of
negligence or imprudence, they are already
covered by Article 2176 of the Civil Code.
Fraud - intentional deception to induce another
to part with something of value or to surrender a
legal right, like, estafa or swindling.
4. Art. 34. Civil Liability of Member of Municipal
or City Police
Primary liability: When a member of a city or
municipal police force refuses or fails to render
aid or protection to any person in case of danger
to life or property, such police officer shall be
primarily liable for damages.
Requisites
1. there is danger to life or property of a
person;
2. a member of a city or municipal police force
who is present in the scene refused or failed
to render aid or protection to the person;
3. damages are caused to the person or
property.
Subsidiary liability: The city or municipal
government shall be subsidiarily responsible in
case of insolvency of said police officer.
Note: The defense of exercise of due diligence
in the selection and supervision of its
employees, as provided under Art. 2180, cannot
be used as this is available only to private
employers.
5. Art. 2176. QUASI-DELICT. “Whoever by act or
omission causes damage to another, there being
fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there
is no pre-existing contractual relation between
13 | P a g e
the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.”
Note: It is not limited to culpa-aquiliana cases
but covers also intentional acts.
Defenses that can be interposed in quasi-
delict:
a. Doctrine of Last Clear Chance - where
both parties are negligent but the negligent
of one succeeds that of the other by an
appreciable interval of time, the one who
has the last reasonable opportunity to avoid
the impending harm and fails to do so, is
chargeable with the consequences, without
reference to the prior negligence of the other
b. Contributory Negligence - the defendant
may claim that plaintiff’s own negligence
contributed to the injury. This defense will
merely mitigate the award of damages.
c. Proximate Cause of the Loss or Injury is
the Negligence of Plaintiff.
d. Defense of Due Diligence in the Selection
and Supervision of Employees: Only
applicable in culpa aquiliana.
e. Assumption of Risk: It will absolve the
defendant from liability.
Requisites:
a. there must be knowledge as to the
existence of the danger
b. there must be an understanding and
appreciation of the risk of such danger
by the plaintiff.
c. the plaintiff voluntarily expose
himself to such danger.
f. Prescription: If the action is filed beyond
four years from loss or injury.
Res Ipsa Loquitor - The thing speaks for itself.
A Rule of Evidence. The fact of the injury is
prima facie evidence of negligence. It can not be
used with contributory negligence.
Requisites:
a. the accident is one of a kind which
does not ordinarily occur unless someone is
negligent,
b. that the instrumentality or agency
which caused the injury was under the
exclusive control of the person charged with
negligence,
c. that the injury suffered must not
have been due to any voluntary action or
contribution on the part of the person
injured.
PREJUDICIAL QUESTIONS (Art 36, NCC)
Prejudicial question - one which must be decided
before any criminal prosecution may be instituted or
may proceed, because a decision therein is vital to
the judgment in the criminal case. It 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.
Petition for Suspension by reason of prejudicial
question, Where Filed
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

A petition for suspension of the criminal action

based upon the pendency of a prejudicial question in
a civil action may be filed in the office of the
prosecutor or the court conducting the
preliminary investigation. When the criminal action
has been filed in court for trial, the petition to
suspend shall be filed in the same criminal action at
any time before the prosecution rests. (Rule 111,
Sec. 6 of 2000 Rules of Criminal Procedure)

Elements:
1. The previously instituted civil action involves an
issue similar or intimately related to the issue
raised in the subsequent criminal action.
2. The resolution of such issue determines whether
or not the criminal action may proceed.
3. The jurisdiction to try said question must be
lodged in another tribunal. (See Rule 111, Sec. 7
of 2000 Rules of Criminal Procedure)

Effect: It will suspend the proceeding in the criminal

action.

NOTE: Prejudicial questions shall be governed by

the Rules of Court which the Supreme Court shall
promulgate and which shall not be in conflict with the
Civil Code.

Illustrations:
a. FACTS: H and W1 are separated in fact. H
contracted a subsequent marriage with W2. W1
filed a case for bigamy against H. H filed a civil
action for the declaration of nullity of the 2 nd
marriage on the ground of lack of license.
HELD: NO prejudicial question because the 2nd
marriage is ostensibly valid. Besides, the 1st
marriage still exists.
b. FACTS: Same with the first but this time, the civil
action filed by the husband is for the declaration
of nullity of the 1st marriage for lack of license.
HELD: NO prejudicial question because of
violation of Art 40 of FC.
c. FACTS: H and W are legally married. H has an
illegal affair with GF. W filed a criminal case for
concubinage. H filed a civil action for the
declaration of nullity of the marriage on the
ground of lack of license. HELD: NO prejudicial
question because the marriage is presumed to
be valid and existing.
d. FACTS: H and W are legally married. H
contracted a subsequent marriage with GF. W
filed a criminal case foe bigamy. H filed an action
for annulment of the 2nd marriage on the ground
that his consent was vitiated. HELD: There is
prejudicial question because the civil case is
determinative of whether the criminal action will
prosper.

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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

IV. PERSONS AND PERSONALITY

PERSON - Any being, natural or artificial, capable of
CIVIL PERSONALITY - the aptitude of being the possessing legal rights and obligations.
subject, active or passive, of rights and obligations.
Classes of Persons
Juridical Capacity and Capacity to Act (Art. 37,
NCC) 1. NATURAL PERSONS - human beings created
by God through the intervention of parents.
JURIDICAL CAPACITY - the fitness to be the
subject of legal relations; it is inherent in every Personality:
natural person and is lost only through death.
a. Presumptive Personality (Art. 40, NCC)
CAPACITY TO ACT - the power to do acts with legal
effect; it can be acquired and may be lost. Personality begins at conception; the
conceived child shall be considered born for
Juridical capacity Capacity to act all purposes that are favorable to it, provided
Passive Active it be born later with the conditions specified
Inherent Acquired (upon in Art. 41.
reaching the age of
majority)  The personality in this case is
Lost only through death Lost through death and essentially limited and it is provisional or
other means conditional.
Can exist even without Always exist with
capacity to act juridical capacity b. Actual personality - Personality begins at
Unlimited/cannot be Limited/can be birth.
restricted restricted by
circumstances Birth - the removal of the foetus from the
mother’s womb who must be alive at the
THEORIES OF CAPACITY TO ACT time of complete separation; before birth,
the foetus is not a person, but merely a part
Theory of General Theory of Special
of the internal organs of the mother.
Capacities Capacities
However, because of the expectancy that it
Applies to natural Applies to juridical
may be born, the law protects it and
persons persons
reserves its rights, making its legal
One has the ability to act Powers of juridical existence, if it should be born alive, retroact
with legal effects except persons limited to those to the moment of its conception.
when capacity to act is expressly conferred and
restrained those which can be Legal Conditions (Art 41, NCC):
implied therefrom or
incidental thereto. 1. Ordinary Birth - with an intra-uterine
life of at least seven months. For civil
Restrictions or Modifications on Capacity to Act purposes, the fetus is considered born if
(Arts. 38 – 39, NCC) MIS-PC-FAAIT it is alive at the time it is completely
a. Minority (below 18) delivered from the mother’s womb.
b. insanity or imbecility 2. Extra-ordinary Birth: with an intra-
uterine life of less than seven months.
Note: There is a need for judicial declaration of For civil purposes, it is not deemed born
insanity because sanity is presumed. If there is if it dies within 24 hours after its
declaration of insanity, the capacity to act is complete delivery from the maternal
possessed by the guardian. womb.
c. state of being deaf-mute Elements:
d. prodigality (state of squandering money or a. Child must be alive at the time of
property to the prejudice of another) complete separation; and
e. civil interdiction b. Must be alive within 24 hours
f. family relations thereafter.
g. alienage
h. absence Note: Only one with juridical personality can
i. insolvency die. Thus, the aborted child never died
because it never acquired a juridical
Note: There is also a need for judicial personality. Hence, the action for damages
declaration. under Art 2206 of NCC by the husband will
not prosper. At most, he can recover
When Insolvency Reckoned damages arising from frustration of parental
1. Involuntary Insolvency – from the time of expectation. (Geluz v. CA, 2 S 801)
adjudication and not from the time of filing
by the creditors. Extinguishment of Civil Personality
2. Voluntary Insolvency – at the time of filing by
the instant debtor. Death - refers to natural or physical death. It
extinguishes civil personality. (Art. 42, NCC)
j. trusteeship

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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
The effect of death upon civil personality is
determined by law, contract or will.
Note: The rule that death extinguishes civil
personality is not absolute. The estate of a
deceased is a person that may continue the
personality of the deceased for the purpose of
settling debts. Thus, the estate is an extension
of civil personality of a decedent which comes
into being at the moment of his death. There is
no need of judicial declaration to that effect.
Once the liabilities of the estate have been
settled and distribution of the residue to the heirs
has been effected, the estate ceases to exist
ipso facto.
Corpse is not a person because juridical
personality is extinguished by death.
Effects of Death On Rights
Upon the death of a person, the subject of legal
relations disappears. Some of his rights and
obligations are completely extinguished, while
others are transmitted to his successors.
Illustrations:
 FACTS: X, charged with the crime of Rape.
Pending trial, he died. HELD: His criminal
liability and his civil liability arising from
crime are extinguished. (Pp. v. Bayotas, 236
S 239)
 FACTS: In the same problem, supposed
there has been judgment convicting X of the
crime of rape. Pending appeal, he died.
HELD: His criminal liability and civil liability
arising from crime are extinguished.
 FACTS: In the same set of facts, supposed
the judgment of conviction becomes final
and executor for failure of X to appeal.
During service of sentence, X died. HELD:
The criminal liability is extinguished but the
civil liability is not extinguished, thus, may
be recovered against the estate of the
deceased on the basis of the final judgment.
Rule on Survivorship under Art. 43, NCC
Burden of proof: If there is a doubt, as
between 2 or more persons who are called
to succeed each other, as to which of them
died first, whoever alleges the death of one
prior to the other, shall prove the same.
Presumption: In the absence of proof, it is
presumed that they died at the same time.
Effect of presumption: There shall be no
transmission of rights from one to the other.
Elements of Art 43:
a. There is no proof which of 2 persons
died first; and
b. They are called to succeed each other.
Rule 131(jj)and (kk) of the Revised Rules of
Court on presumptions on survivorship.
(jj) When two persons perish in the same
calamity, such as wreck, battle, or
conflagration, and it is not shown who died
16 | P a g e
first, and there are no particular
circumstances from which it can be inferred,
the survivorship is presumed from the
probabilities resulting from the strength and
age of the sexes, according to the following
rules:
1. If both were under the age of fifteen
years, the older is presumed to have
survived;
2. If both were above the age of sixty, the
younger is presumed to have survived;
3. If one is under fifteen and the other
above sixty, the former is presumed to
have survived;
4. If both be over fifteen and under sixty,
and the sexes be different, the male is
presumed to have survived; if the sexes
be the same, then the older;
5. If one be under fifteen or over sixty, and
the other between those ages, the latter
is presumed to have survived.
(kk) If there is a doubt, as between two or more
persons who are called to succeed each
other, as to which of them died first, whoever
alleges the death of one prior to the other,
shall prove the same; in the absence of
proof, it is presumed that they died at the
same time.
Elements On Survivorship under the Rules of
Court
a. There is no proof which of 2 persons died
first;
b. They must have died during a calamity; and
c. They are not called to succeed each other.
2. JURIDICAL PERSONS: Theory of Special
Capacities
CORPORATION - It is an artificial being created
by operation of law, having the right of
succession and the powers, attributes, and
properties expressly authorized by law or
incident to its existence.
Classification (Art 44, NCC):
1. The State and its political subdivisions -
governed by the laws creating or
recognizing them. (Art. 45, NCC)
2. Juridical persons for public interest or
purpose, created by law - their personality
begins as soon as they have been
constituted according to law; governed by
the laws creating or recognizing them. (Art.
45, NCC)
In case of dissolution, their property and
other assets shall be disposed of in
pursuance of law or the charter creating
them. If nothing has been specified on this
point, the property and other assets shall be
applied to similar purposes for the benefit of
the LGUs which during the existence of the
institution derived the principal benefits from
the same. (Art. 47, NCC)
3. Juridical persons for private interest or
purpose - their personality begins from the
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

moment a certificate of incorporation is

granted and issued by the SEC; Regulated
by laws of general application on the
subject. (Art. 45, NCC)

Partnerships and associations for private

interest or purpose are governed by the
provisions of this Code concerning
partnerships. (Art. 45, NCC)

In case of dissolution, see the Corporation

Code.

4. The Roman Catholic Church.

5. The estate of a deceased person.

Governing Law (Art. 45, NCC)

Nationality test - The nationality of a

corporation is generally determined by the place
of its incorporation.

Control test - The nationality of a corporation is

determined by the nationality of the controlling
stockholders.

For the grant of the rights in the Constitution to

the operation of public utilities, and for the
acquisition of land and other natural resources,
a corporation, even if incorporated in the
Philippines, cannot acquire said rights unless
60% of its capital be Philippine-owned.

During war, for the purpose of determining an

enemy corporation, by piercing the veil of
corporate entity, and going to the very nationality
of the controlling stockholders, regardless of
where the incorporation had been made.

Rights and obligation of a juridical person

(Art. 46, NCC):

Juridical persons may:

a. acquire and possess property of all
kinds, (subject to limitations under Art. 12,
Sections 2-3 of the 1987 Constitution)
b. incur obligations
c. bring civil or criminal actions.

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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

V. DOMICILE Illustration:
FACTS: X, a former Filipino, went to US and became
DOMICILE - place of a person’s habitual residence. a naturalized US citizen. Because he violated a law
in US, X was denaturalized. He came back to the
Domicile Residence Phils and started to establish his residence here. He
more or less permanent more or less temporary ran for mayor and won. His wife filed a civil case
a person can have a person can have involving personal rights and obligations. X
generally only one several places of contended that national shall not be applied because
domicile residence he is a stateless person. HELD: Domiciliary theory is
denotes a fixed denotes a place of abode called upon to operate because X is a stateless
permanent residence to (physical relation to a person. Nationality principle cannot be applied.
which when absent, one place) Thus, X is still liable under Philippine Law.
has the intention of
returning (legal relation Domicile of natural persons
to a place)
domicile is residence residence is not domicile For the exercise of civil rights and the fulfillment of
coupled with the civil obligations, the domicile of natural persons is
intention to remain for an the place of their habitual residence. (Art. 50, NCC)
unlimited time
Domicile of juridical persons
Note: Residence as used in the Constitution must be
understood to mean domicile. The domicile of juridical persons is
i. the place provided for in the law creating or
Kinds of Domicile recognizing them or in their articles of
agreement;
 Domicile Of Origin - it is assigned to him by the ii. when the law creating or recognizing them, or
law at the moment of birth. any other provision does not fix the domicile of
juridical persons, the same shall be understood
In case of a foundling, his domicile is the country to be the place where their legal representation
where he was found. is established or where they exercise their
principal functions. (Art. 51, NCC)
Can a person be devoid of domicile? NO,
because a person always have domicile of origin Domicile vs Citizenship/Nationality
which is granted at the moment of birth. No
natural person must ever be without a domicile. Domicile is a place of abode. While
citizenship/nationality indicates ties, allegiance and
 Constructive Domicile/Domicile By Operation loyalty to the government.
Of Law - it is assigned to him by the law after
birth on account of a legal disability caused for Q: Can a Person be Devoid of Nationality or
instance by minority, insanity or marriage in case citizenship?
of a woman.
A: Yes, because citizenship is merely a privilege
 Domicile Of Choice - the place freely chosen by which can be taken anytime on valid grounds.
a person so that whenever he is absent, he Besides, there are those stateless persons whose
intends to return. nationality or citizenship was taken from them.

Elements:
1. Physical presence in a fixed place.
2. Intention to remain permanently (animus
manendi).
3. Intention to abandon the old domicile
(animus non revertendi).

Intention without physical presence or physical

presence without intention will not suffice for the
acquisition of domicile, but will be sufficient for
the retention of an existing domicile.

Who Can Establish a Domicile

One who has the legal capacity. Thus, a person

with civil interdiction or suffering from penalty of
law cannot establish domicile because his act is
limited.

Domiciliary Theory – the status, condition, rights,

obligations and capacity of a person should be
governed by the law of his domicile.

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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
VI. MARRIAGE
REQUISITES OF A VALID MARRIAGE
The Family Code of the Philippines
Essential Requisites (Art 2, FC):
Effectivity Date: 3 August 1988
1. Legal Capacity of the contracting parties
Retroactive Application
The code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other
laws. (Article 256)
MARRIAGE - is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of
conjugal and family life. It is the foundation of the
family and an inviolable social institution whose
nature, consequences, and incidents are governed
by law and not subject to stipulation, except that
marriage settlements may fix the property relations
during the marriage within the limits provided by this
Code. (Art 1, FC)
Marriage vs. Ordinary Contract
1. Marriage is a special contract; and ordinary
contract is just a mere contract.
2. Marriage is governed by law on marriage; an
ordinary contract is governed by law on
contacts.
3. Marriage is an inviolable institution; an ordinary
contract is not.
4. Marriage is not subject to stipulation except only
with regard to marriage settlement which the
parties may agree upon before the marriage; an
ordinary contract is subject to stipulation.
5. In marriage, the contracting parties must only be
2, one is a male and the other is a female; in
ordinary contract, there can be 2 or more parties
and the difference of gender is not material.
6. Marriage is terminated by death or annulment
due to legal cause, i.e., it cannot be terminated
without the consent of the state; an ordinary
contract is terminated upon expiration of the
term of the contract, upon fulfillment of the
condition for which it was entered into,
rescission, mutual agreement of the parties or
through other causes.
Presumption in Favor of Existence and Validity
of Marriage
A man and a woman deporting themselves as
husband and wife have entered into a lawful contract
of marriage. This legal presumption may be rebutted
by evidence showing that marriage did not actually
take place.
Elements of Presumption of Marriage
1. Cohabitation of man and woman
2. Accompanied with intent to dispose marital
obligations
3. Public deportment or representation as husband
and wife.
Proof to Disprove the Presumption
The fact that there was no record of the marriage is
not sufficient to prove that there is no marriage. To
overcome the presumption, one or both are in fact
married to another.
19 | P a g e
who must be a male and a female.
Includes:
a. Age – at least 18 years of age at the time of
celebration of marriage. Be it remembered
that formerly, the marriageable age was 14
years for females and 16 years for males.
Note: With the SC’s decision in CIR vs
Primetown amending Art 13 of NCC, did you
really become 18 years old at your 18 th
birthday?
b. Sex – must be a male and a female.
Illustration:
FACTS: X, a Filipino male. In his certificate
of live birth, it was indicated that he is male.
Later, he publicly represented himself as a
woman. Eventually, he underwent sex
reassignment. He now anatomically
possessed of genetalia of a woman. He then
filed a petition for the correction of entry so
that male will be change to female so that he
could marry another male. Will the petition
for correction of entry be granted? HELD:
NO, because there is no mistake of entry to
speak of. The law does not recognize
correction of entries on the ground of sex
reassignment, otherwise, such may disturb
public interest and policy. Besides, there is
no law regulating sex reassignment.
(Silverio vs. Republic, October 22, 2007)
Note: Civil Registry – historical record of all
acts, events, judicial decrees that affects
rights, duties, status, condition, and legal
capacity of persons. Birth Certificate is a
historical record of facts at birth. What may
be changed are clerical or typographical
errors, ridiculous name, etc.
c. Absence of legal impediment
Examples of Legal Impediment
c.1. Prior subsisting marriage
c.2. Relationship - Incestuous marriages
(Art. 37) and Quasi-incestuous
marriages (Art. 38)
c.3. Public Policy (e.g. last par of Art 38)
Legal Capacity to Contract Marriage by
Foreigners, Stateless Persons, Refugees
When either or both of the contracting parties
are CITIZENS OF A FOREIGN COUNTRY, it
shall be necessary for them before a marriage
license can be obtained, to submit a
CERTIFICATE OF LEGAL CAPACITY TO
CONTRACT MARRIAGE, issued by their
respective diplomatic or consular officials. (A21,
FC)
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

STATELESS PERSONS OR REFUGEES FROM Requisites for authority of a priest to

OTHER COUNTRIES shall, in lieu of the solemnize marriage:
certificate of legal capacity herein required, a. He must have written authority to
submit an AFFIDAVIT SHOWING SUCH solemnize marriages given by his
CAPACITY TO CONTRACT MARRIAGE. (A21, church or religious sect.
FC) b. He must be registered in the office of the
Civil Registrar General (not the local
The legal capacity of a foreigner to marry, as civil registrar).
determined by the law of the country of which he c. He must act within the limits of such
is a citizen, is recognized by our laws. This is in authority.
accordance with the nationality theory under d. Both or one of the parties to the
Article 15 of the Civil Code. marriage must belong to his church or
sect.
Under Article 35(1): a marriage contracted by
any party below 18 years of age EVEN with the c. Any ship captain or airplane chief (only
consent of parents or guardians shall be void ab in cases mentioned in Art 31)
initio.
Requisites:
2. Consent freely given in the presence of the 1. the marriage must ne in articulo mortis
solemnizing officer. (at least 1 is at the point of death)
2. the marriage must be between
Freely given before a solemnizing officer and in passengers or crew members;
the presence of at least two witnesses of legal 3. generally, the ship must be at sea or the
age. The consent is real and not vitiated or plane must be in flight.
rendered defective by any of the vices of
consent. It must be free, voluntary, intelligent Notes: Assistant pilot has no authority.
and personally given.
Marriages may be solemnized during
Consent need not be expressed in any special stopovers at ports of call.
manner or particular form so long as there is a
manifestation that the contracting parties take d. Any military commander of a unit (only in
each other as husband and wife. cases mentioned in Art 32)

Total absence of consent makes the marriage Requisites:

void ab initio.
Hence, the marriage may be annulled if the
consent of either party was obtained by fraud,
(Art. 45, par. 3), or if the consent of either party
was obtained by force, intimidation or undue
influence (Art. 45, par. 4).
Formal Requisites (Art 3, FC):
1. Authority of the solemnizing officer.
It is not the absence or presence of the
solemnizing officer which constitute a formal
requirement but it is the absence or presence of
authority.
Marriage may be solemnized by (Art 7, FC):
a. Any incumbent member of the judiciary
within the court’s jurisdiction.
Conditions:
i. during incumbency
If on leave – still have the authority
On Sundays, Saturdays, holidays – still
have the authority.
ii. within territorial jurisdiction
b. Any priest, rabbi, imam or minister of any
church or religious sect
20 | P a g e
1. he/she must be a military commander of
a unit;
2. he/she must be a commissioned officer
(his/her rand should start from a second
lieutenant);
3. he/she must be assigned to such unit;
4. the said chaplain must be absent at the
time of marriage;
5. the marriage must be one in articulo
mortis;
6. the contracting parties, whether members
of the armed forces or civilians must be
within the zone of military operation.
Notes: The authority of the chaplain to
solemnize is based on Art 7.
Of course, other people like a judge or a
consul, can perform a marriage in articulo
mortis.
e. Any consul-general, consul, or vice-
consul.
Marriages between Filipino citizens abroad
may be solemnized by a consul-general,
consul or vice-consul of the Philippines.
(A10, FC)
The duties of the solemnizing officer with
regard to the celebration of marriage shall
be performed by the consular official. (A10,
FC)
Notes: Only if the contracting parties are
both Filipino citizens. If one is foreigner,
marriage is void.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
They don’t have authority to solemnize
marriage within the territory of the Phils.
f. Incumbent Mayor of a city/municipality
(See secs. 444 and 445 of the Local
Government Code).
Conditions:
i. During incumbency
ii. Within territorial jurisdiction
Note: It has been held that the Vice Mayor
has the authority to solemnize marriages
because if the vice mayor assumes the
powers and duties of the office of the mayor,
when proper, it is immaterial whether he is
the Acting Mayor or merely acting as mayor,
for in both cases, he discharges all the
duties and wields the powers appurtenant to
said office. (Pp. vs Bustamante, 105 P 64)
Effect if Solemnizing Officer NO Authority;
Exception (Effect of Good Faith)
The marriage shall be VOID if it shall be
solemnized by any person not legally authorized
to perform marriages, UNLESS such marriages
were contracted with either or both parties
believing in good faith that the solemnizing
officer had the legal authority to do so. (A35[2],
FC)
2. A valid marriage license EXCEPT in the
cases provided for in Articles 27, 28, 31 – 34.
Purpose of the Marriage License
It is the best proof of the presence of legal
capacity of the contracting parties.
Where to apply?
A marriage license shall be issued by the Local
Civil Registrar of the city or municipality where
either contracting party habitually resides except
in marriages where no license is required in
accordance with Chapter 2 of this Title. (A9, FC)
If a marriage between Filipino citizens will be
celebrated abroad to be solemnized by a consul-
general, consul or vice-consul of the Republic of
the Philippines, the issuance of the marriage
license shall be performed by said consular
official. (A10, FC)
Requirements for Application
1. Separate sworn application which shall
specify the ff.: (Art. 11, FC)
a. Full name of the contracting party;
b. Place of birth;
c. Age and date of birth;
d. Civil status;
e. If previously married, how, when
and where the previous marriage was
dissolved or annulled;
f. Present residence and citizenship;
21 | P a g e
g. Degree of relationship of the
contracting parties;
h. Full name, residence, and
citizenship of the father;
i. Full name, residence, and
citizenship of the mother; and
j. Full name, residence and citizenship
of the guardian or person having
charge, in case the contracting party
has neither father nor mother and is
under the age of twenty-one years.
NOTE: The applicants, their parents or
guardians shall not be required to exhibit
their residence certificates in any formality in
connection with the securing of the marriage
license.
2. Original birth certificates or, in default
thereof, the baptismal certificates of the
contracting parties or copies of such
documents duly attested by the persons
having custody of the originals. (A12 par 1,
FC)
These certificates or certified copies of the
documents by this Article need not be sworn
to and shall be exempt from the
documentary stamp tax. The signature and
official title of the person issuing the
certificate shall be sufficient proof of its
authenticity. (A12 par 1, FC)
When Original Birth Certificate or
Baptismal Certificate Need Not be
Presented
The presentation of birth or baptismal
certificate shall not be required if the parents
of the contracting parties appear personally
before the local civil registrar concerned and
swear to the correctness of the lawful age of
said parties, as stated in the application, or
when the local civil registrar shall, by merely
looking at the applicants upon their
personally appearing before him, be
convinced that either or both of them have
the required age. (A12 par 3, FC)
3. If either of the contracting parties is unable
to produce his birth or baptismal certificate
or a certified copy of either because of the
destruction or loss of the original or if it is
shown by an affidavit of such party or of any
other person that such birth or baptismal
certificate has not yet been received though
the same has been required of the person
having custody thereof at least fifteen days
prior to the date of the application, such
party may furnish in lieu thereof his
CURRENT RESIDENCE CERTIFICATE or
an instrument drawn up and sworn to before
the local civil registrar concerned or any
public official authorized to administer oaths.
Such instrument shall contain the sworn
declaration of two witnesses of lawful age,
setting forth the full name, residence and
citizenship of such contracting party and of
his or her parents, if known, and the place
and date of birth of such party. The nearest
of kin of the contracting parties shall be
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
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Dick Francisco Fernandez & Claryl-Anne D. Laminato
preferred as witnesses, or, in their default,
persons of good reputation in the province
or the locality. (A12 par 2, FC)
4. In case either of the contracting parties has
been previously married, the applicant shall
be required to furnish, instead of the birth or
baptismal certificate required in the last
preceding article, the DEATH CERTIFICATE
of the deceased spouse or the (authentic)
JUDICIAL DECREE OF THE ABSOLUTE
DIVORCE, or the (authentic) JUDICIAL
DECREE OF ANNULMENT or
DECLARATION OF NULLITY of his or her
previous marriage. (A13 par 1, FC)
In case the death certificate cannot be
secured, the party shall make an affidavit
setting forth this circumstance and his or her
actual civil status and the name and date of
death of the deceased spouse. (A13 par 2,
FC)
Note: In case there is a valid divorce decree,
there must first be a Petition For
Recognition Of Divorce Decree because
our courts do not take judicial notice of
foreign judgments for they must be alleged
and proved.
5. Parental Consent
When Necessary (A14, FC)
In case either or both of the contracting
parties, not having been emancipated by a
previous marriage, are between the ages of
18 and 21, shall exhibit to the local civil
registrar, the consent to their marriage of
their father, mother, surviving parent or
guardian, or persons having legal charge of
them, in the order mentioned.
Such consent shall be manifested in writing
by the interested party, who personally
appears before the proper local civil
registrar, or in the form of an affidavit made
in the presence of two witnesses and
attested before any official authorized by
law to administer oaths. The personal
manifestation (by parents) shall be recorded
in both applications for marriage license,
and the affidavit, if one is executed instead,
shall be attached to said applications.
Note: Absence of consent will render the
marriage voidable.
It is submitted that parental consent is
required if any or both parties are between
the ages of 18, 19, and 20.
6. Parental Advice
When Necessary (A15, FC)
Any contracting party between the age of 21
and 25 shall be obliged to ask their parents
or guardian for advice upon the intended
marriage. A sworn statement by the
contracting parties to the effect that such
22 | P a g e
advice has been sought, together with the
written advice given, if any, shall be attached
to the application for marriage license. (it
can be manifested in writing or actual
presence of the parents and such shall be
noted by the LCR)
Should the parents or guardian refuse to
give any advice, this fact shall be stated in
the sworn statement.
If they do not obtain such advice, or if it be
unfavorable, the marriage license shall not
be issued till after 3 months following the
completion of the publication of the
application therefor.
7. Marriage counseling (A16, FC)
In the cases where parental consent or
parental advice is needed, the party or
parties concerned shall, in addition to the
requirements of the preceding articles,
attach a certificate issued by a priest, imam
or minister authorized to solemnize
marriage under Article 7 of this Code or a
marriage counsellor duly accredited by the
proper government agency to the effect that
the contracting parties have undergone
MARRIAGE COUNSELLING.
Failure to attach said certificates of marriage
counselling shall suspend the issuance of
the marriage license for a period of 3
months from the completion of the
publication of the application.
Issuance of the marriage license within the
prohibited period shall subject the issuing
officer to administrative sanctions but shall
not affect the validity of the marriage.
Should only one of the contracting parties
need parental consent or parental advice,
the other party must be present at the
counselling referred to in the preceding
paragraph.
Publication/Posting Requirement (A17, FC)
The local civil registrar shall prepare a notice
which shall contain the full names and
residences of the applicants for a marriage
license and other data given in the applications.
The notice shall be POSTED for 10 consecutive
days on a bulletin board outside the office of the
local civil registrar located in a conspicous place
within the building and accessible to the general
public.
This notice shall request all persons having
knowledge of any impediment to the marriage
to advise the local civil registrar thereof.
The marriage license shall be issued after the
completion of the period of publication.
Duties of Local Civil Registrar
1. Receive the application for marriage
license.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
2. Require the presentation of original
birth/baptismal certificates except when
presentation of this certificates shall not be
required.
3. Require to furnish, instead of this certificate,
the death certificate of the deceased
spouse or the judicial decree of annulment
or declaration of nullity of his or her previous
marriage. In case of default, an affidavit for
such matter shall suffice.
4. In case of default to present such birth
certificates, such party may furnish in lieu
thereof his current residence certificate or
an affidavit for such matter. Such
instrument shall contain the sworn
declaration of 2 witnesses of lawful age.
5. The local civil registrar shall prepare a
notice and post the same for 10
consecutive days.
6. In case of any impediment known to the
local civil registrar or brought to his
attention, he shall note down the particulars
thereof and his findings thereon in the
application for a marriage license, but shall
nonetheless issue said license after the
completion of the period of publication,
UNLESS ordered otherwise by a competent
court at his own instance or that of any
interested party (the oppositor may file an
injunctive action because LCR has only
ministerial function). No filing fee shall be
charged for the petition nor a corresponding
bond required for the issuance of the order.
(A18, FC)
7. The local civil registrar shall require the
payment of the fees prescribed by law or
regulation before the issuance of the
marriage license. No other sum shall be
collected in the nature of a fee or tax of any
kind for the issuance of said license. It shall,
however, be issued free of charge to
indigent parties, that is, those who have no
visible means of income or whose income is
insufficient for their subsistence, a fact
established by their affidavit or by their oath
before the local civil registrar. (A19, FC)
8. Prepare the documents required and to
administer oaths to all interested parties
without any charge in both cases. The
documents and affidavits filed in connection
with the applications for marriage licenses
shall be exempt from documentary stamp
tax.
9. The local civil registrar concerned shall
enter all applications for marriage licenses
filed with him in a registry book strictly in the
order in which the same are received.
10. Issue the License after publication unless
ordered otherwise by a competent court.
11. Proper receipts shall be issued by the LCR
to the solemnizing officer transmitting copies
of the marriage certificate.
Note: If Marriages between Filipino citizens
abroad be solemnized by a consul-general,
consul or vice-consul of the Philippines, The
duties of the local civil registrar with regard to
the celebration of marriage shall be performed
by the consular official. (A10, FC)
23 | P a g e
Suspension of the Issuance of the Marriage
License
If parental advice is required and the parties do
not obtain such advice, or if it be unfavorable,
the marriage license shall not be issued till after
3 months following the completion of the
publication of the application therefor.
Failure to attach certificates of marriage
counseling, if required, shall suspend the
issuance of the marriage license for a period of
3 months from the completion of the publication
of the application.
Enforceability/Validity of the License (A20,
FC)
The license shall be valid in any part of the
Philippines for a period of 120 days from the
DATE OF ISSUE, and shall be deemed
automatically cancelled at the expiration of said
period if the contracting parties have not made
use of it.
The expiry date shall be stamped in bold
characters on the face of every license issued.
The date of issue is the date of signing of the
marriage license by the Local Civil Registrar
An expired license is a void license. A void
license cannot validate a marriage.
3. A marriage ceremony which takes place with
the appearance of the contracting parties before
the solemnizing officer and their personal
declaration that they take each other as
husband and wife in the presence of not less
than 2 witnesses of legal age. (A3, FC)
Form – No prescribed form or religious rite for
the solemnization of the marriage is required. It
shall be necessary, however, for the contracting
parties to appear personally before the
solemnizing officer and DECLARE in the
presence of not less than 2 witnesses of legal
age that they take each other as husband and
wife. This declaration shall be contained in the
marriage certificate which shall be signed by
the contracting parties and attested by the
solemnizing officer. (A6 par 1, FC)
In case of a marriage in articulo mortis, when the
party at the point of death is unable to sign the
marriage certificate, it shall be sufficient for one
of the witnesses to the marriage to write the
name of said party, which fact shall be attested
by the solemnizing officer. (A6 par 2, FC)
Authorized Venues for Marriages
GENERAL RULE: The marriage shall be
solemnized publicly, and not elsewhere:
1. In the chambers of the judge;
2. In open court;
3. In the church, chapel or temple;
4. In the office of the consul-general, consul or
vice consul, and not elsewhere.
EXCEPT:
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
1. In marriages contracted at the point of
death;
2. In remote places;
3. Marriage at a house or place designated by
the parties in a sworn statement upon their
written to the solemnizing officer.
4. All marriages solemnized OUTSIDE the
Philippines in accordance with the laws in
force in the country where they were
solemnized and valid there as such, shall
also be valid in this country, except those
void foreign marriages. (A8, FC)
Marriage by proxy:
a. If performed here in the Philippines, the
marriage is void because physical presence
of both parties is required.
b. If performed abroad, whether between
Filipinos or foreigners or mixed, and valid
there as such, the marriage should be
considered valid in the Philippines as
mentioned under Art. 26.
MARRIAGE CERTIFICATE – proof of marriage in
which the parties declare that they take each other
as husband and wife.
Contents of Marriage Certificate
The marriage certificate, in which the parties shall
declare that they take each other as husband and
wife, shall also state:
(1) The full name, sex and age of each contracting
party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of
the marriage;
(4) That the proper marriage license has been
issued according to law, except in marriage
provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties
have secured the parental consent in
appropriate cases;
(6) That either or both of the contracting parties
have complied with the legal requirement
regarding parental advice in appropriate cases;
and
(7) That the parties have entered into marriage
settlement, if any, attaching a copy thereof.
(A22, FC)
Purpose and Value of Marriage Certificate
The primary or best evidence of a marriage is the
marriage contract or marriage certificate.
Since marriage certificate is neither an essential nor
a formal requisite, an unsigned or unattested
marriage certificate does not invalidate the marriage.
Who Issues Marriage Certificate: Solemnizing
Officer
24 | P a g e
Duties Of The Solemnizing Officer:
1. To prepare marriage certificate: the original
for the contracting parties (either of them); 2
(duplicate and triplicate) for the LCR not later
than 15 days after the celebration of the
marriage; one (quadruplicate) shall be retained
by the solemnizing officer.
2. In the cases provided under Art. 27 (marriage in
articulo mortis) and 28 (marriage in remote
places), the solemnizing officer shall state in an
affidavit executed before the local civil registrar
or any other person legally authorized to
administer oaths that the marriage was
performed under such circumstances stated in
said articles, and that the officer took the
necessary steps to ascertain the ages and
relationship of the contracting parties and the
absence of a legal impediment to the marriage.
The affidavit of the solemnizing officer required
by this article takes the place of the marriage
license and constitutes an assurance that the
parties are of the proper ages and that there is
no impediment to their marriage.
3. The original of the affidavit required above,
together with a legible copy of the marriage
contract, shall be sent by the person
solemnizing the marriage to the LCR of the
place where it was performed within the period
of 30 days after the performance of the
marriage.
LCR has the duty to record the marriage
certificate. Failure to record will not invalidate
the marriage because it is merely an
administrative requirement.
4. For marriages involving ratification of marital
cohabitation, the solemnizing officer shall state
under oath that he ascertained the
qualifications of the contracting parties and
found no legal impediment to the marriage.
Distinguished From Marriage License
1. Marriage license is a formal requisite of
marriage, while marriage certificate is not.
2. Marriage license is issued before celebration of
marriage, while marriage certificate is issued
after the celebration of marriage.
3. Marriage license shows the authority to contract
marriage, while marriage certificate shows facts
of celebration.
4. Absence of marriage license renders the
marriage void, while absence of marriage
certificate will not invalidate marriage.
ABSENCE, DEFECT OR IRREGULARITY IN THE
REQUISITES
Effect of ABSENCE of Essential and Formal
Requisites
GENERAL RULE: The absence of any of the
essential or formal requisites shall render the
marriage void ab initio. (A4 par 1, FC)
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Absence is a mere ground for declaration of nullity of
marriage. Thus, if there is no judicial declaration of
nullity of marriage, the marriage is presumed valid
and existing.
Instances of Absence of Legal Capacity
a. Any or both contracting parties are below 18
at the time of celebration of marriage. (Art
35 par 1, FC)
This is true notwithstanding the fact that the
marriage was celebrated abroad and valid
there as such, shall not be valid in the
Philippines because it falls under the
exception of lex loci celeracionis. (Art 26,
par 1, FC)
b. Bigamous/Polygamous marriages (Art 35
par 4, FC) – see Discussion Below
c. Void marriage because of no compliance
with Art 53 (Art 35[6], FC) – see Discussion
Below
d. Incestuous Marriages (Art 37, FC)
e. Quasi-Incestuous Marriages/Void Marriages
by Reason of Public Policy (Art 38, FC)
Instances of Absence of Consent
a. If one or both are suffering from
psychological incapacity at the time of
marriage even if becomes manifest after the
celebration. (Art 36, FC; see discussion
below)
b. When there is mistake of identity (Art 35 [5],
FC)
c. Marriage by proxy (no consent/no
declaration) EXCEPT when celebrated
abroad and valid there as such.
No Authority of the Solemnizing Officer – the
marriage is void, provided both parties are in
bad faith, that is, they did not intend to be bound
by the marriage, thus marriage is a sham.
EXCEPT:
1. Either or both parties believing in good faith
that the solemnizing officer had the legal
authority to do so; (A35[2], FC)
2. Lex Loci Celebrationis
Lack of Marriage License - Marriage license is
a prerequisite to the celebration of marriage,
thus absence of which renders the marriage
void.
EXCEPT:
1. Lex Loci Celebrationis
Marriages solemnized outside the
Philippines where no marriage license is
required by the country where it is
solemnized and valid there as such, shall
also valid here.
2. Marriages Under Exceptional Circumstances
(A27-34, FC; See discussion below)
25 | P a g e
Lack of Marriage Ceremony
EXCEPT: Lex Loci Celebrationis
Illustration:
FACTS: H and W got married in the Philippines.
W went to Canada where she obtained a
divorce. H contracted subsequent marriage with
W2. H then filed a petition for declaration of
nullity of his 1st marriage on the ground of the
existence of divorce and that there was no
marriage ceremony. The fiscal charged him with
bigamy for which he was convicted. Pending
appeal of the judgment of conviction, the
marriage was declared void in the petition for
declaration of nullity on the ground that there
was no marriage ceremony took place. CA
affirmed the conviction. HELD: SC reversed the
judgment. H cannot be held liable for bigamy
because the 1st marriage is not ostensibly valid.
(Morigo vs Pp, 422 S 376)
Effect of Defect in Essential Requisites
A defect in any of the essential requisites shall
render the marriage voidable as provided in Art. 45.
(A4 par 2, FC)
Effect of Irregularity in Formal Requisites
An irregularity in the formal requisites shall not affect
the validity of the marriage but the party or parties
responsible for the irregularity shall be held civilly,
criminally or administratively liable. (A4 par 3, FC)
This is a three-fold liability.
Examples of Irregularity of in Formal Requisites:
1. Marriage solemnized outside territorial
jurisdiction of the judge – irregularity of the
formal requisite of authority of the solemnizing
officer.
2. Marriage solemnized in places other than those
authorize venues – irregularity in marriage
ceremony.
3. A marriage contracted by a party who is 21-25
years old without parental advice – irregularity in
securing a valid marriage license.
4. Failure to post the application for marriage
license – irregularity in securing a valid marriage
license.
5. Absence of 2 witnesses of legal age –
irregularity in marriage ceremony.
6. Absence of marriage certificate.
7. Unsworn application for marriage license.
MARRIAGES CELEBRATED OUTSIDE THE
PHILIPPINES
GENERAL RULE: All marriages solemnized outside
the Philippines, in accordance with the laws in force
in the country where they were solemnized, and
valid there as such, shall also be valid in this
country (LEX LOCI CELEBRATIONIS). (A26 par 1,
FC)
EXCEPTIONS:
a. Either or both parties did not have the legal
capacity to get married. (A35[1], FC)
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Art 15 of NCC provides that laws relating to legal
capacity of persons are binding upon citizens of
the Phils, even though living abroad. Art. 26 of
FC and Art 15 of NCC express the extra-
territorial effect of the exception. Moreover, Art
17 par 3 of NCC provides that 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.
b. The marriage is immoral being bigamous or
polygamous not falling under Art 41. (A35[4],
FC)
c. Consent of one party is lacking because of
mistake as to the identity of the other. (A35[5],
FC)
d. Subsequent marriages which are considered
void due to lack of recording under Art. 53.
(A35[6], FC)
e. One of the parties is psychologically
incapacitated at the time of the marriage. (A36,
FC)
f. Incestuous marriage. (A37, FC)
g. Void marriages by reason of public policy. (A38,
FC)
Note: Common-law marriages obtained abroad by
Filipinos are also not valid in the Philippines.
FOREIGN DIVORCES
Absolute Divorce by a Filipino Spouse
Divorce initiated by a Filipino is against public policy,
thus, cannot be recognized. Art 15 of NCC provides
that laws relating to family rights and duties or to
status, condition and legal capacity of persons are
binding upon citizens of the Phils, even though living
abroad. Moreover, Art 17 par 3 of NCC provides that
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. A Filipino is
governed by his national law wherever he goes.
HOWEVER, insofar as the foreigner is concerned,
the divorce obtained by the Filipino spouse will be
recognized because of the Philippine’s adherence to
the nationality rule. Thus, the foreigner spouse
cannot claim that he/she still has an interest in the
property acquired by the Filipino after the divorce. As
to the foreigner, he/she shall be considered
divorced. Foreigner cannot also file a criminal case
of adultery/concubinage against the Filipino spouse
because while the latter is considered married to
him/her, the foreign spouse is no longer married to
the Filipino. (Van Dorn vs Romillo, 139 S 139; Pilapil
Case)
Divorce by Foreigner Spouse
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
26 | P a g e
spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to
remarry under Philippine law. (A26 par 2, FC, as
amended by EO 227)
Note: This is a limited recognition of divorce.
REQUISITES:
1. Marriage between a Filipino citizen and a
foreigner is validly celebrated (textually
mixed marriage);
2. Alien spouse obtained a divorce against the
Filipino spouse;
3. Divorce is VALID under the national law of
the alien spouse;
4. The divorce dissolves the marital bonds;
5. The divorce capacitates the alien spouse to
remarry.
TRADITIONAL RULE: Art 26 par 2 applies when
parties at the time of celebration are a Filipino
and an alien.
BUT UNDER RECENT JURIPRUDENCE, a
divorce obtained by a former Filipino who had
been naturalized in another country after his
naturalization is NOW recognized.
The validity of divorce is determined by the
nationality of the party who obtained it. (San
Luis vs. San Luis, February 2007)
Mitigation of Consequences Principle
For as long as divorce is valid and even if the
Philippines does not recognized it, nevertheless,
it would mitigate the effects of divorce in favor of
the Filipino spouse.
The intent of said provision (Art 26, par 2, FC) is
to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse,
who after obtaining a divorce, is no longer
married to the Filipino spouse. Taking into
consideration the legislative intent, the provision
should be interpreted to include cases involving
parties who, at the time of celebration of the
marriage, were Filipino citizens, but later one of
them becomes naturalized as a foreign citizen
and obtains a divorce decree. The Filipino
spouse should likewise be allowed to remarry as
if the other party was a foreigner at the time of
the solemnization of the marriage. To rule
otherwise would be to sanction absurdity and
injustice. (Republic v Obrecido, Oct 5, 2005;
Republic v Iyoy, Sept 21, 2005) The other
reason for this is the application of nationality
theory for a former Filipino is no longer governed
by Philippine Law.
MARRIAGES UNDER EXCEPTIONAL
CIRCUMSTANCES
a. Marriage in Articulo Mortis
Art. 27: marriage in articulo mortis; remains valid
even if the ailing party subsequently survives.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Duty of the Solemnizing Officer
The solemnizing officer shall state in an
AFFIDAVIT executed before the LCR or any
other person legally authorized to administer
oaths that the marriage was performed in
articulo mortis. (A29, FC)
The original of the affidavit required together
with the legible copy of the marriage
contract, shall be sent by the person
solemnizing the marriage to the LCR of the
municipality where it was performed within
the period of 30 days after the performance
of the marriage. (A30, FC)
Art. 31: marriage in articulo mortis between
passengers or crew while the ship is at sea or
the plane is at flight, and during stopovers at
ports of call.
Art. 32: marriages in articulo mortis between
persons within the zone of military operation,
whether members of the armed forces or
civilians.
Who May Solemnize
All those authorized under Article 7 of the Family
Code and the Mayor. Compliance with other
requirements before they can solemnize is
necessary
b. Marriages in Remote Place
Art. 28: marriage in remote places (no means of
transportation to personally appear to the LCR).
Duty of the Solemnizing Officer
The solemnizing officer shall state in an
affidavit executed before the local civil
registrar or any other person legally
authorized to administer oaths that the
residence of either party, specifying the
barrio or barangay, is so located that there is
no means of transportation to enable such
party to appear personally before the LCR
and that the officer took the necessary steps
to ascertain the ages and relationship of the
contracting parties and the absence of legal
impediment to the marriage. (A29, FC)
The original of the affidavit required together
with the legible copy of the marriage
contract, shall be sent by the person
solemnizing the marriage to the LCR of the
municipality where it was performed within
the period of 30 days after the performance
of the marriage. (A30, FC)
c. Marriages among Muslims or among
Members of the ethnic cultural communities.
Art. 33: Marriages among Muslims or among
members of the ethnic cultural communities
provided that they are solemnized in accordance
with their customs, rites or practices.
27 | P a g e
d. Convalidation of Cohabitation/Ratification of
Marital Cohabitation
Art. 34: Marriage of a man and a woman who
have lived together as husband and wife for at
least five years and without any legal
impediment to marry each other.
Requisites of ratification of marital
cohabitation:
1. The contracting parties must have been
living together as husband and wife for at
least 5 years before the marriage.
2. The parties must have no legal impediment
to marry each other during the cohabitation.
3. The contracting parties shall state the
foregoing facts in an affidavit before any
person authorized by law to administer
oaths.
4. The solemnizing officer shall also state
under oath that he ascertained the
qualifications of the contracting parties are
found no legal impediment to the marriage.
Status of the Marriage
The marriage is valid even if celebrated without
marriage license.
Marriages solemnized without license are void from
the beginning, except those Marriages under
exceptional circumstances. (A35[3], FC)
Marriage license is a formal requisite of marriage
EXCEPT those marriages under exceptional
circumstances. (A3[2], FC)
VOID AB INITIO MARRIAGES
VOID MARRIAGES – marriage which is not valid
from its inception.
Declaration of Nullity Divorce
Cause of nullification Cause exists after the
exists from the beginning marriage.
of marriage.
One recognized in the Not recognized in the
Phils which allows the Phils EXCEPT when
parties to remarry. obtained by foreigners
and valid in their country.
Void Marriages Under the FC:
1. Between minors (below 18) even with consent
of parents or guardians. (A35[1], FC)
2. Solemnized by unauthorized officer, EXCEPT
good faith of one or both of the parties. (A35[2],
FC)
3. Solemnized without marriage license, except
under Art. 27, 28, 31–34(marriages exempt from
marriage license). (A35[3], FC)
4. Bigamous/polygamous
Requisites of Bigamy
a. There is a prior subsisting marriage;
b. Prior marriage not validly terminated;
c. Spouse contracted a 2nd or subsequent
marriage;
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

d. 2nd or subsequent marriage would have actual physical search of the places
been valid were it not for prior subsisting where the absent spouse is possibly be.
one.
c. Spouse present must institute a
GENERAL RULE: A marriage contracted by any summary proceeding (NOT a special
person during the subsistence of a previous proceeding) for the judicial declaration
marriage is VOID. of presumptive death (by way of
petition) of the absentee, without
EXCEPTIONS: prejudice to the effect of reappearance
a. Code of Muslim Personal Laws of the absent spouse.

Muslim men in the Philippines are allowed
maximum of 4 marriages even if the prior
marriage/s are still subsisting. Such privilege
is not granted among Muslim women.
b. Art. 41: a marriage contracted by any
person during the subsistence of a previous
marriage in cases where the prior spouse
had been absent; (A35[4], FC)
Valid Bigamous Marriage - before the
celebration of the subsequent marriage, the
prior spouse had been absent for 4
consecutive years and the spouse present
had a well-founded belief that the absent
spouse was already dead. In case of
disappearance where there is danger of
death under the circumstances set forth
under Art. 391 of the Civil Code, an absence
of only 2 years shall be sufficient.
For the purpose of contracting the
subsequent marriage, the spouse present
must institute a summary proceeding for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse: this
provision is intended to protect the present
spouse from a criminal prosecution for
bigamy because with the judicial declaration
that the missing spouse is presumptively
dead, the good faith of the present spouse
in contracting a second marriage is already
established.
Note: Courts usually refuses to make
judicial declaration of presumptive death
because it is not conclusive. Unlike in
Arts 390 and 391, NCC, it is only in Art
41 of FC that a judicial declaration of
presumptive death is mandatorily
required for the purpose of capacitating
the present spouse to remarry. It is also
required in cases of settlement of
estate.
RECENT JURISPRUDENCE ruled that
the judicial declaration of presumptive
death is immediately final and executory,
thus not subject to appeal.
The judicial declaration must be
registered with the LCR.
Effect of registration:
a. The effects of 1st marriage is merely
suspended.
b. 2nd marriage is conditional, that is,
dependent on the confirmation of
death and reappearance.
Effects of Subsequent Marriage
IF BOTH PARTIES IN GOOD FAITH –
marriage is valid. If the absent spouse
reappeared and he/she or any interested
person does not file an affidavit with the civil
registrar of the fact of reappearance, 2 valid
marriages exist (valid bigamous marriage).

Requisites (A41, FC): IF BOTH SPOUSES OF THE

a. Before the celebration of the SUBSEQUENT MARRIAGE ACTED IN BAD
subsequent marriage, the prior spouse FAITH – marriage shall be void ab initio (for
had been absent for FOUR consecutive being bigamous) and all donations by
years (In case of disappearance where reason of marriage and testamentary
there is danger of death under the dispositions made by one in favor of the
circumstances set forth in the provisions other are revoked by operation of law. (A44,
of Article 391 of the Civil Code, an FC) An example of this is when both parties
absence of only TWO YEARS shall be to the 2nd or subsequent marriage know the
sufficient); whereabouts of the absent spouse.

b. the spouse present has a WELL- Cause of Termination of Subsequent

FOUNDED BELIEF that the absent
spouse was already dead.
In Republic vs Nolasco, this requirement
is satisfied if serious and diligent efforts
is exerted to locate the whereabouts of
the absent spouse. If there is police
assistance, thus the disappearance
must be reported to the police. There
must also be sending of letters to the
relatives or known acquaintances of the
absent spouse. And there must be
28 | P a g e
Marriage
The subsequent marriage shall be
automatically terminated (terminated ipso
facto) by the recording of the affidavit of
reappearance of the absent spouse
(constitute as a notice in rem, UNLESS
there is a judgment annulling the previous
marriage or declaring it void ab initio.
A sworn statement of the fact and
circumstances of reappearance shall be
recorded in the civil registry of the residence
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
of the parties to the subsequent marriage at
the instance of any interested person, with
due notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in
case such fact is disputed. (A44, FC)
This is the only instance where a marriage is
terminated extra-judicially EXCEPT when
reappearance is disputed.
Effects of Termination of Subsequent
Marriage
The termination of the subsequent marriage
referred to in the preceding Article shall
produce the following effects (Art. 43, FC):
(1) The children of the subsequent marriage
conceived prior to its termination shall
be considered legitimate;
(2) The absolute community of property or
the conjugal partnership, as the case
may be, shall be dissolved and
liquidated, but if either spouse
contracted said marriage in bad faith,
his or her share of the net profits of the
community property or conjugal
partnership property shall be forfeited in
favor of the common children or, if there
are none, the children of the guilty
spouse by a previous marriage or in
default of children, the innocent spouse;
(3) Donations by reason of marriage shall
remain valid, except that if the donee
contracted the marriage in bad faith,
such donations made to said donee are
revoked by operation of law;
(4) The innocent spouse may revoke the
designation of the other spouse who
acted in bad faith as beneficiary in any
insurance policy, even if such
designation be stipulated as irrevocable;
and
(5) The spouse who contracted the
subsequent marriage in bad faith shall
be disqualified to inherit from the
innocent spouse by testate and intestate
succession.
Exception to the Exception: If both the
spouses of the subsequent marriage acted
in bad faith, such marriage is void ab initio.
(Art 44)
c. Art 26 par 2, FC – Valid Foreign Divorce
(see Discussion Above)
5. Contract by Mistake In identity – the mistake
here is with regard to the physical identity of one
of the parties and not with regard merely to the
character, health, rank, fortune, or chastity of
one party to the marriage. This is tantamount to
absence or lack of consent which makes the
marriage void. (A35[5], FC)
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6. Subsequent marriages in violation of Arts 40,
52 and 53
Art. 40. The absolute nullity of a previous
marriage may be invoked for purposes of
remarriage on the basis solely of a final
judgment declaring such previous marriage
void.
Pp vs Aragon, Feb 28, 1957 – no need of judicial
declaration.
Gomez vs Lipana, June 30, 1970 – there was a
need for a judicial declaration.
Odayat vs Amante, June 2, 1977 – no need for
judicial delaration.
Weigel vs. Sempio Diy, Aug 19, 1986 – there
was a need for judicial declaration.
Yap vs CA, Oct 28, 1986 – no need for a judicial
declaration.
Family Code, Aug 3, 1988 – there is a need for
judicial declaration.
Purpose/Aim of Art 40
The aim is to do away with any continuing
uncertainty on the status of the 2nd marriage.
The 2nd marriage shall likewise be void. The
parties to a marriage should not be allowed to
assume that there marriage is void even if such
be the fact but must first secure a judicial
declaration of the nullity of their marriage. Before
such declaration, the person who marries again
can be charged with bigamy. (Mercado Case)
Distinguished From Bigamous Void Marriage
In bigamous void marriage, the subsisting
first marriage is valid, while in Art 40, the
subsisting marriage is void. Thus, if a person
remarries without a judicial declaration of nullity
of the first marriage, the subsequent marriage is
void not because it is bigamous but because it
violates Art 40.
Distinguished From Criminal Bigamy
The crime of bigamy contemplates a situation
where the first marriage is valid, or at least
annullable and not void from the beginning.
HOWEVER, in the case of Mercado vs.
Mercado, Aug 1, 2000, SC held that bigamy is
committed for as long as a subsequent marriage
was contracted without judicial declaration of
nullity of the first marriage pursuant to Art 40 in
relation to Arts 52 and 53 of FC. (But see
dissenting opinion of Justice Vitug) This ruling, in
effect, states that criminal bigamy is determined
not by the fact that the first marriage is really
legally void but by the fact that no judicial
declaration of nullity of the first marriage was
obtained prior to the subsequent marriage.
Note: Although the first marriage is judicially
declared void, any subsequent marriage may
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
still be considered void because of the failure to
comply with Arts. 52 and 53.
Art. 52. The judgment of annulment or of
absolute nullity of the marriage, the partition and
distribution of the properties of the spouses and
the delivery of the children's presumptive
legitimes shall be recorded in the appropriate
civil registry and registries of property;
otherwise, the same shall not affect third
persons.
Final Judgment of Nullity of Marriage is binding
only between the parties, the effect of which is
terminating the marriage bond.
GENERAL RULE: Judgment NOT binding
against 3rd persons.
EXCEPT: When there is registration of the
judgment.
Where to Register: Appropriate civil registry and
registries of property.
Art. 53. Either of the former spouses may marry
again after compliance with the requirements of
the immediately preceding Article; otherwise, the
subsequent marriage shall be null and void.
Note: The recording is NECESSARY to bind 3 rd
persons and for the parties to be able to validly
contract a subsequent marriage.
The fact of registration restores legal capacity to
contract a subsequent marriage.
7. Art. 36: Those contracted by a party who at the
time of the celebration of marriage was
psychologically incapacitated to comply with
the marital obligations even if such incapacity
becomes manifest only after its solemnization.
Psychological incapacity - the condition of a
person who does not have the mind, will, and
heart for the performance of essential
marital/parental obligations. It is the inability to
understand the marital obligations leading to
non-performance of the same.
It has no exact definition but is restricted to
psychological incapacity to comply with the
essential marital obligations of marriage. It
involves a senseless, protracted, and constant
refusal to comply with the essential marital
obligations by one or both of the spouses
although he/she or they are physically capable
of performing such obligations. (Chi Ming Tsoi vs
CA)
It must be adjudged on a case to case basis. It
should refer to no less than a mental (not
physical) incapacity.
General characteristics of psychological
incapacity:
a. It must be Grave - if the subject cannot
carry out the normal and ordinary duties of
marriage and family, shouldered by any
30 | P a g e
average couple existing under ordinary
circumstances of life and work.
b. Juridical Antecedent - if the roots of the
trouble can be traced to the history of the
subject before the marriage although its
overt manifestations appear only after the
wedding.
c. It must Permanent and Incurable - if
treatments required exceed the ordinary
means of the subject, or involve time and
expense beyond the reach of the subject.
Jurisprudential Guidelines in Interpreting
and Applying Article 36 – BREIGOIC
(Republic v. Molina)
a. The burden of proof to show the nullity of
the marriage belongs to the plaintiff, and any
doubt must be resolved in favor of the
existence of the marriage and against its
nullity.
b. The root cause of the psychological
incapacity must be:
1. Medically or clinically identified
2. Alleged in the complaint
It has been relaxed, thus it need not be
alleged in the complaint.
3. Sufficiently proven by experts
In the case of Marcos vs Marcos,
October 19, 2000, it is not indispensable
to undergo psychiatric evaluation, it is
sufficient that one is assessed by expert
for purposes of the petition.
Expert testimony is no longer
indispensable.
Under present jurisprudence, the
incapacity must be proven based on the
totality of evidence presented.
In Ferraris vs Ferraris, 495 SCRA 396,
SC held that the marriage cannot be
voided on the ground of psychological
incapacity because of the failure to
prove the existence of the same. SC
also discussed in this case the probative
weight of the expert testimony to the
effect that the doctor failed to prove the
existence of mixed personality disorder
of the husband. The testimonies of the
doctor were just her assumptions and
based on what the plaintiff confined to
her, thus hearsay. There was failure to
obtain collateral information.
However, if there are independent
evidence to show the incapacity, then
the marriage may be declared void.
Expert testimony is only indispensable
when no other evidence was presented,
otherwise, such will only be considered
cumulative or corroborative.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
4. Clearly explained in the decision
c. The incapacity must be proven to be
existing at the time of the celebration of
the marriage although the manifestation
need not be perceivable at such time.
d. The incapacity must also be shown to be
medically or clinically permanent or
incurable, although the incurability may be
relative only in regard to the other spouse,
not necessarily absolutely against everyone
of the same sex.
Incurability may be absolute as when the
incapacity persists in all relationships. It may
also be relative as when the incapacity is
only with the present spouse.
e. Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of
marriage.
This means that there must be a serious
mental and personality disorder which
renders him or her incapable of
understanding his/her marital obligations.
If the mental disorder is not connected with
the failure to perform marital obligations, it is
considered merely as a difficulty.
f. The essential marital obligations must be
those embraced by Arts. 68 –71 and Arts.
220 - 225 of the Family Code, with regard to
parents and children. Such non-
compliance must also be state in the
petition, proven by evidence, and included in
the text of the decision.
Essential marital obligations:
Art. 68: the husband and wife are obliged to
live together, observe mutual love, respect
and fidelity, and render mutual help and
support.
Art. 220: parental authority over the person
of their unemancipated children.
Art. 225: parental authority over the
property of their unemancipated children.
g. Interpretations given by the National
Appellate Matrimonial Tribunal of the
Catholic Church, while not controlling,
should be given great respect by our courts.
When the marriage is annulled by the
NAMT, still, the marriage under the civil law
is valid and existing.
h. The trial court must order the fiscal and the
Solicitor general to appear as counsel for
the State. No decision shall be handed down
unless the Solicitor general issues a
certification, which will be quoted in the
decision, briefly stating his reasons for his
agreement or opposition to the petition. The
Solicitor General and the fiscal shall submit
such certification to the court within 15 days
from the date the case is submitted for
resolution.
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Note: The favorable recommendation of
OSG has been relaxed. There must be an
independent judgment of the court.
The Following Do Not Constitute
Psychological Incapacity
1. Drunkenness / habitual alcoholism
2. Joblessness
3. Mere sexual infidelity or perversion
4. Abandonment
5. Immaturity
6. Irresponsibility
7. Refusal to give support
8. Infliction of physical violence
Note: While these may not constitute
psychological incapacity, they may be
considered as manifestations.
8. Incestuous Marriages (Art 37, FC)
Marriages between the following are incestuous
and void from the beginning, whether the
relationship between the parties be legitimate or
illegitimate:
1. Between ascendants and descendants of
any degree.
2. Between brothers and sisters, whether of
the full or half-blood.
Rationale for the Ban on Incestuous Marriage
In the first place, they are abhorrent to the
nature, not only of civilized men, but of
barbarous and semi-civilized people and, in the
second place, tend to the confusion of rights and
duties incident to family relations. Also, a child of
incestuous union creates a special problem of
social placement, because its status is so
confused, as is that of its parents. In addition,
science and experience have established
beyond cavil that such intermarriages very often
result in deficient and degenerate offspring,
which if occurring to any great extent, would
amount to a serious deterioration of the race.
Finally, social prohibitions against incest
promote solidarity of the nuclear family.
9. Quasi-incestuous Marriages / Void by
Reason of Public Policy (ART 38, FC)
These marriages are void from the beginning for
reasons of public policy:
1. Between collateral blood, whether legitimate
or illegitimate, up to the fourth civil degree.
2. Between step-parents and step-children.
3. Between parents-in-law and children-in-law.
4. Between the adopting parent and the
adopted child.
5. Between the surviving spouse of the
adopting parent and the adopted child.
6. Between the surviving spouse of the
adopted child and the adopter.
7. Between an adopted child and a legitimate
child of the adopter.
8. Between adopted children of the same
adopter.
9. Between parties where one, with the
intention to marry the other, killed that
other person’s spouse, or his or her own
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
spouse; in this case, there is no need for
conviction of the guilty party.
Reasons for the Prohibition
They are against public policy. It is the policy of
the state to foster a normal, peaceful and
wholesome integral nuclear family unit which
would constitute the very foundation of society.
Other relationships which are not
impediments to marriage:
1. Brother-in-law and sister-in-law
2. Stepbrother and stepsister
3. Guardian and ward
4. Adopted and illegitimate child of the adopter
5. Adopted son of the husband, and adopted
daughter of the wife
NOTE: RA 6995 (Mail Order Bribe Act) declares
as unlawful the practice of matching Filipino
women for marriage to foreign nationals on a
mail order basis and other similar practices
including the advertisement, publication, printing
or distribution of brochures, fliers and other
propaganda materials in furtherance thereof.
Action For Declaration Of Nullity Of Marriage
Who may Bring
A petition for the declaration of absolute nullity of
void marriage may be filed SOLELY by the husband
or the wife.” (S2[a], AM 02-11-10-SC)
Petition for declaration of nullity of marriage, in the
case of Catalan vs CA, February 2, 2007, is
considered as an ordinary civil action, thus any
proper party who has legal interest may file the
petition. In this case, SC recognized the legal
capacity of the 1st wife to institute the petition.
Petition for declaration or annulment of marriage
shall be filed by the aggrieved spouse and such is
personal to him/her while he/she is still living. After
death, the heirs may assail the validity of marriage in
the settlement proceedings. (Enrico Case, 534
SCRA 418) In effect, the settlement court can decide
on the validity of marriage whose decision is final
and inappealable.
Moreover, in the case of Ninal vs Bayadog, March
14, 2000, SC recognized the right of the heirs of the
deceased father assailing the validity of his marriage
with their step-mother in a settlement proceeding.
They have legal interest to determine their
successional right to the exclusion of the step-
mother.
The pleading may be in the form of petition or
complaint where all grounds must be alleged. In one
case, there was a petition filed for declaration of
nullity of marriage under Art 36. The court dismissed
the case. On appeal, one new ground is included
which is lack of license. SC held that the new ground
should be disregarded. All grounds must be alleged.
Further, SC held that the judgment can no longer be
reversed because parties are estopped from citing
the new ground. Neither the party can file a 2 nd
petition for nullity by reason of res judicata.
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Where to File:
The petition shall be filed in the Family Court of the
province or city where the petitioner or the
respondent has been residing for at least 6 months
prior to the date of the filing or in the case of non-
resident respondent, where he may be found in the
Philippines, at the election of the petitioner. (S2[b],
AM 02-11-10-SC)
Prescriptive Period
The action or defense for the declaration of absolute
nullity of a marriage shall not prescribe. (Art 39, FC;
S2[c], AM 02-11-10-SC)
Note: RA 8533 amended Art. 39, eliminating the
second sentence thereof which states the
prescriptive period of 10 years in case of marriages
celebrated before the affectivity of FC which fall
under Art 36 .
Appearance of the State/Prohibition vs. Default
Judgment
Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order
the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to
prevent collusion between the parties and to take
care that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph,
no judgment shall be based upon a stipulation of
facts or confession of judgment.
If the defendant fails to answer within 15 days from
receipt of the summons, he or she cannot be
declared in default unlike in ordinary civil cases, and
the court will order the full-blown (not summary)
hearing of the case.
If the answer admits the allegations of the petition,
judgment on the pleadings cannot be decreed.
Material facts alleged in the petition shall always be
proved.
Note: Appearance of the OSG is no longer
indispensable if the State is already protected by the
appearance of the prosecutor.
Reason for the Appearance of the State
The reason for the duty is because marriage is not
just a contract between the parties but a social
institution, in the preservation of which, the State is
interested.
COLLUSION – one which occurs where, for
purposes of getting an annulment or nullity decree,
the parties come up with an agreement making it
appear that the marriage is defective due to the
existence of any of the grounds for annulment or
nullity and agreeing to represent such false or non-
existent cause of action before the proper court with
the objective of facilitating the issuance of a decree
of annulment of nullity of marriage.
The Following Warrants the Conduct of Investigation
a. If defendant does not tender an answer.
b. If there is an answer but no further appearance.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
c. If either of the parties withdraw from the case.
If there is collusion, dismissal of the petition is
warranted.
HOWEVER, even if there is an agreement to file the
annulment or nullity case, collusion will not exist if
the grounds relied upon truly exist and are not just
concocted.
STIPULATION OF FACTS – admission by both
parties made in court agreeing to the existence of
the act constituting the ground for annulment or
nullity.
CONFESSION OF JUDGMENT – admission made
in court by the defendant admitting fault as invoked
by the plaintiff to sever the marriage ties.
Right To Support And Custody During The
Pendency Of The Action
Art. 49. During the pendency of the action and in
the absence of adequate provisions in a written
agreement between the spouses, the Court shall
provide for the support of the spouses and the
custody and support of their common children. The
Court shall give paramount consideration to the
moral and material welfare of said children and their
choice of the parent with whom they wish to remain
as provided to in Title IX (See Art 213). It shall also
provide for appropriate visitation rights of the other
parent.
Art. 213. In case of separation of the parents,
parental authority shall be exercised by the parent
designated by the Court. The Court shall take into
account all relevant considerations, especially the
choice of the child over seven years of age, unless
the parent chosen is unfit.
No child under 7 shall be separated from the mother,
unless the court finds compelling reasons to order
otherwise.
Necessity of Final Judgment / Requirement for
Remarriage (Art 40 in rel to Arts. 52 and 53 – see
discussion above)
Effects of Declaration of Nullity
1. No more marriage ties between the parties. No
obligation to support one another. Duty to
perform marital obligations is extinguished.
2. Children conceived and born during the
marriage is downgraded to the status of
illegitimate. The finality of judgment makes the
children illegitimate ipso facto. An exception to
this rule id Art 35[6] and Art 36 of the FC.
3. Children are entitled to support. If the matter of
custody is not yet resolved, apply the rules on
custody. There is grant of physical custody to be
exercised by one party and visitation rights to be
exercised by the other.
4. There is dissolution and liquidation of co-owned
property under the rule on co-ownership under
Art 147.
The property will be divided in equal share
unless there is proof to the contrary.
33 | P a g e
Liquidation only happens after finality of
judgment. In US, they call it “bifurcated process.”
The liquidation is subject to the rule on forfeiture.
Thus, if either spouse contracted said marriage
in bad faith, his or her share of the net profits of
the community property or conjugal partnership
property shall be forfeited in favor of the
common children or, if there are none, the
children of the guilty spouse by a previous
marriage or in default of children, the innocent
spouse.(Art 43 [2], FC)
SC held that in bigamous marriages along with
adulterous relationships, relationships in a state
of concubinage, relationships with prior existing
marriages, or multiple marriages of married
man, Article 148 of the FC on Rule of Limited
Co-ownership shall apply. In such case, there is
no presumption of equal sharing. Thus, co-
ownership extends during relationship upon
proof of actual acquisition. (Atienza vs De
Castro)
5. 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. (Art
43 [3], FC)
6. The innocent spouse may revoke the
designation of the other spouse who acted in
bad faith as beneficiary in any insurance policy,
even if such designation be stipulated as
irrevocable; (Art 43 [4], FC) and
7. The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and
intestate succession. (Art 43 [5], FC)
8. If both spouses of the subsequent marriage
acted in bad faith, said marriage shall be void ab
initio and all donations by reason of marriage
and testamentary dispositions made by one in
favor of the other are revoked by operation of
law. (Art 44, FC)
NOTES:
 The final judgment in such cases shall provide for
the liquidation, partition and distribution of the
properties of the spouses, the custody and
support of the common children, and the
delivery of third presumptive legitimes, unless
such matters had been adjudicated in previous
judicial proceedings. (A51, FC)
All creditors of the spouses as well as of the
absolute community or the conjugal partnership
shall be notified of the proceedings for
liquidation.
In the partition, the conjugal dwelling and the lot
on which it is situated, shall be adjudicated in
accordance with the provisions of Articles 102
and 129.
Unless otherwise agreed upon by the parties, in
the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall
be adjudicated to the spouse with whom the
majority of the common children choose to
remain. Children below the age of 7 years are
deemed to have chosen the mother, unless the
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Court has decided otherwise. In case there is no

such majority, the Court shall decide, taking in to VOID VOIDABLE
consideration the best interests of said children. Invalid/void from the Valid until annulled.
beginning.
 Art. 51. In said partition, the value of the Never be ratified. Susceptible of
presumptive legitimes of all common children, ratification.
computed as of the date of the final judgment of Children, illegitimate Children, legitimate.
the trial court, shall be delivered in cash, EXCEPT Arts. 36 & 53.
property or sound securities, unless the parties, Liquidation of property, Based on property
by mutual agreement judicially approved, had co-ownership under Art regime.
already provided for such matters. 147 and if bigamous
marriage Art 148.
The children or their guardian or the trustee of Can be collaterally Direct attack.
their property may ask for the enforcement of attacked EXCEPT for
the judgment. purposes of remarriage,
or revocation of donation
The delivery of the presumptive legitimes herein propter nuptias.
prescribed shall in no way prejudice the ultimate Nullification is There is prescription.
successional rights of the children accruing upon imprescriptible.
the death of either of both of the parents; but the Any party who has legal Parties are only those
value of the properties already received under interest may impugn the provided by law.
the decree of annulment or absolute nullity shall validity of marriage.
be considered as advances on their legitime. Judicial decree of nullity Judicial declaration is
is necessary for necessary.
Note: As a rule, in void marriages, delivery of purposes of remarriage.
presumptive legitimes is not required EXCEPT
only in void subsequent marriage resulting from
non-compliance with Art 40 in relation to Arts 52 Grounds for the annulment of marriage (Art 45 –
and 53. This is because the rules on co- the grounds are exclusive):
ownership shall govern the partition and
liquidation. The marriage may be annulled for any of the
following causes, existing AT THE TIME OF THE
 Art. 52. The judgment of annulment or of MARRIAGE: LIV-VIA
absolute nullity of the marriage, the partition and
distribution of the properties of the spouses and 1. Lack of Parental Consent - That the party in
the delivery of the children's presumptive whose behalf it is sought to have the marriage
legitimes shall be recorded in the appropriate annulled was 18 years of age or over but below
civil registry and registries of property; 21, and the marriage was solemnized without
otherwise, the same shall not affect third the consent of the parents, guardian or person
persons. having substitute parental authority over the
party, in that order, UNLESS after attaining the
 Art. 53. Either of the former spouses may age of 21, such party freely cohabited with the
marry again after compliance with the other and both lived together as husband and
requirements of the immediately preceding wife.
Article; otherwise, the subsequent marriage shall
be null and void. 2. Insanity - That either party was of unsound
mind, unless such party, after coming to reason,
Status of Children born of Void Marriage freely cohabited with the other as husband and
wife.
GENERAL RULE: Children conceived and born
outside a valid marriage or inside a void marriage INSANITY – a manifestation, in language or
are illegitimate. conduct, of disease or defect of the brain, or a
more or less permanently diseased or
EXCEPTIONS: disordered condition of the mentality, functional
1. Children conceived or born (after the marriage or organic, and characterized by perversion,
but) before the judgment absolute nullity of the inhibition, or disordered function of the sensory
marriage under Article 36 has become final and or the intellective faculties, or by impaired or
executory shall be considered legitimate. disordered volition.
2. Children conceived or born of the subsequent
marriage under Article 53 shall likewise be Test of Unsoundness of Mind
legitimate. (A54, FC)
The test is whether the party was deprive of
reason. Insanity which occurred after the
VOIDABLE MARRIAGES / ANNULLABLE celebration of marriage cannot constitute a
MARRIAGES cause of nullity.
VOIDABLE MARRIAGE - is valid until it is annulled. Drunkenness – may be considered insanity
Before annulment, the voidable marriage must be depending on the degree of drunkenness which
regarded as valid. One cannot just take the law into deprives a person of his reason.
his own hands. He must go to court.

34 | P a g e
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Somnambulism (sleep-walking) – there
deprivation of reason, thus insanity.
Hypnotism – considered insanity provided there
is deprivation of reason.
Comatose – considered insanity. It is not the
disease that is considered but the effect of the
disease.
Presumption of the Law
The general presumption of the law is in favor of
sanity. He who alleges unsoundness of mind has
the burden of proof.
Insanity vs Psychological Incapacity
Insanity is a restriction of the capacity to act,
while psychological incapacity is the incapacity
to comply with marital obligations.
3. Vitiated Consent through Fraud - That the
consent of either party was obtained by fraud,
UNLESS such party afterwards, with full
knowledge of the facts constituting the fraud,
freely cohabited with the other as husband and
wife.
Fraud constitutes (Art 46):
a. Non-disclosure of a previous conviction by
final judgment of the other party of a crime
involving moral turpitude.
Note: In determining whether a crime
involves moral turpitude, it is the nature of
the offense is considered.
Negligence cases under the Revised Penal
Code do not involve moral turpitude
EXCEPT if it is so reckless amounting to
malicious conduct.
Crimes under Special Laws also involve
moral turpitude like violation of BP 22, vote
buying, election offenses.
b. Concealment (there must be bad faith) by
the wife of the fact that at the time of the
marriage, she was pregnant by a man other
than her husband.
c. Concealment of a STD, regardless of its
nature, existing at the time of the marriage.
d. Concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism,
existing at the time of the marriage.
Note: No other misrepresentation or deceit as to
character, health, rank, fortune, or chastity shall
constitute such fraud as will give grounds for
action for the annulment of marriage.
4. Vitiated Consent by Force, Intimidation or
Undue influence - That the consent of either
party was obtained by force, intimidation, or
undue influence, UNLESS the same having
disappeared or ceased, such party thereafter
freely cohabited with the other as husband and
wife.
35 | P a g e
By:
is
FORCE – there is actual physical coercion and
serious or irresistible force is employed.
INTIMIDATION - when one of the contracting
parties is compelled by a reasonable and well-
grounded fear of imminent and grave evil upon
his person or property, or upon the person or
property of his spouse, descendants or
ascendants, to give his consent.
The marriage cannot be annulled on the ground
of intimidation if the threat is to enforce one’s
claim, which is just or legal, through competent
authority. To be considered a ground, the threat
must be unjust or illegal.
UNDUE INFLUENCE - when a person takes
improper advantage of his power over the will of
another, depriving the latter of a reasonable
freedom of choice.
5. Impotency - That either party was physically
incapable of consummating the marriage with
the other and such incapacity continues and
appears to be incurable.
Requisites for physical incapacity:
a. That the incapacity exists at the time of the
celebration of the marriage.
b. That such incapacity continues to the time
when the case for annulment is being tried.
c. That it appears to be incurable.
d. It must be unknown to the other contracting
party.
The physical incapacity referred to by law as a
ground for annulment of marriage is Impotency.
IMPOTENCY – inability of the male or female
organ of copulation to perform its proper
function. It is the physical condition of the
husband or the wife in which sexual intercourse
with a normal person of the opposite sex is
impossible. It is the lack of power to copulate,
the absence of the functional capacity for the
sexual ac.
Test of Impotency
It is the inability to copulate and not the inability
to procreate.
Impotentia Copulandi vs Impotentia
Generandi
Impotentia Copulandi is the physical impotency
or inability to copulate and considered as a
ground for annulment of a voidable marriage.
Impotentia Generandi on the other hand is
known as sterility or the inability to procreate. In
sterility, there is capacity to copulate which is
absent in impotency.
Relative/Temporary impotency – is where a
person is impotent with respect to his or her
spouse but not with another woman or man.
Under the Family Code, relative impotency may
be invoked as ground for annulment of marriage
in view of the physical incapability of one party
to consummate said marriage with the other.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

b. In marriage where one is of unsound mind –

Potency is presumed after coming to reason

Potency is presumed unless the person is too
old for normal sexual activity. Impotency being
an abnormal conditions should not be
presumed.
Burden of Proof
He who claims impotency must prove the claim
because the presumption is in favor of potency.
Doctrine of triennial cohabitation - if the wife
remains virgin after living together with her
husband for 3 years from the time of marriage,
the presumption is that the husband is impotent,
and he will have to overcome this presumption.
c. In marriage where consent is obtained by
fraud – after having full knowledge of the
facts constituting fraud
d. In marriage where the consent is obtained
by force, intimidation – after force,
intimidation or undue influence has
disappeared.
Cohabitation, How Proven
a. After knowledge of the defect, the party who
is entitled to file an action, freely discharges
his/her marital obligations.
b. Consummation of marriage, after knowledge
of the defect.

Note: NO ratification by free cohabitation in Effects of Ratification – extinguishment of the

cases of absolute impotency because there right of action for annulment of a voidable
could be no cohabitation as consummation of marriage.
the marriage is not possible. However, estoppel
is applicable. Knowledge of impotency at the Note: If the ground is impotency or affliction of
time of marriage will negate annulment of STD, there is no ratification to speak of since the
marriage. defect is permanent. They can be convalidated
only by prescription.
6. Affliction of STD - That either party was
afflicted with a STD (Sexually-transmissible 2. Prescription (See the Table Below)
disease) found to be serious and appears to be
incurable (e.g. Hepatitis B and C are STD and Action for Annulment of Marriage
serious while Hepatitis A is not STD)
Who May Bring and Within What Period (Art 47;
Requisites: AM 02-11-10-SC)
a. Disease must be existing at the time of
marriage Grounds Persons who may Prescriptive
b. The disease must be STD sue period
c. STD must be Serious Lack of The party who Within 5 years after
d. STD appears to be incurable parental lacks parental reaching the age of
consent consent 21
Lack of The parent, legal At anytime before
Affliction of STD as a ground for annulment
parental guardian or person the party who lacks
Under Article 45 (6) v. Affliction of STD as consent having substitute parental consent
constituting fraud under Article 46 (3). parental authority reaches 21
who did not give
Art. 45 (6) Art. 46 (3) consent, in that
One party is afflicted order
One party is afflicted Sane spouse (no At anytime before
with a STD found to be
with a STD regardless Insanity knowledge of the the death of either
serious and appears to
of its nature ground) party
be incurable
Insanity Relatives, At anytime before
The disease is present The disease is guardians or the death of either
at the time of the present at the time of person having party
marriage the marriage legal charge of the
Concealment is insane
immaterial; the Insanity Insane spouse During sanity or
There is concealment lucid interval
disease may be known
to the other party Injured party Within 5 years after
Fraud the discovery of the
fraud
Note: No ratification by free cohabitation in
Force, Injured party Within 5 years from
STD. intimidation the time the
or undue grounds stated
Ratification/Convalidation of Voidable Mariiage, influence ceased
Modes Physical Injured party. If
incapability both are impotent,
Within 5 years after
1. Free Cohabitation no one can file
the marriage
because there is no
To What Marriages Applicable injured party.
Affliction of Within 5 years after
Injured party
STD the marriage
a. In marriage where there is lack of parental
consent – after attaining the age of 21
When Actions for Annulment will not Prosper
36 | P a g e
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
a. If persons other than those specified by law filed
the case.
b. When the action was filed after prescription had
set in.
c. When the injured party freely cohabited with the
other as husband and wife.
Where to File the Petition
The petition shall be filed in the Family Court of the
province or city where the petitioner or the
respondent has been residing for at least 6 months
prior to the date of the filing or in the case of non-
resident respondent, where he may be found in the
Philippines, at the election of the petitioner.
Appearance of the State (Art 48 – See Discussion
Above, Same in Declaration of Nullity of
Marriage)
Right to Support and Custody During Pendency
of Action (Same in Declaration of nullity of
marriage)
Necessity of Final Judgment / Requirements for
Remarriage (Same in declaration of Nullity of
marriage)
Art 40 which speaks of absolute nullity includes
annulment of marriage. Thus, the necessity of
judicial declaration for purposes of remarriage.
When Decree of Annulment of Marriage be
Issued by the Court (same in declaration of
nullity marriage)
The court shall issue the decree after:
1. Registration of the entry of judgment granting
the petition for declaration of nullity or annulment
of marriage in the Civil Registry where the
marriage was celebrated and in the Civil
Registry of the place where the Family Court is
located.
2. Registration of the approved partition and
distribution of the properties of the spouses in
the proper Register of Deeds where the real
properties are located.
3. The delivery of the children’s presumptive
legitimes in cash, property or sound securities.
(S22, A.M. No. 02-18-10-SC)
Note: The Decree in the Civil Registry where the
marriage was registered, the Civil Registry of the
place where the Family is situated, and in the
National Census and Statistics Office is the vest
evidence to prove declaration of absolute nullity or to
serve as notice to 3rd person concerning the
properties of the spouses as well as presumptive
legitimes delivered to the common children.
If there are no properties of the spouses which could
be the subject of liquidation, partition and
distribution, there is NO need for the recording of the
judgment in the appropriate registries of property.
Our governing laws do not require such judgment to
be furnished and recorded in the proper registries of
property.
Effects of Annulment (Same in Nullity)
37 | P a g e
Status of Children Born of Voidable Marriage
Children conceived OR born before the judgment of
annulment shall be considered legitimate.
LEGAL SEPARATION
LEGAL SEPARATION - the marriage bond between
the husband and wife is not severed. The parties are
merely separated from bed and board.
A Vinculo Matrimonii and A Mensa et Thoro,
Distinguished
A Vinculo Matrimonii or Absolute divorce is a
separation of the spouses for a cause authorized by
law by a judgment of competent court where the
marriage tie is dissolved leaving the parties free to
contract a new marriage. A Mensa et Thoro or
Relative Divorce, on the other hand is the separation
of the spouses from bed and board for a cause
authorized by law by the judgment of a competent
court but the marriage tie subsists and the parties
are not allowed to marry again. Under the Family
Code, relative divorce is known as LEGAL
SEPARATION.
History of Divorce and Legal Separation
 Siete Partidas, during the Spanish regime,
provided for relative divorce/legal separation in
the Philippines, not Absolute Divorce. This was
our law until Act 2710, which allowed only
absolute divorce.
 The Divorce Law (Act 2710) recognized only two
grounds for absolute divorce and implicitly ruled
out relative divorce. The two grounds were:
Adultery on the part of the wife; Concubinage on
the part of the husband.
 Executive Order 141 enlarged the grounds for
divorce under Act 2710 by adding 8 more
grounds – during the Japanese regime.
 Oct 23, 1944, EO 141 was repealed and Act
2710 was revived.
 Act 2710 (the Old Divorce Law) was repealed by
the New Civil Code on Aug 30, 1950. Today, with
the exception of Moslem divorces and the
implicit absolute divorce law allowed under
Article 36 (Psychological incapacity) of the
Family Code, we only have relative divorce or
legal separation in the Philippines
Rules for Absolute Divorce TODAY both under
the Civil Code and the Family Code (without
prejudice to Muslim Code of Personal Laws)
 If the action is brought HERE in the Philippines
b. Between Filipinos-will NOT prosper
EXCEPT divorces between Filipino Muslims
c. Between foreigners-will NOT prosper
d. Between a Filipino and a foreigner-will NOT
prosper.
 If the action is brought in a FOREIGN COURT
1.) Between Filipinos-will NOT be recognized
here even if allowed by said foreign court,
and even if the ground be either adultery on
the part of the wife or concubinage on the
part of the husband.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

2.) Between foreigners-foreign decree will be
RECOGNIZED here only if the following two
conditions concur:
a.) The foreign court has jurisdiction to grant
the absolute divorce.
b.) Said divorce is recognized as valid by the
personal law of the parties involved, that
is, if valid according to their national law
or the law of their domicile depending
upon the theory adopted by their
countries.
3.) Between a Filipino and a foreigner-If
obtained by the foreigner and valid
according to his personal law-valid for both
foreigner and Filipino under Art 26.
Absolute Divorce Under Muslim Code of
Personal Laws
For a period of 20 years from June 17, 1949,
absolute divorce in accordance with Mohammedan
customs and practices is recognized for
Mohammedans residing in non-Christian provinces.
This law, in turn, is now superseded by the Muslim
Code of Personal Laws, wherein absolute divorce in
accordance with Muslim customs and practices is
also recognized.
Legal Separation vs. Separation of Property
(Arts. 134 – 136, FC)
2. In legal separation, the law provides for certain
consequences like separation of property,
dissolution of the absolute or conjugal property
regime, disqualification to inherit from the
innocent spouse in intestate succession, and
cessation of the right to cohabitation. In de facto
separation (like in abandonment), there is no
judicial intervention and no dissolution of the
conjugal partnership or absolute community of
property, thus the husband and wife are still
heirs of each other, their property relations
remain, unless the innocent party disinherits the
guilty party in his will or her will.
3. In both cases, the spouses live separately. The
absent spouse is not entitled to support and the
marriage remains intact which presupposes that
the obligation of mutual fidelity remains, violation
of which subjects the violator to criminal
prosecution such as for adultery and
concubinage. In separation de facto, when the
consent of one spouse to any transaction of the
other is required by law, judicial authorization
shall be obtained in a summary proceeding and;
in the absence of sufficient community property,
the separate property of both spouses shall be
solidarily liable for the support of the family. The
spouse present shall, upon proper petition in a
summary proceeding, be given judicial authority
to administer or encumber any specific separate
property of the other spouse and use the fruits
or proceeds thereof to satisfy the latter’s share.

Legal Separation Separation of Property Legal Separation vs. Annulment of Marriage

Must be done thru the 1.) If one prior to
court. marriage-may be done Legal Separation Annulment of marriage
thru the marriage Marriage is not Marriage is defective.
settlement. defective.
2.) If done during the Grounds arise only Grounds must exist at
existence of the after the marriage. the time of or before the
marriage-must be done marriage.
thru the courts. Spouses are still Spouses are no longer
Always involves May exist with or without married to each other married to each other,
separation of property. legal separations. Thus, and cannot remarry. thus they can remarry.
Thus, may be May be considered as There are 10 grounds. There are only 6
considered as a cause one of the effects of legal grounds.
of separation of separation.
property. Grounds for legal separation (Art 55): RP-
Cannot be granted on Can be effected by FADALACS
mere stipulation of agreement of the 1. Repeated physical violence or grossly abusive
facts, or confession of spouses during the conduct directed against the petitioner, a
judgment or agreement marriage subject to court common child, or a child of the petitioner.
of the parties. approval. If done before
the marriage, it can be Illustration:
effected thru marriage FACTS: 5 years after celebration of the
settlement. marriage, H, in several occasions, inflicted upon
The spouses are The spouses are NOT W injuries. The latter filed a criminal case for
necessarily separated. necessarily separated. serious physical injuries. W also filed a civil
action for the issuance of a decree of legal
separation. H filed a motion to suspend the civil
Legal Separation (Art. 55) vs. Separation De case contending that it should wait for the
Facto (Art. 100-101) judgment in the criminal case. HELD: The
motion should not be granted because legal
1. In legal separation, the separation is the result of separation is a separate proceeding and
judicial decree. While in de facto separation, the conviction by final judgment in the criminal case
spouses are just living separately irrespective of is not necessary for the civil case to prosper.
the period but the absent spouse has no clear
intention of deserting the conjugal dwelling (as 2. Physical violence or moral pressure to compel
distinguished from abandonment where there is the petitioner to change religious or political
no intention to return and there is a period of affiliation.
time required to lapsed before abandonment can
be considered).
38 | P a g e
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
3. Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or
connivance in such corruption or inducement.
4. Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned.
5. Drug addiction or habitual alcoholism of the
respondent.
6. Lesbianism or homosexuality of the
respondent;
NOTE: The extent of drug addiction, habitual
alcoholism, lesbianism or homosexuality is the
same as those in annulment. However, in
annulment, they are instances of fraud which
must exist at the time of the celebration of
marriage. In legal separation, such grounds exist
even after the marriage ceremony.
7. Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines
or abroad.
Bigamy, as a ground for legal separation does
not require a prior conviction for as long as there
is proof of subsequent bigamous marriage.
8. Sexual infidelity or perversion.
SEXUAL INFIDELITY – includes adultery,
concubinage and other acts short of adultery
and concubinage for as long as such acts
constitute a clear betrayal of the trust of his/her
spouse. In case of concubinage as a ground for
annulment of a voidable marriage, there is no
need of conviction by final judgment for such
can be proven by preponderance of evidence.
SEXUAL PERVERSION – can refer to any
abnormal or pervert act or turning from the true
end or proper purpose of sexual organs.
9. Attempt by the respondent against the life of the
petitioner.
The attempt must come from an evil design.
There is no need of conviction. Such attempt
can be proven by preponderance of evidence.
10. Abandonment of petitioner by respondent
without justifiable cause for more than one year.
ABANDONMENT – refusal or failure to comply
with the marital obligations. It does not only refer
to desertion of the conjugal dwelling without
intention of returning. (Art 101, FC)
Constructive Abandonment – where one
spouse, without just cause, forcibly ejects the
other from their home and refuses to allow her to
return and that will constitute abandonment.
Presumption of abandonment:
1. When the spouse who has left the conjugal
dwelling for a period of no less than 3
months; or
39 | P a g e
2. When he/she has failed within the same
period to give any information as to his or
her whereabouts. (Art 101, FC)
Effects of Abandonment without just cause
a. Possible legal separation
b. Petition for Receivership, Judicial
Separation of Property, Sole Administration
of the Absolute Community or conjugal
partnership (subject to precautionary
conditions). These remedies are also
available in case of failure to comply with
obligations to the family. The obligations to
the family mentioned refer to marital,
parental or property relations. (Art 101, FC)
c. One who abandoned not entitled to support.
Defenses Against Legal Separation (Art 56)
1. Condonation / Pardon
Where the aggrieved party has condoned the
offense or act complained of.
CONDONATION – this is forgiveness, express
or implied, after the commission of the offense or
act complained of and not before.
Forms:
a. Express
b. Implied - Implied condonation may come in
the form of voluntary sexual intercourse after
knowledge of the cause.
“Each sexual intercourse of the wife outside
marriage is a separate act of adultery. Therefore,
condonation of one act does not necessarily
imply condonation of the others”. (People v
Zapata and Bondoc, L-3047, May 16, 1951)
“Where the wife left the conjugal home after her
adulterous acts were discovered, the fact that
the husband did not actively search for her is not
condonation. It was not the duty of the husband
to search for the wife under the circumstances.
On the contrary, hers was the duty to return to
the conjugal home”. (De Ocampo v. Florenciano,
L-13553, Feb. 23, 1960)
Condonation must be given by the aggrieved
party after full knowledge of the marital offense
committed. It must be subsequent of the
commission of the marital offense.
Effect of Conditional Condonation/Pardon
If the aggrieved party expressly forgives the
guilty spouse subject to the condition that the
latter should not commit the marital offense
again. Should the guilty spouse commits another
marital offense, there is no compliance with the
condition. Thus, the basis of legal separation
can be the previous marital offense because
non-compliance with the condition amounts to
no condonation at all and the subsequent marital
offense.
2. Consent
Where the aggrieved party has consented to the
commission of the offense or act complained of.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
CONSENT – acquiescence or permission or
willingness to agree to the commission of the act
complained of.
Forms:
a. Express
b. Implied.
Consent vs. Condonation
Consent is prior to the act of commission of
marital offense, while condonation comes after
the commission of marital offense. To make use
of either, the same must be BEFORE the filing of
the complaint.
“An agreement between a husband and wife
whereby each could live with others, have carnal
knowledge of them, without interference from
the other, constitutes consent”. (People v.
Schneckenburger) While such agreement is void
for being contrary to public policy, the policy
being that the nature and consequence of
marriage is not subject to stipulation, it can still
be used as a defense to negate the action of
nullity.
Consent must be distinguished from entrapment.
Therefore, if the purpose is to merely catch the
wife, this is not consent even if the husband
deliberately went away only to come back and
trap the wife.
3. Connivance
Where there is connivance between the parties
in the commission of the offense or act
constituting the ground for legal separation.
CONNIVANCE – this is a tacit permission to the
commission of the act complained of. Not both
spouses are parties to the connivance but only
one spouse with a third person.
If a husband hires a detective to spy on his wife,
and tells him to have sexual intercourse with her
in order to have evidence, this will be a case of
Connivance. The husband here is unworthy or
that he himself is guilty.
This is similar to instigation in the criminal as
distinguished fro entrapment.
4. Mutual guilt
Where both parties have given ground for legal
separation;
MUTUAL GUILT/RECRIMINATION - both parties
are in pari delicto, there is no offended spouse
who deserves to bring the action. This is true
even if one of the parties has been pardoned but
the other has not. The reason for this lies in the
equitable maxim that “He who comes to court
must come with clean hands.” Also, it is also a
rule that, when 2 persons acted in bad faith, they
should be considered as having acted in good
faith.
5. Collusion
40 | P a g e
Where there is collusion between the parties to
obtain decree of legal separation.
COLLUSION - This is an agreement to commit
marital offense or an agreement whereby one
will pretend to have committed the ground relied
upon.
A legal separation obtained thru collusion is
void.
6. Prescription
Prescriptive period
An action for legal separation shall be filed
within 5 years from the time of the occurrence of
the cause. (Art 57)
In certain acts of adultery, each adulterous act is
a separate cause for legal separation. Each one
is subject to a separate prescriptive period.
The law should be interpreted to mean within 5
years from the time of discovery of the cause.
Action for Legal Separation
Procedure (AM 02-11-11-SC)
Who May File
The petition may be filed only by the husband or
wife.
Where to file (Same in nullity and annulment)
Summons shall be serve to the respondent
Respondent’s Answer/Failure to File an Answer,
Effects (Same in nullity and annulment)
Appearance of the State (Same in nullity and
annulment)
If there is no finding of collusion, the hearing of the
petition shall proceed.
If there is collusion, the petition will be dismissed
motu proprio.
Motion to Dismiss
No motion to dismiss the petition shall be allowed
except on the ground of lack of jurisdiction over the
subject matter or over the parties.
Mandatory COOLING-OFF period
An action for legal separation shall in no case be
tried before 6 months shall have elapsed since the
filing of the petition. (Art 58, FC)
REASON: To make a possible reconciliation
between the spouses.
NOTE: There is no cooling-off period if the ground
alleged are those under RA 9262 (Violence Against
Women and Children). Art 19 of said law provides:
“In cases of legal separation, where violence as
specified in this act is alleged, Art 58 of FC will not
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
apply. The court shall proceed in the main case and
other incidents of the case as soon as possible. The
hearing on any application for a protection order filed
by the petitioner must be conducted within the
mandatory period specified in this Act.
Duty of Court to Effect Reconciliation
No legal separation may be decreed unless the court
has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts,
that reconciliation is highly improbable. (Art 59, FC)
Necessity of Trial and Intervention of State
No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting
attorney or fiscal assigned to it to take steps to
prevent collusion between the parties and to take
care that the evidence is not fabricated or
suppressed. (Art 60, FC)
Effects Legal Separation Pendente Lite
1. After the filing of the petition for legal separation,
the spouses shall be entitled to live separately
from each other. (Art 61 par 1, FC)
2. The administration of the absolute community
property or conjugal partnership may be agreed
upon in writing between them.
3. The court, in the absence of a written agreement
between the spouses, shall designate either of
them or a third person to administer the
absolute community or conjugal partnership
property. The administrator appointed by the
court shall have the same powers and duties as
those of a guardian under the Rules of Court.
(Art 61 par 2, FC)
4. The wife is suable alone without impleading the
husband.
5. When the consent of one spouse is needed in
any transaction, judicial authorization is
necessary.
6. During the pendency of the action for legal
separation, the provisions of Article 49 shall
likewise apply to the support of the spouses and
the custody and support of the common
children.
During the pendency of the action, the Court
shall provide for the support of the spouses and
the custody and support of their common
children. The court shall give paramount
consideration to the moral and material welfare
of said children and their choice of the parent
with whom they wish to remain. It shall also
provide for appropriate visitation rights of the
other parent. (Art 49)
From the common mass of property, support
shall be given to the surviving spouse and to the
children during the liquidation of the
inventoried property and until what belongs to
them is delivered. But from this shall be
deducted that amount received for support
which exceeds the fruits or rents pertaining to
them.
During the proceedings for legal separation
or for annulment of marriage, and for
41 | P a g e
declaration of nullity of marriage, the spouses
and their children shall be supported from the
property regime. After the final judgment
granting the petition, the obligation of mutual
support between the spouses ceases. However,
in cases of legal separation, the Court may order
that the guilty spouse shall give support to the
innocent one.
Effects of DECREE of Legal Separation (after the
lapse of the period to appeal)
1. The spouses are entitled to live separately,
but the marriage bonds shall not be severed.
(Art 63 [1], FC)
2. Innocent spouse is entitled to support from
the guilty spouse not vice-versa.
3. The status and condition of children are not
affected.
4. The property regime shall be dissolved
and liquidated but the offending party shall have
no right to any share of the net profits earned by
the property regime, and shall be forfeited in
favor of the common children or, if none, the
children of the guilty spouse by a previous
marriage or, in default of children, the innocent
spouse [this is in accordance with Art. 43 (2)].
(Art 63 [2], FC)
5. The custody of the minor children shall be
awarded to the innocent spouse subject to the
provisions of Art 213. (Art 63 [3], FC)
Art. 213: in case of separation of the parents,
parental authority shall be exercised by the
parent designated by the Court. The Court shall
take into account all relevant considerations,
especially the choice of the child over 7 years of
age, unless the parent chosen is unfit. No child
under 7 years of age shall be separated from the
mother, unless the court finds compelling
reasons to order otherwise.
6. The offending spouse shall be disqualified
from inheriting from the innocent spouse by
intestate succession. Moreover, Provisions in
favor of the offending spouse made in the will of
the innocent spouse shall be revoked by
operation of law.
NOTES:
 If, however, the offended spouse executes
another will in favor of the offending spouse
after the decree of legal separation, the will
shall be valid.
 The conviction of the wife of adultery does
not disqualify her to inherit from the offended
husband, if there is no decree of legal
separation between them. Accordingly, the
guilty spouse shall not be disqualified from
inheriting unless the innocent spouse files a
case for legal separation.
7. Art. 64: the innocent spouse may revoke the
donations made by him or her in favor of the
offending spouse, as well as the designation of
the guilty party as a beneficiary in any
insurance policy, even if such designation be
stipulated as irrevocable.
The revocation shall be recorded in the registry
of property in the places where the properties
are located. Alienations, liens and
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
encumbrances registered in good faith before
the recording of the revocation shall be
respected. The revocation of or change in the
designation in any insurance beneficiary shall
take effect upon written notification to the
insured.
The action to revoke donation must be brought
within 5 years from the time the decree of legal
separation has become final.
Reconciliation
This is a mutual agreement of the spouses to
resume their marital relationship, thus putting an end
to their marital differences.
Requirements in Case of Reconciliation
Should the spouses reconcile, the corresponding
joint manifestation under oath duly signed by them
shall be filed with the Court in the same proceeding
for legal separation. (Art 65)
Effects of reconciliation (Art 66):
1. The legal separation proceedings, if still
pending, shall thereby be terminated in whatever
stage.
2. The final decree of legal separation shall
be set aside, but the separation of property and
any forfeiture of the share of the guilty spouse
already effected shall subsist, unless the
spouses agree to revive their former property
regime.
The agreement to revive the former property
regime shall be executed under oath and shall
specify (Art 67):
a. The properties to be contributed anew to the
restored regime.
b. Those to be retained as separated
properties of each spouse.
c. The names of all their known creditors,
addresses and corresponding credits.
The agreement of revival and the motion for its
approval shall be filed with the Court in the same
proceeding for legal separation, with copies of
both furnished to the creditors named therein.
After due hearing, the Court shall take measures
to protect the interest of creditors and such order
shall be recorded in the proper registry of
property.
Notice to creditors: The recording of the order
in the registries of property shall not prejudice
any creditor not listed or not notified, unless the
debtor-spouse has sufficient separate property
to satisfy the creditor’s claim.
In other words, the revival of the old property
regime between the parties is without prejudice
to vested rights already acquired by creditors
prior to such revival. In effect, a legal lien is
created in favor of unsecured creditors. Thus:
a. Contractual lien holders retain their liens.
b. Creditors without liens are given a legal lien.
c. In case of insufficiency of property to settle
the debts, the future shares of debtor-
spouse in the property regime will answer
his personal obligations.
42 | P a g e
NOTES:
Reconciliation has no retroactive effect.
The order of the court ordering the termination of
the legal separation proceeding and the setting
aside of the decree of legal separation shall be
registered in the proper civil registries for the
guidance of all interested parties
RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE (Arts 68 – 73)
Obligations Of Spouses: FLORM
1. To live together
The duty to live together includes cohabitation or
consortium and sexual intercourse.
Spouses are obliged to live together. But such is
not absolute. Thus a spouse may be exempted
by the court from living with the other spouse:
1. If the latter should live abroad; or
2. there are other valid and compelling reasons
for the exemption; like the following where
the wife may refuse to live with the husband:
a. If the place chosen by the husband as
family residence is dangerous to her life.
b. If the husband subjects her to
maltreatment or abusive conduct or
insults, making common life impossible.
c. If the husband compels her to live with
his parents, but she cannot get along
with her mother-in-law and they have
constant quarrels.
d. Where the husband continuously carried
illicit relations for 10 years with different
women and treated his wife roughly and
without consideration.
e. Where the husband spent his time in
gambling, giving no money, and at the
same time insulting his wife and laying
hands on her.
f. If the husband has no fixed residence
and lives a vagabond life as a tramp.
g. When the husband is carrying on a
shameful business at home.
h. If the husband is immoderate or barbaric
in his demands for sexual intercourse.
NOTE: However, such exemption shall not apply
if the same is not compatible with the solidarity
of the family.
In cases where a husband or a wife abandons
the conjugal home without justifiable cause,
neither the other spouse can compel him or her
to come home under the pain of contempt of
court. Cohabitation is a purely personal
obligation, and to compel a spouse to comply
with such obligation would be a violation of
his/her personal liberty as well as his/her
freedom of abode which are guaranteed by the
Constitution.
But the present spouse has the following
remedies:
a. To withhold support or ask for support.
b. To recover moral damages.
c. To seek legal separation if proper.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
d. To ask the Court to admonish his wife to
return, but she cannot be held in contempt in
case of non-performance; also, no
mandamus or injunction will lie.
e. To seek separation of property.
f. To apply for sole administration of the
property.
g. To ask the court for other relief.
2. To observe mutual love, respect and fidelity
These duties are personal to the spouses and
go into their intimate relations, so that they must
be performed voluntarily by them. Accordingly,
some consequences of the duties are the
following:
a. The unfaithful spouse may be charged
criminally with adultery or concubinage.
(proof of having an illegitimate child is not a
proof of concubinage; each act of adultery is
a separate offense)
b. Sexual infidelity and perversion are also
grounds for legal separation, and so is
repeated physical violence or grossly
abusive conduct directed against a spouse
by the other, which shows lack of love and
respect for the former.
c. Both spouses to administer the family
property, and they also have joint parental
authority over their minor children, both over
their persons and property.
d. If one spouse commits acts which tend to
bring danger, dishonor, or injury to the other,
the aggrieved spouse may apply to the
Court for relief.
RULE 130, Rules of Evidence on Marriage
Privilege Rule and Marital Communication
Rule
Disqualification By Reason Of Marriage Or
The Marital Disqualification Rule
GENERAL RULE: During the marriage neither
spouse ( i.e. the witness spouse) may testify for
or against the other (i.e. the Party spouse)
without the consent of the affected spouse ( i.e.
the party spouse).
EXCEPTIONS:
1. In a civil case filed by one against the other.
Examples: cases of annulment, legal
separation, support, declaration of mental
incompetency, separation of property.
2. In a criminal case for a crime (i) committed
by one against the other such as those
involving physical assault and violence;
Violation of RA 9262; economic abuse or (ii)
against the direct ascendant or descendant
of the other. (Problem: If the husband raped
his daughter, can the wife who witnessed
the rape testify against the husband? YES.
The husband cannot invoke Marital
Disqualification Rule in order to serve the
end of justice)
3. When the reason for the law has ceased.
Where the marital and domestic relations
are so strained that there is no more
harmony to be preserved, nor peace and
tranquility which maybe disturbed, the
reasons based on such harmony and
43 | P a g e
tranquility no longer apply. In such cases,
the identity of interest disappears and the
consequent danger of perjury based on
identity of interest disappears. (The law
ceases when the reason for the law ceases)
The Marital Privileged Communication
Disqualification Rule (Spousal Privilege)
GENERAL RULE: The husband or wife, during
or after the marriage, cannot be examined
without the consent of the other as to any
communication received in confidence by one
from the other during the marriage.
EXCEPTIONS: Same in the Marital
Disqualification Rule.
3. To render mutual help and support
The spouses are jointly responsible for the
support of the family (both spouses and
children) and the management of the household.
The expenses for such support and other
conjugal obligations shall be paid from:
a. the community property;
b. in the absence thereof, from the income or
fruits of their separate properties; and
c. In case of insufficiency or absence of said
income fruits, such obligations shall be
satisfied from their separate properties. (Art.
70, FC)
4. To Manage the household
The management of the household shall be the
right and the duty of both spouses. The
expenses for such management shall be paid in
accordance with the provisions of Article 70.
(Art 71)
5. To Fix the family domicile
In case of disagreement, the court shall decide.
(Art 69)
Relief Against Breach Of Duties
When one of the spouses neglects his or her duties
to the conjugal union or commit acts which tend to
bring danger, dishonor or injury to the other or to the
family, the aggrieved party may apply to the Court
for relief.
Note: Injury contemplated: not economic or financial
injury but physical, moral, emotional or psychological
injury.
Exercise Of Profession/Business (Art 73)
General rule: Either spouse may exercise any
legitimate profession, occupation, business or
activity without the consent of the other. The latter
may object only on valid, serious and moral grounds.
Exception: In case of disagreement, the Court shall
decide whether or not:
a. The objection is proper.
b. Benefit has accrued to the family prior to the
objection or thereafter. If the benefit accrued
prior to the objection, the resulting obligation
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
shall be enforced against the community
property. If benefit accrued thereafter, such
obligation shall be enforced against the separate
property of the spouse who has not obtained
consent (even if redounded to the benefit of the
family).
Notes: The foregoing provisions shall not prejudice
the rights of creditors who acted in good faith.
Creditors in good faith are those who have no
knowledge of the objection or no knowledge of
absence of consent.
PROPERTY RELATIONS BETWEEN SPOUSES
Marriage settlement/Ante Nuptial Agreement
Definition and Purpose
It is the contract entered into by a man and a woman
who intend or plan to get married fixing the property
regime that will govern their present and future
properties during their marriage. The future spouses
may, in the marriage settlements, agree upon the
regime of absolute community property, conjugal
partnership of gains, complete separation of property
or any other regime. In the absence of a marriage
settlement, or when the regime agreed upon is void,
the system of absolute community property shall
govern (Art 75).
The property relations between husband and wife
shall be governed in the following order (Art 74):
a. Marriage Settlements – agreement of future
spouses before the marriage upon the regime of
ACP, CPG, complete separation of property, or
any other regime.
b. Family Code – if there is no marriage settlement
or when the marriage settlement is void, the
system of ACP shall govern.
c. Local Customs (provided not contrary to law,
good morals, good customs, public order, and
public policy)
Note: A minor cannot enter into a marriage
settlement even with the consent of his/her parents.
Only those who are of legal/majority age (at least 18
years of age) can do so.
Forms and Essential Elements
1. In writing (Need not be in a public instrument)
2. Signed by the parties
3. Executed before the celebration of the marriage
(Art 77)
4. To fix the terms and conditions of their property
relations
Terms, Conditions and Stipulations
The future spouses may agree what property regime
that will govern their present and future properties.
Such terms, conditions and stipulations shall not be
contrary to law, morals, good customs and public
policy
If the Party to the Marriage Settlement Needs
Parental Consent
44 | P a g e
If the party executing the settlement needs parental
consent, the persons designated in Art.14 to give
consent must be made parties to the agreement (Art
78)
If the Party to Marriage Settlement Under Civil
Interdiction
If the party executing the marriage settlement is
under civil interdiction or subject to any other
disability (like imbecility), the guardian appointed by
a competent court must be made a party thereto (Art
79) His capacity is restricted by law.
Binding Effect of Marriage Settlement
GENEREAL RULE: Binding only between the
parties.
EXCEPTION: Binding to 3rd persons IF the marriage
settlement is registered with the LCR where the
marriage contract is recorded as well as in the
proper Registries Of Property where the property is
located. (Art 77)
Effectivity of Marriage Settlement
The marriage settlement shall take effect upon the
celebration of marriage.
Modifications In The Marriage Settlement
1. Before Marriage
In order that any modification in the marriage
settlements may be valid, it must be made
before the celebration of the marriage.
Any modification thereof shall be in writing,
signed by the parties and executed before the
celebration of the marriage. They shall not
prejudice 3rd persons unless they are registered
in the LCR where the marriage contract is
recorded as well as in the proper registries of
property. (Art 77)
2. After Celebration of Marriage
There must be an order of a competent court in
appropriate proceedings. Some instances where
modification is proper are: in case of
reconciliation; abandonment; in case there is a
ground for judicial separation; or in case of joint
filing.
Governing Law (Art 80)
In the absence of a contrary stipulation in the
marriage settlements, the property relations of the
spouses shall be governed by Philippine laws,
regardless of the place of the celebration of the
marriage and their residence.
This rule shall not apply:
1. Where both spouses are aliens.
2. With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines
and executed in the country where the property
is located.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

3. With respect to the extrinsic validity of contracts YES. There is no prohibition. As to what form, follow
entered into in the Philippines but affecting the rules on ordinary donations.
property situated in a foreign country whose
laws required different formalities for their Who can Donate in Donation Propter Nuptias
extrinsic validity.
Any of the future spouses in favor of the other OR by
Effect if Marriage Does not Take Place (Art 81) a 3rd person in favor of one or both of the future
spouses.
GENERAL RULE: Everything stipulated in the
settlements or contracts referred to in consideration Prohibition against Donation to Each Other
of a future marriage, including donations between
the prospective spouses made therein, shall be 1. Before Marriage (Art 84, FC)
rendered VOID if the marriage does not take place.
GENERAL RULE: cannot donate to each other
REASON: Marriage is a condition precedent to the in their marriage settlements more than 1/5 of
effectivity of the marriage settlement. their present property. Any excess shall be
considered void.
EXCEPTION: Stipulations that do not depend upon
the celebration of the marriage shall be valid (e.g. Requisites:
Acknowledgment by the prospective husband of a a. Made before the celebration of marriage
natural child in the marriage settlement and b. In celebration of marriage
acknowledgment of previous subsisting c. In favor of one or both future spouses
indebtedness of one to the other).
EXCEPTION: If they are governed by ACP.
Donations By Reason Of Marriage
Donation of future property
Donation Propter Nuptias / Donations By Reason
Of Marriage - are those which are made before While donations of future property are not
marriage celebration, in consideration of the same, allowed in ordinary donations, they are allowed
and in favor of one or both of the FUTURE spouses. in donations propter nuptias. Donations propter
(Art 82) nuptias of future property shall be governed by
the provisions on testamentary succession
Requisites: and the formalities of wills.
1. Must be made before the celebration of the
marriage. Is the will which contains a donation propter
2. Must be made in consideration of the marriage. nuptias revocable?
3. Must be made in favor of one or both of the
future spouses. General Rule: Yes, it is revocable. (unlike in
donations of present properties in the marriage
Donation propter Ordinary donations settlements which cannot be revoked except if
nuptias the marriage does not take place, since
Does not require Express acceptance is marriage settlements cannot be modified much
express acceptance necessary less revoked after the marriage)
May include future Cannot include future
property provided property Exception: Donation cannot be revoked if the
donation mortis causa marriage already took place.
If present property is No limit to donation of
donated and property present property Donations Of Property With Encumbrance
regime is not absolute provided legitimes are
community, limited to 1/5 not impaired Donations by reason of marriage of property
Grounds for revocation Grounds for revocation subject to encumbrance shall be valid. In case of
are found in Art. 86 of are found in law on foreclosure of the encumbrance and the
FC donations: Art 760 (birth property is sold for less than the total amount of
and reappearance of the obligation secured, the donee shall not be
children), Art 764 (non- liable for the deficiency. If the property is sold for
performance of condition) more than the total amount of said obligation,
and Art 765 (acts of the donee shall be entitled to the excess.
ingratitude)
Governed by the rules Governed by the ordinary 2. During Marriage (Art 87)
on donations except rules on donations
donations of future except donations mortis GENERAL RULE: Every donation or grant of
property which are causa which is governed gratuitous advantage, direct or indirect, between
governed by provisions by the formalities of wills the spouses during the marriage shall be VOID.
on testamentary The prohibition shall also apply to person living
succession and the together as husband and wife without a valid
formalities of wills marriage (see Matabuena v. Cervantes, 38
SCRA 284).
May a Marriage Settlement Contain a Donation
Propter Nuptias? If yes, in what form? REASONS:
a. To prevent the weaker spouse form being
influenced by the stronger spouse, whether
45 | P a g e
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

by abuse of affection or by threats or final EXCEPT when the

violence. ground is sexual infidelity
b. To protect creditors. in the form of adultery
c. To prevent an indirect modification of the and concubinage
marriage settlement during the marriage. because in the latter
case, the donation is
EXCEPTIONS: void.
a. moderate gifts (and beneficiary in an If it is with a resolutory 5 years from the
insurance policy) which the spouses may condition and the happening of the
give each other on the occasion of any condition is complied condition
family rejoicing. with
b. Donation mortis causa. If donation was made by
the spouse in favor of
the other, no prescription
Effectivity / Commencement of Donation Propter because under Art 1109,
Nuptias prescription does not run
between husband and
It shall take effect upon the celebration of marriage. wife, even though there
be separation of property
Who may question validity of donation? agreed upon in the
marriage settlement.
Only a person prejudiced thereby, like the donor or When the donee has Art. 765: 1 year from
his heirs. An heir may question the donation made committed an act of donor’s knowledge of the
on the ground of inofficiousness if it can impair his ingratitude fact of ingratitude
legitime.

Revocation of Donation; Grounds and Absolute Community of Property

Prescribed Period to Revoke (Art 86)
Grounds Prescriptive Period
If the marriage is not 5 years (Art 1149, NCC)
celebrated (except from the time marriage is
donations contained in not solemnized on the
the marriage settlement fixed date.
which are automatically
rendered void if the
marriage does not take
place)
If judicially declared By operation of law if
void for non-compliance done-spouse contracted
with Art 40 in rel to Arts subsequent void
52-53 and Art 44 marriage in bad faith
If both of them are in
good faith, 5 years from
the finality of judicial
declaration of nullity
If judicially declared 5 years from the finality
void on grounds other of judicial declaration of
than Art 40 in rel to Arts nullity
52-53 and Art 44
When the marriage 5 years from the time of
takes place without the knowledge that the
consent of parents or needed consent was not
guardian as required by obtained by the
law party/parties
When the marriage is 5 years from finality of
annulled, and the decree (if we follow the
donee acted in bad rule that Art 86[3], the
faith latest provision shall
prevail over Art 43[3], the
prior provison)
If we follow Art 43[3] in
keeping with the spirit of
the law, the donation is
revoked by operation of
law.
Upon legal separation, 5 years from the time the
the donee being the decree of legal
guilty spouse separation has become
46 | P a g e
Concept
ABSOLUTE COMMUNITY OF PROPERTY (ACP) –
there is merger of all the properties of the husband
and the wife owned by them at the time of the
celebration of the marriage or those acquired
thereafter.
When Mandatory
When there is no marriage settlement or when there
is but it is void. This is so because it is more in
keeping with Filipino culture.
Commencement of ACP
Art. 88. The absolute community of property
between spouses shall commence at the precise
moment that the marriage is celebrated. Any
stipulation, express or implied, for the
commencement of the community regime at any
other time shall be void.
Effect of Waiver of Rights
1. Before the Marriage – Waiver is valid.
2. During the Marriage
GENERAL RULE: Art. 89. No waiver of rights,
shares and effects of the absolute community of
property during the marriage can be made.
EXCEPT: In case of judicial separation of
property.
When the waiver takes place upon a judicial
separation of property, or after the marriage has
been dissolved or annulled, the same shall
appear in a public instrument and shall be
recorded as provided in Article 77. The creditors
of the spouse who made such waiver may
petition the court to rescind the waiver to the
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
extent of the amount sufficient to cover the
amount of their credits.
3. After Dissolution of Marriage – Waiver is valid for
then it is considered assignment of rights,
interests, shares, and effects in the absolute
community of property.
Co-Ownership
Art. 90. The provisions on co-ownership shall apply
to the absolute community of property between the
spouses in all matters not provided for in this
Chapter.
ACP is a special type of co-ownership as the
spouses are co-owners of their communal
properties.
Property Included
Art. 91. Unless otherwise provided in this Chapter
or in the marriage settlements, the community
property shall consist of all the property owned by
the spouses at the time of the celebration of the
marriage or acquired thereafter.
Also, winnings in gambling are included.
NOTE: Art. 93. Property acquired during the
marriage is presumed to belong to the community,
unless it is proved that it is one of those excluded
therefrom.
Registration of property in the name of “X married to
Y” is no proof that the properties were acquired
during their marriage. The property could have been
acquired by X while he was still a bachelor but
registered after his marriage. Nonetheless, the
presumption is not rebutted by the mere fact that the
deed of sale or certificate of title is in the name of
only one spouse.
Property Excluded (Art 92)
1. Property excluded from ACP in the marriage
settlement.
2. 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.
Note: Donation propter nuptias made by 1 future
spouse in favor of the other shall not form part of
the ACP because the property donated was
acquired during the marriage (the donation
propter nuptias took affect upon celebration of
marriage) by gratuitous title, thus separate
property of the done.
3. Property for personal and exclusive use of either
spouse. However, jewelry shall form part of the
community property.
e.g. clothes, shoes, eyeglasses and the like
4. Property acquired before the marriage by either
spouse who has LEGITIMATE DESCENDANTS
47 | P a g e
by a former marriage, and the fruits as well as
the income, if any, of such property.
REASON: To protect the presumptive legitimes
of the legitimate descendants. The rule will not
apply if the descendants are illigetimate.
Charges and Obligations of the Absolute
Community
Art. 94. The absolute community of property shall
be liable for: (SADD-E2VAT2)
(1) The support of the spouses, their common
children, and legitimate children of either
spouse; however, the support of illegitimate
children shall be governed by the provisions of
this Code on Support.
(2) All debts and obligations contracted during the
marriage by the designated administrator-
spouse for the benefit of the community, or by
both spouses, or by one spouse with the
consent of the other.
(3) Debts and obligations contracted by either
spouse without the consent of the other to the
extent that the family may have been benefited.
What if the obligation contracted did not redound
to the benefit of the Family? Is the ACP still
liable?
According to Jurado, yes, the ACP is still
liable. It is submitted that the provision of Art 122
of the FC is applicable by analogy, but subject to
the following requisites: first, lack of exclusive
property of the spouse who contracted the
obligation; and second, satisfaction of the basic
obligations under Art 94 of the FC. Once the
obligation has been paid, the latter spouse
becomes a debtor of the ACP and at the time of
the liquidation, he shall be charged for what has
been paid.
Such debts shall be included for the
following reasons:
a. if the assets cannot be made liable, creditors
who have extended credit relying on the
existence of such assets would be unduly
prejudiced.
b. Debts contracted during the marriage are
certainly more pressing than those
contracted before such marriage.
It is, however, necessary, as a matter of
justice, that all or most of such conjugal
assets should have been acquired through
the effect or industry of the spouse-debtor.
Otherwise, Art 122 of the FC shall be
applied literally and the ACP cannot then be
held liable.
(4) All taxes, liens, charges and expenses, including
major or minor repairs, upon the community
property.
(5) All taxes and expenses for mere preservation
made during marriage upon the separate
property of either spouse used by the family.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
(6) Expenses to enable either spouse to commence
or complete a professional or vocational course,
or other activity for self-improvement.
(7) Antenuptial debts of either spouse insofar as
they have redounded to the benefit of the family.
(8) The value of what is donated or promised by
both spouses in favor of their common legitimate
children for the exclusive purpose of
commencing or completing a professional or
vocational course or other activity for self-
improvement.
(9) Antenuptial debts of either spouse other than
those falling under paragraph (7) of this Article,
the support of illegitimate children of either
spouse, and liabilities incurred by either spouse
by reason of a crime or a quasi-delict, in case of
absence or insufficiency of the exclusive
property of the debtor-spouse, the payment of
which shall be considered as advances to be
deducted from the share of the debtor-spouse
upon liquidation of the community.
(10) Expenses of litigation between the spouses
unless the suit is found to be groundless.
NOTES:
1. If the community property is insufficient to cover
the foregoing liabilities, except those falling
under paragraph (9), the spouses shall be
solidarily liable for the unpaid balance with their
separate properties.
2. Art. 95. Whatever may be lost during the
marriage in any game of chance, betting,
sweepstakes, or any other kind of gambling,
whether permitted or prohibited by law, shall be
borne by the loser and shall not be charged to
the community but any winnings therefrom shall
form part of the community property.
The winnings derived from a ticket gratuitously
given to a spouse shall not form part of the
community property since such is considered as
donation, thus excluded from the ACP as well as
the fruits and income thereof.
Ownership, Administrative, Enjoyment and
Disposition of the Community Property
GENERAL RULE: Art. 96. The administration and
enjoyment of the community property shall belong to
both spouses JOINTLY.
EXCEPTIONS:
1. In case of disagreement, the husband's decision
shall prevail.
Remedies in Case of Disagreements
Wife’s recourse is go to court for proper remedy,
which must be availed of within 5 years from the
date of the contract implementing such decision.
2. In the event that one spouse is incapacitated or
otherwise unable to participate in the
administration of the common properties, the
other spouse may assume sole powers of
administration.
48 | P a g e
These powers do not include:
Disposition or encumbrance without authority
of the court or the written consent of the
other spouse.
In the absence of such authority or consent, the
disposition or encumbrance shall be VOID.
However, the transaction shall be construed as
a continuing offer on the part of the consenting
spouse and the third person, and may be
perfected as a binding contract upon the
acceptance by the other spouse or authorization
by the court before the offer is withdrawn by
either or both offerors.
Disposition by Will
Art. 97. Either spouse may dispose by will of his
or her interest (not specific property because of
co-ownership) in the community property.
Donation of Communal Property, Prohibited
GENERAL RULE: Art. 98. Neither spouse may
donate any community property without the
consent of the other. (This rule applies to
commom-law spouses)
If with the consent of the other, the donation is
valid subject to revocation or reduction if it turns
out to be inofficious or if it infringes the legitimes
of compulsory heirs.
REASON: To protect the spouse from the
prodigality of a reckless or faithless spouse.
EXCEPTIONS:
Either spouse may, without the consent of the
other:
a. make moderate donations from the
community property for charity;
b. make moderate donations from the
community property on occasions of family
rejoicing or family distress.
NOTE: What is moderate depends upon the
financial and social standing of the family and
must not at all substantially affect the value of
the communal assets.
Dissolution and Liquidation of Absolute
Community Regime, Grounds (Art. 99)
The absolute community terminates:
(1) Upon the death of either spouse;
NOTE: After the dissolution comes the
liquidation and partition. The surviving spouse
must liquidate the ACP within 1 year from death
of the deceased. After the lapse of 1 year
without liquidation, any disposition involving the
community property shall be void.
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared
void (only in cases falling under Art 40 in rel to
Arts 52 and 53);
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
(4) In case of judicial separation of property
during the marriage under Article 134 to 138.
(5) Termination of a subsequent marriage by filing
an affidavit of reappearance under Art 41, ACP
of the subsequent marriage is dissolved. (Art 43)
Effects of Separation De Facto
SEPARATION DE FACTO - The spouses are no
longer living together. Their cohabitation or common
life under the same roof is terminated, although
there is no legal separation between them.
Art. 100. The separation in fact between husband
and wife shall not affect the regime of absolute
community except that:
(1) The spouse who leaves the conjugal home or
refuses to live therein, without just cause, shall
not have the right to be supported;
(2) When the consent of one spouse to any
transaction of the other is required by law,
judicial authorization shall be obtained in a
summary proceeding;
(3) In the absence of sufficient community property,
the separate property of both spouses shall be
solidarily liable for the support of the family. The
spouse present shall, upon proper petition in a
summary proceeding, be given judicial authority
to administer or encumber any specific separate
property of the other spouse and use the fruits
or proceeds thereof to satisfy the latter's share.
Liquidation of the Absolute Community Assets
and Liabilities, Procedure
Art. 102. Upon dissolution of the absolute
community regime, the following procedure shall
apply:
1. An inventory shall be prepared, listing separately
all the properties of the absolute community and
the exclusive properties of each spouse.
2. The debts and obligations of the absolute
community shall be paid out of its assets. In
case of insufficiency of said assets, the spouses
shall be solidarily liable for the unpaid balance
with their separate properties in accordance with
the provisions of the second paragraph of Article
94.
3. Whatever remains of the exclusive properties of
the spouses shall thereafter be delivered to each
of them.
4. The net remainder of the properties of the
absolute community shall constitute its net
assets, which shall be divided equally between
husband and wife unless a different proportion
or division was agreed upon in the marriage
settlements, or unless there has been a
voluntary waiver of such share provided in this
Code. For purpose of computing the net profits
subject to forfeiture in accordance with Articles
43, No. (2) and 63, No. (2), the said profits shall
be the increase in value between the market
49 | P a g e
value of the community property at the time of
the celebration of the marriage and the market
value at the time of its dissolution.
5. The presumptive legitimes of the common
children shall be delivered upon partition, in
accordance with Article 51.
6. Unless otherwise agreed upon by the parties, in
the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall
be adjudicated to the spouse with whom the
majority of the common children choose to
remain. Children below the age of seven years
are deemed to have chosen the mother, unless
the court has decided otherwise. In case there in
no such majority, the court shall decide, taking
into consideration the best interests of said
children.
Liquidation of ACP in case Termination of
Marriage is by Death
Art. 103. Upon the termination of the marriage by
death:
a. The community property shall be liquidated in
the same proceeding for the settlement of the
estate of the deceased.
b. If no judicial settlement proceeding is instituted,
the surviving spouse shall liquidate the
community property either judicially or extra-
judicially within 1 year from the death of the
deceased spouse. If upon the lapse of 1 year
period, no liquidation is made, any disposition or
encumbrance involving the community property
of the terminated marriage shall be void.
Effects if the ACP is Not Liquidated After 1 Year
from Death of Deceased Spouse
a. Any disposition or encumbrance involving the
community property of the terminated marriage
shall be void.
b. Should the surviving spouse contract a
subsequent marriage without compliance with
the foregoing requirements, a mandatory regime
of complete separation of property shall govern
the property relations of the subsequent
marriage. (Art 103, FC)
Liquidation of ACP of 2 or more Marriages
Contracted by the Same Person before the
Effectivity of FC
Whenever the liquidation of the community
properties of two or more marriages contracted by
the same person before the effectivity of this Code is
carried out simultaneously, the following procedure
shall be applied in the absence of agreement of all
the heirs:
a. The respective capital, fruits and income of each
community shall be determined upon such proof
as may be considered according to the rules of
evidence.
b. In case of doubt as to which community the
existing properties belong, the same shall be
between the different communities in proportion
to the capital and duration of each.
Conjugal Partnership of Gains
Concept
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

distinct from the

CONJUGAL PARTNERSHIP OF GAINS – it is a personality of the
partners
partnership established through the marriage of a Purpose Not created for Created for profits
man and a woman who as partners place in a profits but regulates
common fund – (a) the proceeds, products, fruits property relations of
and income from their separate properties; (b) those husband and wife
during the marriage
acquired by either or both spouses through their Management Right of Rights of
efforts; or (3) those acquired by chance, and, upon management is management are
dissolution of the marriage or of the partnership, the joint; in case of the same to all as
net gains or benefits obtained by either or both disagreement, individual partners
decision of except when one or
spouses shall be divided equally between them, husband prevails more partners are
unless otherwise agreed in the marriage without prejudice to designated as
settlements. (Art. 106) the wife’s remedy managers.
to question the
decision.
Division of gains Equally divided Depends upon the
Distinctions between Conjugal Partnership irrespective of the agreement of the
amount of parties; in the
of Gains & Absolute Community contribution unless absence thereof
otherwise agreed upon the amount of
Property upon in the capital contributed
Basis CPG ACP marriage settlement by each partner
As to Basis Exclusive property All properties Causes for Death of either Death, insolvency;
of spouses are kept acquired by the dissolution party; decree of civil interdiction;
entirely separate spouses even legal separation; termination of the
and distinct from before marriage annulment or term; express will of
the benefits which become community declaration of nullity any partner; and
they acquired property. The basis of marriage; judicial others listed in Arts
during the is essentially trust separation of 1830 and 1831.
marriage. This is and confidence property during
not primarily based between the marriage
on mutual trust and spouses which will, Liquidation of Net No liquidation until Liquidation may be
confidence of the thus, foster unity Gains the partnership is made without
spouses and does between them. dissolved. dissolution of the
not enhance the partnership.
presumption of
solidarity between
them. Conjugal Partnership
Distinctions between
As to Retention of Each spouse Spouses do not
Property retains his/her retain any property of Gains & Co-Ownership
properties acquired acquired before Basis CPG Co-Ownership
prior to the marriage and all Creation Created by Created by law,
marriage but the properties they own operation of law contract,
fruits and income of at the time of succession,
such properties marriage become fortuitous event, or
form part of the part of the occupancy
conjugal properties community Purpose Not created for Common
during marriage. property. profits but regulates enjoyment of the
As to Dissolution Exclusive There are no property relations of thing or right owned
properties of the exclusive properties husband and wife in common
spouses are to be returned and during the marriage
returned upon upon dissolution of Management Right of Vested in the co-
dissolution of the the ACP, the management is owners who
partnership. spouses or their joint; in case of represent the
heirs equally divide disagreement, controlling interest
the net remainder decision of
of the properties. husband prevails
As to method of Entails identification Easier to liquidate without prejudice to
liquidation and return of since its net the wife’s remedy
exclusive properties remainder is merely to question the
of the spouses. divided equally decision.
between the Division of profits Equally divided Shares of co-
spouses or their irrespective of the owners shall be
heirs. amount of proportional to their
contribution unless respective interest
otherwise agreed
Distinctions between Conjugal Partnership of upon in the
marriage settlement
Gains & Ordinary Partnership Disposition of Spouses cannot Co-owners can
shares dispose of their dispose of their
Basis Conjugal Ordinary shares even with shares even without
Partnership Partnership the consent of the the consent of the
Creation Created by Created by spouses other co-owners
operation of law agreement of the Power to demand No power to Each co-owner may
parties partition demand partition demand anytime
Governing law Generally governed Generally governed save by virtue of the partition of the
by law by stipulations of judicial order thing owned in
the parties common
Commencement At the moment of On the date agreed Effect of death Partnership is Existence of co-
celebration of upon by the parties dissolved ownership is not
marriage affected
Legal Personality Not a juridical It is a juridical Dissolution Different from co- Different form CPG
person person with ownership
personality
separate and
50 | P a g e
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
When Applicable
1. Art. 105. In case the future spouses agree in
the marriage settlements that the regime of
conjugal partnership gains shall govern their
property relations during marriage.
2. When CPG were already established between
spouses before the effectivity of the FC, without
prejudiced to vested rights already acquired in
accordance with the NCC or other laws as
provided in Art 256 of the FC.
Applicability of Ordinary Partnership Rules
Art. 108. The conjugal partnership shall be
governed by the rules on the contract of partnership
in all that is not in conflict with what is expressly
determined in this Chapter or by the spouses in
their marriage settlements.
The Rules of Court on the administration of estates
of deceased persons shall be observed in the
appraisal and sale of property of the conjugal
partnership, and other matters which are not
expressly determined by law.
Note: The provisions of CPG in the Family Code
shall be of supplementary application to the
agreement of the parties. (Art 105)
Immutability of Matrimonial Property Regime
The provisions of the Chapter on CPG shall also
apply to conjugal partnerships of gains already
established between spouses before the effectivity
of FC, without prejudice to vested rights already
acquired in accordance with the Civil Code or other
laws, as provided in Article 256. In other words, the
original regime of property relations is maintained.
Commencement of the CPG - same as in ACP
Effect of Waiver of Rights, interest, share or
effects; rights of creditor as to such waiver -
same as in ACP
Property Included
The following are conjugal partnership properties
(Art 117):
By Direct Acquisition
a. Those obtained from the labor, industry, work or
profession of either or both of the spouses.
Teacher’s gratuity under special law, being
remuneratory, is not conjugal.
b. The fruits, natural, industrial, or civil due or
received during the marriage from the common
property, as well as the net fruits from the
exclusive property of each spouse (net fruits –
after deducting the expenses for administration
and preservation).
If fruits were pending on separate property of
spouse at the time of the marriage, the harvest
collected during the marriage is conjugal, and
the conjugal partnership is not bound to pay the
expenses of cultivation to the spouse who owns
51 | P a g e
the property from which the fruits were
harvested, because the right of the conjugal
partnership is a real right of usufruct. Therefore,
the law on usufruct shall apply.
NOTE:
Whenever an amount or credit payable within a
period of time belongs to one of the spouses,
the sums which may be collected during the
marriage in partial payments or by installments
on the principal shall be the exclusive property
of the spouse. However, interests falling due
during the marriage on the principal shall belong
to the conjugal partnership. (Art 119)
REASON: Interest is considered a fruit derived
from a particular property.
c. The share of either spouse in the hidden
treasure which the law awards to the finder or
owner of the property where the treasure is
found.
Hidden treasure found by the spouses on the
property of either of them is conjugal.
d. Those acquired through occupation such as
fishing or hunting.
e. Livestock existing upon the dissolution of the
partnership in excess of the number of each kind
brought to the marriage by either spouse.
f. Those which are acquired by chance such as
winnings from gambling or betting. However,
losses therefrom shall be borne exclusively by
the loser-spouse.
g. Property bought on installments paid partly from
exclusive funds of either or both spouses and
partly from conjugal funds belongs to the
conjugal partnership if such ownership was
vested during the marriage.
Belongs to the buyer or buyers if full ownerships
was vested before the marriage.
In either case, any amount advanced by the
partnership or by either or both spouses shall be
reimbursed by the owner or owners upon
liquidation of the partnership. (Art 118)
h. The ownership of improvements, whether for
utility or adornment, made on the separate
property of the spouses at the expense of the
partnership or through the acts or efforts of
either or both spouses shall pertain to the
conjugal partnership, or to the original owner-
spouse, subject to the following rules:
a. When the cost of the improvement made by
the conjugal partnership AND any resulting
increase in value are more than the value of
the property at the time of the improvement
– the entire property of one of the spouses
shall belong to the conjugal partnership,
subject to reimbursement of the value of
the property of the owner-spouse at the time
of the improvement (REVERSE
ACCESSION);
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
b. If improvement is lesser than the value of
the property at the time of improvement -
said property shall be retained in ownership
by the owner-spouse, likewise subject to
reimbursement of the cost of the
improvement (ACCESSION).
c. In either case, the ownership of the entire
property shall be vested upon the
reimbursement, which shall be made at the
time of the liquidation of the conjugal
partnership. (Art 120) Thus, the property
never ceased to be paraphernal property
until reimbursement.
Hence, prior to reimbursement at the time of
liquidation, the conjugal partnership may use
both the land and improvement, not as an
owner but in the exercise of a usufruct.
By Substitution
i. Those acquired by onerous title during the
marriage at the expense of the common fund,
whether the acquisition be for the partnership, or
for only one of the spouses (even place in the
name of one spouse).
By Presumption
j. Art. 116. All property acquired during the
marriage, whether the acquisition appears to
have been made, contracted or registered in the
name of one or both spouses, is presumed to
be conjugal unless the contrary is proved.
It is a condition sine qua non for the operation of
the presumption to prove first the acquisition of
property was made during the marriage.
Property Excluded/Exclusive Property of Each
Spouse
Art. 109. The following shall be the exclusive
property of each spouse:
By Direct Acquisition
1. That which is brought to the marriage as his or
her own.
A property purchased before the marriage and
fully paid during the marriage, remains to be
separate property. This notwithstanding the fact
that there was registration of the property in the
name of the owner spouse with the other spouse
as co-owner. The registration of the latter merely
creates a trust.
2. That which each acquires during the marriage
by gratuitous title.
Acquisitions include succession, devise or
legacy, donation, gratuity, remission, free patent,
unearned increment (increase in the value of the
property without any effort) and other modes
where no recompense is involve.
The law does not include fruits and income of
property received by gratuitous title as separate
property. This is different from ACP.
52 | P a g e
Notes:
Art. 113. Property donated or left by will to the
spouses, jointly and with designation of
determinate shares, shall pertain to the donee-
spouses as his or her own exclusive property,
and in the absence of designation, share and
share alike, without prejudice to the right of
accretion when proper (when not prohibited by
the donor). (See Art 753, NCC)
Art. 114. If the donations are onerous, the
amount of the charges shall be borne by the
exclusive property of the donee spouse,
whenever they have been advanced by the
conjugal partnership of gains. (the property
donated though onerous is still considered
exclusive property of the done-spouse)
Art. 115. Retirement benefits, pensions,
annuities, gratuities, usufructs and similar
benefits shall be governed by the rules on
gratuitous or onerous acquisitions as may be
proper in each case.
THUS, if the benefits are gratuitous, they are
generally considered to be exclusive properties
of the spouse, and if they are onerous, they are
generally considered to be conjugal.
ANNUITY – The aleatory contract of life annuity
binds the debtor to pay an annual pension or
income during the life of one or more determine
persons in consideration of a capital consisting
of money or other property whose ownership is
transferred to him at once with the burden of
income. (Art 2021, NCC)
He who constitutes an annuity by gratuitous title
upon his property, may provide at the time the
annuity is established that the same shall not be
subject to execution or attachment on account of
the obligations of the recipient of the annuity. IF
the annuity was constituted in fraud of creditors,
the latter may ask for the execution or
attachment of the property. (Art 2026, NCC)
The right to the annuity is at all times considered
to be exclusive property of the spouse.
GRATUITY – this is something voluntarily given
out of pure liberality, thus, exclusive property of
the beneficiary.
PENSIONS – given to the recipient for services
rendered, thus necessarily classifies as
conjugal.
Special rules on life insurance:
If beneficiary is the Insured Himself
Since a contract of insurance in onerous in
character, if the beneficiary is the insured
himself or his estate, the character of the
proceeds will depend on the character of the
premiums paid:
a. If the premiums were paid with conjugal
funds, the proceeds are conjugal.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
b. If the premiums were paid with separate
funds, the proceeds are separate.
c. If the premiums were paid partly with
conjugal funds, and partly with separate
funds, the proceeds will be partly conjugal
and partly separate.
Tolentino believes, however, that we should
follow the rule in Louisiana that if the policy of
the insurance was taken out when the insured
was still single, the proceeds thereof should go
to the insured’s separate estate even if the
premiums were paid out of conjugal funds, but
the conjugal partnership should be refunded by
the insured the amounts that it had paid as
premiums.
If the other spouse is the beneficiary
a. An insurance taken by one spouse on his
own life and with the other spouse as
beneficiary belongs to the latter even if the
premiums are paid out of conjugal funds, but
the beneficiary-spouse, who is deemed a
donee of the premiums paid, must return
one-half of the premiums to the conjugal
partnership.
b. When the spouses are jointly insured in a
single policy, the proceeds to be paid to the
surviving spouse, the survivor gets the
insurance proceeds even if no obligation to
return any part of the premiums to the
conjugal partnership, because there is
deemed to be reciprocal donations thereof,
which in effect constitute aleatory onerous
contracts.
c. When the insurance is taken by a third
person with a spouse as beneficiary, the
latter owns the insurance proceeds as it is
deemed a gift to him or her.
d. If the insurance is taken by the wife on the
life of the husband or vice versa and the
premiums are paid out of conjugal funds, the
proceeds are conjugal property.
e. If the beneficiary is somebody other than
the insured or his estate, the beneficiary is
the owner of the insurance indemnity
regardless of whether or not the premiums
were paid out of the insured’s separate
property or the conjugal funds.
f. If the insured made his estate as the
beneficiary and the premiums were paid by
conjugal funds, the proceeds of the
insurance constitute conjugal property.
By Substitution
3. That which is acquired by right of redemption (if
conjugal fund or the fund of the other spouse is
used to redeem, it must be reimbursed), by
barter or by exchange (not sale because such is
acquired by onerous title) with property
belonging to only one of the spouses.
4. That which is purchased with exclusive money
of the wife or of the husband.
Note: The exclusive property of the husband is
otherwise known as capital. While the exclusive
53 | P a g e
property of the wife is known as paraphernal
property.
Ownership, Administration, Enjoyment And
Disposition of Exclusive Property
Art. 110. The spouses retain the ownership,
possession, administration and enjoyment of their
exclusive properties. (Thus, a spouse cannot be
restrained from selling his/her exclusive property
even if such sale would deprive the conjugal
partnership of its fruits)
Either spouse may, during the marriage, transfer the
administration of his or her exclusive property to the
other (even to a stranger without the consent of the
other) by means of a public instrument, which shall
be recorded in the registry of property of the place
the property is located.
Art. 111. A spouse may mortgage, encumber,
alienate or otherwise dispose of his or her exclusive
property, without the consent of the other spouse,
and appear alone in court to litigate with regard to
the same.
Art. 112. The alienation of any exclusive property
of a spouse administered by the other automatically
terminates the administration over such property
and the proceeds of the alienation shall be turned
over to the owner-spouse.
Limitation: In case of separation de facto, the spouse
present may be given authority by the court to
administer any separate property of the absent
spouse. In case there is authority, the absent spouse
cannot revoke the judicially approved administration,
neither he can alienate his property without the
consent of the administrator spouse or approval of
the court. (Art 127)
Charges Against/Obligations of CPG
Art. 121. The same as in ACP, except:
 Support for illegitimate children - excluded from
CPG.
 Fines and pecuniary indemnities arising from
crime and quasi-delict – excluded from CPG but
incorporated in Art 122.
Art. 122. The payment of personal debts
contracted by the husband or the wife before or
during the marriage shall not be charged to the
conjugal properties partnership EXCEPT insofar as
they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities
imposed upon them be charged to the partnership.
HOWEVER, the payment of personal debts
contracted by either spouse before the marriage,
that of fines and indemnities imposed upon them, as
well as the support of illegitimate children of either
spouse, may be enforced against the partnership
assets after the responsibilities enumerated in the
preceding Article (Art 121) have been covered, if the
spouse who is bound should have no exclusive
property or if it should be insufficient; but at the time
of the liquidation of the partnership, such spouse
shall be charged for what has been paid for the
purpose above-mentioned.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Art. 123. Whatever may be lost during the
marriage in any game of chance or in betting,
sweepstakes, or any other kind of gambling whether
permitted or prohibited by law, shall be borne by the
loser and shall not be charged to the conjugal
partnership but any winnings therefrom shall form
part of the conjugal partnership property. (Same in
ACP)
Ownership, Possession, Enjoyment
Administration of CPG
GENERAL RULE: Art. 124. The administration and
enjoyment of the conjugal partnership shall belong to
both spouses jointly.
EXCEPTIONS:
a. In case of disagreement, the husband's decision
shall prevail.
Remedy in Case of Disagreement
Recourse to the court by the wife for proper
remedy, which must be availed of within 5 years
from the date of the contract implementing such
decision.
b. In case Sole Administration is Permitted
In the event that one spouse is incapacitated or
otherwise unable to participate in the
administration of the conjugal properties, the
other spouse may assume sole powers of
administration.
These powers do not include
Disposition or encumbrance without authority
of the court or the written consent of the
other spouse.
In the absence of such authority or consent, the
disposition or encumbrance shall be VOID.
HOWEVER, the transaction shall be construed
as a continuing offer on the part of the
consenting spouse and the third person, and
may be perfected as a binding contract upon the
acceptance by the other spouse or authorization
by the court before the offer is withdrawn by
either or both offerors.
Donation
Art. 125. Neither spouse may donate any
conjugal partnership property without the
consent of the other. However, either spouse
may, without the consent of the other, make
moderate donations from the conjugal
partnership property for charity or on occasions
of family rejoicing or family distress.
Dissolution of Conjugal Partnership Regime
Art. 126. The conjugal partnership terminates:
1. Upon the death of either spouse;
2. When there is a decree of legal separation;
3. When the marriage is annulled or declared void;
or
4. In case of judicial separation of property during
the marriage under Articles 134 to 138.
54 | P a g e
By:
Effects of Separation De Facto – Same in ACP
(Art 127)
Separation in fact v. Abandonment
Separation de facto is the termination of the
cohabitation or common life of the spouses
under the same roof, but the spouses might still
be complying with their mutual duty of support,
as well as their duty to support and maintain the
and children. Abandonment is not mere separation
de facto but implies an intention never to return
to the conjugal home and without providing for
the needs and maintenance of one’s family.
Abandonment in CPG, Concept – Same in
ACP (Art 128)
Procedure in Liquidation - Same as Absolute
Community of Property (Arts 129-133)
Art. 129. Upon the dissolution of the conjugal
partnership regime, the following procedure shall
apply:
(1) An inventory shall be prepared, listing separately
all the properties of the conjugal partnership
and the exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership in
payment of personal debts and obligations of
either spouse shall be credited to the conjugal
partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of
his or her exclusive funds in the acquisition of
property or for the value of his or her exclusive
property, the ownership of which has been
vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal
partnership shall be paid out of the conjugal
assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the
unpaid balance with their separate properties, in
accordance with the provisions of paragraph (2)
of Article 121.
(5) Whatever remains of the exclusive properties of
the spouses shall thereafter be delivered to each
of them.
(6) Unless the owner had been indemnified from
whatever source, the loss or deterioration of
movables used for the benefit of the family,
belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse
from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership
properties shall constitute the profits, which shall
be divided equally between husband and wife,
unless a different proportion or division was
agreed upon in the marriage settlements or
unless there has been a voluntary waiver or
forfeiture of such share as provided in this
Code.
(8) The presumptive legitimes of the common
children shall be delivered upon the partition in
accordance with Article 51.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

the parcel of land marriage.

(9) In the partition of the properties, the conjugal at 10K per month
dwelling and the lot on which it is situated shall, Parcel of land Yes. No. Exclusive property of H.
unless otherwise agreed upon by the parties, be inherited by H in
1988.
adjudicated to the spouse with whom the
Shares of stocks Yes. No.
majority of the common children choose to
registered under
remain. Children below the age of seven years W’s name in
are deemed to have chosen the mother, unless 1989.
the court has decided otherwise. In case there is Stock dividends Yes. Yes. Acquired during the
no such majority, the court shall decide, taking at 10K per year marriage.
into consideration the best interests of said House and Lot in Yes. Yes.
children. (181a, 182a, 183a, 184a, 185a) the name of both
spouses acquired
Art. 130. Upon the termination of the marriage by in 1995
death, the conjugal partnership property shall be Condo unit in the Yes. It depends upon the source
name of H of fund. If out of the conjugal
liquidated in the same proceeding for the settlement
acquired in 2000 fund, it belongs to CPG.
of the estate of the deceased. Ownership is not acquired by
registration but by law. If out
If no judicial settlement proceeding is instituted, the of exclusive fund of the
surviving spouse shall liquidate the conjugal husband, condo is his
partnership property either judicially or extra- exclusive property. If condo
judicially within 1 year from the death of the is worth 5M, 3M out of H
deceased spouse. If upon the lapse of the 1 year property and the 2M is taken
period no liquidation is made, any disposition or out from CPG. In such case
only 2M belongs to the CPG.
encumbrance involving the conjugal partnership
Parcel of land No. No.
property of the terminated marriage shall be void. inherited by W in
2000
Should the surviving spouse contract a subsequent Rental income of No. Yes. Net income during the
marriage without compliance with the foregoing the parcel of land marriage.
requirements, a mandatory regime of complete inherited by W at
separation of property shall govern the property 100K per annum
relations of the subsequent marriage.
Can a spouse dispose a property co-owned
Art. 131. Whenever the liquidation of the conjugal without the consent of the other spouse?
partnership properties of two or more marriages No, there must be written consent of the other
contracted by the same person before the effectivity spouse or judicial authorization.
of this Code is carried out simultaneously, the
respective capital, fruits and income of each How consent manifested
partnership shall be determined upon such proof as 1. Consent must be in writing (e.g. both spouses
may be considered according to the rules of must be named in a deed of sale; in the name of
evidence. In case of doubt as to which partnership one spouse with the marital consent of the
the existing properties belong, the same shall be other)
divided between the different partnerships in 2. Special Power of Attorney given to the other
proportion to the capital and duration of each. spouse.

Art. 132. The Rules of Court on the administration When is Judicial Authorization to Dispose
of estates of deceased persons shall be observed in Property Needed
the appraisal and sale of property of the conjugal 1. When one is granted sole administration of the
partnership, and other matters which are not property
expressly determined in this Chapter. 2. When the other spouse is insane or otherwise
incompetent
Art. 133. From the common mass of property
support shall be given to the surviving spouse and to Note: Lack of judicial authorization will not cure
the children during the liquidation of the inventoried the defect of no consent.
property and until what belongs to them is delivered;
but from this shall be deducted that amount Effect of No Consent in Writing in Sale
received for support which exceeds the fruits or
rents pertaining to them. Sale is void in its entirety. The nullity does not
extend to the share of the other spouse who did give
Problem: Determine whether the following properties consent and valid as to the share of the other who
are included in the ACP or CPG with the did not obtain the required consent. The sale is
presumption that the marriage between the Husband entirely void.
and Wife was validly entered into in 1990.
Property (ACP/CPG) executed as security for the
ACP CPG obtained loan without the consent of the other
Parcel of land Yes. No. If payable on installment spouse to be used as capital for business.
purchased in and still unpaid during the
1985 marriage, it depends when Encumbrance is valid provided there must be proof
the title/ownership is vested of benefit redounded to the family.
subject to the right of
reimbursement.
Rental income of Yes. Yes. Net income during the
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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Separation of Property
Voluntary Separation of Property
During the Marriage
Art. 134. In the absence of an express declaration
in the marriage settlements, the separation of
property between spouses during the marriage shall
not take place except by judicial order. Such judicial
separation of property may either be voluntary or
for sufficient cause.
Before the Marriage
Art. 143. Should the future spouses agree in the
marriage settlements that their property relations
during marriage shall be governed by the regime of
separation of property, the provisions of this Chapter
shall be suppletory.
Art. 144. Separation of property may refer to
present or future property or both. It may be total or
partial. In the latter case, the property not agreed
upon as separate shall pertain to the absolute
community.
Art. 145. Each spouse shall own, dispose of,
possess, administer and enjoy his or her own
separate estate, without need of the consent of the
other. To each spouse shall belong all earnings from
his or her profession, business or industry and all
fruits, natural, industrial or civil, due or received
during the marriage from his or her separate
property.
Art. 146. Both spouses shall bear the family
expenses in proportion to their income, or, in case of
insufficiency or default thereof, to the current market
value of their separate properties.
The liabilities of the spouses to creditors for family
expenses shall, however, be solidary.
Judicial Separation of Property
Grounds
Art. 135. Any of the following shall be considered
sufficient cause for judicial separation of property:
(1) That the spouse of the petitioner has been
sentenced to a penalty which carries with it civil
interdiction;
(2) That the spouse of the petitioner has been
judicially declared an absentee;
(3) That loss of parental authority of the spouse of
petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned
the latter or failed to comply with his or her
obligations to the family as provided for in Article
101;
(5) That the spouse granted the power of
administration in the marriage settlements has
abused that power; and
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(6) That at the time of the petition, the spouses have
been separated in fact for at least one year and
reconciliation is highly improbable.
Note: In the cases provided for in Numbers (1), (2)
and (3), the presentation of the final judgment
against the guilty or absent spouse shall be enough
basis for the grant of the decree of judicial
separation of property.
Procedure:
1. The spouses may jointly file a verified petition
with the court for the voluntary dissolution of the
absolute community or the conjugal partnership
of gains, and for the separation of their common
properties. (Art 136, par 1)
2. All creditors of the absolute community or of the
conjugal partnership of gains, as well as the
personal creditors of the spouse, shall be listed
in the petition and notified of the filing thereof.
The court shall take measures to protect the
creditors and other persons with pecuniary
interest. (Art 136 par 2)
3. During the pendency of the proceedings for
separation of property, the absolute community
or the conjugal partnership shall pay for the
support of the spouses and their children. (Art
137 par 2)
4. Once the separation of property has been
decreed, the absolute community or the conjugal
partnership of gains shall be liquidated in
conformity with this Code. (Art 137 par 1)
5. After dissolution of the absolute community or of
the conjugal partnership, the provisions on
complete separation of property shall apply. (Art
138)
6. The petition for separation of property and the
final judgment granting the same shall be
recorded in the proper local civil registries and
registries of property. (Art 139)
Note: The separation of property shall not prejudice
the rights previously acquired by creditors. (Art 140)
Mere agreement of the husband and wife to have a
separation of property reduced in an instrument
validly notarized is not valid. It must be submitted
before the court for approval. It is the duty of the
court to take precautionary measure to protect the
children.
Illustrations:
FACTS: There was a judicial separation of property
between H and W, which was initiated by W because
of H’s infidelity. The court adjudicated all real estate
located in the Phils in favor of W. H, an alien,
protested claiming that he contributed to the
purchased of those properties. HELD: H is not
entitled to his share over the subject real properties
for he is disqualified under the constitution. The only
way by which he can acquire real properties in the
Phils is by way of hereditary succession or if he is a
former natural-born Filipino citizen. Not even equity
can allow him to be entitled to reimbursement
because he did not come to court with clean hands.
FACTS: H in the 1st marriage has 4 children and in
the 2nd marriage has another 4 children; a property is
acquired during the 2nd marriage. HELD: Under the
NCC, the property acquired during the 2nd marriage,
the wife has only the right of usufruct. If the conjugal
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

is terminated upon death of the wife, the property will Summary of Grounds for Separation of Property
be considered H’s property. and revival of the Former Property

Article 135 (grounds Article 141 (revival of

Revival for separation of former property
property) regime)
Art. 141. The spouses may, in the same proceedings Civil interdiction When it terminates
where separation of property was decreed, file a Absentee When the absentee
motion in court for a decree reviving the property spouse reappears
regime that existed between them before the Loss of parental When parental authority
separation of property in any of the following authority is judicially restored
instances: Abandonment Resumption of common
life with each other
(1) When the civil interdiction terminates; Abuse of power of When the court
administration authorizes the
(2) When the absentee spouse reappears; resumption of the power
of administration
(3) When the court, being satisfied that the spouse Separated in fact Reconciliation and
granted the power of administration in the resumption of common
marriage settlements will not again abuse that life
power, authorizes the resumption of said Voluntary dissolution Revival of the former
administration; under Art. 136 property regime (no
voluntary separation of
(4) When the spouse who has left the conjugal home property may thereafter
without a decree of legal separation resumes be granted; the revival
common life with the other; shall be governed by Art.
67)
(5) When parental authority is judicially restored to
the spouse previously deprived thereof; Effect of dissolution of ACP or CPG:
(6) When the spouses who have separated in fact a. After dissolution, the provisions on complete
for at least one year, reconcile and resume separation of property shall apply.
common life; or b. Each spouse shall own, dispose, possess,
administer and enjoy his or her own separate
(7) When after voluntary dissolution of the absolute estate, without the need of the consent of the
community of property or conjugal partnership other. To each spouse shall belong all earnings
has been judicially decreed upon the joint from his or her profession, business or industry
petition of the spouses, they agree to the revival and all fruits, natural, industrial or civil, due or
of the former property regime. NO VOLUNTARY received during the marriage from his or her
SEPARATION OF PROPERTY MAY separate property.
THEREAFTER BE GRANTED. c. Both spouses shall bear the family expenses in
proportion to their income, or in case of
Note: The revival of the former property regime shall insufficiency or default thereon, to the current
be governed by Article 67. market value of their separate properties. The
liability of the spouses to creditors for family
expense shall be solidary.
When Administration of Exclusive Property be
Transferred to the Other Spouse
Property Regime Of Unions Without Marriage
Art. 142. The administration of all classes of
exclusive property of either spouse may be a. Void Marriages or Common-Law/Live-in
transferred by the court to the other spouse: Relationships – the property regime shall be
governed by simple co-ownership under Art 147.
(1) When one spouse becomes the guardian of the There is presumption of equality of shares in the
other; absence of contrary proof.
(2) When one spouse is judicially declared an Art. 147. When a man and a woman who are
absentee; capacitated to marry each other, live exclusively
with each other as husband and wife without the
(3) When one spouse is sentenced to a penalty benefit of marriage or under a void marriage,
which carries with it civil interdiction; or their wages and salaries shall be owned by
them in EQUAL SHARES and the property
(4) When one spouse becomes a fugitive from acquired by both of them through their work or
justice or is in hiding as an accused in a criminal industry shall be governed by the rules on co-
case. ownership.
Note: If the other spouse is not qualified by reason of In the absence of proof to the contrary,
incompetence, conflict of interest, or any other just properties acquired while they lived together
cause, the court shall appoint a suitable person to be shall be PRESUMED to have been obtained by
the administrator. their JOINT EFFORTS, WORK OR INDUSTRY,
and shall be owned by them in EQUAL
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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

SHARES. For purposes of this Article, a party

who did not participate in the acquisition by the Proof of Actual Contribution
other party of any property shall be deemed to 1. Receipts
have contributed jointly in the acquisition thereof 2. Agreements of the parties
if the former's efforts consisted in the care and
maintenance of the family and of the household.

Neither party can encumber or dispose by acts

inter vivos of his or her share in the property
acquired during cohabitation and owned in
common, without the consent of the other, until
after the termination of their cohabitation.

When only one of the parties to a void marriage

is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in
favor of their common children. In case of
default of or waiver by any or all of the common
children or their descendants, each vacant share
shall belong to the respective surviving
descendants. In the absence of descendants,
such share shall belong to the innocent party. In
all cases, the forfeiture shall take place upon
termination of the cohabitation.

b. Bigamous, Adulterous relationships – the

property regime is governed limited co-
ownership under Art 148. There is no
presumption of equal shares. There must be
proof of actual contribution.

Art. 148. In cases of cohabitation not falling

under the preceding Article, only the properties
acquired by both of the parties through their
ACTUAL JOINT CONTRIBUTION of money,
property, or industry shall be owned by them in
common in proportion to their respective
contributions. In the absence of proof to the
contrary, their contributions and corresponding
shares are presumed to be equal.

The same rule and presumption shall apply to

joint deposits of money and evidences of credit.

If one of the parties is validly married to another,

his or her share in the co-ownership shall accrue
to the absolute community or conjugal
partnership existing in such valid marriage. If the
party who acted in bad faith is not validly
married to another, his or her shall be forfeited in
the manner provided in the last paragraph of
the preceding Article.

The foregoing rules on forfeiture shall likewise

apply even if both parties are in bad faith.

Illustration:
FACTS: H is legally married to W. H has an illicit
affair with A. During the marriage, H acquired a
condo unit which was registered in the name of
A. During the time when H and A lived together,
they acquired 2 cars, they have savings account
of 5M and personal properties. After sometime,
H and A parted ways. A asks for her share
claiming that at the time of cohabitation she was
receiving salary. Is she entitled? HELD: NO.
With regard to the condo unit, A is only a trustee
for and in behalf of ACP or CPG. With respect to
2 cars, savings account, and personal
properties, there must be proof of actual
contribution.
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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
VII. THE FAMILY
FAMILY - the foundation of the nation, is a basic
social institution which public policy cherishes and
protects. Consequently, family relations are
governed by law and no custom, practice or
agreement destructive of the family shall be
recognized or given effect. (Art 149, FC)
Family Relations, Coverage
1. Between husband and wife;
2. Between parents and children;
3. Among other ascendants and descendants; and
4. Among brothers and sisters, whether of the full
or halfblood. (Art 150)
Suit Among Members of the Same Family /
Necessity of Earnest Efforts toward Compromise
NO suit between members of the same family shall
prosper UNLESS it should appear from the verified
complaint or petition that earnest efforts toward a
compromise have been made, but that the same
have failed. If it is shown that no such efforts were in
fact made, the same case must be dismissed. “
This rules shall not apply to cases which may not be
the subject of compromise under the Civil Code. (Art
151, FC)
Prohibited Compromise
No compromise upon the following questions shall
be valid: CJ-VAFF
1. Civil Status of persons (e.g action for
compulsory recognition or to impugn legitimacy)
2. Validity of marriage or a legal separation
3. Any ground for legal separation
4. Future support
5. Jurisdiction of courts
6. Future legitime (Art 2035, NCC)
Note: “There may be a compromise upon the civil
liability arising from an offense; but such
compromise shall not extinguish the public action for
the imposition of the legal penalty.” (Art 2034, NCC)
Q: H filed case against brothers of W. Brothers filed
Motion to Dismiss on the ground of lack of cause of
action (no showing of earnest effort to a
compromise). Should the motion be granted?
A: No because H and brothers of W are not
relatives under Art.150.
Note: Family relation between father and his
illegitimate child shall be recognized only if there
was recognition by the father that the child is his
illegitimate child.
Family Home
Definition
The family home, constituted jointly by the husband
and the wife or by an unmarried head of a family, is
the dwelling house where they and their family
reside, and the land on which it is situated. (Art. 152,
FC)
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How Constituted
The family home is deemed constituted on a house
and lot from the time it is occupied as a family
residence. (Art. 153, FC)
Who constitutes Family Home
The family home may be constituted jointly by the
husband and the wife or by an unmarried head of a
family.
Also, under Art. 161, a person may constitute, or be
the beneficiary of, only one family home.
Duration
From the time of its constitution and so long as any
of its beneficiaries actually resides therein, the family
home continues to be such. (Art. 153, FC)
The family home shall continue despite the death of
one or both spouses or of the unmarried head of the
family for a period of ten years or for as long as
there is a minor beneficiary, and the heirs cannot
partition the same unless the court finds compelling
reasons therefor. This rule shall apply regardless of
whoever owns the property or constituted the family
home. (Art. 159, FC)
Where Family Home is Constituted
The family home must be part of the properties of
the absolute community or the conjugal partnership,
or of the exclusive properties of either spouse with
the latter's consent. It may also be constituted by an
unmarried head of a family on his or her own
property.
Nevertheless, property that is the subject of a
conditional sale on installments where ownership is
reserved by the vendor only to guarantee payment
of the purchase price may be constituted as a family
home. (Art 156, FC)
Limitation on the Actual Value of Family Home
The actual value of the family home shall not
exceed, at the time of its constitution, the amount of
P300,000.00 in urban areas, and P200,000.00 in
rural areas or such amounts as may be fixed by law.
In any event, if the value of the currency changes,
the value most favorable for the constitution of a
family home shall be the basis of evaluation.
Note: Urban areas include chartered cities and
municipalities whose annual income at least equals
that legally required for chartered cities. All others
are deemed rural areas. (Art 157, FC)
Beneficiaries
a. The husband and wife, or an unmarried person
who is the head of family.
b. 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. (Art 154, FC)
c. A person may be the beneficiary of only one
family home. (Art 161, FC)
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

A: No. Expropriation is a form of forced sale. Note

Benefits of Family Home that the family home is exempt from forced sale.

GENERAL RULE: The family home is exempt from
execution, forced sale or attachment. (Art 153 and
155)
EXEMPTIONS:
a. For non-payment of taxes.
b. For debts incurred prior to the constitution of the
family home.
c. For debts secured by mortgages on the
premises before or after such constitution.
d. For debts due to laborers, mechanics,
architects, builders, material men, and others
who have rendered service or furnished
materials for the construction of the building.
(laborer’s lien, materialmen’s lien, contractor’s
lien) (Art 155, FC)
e. When a creditor whose claim is not among those
mentioned from a – d obtains a judgment in his
favor, and he has reasonable grounds to believe
that the family home is actually worth more than
the maximum amount fixed herein, he may apply
to the court which rendered the judgment for an
order directing the sale of the property under
execution. The court shall so order if it finds that
the actual value of the family home exceeds the
maximum amount allowed by law as of the time
of its constitution. If the increased actual value
exceeds the maximum allowed and results from
subsequent voluntary improvements introduced
by the person or persons constituting the family
home, by the owner or owners of the property, or
by any of the beneficiaries, the same rule and
procedure shall apply.
Q: The house and lot was constituted as family
home in 1995. In 2000, H&W obtained a P1.5 loan
secured by promissory note. The creditor filed an
action for collection of sum of money after H&W
defaulted in payment. Judgment was rendered in
favor of the creditor. Can the house and lot be
subject of execution?
A: Yes. The house and lot is not exempt from
execution because it is more than the value required
by law i.e P300,000 (urban) or P200,000 (rural)
Steps to be undertaken by Judgment Creditor in
case of Execution:
1. Apply for writ of execution. Allege that the value
of Family Home exceeds that required by law.
The value is shown by tax declaration or proven
by experts (appraisers)
2. In execution sales, no bid shall be below the
maximum prescribed for Family Home
3. The proceeds of sale shall be distributed as
follows:
a. Restore to debtor/s the value of the family
home as prescribed by law, i.e. P300,000
(urban) or P200,000 (rural)
b. Apply for the payment of the debt
c. The excess shall be given to debtor/s

At the execution sale, no bid below the value

allowed for a family home shall be considered.
The proceeds shall be applied first to the
amount fixed by law, and then to the liabilities
under the judgment and the costs. The excess, if
any, shall be delivered to the judgment debtor.
(Art 160, FC)

Q: H & W purchased house and lot which was

occupied as family residence in 1995. In 2001,
judgment was rendered against H&W on the case
involving quasi-delict which was filed by A against
H&W in 1990. Eventually, A filed Motion for
Execution on the house and lot. Should the motion
be granted?

A: Yes. The house and lot is not exempt from

execution. The debt was incurred prior to the
constitution of the family home.(Art 155 [2])

Q: The house and lot was constituted as family

home in 1995. In 1996, H &W obtained a P2M loan
with REM on the house and lot. Is the house and lot
subject to execution?

A: Yes. The house and lot is not exempt from

execution. The debt was secured by mortgage on
the premises. (Art 155 [3])

Q: Can the Family Home be subject of expropriation

proceedings?

60 | P a g e
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
VIII. PATERNITY AND FILIATION
PATERNITY – is the civil status of the father with
respect to the child begotten by him.
MATERNITY – is the civil status of the mother with
respect to the child begotten by her.
FILIATION – is the civil status of the child in relation
to his father.
Kinds of Filiation
1. Natural (legitimate or illegitimate)
2. Artificial i.e. Adoption
Kinds/Status of Children
1. Legitimate
2. Illegitimate
3. Legitimated
4. Adopted
LEGITIMATE CHILDREN
LEGITIMATE CHILDREN - children conceived or
born during the marriage of the parents are
legitimate. (Art 164, FC)
Take note that under Art. 54 of the FC, “children
conceived or born before the judgment of annulment
or absolute nullity of the marriage under Article 36
has become final and executory shall be considered
legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise
be legitimate.”
Presumption of Legitimacy
In case of doubt as to the filiation of the child,
legitimacy is preferred, unless, there is proof to the
contrary.
A child who is conceived or born during marriage of
his parents is presumed legitimate and the status
and filiation of the child cannot be compromised.
(Baluyot vs. Baluyot, June 14, 1990)
A child born during legal separation or separation de
facto, is still a legitimate child because conceived or
born during subsistence of valid marriage. The
husband has the right to impugn such legitimacy.
The presumption of legitimacy is quasi conclusive
and proceeds from the sexual union in the marriage
and may be refuted only by the evidence allowed by
law.
The legitimacy or illegitimacy of a child born after
three hundred days following the termination of the
marriage shall be proved by whoever alleges such
legitimacy or illegitimacy. (Art. 169, FC)
The child shall be considered legitimate although the
mother may have declared against its legitimacy or
may have been sentenced as an adulteress. (Art.
167, FC) An assertion of the mother against the
legitimacy of her child cannot affect the legitimacy of
such child born or conceived within the valid
marriage. A mother has no right to disavow a child
because maternity is never uncertain.
61 | P a g e
Between the certificate of live birth which is prima
facie evidence of child’s illegitimacy and the quasi-
conclusive presumption of his legitimacy, the latter
shall prevail. Not only does it bear more weight, it is
also more conducive to the best interest of the child
and in consonance with the purpose of the law.
(Concepcion vs CA, Aug 31, 2005)
Illustrations:
a. FACTS: 2 children were registered as children of
H and W. S filed an action wherein he
recognized the 2 children as his. S presented an
affidavit of recognition to support his claim.
HELD: This action shall not prosper because
public policy dictates that legitimacy is preferred
over illegitimacy. Besides, who can impugn the
legitimate filiation of the children is the husband
and only on grounds specified by law within the
prescriptive periods provided by law.
b. FACTS: W contracted a 2nd marriage with S,
without her 1st marriage with H having been
annulled or declared a nullity. W and S have a
child A. Later, S learned of the subsisting
marriage of W with H. S then filed a petition for
declaration of nullity of marriage on the ground
of bigamous marriage. The court declared the
marriage of S and W null and void for being
bigamous and declared A as their illegitimate
child, granting custody in favor of W and
visitation rights of S. W appealed questioning
the grant of visitation rights and that the child’s
surname appearing in his certificate of live birth
be dropped. HELD: SC held that A is the
legitimate child of W and H because he was
conceived and born during the subsistence of a
valid first marriage. W and S cannot deprive A of
his legitimate status because such is against
public policy. S is not entitled to visitation rights
because he is not related to A. H, being the
father of A, has the right to impugn the
legitimacy of A. (Concepcion vs CA, Aug 31,
2005)
Children by Artificial Insemination,
Requirements
Children conceived as a result of artificial
insemination (in-vitro fertilization) of the wife with the
sperm of the husband or that of a donor or both are
likewise LEGITIMATE CHILDREN of the husband
and his wife, provided, that:
a. both of them authorized or ratified such
insemination in a written instrument;
b. such written instrument must be executed and
signed by them before the birth of the child.
c. the instrument shall be recorded in the civil
registry together with the birth certificate of the
child. (Art 164, FC)
NOTE: if written authorization or ratification is
made after artificial insemination, the child is still
legitimate. If ratification is made after recording
of birth or if there is belated registration of
ratification, still legitimate because legitimacy is
preferred over illegitimacy to serve the best
interest of the child.
No criminal liability for adultery of wife artificially
inseminated without the consent of the husband.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
Dick Francisco Fernandez & Claryl-Anne D. Laminato
What is the effect of Intervention
surrogate mothers
If the zygote is the result of fertilization of the
wife’s ovum by her husband’s sperm, it is
submitted that the child is their legitimate child, it
having been sourced from their own blood.
(Pineda)
If in the same set of facts, the sperm of a donor
is used without the consent of the husband, it is
submitted that the child is illegitimate because
he is not the child of the husband but that of the
wife and donor. (Pineda)
Action to Impugn Legitimacy
Grounds (Art 166, FC)
(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
(e.g. husband in a state of coma or is
paralyzed)
(2) That it is proved that for biological or other
scientific reasons, the child could not have been
that of the husband, except in the instance
provided in the second paragraph of Article 164;
or
(3) That in case of children conceived through
artificial insemination, the written authorization
or ratification of either parent was obtained
through mistake, fraud, violence, intimidation, or
undue influence.
Who May File (Art 170, FC)
GENERAL RULE: Only the husband may impugn.
EXCEPTION: The heirs of the husband may impugn
the filiation of the child within the period prescribed
in the preceding article only in the following cases:
(1) If the husband should die before the expiration of
the period fixed for bringing his action;
(2) If he should die after the filing of the complaint
without having desisted therefrom; or
(3) If the child was born after the death of the
husband. (Art 171, FC)
62 | P a g e
By:
of Prescriptive Period
The action to impugn the legitimacy of the child shall
be brought within:
a. 1 year from the knowledge of the birth or its
recording in the civil register - if the husband or,
in a proper case, any of his heirs, should reside
in the city or municipality where the birth took
place or was recorded.
b. 2 years - If the husband or, in his default, all of
his heirs do not reside at the place of birth as
defined in the first paragraph or where it was
recorded but they reside in the Philippines.
c. 3 years – if they are residing abroad.
Note: If the birth of the child has been concealed
from or was unknown to the husband or his heirs,
the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier.
Rules on the Status of Children Born When
Widow contracted 2nd Marriage within 300 Days
From Termination of Former Marriage (Art 168,
FC)
1. Requisites:
a. 1st marriage terminated
b. Mother contracted subsequent marriage
c. Subsequent marriage contracted within 300
days after termination of previous marriage
d. Child was born
e. No evidence as to the status of the child
2. Rules as To Whom the Child Belongs
a. To 1st marriage – if the child born before
lapse of 180 days after the solemnization of
the subsequent marriage provided it be born
within 300 days after the termination of the
former marriage.
b. To 2nd marriage – if the child born after 180
days following the celebration of the
subsequent marriage even though it be born
within the 300 days after the termination of
the former marriage.
Note: The legitimacy or illegitimacy of a child born
after three hundred days following the termination of
the marriage shall be proved by whoever alleges
such legitimacy or illegitimacy. (Art. 169, FC)
Action to Claim Legitimacy
Proof of Legitimacy/Filiation (Art. 172, FC)
GENERAL RULE: The filiation of legitimate children
is established by any of the following:
1. record of birth appearing in the civil register or a
final judgment
A birth certificate to be considered as valid proof
of filiation, must be signed by the father and
mother jointly, or by the mother alone if the
father refuses. If the father did not intervene in
the making of the birth certificate, the putting of
his name by the mother or doctor or registrar is
void. The signature of the father is necessary.
Certificates of live birth may be disallowed as
proofs of filiation if they are executed thru fraud.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Baptismal certificates do not fall under this
category. They may be allowed as evidence as
allowed by the Rules of Court.
2. admission of legitimate filiation in a public
document or a private handwritten instrument
and signed by the parent concerned.
It is considered a judicial admission. It must also
be express. Thus a card containing the praise, “I
love you like my son,” and signed by the father,
is not a proof of filiation.
If express recognition is contained in a will, such
is a valid proof of filiation even if the will is
disallowed probate or even if not presented for
probate or even if such will is revoked. Nullity of
will shall not affect provisions which do not
depend on death of testator. It still constitutes a
public document or a private handwritten
instrument signed by the parent concerned.
If express recognition is contained in a deed of
sale, still, such deed may be admitted as proof
of filiation.
If recognition in open court or during pre-trial,
such recognition constitutes as a judicial
admission, thus may be considered as proof of
filiation.
EXCEPTIONS: 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
Under this, for an action to establish illegitimate
filiation, a high standard proof is required.
There must be a showing of permanent intention
of the supposed father to consider the child as
his own by continuous and clear manifestation of
paternal affection and care. The paternal
affection and care shall not be attributed to pure
charity. Such acts must be of such a nature that
they reveal not only the conviction of paternity
but also the apparent desire to have and treat
the child as such in all relations in society and in
life, not accidentally, but continuously. (Jison vs
CA 98 Phil 794)
Continuous does not mean that the concession
of status shall continue forever but only that it
shall not be of an intermittent character while it
is continuous. By continuous is meant un-
interrupted and consistent, but does not require
a particular length of time. The possession of
such status means that the father has treated
the child as his own, directly and not through
others, spontaneously and without concealment
though without publicity.
The standard of proof required is founded on the
principle that an order for recognition and
support may create an unwholesome
atmosphere or may be an irritant in the family or
lives of the parties, so that it must be issued only
if paternity or filiation is established by clear and
convincing evidence.
63 | P a g e
Mere photographs with the putative father is not,
per se, proof of filiation.
Receipts indicating that the father was the one
who paid all tuition fees of the child is not, per
se, proof of filiation.
BUT photographs, receipts plus other evidence,
taken collectively, may be proof of filiation.
2. Any other means allowed by the Rules of Court
and special laws.
e.g. Baptismal certificates; judicial admission;
family bible in which his name has been entered;
common reputation respecting his pedigree;
admission by silence; testimonies of witnesses.
Who May File, When to File
The action to claim legitimacy may be brought by the
child during his or her lifetime (not the lifetime of the
parents) and shall be transmitted to the heirs should
the child die during minority or in a state of insanity.
In these cases, the heirs shall have a period of five
years within which to institute the action. (Art. 173,
FC)
The action already commenced by the child shall
survive notwithstanding the death of either or both of
the parties.
Rights of Legitimate Children (Art. 174, FC)
(1) To bear the surnames of the father and the
mother, in conformity with the provisions of the
Civil Code on Surnames.
A legitimate child cannot petition the court to
drop his middle name. Middle names and
surnames are not subject to the will of persons
because they are prescribed by law.
Surname – identifies paternal lineage.
Middle name – identifies maternal lineage.
(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.
In case of legal separation or annulment of
marriages, the rights of children to support shall
not be denied. The support shall be taken from
separate properties of the parties because from
that time the ACP or CPG has already been
dissolved and liquidated.
(3) To be entitled to the legitimate and other
successional rights granted to them by the Civil
Code. (a compulsory heir may be a voluntary
heir at the same time; a legitimate child is
entitled to be represented in the succession to
his parents)
Note: In case of legitimate minors, husband and wife
exercise joint parental authority. In case of conflict,
husband’s right shall prevail subject to the right of
recourse by the wife before the competent court.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
ILLEGITIMATE CHILDREN
Children conceived and born outside a valid
marriage are illegitimate, unless otherwise provided
in this Code. (Art 165, FC)
Children born of void marriages are illegitimate (with
respect to the mother only by operation of law; the
child and the father are, as a rule, strangers with
each other) EXCEPT children conceived or born
before the judgment absolute nullity of the marriage
under Article 36 has become final and executory
shall be considered legitimate and children
conceived or born of the subsequent marriage under
Article 53 shall likewise be legitimate. (Art 54, FC)
Voluntary Recognition of Illegitimate Children,
How Made
If due recognition is made by the putative father in
the record of birth, valid will, public instrument or
private handwritten instrument, it is considered as a
consummated act of acknowledgment. It is no longer
required to have compulsory recognition.
When is Compulsory Recognition Be Made
In cases where the proof of illegitimacy is either
open and continuous possession of the status of a
legitimate child or any other means allowed by the
Rules of Court and special laws.
Proof of Illegitimacy (Arts 175 and 172, FC)
Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence
as legitimate children. (Art. 175, FC)
Thus, under Art 172, the filiation of legitimate
children is established by any of the following:
(1) The record of birth appearing in the civil register
or a final judgment; or
Even if the putative father, did not sign the birth
certificate as the father but as an informant, for
as long as he actively participated in the
execution of the certificate, such can be used as
an evidence of filiation.
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument
and signed by the parent concerned.
In this case there must be an EXPRESS
recognition.
Admission during pre-trial that the child is his
illegitimate child is a judicial admission, thus
admissible, provided it was done before a court
of record.
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.
(2) Any other means allowed by the Rules of Court
and special laws.
Baptismal certificate of the child where it is
signed by the putative father is admissible in
64 | P a g e
evidence but it requires other proof of
recognition to establish illegitimate filiation.
DNA analysis is under this category.
DNA Tests: Probative Value in Paternity Cases
The court may allow the child to petition the court to
have the father be subjected to DNA analysis. Such
is not violative of the right of the father against self-
incrimination because such is available only in
criminal cases and not in civil cases. There is also
no violation of privacy because the right to establish
paternity and filiation is superior over the right to
privacy.
In DNA analysis or test, it is not enough that there is
a perfect match. Such alone is not sufficient to
establish filiation. The court should include
probability of paternity (W), that is, the likelihood of
paternity between the putative father and the child
as compared to the probability of paternity of random
match between 2 unrelated individuals. The W must
always refer to a specific population base. Thus,
because of the nature of this damnation, W will
never be 100% but the chances of increasing W will
be greater if the putative father, child and mother are
included in the DNA analysis. This means that is
there is 99.9% probability, the court should not stop
there. It is required that the 99.9% is the provability
of paternity based on population segment that the
chance or provability comes from 1 in 5 million.
HOWEVER, when the DNA result excludes putative
father from paternity, such is conclusive as to non-
paternity. There is impossible match.
If W is 99.9% or higher, there is a presumption of
paternity.
If W is less than 99.9%, there is a rebuttable proof of
paternity.
What may be used to overcome the presumption of
paternity or rebut the proof of paternity: Use the
Vallejo Test.
Vallejo Tests: The court must scrutinize the following
facts:
a. How the samples are collected
b. How the samples were handled
c. Possibility of contamination of samples
d. Standard procedure used in similar test should
be followed
e. Competence of the person who conducted the
examination.
Who May File and When to File Action for
Compulsory Recognition (Art. 175, par. 2, FC)
The action must be brought within the same period
specified in Article 173, that is within the lifetime of
the child (although action is not necessary) except
when the action is based on the second paragraph
of Article 172, in which case the action may be
brought during the lifetime of the alleged parent. The
REASON of the latter rule is to give the allege parent
the chance to affirm or consent to the filiation of the
child.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
In case of nullity of marriage, children are generally
considered illegitimate with respect to the mother
only by operation of law. But the illegitimate filiation
of the child with the father, there is a need to prove
filiation. There is no problem if there is declaration in
the judgment of illegitimate filiation because such
can be used as proof of filiation. In the absence of
declaration, there are 2 views:
1. Traditional view
There must be an action for compulsory
recognition because illegitimate children cannot
be considered a relative of the father.
2. Liberal view
There is no more need of an action for
compulsory recognition. The best interest of the
child shall be taken into consideration. Having
been downgraded to the status of illegitimate
child, no further burden will be imposed upon the
child. And it is by operation of law following the
declaration of marriage that the child is
considered illegitimate child of the parties.
Rights of Illegitimate Children (Art. 176 in rel. to
R.A 9255)
Illegitimate children shall:
1. use the surname and shall be under the parental
authority of their mother.
RA 9255 which was approved on Feb 24, 2004,
illegitimate children may now use the surname
of their father IF their filiation has been expressly
recognized by the father through the record of
birth appearing in the civil register, OR when the
admission in a public document or private
handwritten instrument is made by the father.
PROVIDED, however, that the father has the
right to institute an action before the regular
courts to prove non-filiation during his lifetime.
If the child was already recognized, the surname
is that of the father and the middle name is that
of the mother. The purpose of recognition is to
compel the father to give support and so that
later the illegitimate children will be entitled to
their legitime.
Even after recognition, the father cannot
demand custody over the child. The law
explicitly confess to the mother sole parental
authority over an illegitimate child. It follows that
only if she defaults can the father assume
custody and authority over the minor.
While an illegitimate child of a woman is allowed
to use the surname of his stepfather, a legitimate
child is not allowed because if he is allowed it
could result in confusion as to its paternity.
2. shall be entitled to support in conformity with this
Code.
3. The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate
child. Except for this modification, all other
provisions in the Civil Code governing
successional rights shall remain in force.
65 | P a g e
LEGITIMATED CHILDREN
LEGITIMATED CHILDREN – are those conceived
and born outside of wedlock who, during conception,
the parents are not disqualified to marry each other,
and by subsequent marriage of their parents to each
other are, by legal fiction, considered legitimate.
LEGITIMATION – is a process of conferring
legitimate status to illegitimate children by
subsequent valid marriage of the parents.
Rationale
To confer legitimate status of illegitimate children
and as such legitimated children have the same
rights as those of legitimate children.
How Made
Legitimation shall take place by a subsequent valid
marriage between parents. (Art. 178, FC)
Requisites
1. The child was conceived and born outside of
wedlock.
2. At the time of conception of the child, the
parents were not disqualified by any impediment
to marry each other.
3. The parents must subsequently enter into a valid
marriage.
When Legitimation Take Effect
The effects of legitimation shall retroact to the time
of the child's birth. (Art. 180, FC)
The legitimation of children who died before the
celebration of the marriage shall benefit their
descendants. (Art. 181, FC)
Effect Of Annulment and Nullity of Marriage
Upon Legitimated
The annulment of a voidable marriage shall not
affect the legitimation. (Art. 178, FC)
In case of declaration of nullity of marriage, as a
rule, children are considered illegitimate.
Legitimation will not become operative.
Rights of Legitimated Children
Legitimated children shall enjoy the same rights as
legitimate children. (Art. 179, FC)
Action To Impugn, Who May Impugn and When
Legitimation may be impugned only by those who
are prejudiced in their rights, within 5 years from the
time their cause of action accrues. (Art. 182, FC)
Cause of action accrues from the death of the
putative parent.
ADOPTED CHILDREN
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
ADOPTION – is a juridical act which creates
between 2 persons a relationship similar to that
which results from legitimate paternity and filiation
Nature of Adoption Proceedings
Adoption proceedings are judicial, not administrative.
Procedure
Who May Adopt (Sec 7, RA 8552, Domestic
Adoption Act of 1998)
1. Filipino citizen who is: LPG-NEAP
a. of legal age;
b. in possession of full civil capacity and legal
rights;
c. of good moral character;
d. has not been convicted of any crime
involving moral turpitude;
e. emotionally and psychologically capable of
caring for children;
d. at least sixteen (16) years older than the
adoptee; and
e. who is in a position to support and care for
his/her children in keeping with the means of
the family.
When is the requirement of 16-year
difference between the age of the adopter
and adoptee may be waived
a. when the adopter is the biological parent of
the adoptee; OR
b. when the adopter is the spouse of the
adoptee's parent.
2. Any alien who:
a. possesses the same qualifications as above
stated for Filipino nationals;
b. whose country has diplomatic relations with
the Republic of the Philippines,
c. has been living in the Philippines for at least
three (3) continuous years prior to the filing
of the application for adoption and maintains
such residence until the adoption decree is
entered;
d. has been certified by his/her diplomatic or
consular office or any appropriate
government agency that he/she has the
legal capacity to adopt in his/her country;
and
e. whose government allows the adoptee to
enter his/her country as his/her adopted
son/daughter:
When requirements on residency and
certification of the alien's qualification to
adopt in his/her country may be waived
(i) a former Filipino citizen who seeks to adopt a
relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino
spouse; or
66 | P a g e
3. The guardian with respect to the ward after the
termination of the guardianship AND clearance
of his/her financial accountabilities.
Husband and Wife, Joint Adoption
GENERAL RULE: Husband and wife shall jointly
adopt.
EXCEPTIONS:
(i) if one spouse seeks to adopt the legitimate
son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own
illegitimate son/daughter: Provided, However,
that the other spouse has signified his/her
consent thereto; or
(iii) if the spouses are legally separated from each
other.
Note: In case husband and wife jointly adopt, or one
spouse adopts the illegitimate son/daughter of the
other, joint parental authority shall be exercised by
the spouses.
HOWEVER, under INTER-COUNTRY ADOPTION
LAW (RA 8043), the following may adopt:
An alien or a Filipino citizen permanently residing
abroad may file an application for inter-country
adoption of a Filipino child IF he/she: (Sec 9, RA
8043)
a) is at least twenty-seven (27) years of age and at
least sixteen (16) years older than the child to be
adopted, at the time of application unless the
adoptor is the parent by nature of the child to be
adopted or the spouse of such parent:
b) if married, his/her spouse must jointly file for the
adoption;
c ) has the capacity to act and assume all rights and
responsibilities of parental authority under his
national laws, and has undergone the
appropriate counseling from an accredited
counselor in his/her country;
d) has not been convicted of a crime involving moral
turpitude;
e) is eligible to adopt under his/her national law;
f) is in a position to provide the proper care and
support and to give the necessary moral values
and example to all his children, including the
child to be adopted;
g) agrees to uphold the basic rights of the child as
embodied under Philippine laws, the U.N.
Convention on the Rights of the Child, and to
abide by the rules and regulations issued to
implement the provisions of this Act;
h) comes from a country with whom the Philippines
has diplomatic relations and whose government
maintains a similarly authorized and accredited
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
agency and that adoption is allowed under
his/her national laws; and
i) possesses all the qualifications and none of the
disqualifications provided herein and in other
applicable Philippine laws.
Who May Be Adopted (Sec 8, RA 8552, Domestic
Adoption Act of 1998)
(a) Any person below eighteen (18) years of age
who has been administratively or judicially
declared available for adoption;
CHILD LEGALLY AVAILABLE FOR ADOPTION -
refers to a child who has been voluntarily or
involuntarily committed to the Department or to a
duly licensed and accredited child-placing or
child-caring agency, freed of the parental
authority of his/her biological parent(s) or
guardian or adopter(s) in case of rescission of
adoption.
VOLUNTARILY COMMITTED CHILD - is one
whose parent(s) knowingly and willingly
relinquishes parental authority to the
Department.
INVOLUNTARILY COMMITTED CHILD - is one
whose parent(s), known or unknown, has been
permanently and judicially deprived of parental
authority due to abandonment; substantial,
continuous, or repeated neglect; abuse; or
incompetence to discharge parental
responsibilities.
Who May be Administratively Or Judicially
Declared Available For Adoption
ABANDONED CHILD - refers to one who has no
proper parental care or guardianship or whose
parent(s) has deserted him/her for a period of at
least six (6) continuous months and has been
judicially declared as such.
DEPENDENT CHILD - is one who is without a
parent, guardian or custodian; or one whose
parents, guardian or other custodian for good
cause desires to be relieved of his care and
custody; and is dependent upon the public for
support.
NEGLECTED CHILD - is one whose basic
needs have been deliberately unattended or
inadequately attended, physically or emotionally,
by his parents or guardinan. Neglect may occur
in two ways:
a) There is a physical neglect when the child is
malnourished, ill clad and without proper
shelter.
A child is unattended when left by himself
without provisions for his needs and/or
without proper supervision.
b) Emotional neglect exists: when children are
maltreated, raped or seduced; when children
are exploited, overworked or made to work
under conditions not conducive to good
health; or are made to beg in the streets or
public places, or when children are in moral
67 | P a g e
danger, or exposed to gambling, prostitution
and other vices.
FOUNDLING – refers to deserted or abandoned
infant or child whose parents, guardian or
relatives are unknown; or a child committed to
an orphanage or charitable or similar institution
with unknown facts of birth and parentage and
registered in the Civil Register as a foundling.
(b) The legitimate son/daughter of one spouse by
the other spouse (No need of joint adoption; if
the adopter is an alien, the requirements of
residency and certification are no longer
applicable);
(c) An illegitimate son/daughter by a qualified
adopter to improve his/her status to that of
legitimacy;
(d) A person of legal age if, prior to the adoption,
said person has been consistently considered
and treated by the adopter(s) as his/her own
child since minority;
(e) A child whose adoption has been previously
rescinded; or
(f) A child whose biological or adoptive parent(s) has
died: Provided, That no proceedings shall be
initiated within six (6) months from the time of
death of said parent(s).
Illustrations:
a. FACTS: H and W are legally married. Can H
and W legally adopt a child of their
neighbor? HELD: YES, provided the
adoptee is among those qualifies.
b. FACTS: If the child to be adopted is W’s
illegitimate child, Can W and H adopt the
child? HELD: W can adopt the child because
the child is her illegitimate child. H can also
adopt the child provided he is qualified and
that the child is qualified as an adoptee who
possesses none of the disqualifications. H
and W can jointly adopt the child if they
decide to do so. Alleged the qualifications of
the adopters and qualifications of the
adoptee in the petition for adoption.
c. FACTS: If the child to be adopted is W’s
legitimate child in her former marriage, W
need not adopt the child because the latter
is already her legitimate child. Can H, 2 nd
husband adopt the child of W? Are H and W
required to adopt the child jointly? HELD: H
can adopt the legitimate child of W because
such is allowed by law. In this case there is
no need for H and W to adopt the child
jointly because the child is already the
legitimate child of W. This situation is also
applicable if the husband is an alien and the
wife is a former Filipino.
d. FACTS: If H is an alien and W is a former
Filipino. The child to be adopted is the
illegitimate child of W. HELD: W can adopt
provided she is qualified. The residency
requirement can be waived because she is a
former Filipino citizen who seeks to adopt a
relative within the fourth (4th) degree of
consanguinity or affinity. What about on the
part of H, is residency requirement be
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
waived? NO, because W is no longer a
Filipino.
e. FACTS: H is married to W. H has an
illegitimate child. Can H adopt his illegitimate
child? HELD: H can adopt his illegitimate
child even if not joined by W. The surname
of the child is that of the father as the
adopter. The middle name of the child is that
of the mother. Although the relationship
between the mother and the child is
severed, it is for the benefit of the child to
use the surname of his mother as his middle
name.
HOWEVER, under INTER-COUNTRY ADOPTION
LAW (RA 8043), the following may be adopted:
Only a child legally available for domestic adoption
may be the subject of inter-country adoption.
Whose Consent is Necessary to the Adoption
(Sec 9, RA 8552, Domestic Adoption Act of 1998)
After being properly counseled and informed of
his/her right to give or withhold his/her approval of
the adoption, the written consent of the following to
the adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or
the legal guardian, or the proper government
instrumentality which has legal custody of the
child;
If the child to be adopted is illegitimate, consent
of the father is necessary if he recognized the
child as his. If no recognition, there is no need of
consent because both are strangers to each
other.
(c) The legitimate and adopted sons/daughters, ten
(10) years of age or over, of the adopter(s) and
adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of
age or over, of the adopter if living with said
adopter and the latter's spouse, if any; and
(e) The spouse, if any, of the person adopting or to
be adopted.
Procedure
a. Hurried Decisions. - In all proceedings for
adoption, the court shall require proof that the
biological parent(s) has been properly counseled
to prevent him/her from making hurried
decisions caused by strain or anxiety to give up
the child, and to sustain that all measures to
strengthen the family have been exhausted and
that any prolonged stay of the child in his/her
own home will be inimical to his/her welfare and
interest. (Section 10, RA 8552)
b. Case Study. No petition for adoption shall be set
for hearing unless a licensed social worker of
the Department, the social service office of the
local government unit, or any child-placing or
child-caring agency has made a case study of
the adoptee, his/her biological parent(s), as well
as the adopter(s), and has submitted the report
68 | P a g e
and recommendations on the matter to the court
hearing such petition. (Section 11, RA 8552)
At the time of preparation of the adoptee's case
study, the concerned social worker shall confirm
with the Civil Registry the real identity and
registered name of the adoptee. If the birth of
the adoptee was not registered with the Civil
Registry, it shall be the responsibility of the
concerned social worker to ensure that the
adoptee is registered.
The case study on the adoptee shall establish
that he/she is legally available for adoption and
that the documents to support this fact are valid
and authentic. Further, the case study of the
adopter(s) shall ascertain his/her genuine
intentions and that the adoption is in the best
interest of the child.
The Department shall intervene on behalf of the
adoptee if it finds, after the conduct of the case
studies, that the petition should be denied. The
case studies and other relevant documents and
records pertaining to the adoptee and the
adoption shall be preserved by the Department.
c. Supervised Trial Custody. - No petition for
adoption shall be finally granted until the
adopter(s) has been given by the court a
supervised trial custody period for at least six (6)
months within which the parties are expected to
adjust psychologically and emotionally to each
other and establish a bonding relationship.
During said period, temporary parental authority
shall be vested in the adopter(s).
The court may motu proprio or upon motion of
any party reduce the trial period if it finds the
same to be in the best interest of the adoptee,
stating the reasons for the reduction of the
period. However, for alien adopter(s), he/she
must complete the six (6)-month trial custody
except for those enumerated in Sec. 7 (b) (i) (ii)
(iii).
If the child is below seven (7) years of age and
is placed with the prospective adopter(s) through
a pre-adoption placement authority issued by
the Department, the prospective adopter(s) shall
enjoy all the benefits to which biological
parent(s) is entitled from the date the adoptee is
placed with the prospective adopter(s). (Section
12, RA 8552)
d. Decree of Adoption. - If, after the publication of
the order of hearing has been complied with,
and no opposition has been interposed to the
petition, and after consideration of the case
studies, the qualifications of the adopter(s), trial
custody report and the evidence submitted, the
court is convinced that the petitioners are
qualified to adopt, and that the adoption would
redound to the best interest of the adoptee, a
decree of adoption shall be entered which shall
be effective as of the date the original petition
was filed. This provision shall also apply in case
the petitioner(s) dies before the issuance of the
decree of adoption to protect the interest of the
adoptee. The decree shall state the name by
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
which the child is to be known. (Section 13, RA
8552)
e. Civil Registry Record. - An amended certificate
of birth shall be issued by the Civil Registry, as
required by the Rules of Court, attesting to the
fact that the adoptee is the child of the
adopter(s) by being registered with his/her
surname. The original certificate of birth shall be
stamped "cancelled" with the annotation of the
issuance of an amended birth certificate in its
place and shall be sealed in the civil registry
records. The new birth certificate to be issued to
the adoptee shall not bear any notation that it is
an amended issue. (Section 14, RA 8552)
f. Confidential Nature of Proceedings and
Records. - All hearings in adoption cases shall
be confidential and shall not be open to the
public. All records, books, and papers relating to
the adoption cases in the files of the court, the
Department, or any other agency or institution
participating in the adoption proceedings shall
be kept strictly confidential.
If the court finds that the disclosure of the
information to a third person is necessary for
purposes connected with or arising out of the
adoption and will be for the best interest of the
adoptee, the court may merit the necessary
information to be released, restricting the
purposes for which it may be used. (Section 15,
RA 8552)
Effects Of Adoption
a. Parental Authority. - Except in cases where the
biological parent is the spouse of the adopter, all
legal ties between the biological parent(s) and
the adoptee shall be severed and the same shall
then be vested on the adopter(s). (Section 16,
RA 8552)
If the adopters are husband and wife, the
adoptee can use the surname of the adopting
father as his surname and the surname of the
adopting mother as his middle name.
If the father of an illegitimate whose wife is
already dead, decided to adopt his own
illegitimate child, the surname of the child is the
surname of the father while his middle name is
the surname of his biological mother. (In re:
Adoption of Stephanie Garcia, 456 S 541)
b. Legitimacy. - The adoptee shall be considered
the legitimate son/daughter of the adopter(s) for
all intents and purposes and as such is entitled
to all the rights and obligations provided by law
to legitimate sons/daughters born to them
without discrimination of any kind. To this end,
the adoptee is entitled to love, guidance, and
support in keeping with the means of the family.
(Section 17, RA 8552)
c. Succession. - In legal and intestate succession,
the adopter(s) and the adoptee shall have
reciprocal rights of succession without distinction
from legitimate filiation. However, if the adoptee
and his/her biological parent(s) had left a will,
the law on testamentary succession shall
govern. (Section 18, RA 8552)
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Notes:
The adoptee has the rights as that of legitimate
child, thus he has successional rights upon
death of the adopter.
If the biological parents of the adoptee died, it
appears that the law bars the child from
inheriting from his biological parents intestate by
operation of law. This is one interpretation of the
law. The proposition is there should be a
complete severance. If not, adopted children will
be placed above the legitimate children for they
can inherit either from the biological parents and
adopting parents.
HOWEVER, in one case, if the father of an
illegitimate whose wife is already dead, decided
to adopt his own illegitimate child and the father
dies, the child, having the rights of legitimate
child, is entitled to his successional rights. If the
biological mother dies, the child is also entitled
to his successional rights because in that case
there was allowance of using the surname of the
mother as the child’s middle name the urpose of
which is to identify maternal lineage and after all
the child should have a mother. (In re: Adoption
of Stephanie Garcia, 456 S 541)
If both the adopting parents died, can the
adoptee file a petition for support from the
biological parents? NO, death of the adopting
parents does not alter the consequences of the
adoption. The biological parents are not obliged
to give support. Would your answer be the same
if the child is still a minor? YES, for the same
reason as stated above.
What if the adoptee himself died, what are the
consequences of his death with respect to
succession? (See Discussion in Succession)
Rescission Of Adoption
Grounds (Section 19, RA 8552)
Upon petition of the adoptee, with the assistance of
the Department if a minor or if over eighteen (18)
years of age but is incapacitated, as
guardian/counsel, the adoption may be rescinded on
any of the following grounds committed by the
adopter(s): RASA
(a) repeated physical and verbal maltreatment by the
adopter(s) despite having undergone
counseling;
(b) attempt on the life of the adoptee;
(c) sexual assault or violence; or
(d) abandonment and failure to comply with parental
obligations.
Who May File
Only the adoptee can file a petition for rescission.
Adoption, being in the best interest of the child, shall
NOT be subject to rescission by the adopter(s).
HOWEVER, the adopter(s) may disinherit the
adoptee for causes provided in Article 919 of the
Civil Code. (Section 19, RA 8552)
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Note: If the decree of adoption was issued prior to

the effectivity of the Domestic Adoption Act (1998
February 25), a petition for rescission is not allowed
if such was filed after the effectivity of the said law
because the policy of the present law is to favor the
child.

If the adoptee is still a minor, in filing the petition for

rescission, he may be represented by the guardian
ad litem/duly appointed by the court; or if the minor
is one who is declared available for adoption, he
may be represented by DSWD, orphanage or
institution accredited by the DSWD.

Effects of Rescission (Section 20, RA 8552)

a. The parental authority of the adoptee's biological

parent(s), if known, or the legal custody of the
Department shall be restored IF the adoptee is
still a minor or incapacitated.

Notes:
Upon rescission, who are the parents of the
adopted child? The parents of the adoptee are
his biological parent(s), if known.

Can the biological parents refuse to restore their

legal tie with the child? NO. The biological
parents have no choice because such is
mandated by law. Besides, the child can be
adopted again by any qualified adopter.

Upon rescission, the child can use the surname

of his biological father as his surname and the
surname of the mother as his middle name.

b. The reciprocal rights and obligations of the

adopter(s) and the adoptee to each other shall
be extinguished.
c. Cancellation of the amended certificate of birth
of the adoptee and restore his/her original birth
certificate by the Civil Register as ordered by the
court.
d. Succession rights shall revert to its status prior
to adoption, but only as of the date of judgment
of judicial rescission. Vested rights acquired
prior to judicial rescission shall be respected.

Note: All the foregoing effects of rescission of

adoption shall be without prejudice to the penalties
imposable under the Penal Code if the criminal acts
are properly proven.

70 | P a g e
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
X SUPPORT
Concept and Extent
SUPPORT – is that which comprises everything
indispensable for SUSTENANCE, DWELLING,
CLOTHING, MEDICAL ATTENDANCE,
EDUCATION AND TRANSPORTATION, in keeping
with the financial capacity of the family.
The education of the person entitled to be supported
referred to in the preceding paragraph shall include
his schooling or training for some profession, trade
or vocation, even beyond the age of majority.
Transportation shall include expenses in going to
and from school, or to and from place of work. (Art
194, FC)
Kinds of Support
a. As to amount:
1. Natural (bare necessities of life)
2. Civil (in accordance with financial standing)
b. As to source of obligations:
1. Legal (based from law)
2. Voluntary / Contractual Support (from
agreement or from provision of a will)
c. Special kind (alimony pendente lite)
Actual Need v. Capacity to Pay
Art. 201. The amount of support, in the cases
referred to in Articles 195 and 196, shall be in
proportion to the resources or means of the giver
and to the necessities of the recipient.
Art. 202. Support in the cases referred to in the
preceding article shall be reduced or increased
proportionately, according to the reduction or
increase of the necessities of the recipient and the
resources or means of the person obliged to furnish
the same.
Thus, in one case, SC held that the provision for a
common fund for the benefit of the child cannot be
considered final and res judicata since any judgment
for support is always subject to modification
depending upon the needs of the child and
capabilities of the parents to give support.
Who Is Entitled to Support (Art 195, FC)
Those provided under Art 195 are the same persons
who are entitled to support from each other.
A right to support is not terminated after reaching the
age of majority. Support is imprescriptible.
When Demandable
The obligation to give support shall be demandable
from the time the person who has a right to receive
the same NEEDS it for maintenance, but it shall not
be paid except from the date of judicial or
extrajudicial demand.
71 | P a g e
Support pendente lite may be claimed in accordance
with the Rules of Court. (Art. 203 par 2 and 3, FC)
Exemption from Levy and Attachment
The right to receive support under this Title as well
as any money or property obtained as such support
shall not be levied upon on attachment or execution.
(Art. 205, FC)
Who Must Pay Support (Art 195, FC)
The following are obliged to support each other:
1. The spouses;
During the proceedings for legal separation or
for annulment of marriage, and for declaration of
nullity of marriage, the spouses and their
children shall be supported from the properties
of the absolute community or the conjugal
partnership. (Art. 198, FC)
After the final judgment granting the petition of
annulment or declaration of nullity of marriage,
the obligation of mutual support between the
spouses ceases. (Art. 198, FC)
However, in case of legal separation, the court
may order that the guilty spouse shall give
support to the innocent one, specifying the terms
of such order. (Art. 198, FC) But the innocent
spouse is not obliged to give support to the
erring spouse.
If both spouses are living separately, both of
them have been unfaithful to each other, and the
husband has been giving allowance to the wife,
the latter may still file an action for maintenance
because both of them are at fault. The husband
cannot use as a defense the adulterous act
committed by the wife. Besides, the giving of
allowance to the wife is implied condonation of
the adultery.
In a petition for support filed by the wife, it is
insufficient for the husband, as a defense to
claim that the wife is guilty of adultery. There
must be sufficient and competent evidence.
The wife may obliged her husband to pay the
fee of the lawyer who defended her in case of
acquittal, BUT NOT in case of conviction.
2. Legitimate ascendants and descendants;
Illustration:
If the husband abandoned the family to cohabit
with his paramour, can the wife file a petition for
support against the parents of the husband for
their children and herself? Yes, but only with
respect to support in favor of their children
because they are their legitimate descendants,
provided that inability on the part of the husband
to give support be proven. W cannot ask support
for herself because her relationship with the
parents of her husband is by affinity and as such
the parents-in-law are not obliged to give
support to her. The obligation to give support in
a relation by affinity is only required between
husband and wife. In the same manner, W is not
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
also obliged to give support to her parents-in-
law.
If one of the parents died, who is obliged to give
support to the children? It is the surviving parent.
If he/she remarries, the 2nd spouse is not obliged
to give support to the children of the former in
the previous marriage because of absence of
relationship. In this case the support will be
taken from the separate property of the surviving
parent. This is why properties acquired after
termination of the previous marriage shall not
form part of the ACP or CPG of the subsequent
marriage to answer for the support of the
children although the latter may advance the
support of the children but such is considered a
debt subject to reimbursement.
Can the illegitimate child of the husband file a
petition for support against the wife of the
husband? NO, because the child is not related
to the wife. What if the petition is directed
against the parents of the husband or the child’s
grandparents, will the petition prosper? Yes,
because the parents are obliged to give support
in favor of their legitimate children and the
legitimate and illegitimate children of the latter.
3. Parents and their legitimate children and the
legitimate and illegitimate children of the latter;
4. Parents and their illegitimate children and the
legitimate and illegitimate children of the latter;
and
5. Legitimate brothers and sisters, whether of full
or half-blood.
Notes: Brothers and sisters not legitimately
related, whether of the full or half-blood, are
likewise bound to support each other to the full
extent set forth in Article 194, except only when
the need for support of the brother or sister,
being of age, is due to a cause imputable to the
claimant's fault or negligence. (Art. 196, FC) In
this case, the one entitled to support, it is not
sufficient that the need for support is not due to
his fault or negligence but there must be proof of
filiation, that is, he has been recognized as an
illegitimate child.
Sources of Support
In case of legitimate ascendants; descendants,
whether legitimate or illegitimate; and brothers
and sisters, whether legitimately or illegitimately
related, only the separate property of the person
obliged to give support shall be answerable
provided that in case the obligor has no
separate property, the absolute community or
the conjugal partnership, if financially capable,
shall advance the support, which shall be
deducted from the share of the spouse obliged
upon the liquidation of the absolute community
or of the conjugal partnership. (Art. 197, FC)
Order of Liability in case 2 or More Persons
are Obliged to Give support (Art. 199, FC)
Whenever two or more persons are obliged to
give support, the liability shall devolve upon the
following persons in the order herein provided:
1. The spouse;
2. The descendants in the nearest degree;
72 | P a g e
3. The ascendants in the nearest degree; and
4. The brothers and sisters.
Sources of Fund
When the obligation to give support falls upon
two or more persons, the payment of the same
shall be divided between them in proportion to
the resources of each.
However, in case of urgent need and by special
circumstances, the judge may order only one of
them to furnish the support provisionally, without
prejudice to his right to claim from the other
obligors the share due from them.
When two or more recipients at the same time
claim support from one and the same person
legally obliged to give it, should the latter not
have sufficient means to satisfy all claims, the
order established in the preceding article shall
be followed, UNLESS the concurrent obligees
should be the spouse and a child subject to
parental authority, in which case the child shall
be preferred. (Art. 200, FC)
Thus, in case of separation de facto, the wife
filed a petition for support against the erring
husband the amount of 35K monthly. The
husband’s net income monthly is 35K. The
expenses of their children as alleged is 25K
monthly and the wife’s expenses is 10K monthly.
The needs of the children are preferred. The
excess shall be divided proportionately between
the husband and the wife except when the wife
is gainfully employed and able to support
herself.
How Support is Given
Payment shall be made within the first five days of
each corresponding month or when the recipient
dies, his heirs shall not be obliged to return what he
has received in advance. (Art. 203 par 3, FC)
The person obliged to give support shall have the
option to fulfill the obligation either by paying the
allowance fixed, or by receiving and maintaining in
the family dwelling the person who has a right to
receive support. The latter alternative cannot be
availed of in case there is a moral or legal obstacle
thereto. (Art. 204, FC)
Right of Third Persons Who Pay
When, without the knowledge of the person obliged
to give support, it is given by a stranger, the latter
shall have a right to claim the same from the former,
UNLESS it appears that he gave it without intention
of being reimbursed. (Art. 206, FC)
When the person obliged to support another unjustly
refuses or fails to give support when urgently
needed by the latter, any third person may furnish
support to the needy individual, with right of
reimbursement from the person obliged to give
support. This Article shall particularly apply when the
father or mother of a child under the age of majority
unjustly refuses to support or fails to give support to
the child when urgently needed. (Art. 207, FC)
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Contractual Support or Support in a Will
Contractual support – is an agreement to give
support between parties not obliged to give support;
what may be given is subject to the agreement of the
parties, thus may be partial or full; it is subject to levy
or attachment. As compared to legal support, the
latter is one established by law; it comprises
everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and
transportation, in keeping with the financial capacity
of the family, thus to the full extent; and not subject
to levy, attachment or execution.
Sec. 7. Restitution. When the judgment or final order of the court
finds that the person who has been providing support pendente
lite is not liable therefor, it shall order the recipient thereof to
return to the former the amounts already paid with legal interest
from the dates of actual payment, without prejudice to the right of
the recipient to obtain reimbursement in a separate action from
the person legally obliged to give the support. Should the recipient
fail to reimburse said amounts, the person who provided through
same may likewise seek reimbursement thereof in a separate
action from the person legally obliged to give such support.

Note: In case of contractual support or that given by

will, the excess in amount beyond that required for
legal support shall be subject to levy on attachment
or execution.

Furthermore, contractual support shall be subject to

adjustment whenever modification is necessary due
to changes of circumstances manifestly beyond the
contemplation of the parties. (Art. 208, FC)

Procedure (Rule 61, 1997 Rules of Civil

Procedure)

Section 1. Application. At the commencement of the proper action

or proceeding, or at any time prior to the judgment or final order, a
verified application for support pendente lite may be filed by any
party stating the grounds for the claim and the financial conditions
of both parties, and accompanied by affidavits, depositions or
other authentic documents in support thereof.

Sec. 2. Comment. A copy of the application and all supporting

documents shall be served upon the adverse party, who shall
have five (5) days to comment thereon unless a different period is
fixed by the court upon his motion. The comment shall be verified
and shall be accompanied by affidavits, depositions or other
authentic documents in support thereof.

Sec. 3. Hearing. After the comment is filed, or after the expiration

of the period for its filing, the application shall be set for hearing
not more than three (3) days thereafter. The facts in issue shall be
proved in the same manner as is provided for evidence on
motions.

Sec. 4. Order. The court shall determine provisionally the

pertinent facts, and shall render such orders as justice and equity
may require, having due regard to the probable outcome of the
case and such other circumstances as may aid in the proper
resolution of the question involved. If the application is granted,
the court shall fix the amount of money to be provisionally paid or
such other forms of support as should be provided, taking into
account the necessities of the applicant and the resources or
means of the adverse party, and the terms of payment or mode
for providing the support. If the application is denied, the principal
case shall be tried and decided as early as possible.

Sec. 5. Enforcement of order. If the adverse party fails to comply

with an order granting support pendente lite, the court shall, motu
proprio or upon motion, issue an order of execution against him,
without prejudice to his liability for contempt.

When the person ordered to give support pendente lite refuses or

fails to do so, any third person who furnished that support to the
applicant may, after due notice and hearing in the same case,
obtain a writ of execution to enforce his right of reimbursement
against the person ordered to provide such support. (n)

Sec. 6. Support in criminal cases. In criminal actions where the

civil liability includes support for the offspring as a consequence of
the crime and the civil aspect thereof has not been waived,
reserved or instituted prior to its filing, the accused may be
ordered to provide support pendente lite to the child born to the
offended party allegedly because of the crime. The application
therefor may be filed successively by the offended party, her
parents, grandparents or guardian and the State in the
corresponding criminal case during its pendency, in accordance
with the procedure established under this Rule.

73 | P a g e
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
X. PARENTAL AUTHORITY AND CUSTODY
PATRIA POTESTAS, CONCEPT AND EVOLUTION
In the Roman and Germanic law, the patria potestas
conferred on the father the power of life or death
over the children which will last until the lifetime of
the father. This authority is established primarily for
his benefit. The modern view, manifested in our
code, means that this authority is for the benefit of
the children and granted to the parents as a
consequence of the heavy responsibilities imposed
upon them by law, which they have to discharge.
PARENTAL AUTHORITY (PATRIA POTESTAS) -the
sum of rights and obligations which parents have in
relation to the person and property of their children,
until their majority age or emancipation, and under
certain circumstances.
It is the natural right and duty of parents over the
person and property of their unemancipated children
which INCLUDES the caring for and rearing of such
children for civic consciousness and efficiency and
the development of their moral, mental and physical
character and well-being. (Art 209, FC)
Parental authority is not limited to the rights of
parents over their children because such is
reciprocal. Children under parental authority are
obliged to observed obedience, love, and respect
towards their parents. Children shall always observe
respect and reverence towards their parents and are
obliged to obey them as long as the children are
under parental authority. (Art 211, FC)
It is for the purpose of strengthening the family as
the foundation of the nation and to protect the
marriage institution as the foundation of the family.
(Art. XV, Sec. 3 (1) and (2), 1987 Constitution) Thus,
the State shall defend:
a.) Right of spouses: to
found a family in accordance with their religious
convictions and the demands of responsible
parenthood.
b.) Right of children: to
assistance, including proper care and nutrition,
and special protection from all forms of neglect,
abuse, cruelty, exploitation, and other conditions
prejudicial to their development.
CHILD - refers to person below eighteen (18) years
of age or those over but are unable to fully take care
of themselves or protect themselves from abuse,
neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or
condition. (R.A 7610) It refers to a person under 18
years of age. (RA 9344)
Characteristic of Parental Authority
GENERAL RULE: Parental authority and
responsibility may not be renounced or transferred
except in the cases authorized by law. (Art 210, FC)
EXCEPTIONS: GAC
a. guardianship
b. adoption
c. commitment of the child in entities and
institutions engaged in child care or in children’s
74 | P a g e
home duly accredited by the proper government
agency
Who Exercises Parental Authority and Custody
1. Legitimate children - The father and the mother
shall jointly exercise parental authority over the
persons of their common children. (Art. 211, FC)
In this case there is no need of judicial authority.
2. Illegitimate children – it is always the mother
who exercises parental authority even if the
father recognized the child.
Effect of Disagreement, Absence / Death,
Separation or Termination of Marriage of Parents
In case of DISAGREEMENT, the father's decision
shall prevail, UNLESS there is a judicial order to the
contrary. (Art. 211, FC)
In case of ABSENCE OR DEATH of either parent,
the parent present shall continue exercising parental
authority. The remarriage of the surviving parent
shall not affect the parental authority over the
children, unless the court appoints another person to
be the guardian of the person or property of the
children. (Art. 212, FC)
In case of SEPARATION of the parents, parental
authority shall be exercised by the parent designated
by the Court. The Court shall take into account all
relevant considerations, especially the choice of the
child over seven years of age, unless the parent
chosen is unfit (The 2nd spouse has no right of
parental authority over the child). No child under 7
years of age shall be separated from the mother,
unless the court finds compelling reasons to order
otherwise. (Art. 213, FC)
Art. 49. During the pendency of the action and in
the absence of adequate provisions in a written
agreement between the spouses, the Court shall
provide for the support of the spouses and the
custody and support of their common children. The
Court shall give paramount consideration to the
moral and material welfare of said children and their
choice of the parent with whom they wish to remain
as provided to in Title IX. It shall also provide for
appropriate visitation rights of the other parent.
Art. 50. The effects provided for by paragraphs (2),
(3), (4) and (5) of Article 43 and by Article 44 shall
also apply in the proper cases to marriages which
are declared ab initio or annulled by final judgment
under Articles 40 and 45.
The final judgment in such cases shall provide for
the liquidation, partition and distribution of the
properties of the spouses, the custody and support
of the common children, and the delivery of third
presumptive legitimes, unless such matters had
been adjudicated in previous judicial proceedings.
Art. 62. During the pendency of the action for legal
separation, the provisions of Article 49 shall likewise
apply to the support of the spouses and the custody
and support of the common children.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
Art. 63. One of the effects of legal separation is
that the custody of the minor children shall be
awarded to the innocent spouse, subject to the
provisions of Article 213 of FC.
In case of legal separation, still both exercise
parental authority over the child. What may be
awarded in favor of one over the other is parental
custody or physical company of the child and such
will not divest of the right to parental authority which
is broader in scope.
In case both parents died, grandparents judicially
appointed by the court will exercise parental
authority.
Duties of Children
Children shall always observe respect and
reverence towards their parents AND are obliged to
obey them as long as the children are under parental
authority. (Art 211 par 2, FC)
Filial Privilege Rule
No descendant shall be compelled, in a criminal
case, to testify against his parents and
grandparents, EXCEPT when such testimony is
indispensable in a crime against the descendant or
by one parent against the other. (Art 215, FC)
HOWEVER, under the Rules on Evidence: “No
person may be compelled to testify against his
parents, other direct ascendants, children or other
direct descendants (Rule 130, sec. 25).” Thereupon,
should a conflict arise between this provision and
civil code provision, the latter prevails, since a
procedural rule cannot impair substantive law.
SUBSTITUTE PARENTAL AUTHORITY
When Applicable
1. In case of death, absence or unsuitability of the
parents. (Art. 214, FC)
2. In default of parents or a judicially appointed
guardian. (Art. 216, FC)
3. When the best interests of the child so requires.
(Art. 222, FC)
Who May Exercise
1. In case of death, absence or unsuitability of the
parents, substitute parental authority shall be
exercised by the surviving grandparent. In case
several survive, the one designated by the court,
taking into account the same consideration
mentioned in the preceding article, shall
exercise the authority. (Art. 214, FC)
2. In default of parents or a judicially appointed
guardian, the following person shall exercise
substitute parental authority over the child in the
order indicated: (Art. 216, FC)
(1) The surviving grandparent, as provided in
Art. 214;
(2) The oldest brother or sister, over twenty-one
years of age, unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one
years of age, unless unfit or disqualified.
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Whenever the appointment or a judicial guardian
over the property of the child becomes
necessary, the same order of preference shall
be observed.
3. In case of foundlings, abandoned neglected or
abused children and other children similarly
situated, parental authority shall be entrusted in
summary judicial proceedings to heads of
children's homes, orphanages and similar
institutions duly accredited by the proper
government agency. (Art. 217, FC)
4. When the best interests of the child so requires,
the one appointed by the court as a guardian of
the child's property or a guardian ad litem
(following the order established in Art 216). (Art.
222, FC)
Extent of Authority
The person exercising substitute parental authority
shall have the same authority over the person of the
child as the parents. (Art. 233 par 1, FC)
SPECIAL PARENTAL AUTHORITY
When Applicable
In case of minor under supervision, instruction or
custody. (Art 218, FC)
Who Exercises
The school, its administrators and teachers, or the
individual, entity or institution engaged in child shall
have special parental authority and responsibility
over the minor child while under their supervision,
instruction or custody. (Art 218, FC)
Those given the authority and responsibility under
the preceding Article shall be principally and
solidarily liable for damages caused by the acts or
omissions of the unemancipated minor. The parents,
judicial guardians or the persons exercising
substitute parental authority over said minor shall be
subsidiarily liable. (Art 219 par 1, FC)
The respective liabilities of those referred to in the
preceding paragraph shall not apply if it is proved
that they exercised the proper diligence required
under the particular circumstances. (Art 219 par 2,
FC)
All other cases not covered by this and the
preceding articles shall be governed by the
provisions of the Civil Code on quasi-delicts. (Art
219 par 3, FC)
Extent of Special Parental Authority
Authority and responsibility shall apply to all
authorized activities whether inside or outside the
premises of the school, entity or institution. (Art 218,
FC)
In no case shall the school administrator, teacher of
individual engaged in child care exercising special
parental authority inflict corporal punishment upon
the child. (Art 233 par 2, FC)
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
EFFECTS OF PARENTAL AUTHORITY UPON THE
PERSONS OF THE CHILDREN
The parents and those exercising parental authority
shall have with the respect to their unemancipated
children or wards the following rights and duties:
(Art 220, FC)
1. To keep them in their company, to support,
educate and instruct them by right precept and
good example, and to provide for their
upbringing in keeping with their means;
2. To give them love and affection, advice and
counsel, companionship and understanding;
3. To provide them with moral and spiritual
guidance, inculcate in them honesty, integrity,
self-discipline, self-reliance, industry and thrift,
stimulate their interest in civic affairs, and inspire
in them compliance with the duties of
citizenship;
4. To furnish them with good and wholesome
educational materials, supervise their activities,
recreation and association with others, protect
them from bad company, and prevent them from
acquiring habits detrimental to their health,
studies and morals;
5. To represent them in all matters affecting their
interests;
6. To demand from them respect and obedience;
7. To impose discipline on them as may be
required under the circumstances; and
8. To perform such other duties as are imposed by
law upon parents and guardians.
Note: Parents and other persons exercising parental
authority shall be CIVILLY LIABLE for the injuries
and damages caused by the acts or omissions of
their unemancipated children living in their company
and under their parental authority subject to the
appropriate defenses provided by law. (Art. 221, FC)
Illustrations:
If the child is on vacation with his grandparents and
caused injury to another child, his parents may still
be impleaded in an action for damages because
while the child is not living in their company, the law
should be interpreted to mean legal parental
authority and custody and not necessarily limited to
physical custody.
At the time of causing injury, the child who
committed the act complained is the subject of a
pending adoption proceeding. By the time the
judgment is to be rendered in the civil case, the
adoption decree was already issued. In this case,
the adopters cannot be impleaded because the
biological parents have still parental authority over
the child at the time of the commission of the act
complained of.
The child who caused injury to a classmate is a
kindergarten pupil. The incident took place within the
premises of the school. Who shall be impleaded?
The school, its administrators and teachers, as well
as the parents of the child shall be impleaded.
If the incident took place during an educational trip,
the school may still be impleaded provided the
educational trip is an authorized activity of the
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school. This notwithstanding the fact that the victim
is not a student of the said school. In the event that
the teacher who supervises the child went to
bathroom, such teacher is considered negligent. He
should have been substituted by another to
supervise the children. The said persons may be
impleaded despite the fact that the minor is rich
because the consideration is the minority of the one
who caused injury.
The defense of the school and others who are
exercising special parental authority is the exercise
of due diligence as in quasi-delict. For the parents,
they can say that they could not exercise due
diligence in supervising their child.
If the assailant and victim are no longer minors and
the incident took place in the school where they are
studying, the school, its administrators and teachers
may be impleaded based on contract because the
contract between the school and student provided
that the school should provide adequate measures
to protect the student. Quasi-delict may also the
basis of action for damages. Schools of arts and
trade included even schools which are purely
academic institution (no distinction).
DISCIPLINARY MEASURES
Art. 223. The parents or, in their absence or
incapacity, the individual, entity or institution
exercising parental authority, may petition the proper
court of the place where the child resides, for an
order providing for disciplinary measures over the
child. The child shall be entitled to the assistance of
counsel, either of his choice or appointed by the
court, and a summary hearing shall be conducted
wherein the petitioner and the child shall be heard.
However, if in the same proceeding the court finds
the petitioner at fault, irrespective of the merits of the
petition, or when the circumstances so warrant, the
court may also order the deprivation or suspension
of parental authority or adopt such other measures
as it may deem just and proper.
Art. 224. The measures referred to in the preceding
article may include the commitment of the child for
not more than thirty days in entities or institutions
engaged in child care or in children's homes duly
accredited by the proper government agency.
The parent exercising parental authority shall not
interfere with the care of the child whenever
committed but shall provide for his support. Upon
proper petition or at its own instance, the court may
terminate the commitment of the child whenever just
and proper.
EFFECTS OF PARENTAL AUTHORITY UPON
PROPERTY OF CHILDREN
Art. 225. The father and the mother shall jointly
exercise legal guardianship over the property of the
unemancipated common child without the necessity
of a court appointment. In case of disagreement, the
father's decision shall prevail, unless there is a
judicial order to the contrary.
Where the market value of the property or the
annual income of the child exceeds P50,000, the
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
parent concerned shall be required to furnish a bond
in such amount as the court may determine, but not
less than ten per centum (10%) of the value of the
property or annual income, to guarantee the
performance of the obligations prescribed for
general guardians.
The ordinary rules on guardianship shall be merely
suppletory except when the child is under substitute
parental authority, or the guardian is a stranger, or a
parent has remarried, in which case the ordinary
rules on guardianship shall apply.
Notes:
The property of the minor should be registered in the
name of the minor because he is the owner thereof.
It shall not be registered in the name of his parents.
Judicial appointment is not necessary for the
administration and management of the property of
the child.
The parents, as administrator of the property of the
child can lease the property even without prior
judicial authorization. If the leased is for more than 1
year, there is a need for prior judicial authorization
because such amounts to encumbrance. They
cannot lease for 1 year with option to buy because
such amount to an act of disposition UNLESS there
is a prior judicial authorization.
The parents cannot also sell the property of their
minor child UNLESS there is a prior judicial
authorization and provided that the sale is for the
benefit of the child.
Art. 226. The property of the unemancipated child
earned or acquired with his work or industry or by
onerous or gratuitous title shall belong to the child in
ownership and shall be devoted exclusively to the
latter’s support and education, unless the title or
transfer provides otherwise.
The right of the parents over the fruits and income of
the child’s property shall be limited primarily to the
child’s support and secondarily to the collective daily
needs of the family.
Art. 227. If the parents entrust the management or
administration of any of their properties to an
unemancipated child, the net proceeds of such
property shall belong to the owner. The child shall be
given a reasonably monthly allowance in an amount
not less than that which the owner would have been
paid if the administrator were a stranger, unless the
owner, grants the entire proceeds to the child. In any
case, the proceeds thus given in whole or in part
shall not be charged to the child’s legitime.
TERMINATION OF PARENTAL AUTHORITY
Grounds for Permanent Termination
Art. 228. Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child.
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(4) If the person exercising parental authority has
subjected the child or allowed him to be
subjected to sexual abuse, such person shall
be permanently deprived by the court of such
authority. (Art. 232, FC)
Grounds for Temporary Termination
Art. 229. Unless subsequently revived by a final
judgment, parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of
the child in a case filed for the purpose;
(4) Upon final judgment of a competent court
divesting the party concerned of parental
authority; or
(5) Upon judicial declaration of absence or
incapacity of the person exercising parental
authority.
SUSPENSION OF PARENTAL AUTHORITY
Grounds
1. Upon conviction of the parent or the person
exercising the same of a crime which carries
with it the penalty of civil interdiction. (Art. 230,
FC)
The authority is automatically reinstated upon
service of the penalty or upon pardon or
amnesty of the offender.
2. The court in an action filed for the purpose in a
related case may also suspend parental
authority if the parent or the person exercising
the same: (Art. 231, FC)
a. Treats the child with excessive harshness or
cruelty;
b. Gives the child corrupting orders, counsel or
example;
c. Compels the child to beg; or
d. Subjects the child or allows him to be
subjected to acts of lasciviousness.
The grounds enumerated above are deemed to
include cases which have resulted from culpable
negligence of the parent or the person
exercising parental authority.
If the degree of seriousness so warrants, or the
welfare of the child so demands, the court shall
deprive the guilty party of parental authority or
adopt such other measures as may be proper
under the circumstances.
The suspension or deprivation may be revoked
and the parental authority revived in a case filed
for the purpose or in the same proceeding if the
court finds that the cause therefor has ceased
and will not be repeated.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XI. EMANCIPATION AND AGE OF MAJORITY

Concept

EMANCIPATION – is the release of a person from

parental authority whereby he becomes capacitated
for civil life.

Effects

Emancipation for any cause shall terminate parental

authority over the person and property of the child
who shall then be qualified and responsible for all
acts of civil life. (Art. 236, FC)

When Emancipation Take Place

Emancipation takes place by the attainment of

majority. Unless otherwise provided, majority
commences at the age of 18 years. (Art 234, FC, as
amemded by RA 6809)

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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XII. NAMES AND SURNAMES

NAME OF A PERSON – describes identity of a
person to distinguish him from others.
Characteristics
1. Absolute (to protect a person from being
confused with another)
2. Obligatory (no person can be without a name)
3. Beyond the commerce of man
(intransferrable/inalienable inter vivos or even
mortis causa but subject to trademarks or
service marks)
4. Imprescriptible (same name even after death)
5. Fixed - may only be changed as a result of
a. legal consequences – marriage,
legitimation/change of status; or
b. by judicial decree due to the ff. grounds:
i. change of status of person
ii. name is ridiculous, tainted with dishonor,
or extremely difficult to pronounce or
write
iii. publicly known for a new name for a long
period of time.
iv. sincere desire to adopt Filipino name to
remove all badges of foreign origin
In case of ANNULMENT of marriage, and the wife is
the guilty party, she shall resume her maiden name
and surname. If she is the innocent spouse, she may
resume her maiden name and surname.
HOWEVER, she may choose to continue employing
her former husband's surname, UNLESS:
1. The court decrees otherwise, or
2. She or the former husband is married again
to another person. (Art 371, NCC)
When LEGAL SEPARATION has been granted, the
wife shall continue using her name and surname
employed before the legal separation. (Art 372,
NCC)
A WIDOW may use the deceased husband's
surname as though he were still living, in
accordance with article 370. (Art 373, NCC)
Similarity and Identity of Names
In case of identity of names and surnames, the
younger person shall be obliged to use such
additional name or surname as will avoid confusion.
(Art 374, NCC)

Parts of Name In case of identity of names and surnames between

1. Legitimate Child
a. Given name
b. Middle name – mother’s surname
c. Surname/family name – father’s surname
(Art 364 and 369, NCC)
2. Illegitimate child who is not recognized
a. Given name
b. Surname – mother’s surname (Art 368,
NCC)
3. Illegitimate child who is recognized
a. Given name
b. Middle name – mother’s surname
c. Surname/family name – father’s surname
(Art 366, NCC)
4. Adopted child by husband and wife
a. Given name
b. Middle name – wife adopter’s surname
c. Surname – husband adopter’s surname
(Arts 365 and 367, NCC)
ascendants and descendants, the word "Junior" can
be used only by a son (also to daughter, no
prohibition). Grandsons and other direct male
descendants shall either:
1. Add a middle name or the mother's
surname, or
2. Add the Roman numerals II, III, and so on.
(Art 375, NCC)
Usurpation of Name / Surname in Relation to CA
142
Usurpation of a name and surname may be the
subject of an action for damages and other relief.
(Art 377, NCC) This is known as identity theft. There
is no need of actual injury because there is already a
potential harm. There can be civil and criminal
liability.
The unauthorized or unlawful use of another
person's surname gives a right of action to the latter.
(Art 378, NCC)

5. Adopted by Single Person (putative father) – The employment of pen names or stage names is
Stephanie Case permitted, PROVIDED it is done in good faith and
a. Given name there is no injury to third persons. Pen names and
b. Middle name – biological mother’s surname stage names cannot be usurped. (Art 379, NCC)
c. Surname – father’s surname
GENERAL RULE: No person shall use different
6. Adopted by a Single Person other than names and surnames (USE ONLY ONE NAME). (Art
Stephanie Case 380, NCC)
a. Given Name
b. Surname – adopter’s surname EXCEPT: One may use pen names or stage names,
PROVIDED it is done in good faith and there is no
Use of Surname by Women injury to third persons.
A MARRIED woman MAY use
1. Her maiden first name and surname and Note: In all legal transactions, use the legal name.
add her husband's surname, or
2. Her maiden first name and her husband's Change of Name
surname or
3. Her husband's full name, but prefixing a No person can change his name or surname without
word indicating that she is his wife, such as judicial authority. (Art 376, NCC; See Discussion in
"Mrs." (Art 370, NCC) Special Proceedings)
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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
XIII. ABSENCE
ABSENCE - a legal status of a person who is not in
his domicile, his whereabouts being unknown, and it
is uncertain whether he is dead or alive.
Stages of Absence
1. Provisional/Temporary - when a person
disappears from his domicile, his whereabouts
being unknown, and without leaving an agent to
administer his property. (Art. 381, NCC)
Remedies
The judge, at the instance of an interested party,
a relative, or a friend, may appoint a person to
represent him in all that may be necessary. (Art.
381, NCC)
This same rule shall be observed when under
similar circumstances the power conferred by
the absentee has expired. (Art. 381, NCC)
The appointment referred to having been made,
the judge shall take the necessary measures to
safeguard the rights and interests of the
absentee and shall specify the powers,
obligations and remuneration of his
representative, regulating them, according to the
circumstances, by the rules concerning
guardians. (Art. 382, NCC)
Who may be Appointed Provisional
Representative
1. Present spouse - shall be preferred when no
legal separation.
2. Any competent person - if the absentee left
no spouse, or if the spouse present is a
minor. (Art. 383, NCC)
Note: No acts of dominion to be exercised but
only of general power of administration except
when there is court authority.
2. Normal/Declared – when a person disappears
from his domicile, and 2 years having elapsed
without any news about the absentee or since
the receipt of the last news (if no
administrator/manager is appointed), or 5 years
in case the absentee has left a person in charge
of the administration of his property. (Art. 384,
NCC)
Period
After 2 years - in case the absentee left no
person in charge of the administration of his
property.
After 5 years - in case the absentee has left a
person in charge of the administration of his
property.
Who May File
The following may ask for the declaration of
absence:
1. The spouse present;
2. The heirs instituted in a will, who may
present an authentic copy of the same;
3. The relatives who may succeed by the law
of intestacy;
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4. Those who may have over the property of
the absentee some right subordinated to the
condition of his death. (Art 385, NCC)
Effectivity Date
The judicial declaration of absence shall not take
effect until 6 months after its publication in a
newspaper of general circulation. (Art. 386,
NCC)
Appointment and Powers of Administrator
An administrator of the absentee's property shall
be appointed in accordance with article 383.
(Art. 387, NCC)
The wife who is appointed as an administratrix
of the husband's property cannot alienate or
encumber the husband's property, or that of the
conjugal partnership, without judicial authority.
(Art. 388, NCC)
Termination of Administrator
1. When the absentee appears personally or
by means of an agent;
2. When the death of the absentee is proved
and his testate or intestate heirs appear;
3. When a third person appears, showing by a
proper document that he has acquired the
absentee's property by purchase or other
title.
Note: In these cases the administrator shall
cease in the performance of his office, and the
property shall be at the disposal of those who
may have a right thereto. (Art 389, NCC)
3. Definite Absence / Presumptive Death – when
the absentee is presumed dead.
a. Ordinary Absence (No danger of Death)
After an absence of 7 years - presumed
dead for all purposes, EXCEPT for those of
succession.
After an absence of 10 years - presumed
dead for the purpose of opening succession
If he disappeared after the age of 75 years,
an absence of 5 years shall be sufficient in
order that his succession may be opened.
(Art 390, NCC)
b. Extra-ordinary Absence (there is danger of
death)
After an absence of 4 years - presumed
dead for ALL purposes, including the
division of the estate among the heirs.
Instances
(1) A person on board a vessel lost during
a sea voyage, or an aeroplane which is
missing, who has not been heard of for
four years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces who has
taken part in war, and has been missing
for four years;
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

(3) A person who has been in danger of

death under other circumstances and b. Without prejudice to the provision of the preceding
his existence has not been known for article, upon the opening of a succession to
four years. (Art 391, NCC) which an absentee is called, his share shall
accrue to his coheirs, unless he has heirs,
ORDINARY ABSENCE EXTRAORDINARY/ assigns, or a representative. They shall all, as
QUALIFIED ABSENCE the case may be, make an inventory of the
a.7 YEARS, person 4 YEARS, person is property. (Art. 394)
presumed dead for all presumed dead for all
purposes except for purposes including those
c. The provisions of the preceding article are
those of opening of opening succession; 2
succession YEARS for purposes of
understood to be without prejudice to the action
b.10 YEARS, person remarriage of the spouse of petition for inheritance or other rights which
presumed dead for present, under the are vested in the absentee, his representatives
purposes of opening following circumstances: or successors in interest. These rights shall not
succession except if a.Person on board a be extinguished save by lapse of time fixed for
he disappeared after vessel lost during a sea prescription. In the record that is made in the
the age of 75, in voyage or an aeroplane Registry of the real estate which accrues to the
which case, a period which is missing; coheirs, the circumstance of its being subject to
of 5 years is period is counted from
the provisions of this article shall be stated. (Art.
sufficient. the loss of the vessel or
c. 4 YEARS, person aeroplane.
395)
presumed dead for b.Person in the armed
purposes of forces who has taken d. Those who may have entered upon the
remarriage of the part in war inheritance shall appropriate the fruits received
spouse present. c. in good faith so long as the absentee does not
Person in danger of appear, or while his representatives or
death under other successors in interest do not bring the proper
circumstances and his actions. (Art. 396)
existence has not been
known. Effect of Reappearance

Note: In presumptive death there is no need of
judicial declaration except for purposes of
remarriage.
Illustrations:
a. A disappeared in 1995 while there is a
pending case filed by him against B for
damages, who is a partner is a partnership,
and he left a will instituting X and Y as
testate heirs.
If the absentee appears, or without appearing his
existence is proved, he shall recover his property in
the condition in which it may be found, and the price
of any property that may have been alienated or the
property acquired therewith; but he cannot claim
either fruits or rents. (Art. 392, NCC)

Any interested person may file a petition to

represent the absentee in the pending case.
After 2 or 5 years, as the case may be,
person allowed by law may file a petition to
be appointed as administrator. After 7 years
(ordinary absence) or 4 years (extraordinary
absence), the partnership is deemed
dissolved. X and Y may file a petition for
probate of the will after 10 years (in case of
ordinary absence or 5 years in case he is 75
at the time he disappeared) or 4 years
(extraordinary absence). In the latter case,
the value of the estate shall be computed on
the 1st day of disappearance.

b. B left a will in favor of A as devisee. C is the

son of A. A disappeared in 1995. B died
2000. C must prove that A is still alive and
present at the time of death of B.

c. If the father of A died, C, the grandson, shall

inherit by representation. No need to prove
that A is alive and present.

Contingent Rights of the Absentee

a. Whoever claims a right pertaining to a person
whose existence is not recognized must prove
that he was living at the time his existence was
necessary in order to acquire said right. (Art.
393)
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 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
XIV. CIVIL REGISTER
CIVIL REGISTER – record of acts, events and
judicial decrees concerning the civil status of
persons. (Art. 407, NCC)
It is pursuant to parens patriae to constantly monitor
those what are to be recorded.
What Must Be Registered (Art. 408, NCC)
a. Births
b. Marriages
c. Deaths
d. legal separations
e. annulments of marriage
f. judgments declaring marriages void from the
beginning
g. legitimations
h. adoptions
i. acknowledgments of natural children
j. naturalization
k. loss or recovery of citizenship
l. civil interdiction
m. judicial determination of filiation
n. voluntary emancipation of a minor (no longer
applicable)
o. changes of name
Duty of Clerk of Court
In cases of legal separation, adoption, naturalization
and other judicial orders mentioned in the preceding
article, the clerk of the court which issued the decree
has the duty:
a. to ascertain whether the same has been
registered, and,
b. if this has not been done, to send a copy of said
decree to the civil registry of the city or
municipality where the court is functioning. (Art.
409, NCC). In cases of legal separation,
adoption, naturalization and other judicial orders
mentioned in the preceding article, it shall be the
duty of the clerk of the court which issued the
decree to ascertain whether the same has been
registered, and if this has not been done, to
send a copy of said decree to the civil registry of
the city or municipality where the court is
functioning. (n)
Probative Value of Civil Register
The books making up the civil register and all
documents relating thereto shall be considered
public documents and shall be prima facie evidence
of the facts therein contained. (Art. 410, NCC)
Liability of Civil Registrar
Every civil registrar shall be civilly responsible for
any unauthorized alteration made in any civil
register, to any person suffering damage thereby.
However, the civil registrar may exempt himself from
such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful
alteration. (Art. 411, NCC)
Amendments / Correction of Entries
No entry in a civil register shall be changed or
corrected, without a judicial order. (Art. 412, NCC)
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All other matters pertaining to the registration of civil
status shall be governed by special laws. (Art. 413,
NCC)
How May be Made
1. Judicial Proceedings (in rem – mere publication
is sufficient)
a. Summary – reception of evidence may be
done ex-parte
i. correction of clerical/typographical errors
(errors which are obvious to common
sense)
b. Adversarial – there is full blown trial if status
of petitioner is directly affected. Also when
there is change of name if ground is publicly
known by such name.
e.g. change of sex from male to female;
petition to delete the date of marriage in
birth certificate of child; petition to insert date
of marriage (contracted after recording of
birth of child)
Note: A person of alien parents cannot file a
petition for change of his former citizenship
to Filipino. He must file first for
naturalization. If of Filipino mothers and born
before the 1973 Constitution, the child shall
elect Philippine citizenship.
2. Administrative Proceedings (RA 9048)
a. By way of petition to be filed with the Local
Civil Registrar. Copy furnished the Local
Registrar General (NSO Administrator)
b. Grounds
i. Clerical errors
ii. Name or nickname is ridiculous, tainted
with dishonor or extremely difficult to
write or pronounce
iii. New first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly
known by the first name or nickname in
the community
iv. Change will avoid confusion.
Change of Name, Mere Privilege
Change of name can only be made once because it
is a mere privilege. Convenience cannot defeat legal
purpose. SC did not allow the dropping of middle
name just because in Singapore do not usually use
middle name.
 Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XV. FUNERALS

Duty and Right to Make Funeral Arrangements

The duty and the right to make arrangements for the
funeral of a relative shall be in accordance with the
order established for support, under article 199, FC.
(Art. 305, NCC) Thus, the ff. is the order of
preference:
a. Spouses
b. Descendants of the nearest degree
c. Ascendants of the nearest degree
d. Brothers and sisters

Note: In case of descendants of the same

degree, or of brothers and sisters, the oldest
shall be preferred. In case of ascendants,
the paternal shall have a better right. (Art.
305, NCC)

Every funeral shall be in keeping with the social

position of the deceased. (Art. 306, NCC)

The funeral shall be in accordance with the

expressed wishes of the deceased. In the absence
of such expression, his religious beliefs or affiliation
shall determine the funeral rites. In case of doubt,
the form of the funeral shall be decided upon by the
person obliged to make arrangements for the same,
after consulting the other members of the family.
(Art. 307, NCC)

Any person who shows disrespect to the dead, or

wrongfully interferes with a funeral shall be liable to
the family of the deceased for damages, material
and moral. (Art. 309, NCC)

Disposal of Body Organs

Authorities sustain the view that mortal remains or

organs of a person’s body cannot be considered
property within the meaning of the law, thus they can
not be the subject matter of a contract.

HOWEVER, RA 349 as amended by RA 1056, a

person may validly grant to a licensed physician,
surgeon, known scientist, of any medical or scientific
institution to detach at any time after the grantor’s
death any organ of his body for medical, surgical or
scientific purposes. The grant must be:
a. In writing
b. Specify the grantee
c. Specify the purpose
d. Signed by the grantor and 2 disinterested
witnesses

Expenses of Funeral Where Chargeable

Chargeable against the property of the deceased.

However, such shall be chargeable to the conjugal
partnership property, if the deceased is one of the
spouses. (Art. 310, NCC)

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