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PERSONS AND FAMILY RELATIONS o After accomplishment of this requirement, the people are deemed to have

Persons and Family Relations Law | Dean Sta. Maria conclusively been notified of the law even if actually the people or some of the
same have not read them.
o This rule covers:
DISCLAIMER 1. Presidential Decrees and Executive Orders by the president.
2. Administrative Rules and Regulations – if their purpose is to enforce
This document shall not be used as primary reference in or implement an existing law pursuant to a valid legislation.
lieu of the annotated books and reviewers it is based on. 3. City Charters.
o What may not be published:
1. Interpretative regulations.
THE CIVIL CODE OF THE PHILIPPINES 2. Those merely internal in nature – regulates only the personnel of an
administrative agency and not the public.
PRELIMINARY TITLE 3. Letters-of-instruction.
4. Circulars issued by the Monetary Board.
CHAPTER ONE: EFFECT AND APPLICATION OF LAWS o The clause, “unless it is otherwise provided” solely refers to the 15-day period
and not to the requirement of publication.
ART. 1. THIS ACT SHALL BE KNOWN AS THE "CIVIL CODE OF THE PHILIPPINES." o Publication is an indispensable requisite; the absence of which will not render
the law effective. (Nagkakaisang Maralita ng Sitio Masigasig, Inc. v. Military
Shrine Services, 2013)
Ø Main draft of the Civil Code was prepared by the Roxas Code Commission (E.O. 48).
Ø The Roxas Code Commission was composed of:
1. Dr. Jorge C. Bocobo – chairman of the commission. ART. 3. IGNORANCE OF THE LAW EXCUSES NO ONE FROM COMPLIANCE THEREWITH.
2. Judge Guillermo B. Guevarra
3. Dean Pedro Y. Ylagan Ø Ignorantia legis non excusat – ignorance of the law excuses no one.
4. Francisco R. Capistrano Ø When the rules for effectivity of laws are complied with, the public is always put on
5. Dr. Carmelino Alvendia (in lieu of Arturo M. Tolentino) “constructive notice” of the law’s existence and effectivity.
Ø An Act to Ordain and Institute the Civil Code of the Philippines (R.A. 386) was passed on Ø This article applies only to:
January 26, 1949. 1. Mandatory laws; and
Ø The 1950 Civil Code took effect on August 30, 1950. 2. Prohibitory laws.

ART. 2. LAWS SHALL TAKE EFFECT AFTER FIFTEEN DAYS FOLLOWING THE COMPLETION OF ART. 4. LAWS SHALL HAVE NO RETROACTIVE EFFECT, UNLESS THE CONTRARY IS PROVIDED.
THEIR PUBLICATION IN THE OFFICIAL GAZETTE, UNLESS IT IS OTHERWISE PROVIDED. THIS
CODE SHALL TAKE EFFECT ONE YEAR AFTER SUCH PUBLICATION.
Ø General Rule: Statutes are to be construed as having only prospective operation,
o Exception: When the purpose and intention of the legislature to give them a
Ø Amended by President Corazon Aquino’s E.O. 200, allowing publication of laws either in: retrospective effect is expressly declared or is necessarily implied from the
1. Official Gazette; or language used.
2. Newspaper of general circulation – more easily available, has a wide circulation, Ø In case of doubt, the same must be resolved against the retrospective effect.
and comes out regularly. Ø Instances when the law may be given retroactive effect:
Ø Effectivity of laws: 1. When the law expressly provides for retroactivity.
o Rules when there is a different day of effectivity: 2. When the law is curative (remedial).
1. When a statute does not explicitly provide for its effectivity, it shall § In order to cure defects and adding to the means of enforcing existing
have effect only after the expiration of the 15-dy period following the obligations, or make valid that which, before enactment of the remedial
completion of its publication. statute, was invalid.
2. If the law provides for a different period shorter or longer than the 15- § The legislature has the power to pass such acts which do not impair the
day period, then such shorter or longer period will prevail. obligations of contracts nor interfere with vested rights.
3. If the law provides that it shall take effect immediately, it means that 3. When the law is procedural.
it shall take effect immediately after publication with the 15-day period § When a statute deals with procedure only, prima facie, it applies to all
being dispensed with. pending and future actions.
o Publication must be in full or it is not publication at all since its purpose is to 4. When the law is penal in character and favorable to the accused.
inform the public of its contents. (Tañada v. Tuvera, 1986)
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§ Does not apply when the subject of a penal statute is a habitual
criminal. ART. 7. LAWS ARE REPEALED ONLY BY SUBSEQUENT ONES, AND THEIR VIOLATION OR NON-
• Habitual delinquent – if within a period of 10 years from the OBSERVANCE SHALL NOT BE EXCUSED BY DISUSE, OR CUSTOM OR PRACTICE TO THE
date of his release or last conviction of the crime of serious CONTRARY.
or less serious physical injuries, robo, hurto, estafa or
falsification, he is found guilty of any said crimes a third time WHEN THE COURTS DECLARED A LAW TO BE INCONSISTENT WITH THE CONSTITUTION, THE
or oftener. (Art. 62, Revised Penal Code (RPC)) FORMER SHALL BE VOID AND THE LATTER SHALL GOVERN.

ART. 5. ACTS EXECUTED AGAINST THE PROVISIONS OF MANDATORY OR PROHIBITORY LAWS ADMINISTRATIVE OR EXECUTIVE ACTS, ORDERS AND REGULATIONS SHALL BE VALID ONLY
SHALL BE VOID, EXCEPT WHEN THE LAW ITSELF AUTHORIZES THEIR VALIDITY. WHEN THEY ARE NOT CONTRARY TO THE LAWS OR THE CONSTITUTION.

Ø Mandatory law – when the omission of which renders the proceeding or acts to which it Ø Repeal – legislative act of abrogating through a subsequent law the effects of a previous
relates generally illegal or void. statute or portions thereof.
o Ex. Prescriptive periods provided by the law for filing particular suits. Ø Repeal may either be:
Ø Prohibitory law – contains positive prohibitions couched in negative terms importing that 1. Expressed – literally declared by a new law, either in:
the act required shall not be done otherwise than designated. (Brehm v. Republic, 1963) § Specific terms – where particular laws and provisions are named and
Ø General Rule: Acts committed in violation of mandatory and prohibitory laws are void. identified and declared to be repealed, or;
o Exception: When the law expressly provides for the validity of acts committed § General terms – where a provision in a new law declares all laws and
in violation of a mandatory or prohibitory provision of a statute, such act shall parts of laws inconsistent therewith to be repealed.
be considered valid and enforceable. 2. Implied – when a new law contains provisions contrary to or inconsistent with
those of a former without expressly repealing them.
ART. 6. RIGHTS MAY BE WAIVED, UNLESS THE WAIVER IS CONTRARY TO LAW, PUBLIC ORDER, § “All laws and parts thereof inconsistent with the provisions of this Act
PUBLIC POLICY, MORALS, OR GOOD CUSTOMS, OR PREJUDICIAL TO A THIRD PERSON WITH A
are hereby repealed or modified accordingly” – predicates the intended
RIGHT RECOGNIZED BY LAW.
repeal upon the condition that substantial conflict must be found in
existing and prior acts. Hence, not an express repeal.
§ Test: Whether the subsequent law encompasses entirely the subject
Ø Waiver – intentional relinquishment of a known right. matter of the former law and they cannot be logically or reasonably
o Elements: reconciled.
1. There is a right; Ø General Rule: A special law, providing for a particular case or class of cases, is not repealed
2. Such right is known; by a subsequent general law.
3. Actual intent to relinquish such right. o Exception: When the intent to repeal or alter is manifest, although the terms of
o Not presumed, but must be clearly and convincingly shown either by: the general law are broad enough to include the cases embraced in the special
1. Express stipulation; or law. (National Power Corporation v. Arca, 1968)
2. Acts admitting no other reasonable explanation. Ø No ordinary statute can override a constitutional provision. (Floresca v. Philex Mining
Ø Ignorance of a material fact negates waiver – waiver cannot be established by a consent Corporation, 1985)
given under a mistake or misapprehension of fact. (Consunji v. CA, 2001) Ø In interpreting statutes, they should be given a meaning that will not bring them in conflict
Ø Waivers cannot be made if they are contrary to law, public order, public policy, morals or with the Constitution. (Noblejas v. Teehankee, 1968)
good customs, or prejudicial to a third person with a right recognized by law. Ø General Rule: Where a portion of a statute is rendered unconstitutional and the remainder
o The preferential rights of tenants under C.A. 539 to purchase a public land cannot valid, the parts will be separated, ad the constitutional portion upheld.
be validly waived, as such was against public policy. (Gongon v. CA, 1970) o Exception: When the parts of the statute are so mutually dependent and
o The law does not consider as valid any agreement to receive less compensation connected, as conditions, considerations, inducements, or compensations for
than the worker is entitled to recover under the law. (Franklin Baker Co. of the each other, as to warrant a belief that the legislature intended them as a whole.
Philippines v. Alillana, 1967) (Lidasan v. COMELEC, 1967)
o The acceptance of benefits such as separation pay and terminal leave benefits Ø Administrative Rules and Regulations are binding on the courts so long as the procedure
would not amount to estoppel or waiver of right of employee to contest his illegal fixed for its promulgation is followed, and its scope is within the statutory authority granted
dismissal. (San Miguel Corporation v. Cruz, 1970) by the legislature. (Victorias Miling Company, Inc. v. Social Security Commission, 1962)
Ø General rule: Rights, protections, and advantages conferred by statutes may be waived. o An administrative agency cannot amend an Act of Congress.
o Exception: When the object of a statute is to promote great public interests,
liberty and morals, it cannot be defeated by any private stipulation. (Griffith v.
New York L. Ins. Co., 1945)
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ART. 8. JUDICIAL DECISIONS APPLYING OR INTERPRETING THE LAWS OR THE CONSTITUTION Ø When the law is clear, it must be applied according to its unambiguous provisions.
SHALL FORM A PART OF THE LEGAL SYSTEM OF THE PHILIPPINES.
Construction and interpretation come only after it has been demonstrated that application
is impossible or inadequate without them.
Ø If there is ambiguity in the law, interpretation of the law requires fidelity to the legislative
Ø The courts have the principal function of not only resolving legal controversies but also of purpose.
interpreting and construing vague provisions of law relative to a particular dispute. Ø A literal interpretation is to be rejected if it would be unjust or lead to absurd results. (Bello
Ø Construction – the art or process of discovering and expounding the meaning and intention v. CA, 1974)
of the authors of the law with respect to its application to a given case, where that intention
is rendered doubtful, among others by reason of the fact that the given case is not explicitly ART. 11. CUSTOMS WHICH ARE CONTRARY TO LAW, PUBLIC ORDER OR PUBLIC POLICY SHALL
provided for in the law. (Caltex, Inc. v. Palomar, 1966) NOT BE COUNTENANCED.
Ø Judicial Decisions – although in themselves not laws, assume the same authority as the
statute itself and, until authoritatively abandoned, necessarily become, to the extent that
they are applicable, the criteria which must control the actuations not only of those called ART. 12. A CUSTOM MUST BE PROVED AS A FACT, ACCORDING TO THE RULES OF EVIDENCE.
upon to abide thereby but also those duty-bound to enforce obedience thereto.
o Likewise constitute evidence of what the law means and how it was interpreted
by the courts. Ø Custom – a rule of conduct formed by repetition of acts, uniformly observed (practiced) as
o Judicial decisions of the Supreme Court (SC) are authoritative and precedent- a social rule, legally binding and obligatory.
setting, while those of the inferior courts and the Court of Appeals (CA) are Ø Merely because something is done as a matter of practice (social custom) does not mean
merely persuasive. that courts can rely on the same for purposes of adjudication as a juridical custom.
o General Rule: Deemed part of the law as of the date of its enactment since the o Juridical custom – can supplement statutory law or applied in the absence of such
SC’s application and interpretation merely established the contemporaneous statute.
legislative intent that the construed law purports to carry into effect. (People v. Ø Customs which are contrary to law, public order or public policy shall not be countenanced.
Licera, 1975) Ø A custom, even if proven, cannot prevail over a statutory rule or even a legal rule
§ Exception: When a doctrine of the SC is overruled and a different view enunciated by the Supreme Court. (In the Matter of the Petition for Authority to Continue
is adopted, the new doctrine should be applied prospectively, and use of the Firm name “Ozaeta, Romulo, etc.,” 1979)
should not apply to parties who had relied on the old doctrine and acted
on faith thereof. (People v. Jabinal, 1974) ART. 13. WHEN THE LAWS SPEAK OF YEARS, MONTHS, DAYS OR NIGHTS, IT SHALL BE
Ø Legis interpretation legis vim obtinet – the interpretation placed upon the written law by a UNDERSTOOD THAT YEARS ARE OF THREE HUNDRED SIXTY-FIVE DAYS EACH; MONTHS , OF
competent court has the force of law. THIRTY DAYS; DAYS, OF TWENTY-FOUR HOURS ; AND NIGHTS FROM SUNSET TO SUNRISE.

ART. 9. NO JUDGE OR COURT SHALL DECLINE TO RENDER JUDGMENT BY REASON OF THE IF MONTHS ARE DESIGNATED BY THEIR NAME, THEY SHALL BE COMPUTED BY THE NUMBER OF
SILENCE, OBSCURITY OR INSUFFICIENCY OF THE LAWS. DAYS WHICH THEY RESPECTIVELY HAVE.

IN COMPUTING A PERIOD, THE FIRST DAY SHALL BE EXCLUDED, AND THE LAST DAY INCLUDED.
Ø Judges must not evade performance of their responsibility to dispense justice with the
constitutional precept that no person shall be deprived of life, liberty, and property without
due process of law just because of an apparent non-existence of any law governing a Ø Impliedly repealed by Sec. 31 of the Administrative Code of 1987 (E.O. 292): Legal
particular legal dispute or because the law involved is vague or inadequate. Periods – “Year” shall be understood to be 12 calendar months; “month” of 30 days,
o When the statutes are silent or ambiguous, this is one of those fundamental unless it refers to a specific calendar month in which case it shall be computed according
principles which the courts invoke in order to arrive at a solution that would to the number of days the specific month contains; “day,” to a day of 24 hours and; “night”
respond to the vehement urge of conscience. (In Re: Padilla, 1943) from sunset to sunrise.
Ø Where the conclusions of a judge in his decision are not without logic or reason, he cannot o Calendar month – a month designated in the calendar without regard to the
be said to have been incompetent. (Corpus v. Cabaluna, 1974) number of days it may contain. Counted from the beginning of a certain
Ø The judiciary cannot “legislate,” for legislation is the function of the Congress. However, numbered day up to, but not including, the corresponding numbered day of the
in certain instances, courts “do and must legislate” to fill in the gaps in the law. (Floresca next month. (Ex. 1 month from December 31 is January 31)
v. Philex Mining Corporation, 1985) § If there is not a sufficient number of days in the next month, then up to
and including the last day of that month. (Ex. 1 month from January 31
ART. 10. IN CASE OF DOUBT IN THE INTERPRETATION OR APPLICATION OF LAWS, IT IS shall be February 28 or 29 for leap years)
PRESUMED THAT THE LAWMAKING BODY INTENDED RIGHT AND JUSTICE TO PREVAIL.
o “365 days” to “12 calendar months” clarifies the ambiguity when it comes to leap
years. (Ex. 1 year from March 1, 2015 shall be March 1, 2016 regardless of the
different number of days due to the leap year)
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o “First day shall be excluded, and the last day included” (Ex. 20 days from that the national law of the decedent applies, in intestate or testamentary succession, with
February 3 shall be February 23, because February 3 is excluded and February regard to the following:
23 is included) 1. Order of succession;
2. Amount of successional rights;
ART. 14. PENAL LAWS AND THOSE OF PUBLIC SECURITY AND SAFETY SHALL BE OBLIGATORY 3. Intrinsic validity of the provisions of the will; and
UPON ALL WHO LIVE OR SOJOURN IN THE PHILIPPINE TERRITORY, SUBJECT TO THE PRINCIPLES
§ Intrinsic validity – refers to the content.
OF PUBLIC INTERNATIONAL LAW AND TO TREATY STIPULATIONS.
§ Extrinsic validity – refers to the form and other solemnities.
4. Capacity to succeed.

Ø Application of the Principles of Generality and Territoriality of Criminal Law. ART. 17. THE FORMS AND SOLEMNITIES OF CONTRACTS, WILLS, AND OTHER PUBLIC
Ø General Rule: Citizens and foreigners are subject to penal laws and all other laws designed INSTRUMENTS SHALL BE GOVERNED BY THE LAWS OF THE COUNTRY IN WHICH THEY ARE
to maintain public security and safety. EXECUTED.
o Exception: When the Philippine government has waived its criminal jurisdiction
over them no n the basis of the principles of public international law and treaty WHEN THE ACTS REFERRED TO ARE EXECUTED BEFORE THE DIPLOMATIC OR CONSULAR
stipulations. (Ex. Jurisdiction over diplomatic agents, except consuls because OFFICIALS OF THE REPUBLIC OF THE PHILIPPINES IN A FOREIGN COUNTRY, THE SOLEMNITIES
they come only for commercial purposes not diplomatic) ESTABLISHED BY PHILIPPINE LAWS SHALL BE OBSERVED IN THEIR EXECUTION.
Ø Sojourn – temporary stay/visit, no residence required.
PROHIBITIVE LAWS CONCERNING PERSONS, THEIR ACTS OR PROPERTY, AND THOSE WHICH
ART. 15. LAWS RELATING TO FAMILY RIGHTS AND DUTIES, OR TO THE STATUS, CONDITION HAVE, FOR THEIR OBJECT, PUBLIC ORDER, PUBLIC POLICY AND GOOD CUSTOMS SHALL NOT BE
AND LEGAL CAPACITY OF PERSONS ARE BINDING UPON CITIZENS OF THE PHILIPPINES, EVEN RENDERED INEFFECTIVE BY LAWS OR JUDGMENTS PROMULGATED, OR BY DETERMINATIONS OR
THOUGH LIVING ABROAD. CONVENTIONS AGREED UPON IN A FOREIGN COUNTRY.

Ø Nationality rule – regardless of where a citizen of the Philippines might be, he or she will Ø For extrinsic validity forms and solemnities of public instruments, wills, and contracts shall
be governed by Philippine laws with respect to his or her family rights and duties, or to his be governed by the laws of the country where they are executed.
or her status, condition, and legal capacity. Ø Since diplomatic and consular officials are representatives of the Philippines, any act or
Ø Hence, if a Filipino citizen abroad, regardless of whether he or she was married here or contract made in a foreign country before them must conform to the solemnities under
abroad, successfully acquires an absolute divorce from his wife or husband, the Philippines Philippine law.
will not recognize such absolute divorce because the only moment when absolute divorce o This is so because the host country where such officials are assigned, by rules of
may be recognized is when it is the alien spouse who procures such divorce decree. international law, waives its jurisdiction over the premises of the diplomatic
Ø Where a Filipino procures absolute divorce abroad, his status in the Philippines shall still office of another country located in the said host country. (Ex. US Embassy is
be married, hence he commits concubinage if he marries again thereafter. (Tenchaves v. under the jurisdiction of US laws)
Escaño, 1965) Ø 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
ART. 16. REAL PROPERTY AS WELL AS PERSONAL PROPERTY IS SUBJECT TO THE LAW OF THE laws, or judgments promulgated, or by determinations or conventions agreed upon in a
COUNTRY WHERE IT IS STIPULATED. foreign country.
o In a case where a Filipina wife obtained a divorce abroad and later remarried an
HOWEVER, INTESTATE AND TESTAMENTARY SUCCESSIONS, BOTH WITH RESPECT TO THE American, the Filipino husband in the Philippines can file a legal separation case
ORDER OF SUCCESSION AND TO THE AMOUNT OF SUCCESSIONAL RIGHTS AND TO THE INTRINSIC against the wife for having technically committed adultery, considering that the
VALIDITY OF TESTAMENTARY PROVISIONS, SHALL BE REGULATED BY THE NATIONAL LAW OF absolute divorce is not recognized in the Philippines. (Tenchaves v. Escaño,
THE PERSON WHOSE SUCCESSION IS UNDER CONSIDERATION, WHATEVER MAY BE THE NATURE 1965)
OF THE PROPERTY AND REGARDLESS OF THE COUNTRY WHEREIN SAID PROPERTY MAY BE
FOUND. ART. 18. IN MATTERS WHICH ARE GOVERNED BY THE CODE OF COMMERCE AND SPECIAL
LAWS, THEIR DEFICIENCY SHALL BE SUPPLIED BY THE PROVISIONS OF THIS CODE.

Ø Where a citizen of Turkey made a last will and testament providing that his property shall
be disposed of pursuant to Philippine laws, the SC ruled that such provision is illegal and Ø Suppletory nature – any deficiency in the Code of Commerce or special laws shall be
void because the national law should govern successional rights. (Miciano v. Brimo, 1924) supplied by the provisions of the Civil Code.
Ø Where a foreigner executed a will in the Philippines but who, at the time of his death, was
both a national of the United States and also domiciled in the United States, the SC ruled CHAPTER TWO: HUMAN RELATIONS

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ART. 19. EVERY PERSON MUST, IN THE EXERCISE OF HIS RIGHTS AND IN THE PERFORMANCE OF o However, in this case, the petitioner was granted actual damages arising from the
HIS DUTIES, ACT WITH JUSTICE, GIVE EVERYONE HIS DUE, AND OBSERVE HONESTY AND GOOD
preparations made for the marriage ceremony.
FAITH.
Ø No damages can be recovered under Arts. 19 and 21 where the sexual intercourse is a
product of voluntariness and mutual desire. (Hermosisima v. CA, 1960)

Ø Commonly referred to as the principle of “abuse of rights.” ART. 22. EVERY PERSON WHO THROUGH AN ACT OF PERFORMANCE BY ANOTHER, OR ANY
o Elements: OTHER MEANS, ACQUIRES OR COMES INTO POSSESSION OF SOMETHING AT THE EXPENSE OF THE
1. Legal right or duty; LATTER WITHOUT JUST OR LEGAL GROUND, SHALL RETURN THE SAME TO HIM.
2. Exercised in bad faith; and
3. Sole intent of prejudicing or injuring another.
Ø Sets the following standards in the exercise of one’s rights and in the performance of one’s Ø The concept of this article is the prevention of unjust enrichment.
duties: o Unjust enrichment – when a person unfairly gets a benefit by chance, mistake or
1. To act with justice; another's misfortune for which the one enriched has not paid or worked and
2. To give everyone his due; and morally and ethically should not keep.
3. To observe honesty and good faith. Ø Nemo cum alterious detriment locupletari potest – no one shall enrich himself at the
Ø A “legal wrong” is committed when a right is exercised in a manner which does not expense of another.
conform with the norms enshrined in Art. 19 and results in damage to another, for which
the wrongdoer must be held responsible. ART. 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
ART. 20. EVERY PERSON WHO, CONTRARY TO LAW, WILFULLY OR NEGLIGENTLY CAUSES FOR INDEMNITY IF THROUGH THE ACT OR EVENT HE WAS BENEFITED.
DAMAGE TO ANOTHER, SHALL INDEMNIFY THE LATTER FOR THE SAME.

Ø Ex. Without A’s knowledge, a flood drives his cattle to the cultivated highland of B. A’s
Ø Good faith is presumed, and he who alleges bad faith has the duty to prove the same. cattle are saved, but B’s crop is destroyed.
o Good faith – the state of mind which is manifested by the acts of the individual o A was benefited because the cattle were saved by B’s highland. Thus, although
concerned, consisting of the intention to abstain from taking an unconscionable A was not at fault, it is right and equitable that he should indemnify B.
and unscrupulous advantage of another.
o Bad faith – a breach of known duty due to some motives or interests or ill-will
that partakes of the nature of fraud; conscious doing of a wrong.
§ Malice – connotes ill-will or spite and speaks not in response to duty; ART. 24. IN ALL CONTRACTUAL, PROPERTY OR OTHER RELATIONS, WHEN ONE OF THE PARTIES
intention to do ulterior and unjustifiable harm. IS AT A DISADVANTAGE ON ACCOUNT OF HIS MORAL DEPENDENCE, IGNORANCE, INDIGENCE,
Ø This article contains a “general sanction” (to indemnify) for all other provisions of law MENTAL WEAKNESS, TENDER AGE OR OTHER HANDICAP, THE COURTS MUST BE VIGILANT FOR
which do not especially provide their own sanction. HIS PROTECTION.
Ø Compared to Arts. 19 and 21, acts falling under this article may be done either willfully or
negligently.
o Negligence – omission of the amount of due diligence required. Ø Court vigilance – the courts must render justice and must therefore be very vigilant in
protecting the rights of the disadvantaged with the end view that any decision will be in
ART. 21. ANY PERSON WHO WILFULLY CAUSES LOSS OR INJURY TO ANOTHER IN A MANNER consonance with what is right and legal.
THAT IS CONTRARY TO MORALS, GOOD CUSTOMS OR PUBLIC POLICY SHALL COMPENSATE THE
Ø Pleadings as well as remedial laws should be construed liberally in order that the litigants
LATTER FOR THE DAMAGE.
may have ample opportunity to their respective claims and that a possible denial of
substantial justice due to legal technicalities may be avoided. (De Lima v. Laguna Tayabas
Company, 1988)
Ø Designed to fill in the countless gaps in the statutes, which leave so many victims of moral o In this case, the heirs of the pauper victims in the traffic accident chose not to
wrongs helpless, even though they have actually suffered material and moral injury. appeal in the hope that the transportation company will pay the damages awarded
Ø Deals with acts contra bonus mores (against good morals). by the lower court, but unfortunately said company still appealed to the CA,
o Elements: which was obviously dilatory and oppressive of the rights of said claimants.
1. Legal act;
2. Contrary to morals, good customs, public order, or public policy; ART. 25. THOUGHTLESS EXTRAVAGANCE IN EXPENSES FOR PLEASURE OR DISPLAY DURING A
3. Intent to injure. PERIOD OF ACUTE PUBLIC WANT OR EMERGENCY MAY BE STOPPED BY ORDER OF THE COURTS
Ø A mere breach of promise to marry is not an actionable wrong. (Wassmer v. Velez, 1964) AT THE INSTANCE OF ANY GOVERNMENT OR PRIVATE CHARITABLE INSTITUTION.

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Ø The law exacts on public officials an obligation to be very vigilant and just so that the
Ø This article seeks to prevent inconsiderate and ostentatious activities during times of public can be assured that the government is truly effective in servicing their needs.
emergency. Limited to any: Ø The remedy is a claim for damages.
1. Government institution; or
2. Charitable institution. ART. 28. UNFAIR COMPETITION IN AGRICULTURAL, COMMERCIAL OR INDUSTRIAL
ENTERPRISES OR IN LABOR THROUGH THE USE OF FORCE, INTIMIDATION, DECEIT,
ART. 26. EVERY PERSON SHALL RESPECT THE DIGNITY, PERSONALITY, PRIVACY AND PEACE OF MACHINATION OR ANY OTHER UNJUST, OPPRESSIVE OR HIGHHANDED METHOD SHALL GIVE
MIND OF HIS NEIGHBORS AND OTHER PERSONS. THE FOLLOWING AND SIMILAR ACTS, THOUGH RISE TO A RIGHT OF ACTION BY THE PERSON WHO THEREBY SUFFERS DAMAGE.
THEY MAY NOT CONSTITUTE A CRIMINAL OFFENSE, SHALL PRODUCE A CAUSE OF ACTION FOR
DAMAGES, PREVENTION AND OTHER RELIEF:
Ø Democracy becomes a veritable mockery if any person or group of persons by any unjust
(1) PRYING INTO THE PRIVACY OF ANOTHER'S RESIDENCE: or highhanded method may deprive others of a fair chance to engage in business or earn a
(2) MEDDLING WITH OR DISTURBING THE PRIVATE LIFE OR FAMILY RELATIONS OF ANOTHER; living.
(3) INTRIGUING TO CAUSE ANOTHER TO BE ALIENATED FROM HIS FRIENDS; Ø Unfair competition – acts that cause an economic injury to a business through a deceptive
(4) VEXING OR HUMILIATING ANOTHER ON ACCOUNT OF HIS RELIGIOUS BELIEFS, LOWLY or wrongful business practice. (Ex. trademark infringement and misappropriation)
STATION IN LIFE, PLACE OF BIRTH, PHYSICAL DEFECT, OR OTHER PERSONAL CONDITION.

ART. 29. WHEN THE ACCUSED IN A CRIMINAL PROSECUTION IS ACQUITTED ON THE GROUND
Ø This article is referred to as the “home wrecker statute.” THAT HIS GUILT HAS NOT BEEN PROVED BEYOND REASONABLE DOUBT, A CIVIL ACTION FOR
Ø Includes the following acts and those similar: DAMAGES FOR THE SAME ACT OR OMISSION MAY BE INSTITUTED. SUCH ACTION REQUIRES
1. Prying into the privacy of another’s residence ONLY A PREPONDERANCE OF EVIDENCE. UPON MOTION OF THE DEFENDANT, THE COURT MAY
§ The privacy of one’s home is an inviolable right. Yet, during the time REQUIRE THE PLAINTIFF TO FILE A BOND TO ANSWER FOR DAMAGES IN CASE THE COMPLAINT
1947 Civil Code Commission, the laws in force did not squarely and SHOULD BE FOUND TO BE MALICIOUS.
effectively protect such right.
2. Meddling with or disturbing the private life or family relations of another IF IN A CRIMINAL CASE THE JUDGMENT OF ACQUITTAL IS BASED UPON REASONABLE DOUBT,
§ Alienation of the affection of another’s wife or husband, unless it THE COURT SHALL SO DECLARE. IN THE ABSENCE OF ANY DECLARATION TO THAT EFFECT, IT
constitutes adultery or concubinage, is not condemned by the law, MAY BE INFERRED FROM THE TEXT OF THE DECISION WHETHER OR NOT THE ACQUITTAL IS DUE
much as it may shock society. TO THAT GROUND.
§ This seeks to sanction the meddling of so-called friends who poison
the mind of one or more members of the family against the other
members. Ø Quantum of evidence:
3. Intriguing to cause another to be alienated from his friends 1. Proof beyond reasonable doubt – criminal cases – that amount of proof which
§ Similar with the previous number. forms an abiding moral certainty that the accused committed the crime charged.
4. Vexing or humiliating another on account of his religious beliefs, lowly station 2. Preponderance of evidence – civil cases – the evidence adduced by one side
in life, place of birth, physical defect, or other personal condition outweighs that of the adverse party.
§ Social equality is not sought by the legal provision under 3. Substantial evidence – procedural and administrative cases – such relevant
consideration, but due regard for decency and propriety. evidence as a reasonable mind might accept as adequate to support a conclusion.
§ Vexing – harsh or critical statements about someone. Ø The fact that the guilt was not proven beyond reasonable doubt must be expressly stated in
the criminal decision.
ART. 27. ANY PERSON SUFFERING MATERIAL OR MORAL LOSS BECAUSE A PUBLIC SERVANT OR o Thereafter, a separate civil action for damages may be instituted.
EMPLOYEE REFUSES OR NEGLECTS, WITHOUT JUST CAUSE, TO PERFORM HIS OFFICIAL DUTY
MAY FILE AN ACTION FOR DAMAGES AND OTHER RELIEF AGAINST HE LATTER, WITHOUT ART. 30. WHEN A SEPARATE CIVIL ACTION IS BROUGHT TO DEMAND CIVIL LIABILITY ARISING
PREJUDICE TO ANY DISCIPLINARY ADMINISTRATIVE ACTION THAT MAY BE TAKEN. 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.
Ø Elements:
1. Public officer;
2. Refusal to assist; Ø Even if the civil obligation arose from a criminal offense, the required quantum of evidence
3. No justifiable reason; and in a civil suit to claim such civil obligation is merely preponderance of evidence.
4. Damage suffered.

6 YAP, K. | ATENEO LAW


ART. 31. WHEN THE CIVIL ACTION IS BASED ON AN OBLIGATION NOT ARISING FROM THE ACT …(18) FREEDOM FROM EXCESSIVE FINES, OR CRUEL AND UNUSUAL PUNISHMENT, UNLESS
OR OMISSION COMPLAINED OF AS A FELONY, SUCH CIVIL ACTION MAY PROCEED THE SAME IS IMPOSED OR INFLICTED IN ACCORDANCE WITH A STATUTE WHICH HAS NOT BEEN
INDEPENDENTLY OF THE CRIMINAL PROCEEDINGS AND REGARDLESS OF THE RESULT OF THE JUDICIALLY DECLARED UNCONSTITUTIONAL; AND
LATTER. (19) FREEDOM OF ACCESS TO THE COURTS.

IN ANY OF THE CASES REFERRED TO IN THIS ARTICLE, WHETHER OR NOT THE DEFENDANT'S
Ø This article seeks to give an aggrieved party a remedy and a cause of action for injuries ACT OR OMISSION CONSTITUTES A CRIMINAL OFFENSE, THE AGGRIEVE D PARTY HAS A RIGHT
which do not necessarily arise from the commission of a crime. (Ex. Quasi-delicts in Arts. TO COMMENCE AN ENTIRELY SEPARATE AND DISTINCT CIVIL ACTION FOR DAMAGES, AND FOR
2176-2194 of the Civil Code) OTHER RELIEF. SUCH CIVIL ACTION SHALL PROCEED INDEPENDENTLY OF ANY CRIMINAL
Ø Applies to: PROSECUTION (IF THE LATTER BE INSTITUTED), AND MAY BE PROVED BY A PREPONDERANCE
o Culpa aquiliana – quasi-delict. OF EVIDENCE.
o Culpa contractual – violation of the contract resulting to damages. (Ex. bus
driver falls off a deep precipice, driver acquitted in criminal case, but liable for THE INDEMNITY SHALL INCLUDE MORAL DAMAGES. EXEMPLARY DAMAGES MAY ALSO BE
civil damages for failure to carry the passengers safely to their destination) ADJUDICATED.
Ø It does not provide for an independent civil action.
o Independent civil action – when the civil action is based on an obligation not THE RESPONSIBILITY HEREIN SET FORTH IS NOT DEMANDABLE FROM A JUDGE UNLESS HIS ACT
arising from the act or omission complained of as a felony. OR OMISSION CONSTITUTES A VIOLATION OF THE PENAL CODE OR OTHER PENAL STATUTE.

ART. 32. ANY PUBLIC OFFICER OR EMPLOYEE, OR ANY PRIVATE INDIVIDUAL, WHO DIRECTLY
OR INDIRECTLY OBSTRUCTS, DEFEATS , VIOLATES OR IN ANY MANNER IMPEDES OR IMPAIRS
Ø Elements of a cause of action:
ANY OF THE FOLLOWING RIGHTS AND LIBERTIES OF ANOTHER PERSON SHALL BE LIABLE TO
1. Right in favor of the plaintiff;
THE LATTER FOR DAMAGES :
2. Obligation on the part of the named defendant to respect or not to violate such
right; and
(1) FREEDOM OF RELIGION; 3. Act or omission on the part of such defendant violative of the right of the plaintiff
(2) FREEDOM OF SPEECH; or constituting a breach of the obligation of defendant to plaintiff.
(3) FREEDOM TO WRITE FOR THE PRESS OR TO MAINTAIN A PERIODICAL PUBLICATION; Ø Reasons why a separate civil action for violations of civil liberties is essential to the
(4) FREEDOM FROM ARBITRARY OR ILLEGAL DETENTION; effective maintenance of democracy:
(5) FREEDOM OF SUFFRAGE; 1. In most cases, the threat to freedom originates from abuses of power of
(6) THE RIGHT AGAINST DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW; government officials and peace officers. However, prosecutors would fail to file
(7) THE RIGHT TO A JUST COMPENSATION WHEN PRIVATE PROPERTY IS TAKEN FOR PUBLIC criminal actions because evidence was insufficient, or because the official is of
USE;
a higher rank.
(8) THE RIGHT TO THE EQUAL PROTECTION OF THE LAWS; 2. Even when the prosecutor filed a criminal action, the requirement of proof
(9) THE RIGHT TO BE SECURE IN ONE'S PERSON, HOUSE, PAPERS, AND EFFECTS AGAINST beyond reasonable doubt often prevented the appropriate punishment.
UNREASONABLE SEARCHES AND SEIZURES;
3. Direct and open violations of the RPC trampling upon the freedoms named are
(10) THE LIBERTY OF ABODE AND OF CHANGING THE SAME; not so frequent as those subtle, clever, and indirect ways which do not come
(11) THE PRIVACY OF COMMUNICATION AND CORRESPONDENCE; within the ambit of the penal law.
(12) THE RIGHT TO BECOME A MEMBER OF ASSOCIATIONS OR SOCIETIES FOR PURPOSES NOT Ø Good faith is not a defense because to be liable under Art. 32, it is enough that there was a
CONTRARY TO LAW;
violation of a constitutional right. (Lim v. Ponce de Leon, 1975)
(13) THE RIGHT TO TAKE PART IN A PEACEABLE ASSEMBLY TO PETITION THE GOVERNMENT Ø The responsibility of judges herein is not demandable unless his act or omission constitutes
FOR REDRESS OF GRIEVANCES;
a violation of the RPC or other penal statute.
(14) THE RIGHT TO BE FREE FROM INVOLUNTARY SERVITUDE IN ANY FORM; o Judges cannot be subjected to any liability for any of their official acts, no matter
(15) THE RIGHT OF THE ACCUSED AGAINST EXCESSIVE BAIL; how erroneous, so long as they act in good faith. (Esguerra v. Gonzales-Asdala,
(16) THE RIGHT OF THE ACCUSED TO BE HEARD BY HIMSELF AND COUNSEL, TO BE INFORMED 2004)
OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM, TO HAVE A SPEEDY AND
PUBLIC TRIAL, TO MEET THE WITNESSES FACE TO FACE, AND TO HAVE COMPULSORY PROCESS
TO SECURE THE ATTENDANCE OF WITNESS IN HIS BEHALF;
(17) FREEDOM FROM BEING COMPELLED TO BE A WITNESS AGAINST ONE'S SELF, OR FROM
BEING FORCED TO CONFESS GUILT, OR FROM BEING INDUCED BY A PROMISE OF IMMUNITY OR
REWARD TO MAKE SUCH CONFESSION, EXCEPT WHEN THE PERSON CONFESSING BECOMES A
STATE WITNESS;

7 YAP, K. | ATENEO LAW


ART. 33. IN CASES OF DEFAMATION, FRAUD, AND PHYSICAL INJURIES A CIVIL ACTION FOR o General Rule: When a criminal action is instituted, the civil action is deemed
DAMAGES, ENTIRELY SEPARATE AND DISTINCT FROM THE CRIMINAL ACTION, MAY BE
instituted with the former.
BROUGHT BY THE INJURED PARTY. SUCH CIVIL ACTION SHALL PROCEED INDEPENDENTLY OF
§ Exceptions: When the offended party either:
THE CRIMINAL PROSECUTION, AND SHALL REQUIRE ONLY A PREPONDERANCE OF EVIDENCE. 1. Waives the civil action;
2. Reserves his right to institute it separately; or
o Shall be made before the prosecution starts
Ø The rationale for independent civil actions is to allow the citizen to enforce his rights in a presenting its evidence and under circumstances
private action brought by him, regardless of the action of the State attorney. affording the offended party a reasonable
o While the State is the complainant in the criminal case, the injured individual is opportunity to make such reservation.
the one most concerned because it is he who suffered directly. 3. Institutes the civil action prior to the criminal action.
Ø The terms fraud, defamation, and physical injuries must be understood in their ordinary o After the criminal action has commenced, the separate civil action arising
sense. Hence, they do not follow the RPC definition. therefrom cannot be instituted until final judgment has been entered in the
1. Defamation may include libel. criminal actions.
2. Fraud may include estafa. § If the criminal action is filed after the civil action, the latter shall be
3. Physical injuries may include death or homicide. suspended in whatever stage it may be found before judgment on the
§ However, criminal negligence/reckless imprudence is not one of the merits. The suspension shall last until final judgment is rendered in the
three crimes mentioned herein. Acquittal in the criminal action is a bar criminal action.
to his civil liability based upon the same criminal act. (Corpus v. Paje, o Civil action may proceed independently in cases provided in Arts. 32, 33, 34 and
1969) 2176 of the Civil Code.
o General Rule: Death of the accused after arraignment and during pendency of the
ART. 34. WHEN A MEMBER OF A CITY OR MUNICIPAL POLICE FORCE REFUSES OR FAILS TO criminal action shall extinguish the civil liability arising therefrom.
RENDER AID OR PROTECTION TO ANY PERSON IN CASE OF DANGER TO LIFE OR PROPERTY, SUCH § Exception: The independent civil action instituted under Arts. 32, 33,
PEACE OFFICER SHALL BE PRIMARILY LIABLE FOR DAMAGES, AND THE CITY OR MUNICIPALITY 34 and 2176, or those instituted to enforce liability arising from other
SHALL BE SUBSIDIARILY RESPONSIBLE THEREFOR. THE CIVIL ACTION HEREIN RECOGNIZED sources of obligation may be continued against the state or legal
SHALL BE INDEPENDENT OF ANY CRIMINAL PROCEEDINGS, AND A PREPONDERANCE OF representative of the accused after proper substitution or against said
EVIDENCE SHALL SUFFICE TO SUPPORT SUCH ACTION. estate.
• Sources of obligation:
1. Laws;
Ø It is the duty of police officers to see to it that peace and order are maintained in the 2. Contracts;
communities. 3. Quasi-contracts;
Ø Subsidiarily responsible – the city or municipality shall be liable for damages that the police 4. Delicts; and
officers are unable to pay. 5. Quasi-delicts.
o If the accused dies before arraignment, the case shall be dismissed without
ART. 35. WHEN A PERSON, CLAIMING TO BE INJURED BY A CRIMINAL OFFENSE, CHARGES prejudice to any civil action the offended party may file against the estate of the
ANOTHER WITH THE SAME, FOR WHICH NO INDEPENDENT CIVIL ACTION IS GRANTED IN THIS deceased.
CODE OR ANY SPECIAL LAW, BUT THE JUSTICE OF THE PEACE FINDS NO REASONABLE GROUNDS o A final judgment rendered in a civil action absolving the defendant from civil
TO BELIEVE THAT A CRIME HAS BEEN COMMITTED, OR THE PROSECUTING ATTORNEY REFUSES liability is not a bar to a criminal action against the defendant for the same act or
OR FAILS TO INSTITUTE CRIMINAL PROCEEDINGS, THE COMPLAINT MAY BRING A CIVIL ACTION omission subject of the civil action.
FOR DAMAGES AGAINST THE ALLEGED OFFENDER. SUCH CIVIL ACTION MAY BE SUPPORTED BY
A PREPONDERANCE OF EVIDENCE. UPON THE DEFENDANT'S MOTION, THE COURT MAY ART. 36. PRE-JUDICIAL QUESTIONS WHICH MUST BE DECIDED BEFORE ANY CRIMINAL
REQUIRE THE PLAINTIFF TO FILE A BOND TO INDEMNIFY THE DEFENDANT IN CASE THE PROSECUTION MAY BE INSTITUTED OR MAY PROCEED, SHALL BE GOVERNED BY RULES OF
COMPLAINT SHOULD BE FOUND TO BE MALICIOUS. COURT WHICH THE SUPREME COURT SHALL PROMULGATE AND WHICH SHALL NOT BE IN
CONFLICT WITH THE PROVISIONS OF THIS CODE.
IF DURING THE PENDENCY OF THE CIVIL ACTION, AN INFORMATION SHOULD BE PRESENTED BY
THE PROSECUTING ATTORNEY, THE CIVIL ACTION SHALL BE SUSPENDED UNTIL THE
TERMINATION OF THE CRIMINAL PROCEEDINGS. Ø General Rule: Where both a civil and a criminal case arising from the same facts are filed
in court, the criminal case takes precedence.
o Exceptions:
Ø Rule 111 of the Rules of Court provides for the procedure with respect to reservation of 1. When there exists a prejudicial question which should be resolved first
civil actions. before action could be taken in a criminal case; or

8 YAP, K. | ATENEO LAW


2. When the law provides that both civil and criminal case can be BOOK I: PERSONS
instituted simultaneously such as that provided in Art. 33 of the Civil
Code. TITLE ONE: CIVIL PERSONALITY
Ø Ex. A, the wife, files a case of concubinage against B, her husband, for contracting a
subsequent marriage with C. B files for the declaration of nullity of the subsequent marriage CHAPTER ONE: GENERAL PROVISIONS
on the ground of lack of an essential requisite.
o The case for concubinage shall be suspended as the validity of the subsequent ART. 37. JURIDICAL CAPACITY, WHICH IS THE FITNESS TO BE THE SUBJECT OF LEGAL
marriage, being contested in the nullity case, is a prejudicial question that has to RELATIONS, IS INHERENT IN EVERY NATURAL PERSON AND IS LOST ONLY THROUGH DEATH.
be resolved before the commencement or continuance of the concubinage case. CAPACITY TO ACT, WHICH IS THE POWER TO DO ACTS WITH LEGAL EFFECT, IS ACQUIRED AND
MAY BE LOST.

Ø Juridical Capacity Capacity to Act


• The fitness to be the subject of legal • The power to do acts with legal
relations. effect.
• Acquired upon the birth of a person. • Not inherent in a person; it is
attained and conferred.
• Terminated only upon death. • It can be lost only only by death
but by any valid cause provided by
law.

ART. 38. MINORITY, INSANITY OR IMBECILITY, THE STATE OF BEING A DEAF-MUTE,


PRODIGALITY AND CIVIL INTERDICTION ARE MERE RESTRICTIONS ON CAPACITY TO ACT, AND
DO NOT EXEMPT THE INCAPACITATED PERSON FROM CERTAIN OBLIGATIONS, AS WHEN THE
LATTER ARISE FROM HIS ACTS OR FROM PROPERTY RELATIONS, SUCH AS EASEMENTS .

Ø Mere restrictions on the capacity to act.


Ø Accessory penalties:
1. Minority – those less than 18 years of age.
2. Insanity – mental illness of such a severe nature that a person cannot distinguish
fantasy from reality, cannot conduct her/his affairs due to psychosis, or is subject
to uncontrollable impulsive behavior.
3. Imbecility – lack of normal mental ability.
4. State of being a deaf-mute
5. Prodigality – persons who, though of full age, were incapable of managing their
affairs, and of the obligations which attended them, in consequence of their bad
conduct, and for whom a curator was therefore appointed.
6. Civil interdiction – legal restraint upon a person incapable of managing his estate.
7. Alienage – foreigners cannot incur property in the Philippines.
8. Trusteeship – parents, through courts, execute contracts of their minor children.

9 YAP, K. | ATENEO LAW


ART. 39. THE FOLLOWING CIRCUMSTANCES, AMONG OTHERS, MODIFY OR LIMIT CAPACITY TO o Birth records are strictly confidential and the contents therein cannot be revealed
ACT: AGE, INSANITY, IMBECILITY, THE STATE OF BEING A DEAF-MUTE, PENALTY,
except in the cases provided by law.
PRODIGALITY, FAMILY RELATIONS, ALIENAGE, ABSENCE, INSOLVENCY AND TRUSTEESHIP. THE
§ However, they are still considered public documents because through
CONSEQUENCES OF THESE CIRCUMSTANCES ARE GOVERNED IN THIS CODE, OTHER CODES, THE
proper legal procedure, they can be obtained by those interested
RULES OF COURT, AND IN SPECIAL LAWS. CAPACITY TO ACT IS NOT LIMITED ON ACCOUNT OF therein.
RELIGIOUS BELIEF OR POLITICAL OPINION.
ART. 42. CIVIL PERSONALITY IS EXTINGUISHED BY DEATH.
A MARRIED WOMAN, TWENTY-ONE YEARS OF AGE OR OVER, IS QUALIFIED FOR ALL ACTS OF
CIVIL LIFE, EXCEPT IN CASES SPECIFIED BY LAW. THE EFFECT OF DEATH UPON THE RIGHTS AND OBLIGATIONS OF THE DECEASED IS DETERMINED
BY LAW, BY CONTRACT AND BY WILL.

Ø Enumerates situations which modify the capacity to act.


Ø Objectives of Arts. 38 and 39: Ø Death puts an end to civil personality.
1. To make an overview of the situation that qualifies a person’s power to undertake Ø The LCR of a municipality or city must have in its custody the death certificates of persons
acts which can produce legal effects. who died in its locality.
2. To give people not adept in the technicalities of law an immediate sense that, o No human body shall be buried unless the proper death certificate has been
since the Civil Code principally provides rules governing the relationship presented and recorded in the office of the LCR. (Sec. 6, Civil Registry Law)
between and among men, women, juridical entities and even the government, Ø The rights and obligations of a dead person can still be regulated by contract, will, or the
there are certain situations which may effectively, juridically, and legally affect law. Hence, the estate of the deceased assumes such obligations.
such relationships.
ART. 43. IF THERE IS A DOUBT, AS BETWEEN TWO OR MORE PERSONS WHO ARE CALLED TO
CHAPTER TWO: NATURAL PERSONS 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
ART. 40. BIRTH DETERMINES PERSONALITY; BUT THE CONCEIVED CHILD SHALL BE PRESUMED THAT THEY DIED AT THE SAME TIME AND THERE SHALL BE NO TRANSMISSION OF
CONSIDERED BORN FOR ALL PURPOSES THAT ARE FAVORABLE TO IT, PROVIDED IT BE BORN RIGHTS FROM ONE TO THE OTHER.
LATER WITH THE CONDITIONS SPECIFIED IN THE FOLLOWING ARTICLE.

Ø This article specifically applies only to persons who are called to succeed each other.
Ø Amended by the “Child and Youth Welfare Code” (P.D. 603): The civil personality of the Ø General Rule: The proof of death must be established by positive evidence.
child shall commence from the time of his conception for all purposes favorable to him, o Exception: However, it can likewise be established by circumstantial evidence
subject to the requirements of Art. 41 of the Civil Code. derived from facts.
o Conception – the process of becoming pregnant involving fertilization or Ø If ever an inference is to be made, it must be derived from an existing fact.
implantation or both: embryo, fetus. o Proof of death can never be established from mere inference arising from another
inference or from presumptions and assumptions.
ART. 41. FOR CIVIL PURPOSES, THE FETUS IS CONSIDERED BORN IF IT IS ALIVE AT THE TIME IT
IS COMPLETELY DELIVERED FROM THE MOTHER'S WOMB. HOWEVER, IF THE FETUS HAD AN
CHAPTER THREE: JURIDICAL PERSONS
INTRA-UTERINE LIFE OF LESS THAN SEVEN MONTHS, IT IS NOT DEEMED BORN IF IT DIES WITHIN
TWENTY-FOUR HOURS AFTER ITS COMPLETE DELIVERY FROM THE MATERNAL WOMB. ART. 44. THE FOLLOWING ARE JURIDICAL PERSONS:

(1) THE STATE AND ITS POLITICAL SUBDIVISIONS;


Ø Fetus is considered born alive when: (2) OTHER CORPORATIONS, INSTITUTIONS AND ENTITIES FOR PUBLIC INTEREST OR PURPOSE,
1. It is alive at the time it is completely delivered from the mother’s womb; or CREATED BY LAW; THEIR PERSONALITY BEGINS AS SOON AS THEY HAVE BEEN CONSTITUTED
2. If it had an intra-uterine life less than 7 months, it lives 24 hours after complete ACCORDING TO LAW;
delivery from the maternal womb. (3) CORPORATIONS, PARTNERSHIPS AND ASSOCIATIONS FOR PRIVATE INTEREST OR PURPOSE
Ø For the purposes of inheritance and succession, Art. 1025 of the Civil Code also provides TO WHICH THE LAW GRANTS A JURIDICAL PERSONALITY, SEPARATE AND DISTINCT FROM THAT
that “a child already conceived at the time of the death of the decedent is capable of OF EACH SHAREHOLDER, PARTNER OR MEMBER.
succeeding, provided that it be born later under the conditions prescribed in Art. 41.”
Ø Birth certificate – best evidence of the fact of birth. Once it is registered with the office of
the local civil registrar (LCR), it becomes a public document.
o Entries therein are only prima facie evidence of the facts contained therein, and
may be rebutted by competent evidence.
10 YAP, K. | ATENEO LAW
ART. 45. JURIDICAL PERSONS MENTIONED IN NOS. 1 AND 2 OF THE PRECEDING ARTICLE ARE ART. 47. UPON THE DISSOLUTION OF CORPORATIONS, INSTITUTIONS AND OTHER ENTITIES FOR
GOVERNED BY THE LAWS CREATING OR RECOGNIZING THEM. PUBLIC INTEREST OR PURPOSE MENTIONED IN NO. 2 OF ARTICLE 44, THEIR PROPERTY AND
PRIVATE CORPORATIONS ARE REGULATED BY LAWS OF GENERAL APPLICATION ON THE OTHER ASSETS SHALL BE DISPOSED OF IN PURSUANCE OF LAW OR THE CHARTER CREATING
SUBJECT. 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 REGION, PROVINCE, CITY
PARTNERSHIPS AND ASSOCIATIONS FOR PRIVATE INTEREST OR PURPOSE ARE GOVERNED BY OR MUNICIPALITY WHICH DURING THE EXISTENCE OF THE INSTITUTION DERIVED THE
THE PROVISIONS OF THIS CODE CONCERNING PARTNERSHIPS. PRINCIPAL BENEFITS FROM THE SAME.

ART. 46. JURIDICAL PERSONS MAY ACQUIRE AND POSSESS PROPERTY OF ALL KINDS, AS WELL Ø The dissolution of private corporations is governed y Title IV of the Corporation Code.
AS INCUR OBLIGATIONS AND BRING CIVIL OR CRIMINAL ACTIONS, IN CONFORMITY WITH THE
Ø For those created through special charters, their dissolution shall be governed in accordance
LAWS AND REGULATIONS OF THEIR ORGANIZATION.
with the provisions of their respective charters, and in absence of such, the Corporation
Code shall apply suppletorily.
Ø The dissolution of partnerships shall be governed by Title IX, Chapter 3 of the New Civil
Ø Juridical person – a being of legal existence susceptible of rights and obligations, or of Code.
being the subject of juridical relations.
Ø The following are juridical persons: TITLE TWO: CITIZENSHIP AND DOMICILE
1. State – a sovereign person with the people composing it viewed as an organized ARTS. 48-51
corporate society under a government with the legal competence to exact
obedience of its commands. [Skipped Citizenship and Domicile because it will be taken up in Constitutional Law II]
§ In default of persons entitled to succeed to the estate of a deceased
person, the State shall inherit his whole estate. (Art. 1011, New Civil Ø Domicile – denotes a fixed permanent residence to which, when absent, one has the
Code) intention of returning.
2. Political subdivisions – municipal corporations and, in the Philippines, consist of o Elements of Change in Domicile:
the provinces, cities and municipalities. 1. Actual removal or an actual change of domicile;
§ Two-fold function of municipal corporations: 2. Bona fide intention of abandoning the former place of residence and
1. Exercise the right springing from sovereignty (public establishing a new one; and
agency) – their acts are political and governmental. 3. Acts which correspond with the purpose.
2. Exercise a private, proprietary or corporate right, arising Ø Residence – used to indicate a place of abode, whether permanent or temporary.
from their existence as legal persons and not as public Ø Modes of acquiring citizenship:
agencies. 1. Jus sanguinis – by blood. (Ex. Those born of Filipino fathers and mothers are
3. Corporations – artificial beings created by operation of law, having the right of Philippine citizens)
succession and the powers, attributes, and properties expressly authorized by law 2. Jus soli – by location. (Ex. Those born in the United States, regardless of lineage,
or incident to its existence. (Sec. 2, B.P. 68 – Corporation Code of the are American citizens)
Philippines) § Those born in extensions such as foreign embassies are considered
§ Governed either by: citizens of such foreign country, if the latter adopts the principle of jus
1. The general law on corporations (Corporation Code of the soli.
Philippines); or 3. Naturalization – by legal process.
2. Their special charters. Ø Loss of Philippine citizenship:
§ Have no feelings, and therefor cannot sue nor be sued for moral 1. Naturalization in a foreign country;
damages. 2. Express renunciation;
4. Partnerships – when two or more persons bind themselves to contribute money, 3. Subscribing to an oath of allegiance to support the constitution or laws of a
property, or industry to a common fund, with the intention of dividing the profits foreign country upon attaining 21 years of age or more;
among themselves. (Art. 1767, New Civil Code) 4. Rending service to the armed forces of a foreign country;
Ø Doctrine of piercing the veil of corporate fiction – although corporations, partnerships, and 5. Cancellation of certificate of naturalization;
associations have separate and distinct personalities from their officers and members, such 6. Deserter of the Philippine armed forces, when declared by competent authority;
cannot be used by the latter as a veil of immunity from suit for fraudulent acts, making 7. When a woman, upon marriage to a foreigner, acquires her husband’s nationality
them liable for any liability of the corporation. by virtue of the foreign law.
Ø Reacquisition may be made through naturalization, repatriation, or direct act of the
Congress of the Philippines.

11 YAP, K. | ATENEO LAW


THE FAMILY CODE OF THE PHILIPPINES Ø The 1987 Constitution provides that “the State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic social institution. (Sec. 12, Article II)
Ø Defines marriage and the family, spells out the corresponding legal effects, imposes the Ø Once married, a couple has a right to privacy which his protected against all undue and
limitations that affect married and family life, as well as prescribes the grounds for unwarranted government intrustion.
declaration of nullity, and those for legal separation. o While a lawful marriage seeks to create a permanent union between man and
woman, it does not shed the spouses’ integrity or their privacy as individuals.
TITLE ONE: MARRIAGE (Zulueta v. CA, 1996)
Ø Marriage and the family remains in the province of the legislature to define all legal aspects
CHAPTER ONE: REQUISITES OF MARRIAGE of marriage and prescribe the strategy and the modalities to protect it and put into operation
the constitutional provisions that protect the same.
ART. 1. MARRIAGE IS A SPECIAL CONTRACT OF PERMANENT UNION BETWEEN A MAN AND A o The State is not only concerned with the validity of marriage per se, but also with
WOMAN ENTERED INTO IN ACCORDANCE WITH LAW FOR THE ESTABLISHMENT OF CONJUGAL
the sustainability and maintenance of a harmonious and healthy family life.
AND FAMILY LIFE. IT IS THE FOUNDATION OF THE FAMILY AND AN INVIOLABLE SOCIAL
Ø Marriage settlements – fix the property relations between husband and wife.
INSTITUTION WHOSE NATURE, CONSEQUENCES , AND INCIDENTS ARE GOVERNED BY LAW AND
o Executed prior to the marriage ceremony.
NOT SUBJECT TO STIPULATION, EXCEPT THAT MARRIAGE SETTLEMENTS MAY FIX THE
o Must not contravene the mandatory provisions of the Constitution and the Family
PROPERTY RELATIONS DURING THE MARRIAGE WITHIN THE LIMITS PROVIDED BY THIS CODE.
Code.
o May be modified through writing, signed by the parties and executed before the
celebration of the marriage.
Ø Marriage – when a man and a woman enter a joint life acting, living and working as one. § Any modification after the marriage must be approved by the courts.
o Purposes: Ø The validity of a marriage is determined by the law effective at the time of the celebration
1. Procreation; and of the marriage.
2. Mutual help and protection physically, morally, and materially. o The marriage already celebrated cannot be changed by a subsequent amendment
o Marriage is a “sacred obligation” because it is highly valued and important in to the law.
society, and because it is a civil contract wherein the man and the woman bind Ø General Rule: The Family Code applies retroactively insofar as it does not prejudice or
themselves together permanently as one moral, spiritual, and social being. Hence, impair vested or acquired rights in accordance with the Civil Code and other laws.
the State is also interested in the marriage. o Exception: Void marriages can never be ratified, even by a subsequent
o Marriage is said to be a “civil contract” to indicate that it must be founded upon amendment/law.
the agreement of the parties.
o Marriage as a “civil status” is important because there are rights and liabilities ART. 2. NO MARRIAGE SHALL BE VALID, UNLESS THESE ESSENTIAL REQUISITES ARE PRESENT:
incidental to such status.
Ø Marriage is a special contract that cannot be restricted by discriminatory policies of private (1) LEGAL CAPACITY OF THE CONTRACTING PARTIES WHO MUST BE A MALE AND A FEMALE;
individuals or corporations. (Philippine Telegraph and Telephone Company v. NLRC, AND
1997) (2) CONSENT FREELY GIVEN IN THE PRESENCE OF THE SOLEMNIZING OFFICER.
Ø Mail-order Bride – the business of matching Filipino women for marriage to foreign
nationals either on mail-order basis or through personal introduction.
Ø Women Trafficking – to introduce or match for money, profit, or material, economic or Ø Essential requisites of marriage:
other consideration, any Filipino woman to a foreign national; to offer women for marriage 1. Legal capacity of the contracting parties who must be a male and a female.
for the purpose of engaging in prostitution, pornography, sexual exploitation, etc. § Legal capacity
Ø Rules on marriage between rapist and victim: • The marrying age (age of majority/age of emancipation) is
1. A subsequent valid marriage between the rapist and the victim extinguishes the 18 years old and above.
criminal action or the penalty imposed for rape. • The contracting must not be related to each other in the
2. If the rapist is the legal husband, the subsequent forgiveness by the wife shall manner provided for in Art. 37 (incestuous marriages) and
extinguish the criminal action or the penalty, provided that the crime shall not be Art. 38 (void marriages for reason of public policy).
extinguish or the penalty shall not be abated if the marriage is void ab initio. • Pursuant to Art. 39, a person already married cannot marry
Ø International Law instruments containing provisions on marriage: again unless his or her previous marriage has been nullified
1. Universal Declaration of Human Rights (UDHR) – art. 16 thereof states that men or annulled or his or her case falls under the “valid bigamous
and women of full age, without any limitation due to race, nationality or religion, marriage” provided for in Art. 41.
have the right to marry and “to found a family.” § Male and female
2. International Covenant on Economic, Social and Cultural Rights (ICESCR) • The sex determined by visually looking at the genitals of a
3. International Covenant on Civil and Political Rights (ICCPR) baby at the time of birth is immutable and that there is no

12 YAP, K. | ATENEO LAW


law legally recognizing gender sex re-assignment. (Silverio § The authority of the officer or clergyman shown to have performed a
v. Republic, 2007) marriage ceremony will be presumed in the absence of any showing to
• Where the respondent was found out to have Congenital the contrary. (Goshen v. Stonington, 1822)
Adrenal Hyperplasia (CAH) where the person afflicted has § The solemnizing is not duty-bound to investigate whether a marriage
both male and female characteristics and organs and where license has been duly and regularly issued by the LCR, but only to
the respondent, though genetically female, secreted male know that the license has been issued by the competent official.
hormones and not female hormones, had no breast, and did (People v. Janssen, 1929)
not have a menstrual period. The SC considered the person § Criminal and civil liability attaches to any person who, not being
as an “intersex individual” and granted the preference of the authorized to solemnize marriage, shall publicly advertise himself, by
person to be considered a male person. (Republic v. means of signs or placards placed on his residence or office or through
Cagandahan, 2008) the newspapers, as authorized to solemnize marriage.
• The difference is that in Silverio, the sex change was 2. Valid marriage license except in cases provided for in Chapter 2 of this Title.
voluntarily undergone by the petitioner, while in § Issued by the LCR of the place where the marriage application was
Cagandahan, the sex change was brought about filed.
involuntarily by CAH. § Has a lifespan of 120 days from the date of issue (date of signing of
2. Consent freely given in the presence of the solemnizing officer. the marriage license by the LCR) and is effective in any part of the
§ Requisites: Philippines.
1. Freely given. • Deemed automatically cancelled at the expiration of the 120-
o Free consent – willingly and deliberately entered day period if the contracting parties have not made use of it.
into the marriage – intelligently understands the • Not effective abroad.
nature and consequences of the act. 3. Marriage ceremony with the presence of the contracting parties before the
o The total absence of consent makes the marriage solemnizing officer and their personal declaration that they take each other as
void ab initio. husband and wife in the presence of not less than 2 witnesses of legal age.
o Consent obtained through fraud, force, § Where a marriage ceremony is shown, every presumption will be
intimidation, or undue influence makes such indulged that it was legally performed. (Gaines v. New Orleans, 1867)
marriage merely annullable or voidable (valid § The declaration of consent need not be vocally expressed. It can be
until annulled). shown by other manifestations or signs of approval and consent.
2. Made in the presence of the solemnizing officer. • The failure of the solemnizing officer to ask the parties
o This requirement prohibits proxy-marriages in the whether they take each other as husband and wife cannot be
Philippines. regarded as a fatal omission, and is not cause for annulment,
it being sufficient that they declared in and signed the
ART. 3. THE FORMAL REQUISITES OF MARRIAGE ARE: marriage contract that they were taking each other as
husband and wife. (Infante v. Arenas, 1957)
(1) AUTHORITY OF THE SOLEMNIZING OFFICER; • Failure to sign a marriage certificate or absence of such itself
(2) A VALID MARRIAGE LICENSE EXCEPT IN THE CASES PROVIDED FOR IN CHAPTER 2 OF THIS does not render the marriage void or annullable. (Madridejo
TITLE; AND v. De Leon, 1930)
(3) A MARRIAGE CEREMONY WHICH TAKES PLACE WITH THE APPEARANCE OF THE § Absence of at least 2 witnesses of legal age does not invalidate the
CONTRACTING PARTIES BEFORE THE SOLEMNIZING OFFICER AND THEIR PERSONAL marriage – it can be validly explained that while there were no
DECLARATION THAT THEY TAKE EACH OTHER AS HUSBAND AND WIFE IN THE PRESENCE OF witnesses of legal age or there was only one witness of legal age or
NOT LESS THAN TWO WITNESSES OF LEGAL AGE. there were witnesses but not of legal age, there was still a marriage
ceremony that was performed where the principal contracting parties
and the solemnizing officer were present but only that it was deficient
Ø Formal requisites of marriage: by the absence of the required witnesses of legal age.
1. Authority of the solemnizing officer. • Besides, in marriage, it is the agreement itself of the
§ It is not the presence or absence of the solemnizing officer which principal contracting parties in the presence of the
constitutes the formal requirement but it is the absence or presence of representative of the state (solemnizing officer), which
the authority of such solemnizing officer. constitutes the contract.
§ Persons authorized found in: § Common-law marriage (marriage-in-fact) – a non-ceremonial or
1. Art. 7 of the Family Code. informal marriage by agreement, entered into by a man and a woman
2. Chapter 3, Art. 1 of the Local Government Code authorizes having capacity to marry, ordinarily without compliance with such
the mayor of a city or municipality. statutory formalities as those pertaining to marriage licenses.
13 YAP, K. | ATENEO LAW
• Must be coupled by consummation, which includes: Ø Where the parties entered into a marriage for one party to acquire American citizenship,
1. Cohabitation as husband and wife; and and for the other to receive $2,000.00, the SC ruled that the marriage was valid because
2. Reputation in such a way that the public will consent was not lacking between the parties. Their consent was also conscious and
recognize the marital status. intelligent as they understood the nature and the beneficial and inconvenient consequences
• Common-law marriages are not recognized in the of their marriage. (Republic v. Albios, 2013)
Philippines because the Civil Code and the Family Code Ø Marriage by proxy solemnized in the Philippines is likewise void because of the absence
expressly and mandatorily provide that the intervention in a of the essential requisite that consent freely given must be made in the presence of the
valid marriage ceremony of an ecclesiastical or civil solemnizing officer and the absence of the formal requisite that the contracting parties must
functionary authorized by the state to solemnize marriage personally declare before the solemnizing officer that they take each other as husband and
constitutes one of the indispensable requisites for a valid wife.
marriage in the Philippines.
ART. 5. ANY MALE OR FEMALE OF THE AGE OF EIGHTEEN YEARS OR UPWARDS NOT UNDER
Fig. 1. ANY OF THE IMPEDIMENTS MENTIONED IN ARTICLES 37 AND 38, MAY CONTRACT MARRIAGE.
Requisites of a Valid Marriage
Essential (Art. 2) Formal (Art. 3) Ø Mere breach of promise to marry is not an actionable wrong. (Hermosisima v. CA, 1960)
1. Legal capacity given by the parties 1. Authority of the solemnizing officer o However, in Wassmer, the petitioner was granted actual damages arising from
who must be male and female. 2. Valid marriage license, except in cases the preparations made for the marriage ceremony. (Wassmer v. Velez, 1965)
2. Consent freely given and made in the provided for in Chapter 2 of this Title
presence of a solemnizing officer. 3. Marriage ceremony which takes place ART. 6. NO PRESCRIBED FORM OR RELIGIOUS RITE FOR THE SOLEMNIZATION OF THE
with the appearance of the contracting MARRIAGE IS REQUIRED. IT SHALL BE NECESSARY, HOWEVER, FOR THE CONTRACTING PARTIES
parties before the solemnizing officer TO APPEAR PERSONALLY BEFORE THE SOLEMNIZING OFFICER AND DECLARE IN THE PRESENCE
and their personal declaration that they OF NOT LESS THAN TWO WITNESSES OF LEGAL AGE THAT THEY TAKE EACH OTHER AS
take each other as husband and wife in HUSBAND AND WIFE. THIS DECLARATION SHALL BE CONTAINED IN THE MARRIAGE
the presence of not less than 2 CERTIFICATE WHICH SHALL BE SIGNED BY THE CONTRACTING PARTIES AND THEIR WITNESSES
witnesses of legal age. AND ATTESTED BY THE SOLEMNIZING OFFICER.

IN CASE OF A MARRIAGE IN ARTICULO MORTIS, WHEN THE PARTY AT THE POINT OF DEATH IS
ART. 4. THE ABSENCE OF ANY OF THE ESSENTIAL OR FORMAL REQUISITES SHALL RENDER THE UNABLE TO SIGN THE MARRIAGE CERTIFICATE, IT SHALL BE SUFFICIENT FOR ONE OF THE
MARRIAGE VOID AB INITIO, EXCEPT AS STATED IN ARTICLE 35 (2).
WITNESSES TO THE MARRIAGE TO WRITE THE NAME OF SAID PARTY, WHICH FACT SHALL BE
ATTESTED BY THE SOLEMNIZING OFFICER.
A DEFECT IN ANY OF THE ESSENTIAL REQUISITES SHALL NOT AFFECT THE VALIDITY OF THE
MARRIAGE BUT THE PARTY OR PARTIES RESPONSIBLE FOR THE IRREGULARITY SHALL BE
CIVILLY, CRIMINALLY AND ADMINISTRATIVELY LIABLE. Ø The Family Code only recognizes ceremonial marriages – those which are solemnized by
persons duly authorized by the state.
Ø The Family Code does not generally prescribe any particular form of a marriage ceremony.
Ø Rules on absence, defect, and irregularity: o The minimum requirements imposed by law are:
1. Absence of any of the essential or formal requirements of a marriage renders 1. Contracting parties appear personally before the solemnizing officer;
such marriage null and void. 2. Declare that they take each other as husband and wife in the present of
2. Defects in the essential requirements of marriage make the marriage merely at least 2 witnesses of legal age.
annullable or voidable. § The exchange of vows can be presumed to have been made
3. Irregularities in the formal requisites do not affect the validity of the marriage. from the testimonies of the witnesses who state that a
§ Except when the contracting parties 18 years or over but below 21 did wedding took place. (Balogbog v. CA, 1997)
not obtain the consent of their parents a s provided for in Art. 14.
Ø Marriage by way of a jest (joke or amusement) is void because there is absolutely no
genuine consent on the part of both contracting parties.
o Mere words, without any intention corresponding to them, will not make a
marriage or any other civil contract xxx It must be clearly shown that both parties
intended and understood that they were not to have effect. (McClurg v. Terry,
1870)

14 YAP, K. | ATENEO LAW


ART. 7. MARRIAGE MAY BE SOLEMNIZED BY: 3. Chaplain is assigned to such unit;
4. Chaplain is absent at the time of marriage;
(1) ANY INCUMBENT MEMBER OF THE JUDICIARY WITHIN THE COURT'S JURISDICTION; 5. Members of the armed forces or civilians, and within
(2) ANY PRIEST, RABBI, IMAM, OR MINISTER OF ANY CHURCH OR RELIGIOUS SECT DULY the zone of military operation; and
AUTHORIZED BY HIS CHURCH OR RELIGIOUS SECT AND REGISTERED WITH THE CIVIL § Even if they do not belong to the unit.
REGISTRAR GENERAL, ACTING WITHIN THE LIMITS OF THE WRITTEN AUTHORITY GRANTED BY § Within the zone of military operation – implies
HIS CHURCH OR RELIGIOUS SECT AND PROVIDED THAT AT LEAST ONE OF THE CONTRACTING a widespread military activity over an area and
PARTIES BELONGS TO THE SOLEMNIZING OFFICER'S CHURCH OR RELIGIOUS SECT; does not refer to a simulated exercise because it
(3) ANY SHIP CAPTAIN OR AIRPLANE CHIEF ONLY IN THE CASE MENTIONED IN ARTICLE 31; requires absence of civilian authorities.
(4) ANY MILITARY COMMANDER OF A UNIT TO WHICH A CHAPLAIN IS ASSIGNED, IN THE 6. In articulo mortis.
ABSENCE OF THE LATTER, DURING A MILITARY OPERATION, LIKEWISE ONLY IN THE CASES 5. Any consul-general, • Art. 10. Marriages between Filipino citizens abroad
MENTIONED IN ARTICLE 32; consul or vice-consul in may be solemnized by a consul-general, consul or
(5) ANY CONSUL-GENERAL, CONSUL OR VICE-CONSUL IN THE CASE PROVIDED IN ARTICLE 10. the case provided in Art. vice-consul of the republic of the Philippines. The
10. issuance of the marriage license and the duties of the
local civil registrar and of the solemnizing officer with
Ø There is a need to limit the persons who could solemnize marriage because marriage regard to the celebration of marriage shall be
contracts have always been considered as involving questions of public policy and the performed by said consular official.
interests of other than those of the contracting parties, and should therefore be construed in • Classes of heads of consular posts:
accordance with such policy. 1. Consul-general;
Ø The state being an interested party, its consent is essential to every marriage. (Eaton v. 2. Consul;
Eaton, 1990) 3. Vice-consul; and
4. Consul agents.
Fig. 2. § Only consul agents are not authorized
Persons Authorized to Solemnize Marriages by the Family Code to solemnize
Art. 7 of the Family Code Requisites / Rules marriage.
1. Any incumbent member 1. Within their court’s jurisdiction; and • General Rule: Both parties must be Filipino citizens
of the judiciary within 2. Incumbent and not retired. because the very authority of consuls to solemnize
the court’s jurisdiction. marriage is limited to Filipino citizens, as gleaned
2. Any priest, rabbi, 1. Duly authorized by his church or religious sect; from Art. 7 and Art. 10 which provides that they must
imam, or minister of 2. Registered with the civil registrar general; be consuls of the Republic of the Philippines.
any church or religious 3. Acting within the limits of the written authority granted § Exception: When the marriage between the
sect. him by his church or religious sect; and foreigner and the Filipino citizen abroad
4. At least one of the contracting parties belongs to the solemnized by a Philippine consul assigned in
solemnizing officer’s church or religious sect. that country is recognized as valid in the host
3. Any ship captain or 1. Between passengers or crew members; country, pursuant to Art. 26 of the Family
airplane chief only in 2. Ship must be at sea or the plane in flight; and Code.
cases mentioned in Art. § An assistant pilot has no authority to solemnize § Art. 26. All marriages solemnized outside the
31. a marriage. Philippines, in accordance with the laws in
§ May be solemnized during stopovers at ports of force in the country where they were
call – as long as the voyage is not yet solemnized, and valid there as such, shall also
terminated. be valid in this country xxx.
3. In articulo mortis. • They also perform the duties of an LCR, such as the
issuance of a marriage license.
4. Any military 1. Military commander of a unit; • “Abroad” – limits their jurisdiction. Hence, they are not
commander of a unit. § Unit – a battalion under the present table of authorized to solemnize marriages within the territory
organization and not to a mere company. of the Philippines.
2. Must be a commissioned officer;
§ An officer of a country's armed services whose
rank is confirmed by a government document
(called a commission).
§ Second lieutenant, ensign or above.
15 YAP, K. | ATENEO LAW
Local Government Code Requisites / Rules o Art. 17. xxx When the acts referred to are executed before the diplomatic or
1. Mayor of a city or consular officials of the republic of the Philippines in a foreign country, the
municipality solemnities established by Philippine laws shall be observed in their execution.
2. Vice mayor § When the mayor is temporarily incapacitated to xxx
perform his duties for physical or legal reasons.
§ Whether temporarily or in the capacity of an Acting ART. 11. WHERE A MARRIAGE LICENSE IS REQUIRED, EACH OF THE CONTRACTING PARTIES
mayor. SHALL FILE SEPARATELY A SWORN APPLICATION FOR SUCH LICENSE WITH THE PROPER LOCAL
3. Highest ranking § When the mayor is temporarily incapacitated to CIVIL REGISTRAR WHICH SHALL SPECIFY THE FOLLOWING:
sangguniang bayan perform his duties for physical or legal reasons.
member (1) FULL NAME OF THE CONTRACTING PARTY;
(2) PLACE OF BIRTH;
ARTICLE. 8. THE MARRIAGE SHALL BE SOLEMNIZED PUBLICLY IN THE CHAMBERS OF THE (3) AGE AND DATE OF BIRTH;
JUDGE OR IN OPEN COURT, IN THE CHURCH, CHAPEL OR TEMPLE, OR IN THE OFFICE THE (4) CIVIL STATUS;
CONSUL-GENERAL, CONSUL OR VICE-CONSUL, AS THE CASE MAY BE, AND NOT ELSEWHERE, (5) IF PREVIOUSLY MARRIED, HOW, WHEN AND WHERE THE PREVIOUS MARRIAGE WAS
EXCEPT IN CASES OF MARRIAGES CONTRACTED ON THE POINT OF DEATH OR IN REMOTE PLACES DISSOLVED OR ANNULLED;
IN ACCORDANCE WITH ARTICLE 29 OF THIS CODE, OR WHERE BOTH OF THE PARTIES REQUEST (6) PRESENT RESIDENCE AND CITIZENSHIP;
THE SOLEMNIZING OFFICER IN WRITING IN WHICH CASE THE MARRIAGE MAY BE SOLEMNIZED (7) DEGREE OF RELATIONSHIP OF THE CONTRACTING PARTIES;
AT A HOUSE OR PLACE DESIGNATED BY THEM IN A SWORN STATEMENT TO THAT EFFECT. (8) FULL NAME, RESIDENCE AND CITIZENSHIP OF THE FATHER;
(9) FULL NAME, RESIDENCE AND CITIZENSHIP OF THE MOTHER; AND
(10) FULL NAME, RESIDENCE AND CITIZENSHIP OF THE GUARDIAN OR PERSON HAVING
Ø This article is directory in nature, its non-observance will not invalidate the marriage. CHARGE, IN CASE THE CONTRACTING PARTY HAS NEITHER FATHER NOR MOTHER AND IS
Ø The person/s who cause the violation can be subjected to civil, criminal, or administrative UNDER THE AGE OF TWENTY-ONE YEARS.
liability.
THE APPLICANTS, THEIR PARENTS OR GUARDIANS SHALL NOT BE REQUIRED TO EXHIBIT THEIR
ART. 9. A MARRIAGE LICENSE SHALL BE ISSUED BY THE LOCAL CIVIL REGISTRAR OF THE CITY RESIDENCE CERTIFICATES IN ANY FORMALITY IN CONNECTION WITH THE SECURING OF THE
OR MUNICIPALITY WHERE EITHER CONTRACTING PARTY HABITUALLY RESIDES, EXCEPT IN MARRIAGE LICENSE.
MARRIAGES WHERE NO LICENSE IS REQUIRED IN ACCORDANCE WITH CHAPTER 2 OF THIS
TITLE. Ø Some of the purposes of documentary requirements:
1. Concern of the state to make marriages the secure and stable institution they
Ø The contracting parties should get a marriage license from the LCR of the city or should be;
municipality where either of them resides. 2. Serve as proofs for their existence;
o If they obtain a marriage license in a place other than the place where either of 3. Discourage deception and seduction;
them resides, it is merely an irregularity which will not render null and void the 4. Prevent illicit intercourse under the guise of matrimony;
marriage celebrated on the basis of such license. (People v. Janssen, 1929) 5. Relieve from doubt the status of parties who live together as man and wife; and
Ø The Responsible Parenthood and Reproductive Health Act of 2012 (R.A. 10354) has added 6. Evidence of the status and legitimacy of the offspring of the marriage.
a requirement that applicants must present a Certificate of Compliance issued for free by Ø A marriage application can be obtained by anybody.
the local Family Planning Office certifying that they had duly received adequate o Once it is signed and sworn to by the parties and thereafter filed, the LCR has no
instructions and information on responsible parenthood, family planning, breastfeeding and choice but to accept the application and process the same up to the time of the
infant nutrition. issuance of the marriage license.
o If the LCR has knowledge of some legal impediment, he or she cannot
discontinue processing the application. He must only note down the legal
ART. 10. MARRIAGES BETWEEN FILIPINO CITIZENS ABROAD MAY BE SOLEMNIZED BY A
impediments in the application and thereafter issue the marriage license, unless
CONSUL-GENERAL, CONSUL OR VICE-CONSUL OF THE REPUBLIC OF THE PHILIPPINES. THE
otherwise stopped by the court. (Art. 18)
ISSUANCE OF THE MARRIAGE LICENSE AND THE DUTIES OF THE LOCAL CIVIL REGISTRAR AND
OF THE SOLEMNIZING OFFICER WITH REGARD TO THE CELEBRATION OF MARRIAGE SHALL BE
PERFORMED BY SAID CONSULAR OFFICIAL.

Ø The contracting parties must both be Filipino citizens.


Ø The marriage ceremony shall be in accordance with the laws of the Philippines pursuant to
Art. 17.
16 YAP, K. | ATENEO LAW
ART. 12. THE LOCAL CIVIL REGISTRAR, UPON RECEIVING SUCH APPLICATION, SHALL REQUIRE § The nearest of kind shall be preferred as witnesses, or in their default,
THE PRESENTATION OF THE ORIGINAL BIRTH CERTIFICATES OR, IN DEFAULT THEREOF , THE
persons of good reputation in the province or the locality.
BAPTISMAL CERTIFICATES OF THE CONTRACTING PARTIES OR COPIES OF SUCH DOCUMENTS
o The presentation of birth or baptismal certificates shall not be required if the:
DULY ATTESTED BY THE PERSONS HAVING CUSTODY OF THE ORIGINALS. THESE CERTIFICATES
1. Parents of the contracting parties appear personally before the LCR
OR CERTIFIED COPIES OF THE DOCUMENTS BY THIS ARTICLE NEED NOT BE SWORN TO AND
concerned and swear to the correctness of the lawful age of said parties,
SHALL BE EXEMPT FROM THE DOCUMENTARY STAMP TAX. THE SIGNATURE AND OFFICIAL
as stated in the application; or
TITLE OF THE PERSON ISSUING THE CERTIFICATE SHALL BE SUFFICIENT PROOF OF ITS
2. LCR, by merely looking at the applicants upon their personal
AUTHENTICITY.
appearance before him, be convinced that either or both of them have
the required age.
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 ART. 13. IN CASE EITHER OF THE CONTRACTING PARTIES HAS BEEN PREVIOUSLY MARRIED,
ORIGINAL OR IF IT IS SHOWN BY AN AFFIDAVIT OF SUCH PARTY OR OF ANY OTHER PERSON THE APPLICANT SHALL BE REQUIRED TO FURNISH, INSTEAD OF THE BIRTH OR BAPTISMAL
THAT SUCH BIRTH OR BAPTISMAL CERTIFICATE HAS NOT YET BEEN RECEIVED THOUGH THE CERTIFICATE REQUIRED IN THE LAST PRECEDING ARTICLE, THE DEATH CERTIFICATE OF THE
SAME HAS BEEN REQUIRED OF THE PERSON HAVING CUSTODY THEREOF AT LEAST FIFTEEN DECEASED SPOUSE OR THE JUDICIAL DECREE OF THE ABSOLUTE DIVORCE, OR THE JUDICIAL
DAYS PRIOR TO THE DATE OF THE APPLICATION, SUCH PARTY MAY FURNISH IN LIEU THEREOF DECREE OF ANNULMENT OR DECLARATION OF NULLITY OF HIS OR HER PREVIOUS MARRIAGE.
HIS CURRENT RESIDENCE CERTIFICATE OR AN INSTRUMENT DRAWN UP AND SWORN TO BEFORE
THE LOCAL CIVIL REGISTRAR CONCERNED OR ANY PUBLIC OFFICIAL AUTHORIZED TO IN CASE THE DEATH CERTIFICATE CANNOT BE SECURED, THE PARTY SHALL MAKE AN
ADMINISTER OATHS. SUCH INSTRUMENT SHALL CONTAIN THE SWORN DECLARATION OF TWO AFFIDAVIT SETTING FORTH THIS CIRCUMSTANCE AND HIS OR HER ACTUAL CIVIL STATUS AND
WITNESSES OF LAWFUL AGE, SETTING FORTH THE FULL NAME, RESIDENCE AND CITIZENSHIP OF THE NAME AND DATE OF DEATH OF THE DECEASED SPOUSE.
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 PREFERRED AS WITNESSES, OR, IN THEIR DEFAULT, PERSONS OF GOOD REPUTATION IN THE
Ø Rules to remember:
PROVINCE OR THE LOCALITY.
o If either applicant was previously married, he/she must present either the:
1. Death certificate of the deceased spouse;
THE PRESENTATION OF BIRTH OR BAPTISMAL CERTIFICATE SHALL NOT BE REQUIRED IF THE 2. Judicial decree of absolute divorce;
PARENTS OF THE CONTRACTING PARTIES APPEAR PERSONALLY BEFORE THE LOCAL CIVIL
3. Judicial decree of annulment; or
REGISTRAR CONCERNED AND SWEAR TO THE CORRECTNESS OF THE LAWFUL AGE OF SAID
4. Judicial declaration of nullity (JDN) of the previous marriage.
PARTIES , AS STATED IN THE APPLICATION, OR WHEN THE LOCAL CIVIL REGISTRAR SHALL, BY
o If the death certificate cannot be secured, the party shall make an affidavit
MERELY LOOKING AT THE APPLICANTS UPON THEIR PERSONALLY APPEARING BEFORE HIM, BE
stating:
CONVINCED THAT EITHER OR BOTH OF THEM HAVE THE REQUIRED AGE.
1. Circumstance of death;
2. His/her actual civil status; and
3. Name and date of death of the deceased spouse.
Ø Rules to remember:
o If the original birth certificate is not available, the baptismal certificates of the ART. 14. IN CASE EITHER OR BOTH OF THE CONTRACTING PARTIES, NOT HAVING BEEN
contracting parties, or copies of such documents. EMANCIPATED BY A PREVIOUS MARRIAGE, ARE BETWEEN THE AGES OF EIGHTEEN AND
§ Must be duly attested by the persons having custody of the originals. TWENTY-ONE, THEY SHALL, IN ADDITION TO THE REQUIREMENTS OF THE PRECEDING
§ Need not be sworn to and shall be exempt from the documentary stamp ARTICLES, EXHIBIT TO THE LOCAL CIVIL REGISTRAR, THE CONSENT TO THEIR MARRIAGE OF
tax. THEIR FATHER, MOTHER, SURVIVING PARENT OR GUARDIAN, OR PERSONS HAVING LEGAL
§ The signature and official title of the person issuing the certificate shall CHARGE OF THEM, IN THE ORDER MENTIONED. SUCH CONSENT SHALL BE MANIFESTED IN
be sufficient proof of its authenticity. WRITING BY THE INTERESTED PARTY, WHO PERSONALLY APPEARS BEFORE THE PROPER LOCAL
o If birth or baptismal certificate or certified copies thereof cannot be produced CIVIL REGISTRAR, OR IN THE FORM OF AN AFFIDAVIT MADE IN THE PRESENCE OF TWO
either because of destruction or loss, or it is shown by an affidavit that such has WITNESSES AND ATTESTED BEFORE ANY OFFICIAL AUTHORIZED BY LAW TO ADMINISTER
not yet been received though the same has been required of the person having OATHS. THE PERSONAL MANIFESTATION SHALL BE RECORDED IN BOTH APPLICATIONS FOR
custody thereof at least 15 days prior to the date of application, the current MARRIAGE LICENSE, AND THE AFFIDAVIT, IF ONE IS EXECUTED INSTEAD, SHALL BE ATTACHED
residence certificate or an instrument drawn up and sworn to before the TO SAID APPLICATIONS.
LCR concerned or any public official authorized to administer oaths.
§ Must contain the sworn declaration of 2 witnesses of lawful age, setting
forth the full name, residence and citizenship of such contracting party Ø There is no more emancipation by marriage under the Family Code.
and of his or her parents, if known, and the place and date of birth of o Emancipation is attained if the child reaches the age of 18 years old. (Art. 234,
such party. R.A. 6809 – An Act Lowering the Age of Majority from Twenty-One To
Eighteen Years)
17 YAP, K. | ATENEO LAW
Ø Rules to remember: Ø Rules to remember:
o If between 18-21 years old, consent to their marriage of, in this particular order, o If between 21-25 years old, parental advice must be sought.
their: § If parental advice is not obtained, or the advice is unfavorable:
1. Father; • The marriage license shall not be issued until after 3 months
2. Mother; following the completion of the publication of the
3. Surviving parent or guardian; or application therefor.
4. Persons having legal charge of them. o A sworn statement by the contracting parties that such advice has been sought,
o Such consent shall be: together with the written advice given, shall be attached to the application.
1. Manifested in writing by the interested party, who personally appears § Should the parents refuse to give any advice, this shall be stated in the
before the proper LCR; or sworn statement.
2. Affidavit made in the presence of 2 witnesses and attested before any o Together with the parental advice, the parties must attach a certificate issued by
official authorized by law to administer oaths. the solemnizing officer or a duly accredited marriage counselor, evidencing that
o The personal manifestation shall be recorded in both applications for marriage the parties had undergone marriage counseling.
license, and the affidavit, if one is executed instead, shall be attached to said § Failure to attach said certificates shall suspend the issuance of the
applications. marriage license for a period of 3 months from the completion of the
Ø Non-compliance with this requirement makes the marriage merely annullable. It is publication of the application.
considered as one of the formal statutory requirements for marriage because it affects the Ø Parental advice is neither an essential nor formal requisite, but a vehicle to induce further
marriage license. and more mature deliberation over the decision to get married.
o The consent is required simply because the contracting parties may not be Ø If the marriage license is issued within the 3-month period, the said marriage is completely
licensed to marry upon their own consent alone, but that the consent of their valid, it is not even annullable.
parents must be added thereto; lack of such consent, however, does not affect the
validity of the marriage, but only subjects those who have neglected to acquire it ART. 17. THE LOCAL CIVIL REGISTRAR SHALL PREPARE A NOTICE WHICH SHALL CONTAIN THE
to the penalties of the law. (Cushman v. Cushman, 1914) FULL NAMES AND RESIDENCES OF THE APPLICANTS FOR A MARRIAGE LICENSE AND OTHER
DATA GIVEN IN THE APPLICATIONS. THE NOTICE SHALL BE POSTED FOR TEN CONSECUTIVE
ART. 15. ANY CONTRACTING PARTY BETWEEN THE AGE OF TWENTY-ONE AND TWENTY-FIVE DAYS ON A BULLETIN BOARD OUTSIDE THE OFFICE OF THE LOCAL CIVIL REGISTRAR LOCATED
SHALL BE OBLIGED TO ASK THEIR PARENTS OR GUARDIAN FOR ADVICE UPON THE INTENDED IN A CONSPICUOUS PLACE WITHIN THE BUILDING AND ACCESSIBLE TO THE GENERAL PUBLIC.
MARRIAGE. IF THEY DO NOT OBTAIN SUCH ADVICE, OR IF IT BE UNFAVORABLE, THE MARRIAGE THIS NOTICE SHALL REQUEST ALL PERSONS HAVING KNOWLEDGE OF ANY IMPEDIMENT TO THE
LICENSE SHALL NOT BE ISSUED TILL AFTER THREE MONTHS FOLLOWING THE COMPLETION OF MARRIAGE TO ADVISE THE LOCAL CIVIL REGISTRAR THEREOF. THE MARRIAGE LICENSE SHALL
THE PUBLICATION OF THE APPLICATION THEREFOR. A SWORN STATEMENT BY THE BE ISSUED AFTER THE COMPLETION OF THE PERIOD OF PUBLICATION.
CONTRACTING PARTIES TO THE EFFECT THAT SUCH ADVICE HAS BEEN SOUGHT, TOGETHER
WITH THE WRITTEN ADVICE GIVEN, IF ANY, SHALL BE ATTACHED TO THE APPLICATION FOR
MARRIAGE LICENSE. SHOULD THE PARENTS OR GUARDIAN REFUSE TO GIVE ANY ADVICE, THIS Ø It is the duty of the LCR to post a notice to inform everybody of the impending marriage.
FACT SHALL BE STATED IN THE SWORN STATEMENT. o This notice shall be posted:
1. For 10 consecutive days;
2. On a bulletin board outside the office of the LCR;
ART. 16. IN THE CASES WHERE PARENTAL CONSENT OR PARENTAL ADVICE IS NEEDED, THE 3. Located in a conspicuous (easy to see or notice) place within the
PARTY OR PARTIES CONCERNED SHALL, IN ADDITION TO THE REQUIREMENTS OF THE building; and
PRECEDING ARTICLES , ATTACH A CERTIFICATE ISSUED BY A PRIEST, IMAM OR MINISTER 4. Accessible to the general public.
AUTHORIZED TO SOLEMNIZE MARRIAGE UNDER ARTICLE 7 OF THIS CODE OR A MARRIAGE o The notice shall request all persons having knowledge of any impediment to the
COUNSELOR DULY ACCREDITED BY THE PROPER GOVERNMENT AGENCY TO THE EFFECT THAT marriage to advise the LCR thereof.
THE CONTRACTING PARTIES HAVE UNDERGONE MARRIAGE COUNSELING. FAILURE TO ATTACH
SAID CERTIFICATES OF MARRIAGE COUNSELING SHALL SUSPEND THE ISSUANCE OF THE ART. 18. IN CASE OF ANY IMPEDIMENT KNOWN TO THE LOCAL CIVIL REGISTRAR OR BROUGHT
MARRIAGE LICENSE FOR A PERIOD OF THREE MONTHS FROM THE COMPLETION OF THE TO HIS ATTENTION, HE SHALL NOTE DOWN THE PARTICULARS THEREOF AND HIS FINDINGS
PUBLICATION OF THE APPLICATION. ISSUANCE OF THE MARRIAGE LICENSE WITHIN THE THEREON IN THE APPLICATION FOR MARRIAGE LICENSE, BUT SHALL NONETHELESS ISSUE SAID
PROHIBITED PERIOD SHALL SUBJECT THE ISSUING OFFICER TO ADMINISTRATIVE SANCTIONS LICENSE AFTER THE COMPLETION OF THE PERIOD OF PUBLICATION, UNLESS ORDERED
BUT SHALL NOT AFFECT THE VALIDITY OF THE MARRIAGE. OTHERWISE BY A COMPETENT COURT AT HIS OWN INSTANCE OR THAT OF ANY INTEREST
PARTY. NO FILING FEE SHALL BE CHARGED FOR THE PETITION NOR A CORRESPONDING BOND
SHOULD ONLY ONE OF THE CONTRACTING PARTIES NEED PARENTAL CONSENT OR PARENTAL REQUIRED FOR THE ISSUANCES OF THE ORDER.
ADVICE, THE OTHER PARTY MUST BE PRESENT AT THE COUNSELING REFERRED TO IN THE
PRECEDING PARAGRAPH.

18 YAP, K. | ATENEO LAW


ART. 19. THE LOCAL CIVIL REGISTRAR SHALL REQUIRE THE PAYMENT OF THE FEES ART. 21. WHEN EITHER OR BOTH OF THE CONTRACTING PARTIES ARE CITIZENS OF A FOREIGN
PRESCRIBED BY LAW OR REGULATIONS BEFORE THE ISSUANCE OF THE MARRIAGE LICENSE. NO COUNTRY, IT SHALL BE NECESSARY FOR THEM BEFORE A MARRIAGE LICENSE CAN BE
OTHER SUM SHALL BE COLLECTED IN THE NATURE OF A FEE OR TAX OF ANY KIND FOR THE OBTAINED, TO SUBMIT A CERTIFICATE OF LEGAL CAPACITY TO CONTRACT MARRIAGE, ISSUED
ISSUANCE OF SAID LICENSE. IT SHALL, HOWEVER, BE ISSUED FREE OF CHARGE TO INDIGENT BY THEIR RESPECTIVE DIPLOMATIC OR CONSULAR OFFICIALS.
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 STATELESS PERSONS OR REFUGEES FROM OTHER COUNTRIES SHALL, IN LIEU OF THE
THEIR OATH BEFORE THE LOCAL CIVIL REGISTRAR. CERTIFICATE OF LEGAL CAPACITY HEREIN REQUIRED, SUBMIT AN AFFIDAVIT STATING THE
CIRCUMSTANCES SHOWING SUCH CAPACITY TO CONTRACT MARRIAGE.

Ø In case of any impediment known to the LCR or brought to his attention, he shall merely
note down the particulars thereof and his finding thereon in the application for a marriage Ø Rules to remember:
license. o If both contracting parties are foreigners and they intend to have their marriage
o He is still duty bound to issue said license after payment of the necessary fess, solemnized in the Philippines, they have to secure a marriage license in the
unless exempted due to indigence, after the completion of the period of Philippines.
publication, or after a period of 3 months from the completion of such publication § A certificate of legal capacity – issued by their respective diplomatic
when either parental advice or marriage counseling was not obtained. or consular officials – is an necessary requisite as to foreigners because
Ø The purpose of this article is to eliminate any opportunity for extortion (gross overcharge). the Philippines, insofar as marriage is concerned, adheres to the
Ø Only court intervention directing the non-issuance of the marriage license can empower national law of the contracting parties with respect to their legal
the LCR to validly refuse to issue said license. capacity to contract marriage.
o Such court action may be brought about by the: • This is an exception to the general rule that the LCR must
1. LCR himself; or nevertheless issue the marriage license.
2. Any interested party – contracting parties’ parents, siblings, existing • However, if the marriage is still celebrated, such will still be
spouse, or those which may be prejudiced by the marriage. considered valid as this is merely an irregularity in
o No filing fee shall be charged for the petition nor a corresponding bond required complying with a formal requirement of the law in procuring
for the issuance of the order. a marriage license.
o If despite such injunction, the LCR still issues a marriage license and a marriage o If they are stateless persons or refugees, they shall be required to file an affidavit
is solemnized, the validity of the marriage shall not be affected by the violation stating the circumstances showing such capacity to contract marriage in lieu of
of the injunction. the certificate of legal capacity.
§ The party or parties responsible for the irregularity shall be civilly, o If both contracting parties are foreigners, and they desire to have their marriage
criminally and administratively liable. solemnized by their country’s consul-general officially assigned in the
• Influencing parties in religious aspects – directly or Philippines, they can get married before such consul-general without procuring
indirectly attempts to influence any contracting party to a marriage license in the Philippines if their country’s laws allow the same.
marry or refrain – imprisonment for not more than 1 month § Such marriage shall be recognized in the Philippines.
and fined not more than Php200.
• Illegal issuance or refusal of license – malicious refusal or ART. 22. THE MARRIAGE CERTIFICATE, IN WHICH THE PARTIES SHALL DECLARE THAT THEY
failure to issue within 24 hours after proper time of issuance TAKE EACH OTHER AS HUSBAND AND WIFE, SHALL ALSO STATE:
– imprisonment for 1 month to 2 years or fined Php200 to
Php2,000. (1) THE FULL NAME, SEX AND AGE OF EACH CONTRACTING PARTY;
(2) THEIR CITIZENSHIP, RELIGION AND HABITUAL RESIDENCE;
ART. 20. THE LICENSE SHALL BE VALID IN ANY PART OF THE PHILIPPINES FOR A PERIOD OF (3) THE DATE AND PRECISE TIME OF THE CELEBRATION OF THE MARRIAGE;
ONE HUNDRED TWENTY DAYS FROM THE DATE OF ISSUE, AND SHALL BE DEEMED (4) THAT THE PROPER MARRIAGE LICENSE HAS BEEN ISSUED ACCORDING TO LAW, EXCEPT IN
AUTOMATICALLY CANCELED AT THE EXPIRATION OF THE SAID PERIOD IF THE CONTRACTING MARRIAGE PROVIDED FOR IN CHAPTER 2 OF THIS TITLE;
PARTIES HAVE NOT MADE USE OF IT. THE EXPIRY DATE SHALL BE STAMPED IN BOLD (5) THAT EITHER OR BOTH OF THE CONTRACTING PARTIES HAVE SECURED THE PARENTAL
CHARACTERS ON THE FACE OF EVERY LICENSE ISSUED. 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
Ø The marriage license is valid only within the Philippines and not abroad. (7) THAT THE PARTIES HAVE ENTERED INTO MARRIAGE SETTLEMENT, IF ANY, ATTACHING A
Ø It has a lifespan of 120 days from the date of issue (signing by the LCR). COPY THEREOF .
o From the date of issue, it should be claimed by the parties. Otherwise, it shall
automatically become ineffective after the lapse of the 120-day period.

19 YAP, K. | ATENEO LAW


ART. 23. IT SHALL BE THE DUTY OF THE PERSON SOLEMNIZING THE MARRIAGE TO FURNISH § Parol evidence – oral agreements.
EITHER OF THE CONTRACTING PARTIES THE ORIGINAL OF THE MARRIAGE CERTIFICATE
§ Testimony by one of the parties or witnesses to the marriage, or by the
REFERRED TO IN ARTICLE 6 AND TO SEND THE DUPLICATE AND TRIPLICATE COPIES OF THE
person who solemnized the same, is admissible. (Pugeda v. Trias,
CERTIFICATE NOT LATER THAN FIFTEEN DAYS AFTER THE MARRIAGE, TO THE LOCAL CIVIL
1962)
REGISTRAR OF THE PLACE WHERE THE MARRIAGE WAS SOLEMNIZED. PROPER RECEIPTS SHALL
§ With respect to a marriage ceremony, the testimony of an eyewitness
BE ISSUED BY THE LOCAL CIVIL REGISTRAR TO THE SOLEMNIZING OFFICER TRANSMITTING
to be sufficient should disclose not only the performance of the
COPIES OF THE MARRIAGE CERTIFICATE. THE SOLEMNIZING OFFICER SHALL RETAIN IN HIS FILE
ceremony by someone, but that all the circumstances attending it were
THE QUADRUPLICATE COPY OF THE MARRIAGE CERTIFICATE, THE COPY OF THE MARRIAGE
such as to constitute a legal marriage. (State v. Hodgskins, 2003)
CERTIFICATE, THE ORIGINAL OF THE MARRIAGE LICENSE AND, IN PROPER CASES, THE
§ The fact that a marriage has been solemnized gives rise to the
AFFIDAVIT OF THE CONTRACTING PARTY REGARDING THE SOLEMNIZATION OF THE MARRIAGE
presumption that there has been an exchange of marital vows.
IN PLACE OTHER THAN THOSE MENTIONED IN ARTICLE 8.
(Balogbog v. CA, 1997)
o Public and open cohabitation as husband and wife after the alleged marriage,
birth and baptismal certificates of children borne by the alleged spouses, and a
Ø Semper presumitur pro matrimonio – always presume marriage. statement of such marriage in subsequent documents are competent evidence to
Ø Presumptions: prove the fact of marriage. (Pugeda v. Trias, 1962)
o When a man and a woman deport themselves as husband and wife, it is presumed § Mere cohabitation is not direct proof of marriage, which must be
that they have entered into a lawful contract of marriage. provided by proper documents or by oral testimony in case these have
o When the celebration of the marriage is once shown, the contract of marriage, been lost. (Santiago v. Cruz, 1911)
the capacity of the parties, and everything necessary to the validity of the o A solemn statement in the will of a deceased as to the fact of his marriage is also
marriage, in the absence of proof to the contrary, will be presumed. (Gaines v. admissible proof of such a marriage. (Son Cui v. Guepangco,1912)
New Orleans, 1867) Ø ATTACKING MARRIAGE: Anyone assailing the validity of a marriage is required to
o Morality and not immorality; marriage and not concubinage; legitimacy and not make plain, against the constant pressure of the presumption of legality, the truth of law
bastardy. (Pittinger v. Pittinger, 1901) and fact that the marriage was not legal.
Ø Public policy should aid acts intended to validate marriages and should retard acts intended o The evidence to repel that presumption must be strong, distinct and satisfactory.
to invalidate marriages. (Murchison v. Green, 1907)
Ø PROVING MARRIAGE: When the question as to whether a marriage has been contracted o The statement of the civil status of a person in a certificate of title issued to him
arises in litigation, said marriage may be proved by evidence of any kind. (Pugeda v. Trias, is not conclusive to show that he is not actually married to another. (Perido v.
1962) Perido, 1975)
o The primary or best evidence of a marriage is the marriage contract / marriage o An official certification issued by the Office of the LCR where a particular
certificate. (Lim Tanhu v. Ramolete, 1975) marriage license has been issued as indicated in the marriage contract, stating
o A mere photostat copy of a marriage certificate is a worthless piece of paper. that after earnest effort to locate and verify its existence, the said office has no
(Vda. De Chua v. CA, 1998) record of such, or issued the same to another couple, or is spurious or fabricated,
§ But if such photostat copy emanated from the Office of the LCR and is a convincing evidence to destroy the validity of marriage on the ground of
duly certified by the LCR as an authentic copy of the records in his absence of marriage license. (Go-Bangayan v. Bangayan, Jr., 2013)
office, it is admissible in evidence. § Such certificate was adequate to prove the non-issuance of a marriage
§ If not certified, but likewise not opposed by the opposing parties and license and, absent any suspicion, it enjoyed probative value
consequently admitted by the Court, said photostat copies are deemed considering that the LCR was the officer charged under the law to keep
sufficient proof of the facts contained therein and therefor can be proof a record of all data relative to the issuance of a marriage license.
of marriage. (Sy v. CA, 2000) (Nicdao Cariño v. Cariño, 2001)
o Baptismal certificates, birth certificates, judicial decisions, and family bible in § Where the LCR executed an affidavit stating that there was no
which the names of the spouses have been entered as married are good evidences marriage license despite the exertion of all efforts, but with an
of marriage. (Trinidad v. CA, 1998) admission that due to the work load of the said office, it cannot give
o A marriage certificate made many years after the marriage is inadmissible, full force in locating the marriage license compounded by the fact that
especially where there was no register of the marriage in the official records. the custodian already retired, the SC did not allow the nullity
(Gaines v. Relf, 1851) considering that the circumstances and the certification do not
o The baptismal certificate was conclusive proof only of the baptism administered categorically and with absolute certainty show and state that the
by the priest who baptized the child, not proof of the veracity of the declarations marriage license cannot be found and that there were earnest
therein (Señorita – unmarried – as civil status). (Vda. De La Rosa v. Heirs of efforts to look for the same. (Sevilla v. Cardenas, 2006)
Mariciana Rustia Vda. De Damnian, 2006) o Presumption of marriage from the fact that there was cohabitation between a man
o A marriage, like any other contract, may be proved by parol evidence. (Watson and a woman for many years ago may be offset by the fact that for at least 35
v. Lawrence, 2009)
20 YAP, K. | ATENEO LAW
years of their lives they lived separately and several thousands of miles away Ø The legal effect which may be given by one state to the marriage laws of another state is
from each other. (Fernandez v. Puatu, 1957) merely because of comity.
Ø Declaratory relief – determination of the parties’ rights under a contract or statute often o Comity – association of nations for mutual benefit; courtesy towards others.
prayed for information in a lawsuit over a contract. o No state is bound by comity to give effect in its courts to laws which are
o Judgment on their capacity to marry. repugnant (incompatible) to its own laws and policy.
o May be brought by any person interested under a deed, will, contract, or other Ø This provision does not apply to the following marriages:
written instrument, or whose rights are affected by a statute, executive order, 1. Art. 35 (1) – those contracted by any party below 18 years of age even with the
regulation, ordinance, or other governmental regulation for the purpose of consent of parents or guardians.
determining any question of construction or validity arising therefrom, provided § BEST INTERPRETATION: Art. 26 referring to Art. 35 (1) should be
that the action is brought before any violation or breach. construed as referring to a situation where the marriage abroad is
between a Filipino and a Filipina, because under Art. 21, a foreigner
ART. 24. IT SHALL BE THE DUTY OF THE LOCAL CIVIL REGISTRAR TO PREPARE THE can get married in the Philippines even if he is below 18 years of age
DOCUMENTS REQUIRED BY THIS TITLE, AND TO ADMINISTER OATHS TO ALL INTERESTED
if he obtains a certificate of legal capacity.
PARTIES WITHOUT ANY CHARGE IN BOTH CASES. THE DOCUMENTS AND AFFIDAVITS FILED IN
2. Art. 35 (4) – those bigamous or polygamous marriages not falling under Art. 41
CONNECTION WITH APPLICATIONS FOR MARRIAGE LICENSES SHALL BE EXEMPT FROM
(Presumptive Death).
DOCUMENTARY STAMP TAX.
§ Polygamy – act or state of a person who, knowing that he has two or
more wives, or that she has two or more husbands, marries another.
§ Requisites for Art. 41:
ART. 25. THE LOCAL CIVIL REGISTRAR CONCERNED SHALL ENTER ALL APPLICATIONS FOR 1. One of the spouses has been absent for either
MARRIAGE LICENSES FILED WITH HIM IN A REGISTRY BOOK STRICTLY IN THE ORDER IN WHICH a. 4 consecutive years; or
THE SAME ARE RECEIVED. HE SHALL RECORD IN SAID BOOK THE NAMES OF THE APPLICANTS, b. 2 consecutive years where there is danger of death
THE DATE ON WHICH THE MARRIAGE LICENSE WAS ISSUED, AND SUCH OTHER DATA AS MAY BE in the following circumstance:
NECESSARY. i. A person on board a vessel lost during a
sea voyage, or an airplane which is
missing;
Ø Local civil registrar (LCR) – the specific government official charged with the preparation ii. A person in the armed forces who has
and keeping of all official documents in connection with marriage. taken part in a war; or
o Any certification issued by him or her in connection with any matter involving iii. A person who has been in danger of
the marriage of any particular individual within his jurisdiction is given high death under other circumstances.
probative value. 2. Spouse present has a well-founded belief that the absent
o Marriage register – contains the following: spouse was already dead;
1. Full name, address, and ages of each of the contracting parties; 3. Judicial declaration of presumptive death.
2. Place and date of the solemnization of the marriage; 3. Art. 35 (5) – those contracted through mistake of one contracting party as to the
3. Names and addresses of the witnesses; identity of the other.
4. Full name, address and relationship with the contracting party or § Regardless of who committed the mistake.
parties of the person or persons who gave their consent to the marriage; 4. Art. 35 (6) – those subsequent marriages that are void under Art. 53 (non-
and compliance with partition and dissolution).
5. Full name, title, and address of the person who solemnized the § Requirements under Art. 53:
marriage. 1. Record the judicial decree with the LCR;
2. Partition and distribute their properties; and
ART. 26. ALL MARRIAGES SOLEMNIZED OUTSIDE THE PHILIPPINES, IN ACCORDANCE WITH THE 3. Deliver the presumptive legitimes of their children.
LAWS IN FORCE IN THE COUNTRY WHERE THEY WERE SOLEMNIZED, AND VALID THERE AS 5. Art. 36 – Psychological incapacity.
SUCH, SHALL ALSO BE VALID IN THIS COUNTRY, EXCEPT THOSE PROHIBITED UNDER ARTICLES § Regardless of which of the contracting parties is physiologically
35 (1), (4), (5) AND (6), 3637 AND 38. incapacitated, or of its validity according to foreign laws.
6. Art. 37 – Incestuous and void marriages.
WHERE A MARRIAGE BETWEEN A FILIPINO CITIZEN AND A FOREIGNER IS VALIDLY § Marriages between ascendants and descendants of any degree and
CELEBRATED AND A DIVORCE IS THEREAFTER VALIDLY OBTAINED ABROAD BY THE ALIEN those between brothers and sisters, whether of the full or half blood.
SPOUSE CAPACITATING HIM OR HER TO REMARRY, THE FILIPINO SPOUSE SHALL HAVE § Regardless of foreign laws.
CAPACITY TO REMARRY UNDER PHILIPPINE LAW. (AS AMENDED BY EXECUTIVE ORDER 227) 7. Art. 38 – Void marriages by reason of public policy.
§ Regardless of foreign laws.

21 YAP, K. | ATENEO LAW


Ø Common-law marriages valid abroad are still not recognized in the Philippines because o Aliens may obtain divorces abroad, which may be recognized in the Philippines,
Art. 26 clearly uses the word “solemnized” and not “contracted” or “performed.” provided they are valid according to their national law.
1. Statutory Construction principle: If words in a statute have a meaning which o THE DETERMINATIVE POINT: The foreigner who procured the divorce
those who are or should be learned in the law are supposed to understand, the should be a foreigner at the time of the divorce, not at the time of the marriage
courts must accept such construction. ceremony.
§ Solemnization – a ceremonial marriage and not one which was § When both parties were Filipinos at the time of the marriage ceremony,
“contracted” or merely performed by way of a mere agreement of the but at the time of the divorce, the petitioner was already a citizen of a
parties. foreign country that allows absolute divorce, Art. 26 paragraph 2
• Contracted – broader and may include as one of its modes applies.
the process of solemnization. § The Filipino who did not initiate the divorce should still be a Filipino
§ Marriage is solemnized – when in the presence of a judicial officer, at the time of the divorce for Art. 26 to be applicable. Otherwise,
priest or minister, the parties declare that they take each other as recognition in the Philippines is pursuant to the nationality principle.
husband and wife; and the officer or minister who witnesses the • Nationality principle – as to the legal capacity of a person,
ceremony is said to “solemnize” the marriage. the Philippines shall adhere or follow the law of the country
Ø Same-sex marriages of Filipinos abroad are invalid, because public policy in the of the person involved.
Philippines mandates that only a man and a woman can marry each other. o When a Filipino obtains a foreign absolute divorce, such will not be recognized
o This is clear from Art. 1 of the Family Code, stating that marriage is a special in the Philippines as to the Filipino spouse, but as to the foreigner spouse, he/she
contract of permanent union between a man and a woman. is considered divorced. Hence, the latter cannot, for example, claim interest in
o Art. 2 also states that the contracting parties must be a male and a female. the property of the Filipino spouse after the divorce.
o Terms such as “husband and wife.” “father and mother,” and “man and woman” Ø When a Filipino contracts a foreign marriage which is null and void under the laws of the
are likewise used in the Family Code. state where it was solemnized, such marriage shall likewise be null and void in the
Ø Exception to this provision: Philippines.
o When either or both contracting parties are Filipinos and they are below 18 years o A civil case can be filed in the Philippines to nullify a foreign marriage using as
of age, their marriage solemnized abroad will not be recognized in the basis the legal grounds for nullity provided by the marriage laws of the state
Philippines as valid even though valid in the place where it has been solemnized. where the marriage was celebrated.
§ This is because Art. 15 of the Civil Code provides that laws relating to o The same applies to marriages that are invalid pursuant to the foreign laws of the
family rights and duties, or to the status, conditions and legal capacity place of solemnization, even if they were valid pursuant to Philippine laws.
of persons are binding upon citizens of the Philippines, even though
living abroad. CHAPTER TWO: MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT
Ø To establish a valid marriage pursuant to Art. 26, it is necessary to prove:
1. Foreign law as a question of fact; and Ø Arts. 27, 28, 31, 32, 33 and 34 are situations where the contracting parties need not obtain
2. Celebration of marriage pursuant to the foreign law by convincing evidence. a marriage license prior to getting validly married.
Ø Proof of the foreign marriage raises the presumption that the same was done in accordance o Exceptions:
with the law of that jurisdiction. (Patterson v. Gaines, 1848) 1. Muslims – Code of Muslim Personal Laws.
o If such law is not pleaded nor proved and for the purpose of determining the 2. Indigenous tribes in the Cordillera Autonomous Region (CAR) –
validity of a marriage in the said state, the laws of such state, in the absence of Organic Act for the Cordillera Autonomous Region (R.A. 6766).
proof to the contrary, will be presumed by the Court to be the same as the laws o For other indigenous tribes, they must comply with the Family Code.
of its own state. (Wong Woo Yin v. Vivi, 1965) Ø Reasons for the exceptions are anchored on necessity and practicality.
o In case of doubt, all presumptions favor the solidarity of the family and every
intendment of the law or facts leans toward the validity of marriage, “he who ART. 27. IN CASE EITHER OR BOTH OF THE CONTRACTING PARTIES ARE AT THE POINT OF
asserts that the marriage is not valid under our law bears the burden of proof to DEATH, THE MARRIAGE MAY BE SOLEMNIZED WITHOUT NECESSITY OF A MARRIAGE LICENSE
present the foreign law.” (Board of Commissioners v. Dela Rosa, 1991) AND SHALL REMAIN VALID EVEN IF THE AILING PARTY SUBSEQUENTLY SURVIVES.
§ Justice Feliciano’s dissent: The rule that a foreign marriage valid in
accordance with the law of the place where it was performed shall be
valid also in the Philippines, cannot begin to operate until after the Ø Articulo mortis – where at least one of the parties is in the bring of death.
marriage performed abroad and its compliance with the requirements Ø The marriage will remain valid even if the ailing party subsequently survives.
for validity under the marriage law of the place where performed, are
first shown as factual matters.
Ø Absolute divorce is not recognized in the Philippines, thus any divorce initiated by a
Filipino, even those abroad, is against public policy and will not be recognized in the
Philippines.
22 YAP, K. | ATENEO LAW
ART. 28. IF THE RESIDENCE OF EITHER PARTY IS SO LOCATED THAT THERE IS NO MEANS OF ART. 32. A MILITARY COMMANDER OF A UNIT, WHO IS A COMMISSIONED OFFICER, SHALL
TRANSPORTATION TO ENABLE SUCH PARTY TO APPEAR PERSONALLY BEFORE THE LOCAL CIVIL LIKEWISE HAVE AUTHORITY TO SOLEMNIZE MARRIAGES IN ARTICULO MORTIS BETWEEN
REGISTRAR, THE MARRIAGE MAY BE SOLEMNIZED WITHOUT NECESSITY OF A MARRIAGE PERSONS WITHIN THE ZONE OF MILITARY OPERATION, WHETHER MEMBERS OF THE ARMED
LICENSE. FORCES OR CIVILIANS.

Ø Without this provision, illicit relationships may proliferate only because the parties could Ø Requisites:
not get a marriage license with really no fault on their part. 1. Military commander of a unit;
§ Unit – a battalion under the present table of organization and not to a
ART. 29. IN THE CASES PROVIDED FOR IN THE TWO PRECEDING ARTICLES, THE SOLEMNIZING mere company.
OFFICER SHALL STATE IN AN AFFIDAVIT EXECUTED BEFORE THE LOCAL CIVIL REGISTRAR OR
2. Must be a commissioned officer;
ANY OTHER PERSON LEGALLY AUTHORIZED TO ADMINISTER OATHS THAT THE MARRIAGE WAS
§ An officer of a country's armed services whose rank is confirmed by a
PERFORMED IN ARTICULO MORTIS OR THAT THE RESIDENCE OF EITHER PARTY, SPECIFYING THE
government document (called a commission).
BARRIO OR BARANGAY, IS SO LOCATED THAT THERE IS NO MEANS OF TRANSPORTATION TO
§ Second lieutenant, ensign or above.
ENABLE SUCH PARTY TO APPEAR PERSONALLY BEFORE THE LOCAL CIVIL REGISTRAR AND
3. Chaplain is assigned to such unit;
THAT THE OFFICER TOOK THE NECESSARY STEPS TO ASCERTAIN THE AGES AND RELATIONSHIP
4. Chaplain is absent at the time of marriage;
OF THE CONTRACTING PARTIES AND THE ABSENCE OF LEGAL IMPEDIMENT TO THE MARRIAGE.
5. Members of the armed forces or civilians, and within the zone of military
operation; and
§ Even if they do not belong to the unit.
Ø Valid so long as it was established that articulo mortis was present during the solemnization § Within the zone of military operation – implies a widespread military
of the marriage. activity over an area and does not refer to a simulated exercise because
it requires absence of civilian authorities.
ART. 30. THE ORIGINAL OF THE AFFIDAVIT REQUIRED IN THE LAST PRECEDING ARTICLE, 6. In articulo mortis.
TOGETHER WITH THE LEGIBLE COPY OF THE MARRIAGE CONTRACT, SHALL BE SENT BY THE
PERSON SOLEMNIZING THE MARRIAGE TO THE LOCAL CIVIL REGISTRAR OF THE MUNICIPALITY ART. 33. MARRIAGES AMONG MUSLIMS OR AMONG MEMBERS OF THE ETHNIC CULTURAL
WHERE IT WAS PERFORMED WITHIN THE PERIOD OF THIRTY DAYS AFTER THE PERFORMANCE OF COMMUNITIES MAY BE PERFORMED VALIDLY WITHOUT THE NECESSITY OF MARRIAGE LICENSE,
THE MARRIAGE. PROVIDED THEY ARE SOLEMNIZED IN ACCORDANCE WITH THEIR CUSTOMS , RITES OR
PRACTICES .

Ø The procedures under Arts. 29 and 30 are merely directory in character. Non-observance
will not affect the status of the marriage. Ø Exempted from marriage license – other formalities must be in accordance with their laws:
o However, the officer, priest, or minister who, having solemnized a marriage in 1. Muslims – Code of Muslim Personal Laws.
articulo mortis or any other marriage of an exceptional character, shall fail to 2. Indigenous tribes in the Cordillera Autonomous Region (CAR) – Organic Act
comply with Chapter 2, Title I of the Family Code, shall be punished by: for the Cordillera Autonomous Region (R.A. 6766).
1. Imprisonment for 1 month to 2 years; or Ø For other indigenous tribes, they must comply with the Family Code.
2. Fine of Php300 to Php2,000.
ART. 34. NO LICENSE SHALL BE NECESSARY FOR THE MARRIAGE OF A MAN AND A WOMAN
ART. 31. A MARRIAGE IN ARTICULO MORTIS BETWEEN PASSENGERS OR CREW MEMBERS MAY WHO HAVE LIVED TOGETHER AS HUSBAND AND WIFE FOR AT LEAST FIVE YEARS AND WITHOUT
ALSO BE SOLEMNIZED BY A SHIP CAPTAIN OR BY AN AIRPLANE PILOT NOT ONLY WHILE THE ANY LEGAL IMPEDIMENT TO MARRY EACH OTHER. THE CONTRACTING PARTIES SHALL STATE
SHIP IS AT SEA OR THE PLANE IS IN FLIGHT, BUT ALSO DURING STOPOVERS AT PORTS OF CALL. THE FOREGOING FACTS IN AN AFFIDAVIT BEFORE ANY PERSON AUTHORIZED BY LAW TO
ADMINISTER OATHS. THE SOLEMNIZING OFFICER SHALL ALSO STATE UNDER OATH THAT HE
ASCERTAINED THE QUALIFICATIONS OF THE CONTRACTING PARTIES ARE FOUND NO LEGAL
Ø Requisites: IMPEDIMENT TO THE MARRIAGE.
1. Between passengers or crew members;
2. Ship must be at sea or the plane in flight; and
§ An assistant pilot has no authority to solemnize a marriage. Ø Requisites:
§ May be solemnized during stopovers at ports of call – as long as the 1. Live as husband and wife for at least 5 years characterized by exclusivity and
voyage is not yet terminated. continuity that is unbroken.
3. In articulo mortis. 2. Without any legal impediment to marry each other.

23 YAP, K. | ATENEO LAW


§ Legal impediment – any possible ground or basis under the Family Ø As a general rule, good faith and bad faith are immaterial in determining whether a
Code, including non-age and the status of being already married among marriage is null and void.
others, to make a marriage infirm. o Exceptions:
§ This must be construed to refer only to the time of the actual marriage 1. Art. 35 (2) – if either of the contracting parties is in good faith believing
celebration. Such construction is supported because the essential that a solemnizing officer has authority to solemnize a marriage though
requirements of Art. 2 and formal requirements of Art. 3 must be he or she actually has none, the marriage will be considered valid.
present only at the celebration of the marriage and not at any other 2. Art. 41 – a person whose spouse disappears for 4 years or 2 years, in
point in time. the proper cases, the present spouse may validly marry again if he or
• The pronouncement in Office of the Court Administrator she is in good faith together with the subsequent spouse.
(OCA) v. Judge Necessario – that absence of legal o Likewise affects property disposition:
impediment should be for the entire period – should be § When only one of the parties to a void marriage is in good faith, the
considered only as an obiter dictum (opinion) because it was share of the party in bad faith in the co-ownership shall be forfeited in
based on Art. 76 of the Civil Code (repealed by Art. 34 of favor of, in this particular order:
the Family Code), and was an administrative case not 1. Common children or their descendants;
revolving around the validity of the marriage. 2. Surviving descendants; or
Ø Duties under this provision: 3. Innocent party.
1. The contracting parties shall, in an affidavit under oath, state the: o This rule applies to all void marriages except to a subsequent void marriage
a. Fact of cohabitation for at least 5 years; and failing to comply with Art. 40 – failure to get a prior judicial declaration of nullity
b. Absence of legal impediment to marry. of the previous void marriage.
2. Solemnizing officer shall also state under oath that he has ascertained the Ø As a general rule, a void marriage can be collaterally attacked – the nullity of a marriage
qualifications of the contracting parties and found no legal impediment to the can be asserted even if it is not the main or principal issue of a case. (Ex. Inheritance cases)
marriage. o Direct attack – filing a case precisely putting for as principal issue the nullity of
Ø Falsity of the affidavit herein cannot be considered to be a mere irregularity considering the marriage.
that the 5-year period is a substantial requirement to this provision. (De Castro v. De o Cases where a direct attack on the nullity of a marriage must first be undertaken:
Castro, 2008) 1. Art. 40 – the absolute nullity of a previous marriage may be invoked
Ø The aim of this provision is to avoid exposing the parties to humiliation, shame and for purposes of remarriage on the basis solely of a final judgment
embarrassment concomitant with the scandalous cohabitation of persons outside a valid declaring such marriage void.
marriage. 2. Determination of heirship, legitimacy or illegitimacy of the child,
settlement of estate, dissolution of property regime, or a criminal case
CHAPTER THREE: VOID AND VOIDABLE MARRIAGES for that matter.
3. Art. 50 in relation to Art. 43 (3) and in Art. 86 (1) – if the donor decides
Ø Void – invalid from the beginning. to revoke a donation propter nuptias (in consideration of marriage), he
Ø Voidable – presupposes that it was valid but later ceases to have legal effect when must first obtain a judicial declaration of nullity of the marriage.
terminated through court action.
Ø Void Marriage Voidable Marriage ART. 35. THE FOLLOWING MARRIAGES SHALL BE VOID FROM THE BEGINNING:
• Invalid from the beginning. • Was valid but later ceases to have
legal effect when terminated (1) THOSE CONTRACTED BY ANY PARTY BELOW EIGHTEEN YEARS OF AGE EVEN WITH THE
(annulled) through court action. CONSENT OF PARENTS OR GUARDIANS;
• Can never be ratified. • Can be ratified. (2) THOSE SOLEMNIZED BY ANY PERSON NOT LEGALLY AUTHORIZED TO PERFORM MARRIAGES
• Can be attacked collaterally. • Must be attacked directly – main UNLESS SUCH MARRIAGES WERE CONTRACTED WITH EITHER OR BOTH PARTIES BELIEVING IN
• issue of the case. GOOD FAITH THAT THE SOLEMNIZING OFFICER HAD THE LEGAL AUTHORITY TO DO SO;
• Can be questioned even after the • Can only be assailed during the (3) THOSE SOLEMNIZED WITHOUT LICENSE, EXCEPT THOSE COVERED THE PRECEDING
death of either party. lifetime of the parties and not after CHAPTER;
the death of either. (4) THOSE BIGAMOUS OR POLYGAMOUS MARRIAGES NOT FALLING UNDER ARTICLE 41;
• Can only be assailed by the • Can be assailed by any proper (5) THOSE CONTRACTED THROUGH MISTAKE OF ONE CONTRACTING PARTY AS TO THE
IDENTITY OF THE OTHER; AND
contracting parties or parents and interested party – one affected by the
marriage. (6) THOSE SUBSEQUENT MARRIAGES THAT ARE VOID UNDER ARTICLE 53.
guardians.
• No legal effects except those • Children conceived before nullity
declared by law. are legitimate. Ø Void marriage – void ab initio – that which is not valid from its inception.

24 YAP, K. | ATENEO LAW


Ø The enumeration herein is exclusive – only marriages declared void by legislature should 4. Those bigamous or Exceptions:
be treated as such. polygamous marriages not 1. Code of Muslim Personal Laws
Ø The grounds for a void marriage may co-exist in one case. falling under Art. 41 2. Art. 41 – valid subsequent marriages based on
o The cause of action is still the invalidity of the marriage from the beginning. presumptive death.
• Non-observance of Art. 40 (judicial declaration of
Fig. 3. nullity) in relation to Art. 52 shall make the
Void Marriages subsequent marriage void pursuant to Art. 53.
Marriage Rules / Requisites / Exceptions 5. Those contracted through • Ex. When one of the contracting parties marries
1. Those contracted by any • The consent of the parents is immaterial, whether mistake of one contracting the twin of the other party, believing that such
party below 18 years of age present or not. party as to the identity of twin is his or her lover.
even with the consent of • It was raised to 18 years (before 16 for male, 14 the other • Absence of consent – the contracting party
parents or guardians for female) because marriages between 12-17 absolutely did not intend to marry the other, as the
years old increases the probability of unsafe same is not the person he or she actually knew
pregnancies. before the marriage.
2. Those solemnized by any • Exception: When either or both of the parties • Does not apply to mistake as to the real name or
person not legally believing in good faith that the solemnizing mistake as to the virtues of the other party.
authorized to perform officer had the legal authority to do so when in 6. Those subsequent marriages Requisites:
marriages fact he or she has none. void under Art. 53 1. Liquidation, partition and distribution of property;
• Putative marriage – a matrimonial union 2. Delivery of the children’s presumptive legitimes;
solemnized in due form and good faith on the part and
of one or both parties but which by reason of 3. Recorded in the LCR.
some legal infirmity is either void or voidable.
• Good faith – honest and reasonable belief that the ART. 36. A MARRIAGE CONTRACTED BY ANY PARTY WHO, AT THE TIME OF THE CELEBRATION,
marriage was valid at its inception, and that no WAS PSYCHOLOGICALLY INCAPACITATED TO COMPLY WITH THE ESSENTIAL MARITAL
legal impediment exists to impair its validity. OBLIGATIONS OF MARRIAGE, SHALL LIKEWISE BE VOID EVEN IF SUCH INCAPACITY BECOMES
• Does not apply in cases of ignorance of the law – MANIFEST ONLY AFTER ITS SOLEMNIZATION. (AS AMENDED BY EXECUTIVE ORDER 227)
if the parties go before a person not specifically
mentioned by law as having any authority to
solemnize a marriage. (Ex. Solemnized by a Ø The law does not define psychological incapacity, hence the determination is left solely
governor) with the courts on a case-to-case basis.
• Applies in cases of mistake of fact – if the parties o Justice Caguioa: A code should not have so many definitions, because a
go before a person stated by law as qualified to definition straight-jackets the concept and, therefore, many cases that should go
solemnize a marriage but in fact is not because of under it are excluded by the definition. That’s why we leave it up to the court to
non-fulfillment of a requirement by law such as determine the meaning of psychological incapacity.
procuring a license, then there is good faith of the Ø Clearly, the ground is restricted to psychological incapacity “to comply with the essential
parties in believing that there was no infirmity. marital obligations.” It does not refer merely to mental faculties and has nothing to do with
3. Those solemnized without Exceptions: consent.
without license 1. Either of both contracting parties are in articulo o Essential marital obligations:
mortis; 1. Art. 68 – to live together, observe mutual love, respect and fidelity, and
2. Remote residence; render mutual help and support.
3. Between passengers or crew members of a ship or 2. Art. 69 – fixing the family domicile.
plane, in articulo mortis; 3. Art. 70 – joint responsibility for the support of the family, the expenses
4. Between persons within the zone of military for such support and other conjugal obligations.
operation, whether members of the armed forces 4. Art. 71 – management of the household and the expenses therefor.
or civilians, in articulo mortis; 5. Art. 220 – parental authority.
5. Muslims or members of ethnic cultural 6. Art. 221 – civil liability for the injuries and damages caused by the acts
communities; and or omissions of their unemancipated children living in their company
6. Cohabitation for at least 5 years, without legal and under their parental authority.
impediment at the time of marriage. 7. Art. 225 – legal guardianship over the property of the unemancipated
common children.

25 YAP, K. | ATENEO LAW


Ø Psychological incapacity to perform the essential marital obligations must be present at the § The Court may or may not accept the testimony of the psychologist or
time of the marriage ceremony, but can be manifested later on during the marriage. psychiatrist because the decision must be based on the totality of the
o Justice Puno: The bearing of children and cohabitation should not be a sign that evidence. (Paras v. Paras, 2007)
the psychological incapacity has been cured. § The findings of respondent’s psychiatrist, based on transcripts of
Ø Psychological incapacity must be characterized by: respondent’s deposition, consider the findings of another psychiatrist
1. Gravity – incapacity must be grave or serious such that the party would be who personally examined the respondent and also interviewed
incapable of carrying out the ordinary duties required in marriage. respondent’s brothers, as compared to the findings of petitioner’s
2. Juridical antecedence – rooted in the history of the party antedating the marriage, psychiatrist who merely analyzed his deposition, are more credible.
although the overt manifestations may emerge only after the marriage. (Ting v. Ting, 2009)
3. Incurability – incurable or otherwise, the cure would be beyond the means of the § The SC denied nullity on the ground that the psychological report was
party involved. (Santos v. CA and Santos, 1995) very general and did not state specific linkages between the personality
Ø Revised guidelines (Molina Doctrine): disorder and the behavioral pattern of the spouse during the marriage.
1. Bburden of proof to show the nullity of the marriage belongs to the plaintiff, and (Rumbaua v. Rumbaua, 2009)
any doubt should be resolved in favor of the existence and continuation of the Ø This particular ground of nullity was lifted from the Canon Laws of the Catholic Church.
marriage and against its dissolution and nullity. o The homosexual person is unable to assume the responsibilities of marriage
2. Root cause of the psychological incapacity must be: because he is unable to fulfill this object of the matrimonial contract due to sexual
a. Medically or clinically identified; anomaly.
b. Alleged in the complaint; Ø The SC disallowed the award of moral damages, exemplary damages and attorney’s fees
c. Sufficiently proven by experts; and on the ground that the very nature of psychological incapacity which is non-cognizance of
d. Clearly explained in the decision. one’s essential marital obligation at the time of the marriage ceremony, negates bad faith,
3. Incapacity must be proven to be existing at “the time of the celebration” of the which is essential in moral damages. Consequently, no award of exemplary damages and
marriage. attorney’s fees can be made in the absence of bad faith. (Buenaventura v. CA, 2005)
4. Incurability; Ø Examples of cases of psychological incapacity:
5. Gravity; o Unreasonable attachment by the spouse to his or her family (father and mother,
6. Essential marital obligations must be those embraced by Articles 68 up to 71 of brothers and sisters) or to the spouse’s friends or “barkada” such that the
the Family Code as regards the husband and wife as well as Articles 220, 221 importance and devotion which should be given to his or her own spouse and
and 225 of the same Code in regard to parents and their children; and children are subordinated to the said attachment is also a good indicator of
7. Interpretations given by the National Appellate Matrimonial Tribunal of the psychological incapacity. (Republic v. Encelan, 2013)
Catholic Church in the Philippines (NAMTCCP), while not controlling or o The prolonged refusal of a spouse to have sexual intercourse with his or her
decisive, should be given great respect by our courts. (Republic v. CA and spouse is considered a sign of psychological incapacity. (Chi Ming Tsoi v. CA,
Molina, 1997) 1997)
Ø Proving psychological incapacity can only be by indicators or external manifestations of o Dependent personality disorder and narcissistic and anti-social disorder, both
the person claimed to be psychologically incapacitated. consistent with psychological incapacity to perform the essential marital
o These indicators must be clearly alleged in the complained filed in court. obligation warranted the nullity of the marriage. (Te v. Te, 2009)
o As a start, one should see if the husband or wife observes his or her duty as such o Mixed personality disorder from self-defeating personality disorder to dependent
towards his or her spouse, the children, and the family. personality disorder likewise warranted the nullity of the marriage. (Halili v.
o Evidently, one of the essential marital obligations under the Family Code is to Halili, 2009)
procreate children based on the principle that procreation of children through
sexual cooperation is the basic end of marriage. ART. 37. MARRIAGES BETWEEN THE FOLLOWING ARE INCESTUOUS AND VOID FROM THE
§ The fear of a wife, who is afraid of children, to engage in sexual BEGINNING, WHETHER RELATIONSHIP BETWEEN THE PARTIES BE LEGITIMATE OR
intercourse is an indicator of psychological incapacity. ILLEGITIMATE:
o The manifestations of psychological incapacity must be attributed to a
psychological illness and not merely physical illness. (Ochosa v. Alano, 2011) (1) BETWEEN ASCENDANTS AND DESCENDANTS OF ANY DEGREE; AND
o The professional opinion of a psychological expert became increasingly (2) BETWEEN BROTHERS AND SISTERS, WHETHER OF THE FULL OR HALF BLOOD.
important in such cases. (Republic v. CA and Molina, 1997)
§ Given by a psychologist or psychiatrist.
§ Purpose: Ø Universally condemned as grossly indecent, immoral, and inimical to the purity and
1. To establish the precise cause of a party’s psychological happiness of the family and the welfare of future generations.
incapacity. o Leads to confusion of rights and duties incident to family relations.
2. To show that it existed at the inception of the marriage. § Ex. If a child is born to a union between daughter and father, then its
mother is also its sister. Its father is married to its grandmother, and its
26 YAP, K. | ATENEO LAW
father is simultaneously its grandfather. Its half-brother is also its Fig. 3.
uncle.
o In addition, science and experience have established that such intermarriages
often result in deficient and degenerate offspring (deleterious recessive genes)
which would amount to a serious deterioration of the race.
§ Deleterious genes – a gene which usually effects to reduced fitness.
Such genes are often “recessive,” so that they can be transmitted
through families without being detected unless two occur together in
the same individual.
Ø Purposes of incest prohibition:
1. To control sex rivalries and jealousies within the family unit; and
2. To ensure suitable role models in preparing the individual for assumption of
familial responsibility as an adult.

ART. 38. THE FOLLOWING MARRIAGES SHALL BE VOID FROM THE BEGINNING FOR REASONS OF
PUBLIC POLICY:

(1) BETWEEN COLLATERAL BLOOD RELATIVES WHETHER LEGITIMATE OR ILLEGITIMATE, UP


TO THE FOURTH CIVIL DEGREE; 2. Between step-parents and step-children.
(2) BETWEEN STEP-PARENTS AND STEP-CHILDREN; § Refer to Fig. 4 for a sample of counting the civil degree between half-
(3) BETWEEN PARENTS-IN-LAW AND CHILDREN-IN-LAW; blood relatives.
(4) BETWEEN THE ADOPTING PARENT AND THE ADOPTED CHILD; • Marriage between half-blood relatives is not specifically
(5) BETWEEN THE SURVIVING SPOUSE OF THE ADOPTING PARENT AND THE ADOPTED CHILD; included by law as a void marriage and, therefore, cannot be
(6) BETWEEN THE SURVIVING SPOUSE OF THE ADOPTED CHILD AND THE ADOPTER; considered as such. (In Re: Simms Estate, 1951)
(7) BETWEEN AN ADOPTED CHILD AND A LEGITIMATE CHILD OF THE ADOPTER;
(8) BETWEEN ADOPTED CHILDREN OF THE SAME ADOPTER; AND Fig. 4.
(9) BETWEEN PARTIES WHERE ONE, WITH THE INTENTION TO MARRY THE OTHER, KILLED THAT
OTHER PERSON'S SPOUSE, OR HIS OR HER OWN SPOUSE.

Ø The enumeration herein is exclusive


Ø 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.
o Nuclear family – a family group consisting of two parents and their children (one
or more). It is in contrast to a single-parent family, to the larger extended family,
and to a family with more than two parents. 3. Between parents-in-law and children-in-law.
Ø Void marriages for reason of public policy: § Affinity – a connection formed by marriage, which places the husband
1. Between collateral blood relatives whether legitimate or illegitimate, up to the in the same degree of nominal proximity to the relatives of the wife as
4th civil degree. that in which she herself stands towards them, and give the wife the
§ Collateral relatives – relatives who are not direct ancestors. (Ex. same reciprocal connection with the relations of the husband.
cousins, nephews and nieces, uncles and aunts, etc.) • Arises from marriage; canonical maxim that marriage makes
§ To prevent the coming together in their offspring of any deleterious husband and wife one.
recessive genes. • To keep with Philippine customs and traditions that parents-
§ Relationship by consanguinity is in itself incapable of dissolution. Ex. in-law treat children-in-law just like their own children and
Death of a grandparent does not sever the relationship between vice versa.
cousins. § General Rule: Relationship by affinity cease with the dissolution of the
§ Refer to Fig. 3 for a sample of counting the civil degree between marriage which produces it. (Kelly v. Neely, 1852)
relatives. Exclude the starting point, include the end point. • Exceptions:
• Ex. Juan Junior can marry Dolores because they are relatives 1. When there are living issues or children of the
to the 5th civil degree. marriage “in whose veins the blood of the parties
are commingled, since the relationship of affinity
27 YAP, K. | ATENEO LAW
was continued through the medium of the issue of ART. 39. THE ACTION OR DEFENSE FOR THE DECLARATION OF ABSOLUTE NULLITY OF A
the marriage.” (Paddock v. Wells, 2012) MARRIAGE SHALL NOT PRESCRIBE. (AS AMENDED BY EXECUTIVE ORDER 227 AND REPUBLIC
2. In criminal law, affinity relation subsists even after ACT NO. 8533)
the death of the spouse regardless of existence or
non-existence of children. (Intestate Estate of Vda.
De. Carungcong, 2010) Ø The phrase "however, in case of marriage celebrated before the effectivity of this code and
4. Between the adopting parent and the adopted child. falling under article 36 (psychological incapacity), such action or defense shall prescribe
5. Between the surviving spouse of the adopting parent and the adopted child. in ten years after this code shall taken effect" has been deleted by RA 8533 (approved
6. Between the surviving spouse of the adopted child and the adopter. February 23, 1998)
7. Between an adopted child and a legitimate child of the adopter. Ø A void marriage (void ab initio) is considered as never to have taken place and will be
8. Between the adopted children of the same adopter. treated as non-existent by the courts. (Niñal v. Bayadog, 2000)
§ The relationship created in adoption is limited to one of parent and Ø Only the husband or wife can filed a court case declaring the marriage void. (Supreme
child Court Resolution, A.M. No. 02-11-10-SC)
o The Doctrine of unclean hands is not a rule applied in nullity actions because it
Fig. 5. is merely judge-made and has no statutory basis. (Faustin v. Lewis, 1981)
Adoptive Relationship Ø Only the spouses in the subsisting first marriage can file a case for declaration of nullity of
Cannot Marry Can Marry a subsequent bigamous marriage. (Fujiki v. Marinay, 2013)
Adopter 1. Adopted 1. Legitimate or Ø A void marriage can still be collaterally attacked by any interested party in any proceeding
2. Surviving spouse of illegitimate child of the where the determination of the validity of marriage is necessary to give rise to certain rights
the adopted adopted or to negate certain rights.
2. Adopted child of the
adopted ART. 40. THE ABSOLUTE NULLITY OF A PREVIOUS MARRIAGE MAY BE INVOKED FOR PURPOSES
3. Natural parent of the OF REMARRIAGE ON THE BASIS SOLELY OF A FINAL JUDGMENT DECLARING SUCH PREVIOUS
adopted MARRIAGE VOID.
4. Other relatives,
whether by
consanguinity or Ø If a marriage is void ab initio, any one of them cannot contract a subsequent valid marriage
affinity, of the adopted without a previous declaration of nullity.
Adopted 1. Adopter 1. Parents of the adopter o Only full compliance with Arts. 52 and 53 can a subsequent valid marriage be
2. Surviving spouse of 2. Illegitimate children of entered into.
the adopter the adopter § Requisites:
3. Legitimate child of the 3. Other relatives, 1. Liquidation, partition and distribution of property;
adopter whether by 2. Delivery of the children’s presumptive legitimes; and
4. Other adopted children consanguinity or 3. Recorded in the LCR.
of the adopter affinity, of the adopter o PAY ATTENTION to the date of the subsequent marriage to know whether a
4. (Former) spouse of the judicial declaration of nullity is necessary.
adopter, after the
marriage is judicially Fig. 6.
nullified or annulled Need of Judicial Declaration of Nullity
Status of Subsequent
Jurisprudence Date of Effectivity
9. Between parties where one, with the intention to marry the other, killed that other Marriage
person’s spouse, or his or her own spouse. People v. Gomez September 28, 1954 Valid
§ If the party can do such act, there is no guarantee that he or she will Gomez v. Lipana June 30, 1970 Void
not do the same evil act again to his or her subsequent spouse so that
Odayat v. Amante June 2, 1977 Valid
he or she can marry for the third time.
§ This prohibition applies even if the act was contemplated and done Wiegel v. Sempio Diy August 19, 1986 Void
without the other party’s knowledge. Yap v. CA October 28, 1986 Valid
§ No prior criminal conviction by the Court for the killing is required by Family Code of the
law. August 3, 1988 Void
Philippines
• Justice Caguioa: Mere preponderance of evidence is required
to prove the killing.
28 YAP, K. | ATENEO LAW
o The sole basis acceptable in law for said projected marriage to be free from legal b. 2 consecutive years where there is danger of death
infirmity is a final judgment declaring the previous marriage void. (Domingo v. in the following circumstance:
CA, 1993) i. A person on board a vessel lost during a
§ Justice Caguioa: One cannot determine for himself whether or not his sea voyage, or an airplane which is
marriage is valid and that a court action is needed. missing;
o Art. 40 does not provide or expressly declare or define that a subsequent void ii. A person in the armed forces who has
marriage obtained in violation of this article is bigamous. taken part in a war; or
§ Subsequent void marriage contract while a previous void marriage is iii. A person who has been in danger of
still subsisting – Art. 40 – if the first marriage is void and one of the death under other circumstances.
parties subsequently remarried without a judicial declaration of nullity 2. Spouse present has a well-founded belief that the absent
of the first marriage. spouse was already dead;
§ Subsequent void bigamous marriage – Arts. 35 (4) and 41 – a § Well-founded belief – the belief of the present
subsequent marriage is contracted at the time when the valid first spouse must be the result of proper and honest to
marriage was still subsisting. goodness inquiries and efforts to ascertain the
o Bigamy (Criminal Law) – committed by any person who shall contract a second whereabouts of the absent spouse and whether the
or subsequent marriage before the former marriage has been legally dissolved, absent spouse is still alive or is already dead.
or before the absent spouse has been declared presumptively dead by means of 3. Judicial declaration of presumptive death (JDPD).
judgment rendered in the proper proceeding. (Art. 349, RPC) § General Rule: No judicial declaration of
§ For as long as Art. 40 of the Family Code was not complied with, the presumptive death is required as such presumption
subsequent marriage will always be criminally bigamous. arises from the law.
o Violation of Art. 40 is not a bar in invoking the nullity of the first marriage • Exception: Art. 41 of the Family Code
because Art. 40 merely aims to put certainty as to the void status of the for purposes of remarriage.
subsequent marriage and is not aimed as a provision to define bigamy under the § Summary proceeding where the judgment is final.
Family Code or criminal bigamy under the RPC. (Mercado v. Mercado, 2000: § Without prejudice to the effect of reappearance of the absent spouse.
Justice Vitug, dissenting opinion) • JDPD is only prima facie, and can be overthrown by
§ The only effect of the non-observance of Art. 40 is to make the evidence. (People v. Archilla, 1961)
subsequent marriage void pursuant to Arts. 52 and 53. • Automatic termination of the subsequent marriage can be
obtained by the recording of the Affidavit of Reappearance”
ART. 41. A MARRIAGE CONTRACTED BY ANY PERSON DURING SUBSISTENCE OF A PREVIOUS of the absent spouse in the LCR of the residence of the
MARRIAGE SHALL BE NULL AND VOID, UNLESS BEFORE THE CELEBRATION OF THE parties to the subsequent marriage – the only instance when
SUBSEQUENT MARRIAGE, THE PRIOR SPOUSE HAD BEEN ABSENT FOR FOUR CONSECUTIVE a marriage is terminated extra-judicially.
YEARS AND THE SPOUSE PRESENT HAS A WELL-FOUNDED BELIEF THAT THE ABSENT SPOUSE o May be filed by any interested party.
WAS ALREADY DEAD. IN CASE OF DISAPPEARANCE WHERE THERE IS DANGER OF DEATH UNDER • If the reappearing spouse does not file an affidavit or sworn
THE CIRCUMSTANCES SET FORTH IN THE PROVISIONS OF ARTICLE 391 OF THE CIVIL CODE, AN statement with the LCR of the fact of reappearance, there
ABSENCE OF ONLY TWO YEARS SHALL BE SUFFICIENT. will technically exist two valid marriages.
§ After issuance of JDPD, the properties of the first marriage will be
FOR THE PURPOSE OF CONTRACTING THE SUBSEQUENT MARRIAGE UNDER THE PRECEDING liquidated pursuant to Arts. 103 (Dissolution of Absolute Community
PARAGRAPH THE SPOUSE PRESENT MUST INSTITUTE A SUMMARY PROCEEDING AS PROVIDED IN Property Regime) and 130 (Dissolution of Conjugal Partnership of
THIS CODE FOR THE DECLARATION OF PRESUMPTIVE DEATH OF THE ABSENTEE, WITHOUT Gains Regime) of the Family Code.
PREJUDICE TO THE EFFECT OF REAPPEARANCE OF THE ABSENT SPOUSE.
ART. 42. THE SUBSEQUENT MARRIAGE REFERRED TO IN THE PRECEDING ARTICLE SHALL BE
AUTOMATICALLY TERMINATED BY THE RECORDING OF THE AFFIDAVIT OF REAPPEARANCE OF
Ø For as long as the first void marriage is not judicially declared void, any subsequent
THE ABSENT SPOUSE, UNLESS THERE IS A JUDGMENT ANNULLING THE PREVIOUS MARRIAGE OR
marriage is also bigamous. (Mercado v. Mercado, 2000)
DECLARING IT VOID AB INITIO.
Ø General Rule: A marriage contracted during the lifetime of the first spouse is null and void.
(Gomez v. Lipana, 1970)
o Exception: Art. 41 – Judicial declaration of presumptive death (JDPD). A SWORN STATEMENT OF THE FACT AND CIRCUMSTANCES OF REAPPEARANCE SHALL BE
RECORDED IN THE CIVIL REGISTRY OF THE RESIDENCE OF THE PARTIES TO THE SUBSEQUENT
§ Requisites for Art. 41:
MARRIAGE AT THE INSTANCE OF ANY INTERESTED PERSON, WITH DUE NOTICE TO THE SPOUSES
1. One of the spouses has been absent for either
OF THE SUBSEQUENT MARRIAGE AND WITHOUT PREJUDICE TO THE FACT OF REAPPEARANCE
a. 4 consecutive years; or
BEING JUDICIALLY DETERMINED IN CASE SUCH FACT IS DISPUTED.

29 YAP, K. | ATENEO LAW


§ After payment of all debts and obligations of the ACP or CPG, the
Ø For judicial declarations of nullity obtained in foreign courts, the proper petition to file is spouses shall divide the property equally or in accordance with the
a Petition for Recognition of Foreign Judgment. (Fujiki v. Marinay, 2013) sharing stipulated in a valid marriage settlement, unless there has been
o Rule 108, Rules of Court – foreign declaration may be proved through: a voluntary waiver of share by either of the spouses upon the judicial
1. Official publication; or separation of property.
2. Certification or copy attested by the officer who has custody of the § If either of the spouses acted in bad faith, the guilty spouse shall not
judgment. get his share in the net profits of the property regime.
• May be made by the proper diplomatic or consular officer of • Such share shall be forfeited in favor of the following, in
the Philippine foreign service in the country where the order:
decree was obtained. 1. Common children;
2. Children by a previous marriage of the guilty
ART. 43. THE TERMINATION OF THE SUBSEQUENT MARRIAGE REFERRED TO IN THE PRECEDING spouse; or
ARTICLE SHALL PRODUCE THE FOLLOWING EFFECTS: 3. Innocent spouse.
§ For computing the net profits (NP) subject to forfeiture, the said profits
(1) THE CHILDREN OF THE SUBSEQUENT MARRIAGE CONCEIVED PRIOR TO ITS TERMINATION shall be the increase in value between the market value of the
SHALL BE CONSIDERED LEGITIMATE;
community property at the time of the celebration of the marriage
(2) THE ABSOLUTE COMMUNITY OF PROPERTY OR THE CONJUGAL PARTNERSHIP, AS THE CASE (MVCM) and the market value at the time of its dissolution (MVD).
MAY BE, SHALL BE DISSOLVED AND LIQUIDATED, BUT IF EITHER SPOUSE CONTRACTED SAID • NP = MVD – MVCM
MARRIAGE IN BAD FAITH, HIS OR HER SHARE OF THE NET PROFITS OF THE COMMUNITY 3. Donations by reason of marriage shall remain valid, except that if the donee
PROPERTY OR CONJUGAL PARTNERSHIP PROPERTY SHALL BE FORFEITED IN FAVOR OF THE contracted the marriage in bad faith, such donations made to said donee are
COMMON CHILDREN OR, IF THERE ARE NONE, THE CHILDREN OF THE GUILTY SPOUSE BY A revoked by operation of law.
PREVIOUS MARRIAGE OR IN DEFAULT OF CHILDREN, THE INNOCENT SPOUSE; § Donations are essentially gratuitous. Hence, when both parties are in
(3) DONATIONS BY REASON OF MARRIAGE SHALL REMAIN VALID, EXCEPT THAT IF THE DONEE good faith, the donation by reason of marriage (donation propter
CONTRACTED THE MARRIAGE IN BAD FAITH, SUCH DONATIONS MADE TO SAID DONEE ARE nuptias) shall be valid even if the subsequent marriage is terminated.
REVOKED BY OPERATION OF LAW; § If the donee acted in bad faith in contracting the marriage, the donation
(4) THE INNOCENT SPOUSE MAY REVOKE THE DESIGNATION OF THE OTHER SPOUSE WHO by reason of marriage ipso jure is terminated by operation of law.
ACTED IN BAD FAITH AS BENEFICIARY IN ANY INSURANCE POLICY, EVEN IF SUCH DESIGNATION • If both parties are in bad faith, the same rule is applied
BE STIPULATED AS IRREVOCABLE; AND because such marriage is void in accordance with Art. 44.
(5) THE SPOUSE WHO CONTRACTED THE SUBSEQUENT MARRIAGE IN BAD FAITH SHALL BE • Art. 44 further provides that where both parties are in bad
DISQUALIFIED TO INHERIT FROM THE INNOCENT SPOUSE BY TESTATE AND INTESTATE faith, testamentary dispositions made by one in favor of the
SUCCESSION. other 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
Ø Effects of termination of the subsequent marriage in Arts. 41-42: stipulated as irrevocable.
1. The children of the subsequent marriage conceived prior to its termination shall § If the innocent spouse opts to revoke, he can do so even if the
be considered legitimate. designation as beneficiary is irrevocable.
§ This is so because the children were conceived either inside a: 5. The spouse who contracted the subsequent marriage in bad faith shall be
1. Valid bigamous marriage; or disqualified to inherit from the innocent spouse by testate and intestate
2. Valid marriage despite non-observance of Arts. 40, 52 and succession.
53. § Art. 43 (4) will still apply even in cases where the parties to a
§ Subsequent marriages in cases of presumptive death under Art. 41 can subsequent marriage are within the 5th civil degree for purposes of
only be considered void if both spouses were in bad faith in contracting succession. The disqualification was brought about by a voluntary act
the subsequent marriage. Hence, the children born therein are done in bad faith.
illegitimate. § If both parties in the subsequent marriage are in bad faith, such
2. The absolute community of property or the conjugal partnership, as the case may marriage is void, and therefore dispositions made by one in favor of
be, shall be dissolved and liquidated, but if either spouse contracted said marriage the other are revoked by operation of law.
in bad faith, his or her share of the net profits of the community property (ACP)
or conjugal partnership (CPG) 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.

30 YAP, K. | ATENEO LAW


ART. 44. IF BOTH SPOUSES OF THE SUBSEQUENT MARRIAGE ACTED IN BAD FAITH, SAID Fig. 7.
MARRIAGE SHALL BE VOID AB INITIO AND ALL DONATIONS BY REASON OF MARRIAGE AND Annullable Marriages
TESTAMENTARY DISPOSITIONS MADE BY ONE IN FAVOR OF THE OTHER ARE REVOKED BY Marriage Rules / Requisites / Exceptions
OPERATION OF LAW. 1. Party was 18-21 years old, • Annullable at the instance of the:
and the marriage was 1. Party whose parent, guardian or person
solemnized without having substitute parental authority did
Ø Remember that Art. 44 clearly provides that the subsequent marriage shall be considered parental consent. not give his or her consent; and
void only if both spouses in the said subsequent marriage are in bad faith. 2. Parents, guardians, or person having
substitute parental authority over the
ART. 45. A MARRIAGE MAY BE ANNULLED FOR ANY OF THE FOLLOWING CAUSES, EXISTING AT party in that order.
THE TIME OF THE MARRIAGE: • RATIFICATION: When after attaining the age of
21, such party freely cohabited with the other and
(1) THAT THE PARTY IN WHOSE BEHALF IT IS SOUGHT TO HAVE THE MARRIAGE ANNULLED both lived together as husband and wife.
WAS EIGHTEEN YEARS OF AGE OR OVER BUT BELOW TWENTY-ONE, AND THE MARRIAGE WAS 2. Either party was of • There must be such a derangement of the mind to
SOLEMNIZED WITHOUT THE CONSENT OF THE PARENTS, GUARDIAN OR PERSON HAVING unsound mind. prevent the party from comprehending the nature
SUBSTITUTE PARENTAL AUTHORITY OVER THE PARTY, IN THAT ORDER, UNLESS AFTER of the contract and from giving it to his free and
ATTAINING THE AGE OF TWENTY-ONE, SUCH PARTY FREELY COHABITED WITH THE OTHER AND intelligent consent.
BOTH LIVED TOGETHER AS HUSBAND AND WIFE; o Contemplates a situation wanting of
(2) THAT EITHER PARTY WAS OF UNSOUND MIND, UNLESS SUCH PARTY AFTER COMING TO consent.
REASON, FREELY COHABITED WITH THE OTHER AS HUSBAND AND WIFE; • Burden of proof of insanity rests upon him who
(3) THAT THE CONSENT OF EITHER PARTY WAS OBTAINED BY FRAUD, UNLESS SUCH PARTY alleges insanity, or seeks to avoid an act on
AFTERWARDS, WITH FULL KNOWLEDGE OF THE FACTS CONSTITUTING THE FRAUD, FREELY account of it.
COHABITED WITH THE OTHER AS HUSBAND AND WIFE; o If, however, a previous state of insanity is
(4) THAT THE CONSENT OF EITHER PARTY WAS OBTAINED BY FORCE, INTIMIDATION OR UNDUE proved, the burden shifts to him who
INFLUENCE, UNLESS THE SAME HAVING DISAPPEARED OR CEASED, SUCH PARTY THEREAFTER asserts that the act was done while the
FREELY COHABITED WITH THE OTHER AS HUSBAND AND WIFE; person was sane.
(5) THAT EITHER PARTY WAS PHYSICALLY INCAPABLE OF CONSUMMATING THE MARRIAGE • RATIFICATION: When after coming to reason,
WITH THE OTHER, AND SUCH INCAPACITY CONTINUES AND APPEARS TO BE INCURABLE; OR such party freely cohabits with the other. (5-year
(6) THAT EITHER PARTY WAS AFFLICTED WITH A SEXUALLY-TRANSMISSIBLE DISEASE FOUND prescriptive period)
TO BE SERIOUS AND APPEARS TO BE INCURABLE. 3. Consent of either party was • Fraud – the non-disclosure or concealment of
obtained by fraud. certain circumstances which materially affect the
Ø The public policy herein is the permanency of the marriage relation – indissoluble and essence of marriage.
sacred, being the foundation upon which society rests. o There is no fraud when there is no
Ø Unlike a void marriage which is invalid form the beginning, an annullable/voidable concealment or disclosure.
marriage is considered valid up to the time it is terminated. • Refer to Fig. 8 for the list of frauds.
Ø The grounds for annulment are only those specified by law; the list is exclusive. • RATIFICATION: Unless after having full
§ The exclusivity of the grounds is in line with the policy of the state to enhance knowledge of the facts constituting the fraud, such
the permanence of marriage. party cohabits with the other. (5-year prescriptive
Ø Ratification of annullable marriages – if there are circumstances to show that, despite the period)
presence of the defects discussed herein, the parties nevertheless subsequently manifest 4. Consent of either party was • Vitiated consent – obtained by force, intimidation
their approval of the marital union (ex. freely cohabits), a decree of annulment cannot obtained by force, or undue influence.
properly issue. intimidation or undue o Force or duress – physical and mental
§ Does not apply to Art. 45 (5) and (6). influence. compulsion which the victim may be
• The reason is that these grounds are not based on defective consent like unable to resist, and may be physical or
the others, but are based on the fact that the impotency or disease is moral.
incurable. o Intimidation – when one of the parties is
§ If the aggrieved parties do not bring the suit within 5 years after the marriage compelled by a reasonable and well-
ceremony, they are barred forever from annulling the marriage. grounded fear of an imminent and grave
evil upon his person or property, or upon
the person or property of his spouse,
31 YAP, K. | ATENEO LAW
descendants or ascendants, to give his ART. 46. ANY OF THE FOLLOWING CIRCUMSTANCES SHALL CONSTITUTE FRAUD REFERRED TO
consent. IN NUMBER 3 OF THE PRECEDING ARTICLE:
§ Age, sex and condition of the
parties shall be borne in mind. (1) NON-DISCLOSURE OF A PREVIOUS CONVICTION BY FINAL JUDGMENT OF THE OTHER PARTY
o Undue influence – influence by which a OF A CRIME INVOLVING MORAL TURPITUDE;
person is induced to act otherwise than by (2) CONCEALMENT BY THE WIFE OF THE FACT THAT AT THE TIME OF THE MARRIAGE, SHE WAS
their own free will or without adequate PREGNANT BY A MAN OTHER THAN HER HUSBAND;
attention to the consequences. (3) CONCEALMENT OF SEXUALLY TRANSMISSIBLE DISEASE, REGARDLESS OF ITS NATURE,
• Proven by preponderance of evidence. EXISTING AT THE TIME OF THE MARRIAGE; OR
• RATIFICATION: When the force, intimidation or (4) CONCEALMENT OF DRUG ADDICTION, HABITUAL ALCOHOLISM OR HOMOSEXUALITY OR
undue influence ceases, such party freely cohabits LESBIANISM EXISTING AT THE TIME OF THE MARRIAGE.
with the other. (5-year prescriptive period) NO OTHER MISREPRESENTATION OR DECEIT AS TO CHARACTER, HEALTH, RANK, FORTUNE OR
5. Either party was physically • Requisites: CHASTITY SHALL CONSTITUTE SUCH FRAUD AS WILL GIVE GROUNDS FOR ACTION FOR THE
incapable of consummating 1. Continuing; ANNULMENT OF MARRIAGE.
the marriage, and such 2. Incurable; and
incapacity continues and 3. Exists at the time of marriage.
appears to be incurable. • Permanent inability on the part of one of the Fig. 8.
spouses to perform the complete act of sexual Frauds Contemplated in Art. 45 (3)
intercourse. Concealment of Rules / Requisites / Exceptions
• May be caused by a physical or structural defect
in the anatomy of one of the parties or it may be 1. Previous conviction by • Moral turpitude – inherent baseness, vileness or
due to chronic illness and inhibitions or fears final judgment of the other depravity in the private and social duties which a
arising in whole or in part from psychophysical party of a crime involving man owes to his fellow men or to society in
conditions, and psychogenic causes. moral turpitude. general.
• If the husband can attain erection but is • Generally, crimes punishable under the RPC are
psychologically inhibited in engaging sexual crimes involving moral turpitude.
intercourse, such situation will not fall under • It is not necessary that one of the parties
impotency as contemplated under the Family investigates the other to determine criminal
Code. record, the burden is on the convicted party to
• Whoever alleges the incapacity has the burden of reveal the same.
proving the same. 2. Pregnancy by a man other • Maternity is always certain while paternity may
o The presumption is in favor of potency. than the wife’s husband. be disputed.
o Triennial cohabitation – if the wife • The concealment must have been done in bad
remains a virgin for at least 3 years after faith.
cohabitation, the husband must show that
• Mere pregnancy is not sufficient, there must be
he was not impotent during the said
concealment of such. If she did not inform the
period and the burden will be upon him
man, but such pregnancy was readily apparent to
to overcome the presumption of
the man, he cannot claim lack of knowledge.
impotency.
• A sterile person can engage in sexual coition, it 3. Sexually transmissible • In case of fraud, the nature or gravity is irrelevant.
does not imply want of power for copulation; it is disease, regardless of its It is enough that there was concealment.
not a ground contemplated herein. nature, existing at the time
6. Either party was afflicted • Requisites: of marriage.
with a sexually- 1. Serious; and 4. Drug addiction, habitual • Habitual drunkenness or intemperance – the
transmissible disease 2. Incurable. alcoholism, or persistent habit of becoming intoxicated whereby
(STD) found to be serious • Does not apply if the STD was obtained after the homosexuality or he has lost the power or will to control his
and appears to be incurable. marriage ceremony. However, it can be used as lesbianism existing at the appetite for intoxicating liquor, as where he
evidence of sexual infidelity which is a ground for time of marriage. indulges in intoxication whenever the temptation
legal separation. is presented and the opportunity offered.

32 YAP, K. | ATENEO LAW


o Applies even if there be intervals when Sane spouse without Any time before the death
he entirely refrains from the use of knowledge of insanity of the insane spouse
intoxicating drinks. before the marriage
o Reason is that it renders him unfit for the 2. Either party was of Any relative, guardian or
Any time before the death
duties of the marital relation and unsound mind. person having legal charge
of either party
disqualifies him from properly rearing of the insane person
and caring for the children. During a lucid interval or
Insane spouse
• The ground is not homosexuality or lesbianism after regaining sanity
per se, but the concealment of such sexual 3. Consent of either party Within 5 years after the
Injured party
orientation. was obtained by fraud. discovery of the fraud
o Does not serve the purpose of the law 4. Consent of either party Within 5 years from the
mandating a heterosexual relationship. was obtained by force, time the force, intimidation
Injured party
intimidation or undue or undue influence
influence. disappeared or ceased
ART. 47. THE ACTION FOR ANNULMENT OF MARRIAGE MUST BE FILED BY THE FOLLOWING
5. Either party was
PERSONS AND WITHIN THE PERIODS INDICATED HEREIN:
physically incapable of
consummating the
(1) FOR CAUSES MENTIONED IN NUMBER 1 OF ARTICLE 45 BY THE PARTY WHOSE PARENT OR
marriage, and such
GUARDIAN DID NOT GIVE HIS OR HER CONSENT, WITHIN FIVE YEARS AFTER ATTAINING THE
incapacity continues
AGE OF TWENTY-ONE, OR BY THE PARENT OR GUARDIAN OR PERSON HAVING LEGAL CHARGE
and appears to be
OF THE MINOR, AT ANY TIME BEFORE SUCH PARTY HAS REACHED THE AGE OF TWENTY-ONE; Within 5 years after the
incurable. Injured party
(2) FOR CAUSES MENTIONED IN NUMBER 2 OF ARTICLE 45, BY THE SAME SPOUSE, WHO HAD marriage
NO KNOWLEDGE OF THE OTHER'S INSANITY; OR BY ANY RELATIVE OR GUARDIAN OR PERSON
6. Either party was
HAVING LEGAL CHARGE OF THE INSANE, AT ANY TIME BEFORE THE DEATH OF EITHER PARTY,
afflicted with a
OR BY THE INSANE SPOUSE DURING A LUCID INTERVAL OR AFTER REGAINING SANITY;
sexually-transmissible
(3) FOR CAUSES MENTIONED IN NUMBER 3 OF ARTICLE 45, BY THE INJURED PARTY, WITHIN disease (STD) found to
FIVE YEARS AFTER THE DISCOVERY OF THE FRAUD;
be serious and appears
(4) FOR CAUSES MENTIONED IN NUMBER 4 OF ARTICLE 45, BY THE INJURED PARTY, WITHIN to be incurable.
FIVE YEARS FROM THE TIME THE FORCE, INTIMIDATION OR UNDUE INFLUENCE DISAPPEARED
OR CEASED; ART. 48. IN ALL CASES OF ANNULMENT OR DECLARATION OF ABSOLUTE NULLITY OF
(5) FOR CAUSES MENTIONED IN NUMBER 5 AND 6 OF ARTICLE 45, BY THE INJURED PARTY, MARRIAGE, THE COURT SHALL ORDER THE PROSECUTING ATTORNEY OR FISCAL ASSIGNED TO
WITHIN FIVE YEARS AFTER THE MARRIAGE. 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.

Ø Annulment cases are actions in “rem,” for they concern the status of the parties, and status IN THE CASES REFERRED TO IN THE PRECEDING PARAGRAPH, NO JUDGMENT SHALL BE BASED
affects or binds the whole word. UPON A STIPULATION OF FACTS OR CONFESSION OF JUDGMENT.
o The “res” is the relation between the said parties, or their marriage tie.
o Jurisdiction over the same depends upon the nationality or domicile of the
parties, not the place of the celebration of the marriage (locus celebrationis). Ø The procedure for annulment and declaration of nullity is now governed by Supreme Court
Ø Prescriptive period – the time within which a case can be filed in court. En Banc Resolution in A.M. No. 00-11-01-SC, effective March 15, 2003.
o After filing of the complaint with the proper Regional Trial Court, the defendant
Fig. 9. shall be given 15 days from receipt of the summons and of a copy of the
Parties and Prescriptive Periods complaint within which to file an answer.
Defect Who May File Prescriptive Period § If defendant fails to answer, he cannot be declared in default, and the
Party whose parent or Court will order the full-blown hearing of the case where the fiscal
1. Party was 18-21 years Within 5 years after shall appear on behalf of the State to make sure that there is no
guardian did not give
old, and the marriage attaining the age of 21 collusion or that the evidence is not fabricated.
consent
was solemnized • The Court shall order the fiscal to investigate whether a
Parent or guardian or person
without parental Any time before such party collusion between the parties exists, and if none, to intervene
having legal charge of the
consent. reaches the age of 21 for the State in order to see that evidence is not fabricated.
minor

33 YAP, K. | ATENEO LAW


• If such order is issued, and the petitioner does not appear parties connived to bring about a matrimonial case even in the absence
claiming that she does not want to reveal her evidence of grounds therefor.
prematurely to the fiscal, the annulment case may be o A just who does not order an investigation for collusion when the situation falls
dismissed by the Court upon motion of the fiscal. (Tolentino squarely within the rules for him to order such investigation can be subject to
v. Villanueva, 1974) administrative sanction. (Corpus v. Ochotorena, 2004)
§ If the defendant answers, the issues of the case are considered joined Ø An annulment or nullity decree cannot be issued by the Court on the sole basis of a
and, thereafter, the Court shall order the hearing of the case. The fiscal stipulation of facts, or a confession of judgment. (Cardens v. Cardenas and Rinen, 1955)
shall likewise appear on behalf of the State. o Stipulation of facts – an admission by both parties made in court agreeing to the
• The inquiry of the fiscal can focus upon any relevant matter existence of the act constituting the ground for annulment or for the declaration
that may indicate whether the proceedings for annulment, of nullity of the marriage.
nullity or legal separation are fully justified or not. (Brown o Confession of judgment – an admission made in court by the respondent or
v. Yambao, 1957) defendant admitting fault as invoked by the plaintiff to sever the marriage ties.
o In cases of erroneous judgment, this would not prevent the decree from having o Both must be sufficiently supported or corroborated by other independent
legal effect. An erroneous judgment is not a void judgment. (Chereau v. substantial evidence to support the main ground relied upon.
Fuentebella, 1922) § Out-of-court admissions are admissible.
o No valid compromise is legally possible on the issue of the validity of marriage. Ø There was no grave abuse of discretion on the part of a judge in a nullity case to issue a
(Mendoza v. CA, 1967) judgment deciding the merits of the nullity case and only thereafter decide on the other
o In annulment and nullity cases, the prosecuting attorney (fiscal) must be present. incidents such as the issues on property, custody and visitation rights. (Yu v. Reyes-Carpio,
§ The Office of the Solicitor General (OSG), although not specifically 2011)
mentioned, intervenes considering that the issue of the validity of o Also applicable in annulment cases.
marriage is vested with public interest – defensor vinculi – defender of
the marital bond. ART. 49. DURING THE PENDENCY OF THE ACTION AND IN THE ABSENCE OF ADEQUATE
§ Duties: PROVISIONS IN A WRITTEN AGREEMENT BETWEEN THE SPOUSES, THE COURT SHALL PROVIDE
1. To defend a valid marriage; and FOR THE SUPPORT OF THE SPOUSES AND THE CUSTODY AND SUPPORT OF THEIR COMMON
2. To expose an invalid one. CHILDREN. THE COURT SHALL GIVE PARAMOUNT CONSIDERATION TO THE MORAL AND
§ Active participation is necessary. In a case where the fiscal merely filed MATERIAL WELFARE OF SAID CHILDREN AND THEIR CHOICE OF THE PARENT WITH WHOM THEY
a manifestation that there was no collusion and where he merely WISH TO REMAIN AS PROVIDED TO IN TITLE IX. IT SHALL ALSO PROVIDE FOR APPROPRIATE
entered his appearance at certain hearings but was not heard of VISITATION RIGHTS OF THE OTHER PARENT.
anymore, the SC remanded the case. (Sin v. Sin, 2001)
• However, partial voluntary separation of property agreed
upon by the parties via a compromise agreement duly Ø Pendente lite – during pendency.
approved by the Court prior to the JDN is valid, so long as Ø The support of the spouses and the custody and support of the common children, during
the compromise agreement for the separation of property did pendency, shall be governed by whatever agreement the parties have made with respect to
not touch on the merits of the nullity or annulment case. the same.
(Maquilan v. Maquilan, 2007) o Should the Court find the agreement inadequate, it may disregard the same and
• Where it is clear that the litigation was characterized by a no- make the necessary provisions which, in its sound discretion, would be adequate
holds-barred contest and not by collusion (defendant filed under the circumstances.
answer and was represented by counsel who filed several o Principally, the spouses and their children shall be supported from the properties
pleadings and actively participated in the case), the non- of the ACP or CPG, as the case may be, during the pendency of the suit.
intervention of the fiscal or prosecuting attorney is not fatal § In nullity cases where the Court provisionally (temporarily) gives
to the validity of the proceedings. (Tuason v. CA, 1996) support pendente lite to a spouse who, at the end of the case, has been
o Collusion – where, for purposes of getting an annulment or nullity decree, the found to be not entitled to the same because his or her marriage with
parties come up with an agreement making it appear that the marriage is defective the one giving support is void ab initio, the Court shall order
due to the existence of any of the valid grounds. reimbursement, with legal interest from the dates of actual payment.
§ The commission of a matrimonial offense, or the creation of the o The Court shall give paramount consideration to the moral and material welfare
appearance of having committed it, with the consent or privity of the of the children and their choice of the parent with whom they wish to remain.
other party, or under an arrangement between the spouses, has been § Art. 213 – no child under 7 years of age shall be separated from the
held to be collusion. mother, unless the court finds compelling reasons to order otherwise.
§ There must be an arrangement by the parties to make it appear that a Ø While custody is awarded to a particular parent, this does not deprive the other parent from
ground existed or had been committed although it was not, or that the exercising his or her visitation rights, unless the court, for some compelling reason,
deprives him or her of this right.
34 YAP, K. | ATENEO LAW
o Parents have the natural right, as well as a moral and legal duty, to care for their ART. 51. IN SAID PARTITION, THE VALUE OF THE PRESUMPTIVE LEGITIMES OF ALL COMMON
children, see to their proper upbringing and safeguard their best inrerest and CHILDREN, COMPUTED AS OF THE DATE OF THE FINAL JUDGMENT OF THE TRIAL COURT, SHALL
welfare. (Silva v. CA, 1997) BE DELIVERED IN CASH, PROPERTY OR SOUND SECURITIES , UNLESS THE PARTIES, BY MUTUAL
AGREEMENT JUDICIALLY APPROVED, HAD ALREADY PROVIDED FOR SUCH MATTERS.
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 THE CHILDREN OR THEIR GUARDIAN OR THE TRUSTEE OF THEIR PROPERTY MAY ASK FOR THE
DECLARED AB INITIO OR ANNULLED BY FINAL JUDGMENT UNDER ARTICLES 40 AND 45. ENFORCEMENT OF THE JUDGMENT.

THE FINAL JUDGMENT IN SUCH CASES SHALL PROVIDE FOR THE LIQUIDATION, PARTITION AND THE DELIVERY OF THE PRESUMPTIVE LEGITIMES HEREIN PRESCRIBED SHALL IN NO WAY
DISTRIBUTION OF THE PROPERTIES OF THE SPOUSES , THE CUSTODY AND SUPPORT OF THE PREJUDICE THE ULTIMATE SUCCESSIONAL RIGHTS OF THE CHILDREN ACCRUING UPON THE
COMMON CHILDREN, AND THE DELIVERY OF THIRD PRESUMPTIVE LEGITIMES, UNLESS SUCH DEATH OF EITHER OF BOTH OF THE PARENTS; BUT THE VALUE OF THE PROPERTIES ALREADY
MATTERS HAD BEEN ADJUDICATED IN PREVIOUS JUDICIAL PROCEEDINGS. RECEIVED UNDER THE DECREE OF ANNULMENT OR ABSOLUTE NULLITY SHALL BE CONSIDERED
AS ADVANCES ON THEIR LEGITIME.
ALL CREDITORS OF THE SPOUSES AS WELL AS OF THE ABSOLUTE COMMUNITY OR THE
CONJUGAL PARTNERSHIP SHALL BE NOTIFIED OF THE PROCEEDINGS FOR LIQUIDATION.
Ø Legitime – that part of the testator’s property which he cannot dispose of because the law
IN THE PARTITION, THE CONJUGAL DWELLING AND THE LOT ON WHICH IT IS SITUATED, SHALL has reserved it for certain heirs who are, therefore, called compulsory heirs.
BE ADJUDICATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 102 AND 129.
o To protect the legitime of the children against the result of subsequent marriages
that might be contracted after an annulment or its declaration as void.
o Presumptive legitime – a presumption of what will remain at the time of death.
Ø The judgment of annulment or nullity of marriage shall state the factual and the legal basis The basis of the presumption is that properties of the persons involved at the time
for its dispositive conclusion. this particular situation arises would be the same as when he dies which is not a
o Should a court render a judgment which is not in conformity with the allegations fact.
in a pleading or which grants a relief which is not based on the pleadings, the o Actual legitime – that which is present at the time of death.
judgment is void for being coram-non-judice – not before a judge – a legal term Ø The presumptive legitime shall be computed as of the date of the final judgment of the trial
typically used to indicate a legal proceeding that is outside the presence of a judge court.
(without a judge), with improper venue, or without jurisdiction. o Shall be delivered either in:
§ However, even if a judgment was void but was not assailed in a motion 1. Cash;
for reconsideration (MR) and therefore not made an issue on appeal, 2. Property; or
such void judgment shall not be set aside and will continue to be 3. Sound securities.
effective. (Lam v. Chua, 2004) o Exception: When the parties, by mutual agreement judicially approved, had
Ø Insofar as void marriages are concerned, paragraphs 2, 3, 4 and 5 of Art. 43 (effects of already provided for such matters.
dissolution) apply only to the subsequent void marriage contracted by a spouse of a prior Ø General Rule: In void marriages, the delivery of the presumptive legitime is not required.
void marriage before the latter is judicially declared void. (Valdes v. RTC, 1996) o Exception: When there is a void subsequent marriage resulting from the non-
o The ruling in Nicdao Cariño v. Cariño, that a subsequent marriage celebrated in observance of Art. 40.
violation of Art. 40 is void because it is bigamous and therefore the property Ø Since the common children are materially affected by the nullity or annulment judgment
regime in the said subsequent void marriage is co-ownership under Art. 148 of insofar as the presumptive legitime is concerned, they are specially granted by law legal
the Family Code, is inaccurate. The Valdez ruling clearly applies what Art. 50 standing to seek the enforcement of the judgment.
provides. Ø A “Petition for the Correction of Entries” under Rule 108 of the Rules of Court, not a
Ø Unless there is an MR or appeal made after the decision, such decision will become final “Petition for Declaration of a Nullity of Marriage” under the Family Code, is the proper
upon the expiration of 15 days from receipt of the parties of the decision. remedy for cancellation of entries in a marriage certificate, considering that there was no
o Upon finality, the Entry of Judgment shall be issued, and subsequently a Decree actual marriage to speak of where the petitioner participated as the bride. (Republic v.
of Absolute Nullity of Marriage or Annulment of Marriage. Olaybar, 2014)
§ This decree shall be the best evidence of nullity or annulment of
marriage. “
§ The decree will issue only after the registration of the Entry of ART. 52. THE JUDGMENT OF ANNULMENT OR OF ABSOLUTE NULLITY OF THE MARRIAGE, THE
Judgment in the proper LCRs, and in cases of subsequent void PARTITION AND DISTRIBUTION OF THE PROPERTIES OF THE SPOUSES AND THE DELIVERY OF THE
marriages under Art. 40, after registration of the approved partition and CHILDREN'S PRESUMPTIVE LEGITIMES SHALL BE RECORDED IN THE APPROPRIATE CIVIL
distribution of properties and delivery of legitimes. REGISTRY AND REGISTRIES OF PROPERTY; OTHERWISE, THE SAME SHALL NOT AFFECT THIRD
PERSONS.

35 YAP, K. | ATENEO LAW


ART. 53. EITHER OF THE FORMER SPOUSES MAY MARRY AGAIN AFTER COMPLIANCE WITH THE § The child conceived and born before the marriage ceremony is
REQUIREMENTS OF THE IMMEDIATELY PRECEDING ARTICLE; OTHERWISE, THE SUBSEQUENT
illegitimate.
MARRIAGE SHALL BE NULL AND VOID.
§ If the child was conceived at a time when the parents do not suffer any
legal impediment to marry each other, the subsequent marriage of such
parents will legitimate the child pursuant to Art. 178 of the Family
Ø Rules for liquidation and partition: Code.
1. In case of nullity of marriage, the properties shall be liquidated in accordance Ø Under Art. 53, the children conceived or born inside the void subsequent marriage are
with the ordinary rules of co-ownership. legitimate.
2. In voidable marriage, the properties shall be liquidated in accordance with the o Ex. The marriage of A and B is annulled. A, even before the liquidation of his
rules provided for under the chapters in the ACP and the CPG. conjugal properties with B and without delivering the presumptive legitime of
3. If there were a pre-nuptial agreement providing Separation of Property Regime their common legitimate child, subsequently marries X.
(SPR) governed the marriage, then there is no need for liquidation and partition. § The said marriage is void but any child conceived or born inside such
4. Non-compliance shall be a cause for non-issuance of decree of nullity or void marriage is legitimate.
annulment.
Ø Recording in the LCR and Registry of Property is necessary to bind third persons, and for RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF
the parties to be able to validly contract a subsequent marriage. VOIDABLE MARRIAGES
o Refers to the LCR of the city or municipality where: (SUPREME COURT EN BANC RESOLUTION, A.M. 02-11-12-SC)
1. The court that issued the decision is functioning. MARCH 15, 2003
2. The marriage was solemnized.
o It is the duty of the successful petitioner to send the copy of the final decree to THINGS TO REMEMBER
the proper LCRs.
o It is the duty of the clerk of court to ascertain whether the same has been Petition for Declaration of Absolute Nullity of Void Marriages
registered, and if not, to send a copy of said decree to the LCRs.
Ø Remember that the delivery of presumptive legitimes is necessary only in cases of void 1. Who may file a Petition for Declaration of Absolute Nullity of Void Marriage?
subsequent marriages under Art. 40. Otherwise, no delivery is necessary after a marriage o Solely the husband or the wife.
is judicially declared void. (Valdes v. RTC, 1996) 2. Where should the petition be filed?
o Family Court.
ART. 54. CHILDREN CONCEIVED OR BORN BEFORE THE JUDGMENT OF ANNULMENT OR 3. Does the action prescribe?
ABSOLUTE NULLITY OF THE MARRIAGE UNDER ARTICLE 36 HAS BECOME FINAL AND o An action or defense for the declaration of absolute nullity of void marriage shall
EXECUTORY SHALL BE CONSIDERED LEGITIMATE. CHILDREN CONCEIVED OR BORN OF THE not prescribe – because there was no marriage in the first place.
SUBSEQUENT MARRIAGE UNDER ARTICLE 53 SHALL LIKEWISE BE LEGITIMATE. 4. What must be alleged?
o Complete facts showing that either or both parties were psychologically
incapacitated from complying with the essential marital obligations – at the time
Ø General Rules: of the celebration – even if such capacity becomes manifest only after its
1. Children conceived and born outside a valid marriage or inside a void marriage celebration.
are illegitimate. § Physical manifestations, if any, indicative of psychological incapacity.
2. Children conceived or born inside an annullable or voidable marriage are
legitimate. Petition for Annulment of Voidable Marriages
3. Children conceived and born inside a void marriage are illegitimate.
§ Exceptions: 1. Who may file a Petition for Declaration of Absolute Nullity of Void Marriage?
1. Art. 54 – children conceived or born before the finality of the o Refer to Frauds Contemplated in the compilation of enumerations.
JDN shall be considered legitimate; and 2. Does the action prescribe?
2. Children conceived or born of the subsequent marriage o Refer to Frauds Contemplated in the compilation of enumerations.
under Art. 53 (compliance with requirements) shall likewise Applicable for both petitions
be legitimate.
Ø Children born before the finality of the judgment of nullity in psychological incapacity Ø Venue of the petition.
cases, or non-compliance with Arts. 52 and 53 cases, shall be considered legitimate. o Family Court of the province or city where the petitioner or respondent has been
o However, this does not include children conceived and born before the marriage residing for at least 6 months prior to the date of filing.
ceremony of the parents but to those conceived or born after the marriage o For non-resident respondents, where he may be found in the Philippines, at the
ceremony of the parents but before the final judgment of nullity. election of the petitioner.
Ø Contents and form of the petition.
36 YAP, K. | ATENEO LAW
o Complete facts constituting the cause of action. o Mandatory – on motion or motu proprio, the court shall set the pre-trial after the
o Names and ages of the common children, and specify the regime governing their last pleading has been served and filed, or upon receipt of the report of the public
property relations, as well as the properties involved. prosecutor that no collusion exists.
§ If there is no adequate provision in a written agreement, the petitioner o Notice of pre-trial.
ma apply for a provisional order for spousal support, custody and § Shall contain:
support of common children, visitation rights, administration of 1. Date of pre-trial conference; and
community or conjugal property, and other matters. 2. Order directing the parties to filed and serve their respective
o Must be verified and accompanied by a certification against forum shopping. pre-trial briefs.
§ Forum shopping – when applicants filed in multiple branches/courts in § Notice shall be served separately on the parties and their respective
order to obtain a favorable judgment. counsels as well as the public prosecutor.
o Filed in 6 copies. § Notice shall be sent to respondent even if he fails to answer.
§ Copy of the petition shall be served to: o Contents of pre-trial brief:
1. Office of the Solicitor General; and 1. Statement of willingness of the parties to enter into arguments;
2. Office of the City or Provincial Prosecutor. 2. Concise statement of their respective claims together with applicable
Ø Rules for Summons – governed y Rule 14 of the Rules of Court. laws and authorities;
o Respondent cannot be located or whereabouts unknown 3. Admitted facts and proposed stipulation of facts;
1. Publication once a week for 2 consecutive weeks in a newspaper of 4. Evidence to be presented;
general circulation in the Philippines and in such places as the court 5. Number and names of witnesses; and
may order; and 6. Such other matters as the court may require.
2. Copy of the summons shall be served on the respondent at his last Ø Effect of failure to appear at pre-trial.
known address. o Petitioner fails to appear personally – the case shall be dismissed, unless his
o Summons to be published shall contain: counsel or a duly authorized representative appears and provides a valid excuse.
1. Title of the case; o Respondent fails to appear personally – the court shall proceed with the pre-trial
2. Docket number; and require the public prosecutor to investigate whether collusion exists.
3. Nature of petition; Ø Pre-trial Conference.
4. Principal grounds of the petition and reliefs prayed for; and o The court may refer the issues to a mediator – assists the parties in reaching an
5. Directive for the respondent to answer within 30 days from the last agreement on matters not prohibited by law.
issue of publication. o If no mediation or if it fails, the court shall proceed with the pre-trial conference.
Ø Motion to Dismiss. Ø Pre-trial Order.
o Only ground allowed is lack of jurisdiction over the subject matter or over the o Shall recite in detail:
parties. 1. Matters taken up in the conference;
o Any other ground that might warrant a dismissal of the case may be raised as an 2. Action taken thereon;
affirmative defense in an answer. 3. Amendments allowed on the pleadings; and
Ø Answer. 4. Agreements or admissions made y the parties on any of the matters
o Filed within 15 days from the service of summons, or within 30 days from the considered.
last issue of publication. The answer must be verified by respondent himself and Ø Prohibited compromise.
not by counsel or attorney-in-fact. 1. Civil status of persons;
o If no answer, the court shall not declare him or her in default. 2. Validity of a marriage or legal separation;
o If no answer or if the answer does not tender an issue, the court shall order the 3. Ground for legal separation;
public prosecutor to investigated whether collusion exists between the parties. 4. Jurisdiction of courts;
Ø Investigation by the public prosecutor. 5. Future support; and
o Submit his report within 1 month after receipt of the court order. 6. Future legitime.
o If collusion exists, he shall state the basis thereof in his report.
o If no collusion exists, the court shall set the case for pre-trial. Ø Trial.
Ø Social worker. o The presiding judge shall personally conduct the trial of the case.
o May be required by the court to conduct a case study and submit the o The grounds must be proved. No summary judgment, or confession or judgment
corresponding report at least 3 days before the pre-trial, and at any stage shall be allowed.
necessary. o Court may order exclusion of persons from the court room.
Ø Pre-trial. Ø Decision.
o Shall be issued only after compliance with Arts. 50-51 of the Family Code.
o Becomes final after 15 days from notice to the parties.
37 YAP, K. | ATENEO LAW
Ø Appeal. 2. Desire and ability of each parent to foster an open and loving
o No appeal unless the appellant has filed a motion for reconsideration (MR) or relationship between the child and the other parent;
new trial within 15 days from notice of judgment. 3. Child’s health, safety, and welfare;
4. Any history of child or spousal abuse;
RULE ON PROVISIONAL ORDERS 5. Nature and frequency of contact with both parents;
(SUPREME COURT EN BANC RESOLUTION, A.M. 02-11-12-SC) 6. Habitual use of alcohol or regulated substances;
MARCH 15, 2003 7. Marital misconduct;
8. Most suitable physical, emotional, spiritual, psychological and
Ø When issued. educational environment; and
o At any time during the proceeding, the court, motu proprio or upon application 9. Preference of the child.
under oath of any of the parties, guardian or designated custodian, may issue § If over 7 years of age and of sufficient discernment, unless
provisional orders and protection orders with or without a hearing. the parent chosen is unfit.
o Enforced immediately, with or without a bond. o Order of preference:
Ø Spousal support. 1. Both parents jointly;
o If no adequate provisions in a written agreement, the spouses may be supported 2. Either parent taking into account all relevant considerations;
from the properties of the ACP or CPG. 3. Surviving grandparent, or if many, the grandparent chosen by the child
o Court may award support to either spouse in such amount and for such period as over 7 years of age and of sufficient discernment, unless the person
it may deem necessary. chosen is unfit;
o Factors considered: 4. Eldest brother or sister over 21 years of age, unless unfit or
1. Whether applicant is custodian of the child and circumstances make it disqualified;
appropriate for that spouse not to seek outside employment; 5. Child’s actual custodian over 21 years of age, unless unfit or
2. Time necessary to acquire sufficient education and training to enable disqualified; or
spouse to seek employment; 6. Any other person deemed by the court suitable to provide proper care
3. Duration of the marriage; and guidance for the child.
4. Comparative financial resources of the spouses; Ø Visitation rights.
5. Needs and obligations of each spouse; o Appropriate visitation rights shall be given to the parent who is not awarded the
6. Contribution of each spouse to the marriage; custody of the child, unless found unfit or disqualified.
7. Age and health of the spouses; Ø Hold Departure Order.
8. Physical and emotional conditions of the spouses; o Pending resolution of the petition, no child of the parties shall be brought out of
9. Ability of the supporting spouse to give support; and the country without prior order from the court.
10. Other factors. o The court may order a hold departure order motu proprio or upon application
Ø Child support. under oath.
o The common children of the spouses shall be supported from the properties of o A copy of the order shall be furnished to:
the absolute community or the conjugal partnership. 1. Department of Foreign Affairs;
o Either parent may be ordered by the court to give an amount necessary for the 2. Bureau of Immigration; and
support, maintenance, and education of the child – in proportion to the resources 3. Deportation of the Department of Justice.
or means of the giver and to the necessities of the recipient. o Information contained:
o Factors considered: 1. Name, date and place of birth, place of last residence of the person
1. Financial resources of the custodial and non-custodial parent and those against whom a hold departure order has been issued;
of the child; 2. Complete title and docket number of the case;
2. Physical and emotional health of the child and his or her special needs 3. Specific nature of the case;
and aptitudes; 4. Date of the hold departure order; and
3. Standard of living the child has been accustomed to; and 5. (Optional) Recent photograph.
4. Non-monetary contribution that the parents will make toward the care o The court may recall the order motu proprio or upon a verified motion of any of
and well-being of the child. the parties after summary hearing.
Ø Child custody. Ø Order of protection.
o The best interests of the child shall be considered as well as his/her material and o The court may issue an order requiring any person:
moral welfare. 1. To stay away from the home, school, business, or place of employment
o Factors considered: of the child, other parent or any other party;
1. Agreement of the parties; 2. To refrain from harassing, intimidating, or threatening such child or
other parent or any person to whom custody of the child is awarded;
38 YAP, K. | ATENEO LAW
3. To refrain from acts of commission or omission that create an TITLE TWO: LEGAL SEPARATION
unreasonable risk to the health, safety, or welfare of the child;
4. To permit a parent, or a person entitled to visitation by a court order or ART. 55. A PETITION FOR LEGAL SEPARATION MAY BE FILED ON ANY OF THE FOLLOWING
a separation agreement, to visit the child at stated periods; GROUNDS:
5. To permit a designated party to ender the residence during a specific
period in order to take personal belongings not contested in a (1) REPEATED PHYSICAL VIOLENCE OR GROSSLY ABUSIVE CONDUCT DIRECTED AGAINST THE
proceeding pending with the Family Court; and PETITIONER, A COMMON CHILD, OR A CHILD OF THE PETITIONER;
6. To comply with such orders as are necessary for the protection of the (2) PHYSICAL VIOLENCE OR MORAL PRESSURE TO COMPEL THE PETITIONER TO CHANGE
child. RELIGIOUS OR POLITICAL AFFILIATION;
Ø Administration of common property. (3) ATTEMPT OF RESPONDENT TO CORRUPT OR INDUCE THE PETITIONER, A COMMON CHILD, OR
o If a spouse, without just cause, abandons the other or fails to comply with his or A CHILD OF THE PETITIONER, TO ENGAGE IN PROSTITUTION, OR CONNIVANCE IN SUCH
her family obligations, the court may, upon application of the aggrieved party, CORRUPTION OR INDUCEMENT;
issue a provisional order appointing the applicant or a third person as receiver or (4) FINAL JUDGMENT SENTENCING THE RESPONDENT TO IMPRISONMENT OF MORE THAN SIX
sole administrator of the common property subject to such precautionary YEARS, EVEN IF PARDONED;
conditions it may impose. (5) DRUG ADDICTION OR HABITUAL ALCOHOLISM OF THE RESPONDENT;
o Receiver may not dispose of or encumber any common property or specific (6) LESBIANISM OR HOMOSEXUALITY OF THE RESPONDENT;
separate property of either spouse without authority of the court. (7) CONTRACTING BY THE RESPONDENT OF A SUBSEQUENT BIGAMOUS MARRIAGE, WHETHER
o The provision order shall be registered in the proper Register of Deeds. IN THE PHILIPPINES OR ABROAD;
(8) SEXUAL INFIDELITY OR PERVERSION;
(9) ATTEMPT BY THE RESPONDENT AGAINST THE LIFE OF THE PETITIONER; OR
(10) ABANDONMENT OF PETITIONER BY RESPONDENT WITHOUT JUSTIFIABLE CAUSE FOR MORE
THAN ONE YEAR.

FOR PURPOSES OF THIS ARTICLE, THE TERM "CHILD" SHALL INCLUDE A CHILD BY NATURE OR
BY ADOPTION.

Ø A decree of legal separation does not affect the marital status of the parties. It does not
dissolve the marriage.
o It is nothing more than a “bed-and-board” separation of the spouses.
Ø Also known as “relative divorce.”
o The Family Code, like the Civil Code, does not admit absolute divorce.
o A divorce is a dissolution of the bond of matrimony, based on the theory of a
valid marriage, for some cause arising after the marriage; while an annulment
proceeding is maintained upon the theory that, for some cause existing at the time
of their marriage ceremony, the marriage is terminable.
Ø The grounds mentioned in the article herein are exclusive.
Fig. 10
Legal Separation
(1) Repeated physical violence • Must be upon:
or grossly abusive conduct 1. Petitioner;
against the petitioner, a 2. Common child; or
common child, or a child of the 3. Child of the petitioner.
petitioner. • Must be inflicted with:
1. Bad faith; and
2. Malice.
• Does not cover violence upon the child of the
respondent or the guilty spouse, but may be a ground
for suspension or termination of parental authority
under Art. 231 (1) of the Family Code.
39 YAP, K. | ATENEO LAW
• Physical violence – the infliction of bodily harm. (4) Final judgment sentencing • The offense herein need not necessarily be against
• The frequency of the act, not the severity of the the respondent to imprisonment the other spouse, their common children or the
same, is the determinative factor under this ground. of more than 6 years, even if petitioner’s children, but against anybody.
o However, even if it is not repeated, such pardoned. • The judgment must be “final.”
may constitute grossly abusive conduct
(5) Drug addiction or habitual • The extent is the same as those in annulment cases.
which may warrant the issuance of a legal
alcoholism of the respondent. However, the difference is that here, the grounds can
separation decree.
exist even after the marriage ceremony.
• Grossly abusive conduct is determined on a case-to-
case basis. (6) Lesbianism or • Lesbianism and homosexuality deal with sexual
o Ex. When one spouse uses offensive homosexuality of the orientation that do not by themselves affect the
language continually against the other respondent. mental state of a person in relation to his or her
with the intent and fixed purpose of judgment.
causing unhappiness. • The ground can exist even after the marriage
(2) Physical violence or moral ceremony.
• One incident of physical violence or moral pressure
pressure to compel the to compel the change in religious affiliation or the (7) Contracting by the • Bigamy – the act of illegally contracting a second
petitioner to change religious change in political affiliation can be a ground for respondent of a subsequent marriage despite full knowledge that the first
or political affiliation. legal separation. bigamous marriage, whether in marriage is still validly existing or without obtaining
• Involves the human rights concept of the right to the Philippines or abroad. the needed judicial declaration of presumptive death
accept one another’s political beliefs. of the first spouse who was absent for 4 or 2
o The couple should learn to live with each consecutive years pursuant to Art. 41 of the Family
other’s political ideas. If they cannot live Code.
together as such, how can we live together
(8) Sexual infidelity of • Violates the obligation of mutual love, respect and
as a nation sharing different political
perversion. fidelity.
ideas?
• Although adultery and concubinage are included
(3) Attempt of respondent to • Must be against: herein, other acts short of such are enough so long
corrupt or induce the petitioner, 1. Petitioner; as said acts committed by one spouse would
a common child, or a child of 2. Common child; or constitute a clear betrayal of the trust of his or her
the petitioner, to engage in 3. Child of the petitioner. spouse by having intimate love affairs with other
prostitution, or connivance in • Parental duties violated: persons.
such corruption or inducement. 1. To provide their unemancipated children • Sexual perversion includes not only such behavior
with moral and spiritual guidance; with third persons, but even with the spouse.
2. To instruct them by right precept and good o Unless condoned.
example; and o Ex. Oral sex, bestiality.
3. To protect them from bad company and
(9) Attempt by the respondent • Must proceed from an evil design and not from any
prevent them from acquiring habits
against the life of the justifiable cause, ie. self defense.
detrimental to their health, studies and
petitioner. • The criminal attempt can be proven by
morals.
• It cannot be any other immoral act, otherwise the preponderance of evidence in the civil case for legal
undue stretching of the import of the article will not separation.
serve the policy of the law of discouraging legal o No conviction is necessary.
separation. • A criminal attempt to kill a spouse is clearly an act
• Mere “attempt” is enough to be a ground for legal of moral depravity.
separation. (10) Abandonment of • Must be:
• Does not cover violence upon the child of the petitioner by respondent 1. Willful;
respondent or the guilty spouse, but may be a ground without justifiable cause for 2. Intent to desert/No intent of returning;
for suspension or termination of parental authority more than 1 year. 3. Without justifiable cause; and
under Art. 231 (1) of the Family Code. 4. More than 1 year.

40 YAP, K. | ATENEO LAW


• Willful – when there is a design to forsake the other Fig. 11
spouse intentionally, or without cause and, Grounds for Denying Legal Separation
therefore, break up the marital union. (1) Where the aggrieved party • Condonation – the act of forgiving the offense after
• Mere severance of the relationship is not sufficient, has condoned the offense or act its commission.
there must be a wrongful intent to desert, continued complained of. o Implies a condition of future good
for the statutory period. behavior by the offending spouse.
• Physical separation alone is not sufficient. o Subsequent offense revokes the
o There must be absolute cessation of condonation and revives the original
marital relations, duties and rights, with offense.
the intention of perpetual separation. • Failure of the husband to look actively for his
• A separation in which both parties concur is not a adulterous wife after she left the conjugal dwelling
willful desertion of one by the other. does not constitute condonation or consent of the
• The computation of the 1 year period does not wife’s adulterous acts. (Ocampo v. Florenciano,
include the time during which the offending spouse 1960)
has been insane. o She “left” him. It was not his duty to
• Abandonment: search for her, but her duty to return.
o A spouse is deemed to have abandoned
the other when he/she has left the conjugal (2) Where the aggrieved party • Consent – when either of the spouses agreed to do
dwelling without intention of returning for has consented to the or did not object, despite full knowledge, to the act
a period of 3 months, or has failed within commission of the offense or giving rise to a ground for legal separation, before
such period to give any information as to act complained of. such act was in fact committed. May be deduced
his or her whereabouts. from the acts of the parties.
o Prima facie presumed to have no intention • Difference with condonation is that here, the consent
of returning to the conjugal dwelling. was given before the commission of the act. In
condonation, it is done after the act was committed.

ART. 56. THE PETITION FOR LEGAL SEPARATION SHALL BE DENIED ON ANY OF THE (3) Where there is connivance • Volenti non fit injuria – one is not legally injured if
FOLLOWING GROUNDS: between the parties in the he has consented to the act complained of or was
commission of the offense or willing that it should occur.
(1) WHERE THE AGGRIEVED PARTY HAS CONDONED THE OFFENSE OR ACT COMPLAINED OF; act constituting the ground for
(2) WHERE THE AGGRIEVED PARTY HAS CONSENTED TO THE COMMISSION OF THE OFFENSE OR legal separation.
ACT COMPLAINED OF; (4) Where both parties have • Doctrine of unclean hands – he who comes into
(3) WHERE THERE IS CONNIVANCE BETWEEN THE PARTIES IN THE COMMISSION OF THE given ground for legal equity must come with clean hands.
OFFENSE OR ACT CONSTITUTING THE GROUND FOR LEGAL SEPARATION; separation. • When 2 persons act in bad faith, they should be
(4) WHERE BOTH PARTIES HAVE GIVEN GROUND FOR LEGAL SEPARATION; considered as having acted in good faith towards
(5) WHERE THERE IS COLLUSION BETWEEN THE PARTIES TO OBTAIN DECREE OF LEGAL each other.
SEPARATION; OR
(6) WHERE THE ACTION IS BARRED BY PRESCRIPTION. (5) Where there is collusion • Collusion is a corrupt agreement, while connivance
between the parties to obtain is a corrupt consenting.
the decree of legal separation. • For collusion, there must be an agreement between
ART. 57. AN ACTION FOR LEGAL SEPARATION SHALL BE FILED WITHIN FIVE YEARS FROM THE the spouses looking to the procuring of a divorce.
TIME OF THE OCCURRENCE OF THE CAUSE.
(6) Where the action is barred • Must be filed within 5 years from the occurrence of
by prescription. the cause.
o The time of discovery of the ground for
legal separation is not material in counting
the prescriptive period.
o Justice Puno – the law assumes that if you
discover it after 5 years, forgiveness is
already the order of the day, and no longer
recrimination.
41 YAP, K. | ATENEO LAW
ART. 58. AN ACTION FOR LEGAL SEPARATION SHALL IN NO CASE BE TRIED BEFORE SIX ART. 61. AFTER THE FILING OF THE PETITION FOR LEGAL SEPARATION, THE SPOUSES SHALL BE
MONTHS SHALL HAVE ELAPSED SINCE THE FILING OF THE PETITION. ENTITLED TO LIVE SEPARATELY FROM EACH OTHER.

THE COURT, IN THE ABSENCE OF A WRITTEN AGREEMENT BETWEEN THE SPOUSES, SHALL
• Cooling-off Period – designed to give the parties enough time to further contemplate their DESIGNATE EITHER OF THEM OR A THIRD PERSON TO ADMINISTER THE ABSOLUTE COMMUNITY
positions with the end in view of attaining reconciliation between them. OR CONJUGAL PARTNERSHIP PROPERTY. THE ADMINISTRATOR APPOINTED BY THE COURT
o Unless exempted by law, failure to observe the cooling-off period is a ground to SHALL HAVE THE SAME POWERS AND DUTIES AS THOSE OF A GUARDIAN UNDER THE RULES OF
set aside a decision granting legal separation. COURT.
• What is prevented during the period is the hearing on the merits with respect to the validity
or invalidity of the ground for legal separation.
o Other incidents such as custody, alimony and support pendent lite may be heard ART. 62. DURING THE PENDENCY OF THE ACTION FOR LEGAL SEPARATION, THE PROVISIONS OF
inside the cooling-off period. ARTICLE 49 SHALL LIKEWISE APPLY TO THE SUPPORT OF THE SPOUSES AND THE CUSTODY AND
o A motion to dismiss may likewise be filed if there is a ground to do so. SUPPORT OF THE COMMON CHILDREN.
• The 6-month cooling-off period requirement can be dispensed with if the ground for legal
separation involves violence against the woman or the child. (Sec. 19 of R.A. 9262: VAWC)
1. Physical violence – acts that include bodily or physical harm. Ø If the petition is denied, the court cannot compel the parties to live with each other as
2. Sexual violence – an act which is sexual in nature, committed against a woman cohabitation is purely a personal act. (Arroyo v. Vasquez, 1921)
or her child. Ø In the absence of a written agreement between the spouses, the Court shall designate either
3. Psychological violence – acts or omissions causing or likely to cause mental or of them or a third person to administer the absolute community or conjugal partnership
emotional suffering of the victim. property.
4. Economic abuse – acts that make ore attempt to make a woman financially Ø An action for legal separation involves merely bed-and-board separation of the spouses,
dependent. hence is purely personal.
o Being such, it follows that the death of one party to the action causes the death
of the action itself.
ART. 59. 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. 63. THE DECREE OF LEGAL SEPARATION SHALL HAVE THE FOLLOWING EFFECTS:

(1) THE SPOUSES SHALL BE ENTITLED TO LIVE SEPARATELY FROM EACH OTHER, BUT THE
ART. 60. NO DECREE OF LEGAL SEPARATION SHALL BE BASED UPON A STIPULATION OF FACTS MARRIAGE BONDS SHALL NOT BE SEVERED;
OR A CONFESSION OF JUDGMENT. (2) THE ABSOLUTE COMMUNITY OR THE CONJUGAL PARTNERSHIP SHALL BE DISSOLVED AND
LIQUIDATED BUT THE OFFENDING SPOUSE SHALL HAVE NO RIGHT TO ANY SHARE OF THE NET
IN ANY CASE, THE COURT SHALL ORDER THE PROSECUTING ATTORNEY OR FISCAL ASSIGNED PROFITS EARNED BY THE ABSOLUTE COMMUNITY OR THE CONJUGAL PARTNERSHIP, WHICH
TO IT TO TAKE STEPS TO PREVENT COLLUSION BETWEEN THE PARTIES AND TO TAKE CARE SHALL BE FORFEITED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 43(2);
THAT THE EVIDENCE IS NOT FABRICATED OR SUPPRESSED. (3) THE CUSTODY OF THE MINOR CHILDREN SHALL BE AWARDED TO THE INNOCENT SPOUSE,
SUBJECT TO THE PROVISIONS OF ARTICLE 213 OF THIS CODE; AND
(4) THE OFFENDING SPOUSE SHALL BE DISQUALIFIED FROM INHERITING FROM THE INNOCENT
Ø Stipulation of Facts – practically an admission made in court by both parties agreeing to SPOUSE BY INTESTATE SUCCESSION. MOREOVER, PROVISIONS IN FAVOR OF THE OFFENDING
the existence of the act constituting the ground for annulment or for the declaration of SPOUSE MADE IN THE WILL OF THE INNOCENT SPOUSE SHALL BE REVOKED BY OPERATION OF
nullity of the marriage. LAW.
Ø Confession of Judgment – the admission made in court by the respondent or defendant
admitting fault as invoked by the plaintiff to sever the marriage ties.
Ø The quantum of evidence is preponderance of evidence. Ø The finality of the separation is complete after the lapse of the period to appeal the decision
Ø No prejudicial question and no suspension of criminal cases for adultery or concubinage to a higher court even if the effects, such as the liquidation of the property, have not yet
can prosper because the case of legal separation is not one “to enforce the liability arising been commenced nor terminated.
from the offense.” Fig. 12
Effects of Legal Separation
(1) The spouses shall be • Even if they can legally live apart, a spouse can still
entitled to live separately from be held criminally liable for bigamy, concubinage or
each other, but the marriage adultery if he or she commits the act.
bond shall not be severed.
42 YAP, K. | ATENEO LAW
(2) The absolute community or • The portion pertaining to the offending spouse shall § However, if the donation is void, the right to bring an action does not
the conjugal partnership shall be forfeited in favor of, in the following order: prescribe.
be dissolved and liquidated; 1. Common children;
but 2. Children of the guilty spouse by a ART. 65. IF THE SPOUSES SHOULD RECONCILE, A CORRESPONDING JOINT MANIFESTATION
previous marriage; or UNDER OATH DULY SIGNED BY THEM SHALL BE FILED WITH THE COURT IN THE SAME
the offending spouse shall have 3. Innocent spouse. PROCEEDING FOR LEGAL SEPARATION.
no right to any share of the net • For purposes of computing the net profit, said profits
profits earned by the absolute shall be the increase in value between the market
community or the conjugal value of the community property at the time of the ART. 66. THE RECONCILIATION REFERRED TO IN THE PRECEDING ARTICLES SHALL HAVE THE
partnership, which shall be celebration of the marriage and the market value at FOLLOWING CONSEQUENCES:
forfeited in accordance with the time of dissolution.
Art. 43 (2). o NP = MVdissolution – MVcelebration. (1) THE LEGAL SEPARATION PROCEEDINGS, IF STILL PENDING, SHALL THEREBY BE
TERMINATED AT WHATEVER STAGE; AND
(3) The custody of the minor • In all matters relating to the custody of the child, the (2) THE FINAL DECREE OF LEGAL SEPARATION SHALL BE SET ASIDE, BUT THE SEPARATION OF
children shall be awarded to paramount interest of the child shall be the standard. PROPERTY AND ANY FORFEITURE OF THE SHARE OF THE GUILTY SPOUSE ALREADY EFFECTED
the innocent spouse, subject to • The Court may even award custody to a third person SHALL SUBSIST, UNLESS THE SPOUSES AGREE TO REVIVE THEIR FORMER PROPERTY REGIME.
Art. 213. if both spouses are unfit to take care of the child. THE COURT'S ORDER CONTAINING THE FOREGOING SHALL BE RECORDED IN THE PROPER CIVIL
(4) The offending spouse shall • The law does not provide that such revocation by REGISTRIES.
be disqualified from inheriting operation of law will be rendered ineffectual in case
from the innocent spouse by the legal separation decree is set aside by the court
intestate succession. upon manifestation of the parties that they have ART. 67. THE AGREEMENT TO REVIVE THE FORMER PROPERTY REGIME REFERRED TO IN THE
reconciled. PRECEDING ARTICLE SHALL BE EXECUTED UNDER OATH AND SHALL SPECIFY:
Moreover, provisions in favor o However, Art. 921 (4) provides that
of the offending spouse in the disinheritance in a will shall be rendered (1) THE PROPERTIES TO BE CONTRIBUTED ANEW TO THE RESTORED REGIME;
will of the innocent spouse ineffectual upon the mutual reconciliation (2) THOSE TO BE RETAINED AS SEPARATED PROPERTIES OF EACH SPOUSE; AND
shall be revoked by operation of the spouses. (3) THE NAMES OF ALL THEIR KNOWN CREDITORS, THEIR ADDRESSES AND THE AMOUNTS
of law. OWING TO EACH.

THE AGREEMENT OF REVIVAL AND THE MOTION FOR ITS APPROVAL SHALL BE FILED WITH THE
ART. 64. AFTER THE FINALITY OF THE DECREE OF LEGAL SEPARATION, THE INNOCENT SPOUSE COURT IN THE SAME PROCEEDING FOR LEGAL SEPARATION, WITH COPIES OF BOTH FURNISHED
MAY REVOKE THE DONATIONS MADE BY HIM OR BY HER IN FAVOR OF THE OFFENDING SPOUSE, TO THE CREDITORS NAMED THEREIN. AFTER DUE HEARING, THE COURT SHALL, IN ITS ORDER,
AS WELL AS THE DESIGNATION OF THE LATTER AS BENEFICIARY IN ANY INSURANCE POLICY, TAKE MEASURE TO PROTECT THE INTEREST OF CREDITORS AND SUCH ORDER SHALL BE
EVEN IF SUCH DESIGNATION BE STIPULATED AS IRREVOCABLE. THE REVOCATION OF THE RECORDED IN THE PROPER REGISTRIES OF PROPERTIES.
DONATIONS SHALL BE RECORDED IN THE REGISTRIES OF PROPERTY IN THE PLACES WHERE THE
PROPERTIES ARE LOCATED. ALIENATIONS, LIENS AND ENCUMBRANCES REGISTERED IN GOOD THE RECORDING OF THE ORDERING IN THE REGISTRIES OF PROPERTY SHALL NOT PREJUDICE
FAITH BEFORE THE RECORDING OF THE COMPLAINT FOR REVOCATION IN THE REGISTRIES OF ANY CREDITOR NOT LISTED OR NOT NOTIFIED, UNLESS THE DEBTOR-SPOUSE HAS SUFFICIENT
PROPERTY SHALL BE RESPECTED. THE REVOCATION OF OR CHANGE IN THE DESIGNATION OF SEPARATE PROPERTIES TO SATISFY THE CREDITOR'S CLAIM.
THE INSURANCE BENEFICIARY SHALL TAKE EFFECT UPON WRITTEN NOTIFICATION THEREOF TO
THE INSURED.
Ø The order containing the termination of the case or the setting aside of the decree, as the
THE ACTION TO REVOKE THE DONATION UNDER THIS ARTICLE MUST BE BROUGHT WITHIN FIVE case may be, shall be recorded in the proper civil registries.
YEARS FROM THE TIME THE DECREE OF LEGAL SEPARATION BECOME FINAL. o However, the separation of properties made shall, in the meantime, subsist.
o The parties, however, can enter into an agreement, which should be approved by
the court, reviving their previous property regime.
Ø Since donations are acts of liberality, the law gives the option to the innocent party whether o The agreement shall contain:
he or she will revoke the donation or the designation as beneficiary of the guilty party in 1. Which properties shall remain separate;
an insurance. 2. Which properties shall be contributed to the revived property regime;
o In case of insurance benefits, it will be considered revoked upon written and
notification thereof to the insured. 3. Names and addresses of the creditors and amounts of credit.
o In case of donations, the innocent spouse must file an action for revocation within o The creditors must be furnished the motion seeking the approval of the
5 years from the time the decree of legal separation has become final. agreement.
43 YAP, K. | ATENEO LAW
Ø The recording in the registries of property shall not prejudice any creditor not listed or not 1. within 15 days from receipt of summons; or
notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor’s 2. 30 days from the last issue in case of service of summons by
claim. publication.
Ø The law does not provide that revival of what was disinherited as one of the effects of o Must be verified by the respondent himself and not by counsel or attorney-in-
setting aside a legal separation decree. fact.
o Hence, the innocent spouse has the option of reinstituting the provisions in a will o If respondent fails to answer, the court shall not declare him in default.
previously made to the guilty spouse, but was revoked. o If no answer is filed, or when the answer does not tender an issue, the court shall
order the public prosecutor to investigate whether collusion exists between the
RULE ON LEGAL SEPARATION parties.
(SUPREME COURT EN BANC RESOLUTION, A.M. 02-11-11-SC) Ø Investigation report from public prosecutor.
MARCH 15, 2003 o Within 1 month from the court order, the public prosecutor shall submit a report
to the court on whether there is collusion and the service of summons on any
Ø Who may file? party, if any.
o Solely the husband or the wife, as the case may be. o If there is collusion, he shall state the basis thereof in his report.
Ø When to file? § The court shall set the report for hearing. And if convinced, it shall
o Within 5 years from the time of the occurrence of the ground/cause. dismiss the petition.
Ø Contents and form. o If no collusion, the court shall set the case for pre-trial. The public prosecutor
o It shall allege the: shall appear for the State.
1. Complete facts constituting the cause; Ø Social worker.
2. Names and ages of the common children; o The court may require a social worker to conduct a case study and to submit the
3. Property regime; corresponding report at least 3 years before the pre-trial.
4. Properties involved; and Ø Pre-trial.
5. Creditors. o A pre-trial is mandatory. The court shall motu proprio set the pre-trial after the
6. Verified and accompanied by a certification against forum shopping; last pleading has been served and filed, or upon receipt of the report of the public
7. Filed in 6 copies – petitioner shall within 5 days from filing furnish a prosecutor that no collusion exists.
copy to the city or provincial prosecutor and the creditors, if any, and o Must not be set within 6 months from the filing of the petition.
submit to the court proof of such service within the period. Ø Notice of pre-trial.
Ø Venue. o Must contain:
o Family court of the province or city where the petitioner or the respondent has 1. Date of pre-trial conference; and
been residing for at least 6 months prior to the date of filing. 2. Order directing the parties to serve their pre-trial briefs.
o In case of non-resident, where he may be found in the Philippines, at the election o Shall be served separately to the parties, their counsels and the public prosecutor.
of the petitioner. o Shall be sent to the respondent despite failure to answer.
Ø Rules on summons: Ø Contents of pre-trial brief:
o If respondent not located at his given address, and cannot be ascertained by 1. Statement of willingness of the parties to enter into agreements;
diligent inquiry, publication once a week for 2 consecutive weeks in a newspaper 2. Concise statement of their respective claims;
of general circulation in the Philippines and in such place as the court may order. 3. Admitted facts and proposed stipulation of facts;
§ In addition, at the respondent’s last known address. 4. All evidence to be presented;
o Summons to be published shall contain: 5. Number and names of the witnesses; and
1. Title of the case; 6. Other matters as the court may require.
2. Docket number; Ø Effect of failure to appear at pre-trial.
3. Nature of the petition; o Failure of petitioner to appear shall cause the dismissal of the case, unless his
4. Principal grounds of the petitioner and reliefs prayed for; and counsel or duly authorized representative appears in court and provides a valid
5. Directive for respondent to answer within 30 days from the last issue excuse for non-appearance.
of publication. o Failure of respondent to appear shall cause the court to proceed with the pre-trial
Ø Motion to dismiss. and require the public prosecutor to investigate the non-appearance of the
o The only ground allowed is lack of jurisdiction over the subject matter or over respondent.
the parties. § Public prosecutor must submit his repot within 15 days.
o Any other ground that might warrant the dismissal of the case may be raised as § If no collusion, the court shall require the public prosecutor to
an affirmative defense in an answer. intervene for the state during the trial.
Ø Answer. Ø Pre-trial conference.
o The respondent’s answer must be filed either:
44 YAP, K. | ATENEO LAW
o The court may refer the issues to a mediator – assists the parties in reaching an § However, in the absence of property, the court shall issue a Decree of
agreement on matters not prohibited by law. Legal Separation which shall be registered in the Civil Registries
§ Mediator shall render a report within 1 month from referral. May be where:
extended. 1. The marriage was recorded; and
o In case mediation is not availed of or if it fails, the court shall proceed with the 2. Where the family court granting the separation is located.
pre-trial conference. o The decision shall likewise declare the effects in Fig. 12 on pages 42-43.
Ø Pre-trial order. Ø Appeal.
o The proceedings in pre-trial shall be recorded. o No appeal shall be allowed unless the appellant has filed an MR or new trial
o The court shall issue a pre-trial order which shall recite in detail: within 15 days from notice of judgment.
1. Matters taken up in the conference; o An aggrieved party or the Solicitor General may appeal by filing a Notice of
2. Action taken thereon; Appeal within 15 days from the notice of denial of the MR or new trial.
3. Amendments allowed on the pleading; Ø Liquidation, partition and distribution, custody and support of minor children.
4. Agreements or admissions made by the parties; and o Upon entry of the judgment granting the petition, and pending appeal, the family
5. Any provisional order necessary. court, on motion of either party, shall proceed with the:
o Show the action proceed to trial, the order shall contain: 1. Liquidation, partition and distribution of properties; and
1. Facts undisputed, admitted, and those which need not be proved; 2. Custody and support of the children.
2. Factual and legal issues; Ø Issuance of Decree of Legal Separation.
3. Evidence; o The court shall issue the decree after:
4. Names of witnesses; and 1. Registration of entry of judgment granting the petition in the civil
5. Schedule of presentation of evidence. registries; and
o The parties shall not be allowed to present additional evidence or witnesses other 2. Registration of the approved partition and distribution of the properties
than those stated in the order, unless the court allows it to avoid manifest of the spouses where the real properties are located.
injustice. Ø Registration and publication of Decree of Legal Separation; decree as best evidence.
o The parties shall have 5 days from receipt of the pre-trial order to propose o The prevailing party shall cause its registration in the Civil Registry and the NSO.
corrections or modifications. o In case service of summons was made by publication, the parties shall case the
Ø Prohibited compromise: publication of the Decree once in a newspaper of general circulation.
1. Civil status; o Decree shall be best evidence of legal separation and shall serve as notice to third
2. Validity of marriage or legal separation; parties concerning the properties of petitioner and respondent.
3. Ground for legal separation; Ø Effect of death of party.
4. Future support; o In case of death at any stage of either party, the court shall order the case closed
5. Jurisdiction of courts; and and terminated without prejudice to the settlement of estate in proper proceedings
6. Future legitime. in regular courts.
Ø Trial. o If party dies after entry of judgment, the same shall be binding.
o The judge shall personally conduct the trial of the case. Ø Petition for revocation of donations.
§ No delegation shall be allowed, except as to matters involving property o Within 5 years from the finality of the decision, the innocent spouse may file a
relations of the spouses. petition under oath in the same proceeding for legal separation to revoke the
o The grounds for legal separation must be proved. No judgment on the pleadings, donations in favor of the offending spouse.
summary judgment, or confession of judgment shall be allowed. o The revocation shall be recorded in the Register of Deeds.
o The court may order the exclusion of the public from the courtroom, except those o Alienations, liens, and encumbrances registered in good faith before the
who have a direct interest in the case. recording of the petition for revocation shall be respected.
Ø Memoranda. o After issuance of the decree, the innocent spouse may revoke the designation of
o The court may require the parties and the public prosecutor to file memoranda the offending spouse as beneficiary in any insurance policy.
within 15 days from the date the trial is terminated. § The revocation shall take effect upon written notification thereof to the
o After such period, the case will be considered submitted for decision. insurer.
Ø Decision. Ø Decree of Reconciliation.
o The court shall deny the petition on the grounds in Fig. 11 on page 41. o Spouses may file a joint manifestation under oath, duly signed by the spouses, in
o If the court grants the petition, it shall declare therein that the Decree of Legal the same proceeding for legal separation.
Separation shall be issued by the court only after full compliance with liquidation o If reconciliation occurred during pendency, the court shall immediately issue an
under the Family Code. order terminating the proceeding.

45 YAP, K. | ATENEO LAW


o If reconciliation occurred after judgment but before issuance of decree, the o However, in case it is the legal husband who is the offender, the subsequent
spouses shall express in their manifestation whether they agree to revive the forgiveness by the wife as the offended party shall extinguish the criminal action
former regime of their property relations or choose a new regime. or penalty, except when the marriage is void ab initio.
§ The court shall immediately issue a Decree of Reconciliation – Ø If her repeated refusals are a “breach of the marriage contract” his remedy is in a
declaring the proceedings set aside and specifying the property regime matrimonial court, not in violent and forceful self-help. (State of New Jersey v. Albert
of the spouses. Smith, 1981)
o If reconciliation occurred after issuance of the decree, the court, upon proper
motion, shall issue a decree of reconciliation declaring therein that the decree is ART. 69. THE HUSBAND AND WIFE SHALL FIX THE FAMILY DOMICILE. IN CASE OF
set aside. DISAGREEMENT, THE COURT SHALL DECIDE.
§ However, the separation of property and any forfeiture already effected
shall subsist, unless the spouses have agreed to revive their former THE COURT MAY EXEMPT ONE SPOUSE FROM LIVING WITH THE OTHER IF THE LATTER SHOULD
regime of property relations or adopt a new regime. LIVE ABROAD OR THERE ARE OTHER VALID AND COMPELLING REASONS FOR THE EXEMPTION.
o The Decree of Reconciliation shall be recorded in the Civil Registries where the HOWEVER, SUCH EXEMPTION SHALL NOT APPLY IF THE SAME IS NOT COMPATIBLE WITH THE
marriage and the Decree of Legal Separation had been registered. SOLIDARITY OF THE FAMILY.
Ø Revival of property regime or adoption of another.
o In case of reconciliation, the parties shall file a verified motion for revival of
property regime relations or the adoption of another regime. Ø Domicile – the place where the parties intend to have their permanent residence with the
o It shall specify: intention of always returning even if they have left it for some time.
1. Properties to be contributed to the restored or new regime; Ø The spouses can have one domicile but many residences.
2. Properties to be retained as separate properties; and Ø A minor follows the domicile of his or her parents.
3. Names of all creditors, addresses, and amounts owing to each. Ø General rule: The choice of domicile shall be agreed upon by the spouses.
o Creditors shall be furnished with copies of the motion and agreement. o Exception: In case of disagreement, the court shall decide.
o Court shall require spouses to cause the publication of their verified motion for o The proceeding shall be summary in nature.
2 consecutive weeks in a newspaper of general circulation. Ø General rule: The spouses must life together.
o After due hearing and the court decides to grant the motion, it shall issue an order o Exception: A spouse may live separately from the other only if the latter should
directing the parties to record the order in the proper registries of property within (1) live abroad or there are (2) other valid and compelling reasons for the
30 days from receipt of a copy of the order and submit proof in compliance with exemption.
the same. § Exception to the exception: However, such exception shall not apply
if the same is not compatible with the solidarity of the family.
TITLE THREE: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
ART. 70. THE SPOUSES ARE JOINTLY RESPONSIBLE FOR THE SUPPORT OF THE FAMILY. THE
ART. 68. THE HUSBAND AND WIFE ARE OBLIGED TO LIVE TOGETHER, OBSERVE MUTUAL LOVE, EXPENSES FOR SUCH SUPPORT AND OTHER CONJUGAL OBLIGATIONS SHALL BE PAID FROM THE
RESPECT AND FIDELITY, AND RENDER MUTUAL HELP AND SUPPORT. COMMUNITY PROPERTY AND, IN THE ABSENCE THEREOF, FROM THE INCOME OR FRUITS OF
THEIR SEPARATE PROPERTIES. IN CASE OF INSUFFICIENCY OR ABSENCE OF SAID INCOME OR
FRUITS , SUCH OBLIGATIONS SHALL BE SATISFIED FROM THE SEPARATE PROPERTIES.
Ø Since the husband and wife are obliged to live together, observe mutual respect and fidelity,
and render mutual help and support, there is virtue in making it as difficult as possible for
married couples – impelled by no better cause than their whims and caprices – to abandon ART. 71. THE MANAGEMENT OF THE HOUSEHOLD SHALL BE THE RIGHT AND THE DUTY OF
each other’s company. BOTH SPOUSES . THE EXPENSES FOR SUCH MANAGEMENT SHALL BE PAID IN ACCORDANCE WITH
Ø Procreation is also an essential marital obligation considering that such obligation springs THE PROVISIONS OF ARTICLE 70.
from the universal principle that procreation of children through sexual cooperation is the
basic end of marriage.
Ø Except for support, a court cannot validly issue a decision compelling the spouses to live ART. 72. WHEN ONE OF THE SPOUSES NEGLECTS HIS OR HER DUTIES TO THE CONJUGAL UNION
together, observe mutual love, respect, and fidelity. OR COMMITS ACTS WHICH TEND TO BRING DANGER, DISHONOR OR INJURY TO THE OTHER OR
o Only the moral obligation of the spouses constitutes the motivating factor for TO THE FAMILY, THE AGGRIEVED PARTY MAY APPLY TO THE COURT FOR RELIEF.
making them observe the said duties and obligations which are highly personal.
Ø There can be no action for damages merely because of a breach of marital obligation.
o Other remedies can be availed of. (Ex. When a spouse in bad faith refuses to Ø Arts. 94 and 121 provide that the Absolute Community of Property and Conjugal
comply with the obligations and if the property regime is separation of property, Partnership of Gains, respectively, shall be liable for the support of the spouses, their
he may be liable under Arts. 19, 20 and 21 of the Civil Code – Abuse of right. common and legitimate children of either spouse.
Ø Under the Philippine law, a husband can be held liable for raping his wife.
46 YAP, K. | ATENEO LAW
o In absence thereof, Arts. 70 and 71 provide that the expenses shall be taken from 1. If the benefit accrued prior to the objection, the resulting obligation
the income or fruits of the spouses’ separate properties. shall be enforced against the community property or conjugal
Ø The management of the household shall be the right and duty of both spouses regardless of partnership.
the property regime involved in the marriage. 2. If the benefit accrued thereafter, such obligation shall be enforced
o Even if the family house is owned by only one spouse, the other spouse still has against the separate property of the spouse who has not obtained
the right and duty relative to the management of the household. consent.
o In the event one spouse neglects his/her duties, the aggrieved party may apply to • Applies even if it redounded to the benefit of the family.
the court for the following reliefs: o For the exception to apply, the innocent spouse must have no knowledge of the
1. Legal separation; other spouse’s engagement in an immoral activity prior to his/her objection.
2. Nullifying the marriage; o Any creditor who is in good faith will not be prejudiced and he or she can collect
3. Receivership; from the community or conjugal property by demanding from the husband the
4. Judicial separation of property; or payment of the obligation.
5. Authority to be sole administrator of the community property or
conjugal partnership.

ART. 73. 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.

IN CASE OF DISAGREEMENT, THE COURT SHALL DECIDE WHETHER OR NOT:

(1) THE OBJECTION IS PROPER; AND


(2) BENEFIT HAS OCCURRED TO THE FAMILY PRIOR TO THE OBJECTION OR THEREAFTER. IF THE
BENEFIT ACCRUED PRIOR TO THE OBJECTION, THE RESULTING OBLIGATION SHALL BE
ENFORCED AGAINST THE SEPARATE PROPERTY OF THE SPOUSE WHO HAS NOT OBTAINED
CONSENT.

THE FOREGOING PROVISIONS SHALL NOT PREJUDICE THE RIGHTS OF CREDITORS WHO ACTED IN
GOOD FAITH.

Ø The husband and the wife can engage in any lawful enterprise or profession.
o The law does not require that a spouse has to get the prior consent of the other
before entering into any legitimate profession, occupation, business or activity.
Ø If the husband compels the wife to desist from pursuing a profession or any other conduct
which the wife has the right to engage in, these are considered acts of violence against
women under RA 9262 (Anti-Violence Against Women and their Children Law).
Ø The exercise by a spouse of a legitimate profession, occupation, business or activity is
always considered to redound to the benefit of the family.
o Except isolated transactions which must be proven to have redounded as such.
Ø Disagreements regarding certain professions, occupations, etc. shall only be anchored on
valid, serious and moral grounds.
o In case of such disagreement, the court shall decide if the objection is proper.
o The proceeding shall be summary in nature.
Ø An obligation incurred as a result of a spouse’s exercise of his or her legitimate profession
or as a result of a spouse’s undertaking of a legitimate business, is an obligation redounding
to the benefit of the family, and therefore shall be shouldered by the community property
or conjugal partnership.
o Rules:

47 YAP, K. | ATENEO LAW


IMPORTANT ENUMERATIONS does not refer to a simulated exercise because
it requires absence of civilian authorities.
Requisites of a Valid Marriage 6. In articulo mortis.
5. Any consul-general, • Art. 10. Marriages between Filipino citizens abroad
Essential (Art. 2) Formal (Art. 3) consul or vice-consul in may be solemnized by a consul-general, consul or
1. Legal capacity given by the parties 1. Authority of the solemnizing officer the case provided in Art. vice-consul of the republic of the Philippines. The
who must be male and female. 2. Valid marriage license, except in cases 10. issuance of the marriage license and the duties of the
2. Consent freely given and made in the provided for in Chapter 2 of this Title local civil registrar and of the solemnizing officer
presence of a solemnizing officer. 3. Marriage ceremony which takes place with regard to the celebration of marriage shall be
with the appearance of the contracting performed by said consular official.
parties before the solemnizing officer • Classes of heads of consular posts:
and their personal declaration that they 1. Consul-general;
take each other as husband and wife in 2. Consul;
the presence of not less than 2 3. Vice-consul; and
witnesses of legal age. 4. Consul agents.
§ Only consul agents are not authorized
Persons Authorized to Solemnize Marriages by the Family Code to solemnize
Art. 7 of the Family Code Requisites / Rules marriage.
1. Any incumbent member 1. Within their court’s jurisdiction; and • General Rule: Both parties must be Filipino citizens
of the judiciary within 2. Incumbent and not retired. because the very authority of consuls to solemnize
the court’s jurisdiction. marriage is limited to Filipino citizens, as gleaned
2. Any priest, rabbi, imam, 1. Duly authorized by his church or religious sect; from Art. 7 and Art. 10 which provides that they
must be consuls of the Republic of the Philippines.
or minister of any church 2. Registered with the civil registrar general;
§ Exception: When the marriage between the
or religious sect. 3. Acting within the limits of the written authority
foreigner and the Filipino citizen abroad
granted him by his church or religious sect; and
solemnized by a Philippine consul assigned
4. At least one of the contracting parties belongs to the
in that country is recognized as valid in the
solemnizing officer’s church or religious sect.
host country, pursuant to Art. 26 of the
3. Any ship captain or 1. Between passengers or crew members;
Family Code.
airplane chief only in 2. Ship must be at sea or the plane in flight; and
§ Art. 26. All marriages solemnized outside the
cases mentioned in Art. § An assistant pilot has no authority to
Philippines, in accordance with the laws in
31. solemnize a marriage.
force in the country where they were
§ May be solemnized during stopovers at ports
solemnized, and valid there as such, shall
of call – as long as the voyage is not yet
also be valid in this country xxx.
terminated.
• They also perform the duties of an LCR, such as the
3. In articulo mortis.
issuance of a marriage license.
4. Any military commander 1. Military commander of a unit;
of a unit. § Unit – a battalion under the present table of • “Abroad” – limits their jurisdiction. Hence, they are
organization and not to a mere company. not authorized to solemnize marriages within the
2. Must be a commissioned officer; territory of the Philippines.
§ An officer of a country's armed services
whose rank is confirmed by a government
document (called a commission).
§ Second lieutenant, ensign or above.
3. Chaplain is assigned to such unit;
4. Chaplain is absent at the time of marriage;
5. Members of the armed forces or civilians, and within
the zone of military operation; and
§ Even if they do not belong to the unit. Local Government Code Requisites / Rules
§ Within the zone of military operation – implies 1. Mayor of a city or • Must not be on official leave.
a widespread military activity over an area and municipality

68 YAP, K. | ATENEO LAW


2. Vice mayor • When the mayor is temporarily incapacitated to an area and does not refer to a simulated
perform his duties for physical or legal reasons. exercise because it requires absence of
• Whether temporarily or in the capacity of an Acting civilian authorities.
mayor. 6. In articulo mortis.
3. Highest ranking • When the mayor is temporarily incapacitated to
sangguniang bayan perform his duties for physical or legal reasons.
member 5. Marriages among Muslims • Exempted:
or among other ethnic 1. Muslims – Code of Muslim Personal Laws.
cultural communities 2. Indigenous tribes in the Cordillera
Exempted from Marriage License (Chapter 2, Arts. 27-34) Autonomous Region (CAR) – Organic Act
for the Cordillera Autonomous Region
Exemption Rules / Requisites
(R.A. 6766).
1. Marriage in articulo mortis • Articulo mortis – where at least one of the parties is • For other indigenous tribes, they must comply with
in the bring of death. the Family Code.
• The marriage will remain valid even if the ailing
6. Cohabitation for at least 5 1. Live as husband and wife for at least 5 years
party subsequently survives.
years without legal characterized by exclusivity and continuity that is
• The solemnizing officer shall state in an affidavit impediment at the time of unbroken.
executed before the local civil registrar or any other the marriage 2. Without any legal impediment to marry each other
person legally authorized to administer oaths of – at the time of marriage.
such circumstance.
2. Residence is so • The solemnizing officer shall state in an affidavit Void Marriages
located/remote that there is executed before the local civil registrar or any
no means of transportation other person legally authorized to administer oaths Marriage Rules / Requisites / Exceptions
to enable such party to of such circumstance. 1. Those contracted by any • The consent of the parents is immaterial, whether
personally appear before party below 18 years of age present or not.
the LCR even with the consent of • It was raised to 18 years (before 16 for male, 14
3. Marriage in articulo mortis 1. Between passengers or crew members; parents or guardians for female) because marriages between 12-17
between passengers or crew 2. Ship must be at sea or the plane in flight; and years old increases the probability of unsafe
members § An assistant pilot has no authority to pregnancies.
solemnize a marriage.
2. Those solemnized by any • Exception: When either or both of the parties
§ May be solemnized during stopovers at
person not legally believing in good faith that the solemnizing
ports of call – as long as the voyage is not
authorized to perform officer had the legal authority to do so when in
yet terminated.
marriages fact he or she has none.
3. In articulo mortis.
• Putative marriage – a matrimonial union
4. Marriage in articulo mortis 1. Military commander of a unit; solemnized in due form and good faith on the part
between persons within the § Unit – a battalion under the present table of of one or both parties but which by reason of
zone of military operation, organization and not to a mere company. some legal infirmity is either void or voidable.
whether members of the 2. Must be a commissioned officer; • Good faith – honest and reasonable belief that the
armed forces or civilians § An officer of a country's armed services marriage was valid at its inception, and that no
whose rank is confirmed by a government legal impediment exists to impair its validity.
document (called a commission). • Does not apply in cases of ignorance of the law –
§ Second lieutenant, ensign or above. if the parties go before a person not specifically
3. Chaplain is assigned to such unit; mentioned by law as having any authority to
4. Chaplain is absent at the time of marriage; solemnize a marriage. (Ex. Solemnized by a
5. Members of the armed forces or civilians, and governor)
within the zone of military operation; and • Applies in cases of mistake of fact – if the parties
§ Even if they do not belong to the unit. go before a person stated by law as qualified to
§ Within the zone of military operation – solemnize a marriage but in fact is not because of
implies a widespread military activity over non-fulfillment of a requirement by law such as
69 YAP, K. | ATENEO LAW
procuring a license, then there is good faith of the 5. Between the surviving spouse of the adopting parent and the adopting child;
parties in believing that there was no infirmity. 6. Between the surviving spouse of the adopted child and the adopter;
7. Between an adopted child and a legitimate child of the adopter;
3. Those solemnized without Exceptions:
8. Between the adopted children of the same adopter; and
without license 1. Either of both contracting parties are in articulo
9. Between parties where one, with the intention to marry the other, killed that other
mortis;
person’s spouse or his or her own spouse.
2. Remote residence;
3. Between passengers or crew members of a ship or
plane, in articulo mortis; Need of Judicial Declaration of Nullity
4. Between persons within the zone of military Status of Subsequent
operation, whether members of the armed forces Jurisprudence Date of Effectivity
Marriage
or civilians, in articulo mortis; People v. Gomez September 28, 1954 Valid
5. Muslims or members of ethnic cultural
Gomez v. Lipana June 30, 1970 Void
communities; and
6. Cohabitation for at least 5 years, without legal Odayat v. Amante June 2, 1977 Valid
impediment at the time of marriage. Wiegel v. Sempio Diy August 19, 1986 Void
Yap v. CA October 28, 1986 Valid
4. Those bigamous or • Exceptions:
polygamous marriages not 1. Code of Muslim Personal Laws Family Code of the
August 3, 1988 Void
falling under Art. 41 2. Art. 41 – valid subsequent marriages based Philippines
on presumptive death.
• Non-observance of Art. 40 (judicial declaration of Annullable Marriages
nullity) in relation to Art. 52 shall make the Marriage Rules / Requisites / Exceptions
subsequent marriage void pursuant to Art. 53. 1. Party was 18-21 years old, • Annullable at the instance of the:
and the marriage was 1. Party whose parent, guardian or person
5. Those contracted through • Ex. When one of the contracting parties marries solemnized without having substitute parental authority did
mistake of one contracting the twin of the other party, believing that such parental consent. not give his or her consent; and
party as to the identity of twin is his or her lover. 2. Parents, guardians, or person having
the other • Absence of consent – the contracting party substitute parental authority over the
absolutely did not intend to marry the other, as the party in that order.
same is not the person he or she actually knew • RATIFICATION: When after attaining the age of
before the marriage. 21, such party freely cohabited with the other and
• Does not apply to mistake as to the real name or both lived together as husband and wife.
mistake as to the virtues of the other party. 2. Either party was of • There must be such a derangement of the mind to
6. Those subsequent marriages 1. Liquidation, partition and distribution of property; unsound mind. prevent the party from comprehending the nature
void under Art. 53 2. Delivery of the children’s presumptive legitimes; of the contract and from giving it to his free and
and intelligent consent.
3. Recorded in the LCR. o Contemplates a situation wanting of
consent.
Incestuous Marriages
• Burden of proof of insanity rests upon him who
alleges insanity, or seeks to avoid an act on
1. Between ascendants and descendants of any degree; and account of it.
2. Between brothers and sisters, whether of the full or half-blood. o If, however, a previous state of insanity is
proved, the burden shifts to him who
Void for Reasons of Public Policy asserts that the act was done while the
person was sane.
1. Between collateral blood relatives, whether legitimate or illegitimate, up to the • RATIFICATION: When after coming to reason,
4th civil degree; such party freely cohabits with the other. (5-year
2. Between step-parents and step-children; prescriptive period)
3. Between parents-in-law and children-in-law;
4. Between the adopting parent and the adopted child;

70 YAP, K. | ATENEO LAW


3. Consent of either party was • Fraud – the non-disclosure or concealment of • Whoever alleges the incapacity has the burden of
obtained by fraud. certain circumstances which materially affect the proving the same.
essence of marriage. o The presumption is in favor of potency.
o There is no fraud when there is no o Triennial cohabitation – if the wife
concealment or disclosure. remains a virgin for at least 3 years after
• Refer to Fig. 8 for the list of frauds. cohabitation, the husband must show that
• RATIFICATION: Unless after having full he was not impotent during the said
knowledge of the facts constituting the fraud, such period and the burden will be upon him
party cohabits with the other. (5-year prescriptive to overcome the presumption of
period) impotency.
4. Consent of either party was • Vitiated consent – obtained by force, intimidation • A sterile person can engage in sexual coition, it
obtained by force, or undue influence. does not imply want of power for copulation; it is
intimidation or undue o Force or duress – physical and mental not a ground contemplated herein.
influence. compulsion which the victim may be 6. Either party was afflicted • Requisites:
unable to resist, and may be physical or with a sexually- 1. Serious; and
moral. transmissible disease 2. Incurable.
o Intimidation – when one of the parties is (STD) found to be serious • Does not apply if the STD was obtained after the
compelled by a reasonable and well- and appears to be incurable. marriage ceremony. However, it can be used as
grounded fear of an imminent and grave evidence of sexual infidelity which is a ground for
evil upon his person or property, or upon legal separation.
the person or property of his spouse,
descendants or ascendants, to give his Frauds Contemplated in Art. 45 (3)
consent.
§ Age, sex and condition of the Concealment of Rules / Requisites / Exceptions
parties shall be borne in mind. 1. Previous conviction by • Moral turpitude – inherent baseness, vileness or
o Undue influence – influence by which a final judgment of the other depravity in the private and social duties which a
person is induced to act otherwise than by party of a crime involving man owes to his fellow men or to society in
their own free will or without adequate moral turpitude. general.
attention to the consequences. • Generally, crimes punishable under the RPC are
• Proven by preponderance of evidence. crimes involving moral turpitude.
• RATIFICATION: When the force, intimidation or • It is not necessary that one of the parties
undue influence ceases, such party freely cohabits investigates the other to determine criminal
with the other. (5-year prescriptive period) record, the burden is on the convicted party to
5. Either party was physically • Requisites: reveal the same.
incapable of consummating 1. Continuing;
the marriage, and such 2. Incurable; and 2. Pregnancy by a man other • Maternity is always certain while paternity may
incapacity continues and 3. Exists at the time of marriage. than the wife’s husband. be disputed.
appears to be incurable. • Permanent inability on the part of one of the • The concealment must have been done in bad
spouses to perform the complete act of sexual faith.
intercourse. • Mere pregnancy is not sufficient, there must be
• May be caused by a physical or structural defect concealment of such. If she did not inform the
in the anatomy of one of the parties or it may be man, but such pregnancy was readily apparent to
due to chronic illness and inhibitions or fears the man, he cannot claim lack of knowledge.
arising in whole or in part from psychophysical
conditions, and psychogenic causes.
• If the husband can attain erection but is 3. Sexually transmissible • In case of fraud, the nature or gravity is irrelevant.
psychologically inhibited in engaging sexual disease, regardless of its It is enough that there was concealment.
intercourse, such situation will not fall under nature, existing at the time
impotency as contemplated under the Family of marriage.
Code.
71 YAP, K. | ATENEO LAW
4. Drug addiction, habitual • Habitual drunkenness or intemperance – the sexually-transmissible
alcoholism, or persistent habit of becoming intoxicated whereby disease (STD) found to
homosexuality or he has lost the power or will to control his be serious and appears
lesbianism existing at the appetite for intoxicating liquor, as where he to be incurable.
time of marriage. indulges in intoxication whenever the temptation
is presented and the opportunity offered. Legal Separation
o Applies even if there be intervals when
(1) Repeated physical violence • Must be upon:
he entirely refrains from the use of
or grossly abusive conduct 1. Petitioner;
intoxicating drinks.
against the petitioner, a 2. Common child; or
o Reason is that it renders him unfit for the
common child, or a child of the 3. Child of the petitioner.
duties of the marital relation and
petitioner. • Must be inflicted with:
disqualifies him from properly rearing
and caring for the children. 1. Bad faith; and
• The ground is not homosexuality or lesbianism 2. Malice.
per se, but the concealment of such sexual • Does not cover violence upon the child of the
orientation. respondent or the guilty spouse, but may be a ground
o Does not serve the purpose of the law for suspension or termination of parental authority
mandating a heterosexual relationship. under Art. 231 (1) of the Family Code.
• Physical violence – the infliction of bodily harm.
• The frequency of the act, not the severity of the
Parties and Prescriptive Periods same, is the determinative factor under this ground.
Defect Who May File Prescriptive Period o However, even if it is not repeated, such
Party whose parent or may constitute grossly abusive conduct
1. Party was 18-21 years Within 5 years after which may warrant the issuance of a legal
guardian did not give
old, and the marriage attaining the age of 21 separation decree.
consent
was solemnized Grossly abusive conduct is determined on a case-to-
Parent or guardian or person •
without parental Any time before such party case basis.
having legal charge of the
consent. reaches the age of 21
minor o Ex. When one spouse uses offensive
Sane spouse without language continually against the other
knowledge of insanity Any time before the death with the intent and fixed purpose of
Any relative, guardian or of either party causing unhappiness.
2. Either party was of
person having legal charge (2) Physical violence or moral • One incident of physical violence or moral pressure
unsound mind.
of the insane person pressure to compel the to compel the change in religious affiliation or the
During a lucid interval or petitioner to change religious change in political affiliation can be a ground for
Insane spouse
after regaining sanity or political affiliation. legal separation.
3. Consent of either party Within 5 years after the • Involves the human rights concept of the right to
Injured party
was obtained by fraud. discovery of the fraud accept one another’s political beliefs.
4. Consent of either party Within 5 years from the o The couple should learn to live with each
was obtained by force, time the force, intimidation other’s political ideas. If they cannot live
Injured party
intimidation or undue or undue influence together as such, how can we live together
influence. disappeared or ceased as a nation sharing different political
5. Either party was ideas?
physically incapable of
consummating the (3) Attempt of respondent to • Must be against:
Within 5 years after the corrupt or induce the petitioner, 1. Petitioner;
marriage, and such Injured party
marriage a common child, or a child of 2. Common child; or
incapacity continues
and appears to be the petitioner, to engage in 3. Child of the petitioner.
incurable. prostitution, or connivance in • Parental duties violated:
such corruption or inducement. 1. To provide their unemancipated children
6. Either party was Within 5 years after the
Injured party with moral and spiritual guidance;
afflicted with a marriage
72 YAP, K. | ATENEO LAW
2. To instruct them by right precept and good o Ex. Oral sex, bestiality.
example; and
(9) Attempt by the respondent • Must proceed from an evil design and not from any
3. To protect them from bad company and
against the life of the justifiable cause, ie. self defense.
prevent them from acquiring habits
petitioner. • The criminal attempt can be proven by
detrimental to their health, studies and
morals. preponderance of evidence in the civil case for legal
separation.
• It cannot be any other immoral act, otherwise the
o No conviction is necessary.
undue stretching of the import of the article will not
• A criminal attempt to kill a spouse is clearly an act
serve the policy of the law of discouraging legal
separation. of moral depravity.
• Mere “attempt” is enough to be a ground for legal (10) Abandonment of • Must be:
separation. petitioner by respondent 5. Willful;
• Does not cover violence upon the child of the without justifiable cause for 6. Intent to desert/No intent of returning;
respondent or the guilty spouse, but may be a ground more than 1 year. 7. Without justifiable cause; and
for suspension or termination of parental authority 8. More than 1 year.
under Art. 231 (1) of the Family Code. • Willful – when there is a design to forsake the other
(4) Final judgment sentencing spouse intentionally, or without cause and,
• The offense herein need not necessarily be against
the respondent to imprisonment therefore, break up the marital union.
the other spouse, their common children or the
of more than 6 years, even if petitioner’s children, but against anybody. • Mere severance of the relationship is not sufficient,
pardoned. there must be a wrongful intent to desert, continued
• The judgment must be “final.”
for the statutory period.
(5) Drug addiction or habitual • The extent is the same as those in annulment cases. • Physical separation alone is not sufficient.
alcoholism of the respondent. However, the difference is that here, the grounds can o There must be absolute cessation of
exist even after the marriage ceremony. marital relations, duties and rights, with
(6) Lesbianism or the intention of perpetual separation.
• Lesbianism and homosexuality deal with sexual
homosexuality of the orientation that do not by themselves affect the • A separation in which both parties concur is not a
respondent. mental state of a person in relation to his or her willful desertion of one by the other.
judgment. • The computation of the 1 year period does not
• The ground can exist even after the marriage include the time during which the offending spouse
ceremony. has been insane.
• Abandonment:
(7) Contracting by the • Bigamy – the act of illegally contracting a second o A spouse is deemed to have abandoned
respondent of a subsequent marriage despite full knowledge that the first the other when he/she has left the conjugal
bigamous marriage, whether in marriage is still validly existing or without obtaining dwelling without intention of returning for
the Philippines or abroad. the needed judicial declaration of presumptive death a period of 3 months, or has failed within
of the first spouse who was absent for 4 or 2 such period to give any information as to
consecutive years pursuant to Art. 41 of the Family his or her whereabouts.
Code. o Prima facie presumed to have no intention
(8) Sexual infidelity of • Violates the obligation of mutual love, respect and of returning to the conjugal dwelling.
perversion. fidelity.
• Although adultery and concubinage are included Grounds for Denying Legal Separation
herein, other acts short of such are enough so long
(1) Where the aggrieved party • Condonation – the act of forgiving the offense after
as said acts committed by one spouse would
has condoned the offense or act its commission.
constitute a clear betrayal of the trust of his or her
complained of. o Implies a condition of future good
spouse by having intimate love affairs with other
persons. behavior by the offending spouse.
o Subsequent offense revokes the
• Sexual perversion includes not only such behavior
condonation and revives the original
with third persons, but even with the spouse.
offense.
o Unless condoned.

73 YAP, K. | ATENEO LAW


• Failure of the husband to look actively for his be dissolved and liquidated; 1. Common children;
adulterous wife after she left the conjugal dwelling but 2. Children of the guilty spouse by a
does not constitute condonation or consent of the previous marriage; or
wife’s adulterous acts. (Ocampo v. Florenciano, the offending spouse shall have 3. Innocent spouse.
1960) no right to any share of the net • For purposes of computing the net profit, said profits
o She “left” him. It was not his duty to profits earned by the absolute shall be the increase in value between the market
search for her, but her duty to return. community or the conjugal value of the community property at the time of the
partnership, which shall be celebration of the marriage and the market value at
(2) Where the aggrieved party • Consent – when either of the spouses agreed to do forfeited in accordance with the time of dissolution.
has consented to the or did not object, despite full knowledge, to the act Art. 43 (2). o NP = MVdissolution – MVcelebration.
commission of the offense or giving rise to a ground for legal separation, before
act complained of. such act was in fact committed. May be deduced (3) The custody of the minor • In all matters relating to the custody of the child, the
from the acts of the parties. children shall be awarded to paramount interest of the child shall be the standard.
• Difference with condonation is that here, the consent the innocent spouse, subject to • The Court may even award custody to a third person
was given before the commission of the act. In Art. 213. if both spouses are unfit to take care of the child.
condonation, it is done after the act was committed.
(4) The offending spouse shall • The law does not provide that such revocation by
(3) Where there is connivance • Volenti non fit injuria – one is not legally injured if be disqualified from inheriting operation of law will be rendered ineffectual in case
between the parties in the he has consented to the act complained of or was from the innocent spouse by the legal separation decree is set aside by the court
commission of the offense or willing that it should occur. intestate succession. upon manifestation of the parties that they have
act constituting the ground for reconciled.
legal separation. Moreover, provisions in favor o However, Art. 921 (4) provides that
of the offending spouse in the disinheritance in a will shall be rendered
(4) Where both parties have • Doctrine of unclean hands – he who comes into
will of the innocent spouse ineffectual upon the mutual reconciliation
given ground for legal equity must come with clean hands.
shall be revoked by operation of the spouses.
separation. • When 2 persons act in bad faith, they should be
of law.
considered as having acted in good faith towards
each other.
(5) Where there is collusion • Collusion is a corrupt agreement, while connivance
between the parties to obtain is a corrupt consenting.
the decree of legal separation. • For collusion, there must be an agreement between
the spouses looking to the procuring of a divorce.
(6) Where the action is barred • Must be filed within 5 years from the occurrence of
by prescription. the cause.
o The time of discovery of the ground for
legal separation is not material in counting
the prescriptive period.
o Justice Puno – the law assumes that if you
discover it after 5 years, forgiveness is
already the order of the day, and no longer
recrimination.

Effects of Legal Separation


(1) The spouses shall be • Even if they can legally live apart, a spouse can still
entitled to live separately from be held criminally liable for bigamy, concubinage or
each other, but the marriage adultery if he or she commits the act.
bond shall not be severed.
(2) The absolute community or • The portion pertaining to the offending spouse shall
the conjugal partnership shall be forfeited in favor of, in the following order:
74 YAP, K. | ATENEO LAW