COMPENDIUM ON THE LAW ON

PERSONS AND FAMILY RELATIONS

I HISTORICAL BACKGROUND:

The Law on Persons and Family Relations is found in Book I of the Civil Code of the Philippines. Its
main draft was prepared by the Code Commission created by President Manuel Roxas thru Executive Order
No. 48 in March 20, 1947. The members of the Commission were Dean Jorge Bocobo (Chairman), Judge
Guillermo B. Guevarra, Dean Pedro R. Ylagan, and Dean Francisco R. Capistrano. Arturo Tolentino was added
as the fifth member but he resigned after he was elected congressman. He was replaced by Dr. Carmelino
Alvendia. The Commission started drafting the Code on May 8, 1947 and finished the draft on December 16,
1947. Thereafter, they submitted the draft to the Philippine Congress who finally approved it on June 18, 1949
as Republic Act 386. It took effect on August 30, 1950 as declared by the Supreme Court in the case of Lara
vs. Del Rosario .

The present Civil Code is premised principally on the old Civil Code, which is the Civil Code of Spain of
1889. Some of its provisions were taken from the 1935 constitution, existing laws and jurisprudence, customs
and traditions, decisions of foreign courts, laws of other countries, equity and general principles of law. It
contains 2270 articles and is divided into four books and they are as follows: Book I is the Law on Persons and
Family Relations (Art. 1 to 413), Book II is Property Ownership and its Modification (Art.414 to 711), Book III
is the Different Modes of Acquiring Ownership (Art. 712 to 1155), and Book IV is the Law on Obligations and
Contracts (Art.1156 to 2270). Before the Civil Code of Spain of 1889, our civil law was based on the
Recopilacion de las Leyes de las Indias and such other laws enacted in Spain like: La Novisima Recopilacion, La
Nueva Recopilacion, The Royal Ordinances of Castille, Las Leyes de Toro and the La Siete Partidas.

On August 3, 1988, the Family Code of the Philippines took effect. It amended the provisions in the
Civil Code on Family Relations, more particularly Article 52 to 363 thereof. It was signed into law by President
Corazon C. Aquino on July 6, 1987 by virtue of Executive Order No. 209, as amended by E.O. 227.

CIVIL CODE OF THE PHILIPPINES

(REPUBLIC ACT NO. 386)

PRELIMINARY TITLE

Chapter 1
EFFECTS AND APPLICATION OF LAWS

A. Title:

Art. 1 – This Act shall be known as the Civil Code of the

Philippines

B. Effectivity of Laws :

Art. 2 – Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
1
 otherwise provided. This Code shall take effect one year after such
publication.

NOTES

1. This article provides for the effectivity of two kinds of laws. One is the ordinary law and the other
refers to the Civil Code.

2. An ordinary law takes effect on the date it is expressly provided to take effect. If no such date is
provided, then it shall take effect after 15 days following the completion of its publication in the Official
Gazette or in a newspaper of general circulation in the Philippines.

3. When the law provides for its own effectivity or upon approval by the President, publication is no
longer necessary so long as it is not punitive in character ( Askay vs. Cosalan, 46 Phil. 179 and in Balbuena vs.
Sec. of Education, L-14283, Nov. 29,1960). This ruling, however, has already been abandoned in the case of
Tanada vs. Tuvera, G.R. No. 63915, Dec. 29, 1986.

4. When the law does not explicitly provides for its effectivity, it shall be published first and it shall only
take effect after fifteen days following the completion of its publication in the Official Gazette or in a
newspaper of general circulation. A law must be published first before it shall take effect. The
requirement of publication is intended to familiarize the people with the statute. They are necessary requisites
and no one shall be charged with notice of the statute’s provision until the said publication is completed and
the fifteen day period has expired. Publication must be in full or it is no publication at all since its purpose is to
inform the public of its contents ( Tanada vs. Tuvera, 146 SCRA 446)

5. The clause “unless it is otherwise provided” does not mean unless the law provides that there is
no need for publication. It refers solely to the fifteen day period and not to the requirement of publication.
Publication is an indispensable requisite the absence of which will not render the law effective.
The Supreme Court in the case of Tanada vs. Tuvera ruled that it is not correct to say that under the disputed
clause, publication may be dispensed with altogether. The absence of publication would offend due process in
so far as it would deny the public of the laws that are supposed to govern it. Publication is indispensable in
every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened
or extended. If the law provides for a different period shorter or longer than the fifteen day period, then such
shorter or longer period, as the case maybe, will prevail but only after publication. If the law provides that it
will take effect immediately, it means that it shall take effect immediately after publication. In either case there
should always be publication before the law can take effect.

6. All statutes, including those of local application and private laws shall be published as a condition for
their effectivity, which shall begin fifteen days after publication, unless the legislature fixes a different
effectivity date. Covered by these rules are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers, whenever the same are validly delegated by the legislature or,
at present, directly conferred by the Constitution. Administrative rules and regulations must also be published
if their purpose is to enforce or implement existing laws pursuant also to a valid delegation (Tanada vs.
Tuvera, G.R. No. 63915, December 29, 1986).

7. Interpretative regulations and those merely internal, i.e., those that regulate only administrative
agency’s personnel and not the public, need not be published. Neither are the so-called letters of instructions,
issued by administrative superiors concerning their duties (Ibid).

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 7.Executive Order No. 200 passed by President Aquino in 1987 provides that publication may be done
not only in the Official Gazette but also in a newspaper of general circulation in the Philippines. The reason for
allowing now the publication of a new law in a newspaper of general circulation is that, newspaper could
better perform the function of communicating the laws to the people as they are easily available, have a wider
readership and come out regularly.

8. The Civil Code shall take effect one year after its publication. However, in the case of Lara vs. Del
Rosario, the Supreme Court in an obiter dictum ruled that the Civil Code of the Philippines took effect on
August 30, 1950. This date is exactly one year after the June 1949 issue of the Official Gazette publishing the
Code was released for circulation. Records show that it was published in the June 1949 Supplement of the
Official Gazette but its publication was released for circulation on August 30 1949 only. This ruling was
criticized as it seems to contradict the letter of the law which clearly provides that the one year
period shall be reckoned from the date of publication and not circulation. A question may be asked:
Is this not a case of judicial legislation?
C. Ignorance of the law excuses no one

Art. 3 – Ignorance of the law excuses no one from compliance

therewith
NOTES

1. The legal maxim Ignorantia legis non excusat is founded on expediency, policy, and necessity
so as to prevent evasion of the law. The policy, however, refers only to mandatory or prohibitory laws, not to
permissive or suppletory laws. Every person is presumed to know the law for as long as it is properly
published. To allow one to set up the defense of ignorance of the existence of the law he violated is to foment
disorder in society. It would invite deception, promote criminality and create a chaotic society. This rule is
precisely the basis of the Supreme Court in saying that all laws must be published. Without such notice and
publication, there will be no basis for the application of the maxim as it would violate the basic principle of due
process. It would be most unfair to punish or otherwise burden a citizen for the transgression of a law of
which he had no notice whatsoever, not even a constructive one ( Tanada vs. Tuvera).

2. This rule applies to all kinds of domestic laws, whether civil or penal, and whether substantive or
remedial. Ignorance of foreign law is not ignorance of the law, but ignorance of the fact because foreign laws
must be alleged and proved as a fact (Adong vs. Cheong Seng Gee, 43 Phil. 43). If the foreign law is not
properly alleged and proved, the presumption is that it is the same as our law. This is known as the doctrine of
“processual presumption”. Thus, in the case of Wong Woo Yiu vs. Vivo, et al., L-21076, March 31, 1965,
our Supreme Court ruled that a marriage in China celebrated by a village elder cannot be considered as valid
in the Philippines, unless there is proof that indeed a village elder is authorized to solemnize marriage under
Chinese laws. In the absence of proof, we will presume that the law of China is the same as ours where village
elders cannot perform marriage.

D. Laws are generally prospective

Art. 4 – Laws shall have no retroactive effect, unless the

contrary is provided.

NOTES

3
 1. While the judge looks backward, the legislator must look forward. In general, laws are prospective,
not retroactive. In the absence of a clear mandate of the law that it shall be applied retroactively, the law will
only apply prospectively.

2. There are instances, however, where the law may be applied retroactively and they are as follows:
a.) When the law expressly provides for its retroactivity.
b.) When the law is curative or remedial in nature
c.) When the law is procedural
d.) When the law is penal in character and favourable to the accused.
e.) When a substantive right is declared for the first time, unless vested rights are impaired.

3. A law that is penal in nature cannot be given retroactive effect if it is disadvantageous to the
accused because it becomes an ex post facto law which is prohibited by the constitution. However, if it is
favorable to the accused, it is allowed provided the accused is not a habitual delinquent as defined in the
Revised Penal Code. Thus, in the case of People vs. Patalin, et al. G.R. No. 125539, July 27, 1999, the
Supreme Court said that the suspension of the Death Penalty Law by the 1987 Constitution benefits those who
are charged of capital offenses and whose cases are still pending in court. Thus, even if the crime was
committed before 1987 death penalty cannot be imposed on them as the 1987 constitution abolishing death
penalty can be applied retroactively as it is beneficial to them. Perforce, the subsequent reimposition of the
death penalty law in 1994 will not affect them even if their case is pending in court. The framers of the
Constitution themselves state that the law to be passed by Congress reimposing death penalty can only have
prospective application.

4. A law cannot be given retroactive effect if it impairs vested rights provided by the old law. Thus, an
illegitimate child born before the effectivity of the Family Code may still prove his illegitimate filiation even
after the death of his father in 1992. Although the Family Code which took effect in 1988 provides that an
illegitimate child must prove his illegitimate filiation during the lifetime of his putative father (Art. 175 FC), the
same cannot be given retroactive effect because it will impair vested right of the child acquired under the old
law, which is that he can still prove his illegitimate filiation under Article 285 of the Civil Code within four
years after attaining the age of majority (Bernabe vs. Alejo, GR. No. L- 140500, Jan. 21, 2002).

E. Violation of Mandatory or Prohibitory Laws:

Art. 5 – Acts executed against the provisions of mandatory or

prohibitory laws shall be void, except when the law itself authorizes
their validity.

NOTES

1. As a general rule, acts in violation of mandatory or prohibitory laws are void. Mandatory laws are
those which require something to be done while prohibitory laws are those which contain positive prohibition
and requires that certain acts should not be done. A law mandating that a donation of an immovable property
must be in a public instrument (Art. 749 C.C.), or requiring that a will be in writing (Art. 804 C.C.), or that sale
of conjugal property must be with the consent of both spouses (Art. 124 F.C.) are examples of mandatory

4
laws. On the other hand, a law that prohibits the making of a joint will by two or more persons (Art. 818 C.C.),
or prohibiting the making of donations to certain persons (Art. 739 C.C.) are prohibitory laws.

2. A law which leave it optional with the department or officer to which it is addressed to obey or not is
merely directory, and the violation of such law does not render the act void or illegal. Also, it is a well settled
doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be
merely directory, so that non-compliance with them does not invalidate the judgment on the theory that if the
statute had intended such result it would have clearly indicated it (Marcos vs. COMELEC, et al., 248 SCRA
300),

3. Although violations of mandatory or prohibitory laws will render the act void, there are instances
where the law itself authorizes their validity (Art. 5, Civil Code). Among these exceptional cases are:
a.) When the law makes the act not void but merely voidable.
Ex. Consent of a party to marriage must be given freely and voluntarily, however, if the consent is vitiated by
fraud or intimidation, the marriage is not null and void, but only voidable (Art. 45 (3) Family Code).
b.) When the law makes the act valid, but the wrongdoer is subject to liability.
Ex. A widow is not allowed to remarry within 300 days from the death of her husband (Art. 351 RPC).
However, if she violates this, her marriage would still be valid for as long as she secured the required marriage
license, but without prejudice to her criminal liability under the law.
c.) When the law itself makes the act valid when it should have been void.
Ex. Gambling is prohibited by law. However, there are certain forms of gambling which the law allows, ie:
Lotto, Sweepstakes, Jai-Alai, horse races etc.
d.) When the law makes the act void, but recognizes some legal effects flowing therefrom.
Ex. Marriage with a party who is psychologically incapacitated to comply with the essential marital obligation is
void. However, children born out of such marriage is considered legitimate (Art. 54, Family Code).

F. Waiver of Rights:

Art. 6 – Rights may be waived, unless the waiver is contrary to

law, public order, public policy, morals, or good customs, or prejudicial
to a third person with a right recognized by law.

NOTES

1. As a general rule, rights may be waived. The exceptions are:

a.)When the waiver is contrary to law, public order, public policy, morals, or
good customs.
b.)When the waiver is prejudicial to a third person with a right recognized by
law.

2. Waiver is the intentional relinquishment of a known right. The person waiving his right must be
capacitated to make the waiver. The right he is waiving must already be in existence at the time the waiver is
made. Thus, one cannot waive future inheritance.

5
 3. The following are examples of rights that cannot be renounced validly:
a.) Natural right to life
b.) Rights which did not exist yet
c.) Renunciation of rights which would violate public policy, i.e. right to repurchase homestead,
waiver in advance of right to be heard in court, waiver of a scholar’s right to transfer to
another school (Cui vs. Arellano University, L-15127, May 30, 1961).

4. The agreement of the husband and wife who have already separated de facto that they are free to
look for another partner and that they waived their right to sue each other of concubinage or adultery is null
and void because it is against public policy.

5. A contract of sale with right to repurchase containing a prohibition against selling the property to
any other person except the heirs of the vendor a retro is null and void because it is contrary to law. It
amounts to a perpetual restriction on the right of ownership. What was declared void, however, was the
stipulation prohibiting the sale to any other person, not the whole contract itself). . (Leal vs. IAC, GR.NO. L-
65425, Nov. 5, 1986

6. Waiver of future inheritance is void because it is contrary to law. One cannot waive a right that
does not exist yet. If the inheritance has already accrued, the waiver may be valid except when it is done to
prejudice a creditor.. Hence, under Article 1052 of the Civil Code, if an heir repudiates an inheritance to the
prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of
the heir. The acceptance is to the extent of their credit.

7. Political rights cannot be subject of waiver. An agreement between a candidate for Mayor and a
candidate for Vice-Mayor to split the former’s term of office with the latter in order to prevent the latter from
running against him is null and void by reason of public policy. The Constitution says that a public office is a
public trust. It is not a property. It is beyond the commerce of man, hence, it cannot be the object of a
contract, otherwise, it is void ab initio.

G. Repeal of Laws:

Art. 7 – Laws are repealed only by subsequent one, and their

violation or non-observance shall not be excused by disuse, or custom
or practice to the contrary.

When the courts declare a law to be inconsistent with the

Constitution, the former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be

valid only when they are not contrary to the laws or the Constitution.

NOTES

1. Laws are repealed either EXPRESSLY or IMPLIEDLY. An express repeal of a law occurs when the
legislature passes a new law which expressly declares the repeal of an old or existing law. The repeal is
literally declared by the new law in specific terms, as where particular laws and provisions are named and
6
identified and declared to be repealed. An implied repeal takes place when a new law contains provisions
contrary to or inconsistent with those of a former without expressly repealing them. Implied repeals are not
looked upon with favor (U.S. vs. Palacio, 33 Phil. 208). If both statutes can stand together, or their provisions
can be reconciled, then there is no repeal (Lichauco vs. Apostol, 44 Phil. 138)

2. If the law provides for a period within which it will be effective, then, the lapse of the period stated
by law will cause the death of such law without a need of a repeal. This is called a “Lapse of Law”. An example
of this is the law granting emergency power to the President or the annual appropriation law.

3. The fact that the law has not been used anymore or that it has been violated more often, does not
mean that the law is already repealed.

4. When a law which expressly repeals a prior law is itself repealed, the law first repealed shall not be
thereby revived unless expressly so provided. However, when a law which repeals a prior law, not expressly
but by implication, is itself repealed, the repeal of the repealing law revives the prior law, unless the language
of the repealing statute provides otherwise (U.S. vs. Soliman, 36 Phil.5).

5. The Constitution is the supreme, the basic, and the fundamental law of the land. Thus, in case of
conflict between the constitution and the statute, the constitution will naturally prevail. A statute that conflicts
with the constitution will be declared unconstitutional. However, in deciding the constitutionality of a statute,
every presumption favors the validity of the same and whenever possible, statutes should be given a meaning
that will not bring in conflict with the Constitution.

6. If only a portion of the statute is in conflict with the constitution, the courts may declare partial
unconstitutionality of the statute but only when the said portion is separable from the other provisions of the
statute. The general rule is that where part of a statute is void because it is repugnant to the constitution,
while the other part is valid, that valid portion, if separable from the invalid, may stand and be enforced. The
valid portion must be so far independent of the invalid portion that it could stand by itself without
it.

7. In hierarchy of laws, the constitution is supreme, followed by laws or statutes enacted by congress,
then by administrative or executive acts, orders and regulations promulgated by administrative agencies. A
statute or law enacted by Congress is higher than an administrative order or regulation, thus, in case of
conflict the statute prevails. Rules and Regulations as well as administrative or executive acts violative of the
law or the constitution are invalid. An administrative agency cannot amend an act of Congress.

8. A law can be declared unconstitutional if: (a.) Its enactment is not within the legislative powers of
Congress, (b.) Arbitrary methods may have been established, and (c.) The purpose or effect violates the
Constitution or its basic principles (See Bar Flunkers Law, In re: Cunanan case).

H. Are Judicial Decisions Laws:

Art. 8 – Judicial decisions applying or interpreting the laws or

the Constitution shall form part of the legal system of the Philippines.

7
NOTES

1. Decisions of the Supreme Court applying or interpreting the laws or the Constitution forms part of
our legal system. However, they are still not considered laws because if this were so, the courts would be
allowed to legislate contrary to the principle of separation of powers. Judicial decisions, though not laws, are
evidence, however, of what the law mean, and this is why they are part of the legal system of our country.
The interpretation placed upon written laws by the competent court has the force and effect of a law. It is
considered part of the law as of the date the law was originally passed, since the Court’s construction merely
established the contemporaneous legislative intent that the interpreted law desired to effectuate.

2. Only decisions of the Supreme Court establish jurisprudence or doctrines in the Philippines (Miranda,
et al. Vs. Imperial, et al. 77 Phil. 1066) and therefore part of our legal system. Thus, decisions of the
subordinate courts are only persuasive in nature, and can have no mandatory effect. However, this rule does
not militate against the fact that a conclusion or pronouncement of the Court of Appeals which covers a point
of law still undecided in the Philippines may still serve as a judicial guide to the inferior courts.

3. When a doctrine of the Supreme Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had relied on the old doctrine and acted
on the faith thereof. Thus, where the accused was appointed as a secret confidential agent and authorized to
possess a firearm in 1964 pursuant to a prevailing doctrine enunciated by the Supreme Court in two previous
cases, under which no criminal liability is attached despite absence of a permit, the Supreme Court acquitted
the accused of the crime of illegal possession of firearm. This is so even if the said doctrine enunciated in the
two previous cases were subsequently reversed by the Court in 1967. The doctrine laid down by the Supreme
Court in 1967 abandoning the old doctrine should be prospectively applied and should not prejudice persons
who relied on the overturned doctrine while the same were still controlling ( People vs. Jabinal, 55 SCRA 607).
Also, in the case of Apiag vs. Cantero, A.M. No. MTJ 95-1070, 79 SCAD 327, the Supreme Court ruled that a
judge who entered into a second marriage in 1986 without having his previous marriage judicially declared
void first cannot be held administratively liable for immorality because at the time of his second marriage the
prevailing doctrine was still that of Odayat vs. Amante, 77 SCRA 338, and Tolentino vs. Paras, 122 SCRA 525),
where judicial declaration of nullity is not needed in a void marriage. The doctrine in the case of Wiegel vs.
Sempio Diy, 143 SCRA 499) which declares the need for a judicial declaration of nullity of the previous
marriage was not yet promulgated at the time the judge contracted the second marriage.

4. Judicial decisions may be abrogated by (a.) Contrary ruling by the Supreme Court itself; and (b.) By
corrective legislative acts of Congress. However, be it noted that Congress cannot alter a Supreme Court
interpretation of a constitutional provision, for this would be an unwarranted assumption of judicial power
(Endencia, et al.vs. David, 49 O.G. 4822).

I. Duty of Judge if Law is silent:

Art. 9 – No Judge or court shall decline to render judgment by

reason of the silence, obscurity or insufficiency of the laws.
8
NOTES

1 .The judge is duty bound to render judgment even if the law is silent or obscure. Under the old Civil
Code, when there is no law exactly applicable to the point in controversy, the custom of the place shall be
applied, and in default thereof, the general principles of law (Art. 6 par. 2, old C.C.). This provision was no
longer reproduced in the new Civil Code, so, the judge can apply any rule for as long as he consider it fair and
just. The judge may apply customs and traditions, decisions of foreign court by analogy, opinions of highly
qualified writers and professors, rules on statutory construction, or principles laid down in analogous
circumstances.

2. The role of the judiciary is to apply or interpret the law. It is not supposed to legislate because that
power belongs to the legislative branch of government. However, in the case of Floresca vs. Philex Mining
Corporation, 136 SCRA 136, the Supreme Court ruled that, while there is indeed the existence of the concept
that the courts cannot engage in judicial legislation, that myth has been exploded by Article 9 of the new Civil
Code, which provides that “no judge or court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the laws”. Hence, even the legislators themselves recognizes, through Article 9,
that there are instances where the judiciary must legislate to fill in the gaps in the law.

J. Interpretation of Laws :

Art. 10 – In case of doubt in the interpretation and application of

laws, it is presumed that the lawmaking body intended right and
justice to prevail.

NOTES

1. The primary function of the judiciary is to apply the law. Where the law is clear, it must be applied
according to its unambiguous provision. Courts will interpret the law only when its provisions are ambiguous or
vague. In interpreting the law, courts must always bear in mind that the lawmaking body who made the law
intended right and justice to prevail (Art. 10 C.C.).

2. When the law has been clearly worded, there is no room for interpretation. Immediately, application
of the law must be made unless consequences or oppression would arise. If there are two possible
interpretation of a law, that which will achieve the ends desired by Congress should be adopted (U.S. vs.
Navarro, 19 Phil. 134).

3. Courts should not apply equity, if equity will not serve the ends of justice. One cannot invoke equity
as a ground for reopening a case if an express provision of law exists under which the remedy can be invoked.
Equity follows the law. There are instances, when a court of equity gives a remedy where the law gives none;
but if the law gives a particular remedy, and that remedy is bounded and circumscribed by particular rules, it
would be improper for the court to take it up where the law leaves it and to extend it further than the law
allows. Equity aids the vigilant, not those who slumber on their rights (Phil. Rabbit Bus Lines, Inc. vs. Arciaga,
G.R. No. L-29701, March 16, 1987).

K. Customs:
9
 Art. 11 – Customs which are contrary to law, public order or
public policy shall not be countenanced.

Art. 12 – A custom must be proved as a fact, according to the

rules of evidence.

NOTES

1. Custom is defined as a rule of conduct formed by repetition of acts; uniformly observed and
practiced as a social rule, legally binding and obligatory. A custom must be proved as a fact according to the
rules of evidence. Courts take no judicial notice of custom. A local custom can be a source of right but it
cannot be considered by a court of justice unless such custom is properly established by competent evidence
like any other fact. Custom which are contrary to law, public order or public policy shall not be countenanced.
Custom can only be applied by the court as a source of right in the absence of applicable law. Custom, even if
proven, cannot prevail over a statutory rule or even a legal rule enunciated by the Supreme Court.

L. Computation of periods:

Art. 13 – When the law speak of years, months, days or nights, it

shall be understood that years are of three hundred sixty-five days
each; months, of thirty days; days, of twenty four hours; and nights
from sunset to sunrise.

NOTES

1 .If months are designated by their name, they shall be computed by the number of days which they
respectively have.

2. If the law provides for a prescriptive period of say ten (10) years for bringing an action in court, the
period shall start to run from the time the right of action accrues and the last day shall be the 3,650th day after
the said date. Each year must consist of 365 days. Thus, if the ten year period starts to run on December 21,
1955, it is not correct to say that the period will prescribe on December 21, 1965 because 1960 and 1964,
being leap years, the month of February in both had 29 days, so that ten (10) years of 365 days each from
December 21, 1955 falls on December 19, 1965 and not on December 21, 1965 (National Marketing
Corporation vs. Tecson, 29 SCRA 70).

3. In computing a period, the first day shall be excluded, and the last day included. Thus, if the law
provides that you have fifteen (15) days to file your answer to the complaint, and you received the complaint
on January 5, 2009, then you have until January 20, 2009 to file your answer. You exclude the day you
received the complaint (Jan. 5) and start counting the 15 days the next day.

4. When the last day of the period is a Sunday or a Legal Holiday, is the act due that day or the
following day? The answer depends on the source of the obligation. If the source of the obligation is an
ordinary contract, the general rule is that an act is due even if the last day is a Sunday or a Legal Holiday,
unless there is an agreement to the contrary. This is because obligations arising from contracts have the force
10
of law between the contracting parties (Art. 1159 of the Civil Code). However, if the period refers to the one
prescribed by the Rules of Court, by an order of the court, or by any applicable statute, the last day will be the
day after Sunday or legal holiday.

M. Theories of Territoriality:

Art. 14 – Penal laws and those of public security and safety shall
be obligatory upon all who live or sojourn in Philippine territory,
subject to the principles of public international law and to treaty
stipulations.

NOTES

1 .The theory of territoriality mean that our penal laws and those of public security and safety shall
apply to all those inside the Philippine territory, whether one is a citizen of the Philippines or a foreigner. This
rule will apply even if the foreigner is merely sojourning in Philippine territory. So, if a crime is committed
inside Philippine territory, Philippine law governs even if the perpetrator is not a citizen of the Philippines.

2. The exception to this rule is when the foreigner is exempted from the coverage of our penal laws
because of the principle of public international law or by treaty stipulations.

3. Under the 1961 Vienna Convention on Diplomatic Relations of which the Philippines is a signatory
state, diplomatic agents are immune from criminal jurisdiction of the receiving state (Art. 31 Vienna
Convention). A diplomatic agent is the head of the mission (ie. Ambassador or a member of the diplomatic
staff of the mission).

4. A foreigner may also be exempted from the coverage of our penal laws if there is a treaty between
his country and the Philippines exempting him from the jurisdiction of our courts. One good example of this
rule was the former Philippine – U.S. Military Bases Agreement.

N. Nationality Theory:

Art. 15 – Laws relating to family rights and duties, or to status,

condition and legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad.

NOTES

1. Under the Nationality Theory, a Filipino, wherever he may go, is governed by the laws of the
Philippines relating to family rights and duties, status, condition and legal capacity. Hence, a Filipino who is
married here in the Philippines shall continue to be married wherever he may go. A divorce decree obtained by
a Filipino spouse in a foreign country does not dissolve his marriage here in the Philippines because we do not
recognize divorce as a rule.
11
 2. The Nationality Theory applies not only to Filipinos living abroad but also to foreigners who are
living here in the Philippines. Thus, the legal capacity of a foreigner to contract marriage here in the
Philippines is primarily governed by his national law and not by the Philippine law.

O. Doctrine of Lex Rei Sitae:

Art. 16 – Real property as well as personal property is subject to

the law of the country where it is situated.

However, intestate and testamentary successions, both with

respect to the order of succession and to the amount of successional
rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.

NOTES

1. Lex Rei Sitae literally means the law of the place where the real property is located. Under this
doctrine, real properties as well as personal properties are governed by the law of the country where the
properties are located.

2. Under the old Civil Code, personal properties are governed by the law of the nation of the owner.
Personal property follows the national or domiciliary law of the owner, under the doctrine of mobilia sequuntur
personam. Now the doctrine of Lex Rei Sitae is applied to both real and personal property. So, shares of stocks
in a corporation owned by a foreigner, even if a personal property, can be taxed in the Philippines so long as
the property is located in this country (Wells Fargo Bank vs. Collector of Internal Revenue, 70 Phil. 325).
Dividends from the shares of stocks of Philippine corporations may also be taxed even if the stockholder do
not reside here (Manila Gas Corp. vs. Col., 62 Phil. 895). Bank deposits in the Philippines even if owned by a
foreigner may be subjected to attachment proceedings (Asiatic Petroleum Co. vs. Co Quico, 40 O.G. 132)

3. One important exception to the Lex Situs rule is successional rights. Under the second paragraph of
Article 16, it is the national law of the decedent that governs the following: (a.) Order of succession, (b.)
Amount of successional rights, and (c.) Intrinsic validity of testamentary provisions. This rule applies
irregardless of the nature of the property and where it may be found.

4. A foreigner residing in the Philippines cannot state in his last will and testament that his properties
shall be disposed of in accordance with Philippine law as it is illegal and void under Art.16 of the Civil Code. It
is his national law (Turkish law) that will govern the disposition of his estate and not the Philippine law
(Minciano vs. Brimo, 50 Phil. 867).

5. Our court, in settling the estate of a deceased foreigner, must apply his national law. But, if the
national law of the said decedent refers the problem back to us by stating that it is the law of the country
where the decedent is domiciled (domiciliary theory), then our court has no other recourse but to accept the
referral and apply our law. This is known as the “Renvoi Problem”. If there are two rules in the national law
12
of the decedent that could be applied, one is an internal law while the other is a conflict rule, the latter should
apply ( In the matter of Testate Estate of the Deceased Edward E. Christensen, G.R. No. L-16759, January 31,
1963).

6. A foreigner , both a citizen and resident of Texas, U.S.A., executed two wills before his death, one to
govern his properties in the United States while the other to govern his properties in the Philippines. In both
wills he did not give anything to his recognized illegitimate children in the Philippines. Under Texas law, there
are no compulsory heirs and therefore no legitimes. The illegitimate children opposed the will because they
were not given a share in his estate. Are they entitled to legitimes? The Supreme Court answered this question
in the negative in the case of Testate Estate of Amos Bellis, et al. vs. Edward A. Bellis, 20 SCRA 358. The
illegitimate children are not entitled to a share in the estate of the decedent because they are not entitled to it
under the national law of the decedent. The renvoi doctrine cannot be applied here because the decedent is
both a citizen and resident of Texas, U.S.A. unlike in the Christensen case where the decedent is a resident of
the Philippines at the time of his death.

P. Lex Loci Celebraciones:

Art. 17 – The forms and solemnities of contracts, wills, and other

public instruments shall be governed by the laws of the country in
which they are executed.

When the acts referred to are executed before the diplomatic or

consular officials of the Republic of the Philippines in a foreign country,
the solemnities established by Philippine laws shall be observed in
their execution.

Prohibitive laws concerning persons, their acts or property, and

those which have for their object public order, public policy and good
customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a
foreign country.

NOTES

1. The law of the place where the contract was executed determines the validity of the contract. This
rule, however, applies only to the extrinsic validity of the contract. Thus, if a document is executed in a
country where notarization by a lawyer is not required, then such document will be recognized as valid here in
the Philippines because the formalities of the document is governed by the law of the place where it was
executed (German and Co. vs. Donaldson, Sim and Co., 1 Phil. 63)
.
2. Even if the act be done abroad, still if it is executed before Philippine diplomatic and consular offices,
the solemnities of Philippine law shall be observed because these offices are extension of Philippine territory.
This is called the principle of exterritoriality.

13
 3. Under the third paragraph of this Article, our prohibitive laws shall not be rendered ineffective by
laws of foreign countries or judgment of a foreign court. Thus, a marriage between two Filipinos validly
solemnized in the Philippines cannot be rendered ineffective by the judgment of a foreign court granting
divorce in favour of one spouse. A divorce decree obtained by a Filipino spouse against the other spouse is null
and void here as it violates not only Article 15 but also Article 17 par. 3 of the Civil Code of the Philippines. The
only instance where a divorce decree obtained abroad may be recognized in the Philippines is that one
referred to in Article 26 par. 2 of the Family Code.

Q. Suppletory nature of Civil Code:

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.

NOTES

1. In case of conflict between the Code of Commerce or a special law and the Civil Code, the former
shall generally prevail because they are special laws as against the Civil Code which is a general law, except if
otherwise provided for by the Civil Code (Leyte A. And M. Oil o. Vs. Block, 52 Phil. 429)
.
2. The general rule is that in case of conflict between a special law and a general law, the former
prevails. There are instances, however, where the Civil Code expressly declare itself superior to special laws
and these are in Common carriers (Art. 1766, Civil Code) and Insolvency (Art. 2237, Civil Code).

3. When an application for life annuity was accepted by the insurance company, and the latter
intended to mail its acceptance, but never actually mailed the same and so the applicant never received the
letter of acceptance until he died, the contract was never perfected. Here, the Insurance Code is silent as to
when the contract is deemed perfected, so, the Court applied the provision of the Civil Code on perfection of
contract which requires knowledge by the offeror of the acceptance (Art. 1262 C.C.). In case of deficiency of
the Code of Commerce, the Civil Code will apply suppletorily.

4. However, not all deficiency in the Carriage of Goods by Sea Act can be supplied by the Civil Code. In
the case of Dole Philippines Inc. vs. Maritime Co. of the Philippines, 148 SCRA 119, the Supreme Court
rejected the contention of the petitioner that the one- year prescriptive period for making a claim for loss or
damage under Sec. 3, paragraph 6 of the Carriage of Goods by Sea Act was tolled by petitioner’s extrajudicial
demand pursuant to Article 1155 of the Civil Code which should be applied suppletorily. The claim referred to
in the Carriage of Goods by Sea Act is a formal or judicial claim and not just a mere extrajudicial demand. The
general provisions of the Civil Code (Art. 1155) cannot be made to apply, as such application would have the
effect of extending the one-year period of prescription fixed in the law. It is desirable that matters affecting
transportation of goods by sea be decided in as short a time possible; the application of the provision of Article
1155 of the new Civil Code would unnecessarily extend the period and permit delays in the settlement of
questions affecting transportation, contrary to the clear intent and purpose of the law.

Chapter II
14
 LAW ON HUMAN RELATIONS

A. Principle of Abuse of Rights:

Art. 19 – Every person must, in the exercise of his rights and in

the performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.

NOTES

1. The chapter on human relation was formulated to present some basic principles that are to be
observed for the rightful relationship between human beings and the stability of social order. It indicates
certain norms that spring from the fountain of good conscience. A person has the right to exercise his rights,
but in so doing, he must be mindful of the rights of other people. Hence, if he exercises his right but in the
process causes damage to another, he can be liable for damages.

2. Article 19 lays down the basic norms and standards to be observed by everyone in the exercise of
their rights or the performance of their duties. These standards are: (1.) act with justice, (2.) give everyone
his due, and (3.) observe honesty and good faith. The Civil Code, therefore, recognizes certain limitation on
the exercise of one’s right; and these are the standards set forth in Article 19. Thus, even if one is merely
exercising his right under the law, his action may be a source of liability. When a right is exercised in a manner
which failed to conform with the norms enshrined in Article 19 and results in damage to another, a legal
wrong is thereby committed for which the wrongdoer must be held responsible.

3. A prevailing party in the Ejectment case who demolished the house of the defendant on the basis of
the writ of execution duly issued by the court may still be held liable for damages if it did not give the
defendant sufficient time to remove his personal belongings, which in the process were lost or destroyed, in
the course of the demolition. The prevailing party failed to observe the basic norms in Article 19
when it immediately implemented the writ of demolition, hence, liable for damages (Albetz
Investments, Inc. vs. Court of Appeals, G.R. No. L-32570, Feb. 28, 1977)
.
4. Even if respondent failed to pay his electric bills on time, MERALCO could not cut his
electric supply without prior notice. The law requires at least 48-hour notice before disconnection of
electric supply can be made by Meralco. Failure to provide said prior written notice amounts to tort.
Meralco is liable for damages under Article 19 of the Civil Code (Meralco vs. Court of Appeals, G.R.
No. L-39019, Jan. 22, 1988). However, when there is meter tampering committed by the consumer, Meralco
may immediately disconnect electric service on the ground of alleged meter tampering, but only if the
discovery of the cause is personally witnessed and attested to by an officer of the law or a duly authorized
representative of the Energy Regulatory Board. If there is no government representative, the prima facie
authority to disconnect granted to Meralco by R.A. 7832 cannot apply. The presence of government agents
who may authorize immediate disconnection goes into the essence of due process. Meralco cannot be the
prosecutor and judge in imposing the penalty of disconnection due to alleged meter tampering ( Sps.
Quisumbing vs. Meralco, G.R. No. 142943, April 3, 2002).
.
15
 5. A co-creditor who did not observe honesty and good faith in its dealings with the other creditors in
an Insolvency proceeding can be held liable for damages if its action causes damage to them (Velayo vs. Shell
Co. of the Phil., G.R. No. L-7817, Oct. 31, 1956)
.
6. The elements of an abuse of rights under Article 19 are the following: (a.) There is a legal right or
duty; (2.) which is exercised in bad faith; (3.) for the sole intent of prejudicing or injuring another ( Albenson
Enterprises Corp. vs. C.A., 217 SCRA 16)

7. While the Board of Directors, under the Articles of Incorporation of a non-profit and non-stock
membership club, may have the right to approve or disapprove an application for proprietary membership, the
right should not be exercised arbitrarily. A right, though by itself legal because it is recognized or granted by
law as such, may nevertheless become the source of some illegality – when a right is exercised in a manner
which does not conform with the norms enshrined in Article 19 of the Civil Code and results in damage to
another, a legal wrong is thereby committed for which the wrongdoer must be held responsible ( Cebu
Country Club, Inc. vs. Elizagaque, 542 SCRA 65).

B. Damages for willful or negligent acts:

Art. 20 – Every person who, contrary to law, wilfully or

negligently causes damage to another, shall indemnify the latter for
the same.

NOTES

1. This Article punishes illegal acts whether done wilfully or negligently. If an act is in violation of a law,
and it causes damage or injury to another, the perpetrator is always answerable for damages even if he did
not do it intentionally.

2. A negligent act causing damage to another is always a source for damages. Negligence has been
defined as the failure to observe for the protection of the interests of another person that degree of care,
precaution and vigilance which the circumstances greatly demand, whereby such other person suffers injury.

3. Even if someone is damaged by the act of another, he does not necessarily have the right to be
indemnified if he could not show that a right of his has been impaired (Felipe vs. Leuterio, et al. G.R. No. L-
4606, May 30, 1955).

4.- A school can be held liable for actual damages due to its negligence in including a student in the list
of candidates for graduation when in fact he could not graduate as said student failed in the removal exam.
However, the school cannot be held liable for moral damages as the subject student did not suffer shock,
trauma and pain when he was informed that he could not graduate. At the very least, it behoved on the
student to verify for himself whether he has completed all necessary requirements to be eligible for graduation
and the bar examination (University of the East vs. Jader, G.R. No. 132344, February 7, 2000).

C. Not contrary to law but to Morals:

16
 Art. 21 – Any person who wilfully causes loss or injury to another in
a manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damages.

NOTES
1.To distinguish this Article from Article 20, the act defined in the preceeding article is contrary to law
and it is done either wilfully or negligently. In this article, the act is not necessarily against the law but it is
contrary to morals, good customs and public policy. The act here must be done wilfully, unlike in the
preceeding article where the act may be done negligently.

2. Article 21 was intended to expand the concept of torts in this jurisdiction by granting
adequate legal remedy for the untold number of moral wrong which is impossible for human
foresight to specifically provide in the statutes (PNB vs. C.A., 83 SCRA 247). It was designed to
fill in the “countless gaps in the statutes, which leave so many victims of moral wrongs helpless,
even though they have actually suffered material and moral injury”(Report of the Code
Commission, p.39).

3. The example given by the Code Commission is as follows: A seduces the 19-year old daughter of X.
A’s promise to marry the girl has not been made or cannot be proved. The girl becomes pregnant. Under the
present criminal laws, there is no crime as the girl is already above 18 years of age. No civil action for breach
of promise to marry can also be filed. Under Article 21, she and her parents would have the right to bring an
action for damages against A.

4. A man who made a promise to marry a woman but reneged on his promise cannot be sued for
breach of promise to marry in order to compel him to make good his promise. The omission in the Civil Code
of the proposed chapter on Breach of Promise to Marry is a clear manifestation of legislative intent not to
sanction as such, suits for breach of promise to marry, otherwise, many innocent men may become victims of
designing and unscrupulous women.

5. A married man who enticed a young woman to elope with him, taking advantage of his closeness to
the family of the woman is violative of basic rule on human relation. His premeditated act of frequently
visiting the woman in the guise of teaching her how to pray the rosary, but thru an ingenious scheme or
trickery, seduced the latter to the extent of making the woman fall in love with him has committed an injury to
the woman’s family in a manner contrary to morals, good customs and public policy as contemplated in Article
21 of the New Civil Code (Cecilio Pe vs. Alfonso Pe, G.R. No. L-17396, May 30, 1962, 5 SCRA 200).

6. Mere breach of promise to marry is not an actionable wrong, but to formally set a wedding and go
through all the preparations therefore, only to walk out of it when the marriage is about to be solemnized is
quite different. Obviously, it is contrary to good customs and morals. The defendant must be held liable for
damages pursuant to Article 21 of the Civil Code (Wassmer vs. Velez, G.R. No. L-20089, Dec. 26, 1964)
.
7. Generally, only actual damages can be recovered by the woman. However, if the breach of promise
to marry is coupled with criminal or moral seduction, moral damages may be awarded. A man who made a

17
 promise to marry in order to succeed in having carnal knowledge with the woman, and did not make good his
promise after succeeding in his evil design, is liable for moral damages.

8. In Hermosisima vs. Court of Appeals, et al., G.R. No. L-14628, Sept. 30, 1960, the Supreme Court
ruled that there can be no recovery of moral damages in a breach of promise to marry, except when there is
moral seduction committed by the man. In this case, however, it was the woman who virtually seduced the
man, by surrendering herself to him because she, a woman ten years older, was overwhelmed by her love for
him.

9. Even if there was no carnal knowledge, a man may still be held liable for moral damages if the
breach of promise to marry was done deliberately or intentionally in his desire to inflict loss or injury to the
woman. Thus, a man who deliberately fails to appear at the altar during the wedding day simply because he
intended to embarrass or humiliate the woman is liable not only to moral but also exemplary damages
(Victorino vs. Nora, C.A. No. 13158-R, Oct. 26, 1955).

D. Unjust Enrichment:
Art. 22 – Every person who through an act or performance by
another, or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal ground,
shall return the same to him.

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 for indemnity if through the act or event he was
benefited.

NOTES

1 .No person should unjustly enrich himself at the expense of another (Nemo cum alterius detriment
protest). This Roman Law principle is embodied in Article 22 and also in Articles 2142 to 2175 (Quasi-
Contracts) of the New Civil Code. This is a basic principle in law that has already been existing in our legal
system long before the Civil Code took effect.

2. If one pays another by mistake, the latter is duty bound to return it under the principle of “Solutio
Indebiti” found in the chapter on Quasi-Contract. If the payment is done without mistake then it is “accion en
rem verso”. The difference between accion en rem verso and solutio indebiti is that in the former the payment
was done not by mistake while in the latter it is essential that there be mistake in payment. Both, however,
involves unjust payment.

3. There is no unjust enrichment when the person who will benefit has a valid claim to such benefit
(Benguet Corporation vs. DENR – Mines Adjudication Board, 545 SCRA 196). The fundamental doctrine of
unjust enrichment is the transfer of value without just cause or consideration (Almocera vs. Ong, 546 SCRA
164). There is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a

18
 person retains money or property of another against the fundamental principles of justice, equity and good
conscience (Allied Banking Corporation vs. Lim Sio Wan, 549 SCRA 504; Zosa vs. Estrella, 572 SCRA 428).

4. Article 23 is also anchored on the principle of unjust enrichment. The example given by the Code
Commission is the case of Mr. A, a farmer whose cattle were driven to the cultivated highland belonging to B
because of a flood. A’s cattle were saved, but B’s crop were destroyed and eaten up by the cattle. Although A
was not at fault, he was benefited. It is but right and equitable that he should indemnify B.

E. Courts should protect the underdog:

Art. 24 – In all contractual, property or other relations, when one of

the parties is at a disadvantage on account of his moral dependence,
ignorance, indigence, mental weakness, tender age or other handicap,
the courts must be vigilant for his protection.

1. This provision finds meaning in the principle of “Parens Patria” which literally mean father or
parents of his country. The phrase refers to the sovereign power of the state in safeguarding the rights of
person under disability, such as the insane and the incompetent. The state as parens patriae is under the
obligation to minimize the risk to those who because of their minority, are as yet unable to take care of
themselves fully (People vs. Baylon, L-35785, May 29, 1974).

2. The meaning of the phrase “the courts must be vigilant for his protection” is that in case of doubt
the courts must resolve the case in favor of the underdog. Thus, in labor contracts, doubts are resolved in
favour of the labourers as they are usually the disadvantaged party. According to the Commission, Article 24,
protects among others the labouring class, many members of which face obvious disadvantages (Report Code
Commission, p.16).

F. Prohibition on thoughtless extravagance:

Art. 25 – Thoughtless extravagance in expenses for pleasure or

display during acute public want or emergency may be stopped by
order of the courts at the instance of any government or private
charitable institution.

NOTES

1. Only charitable institution, whether government or private, may bring the action in court to stop or
prevent thoughtless extravagance during acute public want. The action to file is for Injunction. The reason for
this rule is to avoid chaos in the society as the thoughtless extravagance during emergency may incite the
passion of those who cannot afford to spend.

G. Respect for Dignity and Privacy:

19
 Art. 26 – Every person shall respect the dignity, personality, privacy
and peace of mind of his neighbours and other persons. The following
and similar acts, though they may not constitute a criminal offense,
shall produce a cause of action for damages, prevention and other
relief:

(1.) Prying into the privacy of another’s residence;

(2.) Meddling with or disturbing the private life or family relations of
another;
(3.) Intriguing to cause another to be alienated from his friends;
(4.) Vexing or humiliating another on account of his religious beliefs,
lowly station in life, place of birth, physical defects, or other personal
condition.

1. According to the Code Commission, this article is intended to enhance human dignity and
personality. Social equality is not sought, but due regard for decency and propriety.
The remedy of the offended party is to file an action for damages, prevention (Injunction), or any other relief.

2. This Article emphasizes that a person’s dignity, personality, privacy and peace of mind must be
respected. The present laws, whether civil or criminal, do not adequately cope with the interferences and
vexations mentioned in Article 26, thus, the need for the remedy of an action for damages under the said law.

H. Refusal to perform official duty:

Art. 27 – Any person suffering material or moral loss because a

public servant or employee refuses or neglects, without just cause,
to perform his official duty may file an action for damages and other
relief against the latter, without prejudice to any disciplinary
administrative action that may be taken.

NOTES

1. This Article is intended for public officials or employees who refuses or neglects to perform their
duties which resulted to damage or prejudice of another person. The public official or employee concerned can
be held answerable for damages if a person suffers damage by reason of his inaction.

2. A President of a State College who in bad faith refuses to graduate a student with honors, an award
which the student rightfully deserved, despite the intervention and directive of the Office of the Bureau of
Public Schools, can be held liable for damages under Article 27 of the Civil Code (Ledesma vs. Court of
Appeals, 160 SCRA 449).

I. Damages for Unfair Competition:

20
 Art. 28 – Unfair competition in agricultural, commercial or industrial
enterprises or in labor through the use of force, intimidation, deceit,
machination or any other unjust, oppressive or high-handed method
shall give rise to a right of action by the person who thereby suffers
damages.

NOTES

1. This Article is intended to lay down a general principle outlawing unfair competition, both among
enterprises and among labourers. Unfair competition must be expressly denounced in this chapter because
same tends to undermine free enterprise. While competition is necessary in free enterprise, it must not be
unfair (Memorandum of the Code Commission, L.J. Aug. 31, 1953). It is necessary in a system of free
enterprise. Democracy becomes a veritable mockery if any person or group of persons by any unjust or high-
handed method may deprive others of a fair chance to engage in business or to earn a living (Report of the
Code Commission, p.31).

J. Dependent and Independent Civil Actions:

Art. 29 - When the accused in a criminal prosecution is acquitted on

the ground that his guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same act or omission may be
instituted. Such action requires only a preponderance of evidence.
Upon motion of the defendant, the court may require the plaintiff to
file a bond to answer for damages in case the complaint should be
found to be malicious.

If in a criminal case the judgment of acquittal is based upon

reasonable doubt, the court shall so declare. In the absence of any
declaration to that effect, it may be inferred from the text of the
decision whether or not the acquittal is due to that ground.

Art. 30 – When a separate civil action is brought to demand civil

liability arising from a criminal offense, and no criminal proceedings
are instituted during the pendency of the civil action, a preponderance
of evidence shall likewise be sufficient to prove the act complained of.

Art. 31 – When the civil action is based on an obligation not arising

from the act or omission complained of as a felony, such civil action
may proceed independently of the criminal proceedings and regardless
of the result of the latter.

Art. 32 – Any public officer or employee, or any private individual,

who directly or indirectly obstructs, defeats, violates or in any manner

21
 impedes or impairs any of the following rights and liberties of another
person shall be liable to the latter for damages:

(1.) Freedom of religion;

(2.) Freedom of speech;
(3.) Freedom to write for the press or to maintain a periodical
publication;
(4.) Freedom from arbitrary or illegal detention;
(5.) Freedom of suffrage;
(6.) The right against deprivation of property without due process of
law;
(7.) The right to a just compensation when private property is taken
for public use;
(8.) The right to the equal protection of the laws;
(9.) The right to be secure in one’s person, house, paper, and effects
against unreasonable searches and seizures;
(10.) The liberty of abode and of changing the same;
(11.) The privacy of communication and correspondence;
(12.) The right to become a member of associations or societies for
purposes not contrary to law;
(13.) The right to take part in a peaceable assembly to petition the
government for redress or grievances;
(14.) The right to be free from involuntary servitude in any form;
(15.) The right of the accused against excessive bail;
(16.) The right of the accused to be heard by himself and counsel, to
be informed of the nature and the 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;
(18.) Freedom from excessive fines, or cruel and unusual punishment,
unless the same is imposed or inflected in accordance with a statute
which has not been judicially declared unconstitutional; and
(19.) Freedom of access to the courts.

In any cases referred to in this Article, whether or not the

defendant’s act or omission constitutes a criminal offense, the
aggrieved party has the right to commence an entirely separate and
distinct civil action for damages, and for other relief. Such civil action
shall proceed independently of any criminal prosecution (if the latter
be instituted), and may be proved by a preponderance of evidence.

22
 The indemnity shall include moral damages. Exemplary damages
may also be adjudicated.
The responsibility herein set forth is not demandable from a judge
unless his act or omission constitutes a violation of the Penal Code or
other statute.

Art. 33 – In cases of defamation, fraud, and physical injuries, a civil

action for damages, entirely separate and distinct from the criminal
action, may be brought by the injured party. Such civil action shall
proceed independently of the criminal prosecution, and shall require
only a preponderance of evidence.

Art. 34 – When a member of a city or municipal police force refuses

or fails to render aid or protection to any person in case of danger to
life or property, such peace officer shall be primarily liable for
damages, and the city or municipality shall be subsidiarily responsible
therefore. The civil action herein recognized shall be independent of
any criminal proceedings, and a preponderance of evidence shall
suffice to support such action.

Art. 35 - When a person claiming to be injured by a criminal

offense, charges another with the same, for which no independent
civil action is granted in this Code or any special law, but the justice of
the peace finds no reasonable grounds to believe that a crime has been
committed, or the prosecuting attorney refuses or fails to institute
criminal proceedings, the complainant may bring a 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 require the plaintiff to file a bond to indemnify
the defendant in case the complaint be found to be malicious.
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.

NOTES

1. Articles 29 to 35 of the Civil Code refer to the rules governing dependent and independent
civil action. Under the Revised Penal Code, a person criminally liable is also civilly liable (Art. 100 RPC).
These two liabilities are distinct from each other; the criminal aspect is concerned with social order, while the
civil aspect is with private rights. A person found criminally liable will suffer a penalty of imprisonment or fine
while a person civilly liable will have to indemnify the aggrieved party.

2. As a general rule, a person criminally liable is also civilly liable. Criminal liability will give rise to civil
liability ex delicto only if the same felonious act or omission results in damage or injury to another and is the
23
direct and proximate cause thereof. It does not necessarily follow, however, that a person found criminally
liable is also civilly liable, as the quantum of evidence required to prove the two liabilities is different (Conrado
Bunag, Jr. vs. CA and Cirilo, G.R. No. L-101749, July 10, 1992).

3. An independent civil action is a civil action for damages arising out of the crime committed but
which the offended party can prosecute independently or separately from the criminal case. On the other
hand, a dependent civil action is one which must be tried jointly with the criminal case filed. Articles 29, 30
and 35 of the Civil Code refer to dependent civil action, while Articles 31, 32, 33, and 34 are the provisions
where independent civil action is allowed.

4. Independent civil action is allowed in the following cases: (a.) violation of constitutional rights
under Article 32; (b.) Defamation, Fraud, and Physical Injuries under Article 33; and (c.) Failure of a policeman
to render aid or protection to any person in case of danger to his life or property under Article 34. Thus, the
civil liability arising out of the crimes enumerated under the foregoing articles can be prosecuted separately
and independently from the crime charged. The independent civil action can be filed simultaneously with the
criminal case and it can proceed independently without regards to the result of the latter.

5. All civil actions arising from crimes which did not fall under Articles 31, 32, 33, and 34 are
dependent civil actions. This means, that this civil actions cannot be tried separately or independently from the
criminal case. Once the criminal case is filed, the civil action is deemed impliedly instituted with it.

6. In Article 29 which is about dependent civil action, the offended party is allowed to file the civil
action if the accused is acquitted on the ground that his guilt has not been proved beyond reasonable doubt.
The court shall so declare that the acquittal is based on reasonable doubt. In the absence of any declaration to
that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground.

7. The reason behind Article 29 is that criminal liability is harder to prove than civil liability because
the former demands proof of guilt beyond reasonable doubt; the other, mere preponderance of evidence. So,
if criminal conviction is not obtained because of reasonable doubt there is still a chance that the civil liability
can be held to exist because of preponderance of evidence.

8. Proof beyond reasonable doubt means that amount of proof which forms an abiding moral
certainty that the accused committed the crime charged. It is not, therefore, absolute certainty. However, such
degree of proof is more exacting than what is needed in a civil case which is merely preponderance of
evidence. Preponderance of evidence means that, as a whole, the evidence adduced by one side outweighs
that of the adverse party (Sarmiento vs. Court of Appeals, G.R. No. L-96740, March 25 ,1999).

9. If in a criminal case, the accused is acquitted because the fact from which any civil liability could
arise did not exist, a civil case subsequently brought must be dismissed. This is not a mere case of acquittal
because of reasonable doubt (Marcia vs Court of Appeals, G.R. No. L-34529, Jan. 27, 1983). The well settled
doctrine is that a person, while not criminally liable, may still be civilly liable. The judgment of acquittal
extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the

24
civil liability might arise did not exist. This ruling is based on Article 29 of the Civil Code (Lontoc vs. MD Transit
& Taxi Co., Inc., et al., G.R. No. L-48949, April 15, 1988).

10. The aggrieved party can file a civil action after the acquittal of the accused only if he did not
actively participate in the prosecution of the criminal case by hiring a private lawyer. Restated here is the rule
that unless the complainant intervenes and actively participates in the criminal case, an acquittal of the
accused would not bar the institution of a separate civil action (Ruiz vs. Ucol, G.R. No. L-45404, Aug. 7, 1987).

11. Article 30 of the Civil Code is also about dependent civil action. When a crime is committed, the
offended party has the option of not filing a criminal case but only a civil action for damages against the
offender. Should he file only a civil action, then, mere preponderance of evidence is required for him to prove
the civil case. However, should he decide to file a criminal case later on, the civil case that he filed ahead will
have to be suspended as it is not an independent civil action (See Rule 110, Revised Rules of Court).

12. Article 31 was considered as one of the articles on independent civil action when it ought not be
included there as the civil action mentioned in said article is not one that arises out of the crime committed. An
independent civil action is one that is brought distinctly and separately from a criminal case allowed for
considerations of public policy, because the proof needed for civil cases is LESS than that required for criminal
cases; but with the injunction in general that success in financially recovering in one case should prevent a
recovery of damages in the other. Article 31 contemplates a case where the obligation does not arise from a
crime, but from some other act – like a contract or a legal duty.

13. The acquittal of the driver in a case for Reckless Imprudence resulting to Homicide
does not bar the heirs of the victim from filing a culpa contractual case against the operator of
the bus because the civil action here is not based on the criminal case against the driver but on
the liability of the operator based on a contract (Nicasio Bernaldes, Sr., et al. vs. Bohol Land Trans.,
Inc., G.R. No. L-18193, Feb. 27, 1963). Likewise, in reckless imprudence cases, a civil action for culpa
aquiliana (quasi-delict) may be filed under Article 2176, which action may proceed independently from the
criminal case as it is based in the Civil Code. The civil liability arising from the crime is different from the
liability under quasi-delict. But, plaintiff cannot recover damages twice for the same act or omission of the
defendant (See: Article 2177 C.C.).

14. Also, a civil action for recovery of government funds in the hand of a postmaster can prosper
independently of a charge of malversation, since in the first, the obligation arises from law (ex lege), while in
the second the obligation to return the money arises ex delicto (Tolentino vs. Carlos, 39 O.G. No. 9, p. 121).
Thus, even if an accused in a criminal case is acquitted of the crime of malversation because of the failure of
the prosecution to prove criminal intent and failure to establish the guilt beyond reasonable doubt, the
government may still file a civil action to recover the government funds disbursed by him without prior
authority.

15. Violation of constitutional rights may give rise to an independent civil action under Article 32 of
the Civil Code. The above codal provision is to provide a sanction to the deeply cherished rights and freedom
enshrined in the Constitution. In the case of Alberca vs. Ver, 160 SCRA 590, the Supreme Court ruled that
military men who raided the premises of the petitioner with a defective search warrant, made arrest without
proper warrant from the court, confiscated personal belongings of petitioner, denied them visits from their
25
relatives all because the privilege of habeas corpus was suspended at that time is liable for damages under
Article 32 of the Civil Code. The civil liability extends to their superior as the law speaks of an officer or
employee or person “directly” or “indirectly” responsible for the violation of the constitutional rights and
liberties of another. Thus, it is not the actor alone who must answer for damages under Article 32; the person
indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.

16. A public official or employee who is charged for damages under Article 32 cannot wash his hand by
claiming that “he was acting in good faith”, without malice and without the lightest intention of inflicting injury
to the plaintiff. Good Faith is not a defense in Article 32. To be liable under the said article, it is enough that
there was a violation of the constitutional rights of the plaintiffs and it is not required that defendants should
have acted with malice or bad faith (Lim vs. Ponce de Leon, 66 SCRA 299).

17. In cases of Defamation, Fraud, and Physical Injuries an Independent civil action may be filed.
The term fraud, defamation, and physical injury must be understood in their ordinary sense. Thus, Defamation
includes libel, Fraud includes Estafa or malversation, while physical injury may cover death or the crime of
homicide or even murder. (Dyogi vs. Yatco, G.R. No. L- 9623, Jan. 22, 1957). A case of reckless imprudence
resulting to physical injuries or homicide is not covered here in Article 33.

18. Under Rule 111, Sec. 1 of the Rules of Court, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed instituted with the criminal action unless the offended party:
(a.) waives the civil action; (b.) reserves his right to institute it separately; or (c.) institutes the civil action
prior to the criminal action. Thus, even in independent civil action, there is a need of reservation before one
can institute it independently from the criminal action. The reservation shall be made before the prosecution
starts presenting its evidence and under circumstances affording the offended a reasonable opportunity to
make such reservation.

19. The independent civil action under Article 34 refers to the damage suffered by the offended party
by reason of the refusal or failure of the policeman to render aid or protection to him in case of danger to his
life or property when requested. The said peace officer shall be primarily liable, and the city or municipality
where he is assigned shall be subsidiarily liable in case of his insolvency.

20. When a criminal case is filed by the offended party in those cases where no independent civil
action may be filed, and the prosecuting attorney refuses to file the case in court, the complainant may bring a
civil action for damages against the alleged offender and mere preponderance of evidence is required to win
the civil case. The defendant in the civil case (accused in the criminal case) may require the plaintiff to file a
bond to indemnify him in case the complaint should be found to be malicious. If during the pendency of the
civil action, an Information be filed by the prosecuting attorney, the civil action shall be suspended until the
termination of the criminal proceedings (Article 35 New Civil Code).

K. Prejudicial Question :

Art. 36 – Prejudicial questions, which must be decided before any

criminal prosecution may be instituted or may proceed, shall be
governed by the rules of court which the Supreme Court shall

26
 promulgate and which shall not be in conflict with the provisions of
this Code.

NOTES

1. A prejudicial question is one that arises in a case, the resolution of which is a logical antecedent of
the issue involved therein, and the cognizance of which pertains to another tribunal (Zapanta vs. Montesa, 4
SCRA 510). Thus, in matters of prejudicial question, there are always two cases involved, one is a criminal
case and the other is a civil case. The criminal case will have to be suspended because the issue in the civil
case is determinative of the guilt or innocence of the accused in the criminal case.

2. There are two essential elements of a prejudicial question, and they are as follows:

a.) The civil action involves an issue similar or intimately related to the issue raised
in the criminal action; and

b.) The resolution of such issue determines whether or not the criminal action may
proceed (Rule 111, Sec. 5, Rules of Court) .

3. As a general rule, where both a criminal and a civil case arising from the same facts are filed in
court, the criminal case will always take precedence. One exception is when the civil case is an independent
civil action under Articles 32, 33, 34, and 2177 of the Civil Code. The other exception is when there exists a
prejudicial question in the civil case, in which case it must be resolved first before the criminal action can
proceed.

4. Our concept of prejudicial question was lifted from Spain, where civil cases are tried exclusively by
civil courts, while criminal cases are tried exclusively by criminal courts, each kind of court being jurisdictionally
distinct from and independent of the other; The rule is that there is prejudicial question when (a.) the
previously instituted civil action involves an issue similar or intimately related to the issue raised in the
subsequent criminal action, and (b.) the resolution of such issue determines whether or not the criminal action
may proceed; A prejudicial question is understood in law to be that which must precede the criminal action,
that which requires a decision with which said question is closely related (Coca Cola Bottlers Phils, Inc. vs.
Social Security Commission, 560 SCRA 719).

5. A petition for suspension of the criminal action based upon the pendency of a prejudicial question
in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in
the same criminal action at any time before the prosecution rests. (Rule 111, Sec. 6, Rules of Court). The
foregoing provision repeals the former ruling of the Supreme Court in the case of Dasalla et al. vs. City
Attorney of Quezon City, L-17338, May 30, 1962, where the Court ruled that the time to ask for such
suspension is not during the period of preliminary investigation by the fiscal (or by the judge, in the proper
case) but after the fiscal shall have finished such investigation and has filed the criminal information against
the accused in court.

27
 6. When a married man is forced or intimidated by another woman to contract marriage with her;
and later on the man filed a civil case for annulment of the second marriage while the woman countered by
filing a bigamy case against the man, the civil case for annulment may serve as a prejudicial question to
warrant the suspension of the bigamy case. The reason is because if there really was no valid consent of the
man to the second marriage, then he cannot therefore be guilty of bigamy (Merced vs. Diez, et al., 109 Phil.
155) . This ruling was reiterated by the Supreme Court in the case of Zapanta vs. Montesa, et al., L-14534,
Feb. 28, 1962).

7. When a married man forced another woman to marry him, then his first wife filed a bigamy case
against him and the second wife filed an annulment of marriage, the latter case cannot be a prejudicial
question because he who employed force in the second marriage cannot use his own act or crime as a
defense ( People vs. Adelo Aragon, 94 Phili. 357).

8. If the first marriage is annulable and the man contracted a second marriage without having the
first marriage declared void, he is liable for bigamy. The filing of the annulment of the marriage after the the
bigamy case is filed does not constitute a prejudicial question to warrant the suspension of the criminal
case for bigamy because prior to the annulment of the first marriage, the same cannot be considered as
without effect and, therefore, shall be presumed to be validly existing. Hence, the party who conracts a second
marriage assumes the risk of being prosecuted for bigamy (Landicho vs. Relova, 22 SCRA 731).

9. A case for Declaration of Nullity of Marriage on the ground Psychological Incapacity under Article
36 of the Family Code is not a prejudicial question to the bigamy case filed by the wife against her husband.
Thus, in a case where the husband filed an action to declare his marriage to his wife as null and void on the
ground of the latter’s psychological incapacity under Article 36 and the wife filed a concubinage case against
the said husband and his paramour, the Supreme Court held that the civil action for nullity of marriage cannot
be a prejudicial question to justify the suspension of the criminal case for concubinage because a subsequent
judicial pronouncement of the nullity of marriage is not a defense in concubinage. As held in the Landicho
case, the Court ruled that as long as there is no judicial declaration of nullity of marriage, the presumption is
that the marriage exists for all intents and purposes ( Te vs. Court of Appeals, G.R. No. L- 126746, Nov. 29,
2000). Likewise, declaration of nullity of marriage on the ground of psychological incapacity under Article 36 is
not a prejudicial question to a frustrated parricide case previously filed by the wife against her husband
(Joselito Pimentel vs. Ma. Chrysantine Pimentel, G.R. No. 172060, September 13, 2010).

10. The accused who were criminally charged of Estafa for not returning the money they received as
agents for the purpose of buying a boat which never materialized but who, in turn filed a civil case questioning
the validity of the receipt wherein they acknowledged having received the money because their signatures
therein were allegedly obtained through fraud, deceit, and intimidation, cannot claim that the issue in the civil
case is a prejudicial question because it does not determine the guilt or innocence of the accused in the
criminal case . Even on the assumption that the signatures in the receipt were obtained through fraud, duress
or intimidation, their guilt could still be established by other evidence showing, to the degree required by law,
that they actually received from the complainant the sum of P20,000 with which to buy for him a fishing boat,
and that, instead of doing so, they misappropriated the money and refused or failed to return to him upon

28
demand. The contention of respondents would have been tenable if they were charged of falsification of the
said receipt involved in the civil case ( Jimenez vs. Averia, 22 SCRA 1380).

11. In a criminal case for damage to one’s property, a civil action that involves the ownership of said
property should first be resolved as it is a prejudicial question to the criminal case (De Leon vs. Mabanag, 38
Phil. 202).

12. In the case of People vs. Judge Villamor et al., G.R. No. L- 13530, Feb. 28, 1962), the Supreme
Court ruled that it is the accused in a criminal case (and not the prosecution) who can raise the issue of
prejudicial question and move for the suspension of the criminal case. To allow the prosecution to ask for the
suspension of the criminal case on the ground of a prejudicial question after it has finished presenting its
evidence is unfair to the accused who should have the right to have the criminal case terminated as soon as
possible. In fact, the prosecution, if it really believes that a prejudicial question is involved should have
refrained from instituting the criminal case prematurely.

BOOK 1

LAW ON PERSONS

Title I – CIVIL PERSONALITY

Chapter 1

GENERAL PROVISIONS

A. Juridical capacity and the Capacity to act:

Art. 37 – Juridical capacity, which is the fitness to be the subject

of legal relations is inherent in every natural persons and is lost only
through death. Capacity to act, which is the power to do acts with legal
effect, is acquired and may be lost.

Art. 38 – Minority, insanity or imbecility, the state of being a

deaf mute, prodigality and civil interdiction are mere restrictions on the
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.

29
 Art. 39 – The following circumstances, among others, modify or
limit capacity to act: age, insanity, imbecility, the state of being a deaf-
mute, penalty, prodigality, family relations, alienage, absence,
insolvency and trusteeship. The consequences of these circumstances
are governed in this Code, other codes, the Rules of Court, and in
special laws. Capacity to act is not limited on account of religious belief
or political opinion.

A married woman, twenty one years of age or over, is qualified

for all acts of civil life, except in cases specified by law.

NOTES

1. Juridical capacity refers to the fitness of a person to be the subject of a legal relation. It is inherent
in every natural person and it is acquired from the moment of birth and is lost only upon death. Thus, a
newborn child is already fit to become a subject of a legal relation, such as contract, but he still cannot enter
into a contract by himself as he has no capacity to act yet. Capacity to act means the power to do act with
legal effect and it is acquired and be lost by law.

2. When juridical capacity and the capacity to act is possessed by one person, then he is considered
to be a person with full civil capacity .

3. Article 39 restricts the person’s capacity to act. Even if a person has the capacity to act under the
law, there are certain acts he cannot do because of his minority, or the fact that he is insane or imbecile,
prodigality or that he is under civil interdiction.

4. Article 40 modifies or limits a person’s capacity to act. It is broader in scope than Article 39 as it
includes other factors such as family relations, alienage, absence, insolvency and others. For example, a
husband has full civil capacity and is free to dispose of his properties but he is not allowed to sell his property
to his wife because it is prohibited by law. His capacity to alienate his property is modified or limited in the
sense that he cannot sell it to certain persons like his wife because of relationship.

Chapter 2
NATURAL PERSONS

B. Commencement of Civil Personality:

Art. 40 - Birth determines personality, but the conceived child shall

be considered born for all purposes that are favourable to it, provided
it be born later with the conditions specified in the following article.

Art. 41 – For civil purposes, the foetus is considered born if it is

alive at the time it is completely delivered from the mother’s womb.
However, if the foetus had an intra-uterine life of less than seven

30
 months, it is not deemed born if it dies within twenty-four hours after
its complete delivery from the maternal womb.

NOTES

1. Personality normally begins from the moment of birth. However, a child in the womb of his mother
may be given presumptive personality but only for purposes beneficial to him, provided that he be born
later with the conditions specified in Article 41.

2. The effect of acquiring personality is that the child can now be the subject of a legal relation
(juridical personality). Thus, he can now be a donee in a Deed of Donation even if he has not yet been born
for as long as the said child was later on born alive under the condition set by Article 41.
3. One acquires personality from the moment of birth. However, a child with an intra-uterine life of less
than seven months is not deemed born if it dies within twenty-four hours after its complete delivery from the
maternal womb. Thus, a donation made to foetus inside the womb of its mother may be valid if the child has
an intra-uterine life of more than seven months and he is born alive. If it has an intra-uterine life of less than
seven months, it is not enough that he is born alive. The child must survive within 24 hours from birth,
otherwise, he is not considered born and the donation to him will not be considered valid.

4. A donation is a contract that is generally favourable or beneficial to the child, so, it can be done
even before the delivery of the foetus. But, if the donation is subject to an onerous condition and proved to be
burdensome, the donation will not be valid as it is not gratuitous and favourable to the child.

C. Extinguishment of Personality:

Art. 42 – Civil personality is extinguished by death.

The effect of death upon the rights and obligations of the
deceased is determined by law, by contract and by will.

Art. 43 – If there is doubt, as between two or more persons who are

called to succeed each other, as to which of them died first, whoever
alleges the death of one prior to the other, shall prove the same; in the
absence of proof, it is presumed that they died at the same time and
there shall be no transmission of rights from one to the other.

NOTES

1. Death extinguishes civil personality. The effect of death is determined by law, contract and by will.
Thus, a person who was made a voluntary heir in the will of another cannot be represented by his heirs if he
died ahead of the testator because the law says so.

2. A special power of attorney executed by a person in favor of another to sell his property is deemed
terminated if the said person dies. The sale, after such death is not valid, if made by the agent with knowledge
of the principal’s death. This is true even if the buyer be in good faith. (Rallos vs. Felix Gochan and Sons
Realty Corporation, G.R. No. L-24332, Jan. 3, 1978)

31
 3. Criminal liability is extinguished by death but the proceedings with regard to his civil liability should
continue (People vs. Tirol and Baldesco, G.R. No. L-30538, Jan. 31, 1981).

4. Service of summons on a defendant who is already dead through his relatives is not valid as said
defendant has already lost his juridical personality. So, any judgment rendered by the court against him will be
null and void. (Dumlao vs. Quality Plastic Products, Inc. G.R. No. L- 27956, April 30, 1976)

5. Article 43 refers to presumption on survivorship and is similar to Rule 131, Sec. 5 (kk) of the Rules
of Court except that the former applies only if the two person who died are called to succeed each other and
there is doubt as to which one died ahead of the other, and the latter applies to all other cases. Under this
article, if it cannot be determined which one died first then the presumption is that they died at the same time
and therefore there shall be no transmission of rights from one to the other. However, if there is positive
evidence that one died ahead of the other, then, this presumption will not apply (Joaquin vs. Navarro, 93 Phil.
257).

Chapter 3

JURIDICAL PERSONS

D. Classification of Juridical Persons:

Art. 44 – The following are juridical persons;

1.) The state and its political subdivision
2.) Other corporations, institutions and entities for public interest or
purpose, created by law; their personality begins as soon as they have
been constituted according to law;
3.) Corporations, partnership and associations for private interest or
purpose to which the law grants a juridical personality, separate and
distinct from that of each shareholder, partner or member.

Art. 45 – Juridical persons mentioned in Nos. 1 and 2 of the

preceeding Article are governed by the laws creating or recognizing
them.

Private corporations are regulated by laws of general application

on the subject;

Partnerships and associations for private interest or purpose are

governed by the provisions of this Code concerning partnerships.

32
 Art. 46 – Juridical persons may acquire and possess property of
all kinds, as well as incur obligations and bring civil or criminal
actions, in conformity with the laws and regulations of their
organization.

NOTES
Kinds of Juridical Persons:

1.There are two kinds of Juridical Persons, to wit:

a.)Public juridical person
b.)Private Juridical person

2.)Public Juridical persons are:

a.)The state
b.)Its political subdivisions such as the province, cities, municipalities and
barrios.
c.) Public corporations

3.Private Juridical persons refer to:

a.)Private corporations
b.)Partnership
c.)Associations for private interest

Commencement of juridical personality:

1. Public juridical person such as the state and its political subdivisions, and public corporation
acquires personality the moment they are constituted according to law.

2. Private juridical persons such as a private corporation begin to exist from the moment a certificate
of incorporation is granted to it by the SEC.

3. A juridical person has a personality separate and distinct from its owners and stockholders. So, the
obligation of the corporation is not the obligation of the stockholders and vice versa.

4. A public corporation is primarily governed by the law or charter creating them while a private
corporation is basically regulated by laws of general application on the subject, such as the Corporation Code.
Partnership and Association for private interest or purpose are governed by the provisions of the Civil Code
concerning partnership (Art. 45 Civil Code).

Effects of Juridical personality:

1.) It can acquire and dispose all kinds of property
2.) It can sue and be sued
3.) It can enter into contracts

Dissolution of Public Corporation – Effect:

33
 1. When a public corporation is dissolved, its property and other assets shall be disposed of in
accordance with the law or the charter creating them. If nothing has been specified on this point, the assets
shall be applied for the benefit of the region, province, city or municipality which derived the principal benefits
during the existence of the said corporation (Art. 47 Civil Code of the Philippines).

Title II – CITIZENSHIP AND DOMICILE

A. Citizenship and Nationality:

Art. 48 – The following are citizens of the Philippines:

1.) Those who were citizens of the Philippines at the time of the
adoption of the Constitution of the Philippines.
2.) Those born in the Philippines of foreign parents who, before the
adoption of said constitution, had been elected to public office in the
Philippines.
3.) Those whose fathers are citizens of the Philippines;
4.) Those whose mothers are citizens of the Philippines and, upon
reaching the age of majority, elect Philippine citizenship;
5.) Those who are naturalized in accordance with law.

NOTES

1. Citizenship is membership in a democratic political community. It is the status of being a citizen, or

of owing allegiance to a certain state for the privilege of being under its protection. While citizenship is political
in character, nationality refers to a racial or ethnic relationship.

2. There are three kinds of Filipino citizens:

a.) Natural born – Those who are citizens of the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship (Art. III, Sec. 4, 1973 Constitution). This refer to children born in
the Philippines with Filipino parents ( Native born), and those born outside the Philippines with Filipino parents.
b.) Naturalized citizens – Foreigners who acquired Filipino citizenship through naturalization or judicial
proceedings.
c.) Citizens by election – children born of Filipina mother and an alien father under the 1935 constitution
who, upon reaching the age of majority, elected Filipino citizenship.

3. There are two theories used to determine the citizenship of a person:

a.) Jus soli – The basis of the citizenship is his place of birth. This is the theory used in the United States of
America.
b.) Jus sanguines – The basis is the citizenship of the child’s parents. This is known as citizenship by blood and
this is the one adopted in the Philippines.

4. Citizenship is matter to be exclusively determined by the country’s own law. Thus, on the question
of whether or not dual citizenship exists, the answer is it depends on whose point of view. From the country

34
directly involved in the conflict, it does not exist. But, from the viewpoint of a third state, it does exist (Johnny
Chaustinek vs. Republic, L-2275, May 18, 1951).

5. Dual and even multiple citizenship may arise in the following instances:
a.) Marriage
b.) By combined application of Jus soli and Jus sanguines
c.) By failure of a naturalized citizen to comply with certain legal requirement in his country of origin
d.) By legislative act of a state
e.)Voluntary act of the individual concerned.

6. A Stateless Individual is one who does not possess any citizenship. It may happen if the said
person is deprived of his citizenship by his own country because he has committed an act of disloyalty such as
treason or any crime where the penalty imposed is the deprivation of his nationality. It may also occur if he
voluntarily renounced his citizenship or it could be by combined application of the jus soli and jus sanguine
principle.

7. Effect of marriage on the citizenship of a Filipino woman – A Filipino woman who marries a
foreigner shall remain to be a Filipina unless by her act or omission she is deemed, under the law, to have
renounced her citizenship (Art. III, Sec. 2, 1973 Constitution). The rule, however, before the 1973 constitution
took effect was that a Filipino woman who marries a foreigner and acquires the citizenship of her husband will
lose her Philippine citizenship.

8. Effect of marriage of an alien woman to a Filipino man – A foreigner woman who marries a
Filipino man will not automatically acquire Philippine citizenship by virtue of her marriage to a Filipino husband.
She must first prove that she has all the qualifications and none of the disqualifications for Philippine
citizenship under the naturalization law (Chay vs. Galang, L-19977, Oct. 30, 1964). This rule is in line with the
national policy of selective admission to Philippine citizenship, which after all, is a privilege granted only to
those who are found worthy thereof, and not indiscriminately to anybody at all on the basis alone of marriage
to a man who is a citizen of the Philippines, irrespective of moral character, ideological beliefs, and
identification with Filipino customs and traditions (Olegario Brito et al. vs. Commissioner, L-16829, June 30,
1965).
In the case of Zita Ngo Burca (L-24252, Jan. 30, 1967), the Supreme Court ruled that the proper
proceeding to be taken before an alien woman married to a Filipino man can be declared a Filipino citizen is a
naturalization proceeding. This ruling received severe criticism from many sectors of the Philippine society as
very strict making it impossible for an alien woman married to a Filipino man to become a Filipino.
In the case of Moy Ya Lim Yao vs. Com. Of Immigration, G.R. No. L-21289, Oct. 4, 1971, 41 SCRA
292), the Supreme Court decided to reverse the Burca ruling and held that “under Sec. 15 of Commonwealth
Act No. 473 an alien woman marrying a Filipino, whether native born or naturalized, becomes ipso facto a
Filipino provided she does not possess any of the disqualification under Sec. 4 of the Naturalization Law. In
other words, there is no need anymore for her to possess all the qualifications under the law for
what is needed is only that she has no disqualifications. Moreover, an alien woman married to another
alien who is subsequently naturalized here follows the newly acquired Philippine citizenship of her husband the
moment he takes his oath as a Filipino citizen, provided she does not suffer from any of the disqualifications
under said Section 4. It is not anymore necessary for the alien wife to prove in a judicial proceeding that she

35
possess all the qualifications under Sec. 2 and none of the disqualifications under Sec. 4 of the Revised
Naturalization Law (CA No. 473).

9. Citizenship of minor children – As a general rule, minor children shall follow the citizenship of
their father. So, if the father is a foreigner while the mother of the child is a Filipina, the child is also a
foreigner as he will follow the citizenship of his father. However, under Article IV, Sec. 1 (4) of the 1935
Constitution the child may opt to elect Philippine citizenship upon reaching the age of majority (21 years old).
The child of a Filipina mother and an alien father who opted to elect Philippine citizenship is called a citizen by
election.
The foregoing rule in the 1935 Constitution has already been repealed by the 1973 Constitution
because under Article III, Sec. 1 (b) thereof children whose fathers OR mothers are citizens of the Philippines
are also considered Filipinos. Thus, if the child is born to a Filipina mother and an alien father after the
effectivity of the 1973 constitution, which is January 17, 1973, the child is already considered from birth as a
Filipino. There is no need any more for the said child to elect Philippine citizenship upon reaching the age of
majority as he is already considered a natural born citizen from the moment of birth. The above provision in
the 1973 constitution was reproduced also in the 1987 constitution.

B. Naturalization

Art. 49 – Naturalization and the loss and reacquisition of citizenship

of the Philippines are governed by special laws.

NOTES

1. Naturalization is defined as the process of acquiring the citizenship of another country. It refers
to the entire process ( generally judicial) of clothing or vesting an alien the rights of a Filipino citizen. The
grant of Philippine citizenship to an alien is not a right but a privilege. The requisite conditions for
naturalization are laid down by Congress and the courts cannot change or modify them (Bautista vs. Republic,
GR.No. L- 3353, Dec. 29, 1950).

2. Under current and existing laws, there are three ways by which an alien may become a citizen by
naturalization; (a.) administrative naturalization pursuant to R.A. No. 9139; (b.) judicial naturalization pursuant
to C.A. No. 473, as amended; and (c.) legislative naturalization in the form of a law enacted by Congress
bestowing Philippine citizenship to an alien. Although the legislature believes that there is a need to liberalize
the naturalization law of the Philippines, there is nothing from which it can be inferred that C.A. No. 473 was
intended to be amended or repealed by R.A. No. 9139 – what the legislature had in mind was merely to
prescribe another mode of acquiring Philippine citizenship which may be availed of by native born aliens ( So
vs. Republic, 513 SCRA 267).

3. For an alien to be naturalized under C.A. No. 473, he must possess all of the qualifications and
none of the disqualifications under the naturalization law.

4. The following are the qualifications for naturalization:

a.)Must be at least 21 years old on the date of the hearing;

36
 b.)Must have resided in the Philippines for at least ten continous years;
c.)Must be of good moral character, and believe in the principle underlying the constitution, and must have
conducted himself in a proper and irreproachable manner;
d.)Must own real estate in the Philippines worth not less than P5,000 or a lucrative trade, profession or
calling;
e.)Must know how to speak and write English or Spanish and any one of the principal Philippine languages;
f.)Must enrol all his minor children of school age in any of the public schools or private schools recognized by
the Bureau of Private Schools where Philippine government, history and civics are taught.

5. The following are the disqualifications for naturalization:

a.)Persons opposed to organized government or affiliated with any association or group of persons who uphold
and teach doctrines opposing all organized government;
b.)Persons defending or teaching the propriety of violence, personal assault, or assassination for the success
and predominance of their ideas;
c.)Polygamist or believers in the practice of polygamy;
d.)Those convicted of a crime involving moral turpitude;
e.)Persons suffering from mental alienation or incurable contagious disease;
f.)Persons who, during the period of their residence in the Philippines, have not mingled socially with the
Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of
the Filipinos;
g.)Citizens or subjects of nations with whom the United States and the Philippines are at war;
h.)Citizens or subjects of a foreign country other than the United States, whose laws do not grant Filipinos the
right to become naturalized citizens or subjects thereof;

6. Steps in Naturalization Proceedings:

a.)Declaration of intention must be filed one prior to the filing of the petition for naturalization;
b.)The petition for naturalization must then be filed;
c.)Hearing of the petition;
d.)After the approval of the petition, there will be a rehearing two years after the promulgation of the
judgment;
e.)Taking of the oath of allegiance to support and defend the constitution and the laws of the Philippines.

7.Venue:
Petitions for Naturalization must be filed in the Regional Trial Court of the place where the
petitioner resides.

8. Appeal
Section 11 of C.A. no. 473 (Revised Naturalization Law) which states that appeal should be
filed with the Supreme Court has already been superseded by subsequent procedural law, particularly B.P. 129
(Judiciary Reorganization Act of 1980), which vests in the Court of Appeals the appellate jurisdiction over all
final judgments, decisions, resolutions, orders or awards of the Regional Trial Courts and quasi-judicial bodies
( Keswani vs. Republic, 524 SCRA 145).

9. Effects of Naturalization of the father to his children:

37
 Naturalization of the father benefits his minor children. So, once the father is naturalized as
Filipino, all his minor children will also be recognized as Filipinos. Children who are already of legal age at the
time of the naturalization of their father are not benefited by said naturalization. If they want to become a
Filipino like their father, they have to apply for naturalization themselves.

C. Domicile

Art. 50 – For the exercise of civil rights and the fulfilment of civil
obligations, the domicile of natural persons is the place of their
habitual residence.

Art. 51 – When the law creating or recognizing them, or any other

provision does not fix the domicile of juridical persons, the same shall
be understood to be the place where their legal representation is
established or where they exercise their principal functions.

NOTES

1. Domicile is the place of a person’s habitual residence. It is that place where he has his true, fixed
permanent home and principal establishment, and to which place, he has, whenever he is absent, the
intention of returning, and from which he has no present intention of moving. ( Ong Huan Tin vs. Republic, 19
SCRA 966).

2. There is a difference between domicile and residence. “Residence” is used to indicate a place of
abode, whether permanent or temporary; “Domicile” denotes a fixed permanent residence to which, when
absent, one has the intention of returning. A man may have a residence in one place and a domicile in
another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an
unlimited time. One can have several residences but he has only one domicile.

3. For political purposes, the concept of residence and domicile seems to have been used
synonymously. In Nuval vs Guray, 52 Phil. 645, it was held that the term residence is synonymous with
domicile which imports not only intention to reside in a fixed place, but also personal presence in that place,
coupled with conduct indicative of such intention. In Faypon vs. Quirino, 96 Phil. 294, the Supreme Court ruled
that the absence from residence to pursue studies or practice a profession or registration as a voter other than
in a place where one is elected does not constitute loss of residence. So settled is the concept of domicile in
our election law that in these and other election law cases, this Court has stated that the mere absence of an
individual from his permanent residence without the intention to abandon it does not result in a loss or change
of domicile.

4. In the case of Imelda R. Marcos vs. COMELEC, et al., 248 SCRA 300, the Supreme Court
reversed the decision of the COMELEC disqualifying Imelda Marcos from her election as Congresswoman of the
First District of Tacloban, Leyte, for lack of residence. The Court ruled that an individual does not lose his
domicile even if he has lived and maintained residences in different places. The COMELEC was obviously
referring to Imelda’s various places of (actual) residences not her domicile when it ruled against her. In doing
so, it not only ignored settled jurisprudence on residence in election law and the deliberations of the
38
constitutional commission but also the provisions of the Omnibus Election Code (B.P. Blg. 881) which provide
that any person who transfers residence to another city, municipality or country solely by reason of his
occupation; profession; employment in private or public service; educational activities; work in military or
naval reservations; service in the army, navy or air force; the constabulary or national police force; or
confinement or detention in government institutions in accordance with law shall not be deemed to have lost
his original residence.

5. A Filipino citizen’s acquisition of a permanent resident status abroad constitutes an abandonment

of his domicile and residence in the Philippines. The “green card” status in the U.S.A. is a renunciation of one’s
status as a resident of the Philippines. Residence in contemplation of election laws is synonymous to domicile;
Domicile is classified into (1.) domicile of origin, (2.) domicile of choice, and (3.) domicile by operation of law.
In a controversy such as the one at bench, we are guided by three basic rules, namely: (1.) a man must have
a residence or domicile somewhere; (2.) domicile, once established, remains until a new one is validly
acquired; and (3.) a man can have but one residence or domicile at any given time (Ugdoracion, Jr. vs.
Commission on Elections, 552 SCRA 231).

6. In order to acquire a domicile by choice, there must concur (1.) residence or bodily presence in the
new locality, (2.) an intention to remain there, and (3.) an intention to abandon the old domicile. A person’s
“domicile” once established is considered to continue and will not be deemed lost until a new one is
established. To successfully effect a change of domicile one must demonstrate an actual removal or an actual
change of domicile; a bonafide intention of abandoning the former place of residence and establishing a new
one. In other words, there must basically be animus manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of
esidence must be voluntary; and the residence at the place chosen for the new domicile must be actual
(Limbona vs. Commission on Elections, 555 SCRA 391).

5. Domicile of Juridical Persons:

The domicile of a juridical person is based on the law creating it. But, if the law did not fix
the domicile of the juridical person, then it is understood to be the place where its legal representation is
made or where it exercises its principal functions (Art. 51 Civil Code).

FAMILY CODE
39
Introductory Statement:

The New Family Code of the Philippines was signed into law by Pres. Corazon C. Aquino on July 6,
1987 as Executive Order No. 209. It was drafted by the Civil Code Revision Committee of the UP Law Center
composed of well-known civilists, namely: Justice J.B.L. Reyes as Chairman, Justice Ricardo C. Puno as Co-
Chairman, Justice Eduardo C. Caguioa, Justice Flerida Ruth P. Romero, Justice Leonor Ines Luciano, Justice
Alicia Sempio Diy, Dean Fortunato Gupit Jr., Dean Bartolome S. Carale, Prof. Ruben F. Balane, Prof. Esteban B.
Bautista, Prof. Araceli T. Baviera and Ms. Flora Eufemio of the DSWD as members. The committee finished the
draft on May 4, 1987 and it was submitted to Pres. Corazon C. Aquino for approval into law as we do not have
a Philippine Congress yet at that time. Later on E.O. 209 was amended by E.O. 227 on July 17, 1987. Under
Article 257 of the Family Code it provides that this Code shall take effect one year after its publication in a
newspaper of general circulation and also in the Official Gazette. The last publication appeared in the Manila
Chronicle in its August 4, 1987 issue but since 1987 was a leap year, the one year period falls on August 3,
1988 as certified to by the Executive Secretary in Memorandum Circular No. 85 dated November 7, 1988. Also,
in the case of Modequillo vs. Breva, 185 SCRA 766, the Supreme Court officially declared that the Family Code
took effect on August 3, 1988.

Title I

MARRIAGE

Chapter I

Requisites of Marriage

A. Definition of Marriage:

Art. 1 – Marriage is a special contract of permanent union

between a man and a woman entered into in accordance with law for
the establishment of conjugal and family life. It is the foundation of
the family and an inviolable social institution whose nature,
consequences and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the property
relations during the marriage within the limits provided by this code.

NOTES

1. Marriage is considered to be an inviolable social institution which the law cherishes and protects.
The right to marry is a recognized fundamental human right under international law deserving full protection
of all states regardless of its ideology or political persuasion. The 1987 Philippine Constitution recognizes the
importance and sanctity of marriage when it states that: “Marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the states” (Article XV, Sec. 2). Marriage creates a social
status or relation between the contracting parties, in which not only they, but the State as well, are interested.

2. Marriage is not just an ordinary contract but a special one because it calls for a permanent union
between a man and a woman for the establishment of a family life. The nature, consequences and incidents of

40
marriage are governed by law and not subject to the agreement of the parties. For example, the parties
cannot stipulate that their marriage is good only for ten years, after which it is deemed dissolved. The
consequences of marriage, such as the offspring and the administration of property, are governed by law and
cannot be subject to compromise. The only incident in marriage which can be the subject of agreement
between the parties is the choice of economic regime that will govern their property relation during the
marriage. This agreement shall be contained in the marriage settlement to be executed before the celebration
of the marriage. Thus, the parties may agree before the marriage that they will be governed by the separation
of property regime, by conjugal partnership of gains, or by the absolute community of property regime.

3. The contracting parties to the marriage must be a man and a woman. The gender of the parties is
important as it involves the legal capacity of the parties to contract marriage. That the parties to the marriage
must be of the opposite sex is emphasized not only by Article 1 but also by Articles 2 and 5 of the Family
Code. During the twentieth century, medicine adopted the term “intersexuality” to apply to human beings
who cannot be classified as either male or female because they have the biological characteristics of both a
man and a woman. The current state of Philippine statutes apparently compels that a person be classified
either as a male or as a female. Where the person is biologically or naturally intersex, the determining factor in
his gender classification would be what the individual, having reached the age of majority, with good reason
thinks of his/her sex. Sexual development in cases of intersex persons makes the gender classification at birth
inconclusive – it is at maturity that the gender of such persons, like respondent, is fixed (Republic vs. Jennifer
Cagandahan, G.R. No. 166676, Sept. 12. 2008, 565 SCRA 72).

4. Sex reassignment surgery or sex change does not make a man into a woman. A petition for
correction of entry in the birth certificate of a person who underwent sex reassignment surgery praying that
the entry on sex in his birth certificate be changed from male to female and that his name Rommel Jacinto
Dantes Silverio be changed to Mely Silverio has no basis in law. There is no law that allows the change of
entry in the birth certificate as to sex on the ground of sex reassignment. Under the Civil Register Law, a birth
certificate is a historical record of the facts as they existed at the time of birth. Thus, the sex of a person is
determined at birth. The words “male” and “female” in everyday understanding do not include persons who
have undergone sex change. To grant the changes in name and sex sought by petitioner will substantially
reconfigure and greatly alter the laws on marriage and family relations – it will allow the union of a man with
another man who has undergone sex reassignment surgery, a male-to-female post-operative transsexual
(Silverio vs. Republic, G.R. No. 174689, October 22, 2007).

5. Marriage, as a special contract, differs from an ordinary contract in the following aspects, to wit:

a.) Marriage is governed by the Family Code while an ordinary contract is governed by the law
on contracts (Book IV NCC);
b.) Marriage is an inviolable social institution while the latter is not;
c.) Marriage is not subject to stipulation between the parties except as to marriage settlement
while an ordinary contract is primarily governed by the stipulations of the parties.
d.) In marriage, there are only two parties, and one must be a male and the other a female. In
ordinary contracts, there could be many parties and the gender of the parties is immaterial.
e.) Marriage is terminated by death or annulment due to legal causes while an ordinary
contract is terminated upon expiration of the term of the contract, upon fulfilment of the

41
 conditions for which it was entered into, rescission, or upon mutual agreement of the
parties.

6. To emphasize that marriage is not just an ordinary contract, the Court ruled that it cannot be
restricted by discriminatory policies of private individuals or corporations. Thus, a company policy
disqualifying from work any woman worker who contracts marriage was declared by the Supreme Court as
invalid as it not only runs afoul to the constitutional provision on equal protection but also on the fundamental
policy of the State towards marriage (Philippine Telegraph and Telephone Company vs. NLRC, 272 SCRA 596).
This ruling was reiterated in the case of Star Paper Corporation vs. Simbol, G.R.No. 164774, April 12, 2006,
when the Supreme Court ruled that a company policy prohibiting employees of the same company from
marrying each other is an invalid exercise of management prerogative for the failure of the employer to
present any evidence of business necessity of the no spouse employment policy. Absence of such bona fide
occupational qualification renders the policy invalid. However, in the case of Duncan vs. Glaxo, G.R.No.
162994, Sept. 17, 2004, the Supreme Court ruled that a prohibition to marry an employee of a competing
company stipulated in the employment contract is valid as it is reasonable under the circumstances because
relationship of employees of two competing companies may prejudice the interest of the company.

7. Marriage creates a social status which the State has an interest. A marriage cannot be annulled for
failure of consideration simply because the reason for the marriage did not materialize. Thus, if a man
married the woman because the latter told him that she is pregnant with his child and it turns out that the
child was never born as the woman had a miscarriage, the man cannot ask for annulment of the marriage
because it is not a ground for annulment. Absence of consideration can be a ground for annulment of an
ordinary contract but not in marriage as a contract. Furthermore, to emphasize the importance of marriage as
a basic social institution which the law cherishes and protects, Congress enacted Republic Act No. 6955
penalizing any person or entity who carries on a business of matching Filipino women for marriage with a
foreigner. This law is known as the Act Prohibiting Mail Order Bride.

8. Marriage does not shed a spouse’s integrity and the right to privacy. The intimacies between
husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. Any evidence obtained therefrom is inadmissible
in evidence. The constitutional injunction declaring “the privacy of communication and correspondence (to be)
inviolable” is no less applicable simply because it is the wife who is the party against whom the constitutional
provision is to be enforced (Zulueta vs. Court of Appeals, 253 SCRA 699).

9. The validity of marriage is determined by the law in force at the time of the celebration of
marriage. A marriage that is void at the time of its celebration cannot be validated by a subsequent law. Thus,
a marriage between stepbrother and stepsister before the effectivity of the Family Code is void and shall
remain to be so even if such kind of marriage is no longer prohibited by the new law. The new Family Code
does not affect the void nature of such marriage because it is governed by the law prevailing at the time of its
celebration.

10. A marriage between a man and a woman before the effectivity of the Family Code and without a
marriage license because they executed an affidavit of cohabitation for five years without any legal
impediment to marry each other, which allegation is not true, is VOID. The falsity of the affidavit cannot be
considered to be a mere irregularity considering that the 5-year period is a substantial requirement of the law
42
to be exempted from obtaining a marriage license ( De Castro vs. Assidao-De Castro, G.R. No. 160172, Feb.
13, 2008). Under Article 76 of the Civil Code, the parties cannot invoke the exception because what is required
is that the five year cohabitation preceding the marriage must be characterized by exclusivity. Meaning, both
parties do not have any impediment to marry each other during the entire period (Ninal vs. Bayadog, G.R.No.
133778, March 14, 2000). The rule now is already different as under Article 34 of the Family Code, the
absence of legal impediment is required only at the time of the celebration of the marriage and not necessarily
during the entire five year period ( See: Manzano vs. Sanchez, AM No. MTJ 00-1329, March 8, 2001).

11. There is, however, one instance in the present law, where a marriage may be declared void even
if it was considered valid at the time of its celebration. This is the void marriage on the ground of psychological
incapacity under Article 36 of the Family Code. Under the Civil Code, psychological incapacity of a party is not
a ground to declare a marriage void but it is now a ground under the Family Code. This provision of the Family
Code is retroactive such that it applies even to those marriages solemnized under the Civil Code. Under R.A.
8533, amending Article 39, there is no more prescriptive period for this action to declare the marriage void on
the ground of psychological incapacity even if the marriage was solemnized prior to the effectivity of the
Family Code.

B. Essential Requisites:

Art. 2 – No marriage shall be valid, unless these essential

requisites are present:

1.)Legal capacity of the contracting parties who must be a

male and a female, and

2.) Consent freely given in the presence of the solemnizing

officer

Art. 5 – Any male or female of the age of eighteen years or

upwards not under any of the impediments mentioned in Articles 37
and 38, may contract marriage.

NOTES

1. The legal capacity for a man and a woman to contract marriage is 18 years old and above. This is
also the age of majority now under R.A. 6809. Aside from being at least 18 years old, the parties must be of
opposite sex and that they have no legal impediments mentioned in Articles 37 and 38 of the Family Code
(See: Art. 5 ). Same sex marriage is, therefore, not possible under our present law. A man who underwent a
biological sex change from male to female through sex-reassignment surgery is still a man in the eyes of our
law. Thus, he is not allowed to marry another man. The petition to amend his birth certificate to reflect the
change in sex as a preliminary step to get married to his male partner is not tenable (Silverio vs. Republic,
G.R. No. 174689, October 22, 2007).

2. Consent to marriage must be given freely and voluntarily. Parents should not force or unduly
influence him/her to marry a person he or she has not freely chosen. Thus, if consent of a party to the
marriage is vitiated by fraud, intimidation, force and undue influence, the marriage is voidable under Art.45 of
the Family Code. The giving of consent must be done in the presence of the solemnizing officer. Thus,

43
marriage by proxy is not valid in the Philippines because of the requirement of personal appearance of the
parties before the solemnizing officer where they declare that they take each other as husband and wife (Art.
6 F.C.).

C. Formal Requisites:

Art. 3 – The formal requisites of marriage are:

1.) Authority of the solemnizing officer;

2.)Valid marriage license except in the cases

provided for in Chapter 2 of this Title; and

3.) A marriage ceremony which takes

place with the appearance of the
contracting parties before the
solemnizing officer and their personal
declaration that they take each other as
husband and wife in the presence of not less
than two witnesses of legal
age.

Art. 6 – No prescribed form or religious rites for the

solemnization of the marriage is required. It shall be necessary,
however, for the contracting parties to appear personally before the
solemnizing officer and declare in the presence of not less than two
witnesses of legal age that they take each other as husband and wife.
This declaration shall be contained in the marriage certificate which
shall be signed by the contracting parties and their witnesses and
attested by the solemnizing officer.

In case of marriage under articulo mortis, when the party at the

point of death is unable to sign the marriage certificate, it shall be
sufficient for one of the witnesses to the marriage to write the name of
said party, which fact shall be attested by the solemnizing officer.

NOTES

1. The person who solemnized the marriage must be among those duly authorized by Article 7 of
the Family Code to solemnize the marriage. However, under the new Local Government Code of 1992, the
Mayor is once again empowered to solemnize marriage. The authority of the solemnizing officer to
solemnize marriage is presumed in the absence of any showing to the contrary. It is not the duty of the
solemnizing officer to scrutinize that the marriage license was duly issued. However, in marriage under
articulo mortis, the solemnizing officer must endeavour to ascertain the ages and relationship of the
contracting parties and the absence of legal impediment to marry. This is true in all marriages exempt
from the requirement of a marriage license. As in the case of marriages under Article 34, the solemnizing
officer must first ascertain the qualifications of the parties

44
 2. However, if either or both parties believe in good faith that the person who solemnized their
marriage is authorized by law to do so, then the marriage is considered valid (See: Article 35,par.2, ).

3. A certification issued by the Local Civil Registrar that no marriage license was issued by his
Office must be clear and unequivocal. The certification must categorically state that the document does not
exist in his office or the particular entry could not be found in the registry despite diligent search. The
presumption of regularity in the performance of official act may be rebutted by affirmative evidence of
irregularity as in this case where an employee of the Local Civil Registrar testified that the book which may
have contained the subject marriage license could no longer be found in their office and the person in-
charge thereof has already retired. ( Sevilla vs. Cardenas, G.R. No. 167684, July 31, 2006)

4. The issuance of a marriage license is the most important requisite in the validity of marriage as
it is the only act whereby the state intervenes in the formation of the family. It is in the issuance of the
license that the State determines whether or not there are impediments in the marriage. Thus, the
marriage license should be an important requisite of marriage such that without it, the marriage should be
considered void. To be considered void on the ground of absence of a marriage license, the law requires
that the absence of such marriage license must be apparent on the marriage contract or at the very least,
supported by a certification from the local civil registrar that no such marriage license was issued to the
parties ( Alcantara vs. Alcantara, G.R. No. 167776, Aug. 28, 2007).

5. The marriage license must be secured from the Office of the Local Civil Registrar of the
place where either of the parties resides. Upon application, the parties must wait for ten days
before it is issued. Once issued, it will be valid for 120 days and it can be used anywhere in the
Philippines. Any irregularities in the issuance of a marriage license, however, does not render
the marriage void for as long as it does not affect the legal capacity of the party to marry.
Thus, non-disclosure by a party that he is still a minor or that they belong to the same sex which resulted
to the issuance of the license will invalidate the marriage.

5. The Family Code does not prescribe any particular form of a marriage ceremony. It merely
imposes a minimum requirement, which is that the parties must personally appear before the
solemnizing officer and declare that they take each other as husband and wife in the presence
of at least two witnesses who are of legal ages (Article 6).

6. The consent to the marriage need not be expressed verbally. It can be deduced from
the contemporaneous action of the parties showing that they take each other as husband and wife. Thus,
the failure of the solemnizing officer to ask the parties whether they take each other as
husband and wife cannot be regarded as a fatal omission, and is not a cause for annulment, it
being sufficient that they declared in and signed the marriage contract that they take each
other as husband and wife. A declaration by word of mouth of what the parties had already stated in
writing would be a mere repetition, so that its omission should not be regarded as a fatal defect
(Annotation on Annulment of Marriage by Judge Domingo Luciano, 22 SCRA 525).

7. Although the law requires the parties to declare in the presence of the solemnizing officer that
they take each other as husband and wife, and that the same must be reflected in the marriage contract,
45
the absence thereof does not render the marriage void. Marriage certificate is not an essential nor
formal requisite of marriage. Failure to sign a marriage certificate itself does not render the
marriage void (Madridejo vs. De Leon, 55 Phil. 1).

8. The intervention in a valid marriage ceremony of an ecclesiastical or civil functionary

authorized by the state to solemnize marriage is one of the indispensable requisites for a valid marriage in
the Philippines. Thus, a common law marriage, recognized in England and the United States, where a man
and a woman who have already been living together for quite a number of years will be considered as
married, is not recognized here. A man and a woman who cohabit without a marriage ceremony may be
considered legally married in common-law jurisdictions but not in the Philippines (Eugenio, Sr., vs. Velez,
185 SCRA 425).

D. Absence, Defect and Irregularities in the Essential and Formal Requisites:

Art. 4 – The absence of any of the essential or formal requisites

shall render the marriage void ab initio, except as stated in Article
35(2).
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect the
validity of the marriage but the party or parties responsible for the
irregularity shall be civilly, criminally and administratively liable.

NOTES

1. Absence of any of the essential or formal requisites shall render the marriage void. Thus, a
marriage of a party who is below 18 years of age is not valid because of the absence of legal capacity to
contact marriage. Consent to the marriage by way of jest is also void for lack of valid consent.

2. Absence of authority to solemnize the marriage on the part of the solemnizing officer
renders the marriage void except when either or both parties believe in good faith that the
person who solemnized the marriage has the authority to do so. Absence of a valid marriage
license renders the marriage void except in those cases enumerated under Chapter 2, Title 1 of
the Family Code which is the chapter on Marriages Exempt from the Requirement of a Marriage License. For
the marriage to be void, the absence of the marriage license must be apparent on the marriage contract
(Alcantara vs. Alcantara, G.R.No. 167776, August 28, 2007).

3. Absence of marriage ceremony renders the marriage void. Thus, a marriage without a
ceremony as the parties were just made to sign the marriage contract by the solemnizing officer because the
latter was in a hurry for another appointment makes the marriage void (Morigo vs. People, G.R.No. 145226,
Feb. 6, 2004).

4. Marriage by Proxy solemnized in the Philippines is not valid because of the absence of consent
that must be given in the presence of the solemnizing officer. Also, it cannot be valid because of the absence

46
of the formal requirement that the parties must personally appear before the solemnizing officer and declare
that they take each other as husband and wife.

5. Defect in the essential requisites of marriage makes the marriage merely voidable.
This refers particularly to the vice or defect in the consent to the marriage. This is governed by
Articles 45 and 46 of the Family Code.

6. Irregularities in the formal requisites do not affect the validity of the marriage but the
person responsible for such irregularity can be held civilly, criminally or administratively. Thus, a
marriage license issued without complying with the ten days publication does not render the marriage void but
the Local Civil Registrar who issued it can be held criminally or administratively liable.

7. The following are merely considered as irregularities which do not affect the validity of the
marriage:
a.) Marriage solemnized in a place other than in the church or in the
chamber of the judge;
b.) Absence of two witnesses who are of legal age;
c.) Issuance of a license in a place where neither of the parties
reside (Alcantara vs. Alcantara, G.R. No. 167776, Aug. 28, 2007);
d.) Issuance of a license without the required supporting papers
or documents;
f.) Absence of a marriage contract.
g.) Issuance of license despite failure of the party to present parental consent or parental
advise when required;
h.) Issuance of license despite absence of posting of notice and publication;
i.) Failure to undergo marriage counselling;
j.) Failure to pay the required fee for marriage license.

8. A marriage solemnized by a Judge who knew very well that the parties have not yet secured the
required marriage license is not valid. The marriage license duly issued by the Local Civil Registrar
must already be existing at the time of the celebration of marriage. A Judge who proceeded to
solemnize the marriage despite the absence of marriage license out of human compassion because he feared
that his refusal might aggravate the physical condition of the groom who just suffered from a stroke and also
to save the parties from embarrassment to the people who attended the wedding can be charged
administratively. The license issued after the celebration of the marriage does not cure the
invalidity of the marriage (Aranes vs. Occiano, A.M. No. MTJ-02-1390, April 11, 2002).

9. A marriage which preceded the issuance of the marriage license is void, and that the subsequent
issuance of such license cannot render valid or even add an iota of validity to the marriage (People vs. Lara,
C.A. O.G. 4079; Cosca vs. Palaypayon, 237 SCRA 249).However, if there was already a marriage license
duly issued but the parties merely forgot to bring it when they went to the solemnizing officer,
the solemnization of the marriage subject to the presentation of the marriage license later on
does not affect the validity of the marriage. The Judge acted improperly but the marriage is still
valid.

47
 10. The law requires that there must first be a license before the celebration of the
marriage. Its recording is not a requisite for its validity. In fact, a marriage is valid even if there is no
marriage contract, as the latter is not an essential requisite to the validity of the marriage. The non-recording
of the marriage license number in the marriage contract is not fatal and it does not necessarily mean that no
license was issued (Geronimo vs. C.A.,et al., G.R. No. 105540, July 5, 1993).

10. A marriage solemnized by a Judge outside his territorial jurisdiction is a mere

irregularity in the formal requisite under Article 3, which, while it may not affect the validity of
the marriage, may subject the Judge to administrative liability (Navarro vs. Domagtoy, A.M. No. MTJ
06-1088, July 19, 1996).

11. Issuance of a marriage license in a city or municipality, not the residence of either of the
contracting parties, and the issuance of a marriage license despite the absence of publication or prior to the
completion of the 10-day period for publication are considered mere irregularities that do not affect the
validity of the marriage. An irregularity in any of the formal requisites of marriage does not affect its
validity but the party or parties responsible for the irregularity are civilly, criminally and administratively liable
(Alcantara vs. Alcantara, 531 SCRA 446).

E. Persons authorized to solemnize marriage:

Art. 7 – Marriage may be solemnized by:

1.) Any incumbent member of the judiciary within the court’s

jurisdiction;

2.) Any priest, rabbi, imam, or minister of any church or religious

sect duly authorized by his church or religious sect and registered with
the civil registrar general, acting within the limits of the written
authority granted him by his church or religious sect and provided that
at least one of the contracting parties belongs to the solemnizing
officer’s church or religious sect;

3.) Any ship captain or airplane chief only in cases mentioned in

Article 31;

4.) Any military commander of a unit to which a chaplain is

assigned, in the absence of the latter, during a military operation,
likewise only in the cases mentioned in Article 32; or

5.) Any consul-general, consul or vice-consul in the case

provided in Article 10.

NOTES

1. A Judge who can solemnize marriage must be incumbent. Thus, a retired Judge can no longer
solemnize marriage. The judges referred to in this article are the judges of the regular courts, i.e. MTC,
MTCC, MCTC, RTC, CA, and the SC. Those assigned as hearing officers or judges of the quasi-judicial
bodies have no authority to solemnize marriage.

48
 2. A Judge can solemnize marriage only within his territorial jurisdiction. But, in the case
of Navarro vs. Domagtoy the Supreme Court said that such defect is only an irregularity in the formal
requisite but it does not affect the validity of the marriage. The Judge may, however, be held
administratively liable.

3. A priest of the Roman Catholic Church, an Imam of the Muslims, a Rabbi of the Jews, a Minister or
Pastor of other religions may solemnize marriage provided the following conditions are met:

a.) Must be authorized by his/her church or religious sect;

c.) Must act within the limits of the written authority granted him by his
church or religious sect;

d.) At least one of the contracting parties belongs to the solemnizing

officer’s church or religious sect.

4. A ship captain and airplane chief can solemnize marriage only when one of the parties is at
the point of death (articulo mortis) and that the parties must be passengers or crew members of the
ship or airplane while it was in transit.

5. Military Commander can also solemnize marriage if the following requisites are present : a.)
He must be a commissioned officer commanding a military unit where a chaplain is assigned; b.) The assigned
chaplain is absent at the time the marriage is solemnized; c.) The marriage must be in articulo mortis; d.) The
contracting parties must be a member of his unit or a civilian; e.) The marriage must be done in the zone
or area of military operation.

6. Consul-General, Consul, or Vice Consul can solemnize marriage only if both parties are
Filipino and the marriage is done abroad. Here, the consul acts not only as the solemnizer but also
performs the duties of the Local Civil Registrar by issuing the marriage license. The marriage between a
Filipino and a foreigner solemnized by a consul abroad is not valid as the Consul is not authorized
to solemnize such marriage.

7. Mayors can once again solemnize marriage by virtue of the Local Government Code which took
effect on January 1, 1992. A Vice-Mayor, acting as a Mayor, can solemnize marriage because he can
exercise the powers of the Mayor in the absence of the latter (People vs. Bustamante, 105 Phil. 64).

F. Venue of marriage:

Art. 8 – The marriage shall be solemnized publicly in the

chambers of the judge or in open court, in the church, chapel or
temple, or in the office of the consul-general, consul or vice-consul, as
the case may be, and not elsewhere, except in the cases of marriages
contracted at the point of death or in remote places in accordance with
Article 29 of this Code, or where both of the parties request the
solemnizing officer in writing in which case the marriage may be
solemnized at a house or place designated by them in a sworn
statement to that effect.
49
 NOTES

1. The venue of marriage as provided in this Article is not mandatory but directory in nature.
Thus, a marriage solemnized by the Judge outside the courtroom or his chamber, or by a Priest
outside the church is still valid. However, the solemnizer can be held liable for solemnizing it outside the
venue stated by law. There are, however, two instances where the marriage may be solemnized validly
outside the venue stated in this Article, and these are: (1.) When one of the party is at the point of
death, and (2.) When both of the parties request the solemnizing officer in writing to solemnize it
elsewhere.

2. A marriage solemnized by a Judge outside his territorial jurisdiction is still valid as it is merely
considered an irregularity in one of the formal requisites of marriage. The judge who solemnized the marriage
may be held administratively liable as ruled by the Supreme Court in the Navarro vs. Domagtoy case.

G. Marriage License (Who can issue):

Art. 9 – A marriage license shall be issued by the Local Civil

Registrar of the city or municipality where either contracting party
habitually resides, except in marriages where no license is required in
accordance Chapter 2 of this Title.

Art. 10 – Marriages between Filipino citizens abroad may be

solemnized by a consul-general, consul or vice-consul of the Republic
of the Philippines. The 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.
(75a)

NOTES

1. Before the parties can contract marriage, they must first secure a marriage license from the Local
Civil Registrar of the place where either of them resides. The marriage license serves as the authority
given by the state to the parties to enter into the contract of marriage. It is the concern of the state
to make marriages the secure and stable institution they should be.

2. A marriage license issued by the Local Civil Registrar of the place where neither of the
parties is a resident does not render the marriage void. It is considered merely as an irregularity in
the formal requisites for which the Local Civil Registrar or the parties responsible for such irregularity can
be held liable.

3. When both parties to the marriage are Filipinos and they want the marriage to be solemnized by
the Philippine Consul in that country, they must secure first the required marriage license from the Consul
himself. Thus, the Consul acts as the Local Civil Registrar by issuing the license and at the same time as the
solemnizing officer.

H. Application for Marriage License:

50
 Art. 11- Where a marriage licence is required, each of the
contracting parties shall file separately a sworn application for such
license with the proper local civil registrar which shall specify the
following:

1) Full name of the contracting parties;

2) Place of birth;
3) Age and date of birth;
4) Civil status;
5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
6) Present residence and citizenship;
7) Degree of relationship of the contracting parties;
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 charge, in case the contracting parties has
neither father nor mother and is under the age of twenty-one
years.

The applicants, their parents or guardians shall not be required

to exhibit their residence certificate in any formality in connection with
the securing of the marriage license. (59a)

Art. 12- The local civil registrar, upon receiving such application,
shall require the presentation of the original birth certificates or, in
default thereof, the baptismal certificates of the contracting parties or
copies of such document duly attested by the persons having custody
of the original. These certificates or certified copies of the documents
required by this article need not be sworn to and shall be exempt from
the documentary stamp tax. The signature and official title of the
person issuing the certificate shall be sufficient proof of its
authenticity.

If either of the contracting parties is unable to produce his birth

or baptismal certificate or a certified copy of either because of the
destruction or loss of the original, or if it is shown by an affidavit of
such party or of any other persons that such birth or baptismal
certificate has not yet been received though the same has been
required of the person having custody thereof at least fifteen days
prior to the date of the application, such party may furnish in lieu
thereof his current residence certificate or an instrument drawn up and
sworn to before the local civil registrar concerned or any public official
authorized to administer oaths. Such instrument shall contain the
sworn declaration of two witnesses of lawful age, setting forth the full

51
 name, residence and citizenship of such contracting party and of his or
her parents, if known, and the place and date of birth of such party.
The nearest of kin of the contracting parties shall be preferred as
witnesses, or, in their default, persons of good reputation in the
province or the locality.

The presentation of the birth or baptismal certificate shall not be

required if the parents of the contracting parties appear personally
before the local civil registrar concerned and swear to the correctness
of the lawful age of said parties, as stated in the application, or when
the local civil registrar shall, by merely looking at the applicants upon
their personally appearing before him, be convinced that either or both
of them have the required age. (60a)

Art. 13- In case either of the contracting parties has been

previously married, the applicant shall be required to furnish, instead
of the birth or baptismal certificate required in the last preceding
article, the death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree of the annulment
or declaration of the nullity of his or her previous marriage. In case the
death certificate cannot be secured, the party shall make an affidavit
setting forth this circumstance and his or her actual status and the
name and date of death of the deceased spouse. (61a)

Art. 14- In case either or both of the contracting parties, not having
been emancipated by a previous marriage, are between the ages of
eighteen and twenty-one, they shall, in addition to the requirements of
the preceding articles, exhibit to the local civil registrar, the consent to
their marriage of their father, mother, surviving parent or guardian, or
persons having legal charge of them, in the order mentioned. Such
consent shall be manifested in writing by the interested party who
personally appears before the proper local civil registrar, or in the form
of an affidavit made in the presence of the two witnesses and attested
before any official authorized by the law to administer oaths. The
personal manifestation shall be recorded in both applications for the
marriage license, and the affidavit, if one is executed instead, shall be
attached to said application. (61a)

Art. 15- Any contracting party between the ages of twenty-one

and twenty-five shall be obliged to ask their parents or guardian for
advice upon the intended marriage. If they do not obtain such advice,
or if it be unfavorable, the marriage license shall not be issued till after
three months following the completion of the publication of the
application therefor. A sworn statement by the contracting parties to
the effect that such advice has been sought, together with the written
52
 advice given, if any, shall be attached to the application for marriage
licence. Should the parents or guardian refuse to give any advice this
fact shall be stated in the sworn statement. (62a)

Art. 16- In the cases where parental consent or parental advice

is needed, the party or parties concerned shall, in addition to the
requirements of the preceding articles, attach a certificate issued by a
priest, imam or minister authorized to solemnize marriage under
Article 7 of this Code or a marriage counselor duly accredited by the
proper government agency to the effect that the contracting parties
have undergone marriage counselling. Failure to attach said certificate
of marriage counselling shall suspend the issuance of the marriage
license for a period of three months from the completion of publication
of the application. Issuance of the marriage license within the
prohibited period shall subject the issuing officer to administrative
sanctions but shall not affect the validity of the marriage.

Should only one of the contracting parties need parental consent

or parental advice, the other party must be present at the counselling
referred to in the preceding paragraph. (n)

NOTES

1. The application for marriage shall contain the necessary information enumerated in Article 11 and
must be accompanied by the following documents, to wit:

a.) Birth certificate or Baptismal certificate of the parties (Art. 12);

b.) If either of the parties has been previously married, the death
certificate of the deceased spouse or the judicial decree
of the absolute divorce, annulment of marriage or
declaration of nullity of marriage (Art. 13);
c.) In case the party is between the ages of eighteen and twenty
one, they must present parental consent (Art. 14);
d.) If the party is between the ages of twenty one and twenty five,
parental advice is required (Art. 15);
e.) Certificate of marriage counselling in cases where parental
consent or parental advice is required (Art. 16).
f.) If a party to the marriage is a foreigner, he must present a
certificate of legal capacity to marry issued by his diplomatic or
consular representative in the Philippines (Art. 21 ).

3. Birth certificate or baptismal certificate is required in order for the local civil registrar to determine
whether the party is of legal age and is legally capacitated to contract marriage. The requirement of
presenting the birth certificate, however, is no longer needed in the following instances: (1.) if the parents of
the party concerned will personally appear before the local civil registrar and attest to the fact
53
that said party is already of legal age; (2.) When the local civil registrar shall, by merely looking
at the personal appearance of the party, be convinced that he/she is already of legal age; (3.)
When the party has been previously married;

4. When the party is between the ages of eighteen and twenty one, parental consent is required.
Absence of parental consent renders the marriage voidable, meaning it is valid until annulled
(Art. 45 par. 1). Preference is given to the father to give consent, otherwise, the mother, surviving
parent or guardian or persons having legal charge of them in the order mentioned shall give the consent.

5. Parental advice is required if a party is between the ages of twenty one and twenty five.
Absence of parental advice does not affect the validity of marriage. Its only effect is that the local
civil registrar may withhold the issuance of the marriage license till after three months following
the completion of the publication of the application (Art. 15).

6. In cases where parental consent or parental advice is required, the parties must first undergo
marriage counselling and attach to their application for marriage license a certification that they have
already undergone marriage counselling. This certificate shall be issued by the persons authorized to
solemnize marriage or by any marriage counsellor duly accredited by the proper government agency. Failure
to attach said certificate shall cause the suspension of the issuance of the marriage license for a period of
three months. Issuance of the license in violation of this provision does not affect the validity of the marriage,
but, the local civil registrar may be held administratively liable (Art. 16).

I. Duty of the Local Civil Registrar:

Art. 17- The local civil registrar shall prepare a notice which shall
contain the full names and residences of the applicants for a marriage
license and other data given in the applications. The notice shall be
posted for ten consecutive days on a bulletin board outside the office
of the local civil registrar located in a conspicuous place within the
building and accessible to the general public. This notice shall request
all persons having knowledge of any impediment to the marriage to
advise the local civil registrar thereof. The marriage license shall be
issued after the completion of the period of publication. (63a)

Art. 18- In case of any impediment known to the local civil

registrar or brought to his attention, he shall note down the particulars
thereof and his findings thereon in the application for a marriage
license, but shall nonetheless issue said license after the completion of
the period of publication, unless ordered otherwise by a competent
court at his own instance or that of any interested party. No filing fee
shall be charged for the petition nor a corresponding bond required for
the issuance of the order. (64a)

Art. 19- The local civil registrar shall require the payment of the
fees prescribed by law or regulations before the issuance of the
marriage license. No other sum shall be collected in the nature of a fee
or a tax of any kind for the issuance of said license. It shall, however,
be issued free of charge to indigent parties, that is, those who have no
54
 visible means of income or whose income is insufficient for their
subsistence, a fact established by their affidavit, or by their oath before
the local civil registrar. (65a)

NOTES

1. Upon receipt of the application for marriage license, it is the duty of the local civil registrar to
immediately post a notice to inform the public of the impending marriage. The notice shall be posted in the
bulletin board outside the office of the local civil registrar for ten consecutive days. The notice shall request
all persons having knowledge of any impediment to the marriage to inform the local civil registrar about it.
The marriage license shall be issued only after the lapse of the ten day period of publication.
Should the local civil registrar issue the license before the lapse of the ten day period, he can be
held administratively liable but the marriage will remain valid.

2. If the local civil registrar is informed of any legal impediment of a party applying for a marriage
license he shall note down the particulars thereof, but he could no longer refuse the issuance of the license.
Even if he is made aware of the impediments he must still issue the license except if he is
restrained by the court at his own instance or of any interested party.

3. The local civil registrar shall collect payment of fees for the issuance of the marriage license in the
amount of P300.00. However, it shall be issued free of charge to indigent parties.

J. Life of the Marriage License:

Art. 20- The license shall be valid in any part of the Philippines
for a period of one hundred twenty days from the date of issue, and
shall be deemed automatically cancelled at the expiration of said
period if the contracting parties have not made use of it. The expiry
date shall be stamped in bold characters at the face of every license
issued. (65a)

NOTES

1. The marriage license, once issued, shall be valid anywhere in the Philippines for a period of
One Hundred Twenty (120) days. If it is not used within the said period it shall automatically expire. Thus,
a marriage solemnized on the basis of an expired marriage license is null and void.

K. Certificate of Legal Capacity to Marry:

Art. 21- When either or both of the contracting parties are

citizens of a foreign country, it shall be necessary for them before a
marriage license can be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective diplomatic or
consular officials.
55
 Stateless persons or refugees from other countries shall, in lieu
of the certificate of legal capacity herein required, submit an affidavit
stating the circumstances showing such capacity to contract marriage.
(66a)

NOTES

1. When either or both parties to the marriage are foreigners, marriage license is still
required if they want the marriage to be solemnized here in the Philippines. For the foreigner
spouse, it is not anymore necessary for him/her to present birth certificate. Instead what the law requires is
for the said party to present a certificate of legal capacity to contract marriage duly issued by their respective
diplomatic or consular official. This is so because a person’s capacity to marry is determined by
his/her national law (Art. 15 Civil Code). So, even if a foreigner is below eighteen years of age he
can contract marriage here in the Philippines if his national law allows him to marry at that age.

2. However, if both parties are foreigners and they desire to have their marriage
solemnized by their country’s consul-general assigned here in the Philippines, the marriage can
be solemnized without a marriage license if their country’s law allow the same. Such marriage is
recognized as valid here in the Philippines.

L. Marriage Certificate:

Art. 22- The marriage certificate, in which the parties shall

declare that they take each other as husband and wife, shall also state:

1) The full name, sex and age of each contracting party;

2) Their citizenship, religion and habitual residence;

3) The date and precise time of the celebration of the marriage;

4) That the proper marriage license has been issued according to

law, except in marriages provided for in Chapter 2 of this Title;

5) That either or both of the contracting parties have secured

the parental consent in appropriate cases;

6) That either or both of the contracting parties have complied

with the legal requirement regarding parental advice in appropriate
cases; and

7) That the parties have entered into a marriage settlement, if

any, attaching a copy thereof. (67a)

Art. 23- It shall be the duty of the person solemnizing the

marriage to furnish either of the contracting parties the original of the
marriage certificate referred to in Article 6 and to send the duplicate
and triplicate copies of the certificate not later than fifteen days after
56
 the marriage, to the local civil registrar of the place where the
marriage was solemnized. Proper receipt shall be issued by the local
civil registrar to the solemnizing officer transmitting copies of the
marriage certificate. The solemnizing officer shall retain in his file the
quadruplicate copy of the marriage certificate, the original of the
marriage license and, in proper cases, the affidavit of the contracting
party regarding the solemnization of the marriage in a place other than
those mentioned in Article 8. (68a)

Art. 24- It shall be the duty of the local civil registrar to prepare
the documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The documents
and affidavits filed in connection with the applications for marriage
licenses shall be exempt from documentary stamp tax. (n)

Art. 25- The local civil registrar concerned shall enter all
applications for marriage licenses filed with him in a registry book
strictly in the order in which the same are received. He shall record in
the said book the names of the applicants, the date on which the
marriage license was issued, and such other data as may be necessary.
(n)

NOTES

1. The best evidence to establish or prove marriage is the marriage contract or the
marriage certificate (Lim Tanhu vs. Ramolete, 66 SCRA 425). It is a certification issued by the solemnizing
officer that he performed or solemnized the marriage between the parties. However, absence of a marriage
certificate does not invalidate the marriage as it is not even one of the essential requisites for the
validity of marriage. The rule is that persons dwelling together in apparent matrimony are presumed, in
the absence of any counter-presumption or evidence special to the case, to be in fact married (Perido vs.
Perido, 63 SCRA 97).

2. A man and a woman deporting themselves as husband and wife are presumed to have entered
into a lawful contract of marriage. This presumption of marriage shall stand unless contradicted or
overcome by evidence to the contrary. The reason for this presumption is that the law favors morality
and not immorality; marriage and not concubinage; legitimacy and not bastardy.

3. A man and a woman living together for more than 50 years are always presumed married even if
no marriage license could be shown. Under Rule 131, Sec. 3 of the Rules of Court, a disputable
presumption is created in favor of marriage, thus, a man and a woman deporting themselves as
husband and wife are presumed to have entered into a lawful contract of marriage. In this case, several
circumstances give rise to the presumption that a valid marriage existed between Guillermo Rustia and Josefa
Delgado. Once the presumption of marriage arises, other evidences may be presented in support thereof. In
this jurisdiction, every intendment of the law leans towards legitimizing matrimony. Persons dwelling together
apparently in marriage are presumed to be in fact married. This is the usual order of things in society and, if
the parties are not what they hold themselves out to be, they would be living in constant violation of the
common rules of law and propriety. Semper praesumitur pro patrimonio. Always presume marriage (In
57
the matter of the Intestate Estates of the Deceased Josefa Delgado and Guillermo Rustia vs. Heirs of Marciana
Rustia Vda. de Damian et al., G.R. No. 155733, January 27, 2006, 480 SCRA 334).

4. A marriage, like any other contract, may be proved by evidence of any kind. It may be proved
by parol evidence or testimony by one of the parties or witnesses to the marriage, or by the
person who solemnized the same. 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 statement of such
marriage in subsequent documents are competent evidence to prove the fact of marriage. (Pugeda vs. Trias, 4
SCRA 849).

5. It is incumbent upon the person who attacked the validity of marriage to present a strong and
satisfactory evidence to rebut the presumption of validity. The evidence to prove the invalidity of the
marriage may even be presented for the first time on appeal. Thus, even if the petitioner failed to
assert the absence of a marriage license as a ground for nullity of marriage as her petition was anchored
solely on the ground of psychological incapacity under Article 36, the Supreme Court declared the marriage
void on the ground of absence of a license. The Court made an exception to the general rule that a party
cannot raise an issue for the first time on appeal because the marriage contract itself, which was presented as
evidence, clearly showed that the marriage was solemnized on November 15, 1973 while the marriage license
was issued only on September 17, 1974. Thus, it is quite glaring that at the time of the celebration of the
marriage, the license was not yet issued (Sy vs. Court of Appeals, G.R. No. 127263, April 12, 2000).

6. It is the duty of the local civil registrar to prepare the documents required in this Title without
charge. Then, he shall enter all applications for marriage licenses in the registry book in the order in which the
same are received.

M. Lex Loci Celebraciones Rule in Marriage:

Art. 26- All marriages solemnized outside the Philippines, in

accordance with the laws in force in the country where they are
solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37,
and 38.

Where a marriage between a Filipino citizen and a foreigner is

validly celebrated and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine law.
(n) (As amended by Executive Order Number 227, July 17, 1987.)

NOTES

1. The lex loci celebraciones rule in marriage simply means that if the marriage is
celebrated abroad and it is considered as valid there, it shall also be considered as valid
here. The recognition by our law of the validity of the marriage celebrated abroad is a matter of
international comity. However, when the marriage celebrated abroad is repugnant to our country’s
laws and policy, our court is not bound by comity to give effect to it. This is because a state is the

58
conservator of its own moral and good order of society. Thus, it has the right to declare what marriages
it will or will not recognize within its border.

2. The Family Code, however, provides that even if the marriage is valid in the country where
it was celebrated, the same cannot be recognized as valid here if it is one of the void
marriages under Articles 35(1), (4), (5) and (6), 36, 37 and 38. In the light of the foregoing
exceptions, the following marriages, even if considered as valid in the country where it was
solemnized, can never be considered as valid in the Philippines, to wit:

a.) If the party who is a Filipino is below 18 years old;

b.) If the marriage is bigamous or polygamous not falling under Art. 41;
c.) If contracted through mistake of identity of the other party;
d.) If the party whose previous marriage has been annulled or declared
void, contracts a second marriage but failed to record the judicial
decree with the LCR, to partition their conjugal properties, and
deliver the presumptive legitime of their children (Art. 53);
e.) Where one of the party is psychologically incapacitated (Art. 36);
f.) Marriages considered incestuous (Art. 37);
g.) Marriages that are against public policy (Art. 38);

3. A marriage validly solemnized abroad shall always be considered as valid here for as
long as it does not fall under the exceptions mentioned in Article 26 par. 1 of the Family Code.
Thus, a marriage without a license, a marriage solemnized by a person not authorized to
solemnize marriage under Art. 7 of the Family Code, or a marriage by proxy, if considered valid in
the country where it was celebrated, shall also be considered as valid here in the Philippines. This
is so because these marriages are not among the void marriages mentioned in the exceptions to the lex loci
celebraciones rule;

4. Some countries recognize common law marriages as valid. This kind of marriage between Filipinos,
however, cannot be considered as valid here because Article 26 speaks of marriages solemnized abroad. The
word solemnize presupposes the performance of a marriage ceremony which is wanting in a common law
marriage.

5. As a general rule, absolute divorce obtained by a Filipino spouse abroad is not

recognized as valid here because we adhere to the nationality theory under Article 15 of the Civil
Code. A person is governed by his national law wherever he may go when it comes to family rights and
duties, status, conditions and legal capacity is concerned. This is true even if the other spouse is not a Filipino;

6. In case of marriage between a Filipino and a foreigner (mixed marriage), and it is the
foreigner spouse who obtained a divorce abroad against the Filipino spouse, capacitating him to
remarry, the said divorce will be recognized here to capacitate the Filipino spouse to remarry
(see: Article 26 par. 2 as amended). The recognition of the divorce obtained by the foreigner spouse was
intended to correct the very unfair situation created by the former law wherein even if the alien spouse has
already divorced his Filipino spouse and is already married to another woman the Filipino spouse is still
considered married to him. However, for the foregoing rule to apply, it is important that it is the foreigner

59
spouse who filed the divorce and that after it is granted he must be capacitated to marry again according to
his national law.

7. However, in the case of Republic vs. Cipriano Orbecido III, G.R. No. 154380, Oct. 5, 2005,
the Supreme Court ruled that a divorce decree obtained by the wife who is now a U.S. citizen,
against her Filipino husband who continued to live here in the Philippines, is considered valid.
Thus, it will capacitate the husband to marry again here. The Court said that Article 26 par. 2 applies not
only to foreigners divorcing their Filipino spouse but also to former Filipinos who obtained
foreign citizenship and thereafter filed a divorce against the other spouse.

8. The divorce obtained by the foreigner spouse abroad does not ipso facto entitle the Filipino spouse
to remarry. Before the Filipino spouse could remarry, he/she must first prove in court the fact of
divorce obtained by the foreigner spouse and also the fact that said spouse is capacitated by his
national law to remarry after the divorce (Garcia-Recio vs. Recio, G.R. No. 138322, Oct. 2, 2001). The
action to be filed in court is Declaratory Relief as ruled by the Supreme Court in the Orbecido case;

9. Prior to the Orbecido ruling, it was said that a Filipino spouse who filed a divorce against her
foreigner spouse is not capacitated to remarry as said divorce is not recognized here in the Philippines. The
Filipino spouse is still governed by her national law. But, if the Filipino spouse has already acquired the
citizenship of her husband by virtue of the marriage and thereafter obtained a divorce against him, such
divorce is considered as valid here not because of Article 26 but because of our adherence to the nationality
principle in so far as the status of the person is concerned (Quita vs. Court of Appeals, 300 SCRA 406; Llorente
vs. Court of Appeals, G.R. No. 124371, Nov. 23, 2000).

10. However, even if the divorce obtained by the Filipina wife against her alien husband abroad is not
recognized as valid here, the husband cannot anymore claim that he still has an interest in the property
acquired by his Filipina wife after the divorce on the ground that under the Philippine law their marriage is still
subsisting. Since the foreigner husband is already considered divorced under his national law then
he has no more interest in the properties acquired by his former wife after the divorce (Van Dorn
vs. Romillo, 139 SCRA 139). In another case, the Supreme Court also ruled that a Filipina wife who
divorced her foreigner husband and thereafter had sexual intercourse with another man cannot
be charged by her former husband of adultery because although she is still considered married to him by
our law, such foreigner is no longer considered married by his law to his Filipina wife and, therefore, he does
not have a legal standing anymore to file the adultery case. Considering that he is already considered
divorced by his national law, then he is no longer considered a spouse who can file the criminal
case for adultery (Pilapil vs. Ibay Somera, 174 SCRA 653).

10. Article 26 provides that marriages validly celebrated abroad shall as a rule be considered also as
valid here. Therefore, if the marriage of a Filipino abroad is considered as void or voidable under
the law of the country where it was celebrated, the marriage can also be annulled or declared
void here by our court. For example, if the marriage is solemnized without the presence of
witnesses who are of legal age and such marriage is considered null and void in the country
where it was celebrated, then it is also considered void here and a case to declare the marriage
void may be filed in our court. This is true even if the said kind of marriage would have been valid
here.

60
 11. A divorce decree obtained by a former Filipina citizen who has now acquired American
citizenship is recognized as valid here in the Philippines if sufficiently proven or established as a
fact. Her filing an action to declare the nullity of her marriage to her husband on the ground of the latter’s
psychological incapacity under Article 36 of the Family Code is no longer tenable. Given the validity and
efficacy of divorce secured by her, the same shall be given a res judicata effect in this jurisdiction. As an
obvious result of the divorce decree obtained, the marital vinculum between Rebecca and Vicente is
considered severed and they are both freed from the bond of matrimony. Therefore, the petition under
Article 36 is dismissible for lack of cause of action (Bayot vs. Court of Appeals, G.R. No.
155635/163979, November 7, 2008).

Chapter 2

MARRIAGES EXEMPT FROM LICENSE REQUIREMENT

A. Marriage under Articulo Mortis:

Art. 27- In case either or both of the contracting parties are at

the point of death, the marriage may be solemnized without necessity
of a marriage license and shall remain valid even if the ailing party
subsequently survives. (72a)

Art. 28- If the residence of either party is so located that there is

no means of transportation to enable such party to appear personally
before the local civil registrar, the marriage may be solemnized without
necessity of a marriage license.

Art. 29- In the cases provided for in the two preceding articles,
the solemnizing officer shall state in an affidavit executed before the
local civil registrar or any other person legally authorized to administer
oaths that the marriage was performed in articulo mortis or that the
residence of either party, specifying the barrio or barangay, is so
located that there is no means of transportation to enable such party to
appear personally before the local civil registrar and that the officer
took necessary steps to ascertain the ages and relationship of the
contracting parties and the absence of a legal impediment to the
marriage. (72a)

Art. 30- The original of the affidavit required in the last

preceding article, together with a legible copy of the marriage contract,
shall be sent by the person solemnizing the marriage to the local civil
registrar of the municipality where it was performed within the period
of thirty days after the performance of the marriage. (73a)

61
 Art. 31- A marriage in articulo mortis between passengers or
crew members may also be solemnized by a ship captain or by an
airplane pilot not only while the ship is at sea or the plane is in flight,
but also during stopovers at ports of call. (74a)

Art. 32- A military commander of a unit, who is a commissioned

officer, shall likewise have authority to solemnize marriages in articulo
mortis between persons within the zone of military operation, whether
members of the armed forces or civilians. (74a)

NOTES

1. A marriage in articulo mortis is a marriage where one of the parties is at the point of
death. This kind of marriage can be solemnized even without a marriage license because of
necessity and practicability. The marriage can be solemnized by the ship captain or airplane chief if the
parties are passengers or crew of the vessel or airplane and the same is in transit (Art. 31). It can also be
solemnized by a military commander within the zone of military operation provided the assigned chaplain is
absent and the parties are members of the armed forces or civilians. Of course, the priest, judge and
other persons authorized to solemnize marriage under Article 7 of this Code can also solemnize
marriage under articulo mortis.

2. The person who solemnized the marriage under articulo mortis must execute an affidavit before
the local civil registrar stating that he solemnized the marriage under articulo mortis and that he took all the
necessary steps to ascertain the age and relationship of the contracting parties and that he is
convinced that they have no legal impediment to marry.

3. The original copy of the affidavit shall be submitted by the solemnizing officer to the local civil
registrar of the municipality or city where the marriage was performed within the period of thirty (30) days.

B. Marriage in a far and remote place:

Art. 28- If the residence of either party is so located that there is no

means of transportation to enable such party to appear personally
before the local civil registrar, the marriage may be solemnized without
necessity of a marriage license. (72a)

NOTES

1. If the parties are residing in a far and remote place that it is difficult for them to secure the
required marriage license because their place has no means of transportation, they will be exempted from the
said license requirement. The solemnizing officer must, however, execute an affidavit after the celebration of
the marriage stating that he solemnized the marriage in a far and remote place and that he ascertained the
age and relationship of the parties and the absence of any legal impediment to marry. The reason for

62
allowing this kind of marriage to proceed without a license is to encourage the parties to marry
and legalize their relationship instead of cohabiting in an illicit relationship.

C. Marriages among Muslims or members of ethnic cultural communities:

Art. 33- Marriages among Muslims or among members of ethnic

cultural communities may be performed validly without the necessity
of a marriage license, provided they are solemnized in accordance with
their customs, rites or practices. (78a)

NOTES

1. The Code of Muslim Personal Laws of the Philippines which was signed into law on February 4,
1977 is the governing law on persons and family relations among Muslims. Under the said law, marriage
license is not required for the validity of the marriage among Muslims. However, the Family Code
qualified it by saying that marriages among Muslims do not need a marriage license provided it is done in
accordance with their customs, rites or practices. This rule also applies to marriages among members of the
ethnic cultural communities. It is necessary, however, that the parties to the marriage must be both
Muslims or both members of the ethnic cultural communities because of the use of the word
“among”. If it is a mixed marriage, then the requirement of a marriage license cannot be
dispensed with.

D. Ratification of Marital Cohabitation:

Art. 34- No license shall be necessary for the marriage of a man

and a woman who have lived together as husband and wife for at least
five years and without any legal impediment to marry each other. The
contracting parties shall state 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 and found no legal impediment to the
marriage. (76a)

NOTES

1. When the parties have already been living together as husband and wife for at least five years
without any legal impediments to marry each other, the requirement of a marriage license is no longer
needed. What the parties will do is to execute a joint affidavit stating the foregoing fact and have it
notarized by a person duly authorized to administer oath. This affidavit will take the place of the
marriage license.

2. Before the solemnizing officer will solemnize the marriage, he must first ascertain the
qualifications of the contracting parties and must find no legal impediment. Failure of the
solemnizing officer, however, to perform that duty does not invalidate the marriage.

63
 3. There are two conditions that the parties must meet and they are: (1.) they must live together
as husband and wife for at least five years; and (2.) there must be no legal impediments for them
to marry each other. The question now is whether these two conditions should concur and qualify each
other. Under the previous law, which is the Civil Code of the Philippines, these conditions must
qualify each other. Meaning, during the entire five-year period of cohabitation either party must
not have any legal impediment to marry each other. This is evident from Article 76 of the Civil Code
which requires that the parties must be unmarried during the period of cohabitation. Thus, a married man who
is living with his paramour during the time that his legal wife is still alive cannot avail of the exception in case
he decides to marry his live-in partner after his wife’s death (Ninal vs. Bayadog, G.R.No. 133778, March 14,
2000, 328 SCRA 122).

4. Under Article 34 of the Family Code, these two conditions must concur, but they do not qualify
each other. This means that during the five year cohabitation period, it is not necessary that they
must have no legal impediment to marry each other. It is enough that they have no legal
impediment at the time they decide to marry each other. In other words, the absence or presence
of legal impediments should only be considered at the time of the celebration of the marriage
(Manzano vs. Sanchez, AM No. MTJ 00-1329, March 8, 2001).

5. The marriage solemnized without a marriage license on the basis of an affidavit executed by the
parties that they have already been living together as husband and wife for at least five years is null and
void if it turns out that the affidavit is falsified as the allegations therein are not true. If the truth is
that the parties did not live together for at least five years, then the marriage will not fall under the exception
and therefore there is a need for a marriage license. The falsified affidavit does not exempt the parties and
their marriage is considered to be one without a license, hence, void. The falsity of the affidavit cannot be
considered to be a mere irregularity considering that the 5-year period is a substantial requirement of
the law to be exempted from obtaining a marriage license (De Castro vs. Assidao-De Castro, G.R. No.
160172, February 13, 2008).

6. The falsity of an affidavit of marital cohabitation, where the parties have in truth fallen
short of the minimum five-year requirement, effectively renders the marriage void ab initio for
lack of marriage license. The marriage performed without the corresponding marriage license is void. The
rationale for the compulsory character of a marriage license under the Civil Code is that it is the authority
granted by the State to the contracting parties, after the proper government official has inquired into their
capacity to contract marriage. The reason for the law on ratification of marital cohabitation, whereby
no marriage license is required, is that the publicity attending a marriage license may discourage
such persons who have lived in a state of cohabitation from legalizing their status. Jurisprudence
has laid down the rule that the five-year common law cohabitation period under Article 76 of the Civil Code
means a five-year period computed back from the date of celebration of marriage, and refers to a period of
legal union had it not been for the absence of a marriage (Republic vs. Dayot, 550 SCRA 435).

7. It must be noted, however, that the Dayot case was decided by the Supreme Court in
the light of the provision of Article 76 of the Civil Code as the alleged live-in relationship and the
marriage occurred before the effectivity of the Family Code. Thus, it could not be safely said that
the Manzano ruling has already abandoned by the Dayot ruling;

Chapter 3

VOID AND VOIDABLE MARRIAGES

A. Void Ab Initio Marriages:

64
 Art. 35- The following marriages shall be void from the
beginning:

1) Those contracted by any party below eighteen years of age

even with the consent of parents or guardians;

2) Those solemnized by any person not legally authorized to

perform marriages unless such marriages were contracted with either
or both parties believing in good faith that the solemnizing officer had
the legal authority to do so;

3) Those solemnized without a license, except those covered by

the preceding Chapter;

4) Those bigamous or polygamous marriages not falling under

Article 41;

5) Those contracted through mistake of one contracting party as

to the identity of the other; and

6) Those subsequent marriages that are void under Article 53.

NOTES

1. There are two kinds of defective marriages, and these are the Void and the Voidable Marriages.
The basic distinction between these two types of defective marriages are the following: (1.) Void marriages
are defective from the very beginning and cannot be ratified unlike Voidable marriages which are ratifiable;
(2.) A void marriage can be attacked collaterally while a voidable marriage can only be attacked directly.
This means that the nullity of a void marriage can be raised even after the death of the parties while a
voidable marriage can only be questioned during the lifetime of the parties; (3.) The action to declare
the nullity of a void marriage is imprescriptible while the action to annul a voidable marriage
prescribes; and (4.) As a general rule, a void marriage can only be assailed by the parties to the marriage (
See: A.M. No. 02-11-10 S.C., Sec. 2(a)) while a voidable marriage can be questioned by other persons like
the parents of a party as in the case of a marriage without parental consent.

2. Void marriages under Article 35 are those marriages which are defective because they
fail to comply with the essential and formal requisites of marriage under Articles 2 and 3. A
marriage contracted by a party below 18 years of age is void because of the absence of legal capacity which is
one of the essential requisites for the validity of the marriage. Those solemnized by a person not authorized to
solemnize marriage and those marriages solemnized without a license are also void because of the absence of
the 1st and the 2nd formal requisites of marriage. Likewise, bigamous and polygamous marriages, those
contracted by mistake, and subsequent marriages under Article 53 are considered void.

3. Collateral attack of a void marriage simply means that the nullity of the marriage is not the
principal or main issue of the case but it is necessary to the resolution of the main case. For example, in a
case for the settlement of the estate of a deceased person where there are several claimants and one claimant
claims that the other group of claimants are not legitimate children because the marriage of their mother to
the deceased is not valid, the court may pass upon the issue of nullity of the marriage to determine whether

65
or not said claimants are really illegitimate. This is necessary because if the court finds that these claimants
are illegitimate because the marriage of their mother to the deceased is void, then, they will receive less than
the legitimate children. There is no need here to produce proof of a prior judicial declaration of nullity of
marriage because evidence other than judicial decision of nullity of marriage can be presented to establish the
illegitimacy of some claimants (Domingo vs. Court of Appeals, 226 SCRA 572).

4. The validity of a void marriage may be collaterally attacked in an action for support.
Thus, the alleged father of the child demanding support may raise the issue that there is no valid marriage
between the defendant and the mother of the child, and that the child is not his to avoid giving support to the
child. Other than for purposes of remarriage, no judicial action is necessary to declare a marriage
an absolute nullity. In the case of Nińal vs. Bayadog, the Court ruled that for other purposes, such as but
not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter, the Court may pass upon the
validity of marriage even in a suit not directly instituted to question the same so long as it is
essential to the determination of the case. This rule was reiterated in the case of Nicdao Carińo vs. Yee
Carińo where the main case is a claim for death benefits (De Castro vs. De Castro, G.R. No. 160172, February
13, 2008).

5. Direct attack, however, is necessary if the purpose is to remarry. Article 40 of the

Family Code provides that “the absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such marriage void.” In
other words, if a person’s first marriage is void, and he wants to marry again, he must first file a
civil action for the declaration of nullity of such first marriage before he can remarry. Another
instance where direct attack is necessary is in the case of Article 50 in relation to Article 43(3)
which speaks of the revocation of a donation propter nuptias because the marriage is void. Thus,
before the donor can revoke the donation propter nuptias, it is important that a judicial
declaration of nullity of marriage must first be obtained.

6. A void marriage is defective from the very beginning and cannot be ratified. This is the
reason why an action to declare the marriage void is imprescriptible. However, in a case where the
petitioner, after his petition to declare his marriage void on the ground of psychological inacapacity was denied
by the court, subsequently filed another petition for nullity of marriage, this time on the ground of absence of
a valid marriage license, the Supreme Court ordered the dismissal of the second case on the ground that
petitioner violated the rule on splitting-a-cause of action and the rule on res judicata. It said that
a case for nullity of marriage involved only one cause of action which was to declare the marriage
void. The different grounds for nullity of marriage did not mean different causes of action. Hence, by failing
to invoke the ground of absence of a valid marriage license in the first case, the petitioner is
deemed to have impliedly admitted the validity of the celebration of the marriage and he had
therefore waived all the defects. Accordingly, the petitioner was considered to have been barred by res
judicata. (Mallion vs. Alcantara, G.R. No. 141528, October 31, 2006);

6. Good faith of the parties in entering the marriage is immaterial and it does not validate an
otherwise void marriage. Thus, when one married his spouse believing that she is already of legal age, the
marriage is still void. There is, however, one instance where good faith can validate the marriage,
and this is the marriage where either party believes in good faith that the person who solemnized
the marriage is authorized by law to solemnize the marriage (Article 35(2)).

66
B. Void because of Psychological Incapacity:

Art. 36- A marriage contracted by any party who, at the time of

the celebration, is psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization. (n) (As
amended by Execurive Order Number 227 dated July 17, 1987)

NOTES

1. This article was introduced by Executive Order No. 227 on July 17, 1987 as an amendment to the
Family Code. No clear definition of psychological incapacity, however, was provided by the law as it was its
intention to leave the determination of psychological incapacity with the courts on a case-to-case basis. The
presence of psychological incapacity depends upon the facts of the case and it can be clearly deduced that the
absence of definition was deliberately done because the situations contemplated by the law vary from one
case to another. In the words of Justice Caguioa, the code should not have so many definitions, because a
definition straight-jackets the concept and, therefore, many cases that should go under it are excluded by the
definition.

2. Psychological incapacity is not insanity or mental illness. It refers to the inability of a

party to the marriage to comply with the essential marital obligations because of psychological
reason. It is neither a physical defect because a person who is psychologically incapacitated is one who
cannot perform the essential marital obligations as he/she simply refuses to perform these obligations
although physically capable of doing so due to psychological causes. It refers to “lack of appreciation of
one’s marital obligation” and has nothing to do with consent. An insane person does not know what
he is doing while a psychologically incapacitated person is aware of what he is doing but he
simply cannot perform his/her essential marital obligations because of psychological reasons.
Psychological incapacity simply refers to the “lack of appreciation of one’s marital obligation”.

3. Psychological Incapacity has three essential characteristics and they are: (1.) Juridical
antecedent, (2.) Gravity, and (3.) Incurability. For the defect of a party to the marriage to be considered
a form of psychological incapacity, it must already be existing at the time of the celebration of the
marriage (Juridical antecedent). It must be a very serious defect (Gravity), and it is not curable
(Incurability). Thus, from the foregoing elements it is quite clear that the intendment of the law has been to
confine the meaning of “psychological incapacity” to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.

4. This provision was lifted from Canon 1095 of the Canon Law. Thus, the decisions of the
matrimonial tribunal of the Catholic Church involving psychological incapacity as a ground to
annul the marriage is greatly helpful and persuasive to our civil courts. Although our courts are
not bound by the decisions of the matrimonial tribunal, said decision can be used by our civil
courts as a guide in the determination of the existence of psychological incapacity.

5. A wife who turns out to be a nymphomaniac or a husband who is homosexual is a good

example of psychological incapacity. Any form of inability of a party to perform the essential marital obligations
because of some psychological causes is a ground to nullify the marriage under Article 36.
67
 6. The action to declare the marriage void on the ground of psychological incapacity can
be filed even by the incapacitated party. The law does not prohibit the guilty party from bringing
the action in court as a void marriage is not ratifiable and the pari delicto rule will not apply here.
Moreover, a party who is declared psychologically incapacitated by the court may still contract a
second marriage as this ground is a very personal and limited one. It does not mean that just
because a person is psychologically incapacitated to perform his or her marital obligations with
his or her present spouse, he/she will also be psychologically incapacitated with any other
partner. This rule is best illustrated in the case of Halili vs. Halili and Republic, G.R. No. 165424, June
9, 2009, where it was the petitioner who claims that he is the one who is psychologically incapacitated. The
trial court granted the petition on the ground that petitioner is suffering from a mixed personality disorder,
particularly dependent and self-defeating personality disorder. On appeal, the Court of Appeals reversed the
trial court’s decision on the ground that the totality of the evidence presented failed to establish petitioner’s
psychological incapacity. When the case was elevated to the Supreme Court on certiorari under Rule 45, the
Court affirmed the decision of the Court of Appeals declaring the validity of the marriage. However, upon
motion for reconsideration filed, the Court reconsidered its previous judgment and granted the motion. The
Court gave much weight to the testimony of the expert witness in granting the petition.

7. During the trial of the case for declaration of nullity of marriage on the ground of psychological
incapacity, expert testimonies of a psychologist or psychiatrist is not a requirement for a
declaration of psychological incapacity and that it is not a condition sine qua non for such
declaration (Marcos vs. Marcos, G.R. no. 136490, October 19, 2000). The Court may or may not
accept the testimony of the psychologist or psychiatrist. It may base its decision on the totality of the evidence
other than the findings of such expert witness. However, in the case of Matias vs. Dagdag, G.R. No.
109975, February 9, 2001, the Supreme Court that expert testimonies evaluating the behavioural
pattern of the person alleged to be psychologically incapacitated are extremely helpful. Thus,
although expert testimony is not required for the court to decide the case, it will help the court a
lot in the resolution of the case.

8. So far, there are only few cases granted by the Supreme Court under Article 36 of the Family
Code. The first case is the case of Chi Ming Tsoi vs. Court of Appeals, 266 SCRA 325, where the
Supreme Court said that the refusal of the husband to have sex with his wife even if he is physically capable of
doing so is a manifestation of psychological incapacity to warrant the declaration of nullity of marriage. The
contention of the husband that it was instead his wife who refuses to have sex with him is of no moment, for
even if it is true, the action to declare the marriage void on the ground of psychological incapacity can be
brought by the party at fault. The second is the case of Antonio vs. Reyes, G.R. No. 155800, March 10,
2006, where the wife’s defect of being a congenital liar was considered by the Court as a form of
psychological incapacity. In this case, the Court also gave much weight to the findings of the
Matrimonial Tribunal of Manila, as affirmed by the Roman Rota in Vatican, that the marriage is
annullable on the ground of psychological incapacity of a party. The more recent case is the case of
Te vs. Te, G.R. No. 161793, February 13, 2009, where the petitioner was found to be suffering
from dependent personality disorder while the respondent was also suffering from narcissistic
and anti-social personality disorder.

9. Moral damages cannot be recovered from a guilty party in an action for declaration of nullity of
marriage on the ground of psychological incapacity. This is because a psychologically incapacitated

68
person is not aware of his incapacity and therefore cannot be held answerable for moral damages
(Buenaventura vs. Court of Appeals, G.R.No. 127358, March 31, 2005).

10. A person who has been declared psychologically incapacitated may still remarry. The
reason is that, there is no such thing as absolute “psychological incapacity”. It is only relative, in the sense
that one may be incapacitated with respect to one partner, but not necessarily with respect to
all.

11. In the following cases the Supreme Court ruled that there is no psychological incapacity, to
wit:

- The first case decided by the Supreme Court involving Article 36, was
the case of Santos vs. Court of Appeals, G.R. No. 112019, Jan. 4, 1995,
where the Supreme Court ruled that failure of the wife to return home
and communicate does not constitute psychological incapacity.

- A mere showing of irreconcilable differences and conflicting

personalities in no wise constitute psychological incapacity. (Choa vs.
Choa, G.R. No. 143376, November 26, 2002) .

- Disordered personality is not a ground for declaring a marriage void. Sexual

Infidelity or perversion and abandonment do not constitute psychological
incapacity (Dedel vs. Court of Appeals, G.R. No. 151867, January 29, 2004).

- An unsatisfactory marriage is not a null and void marriage. Whether or not

psychological incapacity exists depends crucially on the facts of the case (Siayngco
vs. Siayngco, G.R. No. 158896, October 27, 2004).

- The rule on psychological incapacity applies even if the spouse is a

foreigner. The foreigner husband’s act of abandonment is doubtlessly irresponsible
but it was never alleged nor proven to be due to some kind of psychological illness
(Republic vs. Lolita Quintero-Hamano, G.R. No. 149498, May 20, 2004).

12. The jurisprudential guidelines in determining the existence of psychological incapacity

was laid down by the Supreme Court in the case of Republic vs. CA and Molina, G.R. No. 108763, Feb.
13, 1997, and they are as follows:

a.) The burden of proof to show the nullity of marriage belongs to the plaintiff.

b.) The root cause of psychological incapacity must be medically or clinically

identified, alleged in the complaint, sufficiently proven by experts, and
clearly explained in the decision.

c.) The incapacity must be proven to be existing at the time of the celebration
of the marriage, although it becomes manifest only after the celebration of
the marriage.

d.) The incapacity must be shown to be medically or clinically permanent or

incurable.

e.) The illness must also be grave enough to prevent the party from assuming
69
 the essential marital obligations.

f.) The essential marital obligations must be those mentioned in Title III
(Articles 68 to 71) of the Family Code, as well as Articles 220, 221 and 225.

g.) The interpretations given by the National Appellate Matrimonial Tribunal of

the Catholic Church in the Philippines, while not controlling or decisive,
should be given great respect by our courts.

h.) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the State. No decision shall be handed down
unless the Solicitor General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement or opposition,
as the case may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification within
fifteen (15) days from the date the case is deemed submitted for resolution
of the court. The Solicitor General shall discharge the equivalent function
of the defensor vinculi contemplated under Canon 1095.

13. The decision of the National Appellate Matrimonial Tribunal, to be given weight and
respect by our courts, must be anchored on Canon 1095, par. 3 which is the basis of Article 36.
Thus, if the decision of the said tribunal is based on paragraph 2 of Canon 1095, the Court should
not give weight to it (Najera vs. Najera, G.R. No. 164817, July 3, 2009).

14. The requirement found in paragraph h of the guidelines in the Molina doctrine relative to the
certification of the OSG before a decision can be handed down has already been dispensed with by A.M. No.
02-11-10-SC. The said rule, as a remedial measure, removed the mandatory nature of an OSG
certification and may be applied retroactively to pending matters. Thus, cases pending at the time of
the passage of A.M. No. 02-11-10-SC on March 15, 2003, need not have the required certification from the
OSG before the court will decide (Rumbaua vs. Rumbaua, G.R. No. 166738, August 14, 2009).

15. In the very recent case of Edward Kenneth Ngo-Te vs. Rowena Yu-Te, G.R. No. 161793,
February 13, 2009, the Supreme Court revisited the origin of Article 36 and the concept of “Psychological
Incapacity” as lifted from the canon law. The Court finds that the resiliency with which the concept should be
applied and the case-to-case basis by which the provision should be interpreted, as so intended by the
framers, had, somehow, been rendered ineffectual by the imposition of a set of strict standards in the Molina
case. The Court re-examined the Molina doctrine and said: “In hindsight, it may have been inappropriate
for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of
psychological incapacity. Understandably, the Court was then alarmed by the deluge of petitions for the
dissolution of marital bonds, and was sensitive to the OSG’s exaggeration of Article 36 as the “most liberal
divorce procedure in the world”. The unintended consequences of Molina, however, has taken its toll on the
people who have to live with the deviant behaviour, moral insanity and sociopathic personality anomaly,
which, like termites, consume little by little the very foundation of their families, our basic institutions. Far
from what was intended by the Court, Molina doctrine has become a strait-jacket, forcing all
sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina,
has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously
debase and pervert the sanctity of marriage. Ironically, the Roman Rota has annulled marriages on account of
the personality disorders of the said individuals. Thus, in the said case, the Supreme Court declared both
parties psychologically incapacitated. Petitioner is suffering from dependent personality disorder, and
respondent’s, that of the narcissistic and antisocial personality disorder. Both parties being afflicted with grave,
severe and incurable psychological incapacity, their marriage is thus null and void.

70
 16. Taken from the decisions of the Roman Rota, applying Canon 1095, the following are considered
as various cases of psychological disorders, to wit:
a.) Hypersexuality-Nymphomania
b.) Hypersexuality-Satyriasis
c.) Homosexuality
d.) Lesbianism
f.) Schizophrenia
g.) Affective Immaturity
h.) Anti-Social Personality Disorder
i.) Dependent Personality Disorder
j.) Vaginismus or Psychic impotence
k.) Sexual Disorder
l.) Psychoneurosis
m.) Lack of Interpersonal Integration
n.) Immature Personality
o.) Obsessive-Compulsive Personality
p.) Frigidity
q.) Alcoholism and Gambling
r.) Liar, cheat and swindler
s.) Sexual Neurosis
t.) Hysterical Personality
u.) Psychic Immaturity

17. The Court in Te vs. Te clarified, thus, no case is “on all fours” with another case as far
as psychological incapacity as a ground for declaring the nullity of marriage is concerned. “Lest it
be misunderstood, we are not suggesting the abandonment of Molina in this case. We simply
declare that, as aptly stated by Justice Dante O. Tinga in Antonio vs. Reyes , there is need to emphasize other
perspectives as well which should govern the disposition of petitions for declaration of nullity of marriage
under Article 36. At the risk of being redundant, we reiterate once more the principle that each case must be
judged, not on the basis of a priori assumptions, predilictions or generalizations but according to its own facts.
And, to repeat for emphasis, court should interpret the provision on a case-to-case basis; guided
by experience, the findings of experts and researchers in psychological disciplines, and by
decisions of church tribunals.

18. Although in Marcos vs. Marcos, G.R. No. 136490, Oct. 19, 2000, the Supreme Court ruled that it
is not necessary to present an expert witness, the Court ruled in Te vs. Te that the presentation of an
expert testimony is very important. It added that, by the very nature of cases involving the
application of Article 36, it is logical and understandable to give weight to the expert opinions
furnished by psychologists regarding the psychological temperament of parties in order to
determine the root cause, juridical antecedence, gravity and incurability of the psychological
incapacity. Courts must not discount but, instead, must consider as decisive evidence the expert opinion on
the psychological and mental temperaments of the parties. The Supreme Court even finds it fitting to suggest
the inclusion in the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages, an option for the trial judge to refer the case to a court-appointed psychologist/expert for an
independent assessment and evaluation of the psychological state of the parties. This will assist the courts,
who are no experts in the field of psychology, to arrive at an intelligent and judicious determination of the
case.

19. The application of the Molina Doctrine to cases that were filed before the said doctrine was
promulgated by the Supreme Court in 1997 is not contrary to the principle of stare decisis. Citing the cases of
Pesca vs. Pesca and Antonio vs. Reyes, the Court ruled that the interpretation or construction of a law by
courts constitutes a part of the law as of the date the statute is enacted. It is only when a prior ruling of this
71
court is overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively
in favor of parties who have relied on the old doctrine and have acted in good faith, in accordance therewith
under the familiar rule of “lex prospicit, non respicit”. The Court clarified that the Molina doctrine was
not abandoned by the Ting vs. Ting case as it merely declared in the said case that, in hindsight, it is
inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of
psychological incapacity. We said that instead of serving as a guideline, Molina unintentionally became a
straightjacket, forcing all cases involving psychological incapacity to fit into and be bound by it, which is not
only contrary to the intention of the law but unrealistic as well, because with respect to psychological
incapacity, no case can be considered as on “all fours” with another. Coming now to the main issue, the Court
finds the totality of evidence adduced by respondent insufficient to prove that petitioner is psychologically unfit
to discharge the duties expected of him as a husband. In this case, respondent failed to prove that petitioner’s
defects were present at the time of the celebration of their marriage. (Benjamin Ting vs. Carmen Velez-Ting,
G.R. No. 166562, March 31, 2009).

20. In the case of Azcueta vs. Republic and C.A., G.R. No. 180668, May 26, 2009, the Supreme
Court declared the respondent husband psychologically incapacitated because of his “Dependent
Personality Disorder”. The Court reinstated the ruling of the RTC finding the respondent psychologically
incapacitated considering the totality of evidence presented clearly show that respondent failed to comply with
his marital obligation. Citing the case of Te vs Te, the Court reiterated its pronouncement that: in dissolving
marital bonds on account of either party’s psychological incapacity, the Court is not demolishing the foundation
of families, but it is actually protecting the sanctity of marriage, because it refuses to allow a person afflicted
with a psychological disorder, who cannot comply with or assume essential marital obligations, from remaining
in that sacred bond. Xxx. Let it be noted that in Article 36, there is no marriage to speak of in the
first place, as the same is void from the very beginning. To indulge in imagery, the declaration of
nullity under Article 36 will simply provide a decent burial to a stillborn marriage. (emphasis ours)

21. In Renato Reyes So vs. Valera, G.R. No. 150667, June 5, 2009, the Court denied the petition and
stated that: Our own examination of the psychologist’s testimony and conclusions leads us to conclude that
they are not sufficiently in-depth and comprehensive to warrant the conclusion that a psychological incapacity
existed that prevented the respondent from complying with the essential marital obligations of marriage. The
facts on which the psychologist based her conclusions were all derived from statements by the petitioner
whose bias in favor of his cause cannot be doubted.

22. In the following recent decisions, the Supreme Court did not consider the presence of
psychological incapacity, to wit: The testimony of the psychologist that one of the parties was suffering from
“borderline personality disorder” as manifested by his being a “Mama’s Boy” did not constitute sufficient
evidence of that party’s condition. The diagnosis was only based on interviews with petitioning
spouse and that the psychologist did not actually hear, see and evaluate the respondent. Her
testimony constituted hearsay. Furthermore, the psychologist failed to explain how such a personality disorder
made Jordan psychologically incapacitated and to prove that the same is so grave and permanent. In any
case, the alleged incapacity was not shown to be so grave and permanent (Jordan Chan Paz vs. Jeanice Paz,
G.R. No. 166579, (Feb.18, 2010).The witness’ “global conclusion” was not supported by psychological tests
properly administered by clinical psychologists specifically trained in the tests’ use and interpretation. The
supposed personality disorders of the parties, considering that such diagnosis were made, could have been
fully established by psychometric and neurological tests which are designed to measure specific aspects of
people’s intelligence, thinking, or personality (Edward Lim vs. Ma. Cheryl Lim, G.R. No. 176464, (Feb. 24,
2010). Respondent’s alleged sexual infidelity, emotional immaturity and irresponsibility do not
constitute psychological incapacity within the contemplation of the Family Code as the
psychologist failed to identify and prove the root cause thereof or that the incapacity was

72
medically or clinically permanent or incurable (Ligeralde vs. Patalinghug, G.R. No. 168796, April 15,
2010). Failure to manage the family’s finances resulting in the loss of the house and lot intended
to be their family residences is not psychological incapacity. It is still essential – although from
sources other than the respondent spouse – to show his or her personality profile, or its approximation, at the
time of marriage; the root cause of the inability to appreciate the essential obligations of marriage; and the
gravity, permanence and incurability of the condition (Ricardo Toring vs.Teresita Toring, G.R. No. 165321,
August 3, 2010).

23. However, in the case of Ma. Socorro C. Reyes vs. Ramon Reyes, G.R. No. 185286, August 18,
2010, the Supreme Court ruled that lack of personal examination and interview of the respondent, or any
person diagnosed with personality disorder, does not per se invalidate the testimonies of the doctors. Neither
do their findings automatically constitute hearsay that would result in their exclusion as evidence. The two
clinical psychologists and a psychiatrist’s assessment were not based solely on the narration or
personal interview of the petitioner but also on other informants such as respondent’s own son,
siblings and in-laws, and sister-in-law who all testified on their own observations of respondent’s
behavior and interactions with them. In the instant case, respondent’s pattern of behavior manifests an
inability, nay, a psychological incapacity to perform the essential marital obligations as shown by his: (1.)
sporadic financial support; (2.) extra-marital affairs; (3.) substance abuse; (4.) failed business attempts; (5.)
unpaid money obligations; (6.) inability to keep a job that is not connected with the family business; and (7.)
criminal charges of estafa. In fine, we find ample basis to conclude that respondent was psychologically
incapacitated to perform the essential marital obligations at the time of his marriage to petitioner.

24. Quarrels, financial difficulties, womanizing of petitioner are not psychological

incapacities. The testimony of the psychiatrist is found to be general, not in-depth, does not establish link
between actions of party and his supposed psychological incapacity (Rosalino Marable vs. Myrna Marable, G.R.
No. 178741, January 17, 2011). Also, sexual infidelity of the wife does not per se constitute
psychological incapacity if it is not shown that it already existed before the marriage (Jose Ochoa
vs. Bona Alano, G.R. No.167459, January 26, 2011).

25. For psychological incapacity of a spouse to serve as a ground for annulling a marriage,
the incapacity must consist of the following: (a.) a true inability to commit oneself to the essentials of
marriage; (b.) this inability to commit oneself must refer to the essential obligations of marriage: the conjugal
act, the community of life and love, the rendering of mutual help, the procreation and education of offspring;
and (c.) the inability must be tantamount to a psychological abnormality. It is not enough to prove that a
spouse failed to meet his responsibility and duty as a married person; it is essential that he must be shown to
be incapable of doing so due to some psychological illness. Moreover, even assuming that respondent’s fault is
psychological incapacity, it has not been established that the same existed at the time of the celebration of the
marriage (Cynthia E. Yambao vs. Republic of the Philippines and Patricio E. Yambao, G.R. No. 184063, January
24, 2011).

C. Void because Incestuous:

Art. 37- Marriages between the following are incestuous and

void from the beginning, whether the relationship between the parties
be legitimate or illegitimate:
73
 1) Between ascendants and descendants of any degree; and

2) Between brothers and sisters, whether of full or half-blood.

(81a)

NOTES

1. The reasons why a marriage between parties who are closely related by blood is prohibited by
law are (1.) It would tend to create confusion of rights and duties incident to family relations; (2.) It is
abhorrent to the nature, not only of civilized men, but of barbarous and semi-civilized people; and (3.) Such
intermarriages very often result in deficient and degenerate offspring, which, if occurring to any great extent,
would amount to a serious deterioration of the race.

2. Marriages of persons who are closely related by blood in the direct line, whether
legitimate or illegitimate, is incestuous. Thus, a marriage between grandfather and granddaughter,
between parents and child and, between brothers and sisters, is void. Marriage between uncles and niece
or aunties and nephews is not incestuous but it is still prohibited under the next article.

D. Void because against public policy:

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;

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

4) Between the adopting parent and the adopted child;

5) Between the surviving spouse of the adopting parents

and the adopted child;

6) Between the surviving spouse of the adopted child and

the adopter;

7) Between an adopted child and a legitimate child of the

adopter;

8) Between the adopted children of the same adopter;

9) Between parties where one, with the intention to

marry the other, killed that other person’s spouse or his
or her own spouse. (82)

NOTES

1. The nullity of the marriage under this article hinges primarily on the relationship of the
parties to the marriage. These marriages are considered against public policy because they do not serve
74
the fundamental objective of the state which is to nurture a stable family unit that can effectively be the
foundation of society.

2. Marriage between first degree cousins is no longer considered incestuous now but
they are against public policy. A first degree cousin is your relative up to the fourth civil degree and is
clearly prohibited by paragraph 1 of this article.

3. The prohibition under this article hinges on the affinity relation, adoptive relation, and the criminal
motive to dispose of a spouse in order to enable the surviving spouse to marry. Marriages between step-
parents and step-children and those between parents-in-law and children-in-law are prohibited because the
parties here should treat each other as real parents and children even if their relationship is only by affinity. It
is said that once you get married, you and your spouse become one, such that the close relatives of your
spouse should be treated by you as your own. These are the only marriages by affinity prohibited by the
Family Code. Marriage between step-brother and step-sister is not prohibited and is therefore
valid.

4. Adoption creates an artificial relation of parent and child between the adopter and the adoptee.
Thus, an adopted child cannot marry his adopter, the surviving spouse of his adopter, the
legitimate children of his adopter, and the adopted children of his adopter. The adopter cannot
also marry the surviving spouse of his adopted.

5. The enumeration of void marriages under Article 38 is exclusive, such that those that
do not fall under the said enumeration are considered valid. The following marriages are valid:

a.) Between adopted and the parents of his adopter

b.) Between adopted and the illegitimate children of his adopter

c.) Between adopter and the relatives of his adopted.

d.) Between the adopted and the former spouse of his adopter OR

between the adopter and the former spouse of his adopted.

e.) Between step-brother and step-sister.

6. A marriage between the killer and the surviving spouse of his victim or between the
spouse who killed his or her own spouse in order to marry another is prohibited by law. The killing
must be animated by the intention to marry another person. No prior criminal conviction by the
court is required by the law. Mere preponderance of evidence is required to prove the killing.

E. Prescriptive period:

Art. 39- The action or defense for the declaration of absolute

nullity of a marriage shall not prescribe. (n) (Amended by Executive
Order Number 227 dated July 17, 1987 and further amended by
Republic Act No. 8533 dated February 23, 1998)

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 NOTES

1. There is no prescriptive period for an action to declare the marriage void because a null and void
marriage produces no legal effect, it being non-existent. In fact, the judicial decree merely confirms the
voidness, non-existence, or incipient invalidity of the marriage.

2. However, if the ground for the voidness of the marriage is psychological incapacity under
Article 36 of the Family Code, there used to be a prescriptive period of ten years from the effectivity of the
Code or until August 1, 1998, but only if the marriage was solemnized before the Family Code took effect. If
the marriage was celebrated after August 3, 1988, there is no prescriptive period. This provision, however,
was amended by Republic Act 8533 by deleting the 10 year prescriptive period for marriages
solemnized before the effectivity of the Family Code. So, now there is no more prescriptive period
to declare the marriage void on the ground of psychological incapacity even if the marriage is
solemnized before August 3, 1988.

3. Only the husband or the wife can file an action to declare their marriage void (see:
Supreme Court Resolution A.M. No. 00-11-01-SC). Even the party who is at fault may bring the action
to nullify the marriage as the pari delicto rule will not apply to nullity cases. The rule enunciated in
the case of Cojuangco vs. Romillo, 167 SCRA 751, that a father can file a case to declare the nullity of the
bigamous marriage entered into by his daughter with a married man, is no longer controlling in the light of the
provision of SCR A.M. No. 02-11-10-SC which took effect on March 15, 2003, a copy of which is hereto
attached as Appendix “A”.

F. Void subsequent marriage:

Art. 40- The absolute nullity of a previous marriage may be

invoked for purposes of remarriage on the basis solely of a final
judgement declaring such previous marriage void. (n)

NOTES

1. When a marriage is void, a party to that marriage can contract a subsequent marriage
only after he/she has the previous marriage judicially declared null and void. A subsequent
marriage contracted without having the first marriage declared by the court as null and void is
also void ab initio under Article 40 of the Family Code. It is generally expedient that the nullity of the
marriage should be ascertained and declared by the court of competent jurisdiction for the sake of good order
of society and for the peace of mind of all persons concerned. One should not put the law in his hands
and decide for himself the nullity of his marriage. He should let the court declare the nullity of his
marriage before he can contract another marriage.

2. The rule on whether or not there is a need for a judicial declaration of nullity of a void marriage
before one can contract another marriage has been swinging like a pendulum. At one time the Supreme Court
ruled that there is no need but in another time the Court said there is a need. In the case of People vs.
Mendoza and the case of People vs. Aragon decided in 1954 and 1957 respectively, the Supreme Court ruled
that there was no need for a judicial declaration of nullity of a void marriage. Later on, in the case of Gomez
vs. Lipana (33 SCRA 614) and Consuegra vs. GSIS (37 SCRA 315) decided in 1970 and 1971 respectively, the
76
Court changed its stand and ruled that judicial declaration of nullity of marriage is necessary before one can
contract a subsequent marriage. However, in the case of Odayat vs. Amante (77 SCRA 338) decided in 1977,
the Supreme Court returned to the old rule enunciated in the Mendoza and Aragon cases that judicial
declaration of nullity is not necessary. But, in the case of Wiegel vs. Sempio Diy (143 SCRA 499) decided in
August 19, 1986, the Court went back to the rule in Gomez vs. Lipana and Consuegra vs. GSIS, only to be
abandoned later by the case of Yap vs. Court of Appeals ( 145 SCRA 229) decided on October 28, 1986. This
flip- flopping of the Supreme Court has prompted the framers of the Family Code to incorporate Article 40 in
order to put to rest the controversy brought about by the conflicting decisions of the Supreme Court. So, now
it is settled that if the marriage is void, the only way that the parties to that void marriage can
marry again is to have it declared void by the court first.

3. Article 40 of the Family Code restated the rule that even if the marriage is void, there is a need to
have it declared void by the court, for it is solely on the basis of that final judgment that a party can remarry.
In the case of Roberto Domingo vs. Court of Appeals, et al., G.R. No. 104818, September 17, 1993, the
Supreme Court clarified the meaning of Article 40 by saying that the judicial declaration of nullity of marriage
is not solely for the purpose of remarriage as it can also be invoked for other purposes such as in case of an
action for liquidation, partition, distribution and separation of property between the spouses, as well as an
action for the custody and support of their common children and the delivery of the latter’s presumptive
legitime. The word “solely” qualifies the term judgment. Thus, it means that for purposes of remarriage,
the nullity of a previous marriage can only or solely be established by a final judgment of the
court declaring such marriage void.

4. When the first marriage is void and a party to that marriage contracted a second
marriage without obtaining a judicial declaration of nullity of the first marriage, there is no doubt
that the second marriage is null and void under Article 40. But, is the said party guilty of
bigamy? The Court of Appeals in the case of People vs. Cobar, CA-G.R. No. 19344, November 10, 1997,
answered this question in the negative. According to the Court of Appeals, there is no bigamy because of the
absence of the first and fourth element of bigamy, which are that the first marriage must be valid and that the
second marriage must have all the essential requisites for validity. A void bigamous marriage therefore
contemplates of a situation where the second marriage was contracted at the time when the first marriage ,
which is valid in all respects, was still subsisting. Hence, the first marriage must not be void but valid or at
least annulable.

5. However, in the case of Vincent Paul Mercado vs. Consuelo Tan, G.R. No. 137110, August 1,
2000 , and Nicdao Carino vs. Carino, G.R. No. 132529, February 2, 2001, the Supreme Court ruled that a
person who contracts a subsequent marriage without having his first marriage judicially declared
void is guilty of bigamy. This ruling is consistent with the pronouncement in Terre vs. Terre, 211 SCRA 6,
where the Court ruled that “for the purpose of determining whether a person is legally free to contract a
second marriage, a judicial declaration that the first marriage was null and void ab initio is essential.” The
reason behind the rule that even if the marriage is void, there is a need to have it declared void is the
fact that the parties to the marriage cannot decide for themselves the invalidity of their
marriage. This is especially so that no less than the Constitution seeks to preserve the sanctity of the
marriage, it being the foundation of the family. This rule was reiterated in the more recent case of Myrna
Antone vs. Leo Beronilla, G.R. No. 183824, Dec. 8, 2010, when the Court ruled that declaration of
nullity of marriage on the ground of psychological incapacity under Article 36 will not save the

77
respondent from the crime of bigamy if the second marriage was contracted before the
declaration of nullity of the first marriage.

6. In the case of Morigo vs. People, the petitioner was found by the trial court guilty of bigamy for
contracting a second marriage without having his first marriage judicially declared void. During the pendency
of the bigamy case, petitioner (Mr. Lucio Morigo) filed a case for declaration of nullity of his first marriage on
the ground of absence of marriage ceremony. While the appeal of his conviction in the bigamy case was
pending in the Court of Appeals, the Family Court declared his first marriage null and void due to the absence
of marriage ceremony. The decision became final as no appeal was interposed by the State. The Court of
Appeals eventually affirmed his conviction for bigamy prompting him to raise the matter to the Supreme Court
by way of Certiorari. In reversing the decision of the Court of Appeals, the Court ruled that no bigamy was
committed as not all the elements of the crime of bigamy is present. Citing the case of Bobis vs. Bobis, the
Court ruled that there are four elements of bigamy, and they are as follows: (1.) the offender has been
legally married, (2.) the first marriage has not been legally dissolved, (3.) he contracts a
subsequent marriage, and (4.) the subsequent marriage would have been valid had it not been
for the existence of the first. In the instant case of Morigo, the Court finds no bigamy because there was
no first marriage to speak of.The declaration of nullity of the first marriage by the Family Court,
retroacts to the time of the celebration of the said marriage. Thus, when petitioner contracted the
second marriage, there was no prior valid subsisting marriage. Petitioner, legally speaking, was never married
to his first wife as no marriage really took place due to the absence of marriage ceremony (Lucio Morigo vs.
People of the Philippines, G.R. No. 145226, February 6, 2004).

7. In Mercado vs. Tan, the first marriage was void because of the absence of a marriage
license. In the Morigo case, the first marriage was void because of the absence of marriage
ceremony. However, in the Mercado case the Court ruled that there is a need for the judicial declaration of
nullity of the first marriage; otherwise, the accused may be convicted of bigamy. But, in the Morigo case, the
Court said there is no need to have the first marriage declared void as in the eyes of the law, the marriage
never existed. What then is the difference between the two? The observation of this author is that if the
nullity of marriage is anchored on the absence of marriage ceremony, then it is as if no marriage
took place or that there is no marriage at all. However, if the nullity is based on absence of a
valid marriage license, there exists a marriage but it is void. In other words, what is
contemplated by Article 40 of the Family Code as the void marriage that must be declared void
first before one can contract a subsequent marriage is one that must exist although it is void.

G. Declaration of Presumptive Death:

Art. 41- A marriage contracted by any person during the

subsistence of a previous marriage shall be null and void, unless before
the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present had a well-
founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances
set forth in the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.

78
 For the purposes of contracting the subsequent marriage under
the preceding paragraph, the spouse present must institute a summary
proceeding as provided for in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (83a)

Art. 42- The subsequent marriage referred to in the preceding

Article shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of

reappearance shall be recorded in the civil registry of the residence of
the parties to the subsequent marriage at the instance of any
interested person, with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of reappearance being
judicially determined in case such fact is disputed. (n)

Art. 43- The termination of the subsequent marriage referred to

in the preceding Article shall produce the following effects:

1) The children of the subsequent marriage conceived prior to its

termination shall be considered legitimate and their custody and
support in case of dispute shall be decided by the court in a proper
proceeding;

2) The absolute community of property or the conjugal

partnership, as the case may be, shall be dissolved and liquidated, but
if either spouse contracted said marriage in bad faith, his or her share
of the net profits of the community property shall be forfeited in favour
of the common children or, if there are none, the children of the guilty
spouse by a previous marriage or in default of children, the innocent
spouse;

3) Donations by reason of marriage shall remain valid, except

that if the donee contracted the marriage in bad faith, such donations
made to said donee are revoked by operation of law;

4) The innocent spouse may revoke the designation of the other

spouse who acted in bad faith as a beneficiary in any insurance policy,
even if such designation be stipulated as irrevocable; and

5) The spouse who contracted the subsequent marriage in bad

faith shall be disqualified to inherit from the innocent spouse by
testate and intestate succession. (n)

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 Art. 44- If both spouses of the subsequent marriage acted in bad
faith, said marriage shall be void ab initio and all donations by reason
of marriage and testamentary dispositions made by one in favour of
the other are revoked by operation of law. (n)

NOTES

1. If a spouse had been absent for four consecutive years and the present spouse had a reasonable
and well founded belief that the absent spouse was already dead, he/she may contract a second marriage
provided that he/she first obtain a judicial declaration of presumptive death of the absent
spouse. The four year period before one can file the petition for judicial declaration of presumptive death is
shortened to two years if the disappearance of the spouse is under any of the circumstances of great danger
of death as set forth in Article 391 of the Civil Code. These circumstances are as follows: (1.) when the absent
spouse was on a vessel and the same was lost during a sea voyage and he has not been heard of for two
years since the loss or when the absent spouse was on an airplane which was missing and such spouse was
not heard of for two years since the loss of the airplane; (2.) when the absent spouse who was in the armed
forces has taken part in the war and has been missing for two years; and (3.) when the absent spouse has
been in danger of death under other circumstances.

2. If the absent spouse turns out to be alive, then the subsequent marriage contracted by
the present spouse will be terminated but only upon the execution of the affidavit of
reappearance by the reappearing spouse or any of the interested party. The said affidavit of
reappearance shall be recorded in the Office of the Local Civil Registrar of the place where the present and the
subsequent spouse resides. The fact that the absent spouse is still alive renders the subsequent marriage a
“bigamous but valid marriage”. It is bigamous because the first marriage is still subsisting but valid
because of the judicial declaration of presumptive death. Thus, if a spouse had been absent for many years (4
or 2 years as the case may be), the only way by which the present spouse can marry again legally is to have
him/her declared presumptively dead by the court; otherwise, the subsequent marriage will be void.

3. The presumption that the absent spouse must have already been dead must be anchored on
“well founded belief”. In the case of Republic of the Philippines vs. Gregorio Nolasco, 220 SCRA 20, the
Supreme Court discussed the meaning of the term well founded belief as the exercise of that degree of
due diligence required in searching for a missing spouse. In that case, the Court denied the petition of
a Filipino seaman to declare his wife presumptively dead for his failure to conduct a search for his missing wife
with such diligence to give rise to a “well- founded belief” that she was dead. In the other case of Republic vs.
Court of Appeals, G.R. No. 159614, December 9, 2005, the Supreme Court denied the petition because the
person seeking a judicial declaration presented only the Barangay Captain, but did not present the persons
from whom he allegedly made inquiries, and did not even make inquiries with his parents-in-law who knew of
his wife’s abandonment of the conjugal abode. The Court ruled that petitioner failed to prove a well-founded
belief that the wife was already dead.

4. The Civil Code of the Philippines provides the general rule that no judicial declaration
of presumptive death is required as such presumption arises from law. Article 390 and 391 of the
Civil Code has already created the presumption of death when a person has been absent for seven years, it
being unknown whether or not the absentee still lives. The said absentee shall be presumed dead for all
80
purposes except for those of succession, in which case, the absentee shall not be presumed dead
till after an absence of ten years. The period is shortened to four years (now two years in the Family
Code) if the disappearance is in danger of death as stated in Article 391; or to five years if the disappearing
spouse is already 75 years of age. The judicial declaration of presumptive death under Article 41 of
this Code is mandatorily required by law only for the purpose of capacitating the present spouse
to remarry. Thus, the judicial declaration of presumptive death will protect the spouse from being
charged of bigamy in case the absent spouse will reappear.

5. The requirement that a petition for judicial declaration of presumptive death of a

spouse must be anchored on a “well founded belief” that the absence spouse must have already
been dead will apply only if the marriage took place after the effectivity of the Family Code on
August 3, 1988. When the marriage of the present and disappearing spouse was celebrated
before the effectivity of the Family Code and the disappearance also happened before 1988, the
Civil Code will apply. Under Article 390 of the Civil Code, judicial declaration of presumptive
death is not required for purposes of remarriage. The declaration of absence made in accordance with
the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for
the administration of the estate of the absentee. For celebration of civil marriage, however, the law only
requires that the former spouse has been absent for seven consecutive years at the time of the second
marriage, that the spouse present does not know his or her former spouse to be living, that such former
spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the
marriage.

6. When the husband and the wife were married in 1971, then, the husband disappeared in
1975, and the wife did not anymore hear any news from him, the subsequent marriage of the wife with
another man in 1985 is valid. In fact, there is no more need for the wife to file a petition to declare her
first husband presumptively dead before contracting the second marriage as that is not required under the
Civil Code. The validity of the subsequent marriage is determined by the law prevailing at the time
of the marriage. The Family Code, particularly Article 41 thereof, cannot be applied retroactively
by requiring the spouse to first obtain a judicial declaration of presumptive death before
contracting the subsequent marriage. To do so would be to impair a vested right already acquired by a
party under the former law. Considering that it is the Civil Code and not the Family Code that will apply here,
proof of “well founded belief” is not required (Angelita Valdez vs. Republic, G.R. No. 180863, Sept. 8, 2009).

7. The decision of the court declaring a spouse presumptively dead under Article 41 of
the Family Code is unappealable and immediately executory as it falls under the Summary
Judicial Proceedings in the Family Law (Republic vs. Bermudez-Lorino, G.R. No. 160258, Jan. 19, 2005).
There is no reglementary period to perfect an appeal, precisely because judgment rendered thereunder, by
express provision of the law (Art. 247), are immediately final and executory. As a matter of course, it
follows that no appeal can be had of the trial court’s judgment in a summary proceeding for the
declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance
with the Doctrine of Hierarchy of Courts. From the decision of the Court of Appeals, the losing party may then
file a petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is
because the errors which the court may commit in the exercise of jurisdiction are merely errors of judgment

81
which are the proper subject of an appeal (Republic of the Philippines vs. Ferventino Tango, G.R. No. 161062,
July 31, 2009).

8. The recording of the affidavit of reappearance is the operative act that terminates the
subsequent marriage. The affidavit shall be executed by the reappearing spouse or any
interested party such as the parents of both spouses, their children, the present spouse and even
the subsequent spouse of the present spouse. If no affidavit of reappearance is filed then the
subsequent marriage remains validly subsisting. If an affidavit of reappearance is filed then the subsequent
marriage is automatically terminated but this is without prejudice to the outcome of any judicial proceeding
questioning such reappearance.

9. When the subsequent marriage is terminated by the reappearance of the absent spouse, the
conjugal partnership or the absolute community of property regime that governs the said marriage shall also
be terminated and dissolved. Article 43 enumerates the effects of the termination of such marriage as follows:
(1.) the children of the subsequent marriage conceived prior to its termination shall be considered legitimate;
(2.) the property relation of the parties, be it absolute community or conjugal partnership, shall be dissolved
and liquidated. The party who contracted the marriage in bad faith shall forfeit his/her share in the net profits
community property in favor of their common children, or if there are none, the children of the guilty spouse
by a previous marriage or in default thereof, the innocent spouse. (3.) donations by reason of marriage made
by the innocent spouse in favour of the guilty spouse are revoked by operation of law; (4.) the designation of
the guilty spouse as the beneficiary of the insurance policy of the innocent spouse may be revoked by the
latter even if the designation be stipulated as irrevocable; (5.) the party who contracted the subsequent
marriage in bad faith shall be disqualified to inherit from the innocent spouse.

10. If both parties to the subsequent marriage are in bad faith, the said marriage shall be
void ab initio and all donations propter nuptias and testamentary disposition made by one in
favour of the other are revoked by operation of law. Since the marriage is void, then there is no
dissolution and liquidation of the conjugal partnership or absolute community as the property relation of the
parties will be governed by co-ownership under Article 147 or 148 of the Family Code.

11. Declaration of presumptive death by the Regional Trial Court cannot be overturned or
disregarded by the Social Security Commission on the ground that the first wife is still alive and the
deceased husband, whose death benefit is in issue, is aware of the fact that his first wife is still alive when he
filed the petition for judicial declaration of presumptive death. The subsequent marriage entered into after the
judicial declaration of presumptive death can only be terminated when the first spouse files an affidavit of
reappearance which did not happen here (SSS vs. Jarque Vda. De Bailon, G.R. No. 165545, March 24, 2006).

VOIDABLE MARRIAGE

H. Grounds for Annulment of Marriage:

Art. 45- A marriage may be annulled for any of the following

causes, existing at the time of the marriage:

1) That the party in whose behalf it is sought to have the

marriage annulled was eighteen years of age or over but below

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 twenty-one, and the marriage was solemnized without the consent of
the parents, guardian or person having substitute parental authority
over the party, in that order, unless after attaining the age of twenty-
one, such party freely cohabited with the other and both lived together
as husband and wife;

2) That either party was of unsound mind, unless such party

after coming to reason, freely cohabited with the other as husband and
wife;

3) That the consent of either party was obtained by fraud, unless

such party afterwards, with full knowledge of the facts constituting the
fraud, freely cohabited with the other as husband and wife;

4) That the consent of either party was obtained by force,

intimidation or undue influence, unless the same having disappeared or
ceased, such party thereafter freely cohabited with the other as
husband and wife;

5) That either party was physically incapable of consummating

the marriage with the other, and such incapacity continues and
appears to be incurable; or

6) That either party was afflicted with a sexually transmissible

disease found to be serious and appears to be incurable. (85a)

Art. 46- Any of the following circumstances shall constitute

fraud referred to in Number 3 of the preceding Article:

1) Non-disclosure of a previous conviction by final judgement of

the other party of a crime involving moral turpitude;

2) Concealment by the wife of the fact that at the time of the

marriage, she was pregnant by a man other than her husband;

3) Concealment of sexually transmissible disease, regardless of

its nature, existing at the time of the marriage; or

4) Concealment of drug addiction, habitual alcoholism, or

homosexuality or lesbianism existing at the time of marriage.

No other misrepresentation or deceit as to character, health,

rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage. (86a)

NOTES

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 1. The grounds for the annulment of a voidable marriage enumerated under Article 45 of the Family
Code must already be existing at the time of the celebration of the marriage. Thus, if the grounds
occurred only after the celebration of the marriage it cannot be used as a ground to annul the marriage. These
grounds are as follows:

a.) Absence of parental consent

b.) Unsoundness of the mind of a party
c.) Consent was obtained by fraud
d.) Consent was obtained by force, intimidation or undue influence
e.) Physical Incapacity to consummate the marriage
f.) Sexually transmissible disease that is both serious and incurable

2. Not all kinds of fraud or deceit can invalidate the marriage. It must only refer to the four
types of fraud enumerated in Article 46 of the Code. To constitute fraud, there must be concealment at
the time of the marriage of the following facts:

a.) Previous conviction of a crime involving moral turpitude;

b.) Pregnancy of the wife by a man other than her husband;
c.) Sexually transmissible disease regardless of its nature;
d.) Drug addiction, habitual alcoholism, homosexuality, or lesbianism;

3. No other misrepresentation or deceit can be a ground for the annulment of marriage.

The ground for annulment of marriage is exclusive, thus, only those specified in Articles 45 and 46 of
the Family Code shall be considered.

4. Non-disclosure of previous conviction must refer to crimes involving moral turpitude. It is not
necessary for a spouse to verify first before the marriage whether or not the other spouse has a previous
conviction as the burden is on the convicted party to divulge his criminal record. Concealment by the wife
of her pregnancy by a man other than her husband could be appreciated as fraud only when
concealment of the pregnancy is still very possible. Thus, a husband could no longer claim
concealment of pregnancy if his wife was already seven months pregnant at the time of the
marriage as her physical condition is already apparent to the man during marriage (Buccat vs.
Buccat, 72 Phil. 19). However, if the wife is only four months pregnant at the time of the marriage,
and that she is naturally plump or fat, concealment is still very much possible as at that stage her
pregnancy is not yet readily apparent (Aquino vs. Delizo, 109 Phil. 21).

5. Vitiated consent, as a ground to annul the marriage, must be proven by preponderance

of evidence which may include the actuation of the parties previous to the marriage. There is
intimidation when one of the contracting parties is compelled by a reasonable and well-founded fear of an
imminent and grave evil upon his person and property, or upon the person or property of his spouse,
descendants or ascendants, to give his consent. To determine the degree of intimidation, the age, sex and
condition of the person shall be borne in mind (Article 1335 of the Civil Code).

6. The claim of the petitioner, who is a security guard, that his consent to the marriage was vitiated
because of fear that he may be harmed by an NPA Commander if he will not marry his wife is unfounded and
of no basis (Villanueva vs. Court of Appeals, G.R. No. 132955, October 27, 2006).

7. Sexually transmissible disease (STD) is a ground to annul the marriage if it is both

serious and incurable. If it is not serious and incurable, it can only be a ground if it already
existed at the time of the marriage and it was concealed by a spouse from the other. This is
because the concealment of the STD here becomes fraud.
84
 8. Drug addiction, habitual alcoholism, homosexuality and lesbianism can be a ground to
annul the marriage only when it already exist at the time of the marriage and it was concealed by
said party from the other. If it occurred only after the marriage, it is not a ground for annulment but it
could be a ground for legal separation.

9. Physical incapacity to consummate the marriage refers to impotency and not sterility.
The impotency must already be existing at the time of the marriage and such incapacity continues and
appears to be incurable. If the impotency happened only after the marriage it is not a ground for the
annulment of the marriage. Potency is always presumed, thus, whoever claims that his/her spouse is impotent
has the burden of proving. However, the presumption of potency is rebutted if the wife remains a
virgin after three years from the time of their cohabitation. This is called the “Doctrine of triennial
cohabitation”.

I. Prescriptive period:
Art. 47- The action for annulment of marriage must be filed by
the following persons and within the periods indicated herein:

1) For causes mentioned in Number 1 of Article 45, by the party

whose parent or guardian did not give his or her consent, within five
years after attaining the age of twenty-one; or by the parent or
guardian or person having legal charge of the minor, at any time before
such party reached the age of twenty-one;

2) For causes mentioned in Number 2 of Article 45, by the sane

spouse who had no knowledge of the other’s insanity, by any relative,
guardian or person having legal charge of the insane, at any time
before the death of either party; or by the insane spouse during a lucid
interval or after regaining sanity;

3) For causes mentioned in Number 3 of Article 45, by the

injured party, within five years after the discovery of the fraud;

4) For causes mentioned in Number 4 of Article 45, by the

injured party, within five years from the time the force, intimidation or
undue influence disappeared or ceased;

5) For causes mentioned in Numbers 5 and 6 of Article 45, by the

injured party, within five years after the marriage. (87a)

NOTES

1. If the ground is absence of parental consent, the prescriptive period is five years from the
time the party who did not secure the required parental consent reaches the age of twenty one. The parent
who did not give their consent may also annul the marriage at any time before their son or
daughter who did not secure their consent reaches the age of twenty one.

85
 2. If the ground is insanity, the sane spouse or the relatives or guardian of the insane spouse may
annul the marriage at any time before the death of either spouse. The insane spouse himself may annul the
marriage only during his lucid interval.

3. If the ground is fraud, the action prescribes after five years from the discovery of fraud. But, if
the ground is vitiated consent caused by force, intimidation or undue influence, the prescriptive
period is five years from the time the force, intimidation or undue influence ceases. The action shall be filed by
the party whose consent was obtained through fraud or intimidation.

4. If the ground is incapability to consummate the marriage or sexually transmissible

disease, the action can be filed by the injured party within five years from the time of the celebration of the
marriage.

J. Procedures in annulment and nullity of marriage:

Art. 48- In all cases of annulment or declaration of absolute

nullity of marriage, the court shall order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care that evidence is
not fabricated or suppressed.

In all cases referred to in the preceding paragraph, no judgment

shall be based upon a stipulation of facts or confession of judgment.
(88a)

Art. 49- During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses, the
court shall provide for the support of the spouses and the custody and
support of their common children. The Court shall give paramount
consideration to the moral and material welfare of said children and
their choice of the parent with whom they wish to remain as provided
for in Title IX. It shall also provide for appropriate visitation rights of
the other parent. (n)

NOTES

1. The procedures in annulment of marriage and declaration of nullity of marriage are now primarily
governed by the Supreme Court En Banc Resolution A.M. no. 02-11-10-SC which took effect on March 15,
2003.

2. Once a complaint for Annulment or Declaration of nullity of marriage is filed in the Family Court,
the defendant shall be served with summons and a copy of the complaint whereby he is given fifteen (15)
days to file his answer from receipt thereof. If no answer is filed within the reglementary period of 15 days,

86
the Court cannot declare the defendant in default. Instead the Court will order the prosecuting attorney or
fiscal assigned to it to enter his appearance for the State and to take steps to prevent collusion between the
parties and to take care that evidence is not fabricated or suppressed.

3. The Court cannot render judgment on the basis of stipulation of facts or confession of
judgment. An annulment case cannot be terminated by compromise agreement and no valid compromise is
legally possible on the issue of the validity of marriage (Mendoza vs. C.A., 19 SCRA 756). A full blown hearing
is required in cases where the plaintiff is required to prove his case in court. The policy of the State is to be
cautious and strict in granting annulment of marriage; thus, the law strictly prohibits the annulment of
marriage without trial.

4. In all cases of annulment of marriage or declaration of nullity of marriage, the State

shall be represented by the Office of the Solicitor General or by the Fiscal. Although Article 48 does
not specifically mention the Office of the Solicitor General, such office nevertheless can intervene in the
proceeding considering that the issue of the validity of the marriage is vested with public interest (Republic vs.
Iyoy, G.R. No. 152577, September 21, 2005). It is their duty not only to defend the validity of the marriage
and prevent collusion between the parties but also to expose an invalid one. It can also be required to submit
a memorandum and the prosecuting attorney must actively participate in the proceedings. Hence, where the
Fiscal merely filed a manifestation that there was no collusion and where he merely entered his appearance at
certain hearings of the case but was not heard of anymore, the Supreme Court remanded the case for further
proceeding even if the Judge of the lower court already denied the petition for nullity (Sin vs. Sin, G.R. No.
137590, March 26, 2001).

5. The partial voluntary separation of property agreed upon by the parties through a compromise
agreement approved by the court prior to the judicial declaration of nullity of marriage is valid. The non-
participation of the prosecuting attorney or the Solicitor General in the nullity of marriage case does not
invalidate the compromise agreement previously entered into by the parties. An agreement to separate
property is not of itself an indicator of collusion. In fact, there is no need for the Fiscal to participate in
the negotiation leading to the agreement (Maquilan vs. Maquilan, G.R.No. 155409, June 8, 2007).

5. The Fiscal must actively intervene in the case and submit a report to the court that
there was no collusion between the parties. However, if the annulment or declaration of nullity of
marriage cases were strongly opposed and heatedly contested by the defendant by hiring a lawyer who filed
several pleadings and actively participated in the trial of the case, it is clear that the litigation was
characterized by a no-holds-barred contest and not by collusion. Under this circumstance, the non-intervention
of the Fiscal to assure lack of collusion between the parties is not fatal to the validity of the proceedings in
court especially when it was not shown that evidence was suppressed or fabricated by any of the parties. The
strict application of Article 48 and 60 of the Family Code is therefore not warranted (Tuason vs. Court of
Appeals, 256 SCRA 158).

6. During the pendency of the action for annulment or declaration of nullity of marriage, the support
of the spouses and the custody and support of the common children shall be primarily governed by whatever
agreement the parties have made with respect thereto. In the absence of such agreement, support shall be
taken from the conjugal or absolute community until the marriage is dissolved. As regards the custody of the
children, the same shall be resolved in accordance with Article 213 of the Family Code. Should the court
decide to award the custody of the child to one spouse during the pendency of the case, the other
spouse should have visitorial rights unless the court, for some compelling reason, deprives him or her of
87
such right. Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for
annulment of voidable marriage, or legal separation, and at anytime during the proceeding, the court, motu
proprio or upon application under oath of any of the parties, may issue provisional orders and protection
orders with or without hearing. These orders may be enforced immediately, with or without a bond, and for
such period and under such terms and conditions as the court may deem necessary. This order includes
spousal support, child support, child custody, visitation rights, hold departure order and order of protection
(Please refer to Appendix “C).

K. Decree of Annulment and Nullity of Marriage:

Art. 50- The effects provided for in paragraphs (2), (3), (4) and
(5) of Article 43 and in Article 44 shall also apply in proper cases to
marriages which are declared void ab initio or annulled by final
judgment under Articles 40 and 45.

The final judgement in such cases shall provide for the

liquidation, partition and distribution of the properties of the spouses,
the custody and support of the common children, and the delivery of
their presumptive legitimes, unless such matters had been adjudicated
in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community

or the conjugal partnership shall be notified of the proceedings for
liquidation.

In the partition, the conjugal dwelling and the lot on which it is

situated, shall be adjudicated in accordance with the provisions of
Articles 102 and 129. (n)

Art. 51- In said partition, the value of the presumptive legitimes

of all common children, computed as of the date of the final judgment
of the trial court, shall be delivered in cash, property or sound
securities, unless the parties, by mutual agreement judicially approved,
had already provided for such matters.

The children or their guardian, or the trustees of their property,

may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall

in no way prejudice the ultimate successional rights of the children
accruing upon the death of either or both of the parents; but the value
of the properties already received under the decree of annulment or
absolute nullity shall be considered as advances on their legitime. (n)

88
 Art. 52- The judgment of annulment or of absolute nullity of the
marriage, the partition and the distribution of the properties of the
spouses, and the delivery of the children’s presumptive legitimes shall
be recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)

Art. 53- Either of the former spouses may marry again after
complying with the requirements of the immediately preceding Article;
otherwise, the subsequent marriage shall be null and void. (n)

Art. 54- Children conceived or born before the judgment of

annulment or absolute nullity of the marriage under Article 36 has
become final and executory, shall be considered legitimate. Children
conceived or born of the subsequent marriage under Article 53 shall
likewise be legitimate. (n)

NOTES

1. The Decree of Annulment of Marriage under Article 45 and the Declaration of Nullity of
Marriage under Article 40 shall include the dissolution of the conjugal partnership of the absolute
community of property regime as they are the necessary consequences of the annulment or
declaration of nullity of marriage. By express provision of Article 50, the effects provided for in
paragraphs (2), (3), (4), and (5) of Article 43 and in Article 44 shall also apply to void marriages under Article
40 and the annulled marriages under Article 45. Thus, in all other cases of void marriages other than
Article 40, the property regime shall be governed by the rule on co-ownership provided for in
Articles 147 and 148, as the case may be, and not the conjugal partnership of gains or absolute community
of property (Valdes vs. RTC, 260 SCRA 221).

2. The Decree is issued only after the judgment has become final and executory. The
judgment becomes final after the lapse of the 15 day period to appeal and no appeal was interposed by the
defeated party. The said decree shall provide for the liquidation, partition and distribution of the properties of
the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes.
All creditors of the parties must be notified and the conjugal dwelling shall be adjudicated in favour of the
spouse with whom the majority of the common children choose to remain.

3. Presumptive legitime is that part of the testator’s property which he cannot dispose of because
the law has reserved it for certain heirs who are, therefore, called compulsory heirs (Article 866 of the Civil
Code). The presumptive legitime of the children shall be delivered to them in cash, property or
sound security and it must be provided in the decree. The delivery of presumptive legitime to the
children is required only in the dissolution of a voidable marriage and in the declaration of nullity
of a void marriage under Article 40. It is not required in other forms of void marriages because said
marriages are to be governed by co-ownership under Articles 147 and 148 which does not involve distribution
of presumptive legitime.

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 4. The partition and distribution of the properties of the spouses, and the delivery of the presumptive
legitimes to the children shall be recorded in the Office of the Local Civil Registrar and the Registry of Deeds in
order to bind third persons (Article 52). Non-compliance of the said requirement of recording will
render the subsequent marriage of the parties null and void (Article 53).

5. When the marriage is declared void on the ground that one spouse is psychologically
incapacitated to comply with the essential marital obligations, the rules on liquidation and
partition of conjugal properties laid down in Article 50 and 51 of the Family Code will not apply.
The said rules will only apply to void marriages under Article 40 and voidable marriages under
Article 45. It is therefore an error for the trial court to rule that the decree of nullity of marriage shall only be
issued after the liquidation, partition and distribution of the properties of the parties are made. What governs
the liquidation and partition of the properties owned in common are the rules on co-ownership. The
properties of the spouses should be liquidated in accordance with the Civil Code provisions on co-ownership.
Under Article 496 of the Civil Code, partition may be made by agreement between the parties or by judicial
proceedings XXXX. It is not necessary to liquidate the properties of the spouses in the same proceedings for
declaration of nullity of marriage (Alain Dino vs. Ma. Caridad L. Dino, G.R. No. 178044, January 19, 2011).

6. There are three instances where a void marriage may produce legitimate children and
they are provided for in Article 54 of the Family Code. They are the children conceived and born under
the following conditions:

a.) Before the annulment of voidable marriage became final;

b.) Before declaration of nullity of marriage under Article 36 became final;

c.) Born of subsequent void marriage under Article 53.

Title II

LEGAL SEPARATION

A. Grounds for Legal Separation:

Art. 55- A petition for legal separation may be filed on any of the
following grounds:

1) Repeated physical violence or grossly abusive conduct

directed against the petitioner, a common child, or a child of
the petitioner;
2) Physical violence or moral pressure to compel the petitioner
to change religious or political affiliation;
3) Attempt of respondent to corrupt or induce the petitioner, a
common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
4) Final judgement sentencing the respondent to imprisonment
of more than six years, even if pardoned;
5) Drug addiction or habitual alcoholism of the respondent;
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 6) Lesbianism or homosexuality of the respondent;
7) Contracting by the respondent of a subsequent bigamous
marriage, whether 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. (97a)

NOTES
1. Legal separation is otherwise known as “relative divorce”. It does not dissolve the marriage
as it is nothing more than a separation in bed-and-board (a mensa et thoro) of the spouses. In the
eyes of our law, the husband and wife are still married to each other but they are already allowed to live
separately.

2. Under the Civil Code, there were only two grounds for legal separation and these are: (1.) Adultery
on the part of the wife and concubinage on the part of the husband; and (2.) Attempt on the life of the other
spouse. In the present Family Code there are already ten (10) grounds. The first ground of adultery and
concubinage was no longer reproduced now but it does not mean that they are no longer grounds for legal
separation because it is now covered by the generic term “sexual infedility” under paragraph 8 of Article 55.
The grounds enumerated herein are exclusive and therefore no other grounds for legal
separation can be invoked except those stated in this article. These grounds need not exist prior to
the marriage as they even usually occur after the marriage.

3. Criminal conviction of adultery or concubinage is not required in the action for legal
separation. The court may grant legal separation by mere preponderance of evidence and no criminal
proceedings or conviction is necessary (Gandionco vs. Hon. Penaranda, et al., G.R. No. L- 72984, November
27, 1987). Although adultery and concubinage are included in the acts of sexual infidelity, other acts of sexual
infidelity short of adultery and concubinage are enough so long as the said act constitute a clear betrayal of
the trust of one spouse. Hence, even a husband’s single act of sexual intercourse with another
woman is already a ground for legal separation.

4. Attempt on the life of the other spouse must not be justified by self defense or that the
spouse attacked was caught in flagrante delicto having carnal knowledge with another man or
woman. Criminal conviction is not required as the attempt on the life of another spouse may be proven by
preponderance of evidence.

5. Lesbianism, homosexuality, drug addiction, and habitual alcoholism can only be a

ground for legal separation if they occur during the marriage. If said defects already existed
before the marriage and they were concealed from the other spouse, they could be grounds for
annulment of marriage as it would constitute fraud under paragraph 3 of Article 45 in relation to
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Article 46, paragraph 4. Homosexuality and lesbianism can also be a ground to declare the
marriage void under Article 36 if it existed before the marriage , anchored on psychological
causes, and both grave and incurable.

B. Defenses in Legal Separation:

Art. 56- The petition for legal separation shall be denied on any
of the following grounds:
1) Where the aggrieved party has condoned the offense or act
complained of;
2) Where the aggrieved party has consented to the commission
of the offense or act constituting the grounds for legal
separation;
3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground for
legal separation;
4) Where both parties have given ground for legal separation;
5.) Where there is collusion between the parties to obtain the
decree of legal separation; or
6.) Where the action is barred by prescription. (100a)

Art. 57- An action for legal separation shall be filed within five
years from the time of the occurrence of the cause. (102a)

NOTES

1. An action for legal separation can be dismissed by the court if any of the grounds enumerated in
Article 56 is present. These grounds are as follows: condonation, consent, connivance, recrimination,
collusion, and prescription.

2. Condonation is an act of forgiving and is given after the fact, while consent is given before the
commission of the act that gives rise to the ground for legal separation. Connivance when the spouse
participated in the downfall of the other as by providing actively the opportunity for the wrong doing directly
or indirectly. Recrimination means that both parties are at fault or have given ground for legal separation.
Collusion refers to an arrangement between the spouses to obtain a decree of legal separation by secret
maneuvers or pretensions by making it appear that a valid ground exists even if there is none. Prescription
means the loss or extinction of the right to file an action due to the lapse of time fixed by the law.

3. The prescriptive period for bringing an action for legal separation is five years from the
occurrence of the cause. Under the Civil Code, there used to be a two- decked prescriptive period, that is –
within one year from the discovery of the ground but in no case more than five years from the occurrence of
the cause. The new Family Code has simplified this matter now by providing for only one method of
prescription.

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 4. The court can take judicial notice of prescription. If prescription is apparent from the
allegations in the complaint for legal separation, the court can dismiss it motu proprio. Thus, even if
prescription is not interposed as a defense but it becomes manifest after trial, the court may still dismiss the
complaint motu proprio (Brown vs. Yambao, 102 Phil. 168).

C. Procedures:

Art. 58- An action for legal separation shall in no case be tried

before six months shall have elapsed since the filing of the petition.
(103a) (cooling-off period)

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.
(n)

Art. 60- No decree of legal separation shall be based upon a

stipulation of facts or a confession of judgement.
In any case, the court shall order the prosecuting attorney or
fiscal assigned to it to take steps to prevent collusion between the
parties and to take care that the evidence is not fabricated or
suppressed. (101a)

Art. 61- After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to administer
the absolute community or conjugal partnership property. The
administrator appointed by the court shall have the same powers and
duties as those of a guardian under the Rules of Court. (104a)

Art. 62- During the pendency of the action for legal separation,
the provisions of Article 49 shall likewise apply to the support of the
spouses and the custody and support of the common children. (105a)

NOTES

1. After the filing of the complaint for legal separation, the court will issue summons and require the
defendant to file his/her answer within fifteen (15) days from receipt of the summons and the complaint. If
no answer is filed, the court shall order the assigned fiscal to investigate and determine whether
or not there is collusion between the parties. The court cannot declare the defendant in default on
motion of the plaintiff despite the fact that he/she failed to file an answer (Macias vs. Judge Ochotorena, July
30, 2004). If the defendant filed an answer, the fiscal is still required by law to intervene and conduct his own
investigation to determine the presence or absence of collusion and to see to it that the evidence is not
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fabricated or suppressed. After conducting an investigation, the fiscal is mandated by law to make a report to
the court on the result of his investigation. If there appears to be no collusion, the fiscal will submit a report of
no collusion to the court.

2. The fiscal must actively participate in the proceedings for legal separation. However, if
the legal separation case was vehemently opposed and heatedly contested by the defendant, the non-
intervention of the fiscal or prosecuting attorney to assure lack of collusion between the contending parties is
not fatal to the validity of the proceedings in court. The fact that the litigation is characterized by a no-
holds barred contest is indicative of no collusion. These kinds of situation do not call for the strict
application of Articles 48 and 60 of the Family Code (Tuason vs. Court of Appeals, 256 SCRA 158).

3. Before the court will commence the hearing of the case, it should allow a “six months cooling
off period” to elapse from the filing of the complaint. This is intended to give the parties enough time
to further contemplate their positions and allow the healing balm of time to aid them in the
process. The six months period is imposed to give them the opportunity for dispassionate reflection, for
during this period, there is the possibility that the smouldering ember of emotion and the passion of the
parties may subside by the persuasive intervention of well-meaning friends and members of the family.

4. The six-month cooling-off period is a mandatory requirement and its non-compliance

renders the decision infirm. Thus, in the case of Pacete vs. Carriaga, 231 SCRA 321, the Supreme Court
ruled that failure to observe the six-month cooling-off period is a ground to set aside a decision granting legal
separation. However, what is prevented from being heard during the six-month period is only the
hearing of the case on the merits. It does not involve the hearing of other incidents such as the custody of
the minor children, support pendente lite and alimony. Also, the court may entertain a prayer for injunction
within the said period or even a motion to dismiss. It must be noted, however, that the six-months
cooling off period is required only in legal separation and not in annulment of marriage or
declaration of nullity of a void marriage.

5. No decree of legal separation may be issued unless the court has taken steps towards
the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is
highly improbable. Likewise, the court cannot render judgment on the basis of stipulation of facts
or confession of judgment. However, in the case of Ocampo vs. Florencio, 107 Phil. 35, the Supreme
Court ruled that even if the wife has admitted the adultery in the legal separation case filed
against her by her husband, the decision granting legal separation may still stand if there is
evidence of adultery independently of such statement. The decree issued is still valid since it is not
based on the confession by the defendant wife, but upon evidence presented by the plaintiff. What the law
prohibits is a judgment based exclusively or mainly on defendant’s confession.

6. After the filing of the petition for legal separation, the parties are already entitled to
live separately from each other. In the absence of a written agreement between the spouses, the
administration of the absolute community or conjugal partnership property shall be decided by the court. If
neither of the party is fit to administer it, the court may appoint a third person to manage the community
properties. The administrator appointed by the court shall have the same powers and duties, as those of a
guardian under the Rules of Court. During the pendency of the action for legal separation, the support of the
94
parties and their common children shall be taken from the absolute community or conjugal partnership. If the
court awards the custody of their minor children to one spouse, the other spouse should be given visitorial
rights. Death of a party extinguishes a pending action for legal separation.

D. Effects of the Decree of Legal Separation:

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 marriage but the marriage bond shall not be
severed;
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 profits earned by the absolute
community or the conjugal partnership, which shall be
forfeited in accordance with the provisions of Article 43(2);
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 spouse by intestate succession. Moreover,
provisions in favor of the offending spouse in the will of the
innocent spouse shall be revoked by operation of law. (106a)

Art. 64- After the finality of the decree of legal separation, the
innocent spouse may revoke the donations made by him or by her in
favor of the offending spouse, as well as the designation of the latter
as a beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where the
properties are located. Alienations, liens and encumbrances registered
in good faith before the recording of the complaint for revocation in the
registries of property shall be respected. The revocation of or change in
the designation of the insurance beneficiary shall take effect upon
written notification thereof to the insured.
The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal separation
has become final. (107a)

NOTES
1. The decree of legal separation does not dissolve the marriage. Even if the husband and
wife are already living separately from each other, the marriage bond is not severed. Thus, a spouse can
still be held criminally liable for bigamy if he/she contracts another marriage or for adultery or
concubinage if he or she commits the act.
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 2. The absolute community of property or the conjugal partnership shall be dissolved and
liquidated. The offending spouse shall have no right to any share of the net profits earned by the absolute
community or conjugal partnership. The share of the net profits of the offending spouse shall be forfeited in
favour of the common children, or if there be none, the children of the guilty spouse in the previous marriage
or, in default thereof, the innocent spouse (Article 43, par 2). The net profit refers to the increase in value
between the market value of the community property at the time of the celebration of the marriage and the
market value at the time of its dissolution (Article 102 par.4).

3. Custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of
Article 213 of the Family Code. This means that the court may even deprive the innocent spouse of
the custody of the child if the court finds the said spouse to be unfit to take care of the child. The
court may even award the custody of the child to a third person as the paramount consideration here is the
best interest of the child.

4. The offending spouse shall be disqualified to inherit from the innocent spouse by intestate
succession. Furthermore, if the innocent spouse has instituted the offending spouse as a beneficiary in his last
will and testament, the same is automatically revoked by operation of law.

5. Once the decree of legal separation becomes final, the innocent spouse may or may not revoke
the donations made by him or her in favour of the offending spouse, or he may or may not revoke the
designation of the offending spouse as a beneficiary in any insurance policy, even if such designation is
irrevocable. Unlike in the case of annulment where the institution of the offending spouse as an heir in the will
of the innocent spouse is revoked by operation of law, the revocation here of the donation and the insurance
policy must be done at the instance of the innocent spouse. The revocation of the donations shall be recorded
in the registry of property of the place where the properties are located. However, alienations, liens and
encumbrances registered in good faith before the revocation shall be respected. In case of the revocation of
the designation of the offending spouse in the insurance policy, the same shall take effect only after written
notification thereof to the insured. The action to revoke the donation prescribes after five years from
the time the decree of legal separation has become final.

E. Effects of Reconciliation:

Art. 65- If the spouses should reconcile, a corresponding joint

manifestation under oath duly signed by them shall be filed with the
court in the same proceeding for legal separation. (n)

Art. 66- The reconciliation referred to in the preceding article

shall have the following consequences:
1) The legal separation proceedings, if still pending, shall
thereby be terminated in whatever stage; and
2) The final decree of legal separation shall be set aside, but the
separation of property and any forfeiture of the share of the
guilty spouse already effected shall subsist, unless the
spouses agree to revive their former property regime.
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 The court’s order containing the foregoing shall be recorded in
the proper civil registries. (108a)

Art. 67- The agreement to revive the former property regime

referred to in the preceding article shall be executed under oath and
shall specify:
1) The properties to be contributed anew to the restored
regime;
2) Those to be retained as separate properties of each spouse;
and
3) The names of all their known creditors, their addresses and
the amounts owing to each.

The agreement of revival and the motion for its approval shall be
filed with the court in the same proceeding for legal separation, with
copies of both furnished to the creditors named therein. After due
hearing , the court shall, in its order, take measures to protect the
interest of creditors and such order shall be recorded in the proper
registries of property.

The recording of the order in the registries of property shall not

prejudice any creditor not listed or not notified, unless the debtor-
spouse has sufficient separate properties to satisfy the creditor’s claim.
(195a, 108a)

NOTES

1. Should the spouses reconcile during the pendency of the action for legal separation or even after
the decree has been issued, they must file a joint manifestation of reconciliation in the court which
tried the case. If the case is still pending, it shall be terminated in whatever stage. If the decree
has already been issued, it shall be set aside. However, the separation of property and any forfeiture of
the share of the guilty spouse already effected by the decree shall subsist. The court’s order containing the
reconciliation of the parties must be recorded in the proper office of the local civil registrar.

2. The parties may agree to revive the former property regime that binds them before the
separation. The said agreement must be executed under oath and shall specify the following: (1.) Properties
to be contributed anew to the restored regime, (2.) Those to be retained by either spouse as their separate
properties, and (3.) the names of their respective creditors, their addresses and the amounts owing to each.
The agreement of revival must be in writing and attached to the motion to be filed in court trying the legal
separation case. Creditors of both parties must be duly notified of the said motion by furnishing
them copies of both the agreement and the motion. Once the court approves the agreement and the
motion after due hearing, the order of the court must be recorded in the proper registries of properties.
Those creditors that were not listed or not notified shall not be prejudiced by the recording of the order in the
proper registries.
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 3. The Family Code allows the reconciling spouses to revive their original property regime after its
dissolution by the legal separation. However, the New Rules on Legal Separation, which is known as
Supreme Court En Banc Resolution A.M. No. 02-11-12, promulgated by the Supreme Court on March
15, 2003 (Please refer to Appendix “B), allows the spouses to adopt another regime of property
relations different from that which they had prior to the filing of the petition for legal separation
(see: Sections 23(e) and 24 of the Rule). This new rule conflicts with the provision of the Family Code
considering that the said Code did not allow the use of another property regime after the reconciliation. It is
submitted that the new Rules cannot amend the provisions of the Family Code as the latter is a
substantive law while the former is merely procedural. It is an elementary rule that in case of
conflict the Family Code which is the substantive law should prevail. Moreover, allowing the use of
another property regime after reconciliation may result to a violation of Articles 88 and 107 of the Family Code
which provide that the absolute community of property regime and the conjugal partnership of gains shall
commence only at the precise moment of the celebration of the marriage. Any stipulation, express or implied,
for the commencement of either the absolute community or the conjugal partnership at any time other than at
the precise moment of the celebration of the marriage shall be void.

TITLE III

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

A. Essential Marital Obligations

Art. 68- The husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render mutual help and
support. (109a)

Art. 69- The husband and wife shall fix the family domicile. In
case of disagreement, the court shall decide.

The court may exempt one spouse from living with the
other if the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such exemption shall
not apply if the same is not compatible with the solidarity of the family.
(110a)

Art. 70- The spouses are jointly responsible for the support of
the family. The expenses for such support and other conjugal
obligations shall be paid from the 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 their separate properties. (111a)

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 Art. 71- The management of the household shall be the duty of
both spouses. The expenses for such management shall be paid in
accordance with the provisions of Article 70. (115a)

Art. 72- When one of the spouses neglects his or her duties to
the conjugal union or commits acts which tend to bring danger,
dishonor or injury to the other or to the family, the aggrieved party
may apply to the court for relief. (116a)

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 accrued 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. (117a)

NOTES

1. Husband and wife are obliged to live together under one roof, observe mutual love, respect and
fidelity, and render mutual help and support. These marital obligations are very essential that failure
of a spouse to perform these obligations due to psychological causes could be considered a
ground to nullify the marriage under Article 36 of the Family Code. Procreation is one of the
essential marital obligations, thus, failure of a spouse to comply with such obligation due to
psychological reason could be a ground to nullify the marriage (Chi Ming Tsoi vs. Court of Appeals,
266 SCRA 324). Also, if a spouse who cannot maintain the vow of fidelity because he/she is a
nymphomaniac or satyriasis, a form of psychological incapacity that prevents the party
concerned from complying with the said essential marital obligation, the marriage can be
declared null and void under Article 36 of the Family Code.

2. The court, however, cannot compel a spouse to live with the other spouse if the latter
does not want to as the said duties are highly personal. It is not within the province of the courts of
this country to attempt to compel one of the spouses to cohabit with and render conjugal rights to the other.
It has been held that the wife’s domestic assistance and conjugal companionship are purely personal and
voluntary acts which neither the spouses may be compelled to render (Arroyo vs. Arroyo, 42 Phil. 54).

3. Should a spouse refuses to live with the other spouse under one roof without
justifiable cause, the latter’s remedy is to deny the said spouse support or file an action for
damages against her. Thus, a wife who abandons her husband and secures an invalid divorce abroad can
be held liable for damages under Articles 19, 20, or 21 of the Civil Code (Tenchavez vs. Escano, 15 SCRA 355).
99
 4. A husband cannot force his wife to have sex with him during the pendency, much more
after the decree of legal separation is granted, otherwise he can be sued for rape. Under Republic
Act 8353, a husband can be charged for raping his wife. The said law has now reclassified rape from
crimes against chastity to crimes against person. However, if the wife has later on forgiven the husband, the
criminal liability is extinguished provided that their marriage is not void ab initio.

5. Husband and wife are now jointly responsible for fixing the family domicile (Art. 69),
support of the family (Art. 70), and management of the household (Art. 71). In case of
disagreement between them as to where they should reside, the court shall decide. A spouse may be
exempted from living with the other if the latter should live abroad or there are other valid and compelling
reasons for the exemption. The domicile is the place where the parties intend to have their permanent
residence with the intention of always returning even if they have left it for some time. Expenses for the
support of the family shall be taken from the community property and, in the absence thereof,
from the income or fruits of their separate properties. Should the income or fruits of the separate
properties of either spouse be not sufficient, then it shall be taken from their respective exclusive properties.

6. A spouse has the obligation to protect the family from danger or harm. When said spouse
neglects to perform his/her duties to the conjugal union or commits acts which tend to bring danger,
dishonour, or injury to the other spouse or to the family, the aggrieved party may apply for appropriate
relief from the court, such as injunction or legal separation. It is submitted that the relief may
even include the declaration of nullity of marriage on the ground of psychological incapacity of
the said spouse if his inability to perform this essential marital obligation is chronic and hinges
on psychological causes (Art. 72).

7. A spouse may exercise his/her profession, occupation or business without the consent of the
other. However, if there are valid, serious and moral grounds, the other spouse may object and the court will
decide. If benefits accrued prior to the objection, the resulting obligation shall be enforced
against the community property. If benefits accrued thereafter, such obligation shall be enforced
against the separate property of the spouse who has not obtained consent.

Title IV

PROPERTY RELATIONS BETWEEN

HUSBAND AND WIFE

Chapter 1

GENERAL PROVISIONS

A. Marriage Settlement

Art. 74 - The property relations between husband and wife shall

be governed in the following order:

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 1.) By marriage settlements executed before the marriage;

2.) By the provisions of this Code; and,

3.) By the local customs. (118)

Art. 75 - The future spouses may, in the marriage settlements,

agree upon the regime of absolute community, conjugal partnership of
gains, complete separation of property, or any other regime. In the
absence of marriage settlement, or when the regime agreed upon is
void, the system of absolute community of property as established in
this Code shall govern. (119a)

Art. 76 - In order that any modification in the marriage

settlements may be valid, it must be made before the celebration of the
marriage, subject to the provisions of Articles 66, 67, 128, 135 and
136. (121)

Art. 77 - The marriage settlements and any modification thereof

shall be in writing, signed by the parties and executed before the
celebration of the marriage. They shall not prejudice third persons
unless they are registered in the local civil registry where the marriage
contract is recorded as well as in the proper registries of property.
(112a)

NOTES

1. A marriage settlement is an agreement entered into by parties about to be married for the purpose
of fixing the terms and conditions of their property relations during the marriage. It is more popularly known
as Prenuptial Agreement. Being a contract, it is governed by the law on contracts, particularly the provision
that the parties may establish such stipulations, clauses, terms and conditions as they deem convenient and
proper, provided they are not contrary to law, morals, good customs, public order, or public policy (Art. 1306
NCC).

2. The property relation of the husband and wife during the marriage is primarily
governed by their marriage settlement, if there is one. In the absence of a marriage settlement,
the provision of the Family Code will apply stating that the regime of absolute community of
property will automatically govern. If there is no marriage settlement and the Family Code cannot apply,
then the local customs will govern the property relation of the parties to the marriage.

3. The property regime that the parties may use in the marriage settlement may be : (a.) Absolute
Community of Property regime; (b.) Conjugal Partnership of Gains; and (c.) Complete Separation
of Property regime. The parties may also enter into a modified regime or a combination of any of
the aforementioned regimes provided the terms and conditions thereof are not contrary to law, morals,
good customs and public policy.

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 4. A marriage settlement must be in writing, signed by the parties, and executed before
the celebration of the marriage. In order to bind third persons it must be registered in the Office
of the Local Civil Registrar as well as in the proper Registry of Deeds. If not registered, third persons
who deal with either or both spouses have the right to presume that they are governed by the absolute
community of property regime.

5. Any modification in the marriage settlement must be in writing and made before the
marriage. Once the parties have agreed on a property regime in their marriage settlement, the same could
no longer be changed or modified during the marriage except in those instances provided for by Articles 66,
67, 128, 135 and 136 of the Family Code. Articles 66 and 67 of the Family Code refer to the revival of
the former property regime due to the reconciliation of spouses after the legal separation. Articles
128, 135, and 136 on the other hand refer to the separation of property during the marriage with proper
intervention of the court. The separation of the property could be based on a valid cause or by voluntary
agreement of the parties. At all instance, however, there must be court approval of the change of property
regime during the marriage, whether it is for a cause or without a cause.

B. Persons who must give consent

Art. 78 - A minor who according to law may contract marriage

may also execute his or her marriage settlements, but they shall be
valid only if the persons designated in Article 14 to give consent to the
marriage are made parties to the agreement, subject to the provisions
of Title IX of this Code. (120a)

Art. 79 - For the validity of any marriage settlements executed

by a person upon whom a sentence of civil interdiction has been
pronounced or who is subject to any other disability, it shall be
indispensable for the guardian appointed by a competent court to be
made a party thereto. (123a)

NOTES

1. The marriage settlement must be signed by the parties themselves or their guardians.
Article 78 is no longer applicable now as it has already been repealed by R.A. 6809 which lowered the age of
majority from 21 to 18 years old. Prior to R.A. 6809 which took effect in 1989, the age majority was 21 years
old but an 18 years old can already contract marriage. Thus, those between 18 to 21 years of age are
considered minors but capacitated to marry. These are the persons being referred to in Article 78 of the Family
Code which requires the assistance of their parents if they enter into marriage settlement. Since the age of
majority now has already been lowered by R.A. 6809 from 21 to 18, and the marriageable age under the
Family Code is also 18 years old, then there are no more minors who can enter into marriage.

2. When a party to the marriage settlement is suffering from civil interdiction or any other disability,
it shall be necessary that his/her legal guardian will also sign the marriage settlement in order to make it valid.
Civil interdiction is an accessory penalty to a crime which carries a penalty of reclusion perpetua and reclusion
temporal. It deprives the offender during the time of his sentence of the rights of parental
authority, or guardianship, either as to the person or property of any ward, of marital authority,

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of the right to manage his property, and of the right to dispose of such property by any act or any
conveyance inter vivos.

C. Law governing marriage settlement

Art. 80 - In the absence of a contrary stipulation in a marriage

settlement, the property relations of the spouses shall be governed by
Philippine laws, regardless of the place of the celebration of the
marriage and their residence.

This rule shall not apply:

1.) Where both spouses are aliens;

2.) With respect to the extrinsic validity of contracts affecting

property not situated in the Philippines and executed in the
country where the property is located; and

3.) With respect to the extrinsic validity of contracts entered into

the Philippines but affecting property situated in a foreign
country whose laws require different formalities for its extrinsic
validity. (124a)

NOTES

1. The marriage settlement is governed by Philippine law if both parties are Filipinos,
regardless of the place of the celebration of the marriage and their residence. This is so because if
the parties are Filipinos they will be governed by Philippine laws even if their marriage was celebrated abroad
(nationality theory). However, this rule will not apply when both parties are aliens OR when the issue involves
the extrinsic validity of the contract entered into abroad and the property involved is also located in the
country where the marriage settlement was executed.

D. Effect of non celebration of marriage

Art. 81 - Everything stipulated in the settlements or contracts

referred to in the preceding articles in consideration of a future
marriage, including donations between the prospective spouses made
therein, shall be rendered void if the marriage does not take place.
However, stipulations that do not depend upon the celebration of the
marriage shall be valid. (125a)

NOTES

1. If the marriage upon which the marriage settlement is entered into did not
materialize, the marriage settlement will be rendered void. However, if the stipulation in the
marriage settlement is not dependent on the celebration of the marriage, the same shall be
103
considered valid. For example, if the man recognizes the child of the woman as his own child and
he promised to support the said child in their marriage settlement, the said stipulation in the
marriage settlement will remain valid even if their marriage did not push through. Thus, the
recognition of the child by the man shall not be affected by the failure of the marriage to materialize.

Chapter 2

DONATIONS BY REASON OF MARRIAGE

A. Donations Propter Nuptias

Art. 82 - Donations by reason of marriage are those which are

made before its celebration, in consideration of the same, and in favour
of one or both of the future spouses. (126)

Art. 83 - These donations are governed by the rules on ordinary

donations established in Title III of Book III of the Civil Code, insofar
as they are not modified by the following Articles. (127a)

Art. 84 - If the future spouses agree upon a regime other than

the absolute community of property, they cannot donate to each other
in their marriage settlements more than one-fifth of their present
property. Any excess shall be considered void.

Donations of future property shall be governed by the provisions

on testamentary succession and the formalities of wills. (130a)

Art. 85 - Donations by reason of marriage of property subject to

encumbrances shall be valid. In case of foreclosure of the encumbrance
and the property is sold for less than the total amount of the obligation
secured, the donee shall not be liable for the deficiency. If the property
is sold for more than the total amount of said obligation, the donee
shall be entitled to the excess. (131a)

NOTES

1. Donations by reason of marriage is also known as Donation Propter Nuptias. It has three
essential elements and they are: (a.) It is a donation made before the celebration of the marriage, (b.) It is
made in consideration of the marriage, and (c.) It is made in favour of either or both parties to the marriage.

2. Donations propter nuptias are governed by the rules on ordinary donations found in Title III of Book
III of the Civil Code. Hence, to be valid the donee must accept the donation personally, or through
an authorized person (Art. 745 NCC) and that the acceptance must be made during the lifetime of
the donor and the donee (Art. 746 NCC).

104
 3. The donation propter nuptias can be made by one party in favour of the other party to a
forthcoming marriage or it could be made by any person in favor of either or both parties to the
marriage. A donation of an immovable property must be made in a public document to be valid,
while a donation of a movable property may be done orally or in writing. However, if the value of the
personal property donated exceeds five thousand pesos, the donation and the acceptance shall be made in
writing; otherwise, the donation shall be void (Art. 748 NCC).

4. The donation made by one party in favour of the other may be incorporated in the marriage
settlement executed by them before the celebration of their marriage or it could be done in a separate
document (ie.Deed of Donation). If the donation is contained in the marriage settlement and the
parties have agreed to be governed by a regime other than the absolute community of property,
there is a limitation of not more than one-fifth of their present property that a spouse can donate
to the other. This means that if the future husband will donate to his future wife some of his exclusive
properties before the celebration of their marriage, and the donations are incorporated in the marriage
settlement where the property regime they have chosen is the conjugal partnership or complete separation of
property regime, he cannot donate more than one-fifth of his/her present property. The alleged reason for the
prohibition is that a marriage settlement is a contract and therefore a product of negotiation and during the
negotiation the possibility of one party exerting pressure and undue influence on the other is a
great possibility which the law must try to limit. Thus, if the donation is made in a separate Deed
of Donation and not incorporated in the marriage settlement, the “not more than one-fifth
limitation” will not apply because the possibility of undue influence attendant in the negotiation
of a marriage settlement is generally absent in an ordinary donation.

5. Donation propter nuptias of property subject to encumbrance shall be valid but the
donee’s rights are subject to the encumbrance. Thus, if the donor fails to pay the obligation secured by
a mortgage on the property donated, the mortgagee may foreclose the mortgage. If there is a deficiency after
the foreclosure, the donee spouse cannot be held liable for the deficiency. But, if the property foreclosed is
sold for more than the value of the obligation, the excess should be given to the donee spouse.

B. Revocation of Donation propter nuptias

Art. 86 - A donation by reason of marriage may be revoked by

the donor in the following cases:

1.) If the marriage is not celebrated or judicially declared void

ab initio except donations made in the marriage settlements,
which shall be governed by Article 81;

2.) When the marriage takes place without the consent of the
parents or guardian, as required by law;

3.) When the marriage is annulled, and the donee acted in bad
faith;

4.) Upon legal separation, the donee being the guilty spouse;

105
 5.) If it is with a resolutory condition and the condition is
complied with;

6.) When the donee has committed an act of ingratitude as

specified by the provisions of the Civil Code on donations in
general. (132a)

NOTES

1. Donations by reason of marriage may be revoked by the donor if the marriage did not
materialize or it was later on declared null and void by the court. The word used in this article is may,
so the revocation is not by operation of law. The donor has the option to revoke or not the donation made but
there must first be a judicial declaration of nullity of marriage before the donor could exercise the right of
revocation. However, there are instances where the judicial declaration of nullity of marriage will result to the
automatic revocation of the donation made. One of this is the void marriage under Article 40 in
relation to Article 50. The revocation of the donation propter nuptias made by the innocent spouse to the
guilty spouse in a void marriage under Articles 40, 42 and 44 shall be by operation of law as provided in Article
43 (3). The Family Code does not provide for the prescriptive period within which the action for revocation of
the donation propter nuptias can be filed. Thus, Article 1149 of the Civil Code which provides that all
actions whose periods are not fixed in this Code or in any other laws must be brought within five
(5) years from the time the right of action accrues may apply.

2. When the marriage takes place but is later on annulled because one of the party who is between
the ages of 18 to 21 does not secure the required parental consent, the donor may revoke the donation
propter nuptias made in favour of the parties to the marriage. The donor has five years, from the time he
learns that the needed parental consent was not obtained, to revoke the donation.

3. When the marriage is annulled, and the donee acted in bad faith, the donation made by the
innocent spouse in favour of the guilty spouse may be revoked (Article 86 par. 3). There seems to be a conflict
between this provision (Art. 86 par. 3) and Article 50 in relation to Article 43 (3) of the Family Code because
in the latter provision the revocation is by operation of law while in Article 86 (3) the revocation is
discretionary on the donor. It is submitted that Article 86 (3) shall prevail over Article 50 as it is the
provision last in the order of position in the same statute.

4. In case of legal separation, donation made in favour of the guilty spouse may be
revoked by the donor. It must be noted that legal separation does not dissolve the marriage; hence, there
is still a possibility that the spouses may reconcile. This is why the donor may or may not revoke the donation.
The period to file the action for revocation is five years from the finality of the decree of legal separation.

5. If the donation is subject to a resolutory condition and the condition is complied with,
the donor may also revoke the donation. The happening of the future or uncertain events which
constitutes the resolutory condition will extinguish the right or the obligation. Thus, if the parents of the
bride donated a parcel of land to the groom subject to the condition that he will not again drink
beer and the condition was later on violated by the donee, the donor may revoke the donation.

6. Lastly, any act of ingratitude committed by the donee as provided in Article 765 of the Civil
Code can be a ground for the revocation of the donation.
106
C. Prohibition of Donation during the marriage

Art. 87 - Every donation or grant of gratuitous advantage, direct

or indirect, between the spouses during the marriage shall be void,
except moderate gifts which the spouses may give each other on the
occasion of any family rejoicing. The prohibition shall also apply to
persons living together as husband and wife without valid marriage.
(133a)

NOTES

1. Donation between husband and wife is prohibited during the marriage. The prohibition
applies also to those who are living together as husband and wife without a valid marriage. The
reason for this prohibition was explained by the Supreme Court in the case of Matabuena vs. Cervantes, 38
SCRA 284, when it said that if the reason for prohibiting husband and wife from donating to each other is
because of the fear of undue influence, then there is more reason to prohibit those living together without a
valid marriage as the possibility of undue influence is even greater.

2. A sale of a property by the husband to his wife of a subsequent bigamous marriage for the
purpose of removing the property from the effects of Article 148 of the Family Code is not valid as the
conveyance of the property was not considered by the Supreme Court as sale but a donation which is
prohibited by Article 87 of the Family Code. In this case the bigamous wife was still 22 years old and the
lawyer who prepared the Deed of Sale testified that it was the husband who provided the money for the
purchase price and directed him that the name of the wife be placed as the buyer (Agapay vs. Palang, 276
SCRA 341).

3. Either spouse may, however, donate to each other some gifts during the marriage
provided it is considered as moderate gifts given on the occasion of any family rejoicing.

4. What the law prohibits is not only the giving of a donation but also the grant of
gratuitous advantage to the other spouse as in the case of a usufruct. Furthermore, the prohibition
applies to both direct and indirect donation. So, if the husband donates a property to the father of
the wife and the latter is the sole heir of the donee, the donation is covered by the prohibition as
it is a form of an indirect donation.

5. Only those who are directly prejudiced by the donation can assail the same. Thus, an
insurance company cannot question the validity of the donation made by the husband to his wife as the said
company has no relation to the parties and had no rights or interests inchoate, present, remote, or otherwise,
in the property in question at the time the transfer occurred (Harding vs. Commercial Union Assurance Co., 38
Phil. 464).

Chapter 3

SYSTEM OF ABSOLUTE COMMUNITY

107
Section 1: General Provision

Art. 88 - The absolute community of property between spouses

shall commence at the precise moment that the marriage is celebrated.
Any stipulation, express or implied, for the commencement of the
community regime at any other time shall be void. (145a)

Art. 89 - No waiver of rights, interests, shares and effects of the

absolute community of property during the marriage can be made
except in case of judicial separation of property.

When the waiver takes place upon a judicial separation of

property, or after the marriage has been dissolved or annulled, the
same shall appear in a public instrument and shall be recorded as
provided in Article 77. The creditors of the spouse who made such
waiver may petition the court to rescind the waiver to the extent of the
amount sufficient to cover the amount of their credits. (146a)

Art. 90 - The provisions on co-ownership shall apply to the

absolute community of property between the spouses in all matters not
provided for in this Chapter. (n)

NOTES

1. The Absolute Community of Property Regime shall commence at the precise moment of the
celebration of marriage. It cannot commence during the marriage. Thus, any stipulation that the absolute
community shall commence a year or two after the marriage is void.

2. The spouses cannot waive their rights, interests, shares and effects in the absolute community
during the marriage except in case of judicial separation of property. When judicial separation takes place
during the marriage, and a spouse waived his/her interest in the absolute community in favour of another
person, the waiver must be contained in a public document and shall be recorded as provided in Article 77.
Moreover, the creditors of the spouse who made such waiver may petition the court to rescind the waiver to
the extent of the amount sufficient to cover the amount of their credits. Lastly, the provision on co-ownership
shall govern the spouses under the absolute community of property regime.

Section 2

WHAT CONSTITUTES COMMUNITY PROPERTY

Art. 91 - Unless otherwise provided in this Chapter or in the

marriage settlements, the community property shall consist of all the
property owned by the spouses at the time of the celebration of the
marriage or acquired thereafter. (197a)
108
 Art. 92 - The following shall be excluded from the community
property:

1.) Property acquired during the marriage by gratuitous title by

either spouse, and the fruits as well as the income thereof, if
any, unless it is expressly provided by the donor, testator or
grantor that they shall form part of the community property;

2.) Property for personal and exclusive use of either spouse.

However, jewelry shall form part of the community property;

3.) Property acquired before the marriage by either spouse who

has legitimate descendants by a former marriage, and the fruits
as well as the income, if any, of such property. (201a)

Art. 93 - Property acquired during the marriage is presumed to

belong to the community, unless it is proved that it is one of those
excluded therefrom. (160a)

NOTES

1. The absolute community of property regime comprises all property owned by the spouses before
the marriage and those that they acquire during the marriage including the fruits thereof. As a general rule, all
property that each spouse owned before the marriage shall automatically be considered as part of the
absolute community upon the celebration of the marriage. This is the rule regardless of how these properties
were acquired before the marriage except if they were expressly excluded in the marriage settlement or by the
provision of the Family Code. All properties acquired during the marriage are presumed to belong to the
absolute community, unless proven that it is one of those excluded therefrom.

2. There are four types of properties that are excluded from the absolute community of property
regime and they are as follows:

a.) Those acquired during the marriage by gratuitous title, including the
fruits as well as the income thereof;
b.) Those for personal and exclusive use of either spouse except jewelry;
c.) Those acquired before the marriage by either spouse who has a legitimate
descendant by a former marriage;
d.) Those that were expressly excluded in the marriage settlement.

3. Property acquired during the marriage using the exclusive money of a spouse shall become part of
the absolute community because there is no provision in the chapter on absolute community similar to Article
109 (4) in conjugal partnership. Thus, if an exclusive property of a spouse is sold during the marriage, the
proceeds of the sale may remain as an exclusive fund of the said spouse. However, if he/she used the money
to buy another property, the said property bought shall already be considered as absolute community property
because it was acquired during the marriage. This law may appear to be very unfair, but it is the intent of the
framers of the Family Code to make the husband and the wife one in all respect and foster the essential unity
of the family.

109
Section 3

CHARGES UPON AND OBLIGATIONS OF THE

ABSOLUTE COMMUNITY

Art. 94 - The absolute community of property shall be liable for:

1.) The support of the spouses, their common children and

legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
Code on Support;

2.) All debts and obligations contracted during the marriage by

the designated administrator-spouse for the benefit of the
community, or by both spouses, or by one spouse with the
consent of the other;

3.) Debts and obligations contracted by either spouses without

the consent of the other to the extent that the family may have
been benefited;

4.) All taxes, liens, charges and expenses, including major or

minor repairs, upon the community property;

5.) All taxes and expenses for mere preservation made during
marriage upon the separate property of either spouse used by
the family;

6.) Expenses to enable either spouse to commence or complete a

professional or vocational course, or other activity for self-
improvement;

7.) Antenuptial debts of either spouse insofar as they have

redounded to the benefit of the family;

8.) The value of what is donated or promised by both spouses in

favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement;

9.) Antenuptial debts of either spouse other than those falling

under paragraph (7) of this Article, the support of illegitimate
children of either spouse, and liabilities incurred by either
spouse by reason of a crime or a quasi-delict, in case of absence
110
 or insufficiency of the exclusive property of the debtor-spouse,
the payment of which shall be considered as advances to be
deducted from the share of the debtor-spouse upon liquidation
of the community; and

10.) Expenses of litigation between the spouses unless the suit

is found to be groundless.

If the community property is insufficient to cover the foregoing

liabilities, except those falling under paragraph (9), the spouses shall
be solidarily liable for the unpaid balance with their separate
properties. (161a, 162a, 163a, 202a-205a)

Art. 95 - Whatever may be lost during the marriage in any game

of chance, betting, sweepstakes, or any other kind of gambling,
whether permitted or prohibited by law, shall be borne by the loser and
shall not be charged to the community but any winnings therefrom
shall form part of the community property. (164a)

NOTES

1. The obligations and expenses that are chargeable to the absolute community of property regime
are enumerated in Article 94 of the Family Code. Support of the spouses, their common children and the
legitimate children of either spouse in a previous marriage shall be taken from the absolute community.
However, support of the illegitimate child of a spouse shall be taken from the separate property of the spouse
concerned and not from the absolute community. In case of absence or insufficiency of the exclusive property
of the said spouse, the absolute community shall provide the necessary support but it will be considered as
advances of the spouse concerned to be deducted from his/her share upon liquidation of the absolute
community.

2. All debts and obligations contracted by the spouse designated as the administrator of the absolute
community for the benefit of the family as well as debts incurred during the marriage by the other spouse,
provided it is with the knowledge and consent of the administrator spouse, are chargeable to the absolute
community. If the debt was incurred by one spouse without the consent of the other spouse, it cannot be
charged to the community. However, if the said obligation redounded to the benefit of the family, the same
can be charged to the community but only up to the extent that the family may have been benefited.

3. Taxes, liens, charges and expenses for major and minor repairs of community property are
chargeable to the absolute community. Also, taxes, liens and charges on the exclusive property of one spouse
but is being used by the family can be charged to the community. However, expenses for repair of the said
exclusive property of the spouse is chargeable to the community only if it is a minor repair or those necessary
for the preservation of the said property. If it is already a major repair, it has to be answered by the separate
fund of the owner spouse.

4. Expenses needed for a spouse to commence or complete a professional or vocational course, or

other activity for self-improvement is chargeable to the absolute community. Also, the value of what is

111
donated or promised by both spouses in favour of their common children for the purpose of letting the latter
finish a course can be charged to the community.

5. Antenuptial debts incurred by either spouse can be charged to the absolute community only if the
said debt redounded to the benefit of the family. If it did not redound to the benefit of the family, the absolute
community may answer said obligation but only if the spouse concerned does not have sufficient separate
funds to pay the obligation. In this case the payment made by the community shall be considered as advances
of the subject spouse to be deducted later on from his/her share in the absolute community upon liquidation.

6. There are three personal obligations of a spouse that the absolute community may be compelled
to pay subject to the condition that the said spouse does not have sufficient property or money to pay and
that the same will be considered as advances of the spouse from the absolute community. These obligations
are: (a.) Antenuptial debt which did not redound to the benefit of the family; (b.) Support of illegitimate
children; and, (c.) Civil liability arising from the crime committed.

7. If the community property is not enough to pay off all the obligations mentioned in Article 94, the
separate property of either spouse will have to answer for it and their liability is solidary.

8. A spouse who gambles or engages in any game of chance or betting shall bear the losses and he
can not charge it to the absolute community. However, if he wins, the winnings will become part of the
community.

Section 4

OWNERSHIP, ADMINISTRATION, ENJOYMENT

AND DISPOSITION OF THE COMMUNITY PROPERTY

Art. 96 - The administration and enjoyment of the community

property shall belong to both spouses jointly. In case of disagreement,
the husband’s decision shall prevail, subject to recourse to the court by
the wife for a proper remedy, which must be availed within five years
from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or

otherwise unable to participate in the administration of the common
properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition
or encumbrance which must have the authority of the court or the
written consent of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a
binding contract upon the acceptance by the other spouse or

112
 authorization by the court before the offer is withdrawn by either or
both offerors. (206a)

Art. 97 - Either spouse may dispose by will of his or her interest

in the community property. (n)

Art. 98 - Neither spouse may donate any community property

without the consent of the other. However, either spouse may, without
the consent of the other, make moderate donations from the
community property for charity or on occasions of family rejoicing or
family distress. (n)

NOTES

1. Husband and wife are co-owners of the absolute community property. As such, they shall jointly
manage or administer the same except when one delegated to the other spouse the sole authority to
administer the community property. When an action is filed involving a community property, it is necessary
that both the husband and wife will sign the verification and certification of non-forum shopping in the
complaint. However, if only one spouse signs the verification the same could be considered substantial
compliance of the requirement as each of the spouses may reasonably be presumed to have personal
knowledge of the filing or non-filing by the other spouse of the complaint (Docena vs. Lapesura, G.R. No.
140153, March 28, 2001).

2. In case of disagreement between the husband and the wife in the manner of managing or
administering the absolute community, the decision of the husband will prevail. But this does not mean that
the wife has no recourse as she can go to court and question the decision of the husband within a period of
five years from the date of the contract implementing the decision.

3. In case one spouse is incapacitated or otherwise unable to jointly administer the common
properties, the other spouse may assume sole powers of administration. The appointment of the spouse as the
sole administrator can be done in a summary proceeding under Article 253 of the Family Code. The inability or
incapacity of a spouse to jointly administer the community property which will entitle the other spouse to be
appointed as sole administrator in a summary proceeding under Article 253 could be due to the fact that the
said spouse is absent, has abandoned the other, or that they have been separated in fact. However, if the
inability of a spouse to jointly administer the community property is due to the fact that he is already in the
comatose stage, a victim of stroke or cerebrovascular accident, which makes him “incompetent”, the proper
remedy is a judicial guardianship proceeding under Rule 93 of the Rules of Court and not a summary
proceeding for appointment as sole administrator under Article 253 of the Family Code ( Uy vs.Court of
Appeals, G.R. No. 109557, November 29, 2000).

4. The sole administration of the absolute community by one spouse does not include the powers to
dispose of or encumber the community property. The sole administrator spouse cannot sell or encumber the
common property without the consent of the other spouse or the authority from the court. The sale of a
community property by one spouse without the consent of the other is null and void. However, although the
sale is void it can be ratified later on if the non-consenting spouse will give his/her consent or the court grants
the required authorization. This is so because the transaction shall be construed as a continuing offer on the
part of the consenting spouse and the third person, and may be perfected as a binding contract upon the
113
acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both
offerors.

5. The action to annul a contract of sale executed by the husband without the consent of the wife will
not prescribe as the action to nullify a void contract is imprescriptible. However, if the buyer of the property is
a” buyer in good faith”, as in the case of a sale made by the husband involving a property titled in his name
alone as single, and the buyer merely relied on what appears on the face of the title, the sale could no longer
be nullified by the wife. The only remedy of the wife is to compel the husband to account for the proceeds of
the sale as it is part of the absolute community of property. This rule will apply only if the buyer is not aware
that the seller is married as he merely relied on what appears in the title (PNB vs. Court of Appeals, 153 SCRA
435).

6. Under Article 173 of the Civil Code of the Philippines, a sale of a common property by the husband
without the consent of the wife is merely voidable and not void. The non-consenting spouse has a period of
ten years to annul the sale; otherwise, the action to annul prescribes. The annulment of the sale does not only
refer to the one half share of the plaintiff but to the entirety of the contract. Under the Civil Code, consent of
the wife to the sale of conjugal property by her husband is required only if the said conjugal property was
acquired after the effectivity of the Civil Code in August 30, 1950. If it was acquired before the effectivity of
the Civil Code, consent of the wife is not required (Villaranda vs. Villaranda, G.R. No. 153447, February 23,
2004).

7. Either spouse cannot dispose of his/her interest in the absolute community during the marriage
because his/her share therein is merely inchoate and is not yet determinable until the absolute community is
dissolved. However, a spouse may dispose of his interest in the community property but only through a will.
This is allowed because the disposition in a will does not take effect during the marriage but only upon death
of the party disposing. However, considering that the absolute community is a co-ownership, the spouse can
only dispose of his/her interest in the community property and not in a specific property.

8. A spouse cannot donate to a third person a community property without the consent of the other
spouse. The reason behind the prohibition is to protect a spouse from the reckless and unreasonable act of
generosity of the other spouse which may result to the diminution of the common property to the damage and
prejudice of the said spouse. However, if the donation is merely a moderate gift given on occasion of family
rejoicing or distress, or as a charity, the donation is valid. Whether a donation is moderate or not depends
upon the financial situation of the spouses and the absolute community of property regime.

Section 5

DISSOLUTION OF ABSOLUTE COMMUNITY REGIME

Art. 99 - The absolute community terminates:

1.) Upon the death of either spouse;

2.) When there is a decree of legal separation;

114
 3.) When the marriage is annulled or declared void; or

4.) In case of judicial separation of property during the marriage

under Articles 134 to 138. (175a)

Art. 100 - The separation in fact between husband and wife shall
not affect the regime of absolute community except that:

1.) The spouse who leaves the conjugal home or refuses to live
therein, without justice cause, shall not have the right to be
supported;
2.) When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be
obtained in a summary proceeding;

3.) In the absence of sufficient community property, the

separate property of both spouses shall be solidarily liable for
the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter’s share. (178a)

Art. 101 - If a spouse without just cause abandons the other or

fails to comply with his or her obligations to the family, the aggrieved
spouse may petition the court for receivership, for judicial separation
of property or for authority to be the sole administrator of the absolute
community, subject to such precautionary conditions as the court may
impose.

The obligations to the family mentioned in the preceding

paragraph refer to marital, parental or property relations.

A spouse is deemed to have abandoned the other when he or she

has left the conjugal dwelling without intention of returning. The
spouse who has left the conjugal dwelling for a period of three months
or has failed within the same period to give any information as to his or
her whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling. (178a)

NOTES

1. The following are the causes of the dissolution of the absolute community of property regime:

a.) Death of either spouse

b.) Legal separation
c.) Annulment of marriage or declaration of nullity of marriage
d.) Judicial separation of property during marriage
115
 2. A de facto separation of the husband and wife does not dissolve the absolute community of
property regime. The only effect of the separation in fact is that the spouse who leaves the conjugal home
without justifiable cause will not be entitled to support. If the consent of the abandoning spouse is needed in a
transaction involving a common property, judicial authorization may be obtained in a summary proceeding.
Lastly, the abandoned spouse may petition the court for judicial authorization to administer or encumber any
specific separate property of the other spouse so that the proceeds thereof as well as its fruits can be used to
help defray the expenses in supporting the family.

3. If a spouse abandons the other without just cause or fails to comply with his or her obligations to
the family, the aggrieved spouse may petition the court for:

a.) Receivership
b.) Judicial separation of property
c.) Appointment as sole administrator of the absolute community

4. Abandonment implies a departure by one spouse with the avowed intent never to return, followed
by a prolong absence without just cause. The spouse who has left the conjugal dwelling for a period of three
months or has failed within the same period to give any information as to his or her whereabouts shall be
prima facie presumed to have no intention of returning to the conjugal dwelling.

Section 6
LIQUIDATION OF THE ABSOLUTE COMMUNITY
ASSETS AND LIABILITIES

Art. 102 - Upon the dissolution of the absolute community

regime, the following procedure shall apply:

1.) An inventory shall be prepared, listing separately all the

properties of the absolute community and the exclusive
properties of each spouse;

2.) The debts and obligations of the absolute community shall be

paid out of its assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the unpaid balance
with their separate properties in accordance with the
provisions of the second paragraph of Article 94;

3.) Whatever remains of the exclusive properties of the spouses

shall thereafter be delivered to each of them;

4.) The net remainder of the properties of the absolute

community shall constitute its net assets, which shall be
divided equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage
settlements, or unless there has been a voluntary waiver of
such share as provided in this Code. For purposes of

116
 computing the net profits subject to forfeiture in accordance
with Articles 43, No. (2) and 63, No. (2), the said profits shall
be the increase in value between the market value of the
community property at the time of the celebration of the
marriage and the market value at the time of its dissolution;

5.) The presumptive legitimes of the common children shall be

delivered upon partition, in accordance with Article 51;

6.) Unless otherwise agreed upon by the parties, in the partition

of the properties, the conjugal dwelling and the lot on which
it is situated shall be adjudicated to the spouse with whom
the majority of common children choose to remain. Children
below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case
there is no such majority, the court shall decide, taking into
consideration the best interests of the said children. (n)

Art. 103 - Upon the termination of the marriage by death, the

community property shall be liquidated in the same proceeding for the
settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving

spouse shall liquidate the community property either judicially or
extra-judicially within one year from the death of the deceased spouse.
If upon the lapse of the said period, no liquidation is made, any
disposition or encumbrance involving the community property of the
terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage

without compliance with the foregoing requirements, a mandatory
regime of complete separation of property shall govern the property
relations of the subsequent marriage. (n)

Art. 104 - Whenever the liquidation of the community properties

of two or more marriages contracted by the same person before the
effectivity of this Code is carried out simultaneously, the respective
capital, fruits and income of each community shall be determined upon
such proof as may be considered according to the rules of evidence. In
case of doubt as to which community the existing properties belong,
the same shall be divided between or among the different communities
in proportion to the capital and duration of each. (189a)

NOTES

1. Upon the dissolution of the absolute community of property regime due to any of the grounds
enumerated in Article 99 of the Family Code, liquidation shall take place as a matter of right. Article 102
117
provides for the procedure to be observed in the dissolution of the absolute community. The first step is to
conduct an inventory of all the properties or assets of the absolute community as well as the separate or
exclusive properties of either spouses. A list of all the common property and a separate list of the exclusive
property of either spouse must be made. These properties must be itemized and correspondingly valued.
Then, the debts and obligations of the absolute community shall be paid out of its assets. In case the
community assets are not sufficient to pay off the debts, the spouses shall be solidarily liable for the unpaid
balance with their separate properties. Whatever is left of their exclusive properties after paying off all the
creditors shall be returned to them. If the common properties are more than enough to pay the absolute
community obligations, the remainder shall be considered as the net assets to be divided by the spouses. The
net assets shall be divided equally by the husband and wife, unless a different proportion or division was
agreed upon in the marriage settlement.

2. The net profits of the absolute community of which the guilty spouse is not entitled to a share
pursuant to the provision of Article 43 par. 2 and Article 63 par. 2 refer to the increase in value of the
community property at the time of the celebration of the marriage and the market value at the time of the
dissolution. The share of the guilty spouse in the said net assets shall go to their common children or, if there
are none, the children of the guilty spouse by a previous marriage or in default thereof, the share will go to
the innocent spouse.

3. Before the net asset is divided by the husband and wife, their common children must be given first
their presumptive legitime pursuant to the provision of Article 51. The receipt by the children of their
presumptive legitime shall in no way preclude them from receiving their ultimate successional rights upon the
death of their respective parents.

4. In the partition, the conjugal dwelling shall be adjudicated to the spouse with whom the majority
of the common children choose to remain, unless otherwise agreed upon by the parties. In case there is no
such majority, the court shall decide, taking into account the best interest of the children.

5. If the reason for the termination of the marriage is death of either spouse, the liquidation of the
absolute community shall be done in the same proceedings for the settlement of the estate of the deceased.
The surviving spouse must settle the estate of his/her deceased spouse, either judicially or extra-judicially,
within one year from the death of the deceased spouse. Any disposition or encumbrance of a common
property by the surviving spouse after the death of the other spouse is null and void.

6. Upon the death of a spouse, the absolute community which has been dissolved by the death of
said spouse evolves into a co-ownership of the surviving spouse and their common children (Marigsa vs.
Macabuntoc, 17 Phil. 107). Thus, the surviving spouse cannot sell an absolute community property except with
the consent and conformity of the children.

7. Should the surviving spouse remarry without settling the estate of the deceased spouse, the
subsequent marriage will be automatically governed by the mandatory regime of complete separation of
property. This is the only exception to the rule that if a person marries without a marriage settlement, the
default regime of absolute community will govern. The purpose of this rule is to prevent confusion of the
properties of the first and second marriage. This rule serves as a limitation to the right of the parties to fix
their property relation in the marriage settlement as stated in Article 1 of the Family Code.

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Chapter 4

CONJUGAL PARTNERSHIP OF GAINS

Section 1

General Provisions

Art. 105 - In case the future spouses agree in the marriage

settlements that the regime of conjugal partnership of gains shall
govern their property relations during marriage, the provisions in this
Chapter shall be of supplementary application. (n)

The provisions of this Chapter shall also apply to conjugal

partnerships of gains already established between the spouses before
the effectivity of this Code without prejudice to vested rights already
acquired in accordance with the Civil Code or other laws as provided in
Article 256. (n)

Art. 106 - Under the regime of conjugal partnership of gains, the

husband and wife place in a common fund the proceeds, products,
fruits and income from their separate properties and those acquired by
either or both spouses through their efforts or by chance, and upon
dissolution of the marriage or of the partnership, the net gains or
benefits obtained by either or both spouses shall be divided equally
between them, unless otherwise agreed in the marriage settlements.
(142a)

Art. 107 - The rules provided in Articles 88 and 89 shall also

apply to conjugal partnership of gains. (n)

Art. 108 - The conjugal partnership shall be governed by the

rules on the contract of partnership in all that is not in conflict with
what is expressly determined in this Chapter or by spouses in their
marriage settlements. (147a)

NOTES

1. Under the present law, the regime of conjugal partnership of gains can only apply it there is a
marriage settlement and it is the property regime agreed upon by the parties. This is so because if there is no
marriage settlement, it is the absolute community of property regime that will automatically govern. Thus, this
chapter on conjugal partnership is only applicable if the parties to the marriage have agreed to be governed by
it in a marriage settlement. The application of this chapter is only suppletory because the property relation of
the spouses will be primarily governed by their marriage settlement. However, this chapter will also apply to

119
those marriages that were solemnized before the effectivity of the Family Code without a marriage settlement
because it is the default regime under the Civil Code.

2. As a general rule, only those properties acquired during the marriage through the efforts or industry
of either or both spouses as well as the income or fruits of their exclusive properties that accrue during the
marriage will comprise the conjugal partnership. Upon the dissolution of the marriage or of the partnership,
the net gains shall be divided between the spouses equally, unless there is a different ratio of sharing stated in
their marriage settlement.

3. Like the absolute community of property regime, the conjugal partnership of gains shall also
commence at the precise moment of the celebration of the marriage. It cannot commence at any time during
the marriage. Also, the spouses cannot waive their rights, interests, shares or effects in the conjugal
partnership during the marriage except in case of judicial separation of property. In case a waiver is made
resulting to a judicial separation of property, the same must be in a public instrument and duly recorded in
accordance with Article 77 of the Family Code. A creditor of the spouse may ask for the rescission of the
waiver if it prejudices him.

4. The rules on partnership in the Civil Code shall likewise apply to the conjugal partnership in this
Code. Thus, any stipulation which excludes the partners from any share of the profits and losses of the
partnership is void (Art. 1799 NCC). Every partner must account to the partnership for any benefit, and hold as
trustee for it, any profits derived from the use of any partnership property (Art. 1807 NCC). A partner is a co-
owner with his other partner of specific partnership property (Art. 1811 NCC).

Section 2

EXCLUSIVE PROPERTY OF A SPOUSE

A. What are the exclusive properties:

Art. 109- The following shall be the exclusive property of each

spouse:

1.) That which is bought to the marriage as his or her own;

2.) That which each acquires during the marriage by gratuitous

title;

3.) That which is acquired by right of redemption, by barter or by

exchange with property belonging to only one of the spouses;
and

4.) That which is purchased with exclusive money of the wife or

of the husband. (148a)

NOTES

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 1. A Property owned by either spouse before the marriage shall remain as his/her exclusive property as
this is a property that he/she brought to the marriage. Also, those properties that were acquired by either
spouse during the marriage by gratuitous title are not conjugal but are separate properties of the spouse
concerned. If the property was acquired by gratuitous title before the marriage, with more reason that it is
exclusive, because it falls under the first paragraph of this article.

2. Exclusive properties of either spouse that were mortgaged and foreclosed before the marriage but
were redeemed during the marriage shall remain as his/her exclusive property even if the money used to
redeem it is a conjugal money. In this case, the spouse concerned shall be considered as indebted to the
conjugal partnership as the money used to pay the redemption price shall be treated as advances of the
spouse from the conjugal partnership. Also, a property acquired during the marriage through barter or
exchange using the exclusive property of either spouse shall remain as exclusive property of the said spouse.

3. When a property is bought during the marriage the presumption is that it is conjugal. However, if
the money used to buy that property is the exclusive money of a spouse then it is an exclusive property of the
said spouse. The rule, however, is different in the absolute community of property regime because anything
that is bought during the marriage is always considered a community property even if the money used is
exclusive.

B. Ownership,Enjoyment,and Administration
Of Exclusive Properties

Art. 110 - The spouses retain the ownership, possession,

administration and enjoyment of their exclusive properties.

Either spouse may, during marriage, transfer the administration

of his or her exclusive property to the other by means of a public
instrument, which shall be recorded in the registry of property of the
place where the property is located. (137a, 168a, 169a)

Art. 111 - A spouse of age may mortgage, encumber, alienate or

otherwise dispose of his or her property, without the consent of the
other spouse, and appear alone in court to litigate with regard to the
same. (n)

Art. 112 - The alienation of any exclusive property of a spouse

administered by the other automatically terminates the administration
over such property and the proceeds of the alienation shall be turned
over to the owner-spouse. (n)

Art. 113 - Property donated or left by will to the spouses, jointly

and with designation of determinate shares, shall pertain to the done-
spouse as his or her own exclusive property, and in the absence of

121
 designation, share and share alike, without prejudice to the right of
accretion when proper. (150a)

Art. 114 - If the donations are onerous, the amount of the

charges shall be borne by the exclusive property of the donee-spouse,
whenever they have been advanced by the conjugal partnership of
gains. (151a)

Art. 115 - Retirement benefits, pensions, annuities, gratuities,

usufructs and similar benefits shall be governed by the rules on
gratuitous or onerous acquisitions as may be proper in each case. (n)

NOTES

1. A spouse shall retain the ownership and enjoyment of his/her exclusive property. Said spouse may,
however, transfer the administration of the property to the other spouse but the same should be done in a
public instrument and duly recorded in the registry of property of the place where the property is located.

2. Even if the exclusive property of a spouse is under the administration of the other spouse, it does
not preclude the owner spouse from selling or encumbering said property. The owner spouse can dispose,
alienate, or encumber his/her exclusive property without the consent of the administering spouse. The
alienation would simply mean that the owner spouse is terminating the administration of the property by the
other spouse. The proceeds of the sale shall belong to the owner spouse alone.

3. If an exclusive property of a spouse is involved in a litigation, only the owner spouse will litigate and
need not include the other spouse. However, if the action for the recovery of an exclusive property also
involves recovery of conjugal property, the other spouse must be impleaded as party plaintiff. Thus, if the wife
files an action for ejectment to recover possession of her exclusive property being leased by a delinquent
tenant, she alone must litigate. But, if she also demands payment of unpaid rentals that accrued during the
marriage, the husband must be impleaded because the unpaid rentals are conjugal.

4. A property donated or left by will to both spouses during the marriage is an exclusive property. In
the absence of specific designation of shares, the spouses will own the donated property in equal shares.
Should a spouse refuse to accept the donation, his/her share in the property donated pro indiviso shall go to
the other spouse by way of accretion.

5. If the donation is subject to an onerous condition, the donee spouse shall bear the cost in complying
with the condition. Should the spouse concerned have no sufficient funds to pay the cost of complying with
the condition, the conjugal partnership may advance the cost but subject to reimbursement later on from the
exclusive funds of the done spouse.

6. Retirement benefits, pensions, annuities, gratuities, usufruct and other similar benefits may either be
conjugal or exclusive depending on the nature of the benefit or how it was acquired. If it was acquired
gratuitously during the marriage then it is exclusive. If acquired onerously, then it is conjugal.

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Section 3

CONJUGAL PARTNERSHIP PROPERTY

Art. 116 - All property acquired during the marriage, whether the
acquisition appears to have been made, contracted or registered in the
name of one or both spouses, is presumed to be conjugal unless the
contrary is proved. (160a)

Art. 117 - The following are conjugal partnership properties:

1.) Those acquired by onerous title during the marriage at the

expense of the common fund, whether the acquisition be for
the partnership, or for only one of the spouses;

2.) Those obtained from the labor, industry, work or profession

of either or both of the spouses;

3.) The fruits, natural, industrial, or civil, due or received during

the marriage from the common property, as well as the net
fruits from the exclusive property of each spouse;

4.) The share of either spouse in the hidden treasure which the
law awards to the finder or owner of the property where the
treasure is found;

5.) Those acquired through occupation such as fishing or

hunting;

6.) Livestock existing upon the dissolution of the partnership in

excess of the number of each kind brought to the marriage by
either spouse; and

7.) Those which are acquired by chance, such as winnings from

gambling or betting. However, losses therefrom shall be
borne exclusively by the loser-spouse. (153a, 154, 155, 159)

Art. 118- Property bought on installments paid partly from

exclusive funds from either or both spouses and partly from conjugal
funds belongs to the buyer or buyers if full ownership was vested
before the marriage and to the conjugal partnership if such ownership
was vested during the marriage. In either case, any amount advanced
by the partnership or by either or both spouses shall be reimbursed by
the owner or owners upon liquidation of partnership. (n)

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 Art. 119- Whenever an amount or credit payable within a period
of time belongs to one of the spouses, the sums which may be
collected during the marriage in partial payments or by installments on
the principal shall be the exclusive property of the spouse. However,
interests falling due during the marriage on the principal shall belong
to the conjugal partnership. (156a, 157a)

Art. 120 - The ownership of improvements, whether for utility or

adornment, made on the separate property of the spouses at the
expense of the partnership or through the acts or efforts of either or
both of the spouses shall pertain to the conjugal partnership, or to the
original owner-spouse, subject to the following rules:

When the cost of improvement made by the conjugal

partnership and any resulting increase in value are more than the value
of the property at the time of the improvement, the entire property of
one of the spouses shall belong to the conjugal partnership, subject to
reimbursement of the value of the property of the owner-spouse at the
time of improvement; otherwise, said property shall be retained in
ownership by the owner-spouse, likewise subject to reimbursement of
the cost of the improvement.

In either case, the ownership of the entire property shall be

vested upon the reimbursement, which shall be made at the time of
liquidation of the conjugal partnership. (158a)

NOTES

1. As a general rule, all properties acquired by either spouse during the marriage are presumed
conjugal even if it is declared in the name of only one spouse. As long as it is proven that the property has
been acquired during the marriage, the presumption applies even though the spouses are living separately
(Wong vs. IAC, 200 SCRA 792). For this presumption to apply, it is a condition sine qua non that proof of its
acquisition during the marriage is duly established (Jocson vs. Court of Appeals, 170 SCRA 333). Since the
presumption in law is in favour of conjugality, whoever claims that it is not conjugal has the burden of proving
that it is acquired using the exclusive money of a spouse or that it is acquired gratuitously. It has been held
that an inscription in the Torrens Title of the owner’s name as “Martin Lacerna married to Epifania Magallon” is
merely descriptive of the civil status of the owner and does not necessarily prove that the land is conjugal in
the absence of proof that it was acquired during the marriage (Magallon vs. Mantejo, 146 SCRA 282).

2. Properties acquired by onerous title from the common fund during the marriage are considered
conjugal. This is true even if the acquisition be for the partnership, or for only one of the spouses. Damages
awarded by the court to either spouse can be conjugal or exclusive depending on how it was acquired. In the
case of Zulueta vs. Pan American World Airways, Inc., 49 SCRA 1, the Supreme Court said: “Damages granted
by the courts in favour of any of the spouses arising out of a contract solely financed by the conjugal
partnership of gains and consequently unduly breached by a third party belong to the conjugal partnership of
gains.” However, in the case of Lilius vs. Manila Railroad Co., 62 Phil. 56, the Supreme Court said that if

124
damages were awarded to one of the spouses as a result of physical injuries inflicted by a third person , as in
the case of an injury resulting from an automobile accident which resulted to the disfigurement of the wife’s
face, the damages awarded belong exclusively to the said injured spouse.

3. Those that were acquired through the labor, industry, work or profession of either spouse during the
marriage are also conjugal. The salary of a spouse or his income or profit from business that accrues during
the marriage is conjugal. Also, fruits from conjugal properties are considered conjugal. As regards fruits of
exclusive properties of either spouse, it is considered conjugal only if it accrued during the marriage and the
fruit is the net fruits. From the fruits of the exclusive property will be deducted first the expenses for the
administration of said property and the remaining balance of the said fruits is the net fruits which are
considered conjugal.

4. The share of a spouse in the hidden treasure which the law awards to the finder as well as those
acquired through occupation such as fishing and hunting are conjugal. Livestocks in excess of what was
brought to the marriage by either spouse are also conjugal. Lastly, those that were acquired by chance, such
as winning from gambling or betting, are conjugal. Losses, however, shall be borne exclusively by the loser-
spouse.

5. Properties bought on installments before the marriage paid partly by exclusive funds and partly by
conjugal funds can be exclusive or conjugal depending on when ownership of the property was transferred. If
ownership was transferred immediately upon its purchase when the buyer was not married, then it is
exclusive. But, if ownership was transferred only upon payment of the last installment when the buyer is
already married, and the said installment was paid from the conjugal funds, then it is conjugal. However, in
either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the
owner upon liquidation of the partnership (Art. 118 FC).

6. Payment of a credit in favour of one spouse made during the marriage shall remain as exclusive
property of the spouse concerned. However, the interest thereof which accrued during the marriage is
conjugal as it is considered fruits of an exclusive property during the marriage (Art. 119 FC).

7. When an improvement is introduced by the conjugal partnership on the land belonging to either
spouse, the land and the improvement will be considered conjugal or exclusive depending on its value. If the
cost of the improvement made by the conjugal partnership is more than the value of the land at the time of
the improvement, the entire property shall belong to the conjugal partnership. But, if the land is more valuable
than the improvement then the land and the improvement shall belong to the owner-spouse. In both cases,
however, the conjugal partnership or the spouse concerned has the obligation to reimburse the cost of the
improvement or the land at the time of the liquidation of the conjugal partnership. Until reimbursement is
made at the time of the liquidation, ownership is retained by the original owner. Thus, ownership of the land
and the improvement shall be transferred only upon liquidation of the conjugal partnership (see: Art. 120 F.C.,
See also: Francisco Munoz Jr. vs. Erlinda Ramirez et al., G.R. No. 156125, August 25, 2010).

Section 4

CHARGES UPON AND OBLIGATIONS OF THE

CONJUGAL PARTNERSHIP
125
 Art. 121 - The conjugal partnership shall be liable for:

1.) The support of the spouses, their common children, and the
legitimate children of either spouse; however the support of
illegitimate children shall be governed by the provisions of
this Code on Support;

2.) All debts and obligations contracted during the marriage by

the designated administrator-spouse for the benefit of the
conjugal partnership of gains, or by both spouses or by one of
them with the consent of the other;

3.) Debts and obligations contracted by either spouse without

the consent of the other to the extent that the family may
have been benefited;

4.) All taxes, liens, charges and expenses, including major or

minor repairs upon the conjugal partnership of the property;

5.) All taxes and expenses for mere preservation made during
the marriage upon the separate property of either spouse;

6.) Expenses to enable either spouse to commence or complete a

profession, vocational, or other activity for self-improvement;

7.) Antenuptial debts of either spouse insofar as they have

redounded to the benefit of the family;

8.) The value of what is donated or promised by both spouses in

favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement; and

9.) Expenses of litigation between the spouses unless the suit is

found to be groundless.

If the conjugal partnership is insufficient to cover the foregoing

liabilities, the spouses shall be solidarily liable for the unpaid balance
with their separate properties. (161a)

Art. 122 - The payment of personal debts contracted by the

husband or the wife before or during the marriage shall not be charged
to the conjugal partnership except insofar as they redounded to the
benefit of the family.

126
 Neither shall the fines and indemnities imposed upon them be
charged to the partnership.

However, the payment of the personal debts contracted by

either spouse before the marriage, that of fines and indemnities
imposed upon them, as well as the support of illegitimate children of
either spouse, may be imposed against the partnership assets after the
responsibilities enumerated in the preceding Article have been
covered, if the spouse who is bound should have no exclusive property
or if it should be insufficient; but at the time of the liquidation of the
partnership, such spouse shall be charged for what has been paid for
the purposes above-mentioned. (163a)

Art. 123 - Whatever may be lost during the marriage in any

game of chance, or in betting, sweepstakes, or any other kind of
gambling whether permitted or prohibited by law, shall be borne by the
loser and shall not be charged to the conjugal partnership but any
winnings therefrom shall form part of the conjugal partnership
property. (164a)

NOTES

1. The charges and obligations of the conjugal partnership enumerated in Article 121 are the same as
those of the absolute community of property regime mentioned in Article 94 of the Family Code. The only
difference is that paragraph 9 of Article 94 which refers to the three personal obligations of a spouse, which
are: (1.) ante nuptial debt of a spouse which did not redound to the benefit of the family, (2.) support of
illegitimate children, and (3.) civil liabilities arising from a crime committed, were no longer reproduced in
Article 121 as they were treated separately by Article 122.

2. Ante-nuptial debts which redounded to the benefits of the family are always chargeable to the
conjugal partnership. Debts incurred by a spouse during the marriage can also be charged against the
conjugal partnership if the same redounded to the benefit of the family. Where the husband contracts a loan
on behalf of the family business, the law presumes, and rightly so, that such obligation will redound to the
benefit of the conjugal partnership. However, a surety agreement or an accommodation contract entered into
by the husband in favour of his employer cannot, by itself, alone be categorized as falling within the context of
“obligation for the benefit of the family”. Thus, said obligation cannot be charged against the conjugal
partnership (Ayala Investment & Development Corp. vs. Court of Appeals, G.R. No. 118305, February 12,
1998).

3. The wife’s civil liability arising from the crime of slander cannot be charged against the conjugal
partnership as it did not definitely redound to the benefit of the family. The levy on execution on a conjugal
partnership property to satisfy the said civil liability of the wife is not valid. Article 122 of the Family Code
explicitly provides that payment of personal debts contracted by the husband or the wife before or during the
marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of

127
the family. The filing of a Third Party claim by the husband to nullify the execution sale of the conjugal
property is proper (Sps. Buado vs. C.A. and Nicol, G.R. No. 145222, April 24, 2009).

4. The wife may bind the conjugal partnership only when she purchases things necessary for the
support of the family, or when she borrows money for that purpose upon her husband’s failure to deliver the
needed sum, when administration of the conjugal partnership is transferred to the wife by the courts or by the
husband, or when the wife gives moderate donations for charity (Francisco vs. Gonzales, 565 SCRA 638).

5. The conjugal partnership is liable for all obligations contracted by the husband and wife. Thus, when
the said obligation becomes due, the conjugal partnership shall be answerable for it and not the husband and
the wife individually as independent debtors, such that the concept of joint or solidary liability, as between
them, does not arise (Alipio vs. Court of Appeals, 341 SCRA 441). It is therefore an error to consider the
husband and the wife as jointly or solidarily liable for such obligation as it is the conjugal partnership and not
them individually who should answer it. However, if the conjugal partnership fund is insufficient to pay the
obligation, the spouses shall be solidarily liable for the unpaid balance with their separate properties.

6. The personal obligations of a spouse mentioned in Article 94 par. 9 of the Family Code can be
charged against the conjugal partnership if the spouse concerned does not have sufficient exclusive property
but only after all other liabilities enumerated in Article 121 have been covered. This means that the conjugal
partnership can only pay the support of illegitimate children, ante nuptial debts which did not redound to the
benefit of the family, and fines and indemnities imposed upon a spouse for delicts or quasi-delicts committed,
if all the obligations enumerated in Article 121 have been fully paid already. Whatever is paid by the conjugal
partnership shall be considered as advances of the spouse who incurred such obligation.

Section 5

ADMINISTRATION OF THE CONJUGAL

PARTNERSHIP PROPERTY

Art. 124 - The administration and enjoyment of the conjugal

partnership shall belong to both spouses jointly. In case of
disagreement, the husband’s decision shall prevail, subject to recourse
to the court by the wife for a proper remedy, which must be availed of
within five years from the date of the contract implementing such
decision.

In the event that one spouse is incapacitated or otherwise

unable to participate in the administration of the conjugal properties,
the other spouse may assume sole powers of administration. These
powers do not include the powers of disposition or encumbrance which
must have the authority of the court or the written consent of the
other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the consenting

128
 spouse and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or authorization by
the court before the offer is withdrawn by either or both offerors.
(165a)

Art. 125 - Neither spouse may donate any conjugal partnership

property without the consent of the other. However, either spouse
may, without the consent of the other, make moderate donations from
the conjugal partnership property for charity or on occasions of family
rejoicing or family distress. (174a)

NOTES

1. The provisions of Articles 124 and 125 of this Code are very similar or identical to Articles 96 and 98
hereof. The only difference is that the former refers to the regime of conjugal partnership while the latter
articles refer to the absolute community of property regime.

2. Just like in the absolute community of property regime, the husband and wife are joint
administrators of the conjugal partnership. In case one is incapacitated or otherwise unable to participate in
the administration of the conjugal partnership, the other spouse may assume the sole power of administration.
The power of administration does not include the power to sell or encumber any conjugal property without the
consent of the other spouse. Thus, if the administering spouse would like to sell or encumber any conjugal
property, said spouse must first secure the consent of the other spouse or the authorization from the court,
otherwise, the sale or encumbrance is void.

3. Where the husband sold a conjugal partnership property without the knowledge and consent of the
wife, the sale is void. The subsequent and questionable “amicable settlement” entered into by the wife with
the buyer in connection with the case for tresspassing filed against her by the said buyer, where the wife later
contested her signature in the said settlement, could not have validated or ratified an already void and illegal
contract. The amicable settlement before the barangay authorities where the wife was made to agree to leave
the place could not be considered a “continuing offer” or acceptance under the second paragraph of Article
124 (Sps. Antonio vs. Court of Appeals, G.R. No. 125172, June 26, 1998).

4. If the husband, without the knowledge and consent of the wife, sells conjugal property, such sale is
VOID. If the sale was with the knowledge but without the approval of the wife, thereby resulting in
disagreement, such sale is ANNULABLE at the instance of the wife who is given five (5) years from the date
the contract implementing the decision of the husband to institute the case (Sps. Ravina vs. Villa Abrille et al.,
G.R. No. 160708, October 16, 2009).

5. Sale of conjugal property by the wife without the knowledge and consent of the husband and on the
basis of a forged Special Power of Attorney allegedly executed by the husband in her favor is null and void.
The buyer cannot claim that he is a buyer in good faith. When the property sold is conjugal, and the seller is
armed only with an SPA allegedly executed by the other spouse, it is incumbent upon the buyer to verify the
authenticity of the SPA. It is not enough for the buyer to check the authenticity of the title but also into the
seller’s capacity to sell. Had they made appropriate inquiries into the authenticity of the SPA, they would have
uncovered soon enough that the respondents had been estranged from each other and were under de facto
separation (Sps. Aggabao vs. Dionisio Parulan et al., G.R. No. 165803, September 1, 2010).
129
 5. The case filed by the wife questioning the decision of the husband in matters of administration of
the conjugal partnership must be filed within five (5) years from the time the contract being questioned was
entered into by the husband. The action falls within the rules on summary procedure pursuant to Title XI ( Art.
238 up to 253 of the Family Code).

6. If the sale, without the consent of the wife, was made on January 11, 1989 (after the effectivity of
the Family Code), the sale is VOID even if the parties were married in 1950.The buyer, however, may recover
the amount they paid to the seller with legal interest until fully paid and to be entitled to indemnity for the
improvements they introduced into the property with a right of retention until the reimbursement is made
(Fuentes vs. Roca, G.R. No. 178902,
April 21, 2010).

7. The husband-administrator cannot lease a conjugal property without the consent of the wife. This is
because lease is an encumbrance on the property as the lessor transfers his right to use the property in favor
of the lessee. The lessor’s right is impaired therein. He may even be ejected by the lessee if the lessor uses
the leased premises. Therefore, lease is a burden on the land, and that it is also an encumbrance on the
property. Moreover, the lease is not only an encumbrance but also a “qualified alienation”, with the lessee
becoming, for all intents and purposes, and subject to its terms, the owner of the thing affected by the lease
(Melania Roxas vs. Court of Appeals, et al., G.R. No. 92245, June 26, 1991).

7. Before the Family Code, the sale or encumbrance of conjugal properties by a spouse without the
knowledge and consent of the other spouse is not void but only voidable. The spouse can question the sale
within a period of ten years, otherwise, the action prescribes. Now, under the Family Code the sale without the
consent of the other spouse is void and the action to nullify the sale does not prescribe.

Section 6

DISSOLUTION OF CONJUGAL PARTNERSHIP

REGIME

Art. 126 - The conjugal partnership terminates:

1.) Upon the death of either spouse;

2.) When there is a decree of legal separation;

3.) When the marriage is annulled or declared void; or

4.) In case of judicial separation of property during the marriage

under Articles 134 to 138. (175a)

Art. 127 - The separation in fact between husband and wife shall
not affect the regime of conjugal partnership, except that:

1.) The spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported;
130
 2.) When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be
obtained in a summary proceeding;

3.) In the absence of sufficient conjugal partnership property,

the separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present shall,
upon petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter’s share. (178a)

Art. 128 - If a spouse without just cause abandons the other or

fails to comply with his or her obligations to the family, the aggrieved
spouse may petition the court for receivership, for judicial separation
of property, or for authority to be the sole administrator of the
conjugal partnership property, subject to such precautionary
conditions as the court may impose.

The obligations to the family mentioned in the preceding

paragraph refer to marital, parental or property relations.

A spouse is deemed to have abandoned the other when he or she

has left the conjugal dwelling without intention of returning. The
spouse who has left the conjugal dwelling for a period of three months
or has failed within the same period to give any information as to his or
her whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling. (167a, 191a)

NOTES

1. The conjugal partnership of gains is terminated by any of the four grounds enumerated in Article
126. This article is similar to article 99 except for the difference in the regime.

2. Upon the death of a husband, the conjugal partnership is terminated. One half of the conjugal
properties will go to the surviving spouse while the other half will form part of the estate of the deceased
spouse and the same will be transmitted to his heirs, which include his wife, who is entitled to the same share
as that of each of the legitimate children. Thus, the death of the husband will result to a co-ownership
between the surviving spouse and their children.

3. When the marriage is annulled or declared void by the court, the conjugal partnership is also
dissolved as there is no more marriage to speak of. When the marriage is terminated the conjugal partnership
is also terminated. But, in legal separation, even if the marriage is still subsisting, the conjugal partnership is
also terminated by express provision of the law. Also, there is another instance where the conjugal partnership
is dissolved despite the existence of a valid marriage, and that is in the case of judicial separation of property
under Articles 134 to 138 of the Family Code.

131
 4. A separation in fact between the husband and wife does not affect the regime of conjugal
partnership. The only consequence of the de-facto separation is that the spouse who left the conjugal
dwelling, without just cause, will no longer be entitled to support from the abandoned spouse. Likewise, if the
consent of the abandoning spouse to any transaction involving conjugal properties is needed and the same
could not be obtained, the present spouse may ask judicial authorization in a summary proceeding. Lastly, the
present spouse may sell or encumber an exclusive property of the abandoning spouse, with prior judicial
authorization, to answer for his/her share in the solidary obligation to support the family. It must be noted
that in case of insufficiency of the conjugal partnership, the exclusive property of the spouses is solidarily liable
for the support of the family.

5. Abandonment is presumed when a spouse left the conjugal dwelling without the intention to return
or has left the same for a period of three months without giving any information as to his or her whereabouts.
When abandonment occurs or when one spouse fails to comply with his or her obligation in the family, the
present spouse may avail of the following remedies:

a.) Petition the court for receivership

b.) Demand for judicial separation of property
c.) Petition the court for authority to act as sole administrator
of the conjugal partnership

Section 7
LIQUIDATION OF THE CONJUGAL PARTNERSHIP
ASSETS AND LIABILITIES

Art. 129 - Upon the dissolution of the conjugal partnership

regime, the following procedure shall apply:

1.) An inventory shall be prepared, listing separately all the

properties of the conjugal partnership and the exclusive
properties of each spouse.

2.) Amounts advanced by the conjugal partnership in payment of

personal debts and obligations of either spouse shall be
credited to the conjugal partnership as an asset thereof.

3.) Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the value
of his or her exclusive property, the ownership of which has
been vested by law in the conjugal partnership.

4.) The debts and obligations of the conjugal partnership shall be

paid out of the conjugal assets. In case of insufficiency of
said assets, the spouse shall be solidarily liable for the unpaid
balance with their separate properties, in accordance with
provisions of paragraph (2) of Article 121.

132
 5.) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.

6.) Unless the owner had been indemnified from whatever

source, the loss or deterioration of movables used for the
benefit of the family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the
conjugal funds, if any.

7.) The net remainder of the conjugal partnership properties

shall constitute the profits, which shall be divided equally
between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements or
unless there has been a voluntary waiver or forfeiture of such
share as provided in this Code.

8.) The presumptive legitimes of the common children shall be

delivered upon partition in accordance with Article 51.

9.) In the partition of the properties, the conjugal dwelling and

the lot on which it is situated shall, unless otherwise agreed
upon by the parties, be adjudicated to the spouse with whom
the majority of the common children choose to remain.
Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise.
In case there is no such majority, the court shall decide,
taking into consideration the best interests of said children.
(181a, 182a, 183a, 184a, 185a)

Art. 130 - Upon the termination of the marriage by death, the

conjugal partnership property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.

If no judicial proceeding is instituted, the surviving spouse shall

liquidate the conjugal partnership property either judicially or extra-
judicially within one year from the death of the deceased spouse. If
upon the lapse of the six-month period no liquidation is made, any
disposition or encumbrance involving the conjugal partnership
property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage

without compliance with the foregoing requirements, a mandatory
regime of complete separation of property shall govern the property
relations of the subsequent marriage. (n)

Art. 131 - Whenever the liquidation of the conjugal partnership

properties of two or more marriages contracted by the same person
133
 before the effectivity of this Code is carried out simultaneously, the
respective capital, fruits and income of each partnership shall be
determined upon such proof as may be considered according to the
rules of evidence. In case of doubt as to which partnership the existing
properties belong, the same shall be divided between the different
partnerships in proportion to the capital and duration of each. (189a)

Art. 132 - The Rules of Court on the administration of estates of

deceased persons shall be observed in the appraisal and sale of
property of the conjugal partnership, and other matters which are not
expressly determined in this Chapter. (187a)

Art. 133 - From the common mass of property, support shall be

given to the surviving spouse and to the children during the liquidation
of the inventoried property and until what belongs to them is
delivered; but from this shall be deducted that amount received for
support which exceeds the fruits or rents pertaining to them. (188a)

NOTES

1. The procedures in the liquidation of the conjugal partnership is the same as that of the absolute
community of property regime. For this purpose, please refer to the discussion in Articles 102 to 104 of this
book.

Chapter 5

SEPARATION OF PROPERTY OF THE SPOUSES

AND ADMINISTRATION OF COMMON PROPERTY
BY ONE SPOUSE DURING THE MARRIAGE

A. Judicial Separation of Property during marriage:

Art. 134 - In the absence of an express declaration in the

marriage settlements, the separation of property between spouses
during the marriage shall not take place except by judicial order. Such
judicial separation of property may either be voluntary or for sufficient
cause. (190a)

NOTES

1.As a general rule, the regime of separation of property can only govern if the husband and wife have
entered into a marriage settlement and it is the property regime they have agreed upon in their pre-nuptial
agreement. This is because if there is no marriage settlement it is the absolute community of property regime
that will automatically govern the property relation of the spouses. The property regime agreed upon by the
parties in their marriage settlement cannot anymore be changed once the marriage is celebrated. If the
134
husband and the wife are governed by the absolute community of property regime at the time of the
marriage, they cannot anymore change that regime to conjugal partnership during the marriage or vice versa.
This is so because both the absolute community and the conjugal partnership of gains, as a property regime,
can only commence at the precise moment of the celebration of marriage. It cannot start at anytime during
the marriage (See: Articles 88 and 107 F.C.). If the spouses are governed by the separation of property
regime at the time of the marriage, they cannot also change it to conjugal partnership or absolute community
during the marriage for the same reason stated in Articles 88 and 107.

2. The spouses may, however, change their property regime during the marriage from absolute
community or from conjugal partnership to separation of property regime. This can be done if there exist
sufficient grounds (Art. 135) or upon voluntary agreement of the parties (Art. 136). In either case, there must
be an approval of the separation of property during the marriage by the court.

B. Grounds for Judicial separation of property:

Art. 135 - Any of the following shall be considered sufficient

cause for judicial separation of property:

1.) That the spouse of the petitioner has been sentenced to a

penalty which carries with it civil interdiction;

2.) That the spouse of the petitioner has been judicially declared
an absentee;

3.) That loss of parental authority of the spouse of petitioner has

been decreed by the court;

4.) That the spouse of the petitioner has abandoned the latter or
failed to comply with his or her obligations to the family as
provided for in Article 101;

5.) That the spouse granted the power of administration in the

marriage settlement has abused the power; and

6.) That at the time of the petition, the spouses have been
separated in fact for at least one (1) year and reconciliation is
highly improbable.

In the cases provided for in nos. 1, 2, and 3, the presentation of

final judgment against the guilty or absent spouse shall be enough
basis for the grant of the decree of judicial separation of property.
(191a)

NOTES

135
 1. When any of the grounds enumerated in this article exists, the aggrieved party may file a petition in
court asking for the dissolution of their existing property regime (ie. absolute community or conjugal
partnership). There is no need for the conformity of the other party as the petitioner must have to establish
the grounds in court. Once the court grants the petition, the existing property regime that governs them will
be considered dissolved and they will now be governed by the regime of separation of property during their
marriage.

2. There are six grounds for the dissolution of the absolute community or conjugal partnership under
Article 135. Civil Interdiction is an accessory penalty to crimes punishable by more than 12 years
imprisonment. This consists of deprivation of some rights, like the right of parental authority, to manage his
own properties or the conjugal partnership, and the right to enter into contracts. The mere fact that a spouse
is an absentee is not enough to demand for judicial separation of property as the law requires that the
absence of a spouse must be judicially declared. Also, loss of parental authority as decreed by the court is a
ground for dissolution of the conjugal partnership or for judicial separation of property. For these first three
grounds mentioned in Article 135, it is enough for the petitioner to attach the final judgment of the court
declaring a spouse under civil interdiction, being an absentee, or having lost his parental authority. The final
judgment of the court in these first three grounds will be sufficient basis for the court to grant the petition.

3. The other grounds are abandonment and failure of the respondent to comply with his or her
obligation to the family, abuse of the power of administration given to the respondent spouse in the marriage
settlement, and the de facto separation of the spouses for at least one year and the possibility of
reconciliation is highly improbable.

C. Voluntary separation of property:

Art.136 - The spouse may jointly file a verified petition with the
court for the voluntary dissolution of the absolute community or the
conjugal partnership of gains, and for the separation of their common
properties.

All creditors of the absolute community or of the conjugal

partnership of gains, as well as the personal creditors of the spouse,
shall be listed in the petition and notified of the filing thereof. The
court shall take measures to protect the creditors and other persons
with pecuniary interest. (191a)

NOTES

1. Even without any grounds, the husband and wife may dissolve their conjugal partnership or absolute
community by mutual agreement. If the spouses do not want to go on with their existing property regime,
they may jointly file a verified petition in court for its dissolution. Once the court grants the petition, the
parties will then be governed by the regime of separation of property. Thus, the agreement for voluntary
separation of property takes effect from the time of the judicial order decreeing the separation of the
properties and not from the signing of the agreement (Toda, Jr. vs. Court of Appeals, 183 SCRA 713).

136
D. Effects of the decree of separation of property:

Art. 137 - Once the separation of property has been decreed, the
absolute community or the conjugal partnership of gains shall be
liquidated in conformity with this Code.

During the pendency of the proceedings for separation of

property, the absolute community or the conjugal partnership shall pay
for the support of the spouses and their children. (192a)

Art. 138 - After dissolution of the absolute community or of the

conjugal partnership, the provisions on complete separation of
property shall apply. (191a)

Art. 139 - The petition for separation of property and the final
judgment granting the same shall be recorded in the proper local civil
registries and registries of property. (193a)

Art. 140 - The separation of property shall not prejudice the

rights previously acquired by creditors. (194a)

NOTES

1. Once the court decrees the separation of property, whether based on sufficient causes under Article
135 or upon mutual agreement by the spouses under Article 136, there will be dissolution of the absolute
community or the conjugal partnership as the case may be and, consequently, the liquidation of the absolute
community or the conjugal partnership will take place as a matter of course.

2. While the proceeding for separation of property is still ongoing, the support of the spouses and their
common children shall be taken from the absolute community or the conjugal partnership. Once the court
grants the separation of property, there will no longer be any absolute community or conjugal partnership, so,
support of the children shall be taken from the separate or exclusive property of both spouses in proportion to
their income pursuant to Article 146 of the Family Code.

3. The petition for separation of property as well as the final judgment of the court granting it shall be
recorded in the proper local civil registries and the registry of property in order to bind third persons. However,
the separation of property shall not prejudice the rights of creditors acquired previous to the decree.

E. Revival of the former property regime:

Art. 141 - The spouses may, in the same proceedings where

separation of property was decreed, file a motion in court for a decree
reviving the property regime that existed between them before the
separation of property in any of the following instances:
137
 1.) When the civil interdiction terminates;

2.) When the absentee spouse reappears;

3.) When the court, being satisfied that the spouse granted the
power of administration in the marriage settlements will not
again abuse that power, authorizes the resumption of said
administration;

4.) When the spouse who has left the conjugal home without a
decree of legal separation resumes common life with the
other;

5.) When parental authority is judicially restored to the spouse

previously deprived thereof;

6.) When the spouses who have been separated in fact for at
least one year, reconcile and resume common life; or

7.) When after voluntary dissolution of the absolute community

of property or conjugal partnership has been judicially
decreed upon the joint petition of the spouses, they agree to
the revival of the former property regime. No voluntary
separation of property may thereafter be granted.

The revival of the former property regime shall be governed by

Article 67. (195a)

NOTES

1. When the separation of property is based on any of the grounds enumerated in Article 135 and the
said grounds no longer exist, the parties may revive the former property regime that governs them before the
separation of property. To do so, the parties must file a joint motion with the court that issued the judgment
for separation of property praying that a decree for revival of the former property regime be issued.

2. When the separation of property is based upon mutual agreement of the parties, a revival of the
former property regime is allowed. But, once granted, the parties could no longer go back to separation of
property by mutual agreement because voluntary separation of property may be availed of only once.
However, separation of property under Article 135 may be availed of many times for as long as there exists a
ground. The procedures in Article 67, which refers to the revival of the former property regime as a result of
the reconciliation of the spouses in legal separation, shall likewise apply here (Please see: discussion in Article
67).

F. Administration of exclusive properties:

138
 Art. 142 - The administration of all classes of exclusive property
of either spouse may be transferred by the court to the other spouse:

1.) When one spouse becomes the guardian of the other;

2.) When one spouse is judicially declared an absentee;

3.) When one spouse is sentenced to a penalty which carries

with it civil interdiction; or

4.) When one spouse becomes a fugitive from justice or is hiding

as an accused in a criminal case.

If the other spouse is not qualified by reason of incompetence,

conflict of interest, or any other just cause, the court shall appoint a
suitable person to be the administrator. (n)

NOTES

1. The administration of the exclusive property shall belong to the owner-spouse. However, the court
may transfer the administration of these properties if any of the grounds mentioned in Article 142 is present.
Thus, if a spouse is placed under the guardianship of the other spouse, is judicially declared an absentee, has
been sentenced to a penalty which carries with it civil interdiction, or when said spouse becomes a fugitive
from justice or is hiding as an accused in a criminal case, the other spouse may be appointed by the court as
the administrator of the exclusive property of the said spouse. In the event the other spouse is not qualified
to assume administration by reason of incompetence, conflict of interest, or any other cause, the court shall
appoint a suitable person to be the administrator.

Chapter 6

REGIME OF SEPARATION OF PROPERTY

Art. 143 - Should the future spouses agree in the marriage

settlements that their property relations during marriage shall be
governed by the regime of separation of property, the provisions of this
Chapter shall be suppletory. (212a)

Art. 144 - Separation of property may refer to present or future

property or both. It may be total or partial. In the latter case, the
property not agreed upon as separate shall pertain to the absolute
community. (213a)

139
 Art. 145 - Each spouse shall own, dispose of, possess, administer
and enjoy his or her own separate estate, without need of the consent
of the other. To each spouse shall belong all earnings from his or her
profession, business or industry and all fruits, natural, industrial or
civil, due or received during the marriage from his or her separate
property. (214a)

Art. 146 - Both spouses shall bear the family expenses in

proportion to their income, or, in case of insufficiency or default
thereof, to the current market value of their separate properties.

The liability of the spouses to creditors for family expenses shall

however, be solidary. (215a)

NOTES

1. Under the Family Code, the only instance that the regime of separation of property can govern the
property relation of the husband and wife at the time of the celebration of the marriage is when there is a
marriage settlement and it is the regime agreed upon by the parties. In which case, the provisions of this
chapter shall apply suppletorily as the property relation of the parties shall be primarily governed by what they
have stipulated in the marriage settlement.

2. All properties, whether present or future or both, can be the subject of the separation of properties.
The separation can also be total or partial. In case of partial separation, the property not agreed upon as
separate shall be governed by the absolute community of property regime.

3. Each spouse shall own, administer, use, and enjoy his or her exclusive property to the exclusion of
the other. He can do whatever he wants to do with his property. He can sell, dispose, or encumber his
exclusive property without the consent of the other spouse. All income or earnings derived from his profession
or business shall belong to him alone. Likewise, all the fruits, natural, industrial, or civil, received or earned
during the marriage from the exclusive property of a spouse shall belong to the spouse concerned.

4. Considering that in the regime of separation of property there is no common property from which
the expenses for the support of the family shall be taken, the separate property of both spouses shall be
answerable for it. Thus, both spouses shall bear the family expenses in proportion to their income. In case
of insufficiency or default thereof, the current market value of the exclusive property of each spouse shall be
the basis of the proportionate contribution. However, the liability of the spouse for the creditors of the family
shall be solidary. This means that the creditors can demand payment of the entire obligation from the
husband alone or from the wife alone. The spouse who paid the whole obligation may later on demand
reimbursement from the other spouse.

Chapter 7

PROPERTY REGIME OF UNION WITHOUT MARRIAGE

140
 Art. 147 -When a man or woman who are capacitated to marry
each other, live exclusively with each other as husband and wife
without the benefit of marriage or under a void marriage, their wages
and salaries shall be owned by them in equal shares and the property
acquired by both of them through their work or industry shall be
governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired

while they lived together shall be presumed to have been obtained by
their joint efforts, work or industry, and shall be owned by them in
equal shares. For purposes of this Article, a party who did not
participate in the acquisition by the other party of any property shall be
deemed to have contributed jointly in the acquisition thereof if the
former’s efforts consisted in the care and maintenance of the family
and of the household.

Neither party can encumber or dispose by acts inter vivos of his

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

When only one of the parties to a void marriage is in good faith,

the share of the party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In case of default or of
waiver by any or all of the common children or their descendants, each
vacant share shall belong to the respective surviving descendants. In
the absence of descendants, such share shall belong to the innocent
party. In all cases, the forfeiture shall take place upon termination of
the cohabitation. (144a)

Art. 148 - In cases of cohabitation not falling under the

preceding Article, only the properties acquired by both of the parties
through their actual joint contribution of money, property or industry
shall be owned by them in common in proportion to their respective
contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be equal. The
same rule and presumption shall apply to joint deposits of money and
evidences of credit.

If one of the parties is validly married to another, his or her

share in the co-ownership shall accrue to the absolute community or
conjugal partnership existing in such valid marriage. If the party who
acted in bad faith is not validly married to another, his or her share

141
 shall be forfeited in the manner provided in the last paragraph of the
preceding Article.

The foregoing rules on forfeiture shall likewise apply even if

both parties are in bad faith. (144a)

NOTES

1. When a man and a woman lived together as husband and wife without the benefit of marriage or
under a void marriage, the property regimes discussed in chapters 3, 4, and 5 hereof will not apply. Instead,
their property relation will be governed by co-ownership. The property regime of absolute community,
conjugal partnership, and separation of property will only apply to a valid marriage. Thus, if there is no
marriage or even if there is marriage but it is void, the rule on co-ownership will apply. There are two kinds of
co-ownership here. The co-ownership in Article 147 refers to full co-ownership for everything acquired by
either party onerously during their cohabitation while the co-ownership under Article 148 applies only to those
that were acquired by both parties through their actual joint contribution of money, property or industry and
the co-ownership is based only on their actual contribution.

2. Under Article 147, the man and woman who are living together without marriage must have no legal
impediment to marry each other. If they have legal impediment then Article 148 will apply to them and not
Article 147. If the marriage between the parties is void but the invalidity of their marriage is not due to the
absence of legal capacity to marry, Article 147 will likewise apply. Thus, if the husband and wife are
capacitated to marry each other, but their marriage is void because of other defects not due to absence of
legal capacity, they will still be governed by co-ownership in Article 147. The void marriages being referred to
in Article 147 are those under Article 36, 44, 53, and void marriages because of absence of consent, authority
of the solemnizing officer, absence of a valid marriage license or marriage ceremony as provided in Article 4 of
the Family Code.

3. The co-ownership that governs the property relation of a man and woman who are into a live-in
relationship, although they are capacitated to marry each other, is one of full co-ownership. The same rule
applies to those who are married but their marriage is void but the nullity of the marriage does not refer to
absence of legal capacity to marry. This means that all their wages and salaries acquired during their
cohabitation shall be owned by them in equal shares. Also, all properties acquired by them through their work
or industry during the time that they live together shall be governed by co-ownership. In the absence of proof
to the contrary, properties acquired during their cohabitation shall be presumed to have been obtained by
their joint efforts, work or industry, and shall be owned by them in equal shares.

4. A party who did not contribute money in the acquisition by the other party of any property shall be
deemed to have contributed jointly in the acquisition thereof if the former’s effort consisted in the care and
maintenance of the family and of the household. Thus, a live-in partner or a wife in a void marriage under
Article 147 is entitled to one half of the properties acquired by the other party onerously during the
cohabitation even if she did not contribute a single centavo in the acquisition of these properties for as long as
she played the role of a housewife taking care of the welfare of their children or managing the household.

5. Under Article 147 consent of both parties is required in the disposition of any of the common
properties. Neither party can encumber or dispose of by act inter vivos his/her share in the co-ownership
without the consent of the other, until after the termination of their cohabitation.
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 6. When one of the parties to the void marriage or cohabitation is in bad faith, his or her share in the
co-ownership will be forfeited in favor of their common children. In case of default of common children,
his/her share will go to his surviving descendant, and in the absence thereof, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place only upon termination of the cohabitation. Under
Article 148, if the guilty party is validly married to another, his or her forfeited share in the co-ownership shall
accrue to the absolute community or conjugal partnership existing in such marriage. However, if the guilty
party is not validly married to another, his or her share shall be forfeited in accordance with the provision of
the last paragraph of Article 147.

7. The provision of Article 43, paragraphs (2), (3), (4) and (5) applies only, by explicit terms of Article
50, to voidable marriages under Article 45 and, exceptionally, to void marriages under Article 40 of the Family
Code. A spouse who contracted a subsequent marriage without having his previous marriage judicially
declared void is guilty not only of bigamy but also of violating Article 40, thus, his subsequent marriage is null
and void. The spouse in bad faith in a void marriage under Article 40 shall forfeit only his or her share of the
net profits of the community property or conjugal partnership 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.
This is because of the explicit provision of Article 43 (2) in relation to Article 50 of the Family Code. However,
if the marriage is void not because of Article 40, the forfeiture of share shall be in accordance with Articles 147
or 148, which provide that the guilty party shall forfeit not only his or her share in the net profits but all his or
her shares in the co-ownership in favor of their common children (Valdes vs. RTC, 260 SCRA 221).

8. The void marriage under Article 36 of the Family Code (psychological incapacity) is one of the void
marriages referred to in Article 147 where co-ownership governs. It is an error for the trial court to order that
a decree of absolute nullity of marriage shall be issued only after liquidation, partition and distribution of the
parties’ properties. The ruling has no basis because Section 19(1) of the Rule does not apply to cases
governed under Articles 147 and 148 of the Family Code. It is clear from Article 50 of the Family Code that
Section 19(1) of the Rule applies only to marriages declared void ab initio or annulled by final judgment under
Articles 40 and 45 of the Family Code. In short, Article 50 of the Family Code does not apply to marriages
which are declared void ab initio under Article 36 of the Family Code, which should be declared void without
waiting for the liquidation of the properties of the parties (Alain M. Diño vs. Ma. Caridad L. Diño, G.R. No.
178044, January 19, 2011).

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 TITLE V

THE FAMILY

Chapter 1

The Family as an Institution

Art. 149 - The family, being the foundation of the nation, is a

basic social institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no custom,
practice or agreement destructive of the family shall be recognized or
given effect. (216a, 218a)

Art. 150 - Family relations include those:

(1) Between husband and wife;

(2) Between parents and children;

(3) Among brothers and sisters, whether of the full or half-

blood. (217a)

Art. 151 - No suit between members of the same family shall

prosper unless it should appear from the verified complaint or petition
that earnest efforts toward a compromise have been made, but that
the same have failed. If it is shown that no such efforts were in fact
made, the same case must be dismissed.

This rules shall not apply to cases which may not be the subject of
compromise under the Civil Code. (222a)

NOTES

1. This chapter lays down the policy of the state as regards the family. The family is considered as the
foundation of the nation and a basic social institution which public policy cherishes and protect. 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 (Section 12, Article II). Consequently, family relations are governed by law
and no custom, practice or agreement destructive of the family shall be recognized or given effect. Thus, an
agreement between the husband and wife that they voluntarily dissolve their marriage, live separately from
each other, and that they are free to look for another partner without fear of prosecution is null and void for
being contrary to law and public policy.

2. The term “family relation” refers only to the relationship enumerated in Article 150 of the Family
Code. It was held that the enumeration of the family relation in the said article should be construed strictly.
Thus, any person not included in the enumeration cannot be considered as within the term “family relation”.
So, Article 151 which provides that “ No suit between members of the same family shall prosper unless there

144
is an allegation in the complaint that the plaintiff exerted earnest effort towards a compromise before the
action was filed, applies only when the parties to the action are members of the same family.

3. In order to preserve the unity of the family, the law requires that if a person files a case against a
member of his own family, he must first exert earnest effort to settle the matter amicably; otherwise, the suit
is dismissable. In fact, the Rules of Court has made it a ground for a motion to dismiss under Rule 16, Section
1 (j). The reason for the inclusion of this rule in the Civil Code (Art. 222), and now the Family Code (Art. 151),
is aptly described by the Code Commission in the following words, to wit: “ It is difficult to imagine a sadder
and more tragic spectacle than a litigation between members of the family. It is necessary that every effort
should be made toward a compromise before a litigation is allowed to breed hate and passion in the family. It
is known that a lawsuit between close relatives generates deeper bitterness than strangers.”

3. In the case of Gayon vs. Gayon, 36 SCRA 104, the Supreme Court ruled that a suit filed by the
plaintiff against his sister-in-law and nephews and nieces is not a suit between members of the same family.
Thus, the requirement of alleging in the complaint that the plaintiff exerted earnest effort to settle the matter
amicably is no longer required. Moreover, if the suit involves a third person who is not a member of the same
family, the requirement of “earnest effort to settle amicably” is not anymore needed. Thus, a suit filed by a
woman against her sister and the latter’s husband does not require earnest effort to compromise because the
husband is not a member of the same family (Hontiveros vs. RTC, G.R. No. 125465, June 29, 1999). The duty
to engage in earnest efforts to compromise before the action is filed is not required even if it is a suit between
members of the same family if a stranger is impleaded as party to the case because the interest of such
stranger may differ from the interest of the members of the same family (Magbaleta vs. Gonong, 76 SCRA
511).

4. The allegation in the complaint that the matter was first referred to the barangay for conciliation is
considered substantial compliance with the requirement of an allegation of prior recourse to compromise.
Thus, even if there was no allegation of earnest effort to compromise in a case against a brother and sister-in-
law, the case may still prosper, especially so that the sister-in-law is not an immediate member of the family.
Even on the assumption that the suit did not include the sister-in-law but since there was recourse to the
barangay where conciliation proceedings were conducted, the case cannot still be dismissed (Martinez et al.
vs. Martinez, G.R. No. 162084, June 28, 2005).

4. The rule on earnest effort to compromise will not apply if the case is not compromisable, such as
annulment of marriage, legal separation, future support, future legitime and jurisdiction of the court. Also, the
said rule is not applicable to special proceedings like habeas corpus, custody of children and settlement of
estate.

5. The term “suit” between members of the same family refers to a case that is adversarial or
controversial in nature. It is applicable only to ordinary civil action because it is clear from the term “suit” that
it refers to an action by one person against another in a court of justice in which the plaintiff pursues the
remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or
in equity. The law, however, does not encompass a petition for the settlement of estate because such case is
not controversial or adversarial in character. It is merely intended to determine the heirs, their shares in the
estate and to ensure that the estate is properly administered to prevent its dissipation (Pilar Vda. De Manalo
vs. Court of Appeals, G.R. No. 129242, January 16, 2001).

Chapter 2
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 The Family Home

Art. 152 - The family home, constituted jointly by the husband

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

Art. 153 - The family home is deemed constituted on a house and

lot from the time it is occupied as a family residence. From the time of
its constitution and so long as any of its beneficiaries actually resides
therein, the family home continues to be such and is exempt from
execution, forced sale or attachment except as hereinafter provided
and to the extent of the value allowed by law. (223a)

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

(1) The husband and wife, or an unmarried person who is the

head of a family; and

(2) Their parents, ascendants, descendants, brothers and sisters,

whether the relationship be legitimate or illegitimate, who are living in
the family home and who depend upon the head of the family for legal
support. (226a)

NOTES

1. The Family Home refers to the house and lot where the family resides. It is constituted by the
husband and wife or by an unmarried head of the family. Unlike in the Civil Code where there is a need for a
family home to be constituted either judicially or extra-judicially, the family home under the Family Code is
deemed constituted the moment the family resides therein. It is necessary that both the house and the land
where it stands are owned by the husband and/or wife or by the unmarried head of the family ( Juanita
Trinidad vs. Danilo Pangilinan, G.R. No. 185920, July 20, 2910). Thus, if the land where the dwelling house is
standing is merely leased by the husband and wife, it cannot qualify as a family home. Moreover, the house
where the family resides must be primarily devoted to residential and not commercial purpose; otherwise, it
will not also be considered as a family home.

2. Those houses and lots that were built before the effectivity of the Family Code (August 3, 1988), but
were not constituted either judicially or extra-judicially under the provisions of the Civil Code, are still
considered as family home under Article 162 of the Family Code. However, these houses are considered as
family homes only upon the effectivity of the Family Code and not at the time they were built (Modequillo vs.
Breva, G.R. No. 86355, May 31, 1990, 185 SCRA 766).

3. The family home shall remain to be such from the time of its constitution and so long as any of its
beneficiaries actually resides therein. The beneficiaries of a family home are mentioned in Article 154 and they
can be categorized into primary and secondary beneficiaries. The primary beneficiaries are the persons who
constituted the family home and they are the husband and wife, or the unmarried head of the family. The

146
secondary beneficiaries are the parents, ascendants, descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of
the family for legal support.

4. The family home is the place where the owner and his/her family reside. Residing in the family home
is a real right. The occupancy must be actual and not merely constructive. Thus, if the owners of the house
and lot are already residing in the United States and the one living therein are only the overseer, maid,
houseboy or driver, it cannot be considered as a family home. Hence, it is not exempt from execution, forced
sale and attachment (Manacop vs. Court of Appeals, G.R. No. 97898, August 11, 1997, 277 SCRA 57).

Art. 155 - The family home shall be exempt from execution,

forced sale or attachment except:

(1) For non payment of taxes;

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

home;

(3) For debts secured by mortgages on the premises before or

after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders,

materialmen and others who have rendered service or furnished
material for the construction of the building. (243a)

NOTES

1. The benefit derived from being a family home is that it is exempt from execution, forced sale or
attachment. However, there are obligations incurred by its owners where the exemption will not apply. These
obligations are enumerated in Article 155 of the Family Code. Non-payment of taxes, debts incurred prior to
the constitution of the family home, debts secured by a mortgage on the premises, and debts due to laborers,
mechanics, architects etc. incurred in the construction of the family home are the obligations where the
exemption cannot be invoked.

2. In the case of Modequillo vs. Breva, the Supreme Court ruled that an obligation incurred prior to
August 3, 1988 does not exempt from execution the house of the creditor that was built before the said date
because said house became a family home only upon the effectivity of the family code. Since the debt was
incurred prior to its constitution as a family home, then, said house is not exempt from levy on execution.

3. The right of exemption is a “personal privilege” granted to a debtor and should be claimed and
proven by him before the public auction. Failure of the debtor to prove that the house and lot was their family
home bars him from invoking the exemption ( Versola vs. Court of Appeals, G.R. No. 164740, July 31, 2006).

4. However, when the debtor invoked the exemptions timely but the trial court disregarded his
contention that the house and lot that was levied on execution by the Sheriff is his family home, the execution
is null and void. It is a serious error on the part of the trial court to proceed with the execution without
resolving or taking into account petitioner’s allegations which are material and relevant in the resolution of the

147
motion for issuance of a writ of execution. The court should have made an earnest determination of the truth
to petitioner’s claim that the house and lot in which he and his children resided was their duly constituted
family home. If it finds the house and lot to be indeed a family home, the court should determine (a.) whether
petitioner’s obligation falls under either of the exceptions under Article 155 of the Family Code; ( b.) whether
the obligation sued upon was contracted or incurred prior to, or after, the effectivity of the Family Code; (c.)
whether petitioner’s spouse is still alive, as well as if there are other beneficiaries of the family home; (d.)
whether the petitioner has more than one residence for the purpose of determining which of them, if any, is
his family home; and (e.) where is its actual location and value, for the purpose of applying the provisions of
Articles 157 and 160 of the Family Code (Albino Josef vs. Otelio Santos, G.R. No. 165060, November 27,
2008).

Art. 156 - The family home must be part of the properties of the
absolute community or the conjugal partnership, or of the exclusive
properties of either spouse with the latter's consent. It may also be
constituted by an unmarried head of a family on his or her own
property.

Nevertheless, property that is the subject of a conditional sale

on installments where ownership is reserved by the vendor only to
guarantee payment of the purchase price may be constituted as a
family home. (227a, 228a)

Art. 157 - The actual value of the family home shall not exceed,
at the time of its constitution, the amount of three hundred thousand
pesos in urban areas, and two hundred thousand pesos in rural areas,
or such amounts as may hereafter be fixed by law.

In any event, if the value of the currency changes after the adoption of
this Code, the value most favorable for the constitution of a family
home shall be the basis of evaluation.

For purposes of this Article, urban areas are deemed to include

chartered cities and municipalities whose annual income at least
equals that legally required for chartered cities. All others are deemed
to be rural areas. (231a)

NOTES

1. The family home must stand on the land owned by the person or persons who constituted it. If the
said property was bought by installment and subject to a conditional sale where ownership is reserved by the
vendor to guarantee payment of the balance of the purchase price, it is still considered as a family home.

2. The law fixes a ceiling in the value of the family home for it to be exempted from execution, forced
sale and attachment. If the family home is located in urban areas , its value should not exceed Three Hundred
Thousand Pesos (P300,000.00) at the time of its constitution. If it is located in rural areas, its value should not
exceed Two Hundred Thousand Pesos (P200,000.00). The value is determined at the time of its constitution

148
and not at the time it is levied on execution. When the creditor believes that the family home is actually worth
more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment
for an order directing the sale of the property under execution. After the execution sale, the amount of
P300,000 or P200,000 as the case may be, must be given first to the judgment debtor who constituted the
family home. The excess thereof will be applied to pay off the obligations and if ever there is a balance it shall
be delivered to the debtor (Article 160 F.C.).

Art. 158 - The family home may be sold, alienated, donated,

assigned or encumbered by the owner or owners thereof with the
written consent of the person constituting the same, the latter's
spouse, and a majority of the beneficiaries of legal age. In case of
conflict, the court shall decide. (235a)

Art. 159 - The family home shall continue despite the death of
one or both spouses or of the unmarried head of the family for a period
of ten years or for as long as there is a minor beneficiary, and the heirs
cannot partition the same unless the court finds compelling reasons
therefor. This rule shall apply regardless of whoever owns the property
or constituted the family home. (238a)

Art. 160 - When a creditor whose claim is not among those

mentioned in Article 155 obtains a judgment in his favor, and he has
reasonable grounds to believe that the family home is actually worth
more than the maximum amount fixed in Article 157, he may apply to
the court which rendered the judgment for an order directing the sale
of the property under execution. The court shall so order if it finds that
the actual value of the family home exceeds the maximum amount
allowed by law as of the time of its constitution. If the increased actual
value exceeds the maximum allowed in Article 157 and results from
subsequent voluntary improvements introduced by the person or
persons constituting the family home, by the owner or owners of the
property, or by any of the beneficiaries, the same rule and procedure
shall apply.

At the execution sale, no bid below the value allowed for a

family home shall be considered. The proceeds shall be applied first to
the amount mentioned in Article 157, and then to the liabilities under
the judgment and the costs. The excess, if any, shall be delivered to the
judgment debtor. (247a, 248a)

NOTES

1. A family home cannot be sold, alienated, donated, assigned or encumbered by the owners thereof
without the written consent of the person constituting it, the latter’s spouse, and a majority of the
beneficiaries of legal age. Thus, the parents cannot sell or encumber the family home without the written

149
consent of the majority of their children and other relatives who are already of legal age and living in said
family home. In case of disagreement, the court shall decide.

2. The family home shall continue despite the death of the person who constituted it. It shall remain as
a family home for a period of ten years from the death of its owner or for as long as there is still a minor
beneficiary living therein. The heirs cannot partition the same unless the court finds compelling reasons
therefore. In the case of Arriola vs. Arriola, the Supreme Court said that the purpose of Article 159 is to avert
the disintegration of the family unit following the death of its head. To this end, it preserves the family home
as the physical symbol of family love, security and unity by imposing the following restrictions on its partition;
first, that the heirs cannot extra-judicially partition it for a period of ten years from the death of one or both
spouses or of the unmarried head of the family, or for a longer period, if there is still a minor beneficiary
residing therein; and second, that the heirs cannot judicially partition it during the aforesaid periods unless the
court finds compelling reasons therefore (Arriola vs. Arriola, G.R.No. 177703, January 28, 2008).

3. Grandchildren who are living with their parents and grandmother at the latter’s house are not
considered beneficiaries of the family home owned by the grandmother. Thus, upon the death of the
grandmother, the family home may be partitioned by her children and legal heirs. Although the minor
grandchildren are still living in the said house, they cannot prevent the partition as they are not considered
beneficiaries of the family home of their grandmother as they are not dependent for support from the latter.
The children are being supported by their parents, one of whom happens to be a child of their grandmother
(Patricio vs. Dario III, G.R. No. 170829, Nov. 20, 2006).

Art. 161 - For purposes of availing of the benefits of a family

home as provided for in this Chapter, a person may constitute, or be
the beneficiary of, only one family home. (n)

Art. 162 - The provisions in this Chapter shall also govern

existing family residences insofar as said provisions are applicable. (n)

NOTES

1. A person can only have one family home or be a beneficiary of only one family home. If a person
has plenty of houses in different places, only one of that can be considered as his family home, and that is the
one where he habitually resides.

2. Those houses that were built before the effectivity of the Family Code on August 3, 1988 are
automatically considered as family homes upon the effectivity of the Family Code ( Please see: Modequillo vs.
Breva).

TITLE V

PATERNITY AND FILIATION

Chapter 1

Legitimate Children
150
 Art. 163 - The filiation of children may be by nature or by
adoption. Natural filiation may be legitimate or illegitimate. (n)

Art. 164 - Children conceived or born during the marriage of the

parents are legitimate.

Children conceived as a result of artificial insemination of the wife with

the sperm of the husband or that of a donor or both are likewise
legitimate children of the husband and his wife, provided, that both of
them authorized or ratified such insemination in a written instrument
executed and signed by them before the birth of the child. The
instrument shall be recorded in the civil registry together with the birth
certificate of the child. (55a, 258a)

Art. 165 - Children conceived and born outside a valid marriage

are illegitimate, unless otherwise provided in this Code. (n)

NOTES

1. Paternity and filiation refer to the relationship or tie which exists between parents and their children.
Paternity refers to the status of the father in relation to his child, while maternity refers to the status of the
mother in relation to her child. Filiation, on the other hand, refers to the status of a child in relation to his
parents. The filiation of children may either be by nature or by adoption. Natural filiation means that the
relationship of the child to his parents is by blood while filiation by adoption is artificial in nature as the
relationship is only created by law. In the New Family Code, there are only two classes of children, and they
are the legitimate and the illegitimate children. Under the Civil Code, there used to be five kinds of illegitimate
children, and they are as follows: natural children, natural children by legal fiction, acknowledged or
recognized natural children, and illegitimate children other than natural such as spurious children and
adulterous children. These different types of illegitimate children have now been abolished by the Family Code
as all illegitimate children are now treated equally.

2. Legitimate children are those children born during lawful marriage while illegitimate children are
those born out of wedlock or inside a void marriage. However, there are void marriages where the children
born out of said marriages are considered legitimate. These are the void marriages under Article 36
(psychological incapacity) and the void marriages under Article 54 in relation to Articles 52 and 53 of the
Family Code. Thus, not all void marriages result to illegitimate children.

3. A child born of artificial insemination is considered legitimate under the Family Code, provided the
following conditions are present, to wit: (a.) both spouses have authorized in writing the performance of
artificial insemination on the wife; (b.) if the husband had no knowledge of the artificial insemination, he
ratified it upon knowledge; (c.) The instrument containing the agreement of the parties must be executed
before the birth of the child and shall be recorded in the civil registry together with the birth certificate of the
child. The sperm used in artificial insemination may be that of the husband or a donor provided in the latter
case the husband has knowledge and consented to it. If the written authorization or ratification of the husband

151
was obtained through fraud, mistake, violence, intimidation or undue influence, the husband may impugn the
legitimacy of the child on these grounds.

4. A wife who undergoes artificial insemination using the semen of another man without the knowledge
and consent of her husband cannot be held liable of adultery because the crime of adultery is defined in Article
333 of the Revised Penal Code as committed by any married woman who shall have sexual intercourse with a
man not her husband. Considering that artificial insemination does not involve sexual intercourse which is one
of the essential elements in the crime of adultery, then there is no crime committed. Although it is said that
the gist of the crime of adultery is the danger of introducing a spurious child into the family, it must be noted
that criminal statutes are to be strictly construed under the rule in statutory construction, thus, no one should
be brought within their terms who is not clearly within them nor should any act be pronounced criminal when
it is not made so (U.S. vs. Abad Santos, 36 Phil. 243).

5. If the fertilized ovum of the wife using the semen of the husband was injected into another woman
hired by them as surrogate mother, the child born out of such procedure called in-vetro fertilization, shall be
considered as the child of the husband and wife and not of the surrogate mother.

Art. 166 - Legitimacy of a child may be impugned only on the

following grounds:

(1) That it was physically impossible for the husband to have

sexual intercourse with his wife within the first 120 days of the 300
days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual

intercourse with his wife;

(b) the fact that the husband and wife were living
separately in such a way that sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely

prevented sexual intercourse;

(2) That it is proved that for biological or other scientific

reasons, the child could not have been that of the husband, except in
the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial

insemination, the written authorization or ratification of either parent
was obtained through mistake, fraud, violence, intimidation, or undue
influence. (255a)

Art. 167 - The child shall be considered legitimate although the

mother may have declared against its legitimacy or may have been
sentenced as an adulteress. (256a)

NOTES

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 1. When the marriage is valid, only the husband and, in proper cases provided in Article 171, his heirs
can impugn the legitimacy of a child on the grounds enumerated in Article 166. On the other hand, the wife
who delivers the child cannot make the child illegitimate by declaring that the child is not that of her husband.
Thus, even if the wife openly declares to the whole world that the child she delivered is not of her husband
but of another man, the child will still be considered legitimate child of the husband and wife. This is true even
if the wife is convicted of adultery as said conviction should never affect the legitimate status of the child born
or conceived inside a valid marriage.

2. A condition sine qua non to the application of Articles 166 and 167 is that the child must have been
delivered by the wife who is the child’s natural mother. It will not apply to a situation where the alleged
mother did not, in fact, deliver the child herself, or, that the child did not really come from her own womb.
Thus, if a child claims for a share in the estate of a deceased husband as his legitimate child with his wife, the
latter can deny that the child claimant is not their child as he did not come from her womb. The wife can
validly declare that the child-claimant is not in any way related to her as her child, as the latter did not come
from her womb. In one case, the Supreme Court said, “who better than Sy Kao herself would know if Chua
Keng Giap was really her son? More than anyone else, it was Sy Kao herself who could say – as indeed she
has said many times – that Chua Keng Giap was not begotten of her womb” (Chua Keng Giap vs. IAC, 158
SCRA 18).

3. The ground to impugn the legitimacy of the child under Article 166 par. 1 is anchored on the great
impossibility of the husband to be the father of the child delivered by his wife. A child born during lawful
wedlock is always presumed by law as a legitimate child of the husband and wife. This presumption becomes
conclusive in the absence of proof that there was physical impossibility of access between the spouses in the
first 120 days of the 300 days which immediately preceded the birth of the child. The presumption is based on
the assumption that there is sexual union between the husband and wife, particularly during the period of
conception. In order to overthrow the presumption, it must be shown beyond reasonable doubt that it was
physically impossible for the husband to have sexual intercourse with his wife during the period of conception
of the child. If there is a probability that the husband could have fathered the child, the doubt should be
resolved in favor of the legitimacy of the child. Thus, in a case where the husband was suffering from advance
stage of tuberculosis at the time of the conception of the child, and in fact he died thereof right after the birth
of said child, the court ruled that the child is still a legitimate one as the possibility of sexual intercourse
between the husband and wife during the period of conception is not far and remote. In fact, medical science
tells us that a person suffering from advance stage of tuberculosis is even more sexually aggressive ( Andal vs.
Macaraig, 89 Phil. 165).

4. Paternity can be impugned if, for biological and scientific reasons, the offspring could not have been
that of the husband. For example, a white couple can never produce a black child not unless either of them
has a black ancestry. Also, if the husband is sterile then the child delivered by his wife could not have been his
child. However, for sterility to constitute proof of non-paternity on the ground of biological or scientific
reasons, the husband must be shown to be completely sterile at the time when the child was conceived. The
fact that the husband had undergone vasectomy is not enough proof to rebut the presumption of legitimacy
of the child sired by his wife because it is still possible, despite the vasectomy, that the sperm can rechannel
itself and effect a fertilization. Blood grouping test is also an effective test of determining non-paternity. It is
not however an accurate gauge to determine paternity. The latest and most effective method of determining
filiation is the DNA test, which is the abbreviation of deoxyribonucleic acid.

153
 5. In the case of Tijing vs. Court of Appeals decided in 2001, the Supreme Court opened for the first
time the possibility of admitting DNA as evidence of parentage. In subsequent cases, the Court applied DNA
test to determine the guilt of the accused in a rape case. Significantly, the Court upheld the constitutionality of
compulsory DNA testing and the admissibility of the result thereof as evidence. Compelling the alleged father
of a child to submit himself to DNA testing does not violate his constitutional right against self incrimination as
the right applies only to testimonial compulsion. If, in a criminal case, an accused whose very life is at stake
can be compelled to submit to DNA testing, we see no reason why, in this civil case, petitioner herein who
does not face such dire consequences cannot be ordered to do the same. For too long, illegitimate children
have been marginalized by fathers who chose to deny their existence. The growing sophistication of DNA
testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We
have long believed the merits of DNA testing and have repeatedly expressed as much in the past. This case
comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of
evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a
valid means of determining paternity (Arnel Agustin vs. Court of Appeals., G.R. No. 162571, June 15, 2005).

6. The process for DNA paternity testing had an accuracy rate of 99.9999% in establishing paternity. In
assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the
following data: how the samples were collected, how they were handled, the possibility of contamination of
the samples, the procedures followed in analyzing the samples, whether the proper standards and procedures
were followed in conducting the tests, and the qualifications of the analyst who conducted the tests (Rosendo
Herrera vs. Alba, G.R. No. 148220, June 15, 2005).

7. With the advancement in the field of genetics, and the availability of new technology, it can now be
determined with reasonable certainty whether a man is the biological father of a child, through DNA. If the
alleged father of the child denies filiation, the court may order DNA testing even if the said father has already
died. The death of the alleged biological father does not ipso facto negate the application of DNA
(Deoxyribonucleic Acid) testing for as long as there exist appropriate biological samples of his DNA ( Estate of
Ong vs. Diaz, G.R. No. 171713, Dec. 17, 2007, 540 SCRA 480).

8. If the consent of the husband to the performance of artificial insemination was obtained through
mistake, fraud, violence, intimidation, or undue influence, the latter may impugn the legitimacy of the child
within the period provided by law.

9. The status and filiation of a child can never be compromised. The law and only the law determines
who are the legitimate or illegitimate children for one’s legitimacy or illegitimacy cannot ever be compromised.
Thus, in a case filed by a child to recover a share in the estate of his alleged father, the administrator of the
estate of the deceased cannot enter into compromise agreement recognizing the said child as an illegitimate
child of the deceased (Jose Rivero vs. Court of Appeals, G.R. No. 141273, May 17, 2005).

10. A compromise agreement signed by the illegitimate child and her alleged father to settle the case
for recognition filed by the former against the latter in the RTC of Cebu City, Branch 9 whereby the child
agreed to receive from her alleged father the sum of Two Million Pesos (P2,000,000.00) in consideration for
the child’s declaration that there is no blood relation between her and the respondent is NULL and VOID as it
is against the law and public policy. Article 2035 of the Civil Code prohibits compromise on the civil status of
persons, validity of marriage, legal separation, future support, jurisdiction of courts, future legitime, etc. Thus,
when the child refiled the same case in another court, RTC of Cebu City, Branch 24, the said compromise
agreement cannot serve as a res judicata to bar the filing of the said case. The dismissal of the case by RTC
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Cebu, Branch 24 on the ground of res judicata is not correct. RTC Branch 9 had no authority to approve and
give effect to a Compromise Agreement that was contrary to law and public policy, even if said contract was
executed and submitted for approval by both parties. No court can allow itself to be used as a tool to
circumvent the explicit prohibition under Article 2035 of the Civil Code (Joanie Surposa Uy vs. Jose Ngo Chua,
G.R. No. 183965, September 18, 2009).

11. In another case, the Supreme Court ruled that the marriage of a woman to a man during the
existence of her marriage to her first husband is null and void for being bigamous. The child born out of said
union can never be considered as illegitimate child but a legitimate child of the woman and her first husband.
Thus, when Ma. Theresa married Gerardo Concepcion resulting to the birth of the child named Jose Gerardo,
but their marriage was later on declared null and void for being bigamous as Ma. Theresa was found to be
lawfully married to a certain Mario Gopiao, and such marriage was not yet legally dissolved, the Court ruled
that the child Jose Gerardo is a legitimate child of Ma.Theresa and Mario, not an illegitimate child of
Ma.Theresa and Gerardo. Since the child was born during the marriage of Ma. Theresa and Mario, the child is
their legitimate child. Even if the birth certificate of the child states that his father is Gerardo Concepcion, the
same cannot prevail as against the provision of law. Gerardo, being not the father of the child under the law,
has no demandable visitorial right over the latter (Gerardo Concepcion vs. Court of Appeals, G.R. No. 123450,
August 31, 2005).

Art. 168 - If the marriage is terminated and the mother

contracted another marriage within three hundred days after such
termination of the former marriage, these rules shall govern in the
absence of proof to the contrary:

(1.) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to have been
conceived during the former marriage, provided it be born within three
hundred days after the termination of the former marriage;

(2.) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have been
conceived during such marriage, even though it be born within the
three hundred days after the termination of the former marriage.
(259a)

Art. 169 - The legitimacy or illegitimacy of a child born after

three hundred days following the termination of the marriage shall be
proved by whoever alleges such legitimacy or illegitimacy. (261a)

NOTES

1. The reason why the wife is prohibited by law to contract a second marriage within three hundred
(300) days after the termination of her marriage, as in the case of death of her husband, is to avoid doubtful
paternity and filiation. Access between spouses is presumed during the marriage and this presumption holds
even immediately before the termination of their marriage. Thus, it is possible that the husband may have
sexual contact with his wife the day before the termination of their marriage. Considering that the law fixes
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the period of 300 days as the longest gestation period for a child inside the womb of his mother, the law
prohibits the wife to remarry to prevent a confusion as to the paternity of the child that she may deliver within
the said period.

2. Should the wife decide to remarry and deliver a child within the prohibited 300 day period , the said
child is presumed to be the child of the first husband if he is born within 180 of the second marriage;
otherwise, the child is already considered as that of the second husband. If the child is born after 300 days
following the termination of the marriage, the legitimacy or illegitimacy of the child shall be proved by whoever
alleges such legitimacy or illegitimacy.

Art. 170 - The action to impugn the legitimacy of the child shall
be brought within one year from the knowledge of the birth or its
recording in the civil register, if the husband or, in a proper case, any of
his heirs, should reside in the city or municipality where the birth took
place or was recorded.

If the husband or, in his default, all of his heirs do not reside at the
place of birth as defined in the first paragraph or where it was
recorded, the period shall be two years if they should reside in the
Philippines; and three years if abroad. If the birth of the child has been
concealed from or was unknown to the husband or his heirs, the period
shall be counted from the discovery or knowledge of the birth of the
child or of the fact of registration of said birth, whichever is earlier.
(263a)

Art. 171 - The heirs of the husband may impugn the filiation of
the child within the period prescribed in the preceding article only in
the following cases:

(1.) If the husband should die before the expiration of the period
fixed for bringing his action;

(2.) If he should die after the filing of the complaint without

having desisted therefrom; or

(3.) If the child was born after the death of the husband. (262a)

NOTES

1. Legitimacy cannot be collaterally attacked or impugned. A direct action precisely filed for the
purpose of assailing the legitimacy of the child must be filed. Only the husband can file the direct action
impugning the legitimacy of the child. His heirs can substitute him only if he dies before the expiration of the

156
period fixed by law for bringing the action, or if the husband should die after the filing of the complaint,
without having desisted therefrom, or if the child was born after the death of the husband.

2. In an action for reconveyance filed by a niece to recover a property formerly belonging to her aunt,
the niece presented evidence to prove that she is the daughter of the brother of her aunt. Respondent filed a
motion to dismiss questioning the filiation of the said niece, claiming that there is no sufficient evidence to
prove her legitimate filiation to her alleged father, and consequently, with her aunt. The Supreme Court said
that the respondent had no legal personality to impugn the legitimacy of the niece as the said respondent was
not the “husband” referred to in the law and also the issue of legitimacy cannot be properly controverted in an
action for reconveyance. Legitimacy cannot be collaterally attacked but only directly attacked by the husband
of the niece’s mother (Tison vs. Court of Appeals, 276 SCRA 582). Likewise, impugning the legitimacy of a
child cannot be made in action for partition as this is a collateral attack (De Jesus vs. De Jesus, G.R. No.
142877, October 2, 2001).

3. An action filed by a legitimate child to cancel the birth certificate of their housemaid’s child who
claimed to be her sister and therefore also a legitimate child of her parents is not violative of the above-
mentioned rule, especially that the legitimate child was able to prove that the said housemaid’s child was not
given birth by her mother and that the birth certificate of the said child was a forgery. The Supreme Court
rejected the contentions of the housemaid’s child that the legitimate child cannot anymore impugn her
legitimacy on the ground that only the alleged father can do so and that the action had already prescribed.
Article 171 applies only when the husband impugns the legitimacy of the child delivered by his wife. In this
case it was shown that the child was not born to the wife of the husband. The prayer herein did not ask the
court to declare the child as an illegitimate child of plaintiff’s parents but instead to declare her to be not the
child of the parents at all. Verily, the present action does not impugn the child’s filiation to the Spouses
Eugenio and Hermogena Babiera, because there is no blood relation to impugn in the first place. As to the
issue of prescription, the Court said that this is an action for cancellation of petitioner’s birth certificate. It does
not impugn her legitimacy, thus, the prescriptive period set forth in Article 170 of the Family Code does not
apply. The action to nullify the birth certificate does not prescribe, because it was allegedly void ab initio
(Babiera vs. Catotal, G.R. No. 138493, June 15, 2000).

4. There are three prescriptive periods for the husband or, in proper cases, the heirs to impugn the
legitimacy of the child. The one year, two years and three years prescriptive period is counted from the
knowledge of the birth of the child or its recording in the civil register and not from the knowledge that the
child is not his. Thus, if the husband was present and had full knowledge of the birth of the child and he
discovered only after three years that the child is not his, he could no longer file an action to impugn the
legitimacy of the child as the same has already prescribed. However, if the birth of the child was concealed by
the wife (meaning the husband did not know that his wife gave birth to a child), the prescriptive period will
not start to run until after the discovery or knowledge of the husband of the birth of the child, or of the fact of
registration of said birth, whichever is earlier.

Chapter 2

Proof of Filiation

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 Art. 172 - The filiation of legitimate children is established by
any of the following:

(1.) The record of birth appearing in the civil register or a final

judgment; or

(2.) An admission of legitimate filiation in a public document or a

private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation

shall be proved by:

(1.) The open and continuous possession of the status of a

legitimate child; or

(2.) Any other means allowed by the Rules of Court and special
laws. (265a, 266a, 267a)

Art. 173. The action to claim legitimacy may be brought by the

child during his or her lifetime and shall be transmitted to the heirs
should the child die during minority or in a state of insanity. In these
cases, the heirs shall have a period of five years within which to
institute the action.

NOTES

1. There are two sets of evidence that will prove or establish filiation. The first two paragraphs of
Article 172 can be considered as the primary proofs of filiation while the last two paragraphs thereof are
considered as the secondary proofs of filiation. The record of birth of the child as appearing in the civil
register or the final judgment of the court where filiation of the child was declared, as well as the admission
of legitimate filiation in a public instrument or in a private handwritten instrument and signed by the parent
concerned are considered as the strongest proof of filiation.

2. A record of birth appearing in the civil register is a very good proof of legitimate filiation as it comes
from an official government source. It is a prima facie evidence of the facts therein contained because it is
considered a public document. However, for a birth certificate to be considered sufficient proof of filiation,
there must be evidence of participation of the alleged father of the child in the making of such document.
Thus, it has been held that if the alleged father did not sign in the birth certificate, the placing of his name by
the mother, or doctor or registrar, is incompetent evidence of paternity of said child ( Berciles vs. GSIS, 128
SCRA 53; Reyes vs. Court of Appeals, 135 SCRA 439).

3. A final judgment refers to a judicial decision where the status of the child as legitimate is in issue,
thus, the judgment of the court is binding and conclusive. The case upon which the judgment was rendered
must involve the issue of whether or not the child is a legitimate child of his father and the court’s judgment
must make a categorical finding that the child is legitimate. If the declaration of the court is a mere obiter
dictum, it does not establish filiation.

4. Admission of legitimate filiation in a public instrument or in a private handwritten instrument and

signed by the father is considered a complete act of recognition which does not require court action. A public
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instrument is normally notarized by a lawyer but a private instrument does not need one. However, for a
private instrument, like a love letter, to be considered a good proof of filiation, it must be in the handwriting of
the alleged father and duly signed by him. Thus, a typewritten letter of the alleged father where he recognized
the child as his is not a strong proof of filiation.

5. An unsigned Autobiography where the putative father acknowledged paternity of the child may be
considered sufficient proof of filiation if special circumstances exist to establish that the child is really his. In
view of the pronouncements herein made, the Court sees it fit to adopt the following rules respecting the
requirement of affixing the signature of the acknowledging parent in any private handwritten instrument
wherein an admission of filiation of a legitimate or illegitimate child is made: a.) Where the private handwritten
instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with
the requirement that the same must be signed by the acknowledging parent; AND b.) Where the private
handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of
filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely
corroborative of such other evidence (Jenie San Juan De la Cruz vs. Gracia, G.R. No. 177728, July 31, 2009).

6. In the absence of primary proofs, the secondary proofs of filiation can be used. Open and
continuous possession of the status of a legitimate child does not mean that the concession of status shall
continue forever but only that it shall not be of an intermittent character while it continues. There must be a
showing of the permanent intention of the supposed father to consider the child as his own, by continuous and
clear manifestation of paternal affection and care (Mendoza vs. Court of Appeals, 201 SCRA 675). The
manifestation of paternal affection and care must not just be an act of charity but of such a nature that they
reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in
all relations in society and in life, not accidentally but continuously. Thus, where the alleged father only met
the respondent four times to give him money, the claim of continuous possession was rejected by the
Supreme Court (Ong vs. Court of Appeals, 272 SCRA 725).

7. Filiation can also be proved by any other means allowed by the Rules of Court and special laws. In
the case of Mendoza vs. Court of Appeals, 201 SCRA 675, the Supreme Court said that this means allowed by
the Rules of Court may consist of baptismal certificate, a judicial admission, a family bible in which the name
of the child has been entered, common reputation respecting pedigree, admission by silence, the testimony of
witnesses and such other kinds of proof admissible under Rule 130 of the Rules of Court. In Jison vs. Court of
Appeals, G.R. No. 124853, February 24, 1998, the Supreme Court ruled that the lack of participation of the
alleged father in the preparation of the baptismal certificate and school records renders these documents
incompetent to prove paternity, with the former merely competent only to prove the administration of baptism
on the date so specified.

8. An action to claim legitimacy may be brought by the child anytime during his or her lifetime. The
heirs of the child may bring the action if the child died during minority or in the state of insanity. In these
cases, the heirs have only five years from the death of the child within which to institute the action (Article
173 FC).

Art. 174 - Legitimate children shall have the right:

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 (1.) To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on Surnames;

(2.) To receive support from their parents, their ascendants, and

in proper cases, their brothers and sisters, in conformity with the
provisions of this Code on Support; and

(3.) To be entitled to the legitime and other successional rights

granted to them by the Civil Code. (264a)

NOTES

1. A legitimate child shall have the right to bear the surname of his father and mother, receive support
from his parents, ascendants or brother and sisters, and to be entitled to the legitime and other successional
rights. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his
father or mother (Article 992 of the Civil Code) while a legitimate child can so inherit.

Chapter 3

Illegitimate Children

Art. 175 - Illegitimate children may establish their illegitimate

filiation in the same way and on the same evidence as legitimate
children.

The action must be brought within the same period specified in

Article 173, except when the action is based on the second paragraph
of Article 172, in which case the action may be brought during the
lifetime of the alleged parent. (289a)

NOTES

1. The evidences to establish legitimate filiation under Article 172 are the very same evidences or
proofs to prove illegitimate filiation. The action must be brought during the lifetime of the child and shall be
transmitted to the heirs should the child die during minority or in the state of insanity pursuant to Article 173
of the Family Code. However, if the action for recognition is based on the second paragraph of Article 172, it
must be filed only during the lifetime of the alleged parent. Thus, if the evidences of filiation in the possession
of the child are only those of the second paragraph of Article 172 (ie., open and continous possession of the
status of a legitimate child and any other means allowed by the Rules of Court), the action must be brought
when the alleged father is still alive; otherwise, the action is barred by prescription.

2. The child may prove his illegitimate filiation only when, at the time of his birth, his mother is not
lawfully married to his alleged father. However, when the child’s mother is lawfully married to another man
who is not his biological father, the child is always considered to be a legitimate child of his mother and the
legal husband. This is because the law declares that a child conceived and born inside a valid marriage is
always presumed legitimate. In this case, only the husband and his heirs, in special cases, are given the legal
standing to file an action to impugn the legitimacy of the child (see Art. 170 & 171 of the Family Code). The

160
child cannot prove that he is an illegitimate child of his mother with another man because it would contradict
his status as a legitimate child of his mother and her legal husband. Thus, even if the child is voluntarily
acknowledged by his married father in his last will and testament, still it would not make him an illegitimate
child of his biological father because it would in effect change his legitimate status to that of illegitimacy (De
Jesus vs. Dizon, G.R. No. 142877, Oct. 2, 2001).

3. An illegitimate child may prove his illegitimate filiation only during the lifetime of his putative father if
his evidences of filiation are only the secondary proofs of filiation (Article 174 par. 2 of the Family Code).
However, if the child was born before the effectivity of the Family Code on August 3, 1988, the law that will
govern is the Civil Code of the Philippines which provides that an illegitimate child whose putative father dies
during his minority, has four years upon reaching the age of majority within which to file an action to prove his
filiation. This is a vested right which cannot be removed by a new law; thus, a legitimate child may still invoke
this right even if his putative father died after the effectivity of the new Family Code (Bernabe vs. Alejo,
January 21, 2002).

Art. 176 - Illegitimate children shall use the surname and shall
be under the parental authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate child.
Except for this modification, all other provisions in the Civil Code
governing successional rights shall remain in force. (287a)

NOTES

1. Illegitimate children shall use the surname of their mother. The reason is that if the child is
illegitimate only the maternity is certain while paternity is not. Before the Family Code took effect, illegitimate
children may use the surname of their father if they were acknowledged by their father and allowed by the
latter to use his surname but this rule was changed by the Family Code. In the case of Mossesgeld vs. Court of
Appeals, G.R. No. 111455, December 23, 1998, the Supreme Court, applying Article 176 of the Family Code,
ruled that illegitimate children shall use the surname of their mother regardless of whether or not the father
admits paternity. This has been the rule until Republic Act No 9255 was passed which now allows illegitimate
children to carry the surname of their putative father if acknowledged by the latter (Please see Appendix “L”).

2. Parental authority over illegitimate children is also vested on the mother. However, it is submitted
that if the father of the illegitimate child is living with him and his mother under one roof and admits that the
child is his, the said father shall also exercise parental authority over the child jointly with his mother. This is
so because of Article 211 of the Family Code which provides that “the father and the mother shall jointly
exercise parental authority over the person of their common children. In case of disagreement, the father’s
decision shall prevail, unless there is a judicial order to the contrary.”

3. The legitime of an illegitimate child is one-half of the legitime of a legitimate child. The Family Code
has already removed the classification of illegitimate children into five types. Thus, under the present law, all
illegitimate children are treated equally.

Chapter 4

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 Legitimated Children

Art. 177 - Only children conceived and born outside of wedlock

of parents who, at the time of the conception of the former, were not
disqualified by any impediment to marry each other may be
legitimated. (269a)

Art. 178 - Legitimation shall take place by a subsequent valid

marriage between parents. The annulment of a voidable marriage shall
not affect the legitimation.

Art. 179 - Legitimated children shall enjoy the same rights as

legitimate children. (272a)

NOTES

1. A legitimated child is one who was conceived and born outside of wedlock to parents who, at the
time of the conception of the child, were not disqualified by any legal impediment to marry each other and
said parents subsequently entered into a lawful marriage. The following are the essential and mandatory
requirements for legitimation:

a.) The child was conceived and born outside of wedlock.

b.) The parents do not suffer any legal impediments to marry

each other at the time of the conception of the child.

c.) The parents subsequently enters into a valid marriage.

2. The child must be conceived AND born outside wedlock. If the child was conceived outside wedlock
but born after his parents were already lawfully married, he is already considered legitimate child and not just
legitimated. Legitimation shall take place by a subsequent valid marriage of the child’s parents. Thus, if the
subsequent marriage of the parents is void, no legitimation takes place. But, if the subsequent marriage is
merely voidable (meaning valid until annulled), legitimation applies even if the said marriage was later on
annulled.
3. Under the Civil Code, before a child can be legitimated, such child must also be acknowledged by
the father. Thus, if the child was conceived and born outside of wedlock before the effectivity of the Family
Code to parents who have no legal impediments to marry each other, the subsequent marriage of his parents
will not automatically legitimize him if his father does not want to acknowledge him as his. However, upon the
effectivity of the Family Code on August 3, 1988, the child shall be considered as a legitimated child even
without the acknowledgment of the father as the Family Code shall apply retroactively and acknowledgment of
the father is no longer considered a condition to legitimation.
4. A legitimated child enjoys all the rights of a legitimate child. He is entitled to the same hereditary
right and shall carry the surname of the father.
5. Article 177 has already been amended by R.A. 9858 which allows legitimation to children born of
parents whose only impediment is that one or both of them is still a minor at the time the child was conceived
and born (Please see Appendix “M”).

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 Art. 180 - The effects of legitimation shall retroact to the time of
the child's birth. (273a)

Art. 181 - The legitimation of children who died before the

celebration of the marriage shall benefit their descendants. (274)

Art. 182 - Legitimation may be impugned only by those who are

prejudiced in their rights, within five years from the time their cause of
action accrues. (275a)

NOTES

1. The subsequent valid marriage of the parents will legitimize the child not from the time of such
marriage but from the time of birth of the child. This is so because legitimation shall retroact to the time of the
child’s birth. It is as if the child is their legitimate child from the time of the latter’s birth and not from the time
of their marriage. Legitimation will also take place even if the child is already dead at the time of the marriage
of his parents. This is what we call as posthumous legitimation. Thus, if the legitimated child who died before
the subsequent marriage of his parents has some descendants, his descendants will also be benefited by the
legitimation as they will now be entitled to inherit from the parents of the deceased legitimated child.

2. Legitimation can only be questioned by those who are prejudiced in their rights. These persons refer
to the legal heirs of the parents as they will surely be affected by the elevation of the status of a legitimate
child to that of a legitimated child. The persons who are prejudiced in their rights do not include creditors as
the rights being referred to in the law is the successional right. The prescriptive period to impugn legitimation
is five years from the time the cause of action accrues, which is from the death of the parents of the
legitimated child because it is only at that time when the successional rights to the legitime will vest.

3. The Local Civil registrar shall maintain a legitimation register where the legitimation of a child may
be recorded. It is in the said register where the relevant facts about the legitimation of a child shall be
entered (see Section 8 of the Civil Registry Law, Act No. 3753).

TITLE VII

ADOPTION

The provisions on Adoption found in Article 183 to 193 (Title VII) of the Family Code has already been
repealed by R.A. 8552 approved on February 25, 1998 by Pres. Fidel V. Ramos. Furthermore, there is another
law which amended our law on adoption and that is the Inter-Country Adoption Law of 1995 or R.A. 8043
approved by Pres. Ramos on June 7, 1995. Thus, our present law on adoption is now primarily governed by
R.A. 8552 and R.A. 8043.

REPUBLIC ACT NO. 8552

AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC

ADOPTION OF FILIPINO CHILDREN AND FOR OTHER PURPOSES

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 ARTICLE I

GENERAL PROVISIONS

SECTION 1. Short Title – This Act shall be known as the

“Domestic Adoption Act of 1998.”

SECTION 2. Declaration of Policies-

a.) It is hereby declared the policy of the State to ensure that

every child remains under the care and custody of his/her parent(s)
and be provided with love, care, understanding and security towards
the full and harmonious development of his/her personality. Only when
such efforts prove insufficient and no appropriate placement or
adoption within the child’s extended family is available shall adoption
by an unrelated person be considered.
b.) In all matters relating to the care, custody and adoption
of a child, his/her interest shall be the paramount consideration in
accordance with the tenets set forth in the United Nations (UN)
Convention on the Rights of the Child; UN Declaration on Social and
Legal Principles Relating to the Protection and Welfare of Children with
Special Reference to Foster Placement and Adoption, Nationally and
Internationally; and the Hague Convention on the Protection of
Children and Cooperation in Respect of Inter-country Adoption. Toward
this end, the State shall provide alternative protection and assistance
through foster care or adoption for every child who is neglected,
orphaned, or abandoned.
c.) It shall be a State policy to:
(i) Safeguard the biological parent(s) from making hurried
decisions to relinquish his/her parental authority over his/her
child;
(ii) Prevent the child from unnecessary separation from
his/her biological parent(s);
(iii) Protect adoptive parent(s) from attempts to disturb
his/her parental authority and custody over his/her adopted
child.
Any voluntary or involuntary termination of parental
authority shall be administratively or judicially declared so as to
establish the status of the child as “legally available for
adoption” and his/her custody transferred to the Department of
Social Welfare and Development or to any duly licensed and
accredited child-placing or child-caring agency, which entity
shall be authorized to take steps for the permanent placement of
the child;

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 (iv) Conduct public information and educational
campaigns to promote a positive environment for adoption;
(v) Ensure that sufficient capacity exists within
government and private sector agencies to handle adoption
inquiries, process domestic adoption applications, and offer
adoption-related services including, but not limited to, parent
preparation and post-adoption education and counselling; and
(vi) Encourage domestic adoption so as to preserve the
child’s identity and culture in his/her native land, and only when
this is not available shall inter-country adoption be considered
as a last resort.

SEC. 3 Definition of Terms. – For purposes of this Act, the

following terms shall be defined as:
(a.) “Child” is a person below eighteen (18) years of age.
(b.)“A child legally available for adoption “ refers to a child who
has been voluntarily or involuntarily committed to the Department or
to a duly licensed and accredited child-placing or child-caring agency,
freed of the parental authority of his/her biological parent(s) or
guardian or adopter(s) in case of rescission of adoption.
(c.) “Voluntarily committed child” is one whose parent(s)
knowingly and willingly relinquishes parental authority to the
Department.
(d.)“Involuntarily committed child” is one whose parent(s),
known or unknown, has been permanently and judicially deprived of
parental authority due to abandonment; substantial, continuous, or
repeated neglect; abuse; or incompetence to discharge parental
responsibilities.
(e.) “Abandoned child” refers to one who has no proper parental
care or guardianship or whose parent(s) has deserted him/her for a
period of at least six (6) continuous months and has been judicially
declared as such.
(f.) “Supervised trial custody” is a period of time within which a
social worker oversees the adjustment and emotional readiness of both
adopter(s) and adoptee in stabilizing their filial relationship.
(g.) “Department” refers to the Department of Social Welfare
and Development.
(h.) “Child-placing agency” is a duly licensed and accredited
agency by the Department to provide comprehensive child welfare
services including, but not limited to, receiving applications for
adoption, evaluating the prospective adoptive parents and preparing
the adoption home study.
(i.) “Child-caring agency” is a duly licensed and accredited
agency by the Department that provides twenty-four (24)-hour

165
 residential care services for abandoned, orphaned, neglected, or
voluntarily committed children.
(j.) “Simulation of birth” is the tampering of the civil registry
making it appear in the birth records that a certain child was born to a
person who is not his/her biological mother, causing such child to lose
his/her true identity and status.

NOTES
1. Adoption is an artificial process of establishing a relationship of parent and child between persons
who are generally not related by nature. This process is done by law, hence, adoption is purely a statutory
creation. It is therefore important that all requirements for adoption under the law must be strictly complied
with; otherwise, an adoption decree issued by the court without complying with such requirements will be null
and void. However, in the case of Republic vs. Court of Appeals & Zenaida Bobiles, 205 SCRA, 356, the
Supreme Court ruled that adoption statutes, as well as matters of procedure leading up to adoption, can be
liberally construed to carry out the beneficient purposes of adoption and for as long as there is substantial
compliance with the mandatory requirements under the law. As a matter of policy of the state, all measures to
maintain the natural parent’s authority and custody of their children must be encouraged and implemented.
Only when such efforts prove to be insufficient and no appropriate placement or adoption within the child’s
extended family is available shall adoption by an unrelated person be considered.

2. The modern view on adoption is that it is geared towards the promotion of the welfare of the child
and the enhancement of his or her opportunities for a useful and happy life rather than looking at it as a pure
act of generosity on the part of the adopter. Our present law on adoption holds the paramount interest and
welfare of the child to be adopted and are designed to provide these children a brighter future.

ARTICLE II
PRE-ADOPTION SERVICES

SEC. 4 Counseling Services – The Department shall provide the

services of licensed social workers to the following:
(a.) Biological Parent(s) – Counseling shall be provided to the
parent(s) before and after the birth of his/her child. No binding
commitment to an adoption plan shall be permitted before the birth of
his/her child. A period of six (6) months shall be allowed for the
biological parent(s) to reconsider any decision to relinquish his/her
child for adoption before the decision becomes irrevocable. Counseling
and rehabilitation services shall also be offered to the biological
parent(s) after he/she has relinquished his/her child for adoption.
Steps shall be taken by the Department to ensure that no
hurried decisions are made and all alternatives for the child’s future
and the implications of each alternative have been provided.

(b.) Prospective Adoptive Parent(s) – Counseling sessions,

adoption fora and seminars, among others, shall be provided to the

166
 prospective adoptive parent(s) to resolve possible adoption issues and
to prepare him/her for effective parenting.

(c.) Prospective Adoptee – Counseling sessions shall be provided

to ensure that he/she understands the nature and effects of adoption
and is able to express his/her views on adoption in accordance with
his/her age and level of maturity.

SEC. 5 Location of Unknown Parent(s) – It shall be the duty of

the Department or the child-placing or child-caring agency which has
custody of the child to exert all efforts to locate his/her unknown
biological parent(s). If such efforts fail, the child shall be registered as
a foundling and subsequently be the subject of legal proceedings
where he/she shall be declared abandoned.

SEC. 6 Support Services - The Department shall develop a pre-

adoption program which shall include, among others, the above-
mentioned services.

NOTES
1. The DSWD is mandated by law to provide pre-adoption services to all the principal parties involved
in the adoption. This consists in providing the services of a licensed social worker who will assist the biological
parents, prospective adopter, and the child to be adopted on all matters relating to adoption. Counselling
sessions are to be provided to the biological parents to see to it that no hurried decision is made in having
his/her child adopted by another person. On the other hand, the prospective adopter as well as the child to be
adopted will also undergo counselling sessions to prepare themselves psychologically and emotionally in
entering into a new phase in their lives.
2. If the child is an abandoned child or a foundling, the DSWD shall exert all efforts to find or locate
the biological parents of the child before declaring the child available for adoption. It is only after all efforts to
find the parents of the child fails, that the child be registered as a foundling and subsequently be made
available for adoption.

ARTICLE III
ELIGIBILITY

SEC. 7. Who May Adopt. – The following may adopt:

(a.) Any Filipino citizen of legal age, in possession of full civil

capacity and legal rights, of good moral character, has not been
convicted of any crime involving moral turpitude, emotionally and
psychologically capable of caring for children, at least sixteen (16)
years older than the adoptee, and is in a position to support and care
for his/her children in keeping with the means of the family. The
requirement of sixteen (16) years difference between the age of the
167
 adopter and the adoptee may be waived when the adopter is the
biological parent of the adoptee, or is the spouse of the adoptee’s
parent;

(b.) Any alien possessing the same qualifications as above stated

for Filipino nationals: Provided, That his/her country has diplomatic
relations with the Republic of the Philippines, that he/she has been
living in the Philippines for at least three (3) continuous years prior to
the filing of the application for adoption and maintains such residence
until the adoption decree is entered, that he/she has been certified by
his/her diplomatic or consular office or any appropriate government
agency that he/she has the legal capacity to adopt in his/her country,
and that his/her government allows the adoptee to enter his/her
country as his/her adopted son/daughter: Provided, further, That
requirements on residency and certification of the alien’s qualification
to adopt in his/her country may be waived for the following:

(i) A former Filipino citizen who seeks to adopt a relative

within the fourth (4th) degree of consanguinity or affinity;
or
(ii) One who seeks to adopt the legitimate son/daughter of
his/her Filipino spouse; or
(iii) One who is married to a Filipino citizen and seeks to adopt
jointly with his/her spouse a relative within the fourth
(4th) degree of consanguinity or affinity of the Filipino
spouse; or

(c.) The guardian with respect to the ward after the termination
of the guardianship and clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following

cases:
(i) If one spouse seeks to adopt the legitimate son/daughter
of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, however, That the other spouse
has signified his/her consent thereto; or
(iii) If the spouses are legally separated from each other.

In case the husband and wife jointly adopt, or one spouse

adopts an illegitimate son/daughter of the other, joint parental
authority shall be exercised by the spouses.

NOTES

168
 1. The adopter can either be a Filipino citizen or a Foreigner. If the adopter is a Filipino citizen, he/she
must possess the following qualifications:
a.) Legal age
b.) In possession of full civil capacity and legal rights
c.) Good moral character
d.) Has not been convicted of any crime involving moral turpitude
e.) Emotionally and psychologically capable of caring for children
f.) At least sixteen (16) years older than the adoptee
g.) In a position to support and care for his/her children in keeping
with the means of the family.
However, the 16 years age gap between the adopter and the adoptee may be waived when the adopter
is the biological parent of the adoptee, or is the spouse of the adoptee’s parent.

2. If the adopter is a foreigner, he must possess all the qualifications of a Filipino adopter and, in
addition thereto, he must also possess the following qualifications:
a.) His country has diplomatic relation with the Philippines.
b.) He must have resided in the Philippines for at least three (3) continuous
years prior to the filing of his application for adoption.
c.) Must be certified by his/her diplomatic or consular office or any appropriate
agency that he/she has the legal capacity to adopt in his/her country and that
his/her government allows the adoptee to enter his/her country as his/her
adopted child.
However, the three (3) years residence requirements and the certification of his legal capacity to adopt
in his own country may be waived under the following:
(i) A former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) One who seeks to adopt the legitimate son/daughter of his/her Filipino
Spouse; or
(iii) One who is married to a Filipino citizen and seeks to adopt jointly with
his/her spouse a relative within the fourth (4th) degree of consanguinity
or affinity of the Filipino spouse.

3. Guardians may adopt their wards but only after the termination of the guardianship and that
clearance of his/her financial accountabilities has already been approved by the court.

4. When the adopter is a married person, his/her spouse must join him/her in the adoption. However, in
the following instances the spouse may adopt alone, to wit:
(i) if he/she seeks to adopt the legitimate son/daughter of the other spouse.
(ii) if he/she seeks to adopt his/her own illegitimate child. Provided, however,
that the other spouse must have signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.

5. The waiver of the three (3) years residence requirement for alien adopters is an exception to the
general rule, hence, it must be strictly construed. Thus, a Filipina woman who married an American husband,
acquired her husband’s American citizenship and consequently lost her Filipino citizenship, cannot anymore
169
adopt jointly with her husband her own younger brother without complying with the 3 years residence
requirement. When the former Filipina and her American husband returned to the Philippines and, after one
year, filed a petition to adopt the Filipina wife’s younger brother, the Supreme Court ruled that they are not
qualified. They cannot avail of the waiver of 3 years residency and certification requirements because they do
not fall under the exceptions. First, the husband is not a former Filipino citizen but a natural-born citizen of the
United States of America. Although the wife is a former Filipino citizen, she could not adopt alone as she is
already married and she must therefore join her husband in the adoption but the latter is disqualified. Secondly,
the child to be adopted is not the legitimate child of the Filipino spouse. Lastly, when the spouses jointly filed
the petition to adopt the Filipina wife’s brother (who is a relative of the wife within the fourth civil degree of
consanguinity), the said wife was no longer a Filipino citizen (Republic vs. Toledano, et al. G.R. No. 94147, June
8, 1994).

6. A woman who remarries cannot adopt a child without joining her second husband as co-petitioner.
The execution of Affidavit of Consent by the second husband will not suffice. The law is clear and the principle
of dura lex sed lex is very much applicable as the law is explicit that the husband and the wife shall jointly
adopt. The use of the word “shall” means that joint adoption by the husband and wife is mandatory. There is
no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must
jointly adopt. The filing of a case for dissolution of marriage by the second husband against the petitioner
during the pendency of the petition for adoption is of no moment. It is not equivalent to a decree of dissolution
of marriage. Until and unless there is a judicial decree for the dissolution of marriage, the marriage still
subsists. That being the case, joint adoption by the husband and the wife is required (In re: Petition for
Adoption of Michelle P. Lim and Michael Jude P. Lim, G.R. No. 168992-93, May 21, 2009).

SEC. 8. Who may be adopted – The following may be adopted:

(a.) Any person below eighteen (18) years of age who has been
administratively or judicially declared available for adoption;
(b.) The legitimate son/daughter of one spouse by the other
spouse;
(c.) An illegitimate son/daughter by a qualified adopter to
improve his/her status to that of legitimacy;
(d.) A person of legal age if, prior to the adoption, said person
has been consistently considered and treated by the adopter as his/her
own child since minority;
(e.) A child whose adoption has been previously rescinded; or
(f.) A child whose biological father or adoptive parent(s) has
died: Provided, that no proceedings shall be initiated within six (6)
months from the time of death of said parents(s).

SEC. 9. Whose Consent is Necessary to the Adoption – After

being properly counselled and informed of his/her right to give or
withhold his/her approval of the adoption, the written consent of the
following to the adoption is hereby required:
(a.) The adoptee, if ten (10) years of age or over;
170
 (b.) The biological parent(s) of the child, if known, or the
legal guardian, or the proper government instrumentality which has
legal custody of the child;

(c.) The legitimate and adopted sons/daughters, ten (10) years

of age or over, of the adopter(s) and adoptee, if any;

(d.) The illegitimate sons/daughters, ten (10) years of age or

over, of the adopter if living with said adopter and the latter’s spouse,
if any, and

(e.) The spouse, if any, of the person adopting or to be adopted.

NOTES
1. As a general rule, only minors may be adopted. However, certain exceptions are provided for by law
and they are as follows:
a.) When the child to be adopted is the illegitimate child of the adopter,
b.) When the child to be adopted is the legitimate child of the adopter’s spouse,
c.) When the child to be adopted has been consistently treated as a child of the
adopter during minority. This is what is known as De facto adoption.

2. Before a petition for adoption can be filed, a certification that the child is “legally available for
adoption” must first be secured from the DSWD. There is no need any more for a judicial declaration that the
child is available for adoption as what is required now is a mere administrative process of filing a petition for
the issuance of the certification before the DSWD pursuant to R.A. 9523 ( see: Appendix H).

3. The written consent of the persons enumerated in Article 9 is required in adoption. The law does not
require the testimony in court of the person whose consent is needed. It is sufficient that said person has
given his consent in writing, duly notarized by a lawyer or notary public (Cathey vs. Republic, 18 SCRA 86).
The adopter himself can testify that he obtained the written consent of those persons whose consent is
required by law and that the same has been attached to the petition for adoption. Consent of the natural
parents to the adoption is not an absolute requirement as in the case of an abandoned child where consent of
the guardian ad litem will suffice ( Santos vs. Aranzanso, 16 SCRA 344). If the child is an illegitimate child, the
consent shall be given by the mother only as parental authority is exercised by her alone to the exclusion of
the father. However, it is submitted that if the father of the illegitimate is living with the child’s mother and has
acknowledged the child as his, then he also jointly exercises parental authority over the child, hence, his
consent to the adoption is also required. The parents of the child to be adopted can always withdraw their
consent to the adoption at anytime within six (6) months from their decision to relinquish their child for
adoption.

ARTICLE IV
PROCEDURE

171
 SEC. 10. Hurried Decisions - In all proceedings for adoption,
the court shall require proof that the biological parent(s) has been
properly counselled to prevent his/her from making hurried decisions
caused by strain or anxiety to give up the child, and to sustain that all
measures to strengthen the family have been exhausted and that any
prolonged stay of the child in his/her own home will be inimical to
his/her welfare and interest.

SEC. 11. Case Study - No petition for adoption shall be set for
hearing unless a licensed social worker of the Department, the social
service office of the local government unit, or any child-placing or
child-caring agency has made a case study of the adoptee, his/her
biological parent(s), as well as the adopter(s), and has submitted the
report and recommendations on the matter to the court hearing such
petition.
At the time of preparation of the adoptee’s case study report,
the concerned social worker shall confirm with the Civil Registry the
real identity and registered name of the adoptee. If the birth of the
adoptee was not registered with the Civil Registry, it shall be the
responsibility of the concerned social worker to ensure that the
adoptee is registered.
The case study of the adoptee shall establish that he/she is
legally available for adoption and that the documents to support this
fact are valid and authentic. Further, the case study of the adopter(s)
shall ascertain his/her genuine intentions and that the adoption is in
the best interest of the child.
The Department shall intervene on behalf of the adoptee if it
finds, after the conduct of the case studies, that the petition should be
denied. The case studies and other relevant documents and records
pertaining to the adoptee and the adoption shall be preserved by the
Department.

SEC. 12. Supervised Trial Custody – No petition for adoption

shall be finally granted until the adopter(s) has been given by the court
a supervised trial custody period for at least six (6) months within
which the parties are expected to adjust psychologically and
emotionally to each other and establish a bonding relationship. During
said period, temporary parental authority shall be vested in the
adopter(s).
The court may motu proprio or upon motion of any party reduce
the trial period if it finds the same to be in the best interest of the
adoptee, stating the reason for the reduction of the period. However,
for alien adopter(s), he/she must complete six (6) month trial custody
except for those enumerated in Sec. 7(b), (i), (ii), (iii).

172
 If the child is below seven (7) years of age and is placed with
the prospective adopter(s) through a pre-adoption placement authority
issued by the Department, the prospective adopter(s) shall enjoy all
the benefits to which biological parent(s) is entitled from the date the
adoptee is placed with the prospective adopter(s).

SEC. 13. Decree of Adoption – If, after the publication of the

order of hearing has been complied with, and no opposition has been
interposed to the petition, and after consideration of the case studies,
the qualifications of the adopter(s), trial custody report and the
evidence submitted, the court is convinced that the petitioners are
qualified to adopt and that the adoption will redound to the best
interest of the adoptee, a decree of adoption shall be entered which
shall be effective as of the date the original petition was filed. This
provision shall also apply in case the petitioner(s) dies before the
issuance of the decree of adoption to protect the interest of the
adoptee. The decree shall state the name by which the child is to be
known.

SEC. 14. Civil Registry Record - An amended certificate of birth

shall be issued by the Civil Registry, as required by the Rules of Court,
attesting to the fact that the adoptee is the child of the adopter(s) by
being registered with his/her surname. The original certificate of birth
shall be stamped “cancelled” with the annotation of the issuance of an
amended birth certificate in its place and shall be sealed in the civil
registry records. The new birth certificate to be issued to the adoptee
shall not bear any notation that it is an amended issue.

SEC. 15. Confidential Nature of Proceedings and Records – All

hearings in adoption cases shall be confidential and shall not be open
to the public. All records, books, and papers relating to the adoption
cases in the files of the court, the Department, or any other agency or
institution participating in the adoption proceedings shall be kept
strictly confidential.
If the court finds that the disclosure of the information to a third
person is necessary for purposes connected with or arising out of the
adoption and will be for the best interest of the adoptee, the court may
merit the necessary information to be released, restricting the
purposes for which it may be used.

NOTES
1. Adoption is essentially a judicial proceeding; thus, no adoption can take place except through a
judicial decree by a competent court. A de facto adoption produces no legal effect. Only an adoption made
through the court, or done in accordance with Rule 99 of the Rules of Court is considered valid. It is a
proceeding in rem, creating a relationship of paternity and filiation between the adopter and the adoptee. In
173
order to establish the relationship of a father and son through adoption, the statutory requirements for
adoption must be strictly complied with; otherwise, the adoption is not valid. Adoption must be affirmatively
proved by the person claiming its existence and should never be presumed.

2. After hearing, where the court is convinced that the adopter is qualified to adopt and that adoption
is to the best interest of the adoptee, a decree of adoption will be issued which shall be effective as of the
date the original petition was filed. Adoption decree, once issued, cannot be attacked collaterally ( Santos vs.
Court of Appeals, 205 SCRA 321). An action directly assailing the validity of the adoption decree is required in
order to invalidate the adoption.

3. The effectivity of the adoption decree retroacts to the date the original petition for adoption was
filed. Its retroactivity, however, will not apply if it would result to a liability on the adopter for acts committed
by the adoptee during the pendency of the adoption proceeding. Thus, where a child, subject of an adoption
proceeding, shot and killed another person while he was still in the actual custody of his natural parents, the
subsequent issuance of the decree will not render the adopter liable for damages for the crime committed by
the said child. The Supreme Court, in rejecting the view that the retroactive effect of the decree will hold the
adopting parents liable for the act of their adopted child, said that the retroactivity of the decree should not
apply because it would go against the principle of vicarious liability of parents (which principle is premised on
the assumption that the child is living with them and under their parental authority when the crime was
committed). The Court further said, we do not consider that retroactive effect may be given to the decree of
adoption so as to impose liability upon the adopting parents accruing at a time when the adopting parents had
no actual or physical custody over the adopted child (Tamargo vs. Court of Appeals, 209 SCRA 518).

4. The decree of adoption must be registered in the office of the local civil register of the place where
the decree was issued. It is the duty of the petitioner or any interested party to register it. If not registered,
the clerk of court which issued the decree must send a copy of the decree to the civil registry of the city or
municipality where the court is functioning (Article 409 of the Civil Code). A copy of the decree must be
furnished to the local civil registry of the place where the original birth certificate of the subject child is
recorded so that an appropriate amendment of his birth certificate can be made. Upon the finality of the
decree, the surname of the adoptee shall be changed to the surname of the adopter.

5. Adoption records must be kept strictly confidential so as to protect the right to privacy of the natural
parents, the adopters and the adoptees. Only the court can release information relative to adoption and the
court will only do this if it finds that the disclosure of the information to a third person is necessary for
purposes connected with or arising out of the adoption and will be for the best interest of the adoptee. For a
more extensive and detailed discussion of the procedures in adoption, please see the Procedural Rule on
Domestic Adoption (A.M. No. 02-6-02-SC) .

ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority – Except in cases where the
biological parent is the spouse of the adopter, all legal ties between the
biological parent(s) and the adoptee shall be severed and the same
shall be vested on the adopter(s).

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 SEC. 17. Legitimacy - The adoptee shall be considered the
legitimate son/daughter of the adopter(s) for all intents and purposes
and as such is entitled to all the rights and obligations provided by law
to legitimate sons/daughters born to them without discrimination of
any kind. To this end, the adoptee is entitled to love, guidance, and
support in keeping with the means of the family.

SEC. 18. Succession - In legal and intestate succession, the

adopter(s) and the adoptee shall have reciprocal rights of succession
without distinction from legitimate filiation. However, if the adoptee
and his/her biological parent(s) had left a will, the law on
testamentary succession shall govern.

NOTES
1. Once the adoption decree has become final, the parental authority of the natural parents shall be
severed except where the said biological parent of the adoptee is also the spouse of the adopter. Adoption is
one of the modes of extinguishing parental authority; thus, once granted by the court the biological parents
loses their authority over their child adopted. Thereafter, the adoptee shall be considered the legitimate
son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and
obligations provided by law to legitimate children. Hence, when the adopted child between the age of 18 to 21
decides to marry, it is the adopter who will give his/her parental consent and not anymore the biological
parent of the adoptee.

2. The relation established by the adoption is limited only to the adopter and the adoptee and does not
extend to their other relatives, except as expressly provided by law. The relationship created is only that of
parent and child, thus, the adopted child cannot be considered as a relative of the adopter(s) relatives. The
adopted child, therefore, cannot inherit from the ascendants and descendants of his/her adopter. Neither are
the children of the adopted considered as descendants of the adopter ( Santos, Jr. vs. Republic, 21 SCRA 379).

3. An adopted child is a legal and intestate heir of the adopter. In legal and intestate succession, the
adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate
filiation. This means that the adopter and the adoptee can mutually inherit from each other. However, under
our law, the adopted child does not have the right of representation in the law of succession. Representation is
a right created by fiction of law where the representative is raised to the place and the degree of the person
represented, and acquires the right which the latter would have if he were living or if he could have inherited
(Art. 970 of the Civil Code). Thus, if the father dies, the son has a right of representation to inherit from his
grandfather upon the death of the latter. This right of a legitimate child cannot be exercised by an adopted
child because this does not involve a “reciprocal” right between parent and child. It is a rule that successional
rights of the adopted and the adopter are purely statutory and therefore limited by statute. Unless the
Adoption Law provides, the adopted child does not inherit from the lineal or collateral kindred of the adoptive
parents. Hence, in the event the adopter predeceases his/her parent, the adopted child cannot inherit from the
adopter’s parent because this is not a reciprocal right between the adoptee and the adopter. The right of
representation will not apply here as the adoptee is not related to the adopter’s parent whether by blood or by
legal fiction. The right of representation is conferred by statute and there is nothing in our present law on
adoption which grants by legal fiction this right of representation to the adoptee.
175
 4. If the adoptee dies, his biological parents will not inherit anything from him because their ties have
already been severed by the adoption. The one who will inherit from the adoptee by intestate succession is his
adopter. However, the adoptee may institute his biological parents as voluntary heirs in his last will and
testament to be charged against the free portion. Thus, the biological parents of the adoptee can inherit from
the latter only through testate succession and not through intestate succession.

5. An illegitimate child adopted by her own father shall use the surname of her father. But, what about
her middle name? Can she use the surname of her mother as her middle name? In the case of In the matter
of Adoption of Stephanie Nathy Astorga Garcia, G.R.No. 148311, March 31, 2005, the Supreme Court ruled
that an illegitimate child adopted by her own father may use the surname of her mother as her middle name.

ARTICLE VI
RESCISSION OF ADOPTION

SEC. 19. Grounds for Rescission of Adoption - Upon petition of

the adoptee, with the assistance of the Department if a minor or if over
eighteen (18) years of age but is incapacitated, as guardian/counsel,
the adoption may be rescinded on any of the following grounds
committed by the adopter(s): (a.) repeated physical and verbal
maltreatment by the adopter(s) despite having undergone counselling;
(b.) attempt on the life of the adoptee; (c.) sexual assault or violence;
or (d.) abandonment and failure to comply with parental obligations.
Adoption, being in the best interest of the child, shall not be
subject to rescission by the adopter(s). However, the adopter(s) may
disinherit the adoptee for causes provided in Article 919 of the Civil
Code.

SEC. 20 Effects of Rescission - If the petition is granted, the

parental authority of the adoptee’s biological parent(s), if known, or
the legal custody of the Department shall be restored if the adoptee is
still a minor or incapacitated. The reciprocal rights and obligations of
the adopter(s) and the adoptee to each other shall be extinguished.

NOTES
1. Considering that adoption is intended for the best interest of the child, only the adoptee is given the
legal standing to rescind the adoption decree. The adopter does not have the right to rescind the adoption. His
only remedy is to disinherit the adopted child. If the adoptee is still a minor, he or she will be assisted by the
DSWD and if he/she is already of legal age but incapacitated, he/she may be assisted by a legal guardian or
counsel. If the adoptee is already of legal age and not suffering from any incapacity, he/she alone must bring
the action for rescission of adoption. The grounds for rescission as enumerated in Sec. 19 are: (a.) repeated
physical and verbal maltreatment by the adopter; (b.) attempt on the life of the adoptee; (c.) sexual assault or
violence; or (d.) abandonment and failure to comply with parental obligations.

176
 2. Although the adopter cannot rescind the adoption, he can disinherit the adoptee based on any of the
grounds for disinheritance under Article 919 of the Civil Code. The disinheritance must be expressly stated only
through a Last Will and Testament wherein the legal cause therefor shall be specified (Article 916 of the Civil
Code). However, subsequent reconciliation between the adopter and the adoptee renders the disinheritance
that may have been made ineffectual (Article 922 of the Civil Code).

3. Once rescission is granted by the court and the adoptee is still a minor or incapacitated, the parental
authority of the biological parents, if known, is restored. If, the adoptee is a foundling or with no known
parent, the legal custody of the Department is revived. The reciprocal rights and obligations of the adopter
and the adoptee to each other shall be extinguished. Upon the finality of the judgment of rescission,
succession rights of the parties shall revert to its status prior to adoption. Vested rights acquired prior to
judicial rescission shall be respected. The court shall order the Civil Registrar to cancel the amended birth
certificate of the adoptee and restore his/her original birth certificate.

ARTICLE VII
VIOLATIONS AND PENALTIES

SEC. 21. Violations and Penalties -

(a.) The penalty of imprisonment ranging from six (6) years and
one (1) day to twelve (12) years and/or a fine not less than Fifty
Thousand Pesos (P50,000.00), but not more than Two Hundred
Thousand Pesos (P200,000.00) at the discretion of the court shall be
imposed on any person who shall commit any of the following acts:

(i) obtaining consent for an adoption through

coercion, undue influence, fraud, improper material inducement,
or other similar acts;
(ii) non-compliance with the procedures and
safeguards provided by the law for adoption; or
(iii) subjecting or exposing the child to be adopted to
danger, abuse, or exploitation.

(b.) Any person who shall cause the fictitious registration of the
birth of a child under the name(s) of a person(s) who is not his/her
biological parents shall be guilty of simulation of birth, and shall be
punished by prision mayor in its medium period and a fine not
exceeding Fifty thousand pesos (P50,000).

Any physician or nurse or hospital personnel who, in violation of

his/her oath of office, shall cooperate in the execution of the above-
mentioned crime shall suffer the penalties herein prescribed and also
the penalty of permanent disqualification.

177
 Any person who shall violate established regulations relating to
the confidentiality and integrity of records, documents, and
communications of adoption applications, cases, and processes shall
suffer the penalty of imprisonment ranging from one (1) year and one
(1) day to two (2) years, and/or a fine of not less than Five thousand
pesos (P5,000) but not more than Ten thousand pesos (10,000), at the
discretion of the court.

A penalty lower by two (2) degrees than that prescribed for the
consummated offense under this article shall be imposed upon
principals of the attempt to commit any of the acts herein enumerated.

Acts punishable under this Article, when committed by a

syndicate or where it involves two (2) or more children shall be
considered as an offense constituting child trafficking and shall merit
the penalty of reclusion perpetua.

Acts punishable under this Article are deemed committed by a

syndicate if carried out by a group of three (3) or more persons
conspiring and/or confederating with one another in carrying out any
of the unlawful acts defined under this Article. Penalties as are herein
provided, shall be in addition to any other penalties which may be
imposed for the same acts punishable under other laws, ordinances,
executive orders, and proclamations.

When the offender is an alien, he/she shall be deported

immediately after service of sentence and perpetually excluded from
entry to the country.

Any government official, employee or functionary who shall be

found guilty of violating any of the provisions of this Act, or who shall
conspire with private individuals shall, in addition to the above-
prescribed penalties, be penalized in accordance with existing civil
service laws, rules and regulations: Provided, that upon the filing of a
case, either administrative or criminal said government official,
employee or functionary concerned shall automatically suffer
suspension until the resolution of the case.

SEC. 22. Rectification of Simulated Births. – A person who has,

prior to the effectivity of this Act, simulated the birth of a child shall
not be punished for such act: Provided, That the simulation of birth
was made for the best interest of the child and that he/she has been
consistently considered and treated by that person as his/her own
son/daughter: Provided, further, That the application for correction of
the birth registration and petition for adoption shall be filed within five
(5) years from the effectivity of this Act and completed thereafter:
Provided, finally, That such person complies with the procedure as
178
 specified in Article IV of this Act and other requirements as determined
by the Department.

ARTICLE VIII
FINAL PROVISIONS

SEC. 23. Adoption Resource and Referral Office. - There shall be

established an Adoption Resources and Referral Office under the
Department with the following functions: (a) monitor the existence,
number, and flow of children legally available for adoption and
prospective adopter(s) so as to facilitate their matching; (b) maintain a
nationwide information and educational campaign on domestic
adoption; (c) keep records of adoption proceedings; (d) generate
resources to help child-caring and child-placing agencies and foster
homes maintain viability; and (e) do policy research in collaboration
with the Inter-country Adoption Board and other concerned agencies.
The office shall be manned by adoption experts from the public and
private sectors.

SEC. 24. Implementing Rules and Regulations. - Within six (6)

months from the promulgation of this Act, the Department, with the
Council for the Welfare of Children, the Office of the Civil Registry
General, the Department of Justice, Office of the Solicitor General, and
two (2) private individuals representing child-placing and child-caring
agencies shall formulate the necessary guidelines to make the
provisions of this Act operative.’

SEC.25. Appropriations.- Such sum as may be necessary for the

implementation of the provisions of this Act shall be included in the
General Appropriations Act of the year following its enactment into law
and thereafter.

SEC. 26. Repealing Clause. – Any law, presidential decree or

issuance, executive order, letter of instruction, administrative order,
rule, or regulation contrary to, or inconsistent with the provisions of
this Act is hereby repealed, modified, or amended accordingly.

SEC. 27. Separability Clause. - If any provision of this Act is

held invalid or unconstitutional, the other provisions not affected
thereby shall remain valid and subsisting.

SEC. 28. Effectivity Clause. – This Act shall take effect fifteen
(15) days following its complete publication in any newspaper of
general circulation or in the Official Gazette.

NOTES

179
 1. Simulation of birth is the fictitious registration of the birth of the child under the name of a person
who is not the child’s biological parents. It is the act of making it appear that the child was born to a couple
(parents) when in truth and in fact he is not the biological child of said couple. This act is considered a crime
under the law and is punishable by imprisonment and fine. Any physician, nurse or hospital personnel, who in
violation of his/her oath of office, shall cooperate in the execution of the above-mentioned crime shall also be
punished by law. However, if the act was committed before the passage of the law (R.A. No. 8552), the
perpetrator may be excused if he/she will declare it to the authority within five years from the effectivity of the
said law. This is called rectification of simulation of birth. The procedure for rectification of simulated birth is
found in Section 8 of the Rules and Regulations on Domestic Adoption Act of 1998, A.M. No. 02-6-02-SC (see
Appendix “J”).

REPUBLIC ACT NO. 8043

INTER-COUNTRY ADOPTION ACT OF 1995

GENERAL PROVISION

SECTION 1. Short Title - This Act shall be known as the “Inter-

Country Adoption Act of 1995.”

SEC. 2. Declaration of Policy - It is hereby declared the policy of

the State to provide every neglected and abandoned child with a
family that will provide such child with love and care as well as
opportunities for growth and development. Towards this end, efforts
shall be exerted to place the child with an adoptive family in the
Philippines. However, recognizing that inter-country adoption may be
considered as allowing aliens, not presently allowed by law to adopt
Filipino children if such children cannot be adopted by qualified
Filipino citizens or aliens, the State shall take measures to ensure that
inter-country adoptions are allowed when the same shall prove
beneficial to the child’s best interest, and shall serve and protect
his/her fundamental rights.

SEC. 3. Definition of Terms. – As used in this Act, the term:

a) Inter-country adoption refers to the socio-legal process of

adopting a Filipino child by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the supervised trial custody
is undertaken, and the decree of adoption is issued outside the
Philippines.
b) Child means a person below fifteen (15) years of age
unless sooner emancipated by law.
c) Department refers to the Department of Social Welfare
and Development of the Republic of the Philippines.

180
 d) Secretary refers to the Secretary of the Department of
Social Welfare and Development.
e) Authorized and accredited agency refers to the State
welfare agency or a licensed adoption agency in the country of the
adopting parents which provide comprehensive social services and
which is duly recognized by the Department.
f) Legally – free child means a child who has been
voluntarily or involuntarily committed to the Department, in
accordance with the Child and Youth Welfare Code.
g) Matching refers to the judicious pairing of the adoptive
child and the applicant to promote a mutually satisfying parent-child
relationship.
h) Board refers to the Inter-Country Adoption Board.

NOTES

1. Inter-country adoption is the socio-legal process of adopting a Filipino child by a foreigner or a

Filipino permanently residing abroad, where the petition for adoption is filed. Unlike in the Domestic Adoption
Law where the petition for adoption must be filed here in the Philippines, the petition under the Inter-country
adoption will have to be filed in the country of the prospective adopter and the decree of adoption will also be
issued by the court of the place where the petition is filed. Likewise, the supervised trial custody shall also be
done there in the country of the adopter. The only thing done here in the Philippines is the selection of the
child to be adopted and this is done by the Inter-country Adoption Board (ICAB).

2. It is the policy of the state that a child must be placed with an adoptive family in the Philippines. It is
only when efforts to have the child adopted here in the country fails that inter-country adoption may be
considered. Generally, inter-country adoption is availed of only by foreigners who are not qualified to adopt a
Filipino child under the Domestic Adoption Law; thus, the state must see to it that it will be allowed only when
it will prove beneficial to the child’s best interest, and shall serve and protect his/her fundamental rights.

ARTICLE II

THE INTER-COUNTRY ADOPTION BOARD

SEC. 4. The Inter-Country Adoption Board.- There is hereby

created the Inter-country Adoption Board, hereinafter referred to as
the Board, to act as the central authority in matters relating to inter-
country adoption. It shall act as the policy-making body for purposes of
carrying out the provisions of this Act, in consultation and coordination
with the Department, the different child-care and placement agencies,
as well as non-governmental organizations engaged in child-care
placement activities. As such, it shall:

a) Protect the Filipino child from abuse, exploitation,

trafficking and/or sale or any other practice in connection with
adoption which is harmful, detrimental, or prejudicial to the child;
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 b) Collect, maintain, and preserve confidential about the
child and the adoptive parents;
c) Monitor, follow-up, and facilitate completion of adoption
of the child through authorized and accredited agency;
d) Prevent improper financial or other gain in connection
with and adoption and deter improper practices contrary to this Act;
e) Promote the development of adoption services including
post-legal adoption;
f) License and accredit child-caring/placement agencies and
collaborate with them in the placement of Filipino children;
g) Accredit and authorize foreign adoption agency in the
placement of Filipino children in their own country; and
h) Cancel the license to operate and blacklist the child-caring
and placement agency involved from the accreditation list of the Board
upon a finding of violation of any provision under this Act.

SEC.5. Composition of the Board – The Board shall be composed

of the Secretary of the Department as ex officio Chairman, and six (6)
other members to be appointed by the President for a non-renewable
term of six (6) years: Provided, That there shall be appointed one (1)
psychiatrist or psychologist, two (2) lawyers who shall have at least
the qualifications of a regional trial court judge, one (1) registered
social worker and two (2) representatives from non-governmental
organizations engaged in child-caring and placement activities. The
members of the Board shall receive a per diem allowance of One
thousand five hundred pesos 91,500) for each meeting attended by
them: Provided, further, That no compensation shall be paid for more
than four (4) meetings a month.

SEC. 6. Powers and Functions of the Board. – The Board shall

have the following powers and functions:

a) to prescribe rules and regulations as it may deem

reasonably necessary to carry out the provisions of this Act,
after consultation and upon favorable recommendation of the
different agencies concerned with child-caring, placement, and
adoption;
b) to set the guidelines for the convening of an Inter-
Country Adoption Placement Committee which shall be under
the direct supervision of the Board;
c) To set the guidelines for the manner by which
selection/matching of prospective adoptive parents and
adoptive child can be made;
d) To determine a reasonable schedule of fees and
charges to be exacted in connection with the application for
adoption;
182
 e) To determine the form and contents of the
application for inter-country adoption;
f) To formulate and develop policies, programs and
services that will protect the Filipino child from abuse,
exploitation, trafficking and other adoptive practice that is
harmful, detrimental and prejudicial to the best interest of the
child;
g) To institute systems and procedures to prevent
improper financial gain in connection with adoption and deter
improper practices which are contrary to this Act;
h) To promote the development of adoption services,
including post-legal adoption services;
i) To accredit and authorize foreign private adoption
agencies which have demonstrated professionalism, competence
and have consistently pursued non-profit objectives to engage in
the placement of Filipino children in their own country: Provided,
That such foreign private agencies are duly authorize and
accredited by their own government to conduct inter-country
adoption: Provided, however, That the total number of
authorized and accredited foreign private adoption agencies
shall not exceed one hundred (100) a year;
j) To take appropriate measures to ensure
confidentiality of the records of the child, the natural parents
and the adoptive parents at all times;
k) To prepare, review or modify, and thereafter,
recommend to the Department of Foreign Affairs, Memoranda of
Agreement respecting inter-country adoption consistent with
the implementation of this Act and its stated goals, entered into,
between and among foreign governments, international
organizations and recognized international non-governmental
organizations;
l) To assist other concerned agencies and the courts
in the implementation of this Act, particularly as regards
coordination with foreign persons, agencies and other entities
involved in the process of adoption and the physical transfer of
the child; and
m) To perform such other functions on matters relating
to inter-country adoption as may be determined by the
President.

NOTES

1. The law created a central authority in matters relating to inter-country adoption called the Inter-
country Adoption Board. It shall act as the policy-making body for purposes of carrying out the provisions of
the law. The Board shall be composed of the Secretary of the DSWD as ex officio Chairman, and six (6) other
members to be appointed by the President for a non-renewable term of six (6) years. Of the six, one must be
183
a psychiatrist or psychologist, two are lawyers with the qualifications of an RTC judge, one registered social
worker, and two are representatives from non-governmental organizations engaged in child-caring and
placement activities.

ARTICLE II

PROCEDURE

SEC. 7. Inter-country Adoption as the Last Resort. – The board shall

ensure that all possibilities for adoption of the child under the Family Code
have been exhausted and that inter-country adoption is the best interest of
the child. Towards this end, the Board shall set up the guidelines to ensure
that steps will be taken to place the child in the Philippines before the child is
placed for inter-country adoption: Provided, however, that the maximum
number that may be allowed for foreign adoption shall not exceed six
hundred (600) a year for the first five (5) years.

SEC. 8. Who May Be Adopted. – Only a legally-free child may be the

subject of inter-country adoption. In order that such child may be considered
for placement, the following documents must be submitted to the Board:

a.) Child study;

b.) Birth certificate/foundling certificate;
c.) Deed of voluntary commitment/decree of abandonment/ death
certificate of parents;
d.) Medical evaluation/history;
e.) Psychological evaluation, as necessary; and
f.) Recent photo of the child.

SEC.9. Who May Adopt. – Any alien or a Filipino citizen permanently

residing abroad may file an application for inter-country adoption of a Filipino
child if he/she:

a.) is at least twenty-seven (27) years of age and at least sixteen (16)
years older than the child to be adopted at the time of application
unless the adopter is the parent by nature of the child to be adopted
or the spouse of such parent;
b.) if married, his/her spouse must jointly file for the adoption;
c.) has the capacity to act and assume all rights and responsibilities of
parental authority under his national laws, and has undergone the
appropriate counseling from an accredited counselor in his/her
country;
d.) has not been convicted of a crime involving moral turpitude;
e.) is eligible to adopt under his/her national law;
f.) is an a position to provide the proper care and support and to give
the necessary moral values and example to all his children,
including the child to be adopted;
184
 g.) agrees to uphold the basic rights of the child as embodied under
Philippine laws, the U.N. Convention on the Rights of the Child, and
to abide by the Rules and Regulations issued to implement the
provisions of this Act;
h.) comes from a country with whom the Philippines has diplomatic
relations and whose government maintains a similarly authorized
and accredited agency and that adoption is allowed under his/her
national laws; and
i.) possesses all the qualifications and none of the disqualifications
provided herein and in other applicable Philippine laws.

SEC.10. Where to File Application - An application to adopt a Filipino

child shall be filed either with the Philippine Regional Trial Court having
jurisdiction over the child, or with the Board, through an intermediate
agency, whether governmental or an authorized and accredited agency, in
the country of the prospective adoptive parents, which application shall be in
accordance with the requirements as set forth in the implementing rules and
regulations to be promulgated by the Board.

The applications shall be supported by the following documents

written and officially translated in English:

a.) Birth certificate of applicant(s);

b.) Marriage contract, if married, and divorce decree, if applicable;
c.)Written consent of their biological or adopted children above
ten (10) years of age, in the form of sworn statement;
d.)Physical, medical and psychological evaluation by a duly
licensed physician and psychologist;
e.) Income tax returns or any document showing the financial
capability of the applicant(s);

f.) Police clearance of applicant(s);

g.) Character reference from the local church/minister, the

applicant’s employer and a member of the immediate
community who have known the applicant(s) for at least five
(5) years; and
h.) Recent postcard-size pictures of the applicant(s) and his
immediate family.

The Rules of Court shall apply in case of adoption by judicial

proceedings.

SEC. 11. Family Selection/Matching – No child shall be matched to a

foreign adoptive family unless it is satisfactorily shown that the child cannot
be adopted locally. The clearance, as issued by the Board, with the copy of
the minutes of the meetings, shall form part of the records of the child to be

185
 adopted. When the Board is ready to transmit the Placement Authority to the
authorized and accredited inter-country adoption agency and all the travel
documents of the child are ready, the adoptive parents, or any one of them,
shall personally fetch the child in the Philippines.

SEC. 12. Pre-adoptive Placement Costs – The applicant(s) shall bear

the following costs of incidental to the placement of the child:

a) The cost of bringing the child from the Philippines to the

residence of the applicant(s) abroad, including all travel expenses within the
Philippines and abroad; and
b) The cost of passport, visa, medical examination and
psychological evaluation required, and other related expenses.

SEC. 13. Fees, Charges and Assessments - Fees, charges and

assessments collected by the Board in the exercise of its functions shall be
used solely to process applications for inter-country adoption and to support
the activities of the Board.

SEC. 14. Supervision of the Trial Custody –The governmental agency or

the authorized and accredited agency in the country of the adoptive parents
which filed the application for inter-country adoption shall be responsible for
the trial custody and the care of the child. It shall also provide family
counseling and other related services. The trial custody shall be for a period
of six (6) months from the time of placement. Only after the lapse of the
period of trial custody shall a decree of adoption be issued in the said country,
copy of which shall be sent to the Board to form part of the records of the
child.

During the trial custody, the adopting parent(s) shall submit to the
governmental agency or the authorized and accredited agency, which shall in
turn transmit a copy to the Board, a progress report of the child’s adjustment.
The progress report shall be taken into consideration in deciding whether or
not to issue the decree of adoption.

The Department of Foreign Affairs shall set-up a system by which

Filipino children sent abroad for trial custody are monitored and checked as
reported by the authorized and accredited inter-country adoption agency as
well as the repatriation to the Philippines of a Filipino child whose adoption
has not been approved.

SEC. 15. Executive Agreements - The Department of Foreign Affairs,

upon representation of the Board, shall cause the preparation of Executive
Agreements with countries of the foreign adoption agencies to ensure the
legitimate concurrence of said countries in upholding the safeguards provided
by this Act.

NOTES
186
 1. Only a legally-free child may be adopted under the Inter-country Adoption Law. A legally-free child,
just like a child legally available for adoption under the Domestic Adoption Law, is one who is voluntarily or
involuntarily committed by their parents to the DSWD. The child under this law refers to a person below fifteen
(15) years of age while the child to be adopted under the Domestic Adoption Law is one who is below
eighteen (18) years old. An abandoned or neglected child pursuant to P.D. 603 may be the subject of inter-
country adoption. No physical transfer of the child voluntarily committed by their parents to the DSWD shall be
made earlier than six (6) months from the date the Deed of Voluntary Commitment was executed by the
parents. The prohibition against physical transfer, however, shall not apply to adoption by a relative or to
children with special medical conditions (see Section 25, Article VIII of the Rules and Regulations on Inter-
Country Adoption Law).

2. Any alien or a Filipino citizen permanently residing abroad may adopt a Filipino child under the Inter-
country Adoption Law provided he/she has the qualifications mentioned in Section 9 of the law. The adopter
must be at least 27 years of age and at least 16 years older than the child to be adopted. In the Domestic
Adoption Law, it is enough that the adopter is of legal age (18 years old) although the 16 years age gap
between the adopter and the adoptee is maintained.

3. An application to adopt a Filipino child ( not a petition for adoption) must be filed in the Regional
Trial Court of the place where the child to be adopted resides or with the Inter-Country Adoption Board
(ICAB) through an intermediate agency in the country of the prospective adopter. The application must be
supported by document enumerated in Section 10 of R.A. No. 8043.

4. Before the child can be adopted by the prospective adopter, the ICAB must first conduct family
selection and matching to see to it that the child to be adopted matched with the character of the prospective
adopter. The Board shall then prepare the Placement Authority and communicate the same to the adopter.
When the Board is ready to transmit the Placement Authority and the travel documents of the child are ready,
the adoptive parents, or any one of them, shall personally fetch the child in the Philippines. The adopter shall
shoulder all the costs or expenses in relation to the adoption of the child and the bringing of the child to
his/her own country.

5. Once the child is placed in the actual custody of the adopter, the six (6) months supervised trial
custody shall immediately commence. The trial custody shall be conducted under the supervision of the
authorized and accredited agency in the country of the adopter or by the appropriate governmental agency of
the said country. The agency concerned shall submit to the ICAB a progress report on the child’s adjustment
with his adoptive parents. Upon the completion of the six months trial custody, and the showing of a
satisfactory pre-adoptive relationship between the applicant and the child, the Board (ICAB) shall then transmit
the written consent of the adoption to the foreign adoption agency concerned. Should the trial custody fail as
the child and the prospective adopter could not live together harmoniously, the Board will look for another
prospective adopter in the same country. If it fails to find another placement for the child within a reasonable
period of time after the termination of the pre-adoptive relationship, the Board, as a last resort , shall
repatriate the child to the Philippines. All records in Inter-Country Adoption, just like in Domestic Adoption,
shall be kept confidential.

ARTICLE IV

187
 PENALTIES

Sec. 16. Penalties. – (a.) Any person who shall knowingly participate in
the conduct or carrying out of an illegal adoption, in violation of the
provisions of this Act, shall be punished with a penalty of imprisonment
ranging from six (6) years and one (1) day to twelve (12) years and/or a fine
of not less than Fifty thousand pesos (P50,000), but not more that Two
hundred thousand pesos (P200,000), at the discretion of the court. For
purposes of this Act, an adoption is illegal if it is effected in any manner
contrary to the provisions of this Act or established State policies, its
implementing rules and regulations, executive agreements, and other laws
pertaining to adoption. Illegality may be presumed from the following acts:

1. Consent for an adoption was acquired through, or

attended by coercion, fraud, improper material inducement;
2. There is no authority from the Board to effect adoption;
3. The procedures and safeguards placed under the law for
adoption were not complied with; and
4. The child to be adopted is subjected to, or exposed to
danger, abuse or exploitation.

b) Any person who shall violate established regulations relating to the

confidentiality and integrity of records, documents and communications of
adoption applications, cases and processes shall suffer the penalty of
imprisonment ranging from one (1) year and one (1) day to two (2) years,
and/or a fine of not less than Five thousand pesos (P5,000), but not more
than Ten thousand pesos (P10,000), at the discretion of the court.

A penalty lower by two (2) degrees than that prescribed for the
consummated felony under this Article shall be imposed upon the principals
of the attempt to commit any of the acts herein enumerated.

Acts punishable under this Article, when committed by a syndicate or

where it involves two or more children shall be considered as an offense
constituting child trafficking and shall merit the penalty of reclusion
perpetua.

Acts punishable under this Article are deemed committed by a

syndicate if carried out by a group of three (3) or more persons conspiring
and/or confederating with one another in carrying out any unlawful acts
defined under this Article. Penalties as are herein provided shall be in
addition to any other penalties which may be imposed for the same acts
punishable under other laws, ordinances, executive orders, and
proclamations.

SEC. 17. Public Officers as Offenders – Any government official,

employee or functionary who shall be found guilty of violating any of the

188
 provisions of this Act, or who shall conspire with private individuals shall, in
addition to the above-prescribed penalties, be penalized in accordance with
existing civil service laws, rules and regulations: Provided, That upon the
filing of a case, either administrative or criminal, said government official,
employee or functionary concerned shall automatically suffer suspension
until the resolution of the case.

NOTES

1. Acts committed in violation of Article IV of this law are considered crimes and are punishable by
imprisonment and/or fine. These acts are mala prohibita, therefore, there is no need to show bad faith or
malice on the part of the perpetrator to hold him liable for the crime charged. Any person who shall knowingly
participate in the conduct or carrying out of an illegal adoption shall be liable under Section 55 of the law. Acts
punishable under the law shall be considered as an offense constituting child trafficking and shall be punished
by reclusion perpetua. The rules and procedures in Inter-Country Adoption are outlined in A.M. No. 02-6-02
SC, hereto attached as Appendix “J” .

ARTICLE V

FINAL PROVISIONS

SEC. 18. Implementing Rules and Regulations - The Inter-Country

Adoption Board, in coordination with the Council for the Welfare of Children,
the Department of Foreign Affairs, and the Department of Justice, after due
consultation with agencies involved in child-care and placement, shall
promulgate the necessary rules and regulations to implement the provisions
of this Act within six (6) months after its effectivity.

SEC. 19. Appropriations. – The amount of Five million pesos

(P5,000,000) is hereby appropriated from the proceeds of the Lotto for the
initial operations of the Board and subsequently the appropriations of the
same shall be included in the General Appropriations Act for the year
following its enactment.

SEC. 20. Separabality Clause. – If any provision, or part hereof, is held

invalid or unconstitutional, the remainder of the law or the provision not
otherwise affected, shall remain valid and subsisting.

SEC. 21. Repealing Clause. – Any law, decree, executive order,

admistrative order or rules and regulations contrary to, or inconsistent with
the provisions of this Act are hereby repealed, modified or amended
accordingly.

SEC. 22. Effectivity Clause. – This Act shall take effect fifteen (15)
days after its publication in two (2) newspapers of general circulation.

TITLE VIII
189
 SUPPORT

Art. 194. Support comprises everything indispensable for

sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to

in the preceding paragraph shall include his schooling or training for
some profession, trade or vocation, even beyond the age of majority.
Transportation shall include expenses in going to and from school, or
to and from place of work. (290a)

Art. 105. Subject to the provisions of the succeeding articles, the

following are obliged to support each other to the whole extent set
forth in the preceding article:

(1.) The spouses;

(2.) Legitimate ascendants and descendants;

(3.) Parents and their legitimate children and the

legitimate and illegitimate children of the latter;

(4.) Parents and their illegitimate children and the

legitimate and illegitimate children of the latter;
and

(5.) Legitimate brothers and sisters, whether of full or

half-blood (291a)

Art. 196. Brothers and sisters not legitimately related, whether

of the full or half-blood, are likewise bound to support each other to
the full extent set forth in Article 194, except only when the need for
support of the brother or sister, being of age, is due to a cause
imputable to the claimant's fault or negligence. (291a)

NOTES

1. Support comprises everything necessary to keep a person alive. The amount of support depends on
the financial capacity of the family. Everything that is indispensable for the sustenance, dwelling, clothing,
medical attendance, education and transportation, is what comprises support. Natural support refers to the
basic necessities while civil support refers to anything beyond the basic necessities. The present law provides
that even if the person to be supported is already of legal age, the supporter is still obliged to give support in
order for the former to continue and finish his/her schooling or training.

2. Support is a reciprocal obligation, such that if you are obliged to support a certain person, that
person has also the obligation to support you when the situation changes. Thus, support is a mutual obligation

190
between two persons. The following are obliged to support each other to the whole extent set forth in Article
194:

a.) Husband and wife

b.) Legitimate ascendants and descendants

c.) Parents and their legitimate children as well as the children of the latter

d.) Parents and their illegitimate children as well as the children of the latter

e.) Legitimate brothers and sisters, whether of the full blood or half blood.

3. Support is a mandatory obligation which cannot be waived, renounced, transmitted or compensated

as it is necessary for the existence, survival and well being of the individual to be supported. Any waiver of
such right is null and void for being contrary to law and public policy. Thus, under Article 2035 of the Civil
Code, no compromise shall be valid upon the question of future support. In the case of De Asis vs. Court of
Appeals, 303 SCRA 176, the Supreme Court ruled that the compromise agreement entered into by the mother
whereby she renounced the claim of support for her son from the defendant who denied paternity subject to
the condition that said defendant will not pursue his counterclaim, is not valid. The agreement cannot be valid
as it violates the prohibition against any compromise of the right to future support.

4. The obligation of the husband and wife to support each other presupposes the existence of a valid
marriage. It is the fact of a valid marriage that gives rise to the husband and wife to support each other. Thus,
when the validity of marriage is in issue, as in the case where the husband denied that there exists a valid
marriage between him and the wife, support pendente lite cannot be awarded by the court to the plaintiff
without a hearing determining the existence of marriage (Yangco vs. Rhode, 1 Phil. 404). During the pendency
of an action for annulment of marriage or legal separation, support of the husband and wife shall be taken
from the conjugal partnership or from the absolute community as the case may be. Once the court grants the
annulment of marriage, the obligation to give support ceases. However, in legal separation, the court may
order the guilty spouse to continue providing support to the innocent spouse despite the grant of legal
separation. The distinction is because in annulment of marriage, the marriage is dissolved while in legal
separation there is no dissolution of marriage. The spouses are only separated in bed and in board.

5. A wife who is guilty of adultery is not entitled to support from her husband as said crime of adultery
committed by the wife is a valid defense against an action for support (Quintana vs. Lerma, 24 Phil. 285).
However, the alleged adultery of the wife must be proven by competent evidence. The mere allegation that
the wife committed adultery is not enough to bar her from receiving support pendente lite. Adultery is a good
defense and if properly proved and sustained will defeat the action (Reyes vs. Ines-Luciano, 88 SCRA 803).

6. A child born out of an adulterous relationship of the wife and another man is not entitled to support
from the husband. A valid defense to refuse support by a husband to a child claiming support is when the child
is the fruit of an adulterous relationship of the wife, for in such case, the child is not that of the person from
whom support is demanded (Sanchez vs. Zulueta, 68 Phil. 110).

7. Parents are obliged to support their children, whether legitimate or illegitimate, as well as the
children of the latter. Grandparents shall also support their grandchildren, whether legitimately or illegitimately
related to their children. The persons obliged to support each other are limited from the grandparents to

191
grandchildren only and vice versa. It does not extend to the great grandchildren. Grandchildren cannot
demand support directly from their grandparents if they have parents (ascendants of the nearest degree) who
are capable of supporting them. This is so because we have to follow the order of support under Article
199 of the Family Code.

8. An action for Temporary Protection Order (TPO) with prayer for support filed by the mother of a
child against the alleged father if the latter denied filiation of the child. To be entitled to legal support,
petitioner must, in proper action, fist establish the filiation of the child, if the same is not admitted or
acknowledged. The child’s remedy is to file through her mother a judicial action against the alleged father for
compulsory recognition (Cherryl B. Dolina vs. Glenn Vallecera, G.R. No. 182367, Dec. 15, 2010).

9. The obligation of the grandparents to support their grandchildren do not extend to the daughter-in-
law. The latter does not have the right to demand support from her parents-in-law as the right to support
extends only to her husband, arising from their marital bond (Sps. Prudencio and Filomena Lim vs. Ma. Cheryl
Lim et al., G.R. No. 163209, October 30, 2009).

10. A conceived child, although still unborn, is entitled to support from the father because said child is
already given by law a provisional personality of its own for all purposes favourable to it, as provided by Article
40 of the Civil Code (Quimiguing vs. Icao, 34 SCRA 132).

11. Legitimate brother and sisters, whether of the full blood or half blood, are obliged to support each
other. They are the only collateral blood relatives who are obliged to support each other. It must be noted that
uncles, aunts, nephews and nieces are not obligated to support each other.

12. Brothers and sisters who are not legitimately related, whether of the full or half blood, are likewise
bound to support each other, except when the need for support of the brother and sister, being of age, is due
to a cause imputable to the claimant’s fault or negligence.

Art. 197. In case of legitimate ascendants; descendants,

whether legitimate or illegitimate; and brothers and sisters, whether
legitimately or illegitimately related, only the separate property of the
person obliged to give support shall be answerable provided that in
case the obligor has no separate property, the absolute community or
the conjugal partnership, if financially capable, shall advance the
support, which shall be deducted from the share of the spouse obliged
upon the liquidation of the absolute community or of the conjugal
partnership.

Art. 198. During the proceedings for legal separation or for

annulment of marriage, and for declaration of nullity of marriage, the
spouses and their children shall be supported from the properties of
the absolute community or the conjugal partnership. After the final
judgment granting the petition, the obligation of mutual support
between the spouses ceases. However, in case of legal separation, the
court may order that the guilty spouse shall give support to the
innocent one, specifying the terms of such order.

NOTES
192
 1. If the persons to be supported are the spouses and their common children, or the legitimate children
of either spouse in a previous marriage, the amount of support should be taken from the conjugal partnership
or the absolute community as the case maybe. Support of a spouse’s ascendants, brother and sisters, and
illegitimate children shall be charged against the separate property of the said spouse and not against the
conjugal partnership. However, if the obligor does not have a separate property, the absolute community or
the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the
share of the said spouse upon the dissolution of the partnership.

Art. 199. Whenever two or more persons are obliged to give

support, the liability shall devolve upon the following persons in the
order herein provided:

(1.) The spouse;

(2.) The descendants in the nearest degree;

(3.) The ascendants in the nearest degree; and

(4.) The brothers and sisters.

Art. 200. When the obligation to give support falls upon two or
more persons, the payment of the same shall be divided between them
in proportion to the resources of each.

However, in case of urgent need and by special circumstances,

the judge may order only one of them to furnish the support
provisionally, without prejudice to his right to claim from the other
obligors the share due from them.

When two or more recipients at the same time claim support

from one and the same person legally obliged to give it, should the
latter not have sufficient means to satisfy all claims, the order
established in the preceding article shall be followed, unless the
concurrent obligees should be the spouse and a child subject to
parental authority, in which case the child shall be preferred.

NOTES

1. When a person needs support and all those persons obliged to provide him support under the law
are still living, from whom shall he demand support first? Article 199 states that it should be from his spouse
first, then his descendants in the nearest degree, then ascendants in the nearest degree, and finally his
brothers and sisters. In other words, one cannot demand support from his ascendants and brothers and sisters
if his spouse and children are still alive and capable of supporting him. The order of the persons upon whom
the liability of giving support devolves must be strictly observed.

2. When there are several persons obliged to give support belonging to the same category, they should
share in the amount needed to support a particular person. For example, a widow with three children who are

193
already professionals and capable of supporting her, needs support, all the three children must share in the
responsibility of supporting their mother. The amount that they will each contribute for the support of their
mother shall be in proportion to their respective income and not equally. In case of emergency, the court may
order only one of them to provide support provisionally, without prejudice to his right to claim from his siblings
the share due from them.

3. When several persons demand support from one person at the same time, and the latter does not
have sufficient means to satisfy all the claims, the order established in Article 199 shall be followed. However,
when the concurrent obligees are the spouse and a child subject to parental authority, the latter shall be
preferred. This means that if your spouse and your minor child is demanding support from you and your
means is not enough, you must prioritize your minor child over your spouse. A son or daughter who is already
of legal age is not preferred over the spouse.

Art. 201. The amount of support, in the cases referred to in

Articles 195 and 196, shall be in proportion to the resources or means
of the giver and to the necessities of the recipient.

Art. 202. Support in the cases referred to in the preceding article

shall be reduced or increased proportionately, according to the
reduction or increase of the necessities of the recipient and the
resources or means of the person obliged to furnish the same.

NOTES

1. The amount of support to be given by the supporter shall be in proportion to his resources or means
and to the needs of the recipient. It is the court who determines the amount based on the evidence presented
by the parties. The law does not fix the amount of support for all cases as the law is not that unreasonable as
to contemplate a situation where the one giving the support shall be compelled to make such support to the
detriment of his or her own being and existence.

2. The amount of support per judgment of the court is provisional in character and is never final. The
judgment of support is always subject to modification and the court may adjust the amount depending on the
changing needs of the recipient and the changing ability of the provider. If the needs of the recipient increases
and the income of the provider have also increased, the court may also increase the amount of support.

Art. 203. The obligation to give support shall be demandable

from the time the person who has a right to receive the same needs it
for maintenance, but it shall not be paid except from the date of
judicial or extra-judicial demand.

Support pendente lite may be claimed in accordance with the

Rules of Court.

194
 Payment shall be made within the first five days of each
corresponding month or when the recipient dies, his heirs shall not be
obliged to return what he has received in advance.

Art. 204. The person obliged to give support shall have the
option to fulfill the obligation either by paying the allowance fixed, or
by receiving and maintaining in the family dwelling the person who has
a right to receive support. The latter alternative cannot be availed of in
case there is a moral or legal obstacle thereto.

NOTES

1. Demand for support is necessary as it is only from the time of demand that the obligation to support
commences. Before support is paid, there must be a judicial or extrajudicial demand. This is so for the right to
support does not arise from the mere fact of relationship, even from the relationship of parents and children,
but “from imperative necessity without which it cannot be demanded, and the law presumes that such
necessity does not exist unless support is demanded” (Civil Code of the Philippines Annotated, Tolentino, Vol.
1, p.181, citing Manresa 685). The need for support as already stated, cannot be presumed, and especially
must this be true in the present case where it appears that the minors had means of their own (Jocson, et al.
vs. Empire Insurance Co., 50 O.G. 2628).

2. Once support is ordered by the court, payment shall be made within the first five (5) days of each
month. When the recipient dies, his heirs shall not be obliged to return what he has received in advance.

3. The obligation to give support ceases when the recipient engages in a trade, profession or industry,
or has obtained work or has improved his fortune in such a way that he no longer needs the allowance for his
subsistence. However, if in spite of the fact that the person supported is already working, the necessities of
the recipient continue without his fault, the obligation to give what is needed subsists (Corral vs. Gallego, 38
O.G. 3158). Thus, it is the sufficiency of the income derived from the practice of the profession, art or trade
that determines the necessity for support.

4. The person obliged to give support has the option to either give it in a fixed monthly allowance, or
maintaining him/her in the family dwelling. However,the second alternative may not be availed of in case there
is moral or legal obstacle thereof. Thus, a wife, who is forced to leave the conjugal abode by her husband,
without fault on her part, may maintain an action against the husband for separate maintenance when she has
no other remedy, and the husband cannot compel her to live with him in the conjugal abode pursuant to the
option given to him by law as there is a valid reason for the wife to refuse the said option (Goitia vs. Campos
Rueda, 35 Phil. 252).

Art. 205. The right to receive support under this Title as well as
any money or property obtained as such support shall not be levied
upon on attachment or execution.

Art. 206. When, without the knowledge of the person obliged to

give support, it is given by a stranger, the latter shall have a right to

195
 claim the same from the former, unless it appears that he gave it
without intention of being reimbursed.

Art. 207. When the person obliged to support another unjustly

refuses or fails to give support when urgently needed by the latter, any
third person may furnish support to the needy individual, with right of
reimbursement from the person obliged to give support. This Article
shall particularly apply when the father or mother of a child under the
age of majority unjustly refuses to support or fails to give support to
the child when urgently needed.

Art. 208. In case of contractual support or that given by will, the

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

Furthermore, contractual support shall be subject to adjustment

whenever modification is necessary due to changes of circumstances
manifestly beyond the contemplation of the parties.

NOTES

1. The amount that a person receives by way of support is necessary for his survival and well being,
thus, it cannot be attached or levied on execution. To deprive the recipient of these provisions will clearly be
prejudicial to his/her very existence. However, in case of contractual support or that given by will, the excess
in amount beyond that required for legal support shall be subject to levy on attachment or execution (Article
208 of the Family Code).

2. Articles 206 and 207 of the Family Code are provisions establishing a quasi-contract. The Civil Code
requires one who is obligated to support another but who fails to do so to reimburse a third person who
provided the necessary support to the one entitled to it, otherwise, he would be unjustly enriching himself at
the expense of another. Whoever advances the support shall be entitled to be reimbursed unless he gives it as
an act of charity, and without any intention of being reimbursed. The giving of support by a stranger must be
with the intention to be reimbursed later on by the one who is obliged to support the recipient. Thus, if the
person provided support to a child out of pity and compassion, without any intention to be reimbursed, then
he cannot later on demand for reimbursement as the giving was done voluntarily and no unjust enrichment
happens.

TITLE IX

PARENTAL AUTHORITY

Chapter 1

General Provisions

Art. 209. Pursuant to the natural right and duty of parents over
the person and property of their unemancipated children, parental

196
 authority and responsibility shall include the caring for and rearing
them for civic consciousness and efficiency and the development of
their moral, mental and physical character and well-being.

Art. 210. Parental authority and responsibility may not be

renounced or transferred except in the cases authorized by law.

NOTES

1. Parental authority is the sum total of the rights of parents over the person and property of their
unemancipated children (2 Manresa 8, cited in Paras, Civil Code of the Phiilippines, Annotated, 4th Ed., p.591).
Parents have the natural right and duty to care for and rear their children for civic consciousness and
efficiency and the development of their moral, mental and physical character and well-being. Parental
authority refers to the right and duty of parents under the law of nature as well as the common law and the
statutes of many states to protect their children, to care for them in sickness and in health, and to do
whatever may be necessary for their care, maintenance and preservation (59 Am. Jur. 97, cited in Sta. Maria,
Persons and Family Relations Law, Annotated, 4th Ed., p. 751). The parental authority granted by law to
parents over the person or property of their children has for its purpose their physical development, the
cultivation of their intelligence and the development of their intellectual and sensitive faculties ( Reyes vs.
Alvarez, 8 Phil. 723).

2. Parental authority is inalienable and any abdication of this authority by the parents is null and void
as it cannot be waived, transferred or renounced except in cases authorized by law (Teresita Sagala-Eslao vs.
CA., 266 SCRA 317, January 16, 1997). Being purely personal, the law allows the waiver of parental authority
only in cases of adoption, guardianship or surrender to a children’s home or an orphan’s institution (see: Act
No. 3094). Thus, if a parent entrusts the custody of his minor child to a friend or a relative, what is given is
only temporary custody and not a renunciation of parental authority. A father can, therefore, recover the
rightful custody of his child from the latter’s grandparents in the absence of proof that he is disqualified to
exercise parental authority (Santos vs. Court of Appeals, G.R. No. 113054, March 16, 1995, 242 SCRA 407).

Art. 211. The father and the mother shall jointly exercise
parental authority over the persons of their common children. In case
of disagreement, the father's decision shall prevail, unless there is a
judicial order to the contrary.

Children shall always observe respect and reverence towards

their parents and are obliged to obey them as long as the children are
under parental authority. (311a)

Art. 212. In case of absence or death of either parent, the parent

present shall continue exercising parental authority. The remarriage of
the surviving parent shall not affect the parental authority over the
children, unless the court appoints another person to be the guardian
of the person or property of the children. (n)

197
 NOTES

1. Parental authority shall be exercised jointly by the father and the mother over the person and
property of their common children. The use of the word common children in Article 211 emphasizes the fact
that the child here may either be legitimate or illegitimate. This is different from Sec. 17 of P.D. 603 (Child and
Youth Welfare Code), which has been expressly repealed by the Family Code, where joint parental authority
referred to legitimate or adopted children only. This interpretation of Article 211 is in consonance with the
ruling of the Supreme Court in the case of Dempsey vs. RTC, 164 SCRA 384, where it said that joint parental
authority must be exercised by the father and the mother of an acknowledged natural child which was one of
the classifications of an illegitimate child under the Civil Code. However, for this interpretation to apply, two
requisites must be present, and they are: (1.) the paternity is certain; and (2.) the father and the mother of
the illegitimate child must be living together under one roof with the child. This must be so in order to
harmonize Article 21 with Article 176 of the Family Code which provides that illegitimate children shall be
under the parental authority of the mother. Hence, if paternity and filiation is not doubted, and the child and
his mother are living together with the father, the latter must have joint parental authority over the child.

2. In case of conflict between the parents in the manner of rearing the child under their joint parental
authority, the decision of the father shall prevail. The remedy of the mother is to go to court and question the
decision of the father as it is only the court, through a judicial order, that can reverse the father’s decision.
The objection of the mother must, however, rest on a very valid and substantial reason for the court will not
unduly supplant the prerogative of the father in upbringing his child unless there is evidence that the decision
of the father is not to the best interest of the child. On the other hand, children are obliged to respect and
obey their parents for as long as they are under their parental authority. Act No. 4002 provides that a child
incurs criminal liability if the child shows disrespect or disobedience to his parents. Furthermore, Article 223 of
the Family Code allows the parent to apply for an order providing for disciplinary measures over the child.

3. The surviving parent shall continue to exercise parental authority despite the death of the other
parent. The remarriage of the surviving parent will not affect that authority but the new spouse will not be
entitled to exercise joint parental authority over the child not unless he/she adopts the child. However, the
court may deprive the surviving parent of his/her parental authority over the child, if, it finds that, by reason
of the remarriage, the surviving parent cannot anymore undertake the necessary devotion, care, loyalty and
concern toward the child. In this case, the court may appoint another person to act as the guardian over the
person and property of the child.

Art. 213. In case of separation of the parents, parental authority

shall be exercised by the parent designated by the Court. The Court
shall take into account all relevant considerations, especially the choice
of the child over seven years of age, unless the parent chosen is unfit.
(n)

NOTES

1. In case the parents of the child are separated, whether legally or by a de facto separation, parental
authority shall be exercised by the parent designated by the court. In determining who between the parents
shall be awarded custody of the child, the court shall take into account all relevant considerations, especially
the choice of the child over seven years of age, unless the parent chosen is unfit. The general rule is that, if
the child is below seven years of age, the custody should be awarded to the mother, unless there are
198
compelling reasons to deprive the mother of such custody. If the child is over seven years of age, the child is
given the right to choose but the choice of the child may be over-ruled by the court if it finds the same to be
not in the best interest of the child. In other words, the paramount welfare and interest of the child shall
always be the basis for the court in awarding the custody of the child to one parent.

2. The award of parental authority to one parent in case of separation does not mean that the parental
authority of the other parent is necessarily terminated or lost. Parental authority is terminated only if the court
so decrees on the basis of the valid causes for termination or suspension of such authority under Articles 228
to 233 of the Family Code. Thus, when the court awards the custody of the child to the mother in a legal
separation case, the consent of the father is still required if the child will be offered for adoption by another
person. The contention of the mother that the consent of the father is no longer required in the adoption of
the child because she alone has the parental authority of the child is wrong. Only the exercise of parental
authority was given to the mother but the father still retains parental authority especially on matters pertaining
to adoption. The Supreme Court ruled that the consent of the father must still be obtained considering that the
legal separation decree did not necessarily terminate the parental authority of the father (Cang vs. Court of
Appeals, 296 SCRA 128).

3. The grant of joint custody of the child by the Court of Appeals is an abuse of discretion. In all
questions regarding the care and custody of the child, his/her welfare is the paramount consideration. The so
called “tender age presumption” under Article 213 of the Family Code may be overcome only by compelling
reason or evidence of the mother’s unfitness. Here, the mother was not shown to be unfit, thus, sole custody
is awarded to her (Hirsch vs. Court of Appeals, G.R. No. 174485, July 11, 2007).

4. The second paragraph of Article 213 of the Family Code, which provides that “no child under seven
years of age shall be separated from the mother unless there are compelling reasons”, is mandatory. The Joint
Custody Agreement executed by the parents of the child after obtaining a divorce in the United States cannot
be enforced here as it is void ab initio for being contrary to law. The agreement would have been valid if the
spouses have not divorced or separated because the law provides for joint parental authority when the
spouses live together (Dacasin vs. Del Mundo-Dacasin, G.R. No. 168785, Feb. 5, 2010)

5. Parents can never be deprived of their custody and care of their children except for a valid cause
provided by law. In custody cases, the child’s best interest is the paramount consideration in the award of
custody to one parent. As between the parents and the grandparents of the child, the parents should be
preferred in the battle for custody of the child. Thus, in an action for custody filed by the parents in order to
recover their child from the grandparents to whom they entrusted the child since the latter was still one year
old, the court ruled in favor of the parents. However, when the court attempted to enforce the judgment
awarding the custody of the child to the parents, the child threatened to kill herself if she will be delivered to
her natural parents instead of letting her stay with her grandparents. The Supreme Court was constrained to
change its decision and allowed the child to remain in the custody of her grandparents. The court’s judgment
in custody cases will not attain finality as it can be changed by the court anytime depending on what it feels is
best for the interest of the child (Luna vs. Intermediate Appellate Court, 137 SCRA 7).

6. The court may award custody of the child to a stranger if such award would best serve the
paramount interest of the child (Balatbat vs. Balatbat, 98 Phil. 998). The absence of kinship between the child
and the stranger does not bar the lower court from awarding the custody of the former to the latter. The law
199
provides that in certain cases the custody of the child may be awarded even to strangers, as against the
natural parents. Thus, if the court finds both parents to be improper persons to whom to entrust the care,
custody and control of the child, the court may designate other persons to take charge of such child, or
commit it to any suitable asylum, children’s home, or benevolent society (Chua vs. Cabangbang, 27 SCRA
291).

7. The maternal preference rule, which gives preference to the mother over the father in the custody
of a child under seven years of age, is based on the universally recognized rule that the mother is the natural
custodian of her young. The law favors the mother if she is a fit and proper person to have custody of her
children so that they may not only receive her attention, care, supervision and kindly advice, but also may
have the advantage and benefit of a mother’s love and devotion for which there is no substitute. The natural
inclination to give to the mother the custody of her children of tender years is a recognition that the mother is
God’s own institution for the rearing and upbringing of the child, and puts a premium on child culture in the
hands of an expert (Hines vs. Hines, 192 Iowa 569 as cited in Sta. Maria, Persons and Family Relations Law,
4th Ed., p.763). However, this rule is not absolute as it is subject to the condition that the mother is fit to
exercise custody of her child. Thus, if there are compelling reasons to deprive the mother of the preferential
custody of the child, the court should not hesitate to award the child’s custody to the father or even to any
other persons who are capable of providing the child the love and affection of a parent.

8. What constitutes “compelling reasons” must be clearly shown by positive and clear evidence of the
unfitness of the mother and its determination is left to the sound judgment of the courts. Among the
compelling reasons mentioned by the Supreme Court are: (a.) A mother who, after the separation, lived with
her brother-in-law with whom she now has a child, is not morally fit to have the custody of the child with her
estranged husband. The custody of the child cannot be awarded to the wife who might create an immoral
influence over the child’s moral and social outlook at her tender age ( Unson III vs. Hon Navarro and Araneta,
101 SCRA 183). (b.) When the illegitimate child has already been in the custody of the father while the
mother left to work in the United States, and the father has been appointed guardian of the child although it
was subsequently set aside by the court when the mother objected to his appointment, the court finds it to
the best interest of the child that she remained in the custody of her father until the guardianship proceeding
is terminated. This is to prevent havoc on her psychological make-up when she is transferred to the custody
of her mother and then back to her father in case the latter wins the guardianship case ( Tonog vs. Daguimol,
G.R. No. 122906, February 7, 2002). (c.) When the mother is already maintaining a common law relationship
with a married man, there is a compelling reason to deprive her of the custody of her child. The reason given
by the Supreme Court is that a common law relationship of the mother with a married man will not afford the
minor child that desirable atmosphere where she can grow and develop into an upright and moral-minded
person (Cervantes vs. Fajardo, G.R. No. 79955, January 27 1989).

9. However, the following instances do not constitute compelling reasons to deprive the mother of the
child’s custody: (a.) The fact that the father is financially well-off compared to the mother is no justification to
deprive the mother of custody, if the latter can nevertheless decently support her children (David vs. Court of
Appeals, 250 SCRA 82). (b.) Lesbianism per se of the wife is not enough to deprive her of the custody of her
children below seven years of age. It must be shown that the wife carried on her purported relationship with a
person of the same sex in the presence of their son or under circumstances not conducive to the child’s proper
moral development. In this case, there is no evidence that the son was exposed to the mother’s alleged sexual
proclivities or that his proper moral and psychological development suffered as a result. Sexual preference or
moral laxity alone does not prove parental neglect or incompetence. Not even the fact that a mother is a
200
prostitute or has been unfaithful to her husband would render her unfit to have custody of her minor child. To
deprive the wife of custody, the husband must clearly establish that her moral lapses have an adverse effect
on the welfare of the child or have distracted the offending spouse from exercising proper parental care
(Gualberto vs. Court of Appeals, et al., G.R. No. 156254, June 28, 2005).

10. The issue of custody of children shall be resolved in the court where the case for Declaration of
Nullity of Marriage is pending pursuant to Articles 49 and 50 of the Family Code. This means that the filing of a
separate action for custody is not necessary (Yu vs. Yu, G.R. No. 164915, March 10, 2006).

11. The law creating the Family Court (R.A. 8369) did not divest the Court of Appeals and the Supreme
Court of their jurisdiction over habeas corpus cases involving the custody of minors. Family Courts have
concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where
the custody of minors is at issue. The jurisdiction of the Court of Appeals over petitions for habeas corpus
involving minors was further affirmed by new Rule on Custody of Minors and Writ of Habeas Corpus in Relation
to Custody of Minors, known as A.M. No. 03-03-04-SC ( Madrinan vs. Madrinan, G.R. No. 159374, July 12,
2007). A complete text of R.A. No. 8369 and A.M. No. 03-03-04-SC are hereto attached as Appendix “F” and
Appendix “E”, respectively.

Art. 214. In case of death, absence or unsuitability of the

parents, substitute parental authority shall be exercised by the
surviving grandparent. In case several survive, the one designated by
the court, taking into account the same consideration mentioned in the
preceding article, shall exercise the authority. (355a)

Art. 215. No descendant shall be compelled, in a criminal case, to

testify against his parents and grandparents, except when such
testimony is indispensable in a crime against the descendant or by one
parent against the other. (315a)

NOTES

1. Substitute Parental Authority is given by law to grandparents in case of death, absence or

unsuitability of the child’s parents to exercise parental authority. If both the paternal and maternal
grandparents of the child are still living, the court will decide to whom the custody and parental authority over
the child be awarded taking into consideration the best interest and welfare of the child. The preference of the
paternal grandparents over the maternal grandparents under the previous law has now been removed. For the
application of Article 214, it is necessary that both parents must have already been dead or unable to exercise
parental authority. If only one parent is dead or absent, parental authority shall be exercised by the surviving
parent and not by the grandparents.

2. The petition for habeas corpus filed by the grandparents to recover custody of the child from
strangers, to whom the child was entrusted by her mother, is tenable. The RTC erred in dismissing the petition
after the child was produced in court on the ground that it has become moot and academic. The court should
not have dismissed the petition but to continue receiving evidence to determine who between the parties is
entitled to lawful custody of the child. Section 1, Rule 102, of the Rules of Court states that the writ of habeas
corpus shall extend to all cases where the rightful custody of any person is withheld from the person entitled
201
thereto. In cases involving minor, the purpose of the petition for habeas corpus is not limited to the production
of the child before the court. The main purpose of the petition for habeas corpus is to determine who has the
rightful custody over the child (Noel Bagtas vs. Hon. Ruth Santos, G.R. No. 166682, Nov. 27, 2009).

3. The Filial Privilege Rule refers to the right of the descendant not to be compelled to testify in a
criminal case against his parents and grandparents, except when such testimony is indispensable in a crime,
against the descendant or by one parent against the other. This rule does not include or extend to civil cases.
What is prohibited here is the act of compelling the child or descendant to testify against his parents in a
criminal case. The descendant, however, can voluntarily testify if he so desires.

Chapter 2

Substitute and Special Parental Authority

Art. 216. In default of parents or a judicially appointed guardian,

the following persons shall exercise substitute parental authority over
the child in the order indicated:

(1.) The surviving grandparent, as provided in Art. 214;

(2.) The oldest brother or sister, over twenty-one years of

age, unless unfit or disqualified; and

(3.) The child's actual custodian, over twenty-one years of

age, unless unfit or disqualified.

Whenever the appointment of a judicial guardian over the

property of the child becomes necessary, the same order of preference
shall be observed. (349a, 351a, 354a)

Art. 217. In case of foundlings, abandoned, neglected or abused

children and other children similarly situated, parental authority shall
be entrusted in summary judicial proceedings to heads of children's
homes, orphanages and similar institutions duly accredited by the
proper government agency. (314a)

NOTES

1. In case of default of parents or a judicially appointed guardian, the persons enumerated in Article
216 of the Family Code shall assume substitute parental authority in the same order of preference mentioned
in the said article. Thus, between the grandparents and the siblings of the child, the former is preferred. In
case the child has no more surviving grandparents or brothers and sisters who are fit and qualified to exercise
substitute parental authority over him, the child’s actual custodian will exercise parental authority on the child.

2. It must be noted, however, that the child’s actual custodian who is not in any way related by blood
to the child may be awarded by the court the custody and parental authority even as against the natural
202
parents of the said child. Thus, where it appears that the biological parents of the child are improper persons
to whom to entrust the care, custody and control of the child, the court may designate even a stranger to
exercise custody and parental authority over the child (See: Cabangbang vs. Chua, 26 SCRA 791).

3. A foundling is a child with no known parents. Abandoned, neglected or abused children are those
whose parents are known but were deserted, abandoned or not anymore provided the required parental care
and guidance by their said parents. These children shall be entrusted in summary judicial proceedings to
heads of children’s homes, orphanages and similar institutions duly accredited by the proper government
agency.

Art. 218. The school, its administrators and teachers, or the

individual, entity or institution engaged in child care shall have special
parental authority and responsibility over the minor child while under
their supervision, instruction or custody.

Authority and responsibility shall apply to all authorized

activities whether inside or outside the premises of the school, entity
or institution. (349a)

Art. 219. Those given the authority and responsibility under the
preceding Article shall be principally and solidarily liable for damages
caused by the acts or omissions of the unemancipated minor. The
parents, judicial guardians or the persons exercising substitute
parental authority over said minor shall be subsidiarily liable.

The respective liabilities of those referred to in the preceding

paragraph shall not apply if it is proved that they exercised the proper
diligence required under the particular circumstances.

All other cases not covered by this and the preceding articles
shall be governed by the provisions of the Civil Code on quasi-delicts.
(n)

NOTES

1. Once a minor student enters the premises of the school and placed under its supervision, instruction
or custody, he is immediately considered to be under the special parental authority of the school concerned. If
the child causes damage or injury to another inside the school premises, it is the school, its administrators and
teachers, or the individual, entity or institution engaged in child care who will be principally and solidarily liable
for the damage caused by the child. The liability of the parents for the act causing damage to another
committed by their minor children inside the school premises shall only be subsidiary. This means, that the
parents will only be liable if the school and its teachers cannot pay due to insolvency. The responsibility of the
school and the teacher extends beyond the campus, as it applies to all authorized activities inside or outside
the school premises.

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 2. If the act causing damage to another was committed inside the classroom, the teacher-in-charge
shall be principally liable. It is not necessary that at the time of the injury, the teacher be physically present
and in a position to prevent it. Custody does not connote immediate and actual physical control but refers
more to the influence exerted on the child and the discipline instilled in him as a result of such influence. If
done outside the classroom but within the campus, the school and its administrator shall be the one principally
liable. In either case, the teacher or the school and its administrators may escape liability if they can prove
that they exercised due diligence of a good father of a family in preventing the incident. In other words, if
there is no negligence on the part of the teacher and the school, no solidary liability will occur for the damage
caused by the minor student.

3. The rule before was that a teacher can be held liable for the tortuous act of his student or pupil only
when he is a teacher of a school of arts and trade (See: Exconde vs. Capuno, 101 Phil. 843; Mercado vs. Court
of Appeals, 108 Phil. 414; and Palisoc vs. Brilliantes, 41 SCRA, 548). The said rule has already been
abandoned by the case of Amadora vs. CA, et al., G.R. No. L- 47745, April 15, 1988, when the Supreme Court
ruled that there is no substantial distinction between the academic and the non-academic schools in so far as
torts committed by their students are concerned. The same vigilance is expected from the teacher over the
students under his control and supervision, whatever the nature of the school where he is teaching.

4. Where the school is academic rather than technical or vocational in nature, responsibility for the tort
committed by the student will attach to the teacher-in-charge of such student, following the first part of the
provision. However, if the establishment is a school of arts and trades, it is the head thereof, and only he, shall
be held liable as an exception to the general rule (Amadora vs. Court of Appeals, G.R. No. 47745, April 15,
1988).

5. Both Articles 218 and 219 refer to students who are still minors or unemancipated under the
supervision, instruction or custody of the school, administrators and teachers. It would seem that if the
student is no longer a minor, responsibility mentioned in these articles do not apply. However, Article 2180 of
the Civil Code provides that “teachers or heads of establishments of arts and trades shall be liable for damages
caused by their pupils and students or apprentices so long as they remain in their custody.” The foregoing
article did not state that the student must be a minor, thus, it is submitted that said article will apply even if
the student is no longer a minor. Liability, however, shall only attach upon a clear showing of negligence or
laxness in the enforcement of discipline. The school of arts and trade cannot be held liable for the damage
caused by its students as it is the teachers or heads of establishment who are primarily liable under the law.
But, while the school itself cannot be held liable under Article 2180, it can nevertheless be held liable under
the principle of respondeat superior considering that it is the employer of the teacher or head teacher
principally liable.

Chapter 3

Effect of Parental Authority

Upon the Persons of the Children

Art. 220. The parents and those exercising parental authority

shall have with respect to their unemancipated children on wards the
following rights and duties:
204
 (1.) To keep them in their company, to support, educate and
instruct them by right precept and good example, and to provide for
their upbringing in keeping with their means;

(2.) To give them love and affection, advice and counsel,

companionship and understanding;

(3.) To provide them with moral and spiritual guidance, inculcate

in them honesty, integrity, self-discipline, self-reliance, industry and
thrift, stimulate their interest in civic affairs, and inspire in them
compliance with the duties of citizenship;

(4.) To furnish them with good and wholesome educational

materials, supervise their activities, recreation and association with
others, protect them from bad company, and prevent them from
acquiring habits detrimental to their health, studies and morals;

(5.) To represent them in all matters affecting their interests;

(6.) To demand from them respect and obedience;

(7.) To impose discipline on them as may be required under the

circumstances; and

(8.) To perform such other duties as are imposed by law upon

parents and guardians. (316a)

NOTES

1. Parents are the natural guardians of their unemancipated children. In their absence, those
mentioned in Articles 214 and 216 will assume substitute parental authority over the child. Parental authority
exercised by the child’s parents may either be over the person or over the property of the child. Parental
authority over the person of the child includes the obligation to keep them in their company, support and
educate them, and provide them with good examples. Parents should give their children the required love and
affection, moral and spiritual guidance, preserve and maintain their physical and mental health, and furnish
them with good and wholesome educational materials. They shall represent them in all matters affecting their
interest. Likewise, they have the right to demand respect and obedience from them and impose discipline as
may be required under the circumstances.

2. Parents have the right to keep their children in their company. Refusal of the parents to give their
consent to the marriage of their minor child is no justification for the said child to abandon her parents and
live in the home of the judge. A petition for custody of minor filed by the parents is proper (Salvana vs. Gaela,
55 Phil. 680). In another case, the Supreme Court granted the petition for habeas corpus filed by the parents
against the religious institution, to whom they entrusted their child who was still 2 1/2years old, even if the
child testified that she was there of her own free will (Reyes vs. Alvarez, 8 Phil. 723).

3. A mother has the right to file a petition for change of name for and on behalf of her unemancipated
child as it is part of her duty to represent her children in all matters affecting their interest (Tse vs. Republic,

205
20 SCRA 1261). The offer of the father to redeem for and on behalf of their children their property is valid as it
is an act of representation of his children being their natural guardian (Wenceslao vs. Calimon, 46 Phil. 906).

4. Parents have the right to demand from their children respect and obedience and to impose discipline
on them as may be required under the circumstances. Part of the said right to discipline their children is to
inflict a reasonable measure of corporal punishment.

Art. 221. Parents and other persons exercising parental

authority shall be civilly liable for the injuries and damages caused by
the acts or omissions of their unemancipated children living in their
company and under their parental authority subject to the appropriate
defenses provided by law.

NOTES

1. Parents are principally and primarily liable for the acts or omissions of their unemancipated children
which resulted to the damage or prejudice of another. For this liability to attach, it is necessary that the
unemancipated child must still be living in their company and under their parental authority. This liability of the
parents is known as the vicarious liability or the doctrine of imputed negligence under the tort law. Thus, a
person is not only liable for torts committed by him, but also for torts committed by others with whom he has
a certain relationship and for whom he is responsible. The liability imposed upon parents under this article is
based upon the parental authority vested on them by the Civil Code. When a child living with its parents
commits a tortuous act, the parents are presumed negligent unless they can show that they exercised all the
diligence of a good father of a family to prevent the damage.

2. Adopting parents are not liable for the crime committed by their adopted child during the pendency
of the adoption proceeding in court. This is because when the child committed the act, he was still under the
custody and parental authority of his natural parents. Although the adoption decree retroacts to the filing of
the petition for adoption, the said rule cannot apply in so far as the vicarious liability of parents is concerned
because said liability can only attach if, at the time of the incident, the child were under their custody and
parental authority. Hence, the natural parents should still be held liable and not the adopting parents
notwithstanding the retroactivity of the decree (Tamargo vs. Court of Appeals, 209 SCRA 518).

3. In order to free themselves from liability for acts committed by their minor children, it is imperative
that the parents must show that they exercised the due diligence of a good father of a family. Thus, when a
minor shot and killed his girlfriend after the latter broke off their relationship, and the gun used by the minor
was that of his father, the presumption of negligence applies. Here, the father failed to prove that he
exercised due diligence of a good father of a family, thus, he is vicariously liable for the death of their son’s
girlfriend (Libi vs. Intermediate Appellate Court, 214 SCRA 17).

4. The reason behind the liability of parents for the acts or omissions of their minor children is their
failure to supervise them in order to prevent them from causing damage or injury to another.

Art. 222. The courts may appoint a guardian of the child's

property or a guardian ad litem when the best interests of the child so
requires. (317)

206
 NOTES

1. Although parents are the natural guardians of their minor children, the court may forfeit that right if
the welfare and best interest of the child dictates. Whatever right the parents have to act as the guardian of
their own child may be subordinated to the established rule that the welfare and best interest of the child are
the primary consideration. In deciding who will be appointed guardian of the minor, the court shall consider
the financial capability, business acumen, the physical condition, the character, conduct, and the present and
past history of the prospective appointee, as well as the probability of his being able to exercise the powers
and duties of guardian for the full period during which guardianship will be necessary (39 Am. Jur. 35, as cited
in Persons and Family Relations Law, 4th Ed., Sta. Maria, p.792).

Art. 223. The parents or, in their absence or incapacity, the

individual, entity or institution exercising parental authority, may
petition the proper court of the place where the child resides, for an
order providing for disciplinary measures over the child. The child shall
be entitled to the assistance of counsel, either of his choice or
appointed by the court, and a summary hearing shall be conducted
wherein the petitioner and the child shall be heard.

However, if in the same proceeding the court finds the petitioner at

fault, irrespective of the merits of the petition, or when the
circumstances so warrant, the court may also order the deprivation or
suspension of parental authority or adopt such other measures as it
may deem just and proper. (318a)

Art. 224. The measures referred to in the preceding article may

include the commitment of the child for not more than thirty days in
entities or institutions engaged in child care or in children's homes duly
accredited by the proper government agency.

The parent exercising parental authority shall not interfere with the
care of the child whenever committed but shall provide for his support.
Upon proper petition or at its own instance, the court may terminate
the commitment of the child whenever just and proper. (391a)

NOTES

1. Parents have the primary responsibility of disciplining their children. However, if the child is
incorrigible despite efforts of the parents, the latter may seek the assistance of the court in imposing such
discipline. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental
authority, may petition the proper court of the place where the child resides, for an order providing for
disciplinary measures over the child.

Chapter 4.

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 Effect of Parental Authority Upon

the Property of the Children

Art. 225. The father and the mother shall jointly exercise legal
guardianship over the property of the unemancipated common child
without the necessity of a court appointment. In case of disagreement,
the father's decision shall prevail, unless there is a judicial order to the
contrary.

Where the market value of the property or the annual income of the
child exceeds P50,000, the parent concerned shall be required to
furnish a bond in such amount as the court may determine, but not less
than ten per centum (10%) of the value of the property or annual
income, to guarantee the performance of the obligations prescribed for
general guardians.

A verified petition for approval of the bond shall be filed in the proper
court of the place where the child resides, or, if the child resides in a
foreign country, in the proper court of the place where the property or
any part thereof is situated.

The petition shall be docketed as a summary special proceeding in

which all incidents and issues regarding the performance of the
obligations referred to in the second paragraph of this Article shall be
heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except

when the child is under substitute parental authority, or the guardian
is a stranger, or a parent has remarried, in which case the ordinary
rules on guardianship shall apply. (320a)

Art. 226. The property of the unemancipated child earned or

acquired with his work or industry or by onerous or gratuitous title
shall belong to the child in ownership and shall be devoted exclusively
to the latter's support and education, unless the title or transfer
provides otherwise.

The right of the parents over the fruits and income of the child's
property shall be limited primarily to the child's support and
secondarily to the collective daily needs of the family. (321a, 323a)

Art. 227. If the parents entrust the management or

administration of any of their properties to an unemancipated child,
the net proceeds of such property shall belong to the owner. The child
shall be given a reasonable monthly allowance in an amount not less
than that which the owner would have paid if the administrator were a
208
 stranger, unless the owner, grants the entire proceeds to the child. In
any case, the proceeds thus give in whole or in part shall not be
charged to the child's legitime. (322a)

NOTES

1. The father and the mother of an unemancipated child are automatically considered as legal guardian
over the property of the said child without need of a court appointment. Parents are presumed to act only for
the best interest of the child and are capacitated to reasonably undertake activities for the benefit of their
child. In order to avoid a hiatus or vacuum in case of disagreement between the parents of the child, the law
provides that the decision of the father shall prevail. This is without prejudice, however, to the right of the
mother to go to court to question such decision.

2. In case the value of the property or the income of the child exceeds P50,000, the parents are
required to put up a bond in such amount as the court may determine, but not less than ten per centum
(10%) of the value of the property or the annual income of the said child. The purpose of the bond is to
guarantee the performance of the obligations prescribed for general guardians. For this purpose, a verified
petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if
the child is residing abroad, in the proper court of the place where the property or any part thereof is situated.

3. The petition for the approval of the bond filed by the parents shall be docketed as a summary
special proceeding in which all incidents and issues regarding the performance of the obligations referred to in
the second paragraph of Article 225 shall be heard and resolved. The proceeding shall be summary in nature
and all other incidents and issues related thereto shall be decided in an expeditious and inexpensive manner
without regard to technical rules. If the parents are the one acting as guardian over the property of their child,
the rules on guardianship are merely suppletory. However, if the child is under substitute parental authority, or
the guardian is a stranger, or a parent has remarried, the ordinary rules on guardianship shall apply. This is so
because those who are not parents of the child are not expected to have the same sense of devotion and
loyalty to the child not their own. Therefore, more protection and safeguards are needed.

4. The authority of the parents over the property of their children as legal guardian is limited only to
acts of administration or management. It does not include acts of encumbrance or disposition (Nario vs.
Philippine American Life Ins. Co., 20 SCRA 434). Thus, a waiver of right or an act of entering into a
compromise agreement involving the property of the child cannot be done by parents without the authority of
the court as the said acts are already deemed acts of alienation or of strict ownership (Ledesma Hermanos vs.
Castro, 55 Phil. 136; Visaya et al. vs. Suiguitan, et al., G.R. No. L-8300, November 18, 1955).

5. The property acquired by the child through his own effort or industry or by gratuitous title shall
belong to him in ownership. The said properties shall be devoted primarily for his own welfare, support and
education. However, if the said child’s property and income is more than enough for his own needs, the same
may be used for the collective daily needs of his family if the latter is truly in need of such amount. It must be
remembered that the child is also obligated to support his parents under the law. Thus, if the family is in dire
need of support and the minor child has property or income more than sufficient for his need, the excess may
be used for the collective daily needs of the family.

6. The parents who hired their unemancipated child to manage or administer their property must
compensate their child with a reasonable monthly allowance in an amount not less than that which the parents

209
will pay if the administrator were a stranger. The amount given to the child as allowance (compensation) for
services rendered shall not be charged to the child’s legitime.

Chapter 5

Suspension or Termination of Parental Authority

Art. 228. Parental authority terminates permanently:

(1.) Upon the death of the parents;

(2.) Upon the death of the child; or

(3.) Upon emancipation of the child. (327a)

Art. 229. Unless subsequently revived by a final judgment,

parental authority also terminates:

(1.) Upon adoption of the child;

(2.) Upon appointment of a general guardian;

(3.) Upon judicial declaration of abandonment of the child in a

case filed for the purpose;

(4.) Upon final judgment of a competent court divesting the

party concerned of parental authority; or

(5.) Upon judicial declaration of absence or incapacity of the

person exercising parental authority. (327a)

NOTES

1. Death extinguishes civil personality. The effect of death upon the rights and obligations of the
deceased is determined by law, by contract and by will (see Article 42 of the Civil Code of the Philippines).
Thus, if the parent or the child dies, parental authority is terminated permanently.

2. Emancipation of the child takes place upon reaching the age of majority which is now 18 years of
age under R.A. 6809. Emancipation terminates parental authority over the person and property of the child
and he or she is thereby qualified to do all acts of civil life save exceptions established by existing laws in
special cases.

3. Parental authority may also be terminated based on the grounds mentioned in Article 229, to wit:
upon adoption of the child, upon appointment of a general guardian, judicial declaration of abandonment of
the child, final judgment divesting a party of parental authority, and judicial declaration of absence or
incapacity of the person exercising parental authority. The termination of parental authority under Article 229,
unlike in Article 228, is not permanent. This is because parental authority may be subsequently revived if the
grounds stated in Article 229 cease to exist. It must also be noted that judicial termination of parental
authority shall only be allowed on the basis of the legal grounds provided for by law. The act of compelling
210
their unemancipated daughter to marry against her will or the refusal of the parents to give their consent to
the marriage of their child to her boyfriend are not considered as grounds to deprive the parents of their
parental authority (Salvana and Saliendra vs. Gaela, 55 Phil. 680).

Art. 230. Parental authority is suspended upon conviction of the

parent or the person exercising the same of a crime which carries with
it the penalty of civil interdiction. The authority is automatically
reinstated upon service of the penalty or upon pardon or amnesty of
the offender. (330a)

Art. 231. The court in an action filed for the purpose in a related
case may also suspend parental authority if the parent or the person
exercising the same:

(1.) Treats the child with excessive harshness or cruelty;

(2.) Gives the child corrupting orders, counsel or example;

(3.) Compels the child to beg; or

(4.) Subjects the child or allows him to be subjected to acts of

lasciviousness.

The grounds enumerated above are deemed to include cases which

have resulted from culpable negligence of the parent or the person
exercising parental authority.

If the degree of seriousness so warrants, or the welfare of the child so

demands, the court shall deprive the guilty party of parental authority
or adopt such other measures as may be proper under the
circumstances.

The suspension or deprivation may be revoked and the parental

authority revived in a case filed for the purpose or in the same
proceeding if the court finds that the cause therefor has ceased and
will not be repeated. (33a)

NOTES

1. Parental authority will be suspended if the parents or the guardian of the child is convicted of a
crime which carries with it the penalty of civil interdiction. Civil interdiction is an accessory penalty imposed on
an accused for certain crimes which normally involve moral turpitude. Once a person is under civil interdiction,
he is deprived during the time of his or her sentence of the rights of parental authority, or of guardianship
over the person or property of the ward, of marital authority, of the right to manage his property and of the
right to dispose of such property by any act or conveyance inter vivos (Art. 34 RPC). Since civil interdiction is
just an accessory penalty, the aforementioned rights suspended as a consequence thereof is automatically
restored once the sentence is served or upon pardon or amnesty of the offender. Thus, once the offender has
served his sentence, his right of parental authority which was suspended is automatically reinstated without
need of a court order.
211
 2. Article 231 of the Family Code also mentioned of other grounds for suspension of parental authority.
They are as follows: treating the child with excessive harshness or cruelty, giving the child corrupting orders,
counsel or example, compelling the child to beg, and subjecting the child or allowing him to be subjected to
acts of lasciviousness. The court can suspend the parental authority of parents under this article only if there is
a case specifically filed for that purpose or in a related case. Thus, as a general rule, the court cannot motu
proprio suspend parental authority of parents even if the latter has committed the grounds enumerated in
Article 231 if there is no action filed specifically for that purpose. By way of exception, the court may,
however, declare suspension of parental authority in a related case when warranted or may adopt such
measures as it may deem necessary.

Art. 232. If the person exercising parental authority has

subjected the child or allowed him to be subjected to sexual abuse,
such person shall be permanently deprived by the court of such
authority. (n)

Art. 233. The person exercising substitute parental authority

shall have the same authority over the person of the child as the
parents.

In no case shall the school administrator, teacher of individual

engaged in child care exercising special parental authority inflict
corporal punishment upon the child. (n)

NOTES

1. Sexual abuse committed by a parent on his/her child is one of the most serious act of moral
depravity and corruption. If the parents or the person exercising parental authority has subjected the child to
sexual abuse, he/she may be permanently deprived by the court of such authority. Unlike Article 229 where
the termination of parental authority is not permanent as it can be revived by the court, the ground of sexual
abuse in Article 232 causes permanent deprivation of parental authority. Thus, if the father is found to have
sexually abused his daughter, he will be permanently deprived of his parental authority over the said child.
The fact that he has already reformed and that there are genuine indication that he will not do the same act
again is immaterial. It will not restore his parental authority as the deprivation is permanent.

2. Those exercising special parental authority, such as the school administrator, teacher or individual
engaged in child care cannot inflict corporal punishment upon the child. Corporal punishment is the infliction
of physical disciplinary measures to a student. The Family Code as well as the Manual of Regulations of
Private Schools prohibits the teachers from inflicting corporal punishment on their students. It must be noted,
however, that only those exercising special parental authority are prohibited from inflicting corporal
punishment. Parents and those exercising substitute parental authority may inflict corporal punishment on
their children as it is part of their right and duty “to impose discipline on them as may be required under the
circumstances.” However, they must do it in a very reasonable manner and not treat the child with excessive
harshness or cruelty, otherwise, it would result the suspension of their parental authority under Article 231 of
the Family Code.

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 3. In order to protect the children against abuses of their parents, President Corazon C. Aquino
approved on June 17, 1992 Republic Act 7610, otherwise known as the “Special Protection of Children against
Child Abuse, Exploitation and Discrimination Act.” (Please see Appendix “K”).

TITLE X

EMANCIPATION AND AGE OF MAJORITY

Art. 234. Emancipation takes place by the attainment of

majority. Unless otherwise provided, majority commences at the age of
twenty-one years.

Emancipation also takes place:

(1.) By the marriage of the minor; or

(2.) By the recording in the Civil Register of an agreement in a

public instrument executed by the parent exercising parental authority
and the minor at least eighteen years of age. Such emancipation shall
be irrevocable. (Amended by R.A. 6809)

Art. 235. The provisions governing emancipation by recorded

agreement shall also apply to an orphan minor and the person
exercising parental authority but the agreement must be approved by
the court before it is recorded. (Repealed by R.A. 6809)

Art. 236. Emancipation for any cause shall terminate parental

authority over the person and property of the child who shall then be
qualified and responsible for all acts of civil life. (amended by R.A.
6809)

Art. 237. The annulment or declaration of nullity of the marriage

of a minor or of the recorded agreement mentioned in the foregoing.
Articles 234 and 235 shall revive the parental authority over the minor
but shall not affect acts and transactions that took place prior to the
recording of the final judgment in the Civil Register. (Repealed by R.A.
6809)

NOTES

1. This Title X, particularly Articles 234, 235 and 237, has already been amended or repealed by
Republic Act No. 6809. Under this amendatory law, emancipation is attained upon reaching eighteen (18)
years of age. Emancipation by marriage of a minor or emancipation by agreement under Article 235 has
already been repealed. Marriage is no longer a ground for emancipation as the age of majority and the
marriageable age are already the same, which is 18 years old. Since the age of majority has already been
lowered to 18 years old by R.A. 6809, the term “minors emancipated by marriage” is no longer applicable now.
213
 2. The amended Article 236 now reads as follows:

Article 236. Emancipation for any cases shall terminate

parental authority over the person or property of the child who
shall then be qualified and responsible for all acts of civil life,
save the exceptions established by existing laws in special cases.

Contracting marriage shall require parental consent until

the age of twenty one.

Nothing in this Code shall be construed to derogate from

the duty or responsibility of parents and guardians for children
and wards below twenty-one years of age mentioned in the
second and third paragraphs of Article 2180 of the Civil Code.
(As amended by R.A. No. 6809).

2. Even though the age of majority was already lowered from 21 to 18 years old, the provision in the
second paragraph of Article 236 of the Family Code, as amended, still requires that those between the age of
eighteen and twenty one must have to secure the required parental consent. It must be noted, however, that
parental consent is not one of the essential or formal requisites of marriage. Thus, its absence does not render
the marriage null and void. It is only a ground for annulment of marriage under Article 45 of the Family Code.

3. The last paragraph of Article 236 is intended to highlight the tort liability of the parents for the acts
or omissions committed by their children who are between the age of eighteen to twenty-one years old. Thus,
even if the child is already emancipated by marriage, his parents are still liable for damages for his acts if he is
still between the age of 18 and 21 and living in their company. The parents, however, may avoid liability if
they can prove that they exercised due diligence in the supervision of their children. The foregoing provision
was apparently based on the ruling of the Supreme Court in the case of Elcano vs. Hill, 77 SCRA 98.

TITLE XI

SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

Chapter 1

Prefatory Provisions

Art. 238. Until modified by the Supreme Court, the procedural

rules provided for in this Title shall apply as regards separation in fact
between husband and wife, abandonment by one of the other, and
incidents involving parental authority. (n)

Chapter 2

Separation in Fact

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 Art. 239. When a husband and wife are separated in fact, or one
has abandoned the other and one of them seeks judicial authorization
for a transaction where the consent of the other spouse is required by
law but such consent is withheld or cannot be obtained, a verified
petition may be filed in court alleging the foregoing facts.

The petition shall attach the proposed deed, if any, embodying the
transaction, and, if none, shall describe in detail the said transaction
and state the reason why the required consent thereto cannot be
secured. In any case, the final deed duly executed by the parties shall
be submitted to and approved by the court. (n)

Art. 240. Claims for damages by either spouse, except costs of

the proceedings, may be litigated only in a separate action. (n)

NOTES

1. The rules on Summary Judicial Proceedings govern actions involving separation in fact of the
spouses, abandonment, and incidents pertaining to parental authority. Under Articles 96 and 124 of the Family
Code, the husband and wife are the joint administrators of the properties belonging to the absolute community
or the conjugal partnership. As such, neither of them can sell, dispose of, or encumber the common property
without the consent of the other. In case the husband and wife are separated in fact, or one has abandoned
the other and the consent of the abandoning spouse is hard to secure as his whereabouts is unknown, the
present spouse may ask the authorization of the court for the sale or encumbrance of the common property.

2. The petition seeking judicial authorization to the sale must be verified and shall attach the proposed
deed, if any, embodying the transaction, and state the reason why the required consent thereto cannot be
secured. If the court grants the petition, it is considered as the consent of the non-consenting spouse or it
shall serve as the substitute thereof. After the contract of sale is perfected, the spouse selling the community
property must ask for the approval of the same from the court which gave the authority to sell, otherwise, the
contract is unenforceable.

3. Since a claim for damages usually entails a lengthy process, the law provides that such claim, except
costs of the proceedings, should be litigated only in a separate action. This means that a claim for damages
cannot be included in the petition for the approval of the sale even if it arises out of the unjustifiable refusal of
one spouse to give his/her consent to the sale. This is so because a case falling under the rules on summary
judicial proceedings must be decided expeditiously and the resolution of the claim for damages may only cause
unnecessary delay in the disposition of the case.

Art. 241. Jurisdiction over the petition shall, upon proof of notice
to the other spouse, be exercised by the proper court authorized to
hear family cases, if one exists, or in the regional trial court or its
equivalent sitting in the place where either of the spouses resides. (n)

Art. 242. Upon the filing of the petition, the court shall notify the
other spouse, whose consent to the transaction is required, of said

215
 petition, ordering said spouse to show cause why the petition should
not be granted, on or before the date set in said notice for the initial
conference. The notice shall be accompanied by a copy of the petition
and shall be served at the last known address of the spouse concerned.
(n)

Art. 243. A preliminary conference shall be conducted by the

judge personally without the parties being assisted by counsel. After
the initial conference, if the court deems it useful, the parties may be
assisted by counsel at the succeeding conferences and hearings. (n)

Art. 244. In case of non-appearance of the spouse whose

consent is sought, the court shall inquire into the reasons for his failure
to appear, and shall require such appearance, if possible. (n)

Art. 245. If, despite all efforts, the attendance of the non-
consenting spouse is not secured, the court may proceed ex parte and
render judgment as the facts and circumstances may warrant. In any
case, the judge shall endeavor to protect the interests of the non-
appearing spouse. (n)

Art. 246. If the petition is not resolved at the initial conference,

said petition shall be decided in a summary hearing on the basis of
affidavits, documentary evidence or oral testimonies at the sound
discretion of the court. If testimony is needed, the court shall specify
the witnesses to be heard and the subject-matter of their testimonies,
directing the parties to present said witnesses. (n)

Art. 247. The judgment of the court shall be immediately final

and executory. (n)

Art. 248. The petition for judicial authority to administer or

encumber specific separate property of the abandoning spouse and to
use the fruits or proceeds thereof for the support of the family shall
also be governed by these rules. (n)

NOTES

1. The petition for judicial authorization to sell or encumber common property must be filed in the
Family Court of the place where either of the spouses resides. If there is no Family Court in that place, then it
shall be filed in the Regional Trial Court of the place adverted to above. The court acquires jurisdiction over
the petition only upon proof of notice on the other party. The Family Court was created pursuant to Republic
Act No. 8369, otherwise known as the Family Courts Act of 1997.

2. Upon the filing of the petition, it is incumbent upon the court to notify the other spouse, whose
consent to the transaction is required, of said petition and the date of its initial hearing. The court will order
the said party to show cause why the said petition should not be granted. The notice shall be accompanied by
a copy of the petition and shall be served at the last known address of the spouse concerned. The principle of

216
due process demands that the respondent be given a chance to comment on the petition and show cause why
the petition should not be granted. If the respondent will manifest his or her agreement to the sale then the
petition becomes moot and academic.

3. Before conducting a hearing, the court shall first call the parties to a preliminary conference where
they are required to appear personally without their lawyers. During this conference, the judge will do its best
to convince the parties to settle the matter amicably. That is why lawyers are not allowed to attend in order to
prevent the proceedings to be too adversarial that may lead to protracted litigation. However, if the case
cannot be settled during the preliminary conference, the lawyers may already be allowed to assist the parties
in the next hearings. In case of non-appearance of the spouse whose consent is sought, the court shall inquire
into the reason for his/her non-appearance, and shall require such appearance, if possible. If, despite all
efforts, the non-consenting spouse still fails to appear, the court may proceed ex parte and render judgment
as the facts and circumstances may warrant.

4. If no settlement is arrived at during the preliminary conference, the petition shall be decided in a
summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion
of the court. Thereafter, the court will render judgment and said judgment is immediately final and executory.
This means that the decision of the court is no longer appealable. However, the aggrieved party may still file
an action for annulment of judgment on the ground that he/she was not accorded due process.

5. Article 248 has reference to Articles 100 and 127, paragraph 3, which provides that in case of
insufficiency of the absolute community or conjugal partnership property to answer all the obligations of the
partnership, the separate property of both spouses shall be solidarily liable for the support of the family. The
spouse present shall, upon petition in a summary proceedings, be given judicial authority to administer or
encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy
the latter’s share. The said petition to sell or encumber the absence spouse’s property shall be governed by
the rules in this title.

Chapter 3

Incidents Involving Parental Authority

Art. 249. Petitions filed under Articles 223, 225 and 235 of this
Code involving parental authority shall be verified. (n)

Art. 250. Such petitions shall be verified and filed in the proper
court of the place where the child resides. (n)

Art. 251. Upon the filing of the petition, the court shall notify the
parents or, in their absence or incapacity, the individuals, entities or
institutions exercising parental authority over the child. (n)

Art. 252. The rules in Chapter 2 hereof shall also govern

summary proceedings under this Chapter insofar as they are
applicable. (n)
217
 NOTES

1. Petitions asking the court to impose disciplinary measures over the child under Article 223 as well as
petitions for the approval of the bond required of parents if the value of the property of their child under their
guardianship exceeds P50,000.00 under Article 225 must be verified. Such petition shall be filed in the proper
court of the place where the child resides. Once the petition is filed, the court must notify the parents or, in
their absence or incapacity, the individual exercising parental authority over the child. These petitions must
also be governed by the rules on summary proceedings.

Chapter 4.

Other Matters Subject to Summary Proceedings

Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall

likewise govern summary proceedings filed under Articles 41, 51, 69,
73, 96, 124 and 127, insofar as they are applicable. (n)

NOTES

1. The Rules on Summary Proceedings under Title XI shall also apply to Petitions for Declaration on
Presumptive Death under Article 41 and Petition for the Delivery of the Presumptive Legitime of the child
under Article 51 in case the marriage of their parents is declared void or annulled. Likewise, it will apply to
Article 69 which deals with the judicial determination of the family domicile in case of disagreement of the
spouses; to Article 73 which is about the court’s determination of the validity of a spouse’s objection to the
exercise of the other spouse profession or calling; and to Articles 96 and 124 which refer to the petition of the
wife to annul the husband’s decision in the administration and enjoyment of the community property in case
the latter’s decision is in conflict with the wife. The appointment of one spouse as the sole administrator of the
common property shall be in a summary proceeding only when the inability of the other spouse to co-
administer the common property is due to his/her absence, abandonment, refusal to give consent without
cause, or the fact that the spouses are separated in fact. If the reason for the inability of one spouse to co-
manage or co-administer the common property is because said spouse is in a comatose stage, a victim of
stroke, cerebrovascular accident, without motor or mental faculties, the proper remedy is a judicial
guardianship proceeding under Rule 93 of the Rules of Court and not a summary judicial proceeding under
the Family Code (Uy vs. Court of Appeals, G.R. No. 109557, November 29, 2000).

TITLE XII

FINAL PROVISIONS

218
 Art. 254. Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1 of
Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39,
40, 41, and 42 of Presidential Decree No. 603, otherwise known as the
Child and Youth Welfare Code, as amended, and all laws, decrees,
executive orders, proclamations, rules and regulations, or parts
thereof, inconsistent herewith are hereby repealed.

Art. 255. If any provision of this Code is held invalid, all the
other provisions not affected thereby shall remain valid.

Art. 256. This Code shall have retroactive effect insofar as it does
not prejudice or impair vested or acquired rights in accordance with
the Civil Code or other laws.

Art. 257. This Code shall take effect one year after the
completion of its publication in a newspaper of general circulation, as
certified by the Executive Secretary, Office of the President.

Publication shall likewise be made in the Official Gazette.

NOTES

1. The Family Code expressly repeals the Law on Persons and Family Relations of the Civil Code of the
Philippines. Article 254 thereof repealed the following titles, to wit:

Title III - Law on Marriage

Title IV - Legal Separation
Title V - Rights and Obligations between Husband & Wife
Title VI - Property Relations between Husband and Wife
Title VII - The Family
Title VIII - Paternity and Filiation
Title IX - Support
Title XI - Parental Authority
Title XV - Emancipation and Age of Majority

Titles I, II, X, XII, XIII, and XIV of the Civil Code were not repealed by the new Family Code. As regards
Presidential Decree 603, otherwise known as the Child and Youth Welfare Code, only Articles 17, 18, 19, 27,
28, 29, 30, 31, 39, 40, 41, and 42 thereof are repealed expressly. Article 254 of the Family Code also provides
for an implied repeal of all laws, decrees, executive orders, proclamations, rules and regulations, or parts
thereof, inconsistent with the Family Code.

2. The invalidity of any provision of the Family Code does not invalidate the other provisions of the
Code not affected thereby. The lowering of the age of majority from 21 to 18 years old under R.A. 6809 has
rendered some provisions of the Family Code ineffective such as the provision on emancipation by marriage.
There is no more “minor emancipated by marriage” because the marriageable age now is also the same as the
age of majority. However, Article 14 which requires a party between the age of 18 and 21 to secure the

219
required parental consent before contracting marriage is still retained despite the lowering of the age of
majority.

3. The Family Code shall have retroactive effect in so far as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws. For example, an illegitimate child born before
the effectivity of the Family Code (August 3, 1988) has four (4) years from attaining the age of majority to
bring an action for recognition as an illegitimate child if his putative father dies during the child’s minority (See
Article 285 of the Civil Code). Under the Family Code, an illegitimate child can bring an action for recognition
only during the lifetime of his father unless he possesses the primary proofs of filiation under the first
paragraph of Article 172 thereof. So, an illegitimate child born before the effectivity of the Family Code but,
whose alleged father died after the effectivity thereof, has still a period of four years to bring an action for
recognition after reaching the age of majority. This is so because the law that will govern him is the Civil Code
of the Philippines and not the Family Code. The provision of Article 172 of the Family Code cannot be made to
apply to the child as it will prejudice or impair his vested or acquired rights under the Civil Code ( Bernabe vs.
Alejo, G.R. No. 140500, Jan. 21, 2002).

2. A petition for adoption filed by only one spouse pursuant to the provision of P.D. No. 603 which took
effect prior to the Family Code is valid. A decree issued pursuant thereto after the effectivity of the Family
Code cannot be nullified simply because the new Family Code requires that both spouses must file the petition.
Although Article 256 of the Family Code provides for its retroactivity, its application should not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws. When Mrs. Bobiles filed her
petition, she was exercising her explicit and unconditional right under the said law. Her right to file the petition
alone and to have the same proceeds to final adjudication, in accordance with the law in force at the time,
was already vested and cannot be prejudiced or impaired by the enactment of a new law (Republic vs. Court
of Appeals, 205 SCRA 356).

3. The completion of the publication of the Family Code in a newspaper of general circulation happened
on August 4, 1987 when its last publication appeared in the Manila Chronicle issue that day. The Executive
Secretary issued Memorandum Circular No. 85 on November 7, 1988 declaring that the New Family Code
officially took effect on August 3, 1988, which is one year after its last publication on August 4, 1987.

220
 CIVIL CODE PROVISIONS NOT
AFFECTED BY THE FAMILY CODE

Title X
FUNERALS

Article 305. The duty and the right to make arrangements for the
funeral of a relative shall be in accordance with the order established
for support, under Article 294. In case of descendants of the same
degree, or of brothers and sisters, the oldest shall be preferred. In case
of ascendants, the paternal shall have a better right.

Article 306. Every funeral shall be in keeping with the social

position of the deceased.

Article 307. The funeral shall be in accordance with the

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

Article 308. No human remains shall be retained, interred,

disposed of or exhumed without the consent of the persons mentioned
in Articles 294 and 305.

Article 309. Any person who allows disrespect of the dead, or

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

Article 310. The construction of a tombstone or mausoleum shall

be deemed a part of the funeral expenses, and shall be chargeable to
the conjugal partnership property, if the deceased is one of the
spouses.

NOTES
221
 1. The funeral arrangement of the deceased shall be decided by those persons mentioned in Article
199 of the Family Code in the order therein provided. This means that if the deceased is married, his/her
surviving spouse shall be the one to decide. In his/her absence or incapacity, the descendants in the nearest
degree; or the ascendants in the nearest degree; and in the absence of all persons adverted to above, the
brothers and sisters. In case the nearest relatives are the children of the deceased, or the brothers and sisters,
and they could not agree among themselves how the funeral arrangement be done, the decision of the eldest
among his children or the eldest among his brothers and sisters will prevail. If the nearest surviving relative of
the deceased are his grandparents both of the paternal and maternal side, the decision of the paternal
grandparents is preferred.

2. The wishes of the deceased on how his/her funeral be conducted should be followed or respected.
In the absence thereof, his/her religious beliefs or affiliation shall determine the funeral rites. In case of doubt,
the form of funeral shall be decided upon by the persons mentioned in Article 199 of the Family Code.
However, the funeral must always be in keeping with the social position or standing of the deceased.

3. Reverence to the dead is always a part of our Philippine culture and tradition. The persons
mentioned in Articles 294 and 305 of the Civil Code (now Article 199 of the Family Code) must always be
informed, consulted and their consent obtained, before the remains of their loved ones be retained, interred,
disposed or exhumed. Any person who shows disrespect to the dead, or wrongfully interferes with the funeral
shall be answerable for damages to the family of the deceased.

4. Expenses for the construction of a tombstone or mausoleum shall be charged to the conjugal
partnership. All other expenses for the funeral of a married person are chargeable also to the conjugal
partnership.

Title XII
CARE AND EDUCATION OF CHILDREN

Article 356. Every child:

(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or
guardian;
(4) Has a right to live in an atmosphere conducive to his
physical, moral and intellectual development;

Article 357. Every child shall:

(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and persons
holding substitute parental authority;
(3) Expert his utmost for his education and training;
(4) Cooperate with the family in all matters that make for the
good of the same.

222
 Article 358. Every parent and every person holding substitute
parental authority shall see to it that the rights of the child are
respected and his duties complied with, and shall particularly, by
precept and example, imbue the child with high – mindedness love of
country, veneration for the national heroes, fidelity to democracy as a
way of life, and attachment to the ideal of permanent world peace.

Article 359. The government promotes the full growth of the

faculties of every child. For this purpose, the government will
establish, whenever possible:
(1) Schools in every barrio, municipality and city where
optional religious instruction shall be taught as part of the curriculum
at the option of the parent or guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.

Article 360. The Council for the Protection of Children shall look
after the welfare of children in the municipality. It shall, among other
functions:
(1) Foster the education of every child in the municipality;
(2) Encourage the cultivation of the duties of parents;
(3) Protect and assist abandoned or mistreated children, and
orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening and maintenance of playgrounds;
(7) Coordinate the activities of organizations devoted to the
welfare of children, and secure their cooperation.

Article 361. Juvenile courts will be established, as far as

practicable, in every chartered city or large municipality.

Article 362. Whenever a child is found delinquent by any court,

the father, mother or guardian may in proper case be judicially
admonished.

Article 363. In all questions on the care, custody, education and

property of children, the latter’s welfare shall be paramount. No
mother shall be separated from her child under seven years of age,
unless the court finds compelling reasons for such measures.

NOTES
1. This title deals with the proper care and education of the minor children. It enumerates what every
child is entitled to under the law and what are their duties and responsibilities to their parents and ascendants.
223
On the other hand, parents must also see to it that their children’s rights are respected and that they are
properly guided on matters involving love of country, veneration for the national heroes and, fidelity to
democracy as a way of life.

2. The government is mandated by law to provide schools in every barrio, puericulture centers, and
Juvenile Courts, in order to promote the full growth of the faculties of every child. It must also establish the
Council for the Protection of Children who shall be responsible for looking after the welfare of children in the
municipality. The Juvenile Court shall also be established, as far as practicable, in every chartered city. The
said court may judicially admonish the parents of the child found to be delinquent, if warranted.

Title XIII
USE OF SURNAMES

Article 364. Legitimate and legitimated children shall principally

use the surname of the father.

Article 365. An adopted child shall bear the surname of the

adopter.
NOTES
1. Legitimate children are those children born out of a lawful wedlock. Under Article 174 of the Family
Code, legitimate children shall have the right to bear the surname of their father. Legitimated children are
those children conceived and born outside of wedlock of parents who, at the time of the conception of the
former, were not disqualified by any impediment to marry each other (Art. 177 F.C.). Considering that
legitimated children shall also enjoy the same rights as legitimate children under Article 179 thereof, then, it
follows that they may also bear the surname of their father.

2. Adopted children shall also bear the surname of their adopter. Article 5, Section 17 of Republic Act
8552, otherwise known as the Domestic Adoption Act of 1998, states that the adopted child shall be
considered the legitimate son/daughter of the adopter for all intents and purposes and as such is entitled to all
the rights and obligations of a legitimate child without discrimination of any kind. Towards this end, the
adoptee is entitled to love, guidance and support in keeping with the means of the family. Since an adopted
child is like a legitimate child, then, he has also the right to use the surname of his/her adopter.

Article 366. A natural child acknowledged by both parents shall

principally use the surname of the father. If recognized by only one of
the parents, a natural child shall employ the surname of the
recognizing parent.

224
 Article 367. Natural children by legal fiction shall principally
employ the surname of the father.

Article 368. Illegitimate children referred to in Article 287 shall

bear the surname of the mother.

NOTES
1. In the Civil Code of the Philippines, there are various types of illegitimate children and they are as
follows: acknowledged natural children, natural children by legal fiction and, spurious children which may
further classified be into manceres, adulterous, sacrilegious and, incestuous. In the new Family Code, there
are only two classes of children, and they are the legitimate and the illegitimate children.

2. The Civil Code of the Philippines allows an illegitimate child to use the surname of his father
provided he is acknowledged by the latter. In the new Family Code, however, an illegitimate child must use
the surname of his mother even if he is acknowledged by his father. This is because of the mandatory
provision of Article 176 of the Family Code. The Supreme Court has ruled that this is the rule regardless of
whether or not the father admits paternity (Mossesgeld vs. Court of Appeals, G.R. No. 111955, December 23,
1998; Republic vs. Abadilla, G.R. No. 133054, January 28, 1999). However, it is submitted that despite the
provision of Article 176 of the Family Code, an illegitimate child may still use the surname of his father if his
father and mother are living together with the child and his father duly recognized him as his own child. This is
because of Article 211 of the Family Code which provides that “the father and the mother shall jointly exercise
parental authority over the person of their common child.” The term “common child” was not qualified, thus, it
refers to both legitimate and illegitimate children.

3. The ruling in Mossesgeld and Abadilla cases has already been repealed by the passage on February
24, 2004 Republic Act No. 9255 otherwise known as an “Act Allowing Illegitimate Children to Use the
Surname of their Father, Amending for the Purpose Article 176 of E.O. No. 209” . The said law which was
sponsored by Sen. Ramon Revilla provides that illegitimate children may now use the surname of their father
provided they are recognized by their father through the record of birth appearing in the civil register, or when
an admission in a public document or in a private handwritten instrument is made by the father (See Appendix
“L”).

Article 369. Children conceived before the decree annulling a

voidable marriage shall principally use the surname of the father.
NOTES
1. A voidable marriage is valid until annulled. Thus, children conceived and born out of a voidable
marriage before it is annulled are considered to be born of a valid marriage. Therefore, these children are
considered legitimate. Children conceived and born after the annulment are illegitimate.

Article 370. A married woman may use:

(1) Her maiden first name and surname and add her
husband’s surname, or
(2) Her maiden first name and husband’s surname, or
(3) Her husband’s full name, but prefixing a word indicating
that she is his wife, such as “Mrs.”
225
NOTES
1. A married woman has actually four options as regards the use of surnames. She may continue to
use her maiden name and disregard the use of her husband’s surname. This is so because Article 370 of the
Civil Code used the word “may” which therefore means that the use of the husband’s surname is optional and
not mandatory. However, if she decides to use her husband’s surname she may do it in any of the manner
provided for in Article 370. Thus, President Arroyo may use the following: (1.) Gloria Macapagal-Arroyo; (2.)
Gloria M. Arroyo; or (3.) Mrs. Miguel Arroyo.

Article 371. In case of annulment of marriage, and the wife is

the guilty party, she shall resume her maiden name and surname. If
she is the innocent spouse, she may resume her maiden name and
surname. However, she may choose to continue employing her former
husband’s surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another
person.

Article 372. When legal separation has been granted, the wife
shall continue using her name and surname employed before the legal
separation.

Article 373. A widow may use the deceased husband’s surname

as though he were still living, in accordance with Article 370.
NOTES
1. When the marriage is annulled and the wife is the guilty spouse, it is a must that she shall resume
using her maiden name and surname. This means that she is no longer allowed to use the surname of her
former husband as a punishment for her wrongdoing. However, if she is the innocent spouse, she has the
option to resume the use of her maiden name and surname or continue the use of her husband’s surname.
The second option, however, cannot be exercised if: (1.) the court decrees otherwise or, (2.) she or the
former husband is married again to another person.

2. The use of the husband’s surname after the annulment of the marriage is permissive and not
obligatory. Since the use of the husband’s surname is optional, the wife may use back her maiden name and
surname after the marriage is annulled without need of judicial authorization. The filing of a petition to resume
the use of her maiden name is a superfluity and an unnecessary proceeding (Hatima Yasin vs. Shari’a District
Court, Third Shari’a Judicial District, G.R. No. 94986, February 23, 1993).

3. In legal separation, the marriage is not dissolved. The husband and the wife are separated only in
“bed and board.” Thus, the wife cannot use back her maiden name if she has already been using the surname
of her husband before the separation (Laperal vs. Republic, 6 SCRA 357).

4. If the husband dies during a valid marriage, the wife may continue using the surname of her
deceased husband as if he were still living. However, if only to emphasize that she is already a widow she
must insert the phrase “Vda. de” before the surname of the deceased husband. For example: Maria Aguanta
Vda. de Caballero.
226
 Article 374. In case of identity of names and surnames, the
younger person shall obliged to use such additional name or surname
as will avoid confusion.

Article 375. In case of identity of names and surnames between

ascendants and descendants, the word “Junior” can be used only by a
son. Grandsons and other direct male descendants shall either:
(1) Add a middle name or the mothers’ surname, or
(2) Add the Roman numerals II, III, and so on.
NOTES
1.If the father would like his son to carry his name and surname, the word “Junior” must be added to
the name of the of the son to distinguish him from his father. If the son who is a Junior would also want his
son to use the same name to honour the grandfather, the grandchild must add to his name a middle name or
the mother’s surname, or add the Roman numerals II, III, and so on. In case of identity of name and
surname of two persons who are not related by consanguinity, the younger one shall be obliged to use an
additional name to avoid confusion.

Article 376. No person can change his name or surname without

judicial authority.
NOTES
1.This Article 376 as well as Article 412 of the Civil Code has already been amended by Republic Act
No. 9048, otherwise known as “An Act Authorizing the City or Municipal Civil Registrar or the Consul General to
Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil
Register Without Need of Judicial Order.” This law was passed by the House of Representatives on February 7,
2001 and by the Senate on February 8, 2001. It was finally signed into law by Pres. Gloria Macapagal-Arroyo
on March 22, 2001. For a complete text of the law, please see Appendix “N”.

2. In the Civil Code, no entry in the civil register shall be changed or corrected, without judicial order
(see Article 412, Civil Code). No person can change his name or surname without judicial authority ( see
Article 376, Civil Code). Changing one’s name or surname is not a matter of right but a matter of privilege. So,
before a person can be allowed to change his/her name given in his/her certificate of birth as recorded in the
Civil Register, he or she must show proper or reasonable cause or any compelling reason which may justify
such change (Yu Chi Han vs. Republic, 15 SCRA 454). A change of name or nickname can be effected only
through the office of the local civil registrar reviewable by the office of the Civil Registrar General and finally by
the courts.

3. Under R.A. 9048, clerical or typographical errors in the birth certificate can already be changed or
corrected now without a need of judicial order. A petition for correction of clerical or typographical errors can
now be filed by any interested person in the Office of the Local Civil Registrar of the place where the record
being sought to be corrected is kept. In case the petitioner has already migrated to another place in the
country, he may file the petition in the local civil registrar of the place where he is presently residing and the
said registrar will communicate with the registrar of the place where the birth certificate of the petitioner is
recorded to facilitate the processing of the petition. In case the petitioner is already residing in a foreign
country, he may file the petition, in person, with the nearest Philippine Consulate. All petitions for the
227
correction of clerical or typographical errors and/or change of first name or nicknames may be availed for only
once ( R.A. 9048, Sec. 3).

4. No law allows the change of entry in the birth certificate as to sex on the ground of sex
reassignment; Under R.A. 9048, a correction in the civil registry involving the change of sex is not a mere
clerical or typographical error – it is a substantial change for which the applicable procedure is Rule 108 of the
Rules of Court. Also, the said law does not sanction a change of first name on the ground of sex reassignment
(Silverio vs. Republic, 537 SCRA 373).
5. In the case of Ma. Cristina T. Braza vs. City Civil Registrar of Himamaylan, Negros Occidental, G.R.
No. 181174, Dec. 4, 2009, where the wife filed an action to correct the birth certificate of the illegitimate child
of her husband, by changing the status from legitimated to illegitimate, and declaring the marriage of his
parents therein as null and void, the Court dismissed the action. It ruled that in a special proceeding for
correction of entry under Rule 108, the trial court has no jurisdiction to nullify marriages and rule on legitimacy
and filiation. Validity of marriages as well legitimacy and filiation can be questioned only in a direct action
reasonably filed by the proper party, and not through collateral attack such as the petition herein.

6. A change of name or nickname can now be effected without judicial authorization. The petition for
change of first name or nickname may be allowed in any of the following cases: (1.) The petitioners finds the
first name or nickname to be ridiculous, tainted with dishonour or extremely difficult to write or pronounce;
(2.) The new first name or nickname has been habitually and continuously used by the petitioner and he has
been publicly known by the first names or nicknames in the community; or (3.) The change will avoid
confusion ( Sec. 4, Ibid). It must be noted, however, that what is allowed by law to be changed without
judicial authorization is a change of first name or nickname only and not a change of surname. The latter is
not covered by R.A. 9048, thus, a change of surname still requires judicial order.

7. The petition shall be done in affidavit form, subscribed and sworn to before a person authorized to
administer oath. It must be supported by documentary exhibits, and in the case of change of first name or
nickname, the petition shall be published at least once a week for two (2) consecutive weeks in a newspaper
of general circulation. The petition shall be posted in conspicuous places for ten (10) days. After the
completion of the posting and publication requirement, the Local Civil Registrar must render a decision not
later than five (5) days thereof. A copy of the decision must be furnished to the Office of the Civil Registrar
General and the latter has ten (10) days to affirm or reverse the said decision. If, the Civil Registrar General
fail to reverse the decision of the Local Civil Registrar within the period of 10 days, the said decision is deemed
affirmed. In case of reversal, the petitioner may seek reconsideration of the decision of the Civil Registrar
General or file the appropriate petition in the proper court.

Article 377. Usurpation of a name and surname may be the

subject of an action for damages and other relief.

Article 378. The unauthorized or unlawful use of another

person’s surname gives a right of action to the latter.

Article 379. The employment of pen names or stage names is

permitted, provided it is done in good faith and there is no injury to
third persons. Pen names and stage names cannot be usurped.
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 Article 380. Except as provided in the preceding article, no
person shall use different names and surnames.

NOTES
1. An action for damages may be filed against anyone who usurps a name or surname of another. The
usurpation of name implies some injury to the interests of the owner of the name. It consists in the possibility
of confusion xxx between the owner and the usurper. In one case, the Supreme Court ruled that the second
wife cannot prevent the first wife of her husband from continuing to use the surname Tolentino which is the
surname of her husband. It said that there is no usurpation of surname as none of the elements of usurpation
exists and that neither is there a claim by the petitioner that the private respondent impersonated her. In fact,
it is public knowledge that petitioner Constancia Tolentino is the legal wife of Arturo Tolentino so that all
invitations for Senator and Mrs. Arturo Tolentino are sent to Constancia. Respondent Consuelo never
represented herself after the divorce as Mrs. Arturo Tolentino but simply Mrs. Consuelo David-Tolentino. She
has legitimate children with Arturo Tolentino who have every right to use the surname Tolentino and the
records do not show that she has remarried, thus, she also has all the right to continue using the family name
of her former husband as there exist no actual legal injury to the petitioner to warrant the grant of injunctive
relief prayed for in the petition (Tolentino vs. Court of Appeals, 162 SCRA 66).

2. A person may use a pen name or stage name provided it is done in good faith and there is no injury
to third person. Once used, it cannot be usurped by other persons, otherwise, the usurper may be enjoined
and held liable for damages. A person cannot use a different name and surname than that stated in his birth
certificate except the use of pen name or stage name mentioned in Article 379 hereof.

3. The use of a fictitious name or a different name belonging to another person in a single instance
without any sign or indication that the user intends to be known by this name in addition to his real name
from that day forth does not fall within the prohibition contained in C.A. No. 142, as amended by R.A. 6085.
Thus, when a client used the name of his lawyer’s messenger, with the latter’s consent, in signing the registry
book at the office of the Ombudsman in Davao City, he could not be guilty of violating the anti-alias law as
defined in C.A. 142, as amended, because the use of such name was made by him in an isolated transaction
only where he was not legally required to expose his real identity. For, even if he had identified himself
properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a
matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of
public records, hence, open to inspection and examination by anyone under the proper circumstances (Cesario
Ursua vs. C.A. et al., G.R. No. 112170, April 10, 1996, 70 SCAD 123).

Title XIV
ABSENCE

CHAPTER 1
PROVISIONAL MEASURES IN CASE OF ABSENCE

229
 Article 381. When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent to
administer his property, the judge, at the instance of an interested
party, a relative, or a friend, may appoint a person to represent him in
all that may be necessary.

This same rule shall be observed when under similar

circumstances the power conferred by the absentee has expired.
(181a)
Article 382. The appointment referred to in the preceding article
having been made, the judge shall take the necessary measures to
safeguard the rights and interests of the absentee and shall specify the
powers, obligations and remuneration of his representative, regulating
them, according to the circumstances, by the rules concerning
guardians. (182)

Article 383. In the appointment of a representatives, the spouse

present shall be preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a
minor, any competent person may be appointed by the court. (183a)

NOTES

1.Absence is that special legal status of one who is not in his domicile, his whereabouts being unknown
and it is uncertain whether he is dead or alive. Where the disappearance of the absentee is under normal
circumstances, and without apparent danger, there is ordinary absence; but, where the disappearance was
under extraordinary circumstances, or with apparent danger, it is called qualified absence. There are stages of
absence, to wit: (1.) Temporary or provisional absence; (2.) Normal or declared absence; and (3.) Definite
absence or presumptive death. The first stage (Temporary absence) occurs as soon as a person disappears
from his domicile and his whereabouts are unknown, leaving no administrator of his property. The second
stage is one judicially declared after two years since the last news was heard from him, or five years if he left
an administrator. The third stage known as definite absence or presumptive death takes place when, after the
period provided by law, a person is presumed dead.

2. In case of disappearance of a person, his whereabouts being unknown, and leaving no agent to
administer his properties, any interested party may petition the court for the appointment of a person to
represent him in all that may be necessary. The procedure that should be followed by the court in the
appointment of a representative of an absentee is governed by Rule 107 of the Rules of Court. In the
appointment of a representative, the spouse present shall be preferred except when they are legally
separated. In the absence of a spouse, or when the spouse is incapacitated, any competent person may be
appointed by the court. Once the appointment is made, the court shall take the necessary measures to
safeguard the rights and interests of the absentee. The guardian appointed cannot sell or encumber the
property of the absentee without the approval of the court, otherwise, the sale is rescissible (Art. 1368 of the
Civil Code).

230
 Chapter 2
Declaration of Absence

Article 384. Two years having elapsed without any news about
the absentee or since the receipt of the last news, and five years in
case the absentee has left a person in charge of the administration of
his property, his absence may be declared.

Article 385. The following may ask for the declaration of

absence:
(1.) The spouse present;
(2.) The heirs instituted in a will, who may present an authentic
copy of the same;
(3.) The relatives who may succeed by the law of intestacy;
(4.) Those who may have over the property of the absentee
some right subordinated to the condition of his death.

Article 386. The judicial declaration of absence shall not

take effect until six months after its publication in a newspaper
of general circulation.

NOTES
1. Declaration of absence of a person may be done by the court after the lapse of two years without
any news about the absentee or since the receipt of the last news about him. In case the absentee left an
administrator of his property, the declaration of absence may be done only after the lapse of five years. It
must be noted that the law made a distinction between an absentee who left no administrator of his property
from one who left an administrator of his property. In the former, the lapse of two years is sufficient after
which the court may already declare his absence. In the latter, the period of five years is required to lapse
before the court can declare his absence. The reason is because if a person left an administrator of his
property, there is an assurance that his properties are taken cared of. In case no administrator is left, there is
great danger that his properties might be wasted, thus, there is an urgent need to declare his absence and
appoint an administrator of his properties to save it from waste or deterioration.

2. Only those persons mentioned in Article 385 may ask for the declaration of absence. The judicial
declaration of absence will not take effect immediately. It must be published first in a newspaper of general
circulation and it is only after the lapse of six months from publication that the decision of the court declaring
absence will take effect. However, the absence of the absentee shall be counted not from the effectivity of the
judicial decree but from the date on which the last news of the absentee was received (Jones vs. Hortiguela,
64 Phil. 179).

3. Once the death of the absentee is established, the administration of his property by the duly
appointed representative shall cease because his estate will then be settled in accordance with law. The
moment there is death, there is transmission of rights, properties, and obligations to the heirs of the decedent
231
(Article 777 of the Civil Code). The opening of the estate of the deceased will then commence and the
representation of the absentee will be terminated.

Chapter 3
Administration of the Property
Of the Absentee

Article 387. An administrator of the absentee’s property shall be

appointed in accordance with Article 383.

Article 388. The wife who is appointed as administratrix of the

husband’s property cannot alienate or encumber the husband’s
property, or that of the conjugal partnership, without judicial
authority.

Article 389. The administration shall cease in any of the

following cases:
(1.) When the absentee appears personally or by means of an
agent;
(2.) When the death of the absentee is proved and his testate or
intestate heirs appear;
(3.) When a third person appears, showing by a proper
document that he has acquired the absentee’s property by purchase or
other title.
In these cases, the administrator shall cease in the performance
of his office, and the property shall be at the disposal of those who may
have a right thereto.

NOTES
1. The appointment of an administrator of the absentee’s property shall be done in accordance with
Article 383. The wife or any person appointed as administrator of the property of the absentee cannot alienate
or encumber it without judicial authorization. The administration shall cease in any of the circumstances
enumerated in Article 387 of the Civil Code.

Chapter 4
Presumption of Death

Article 390. After an absence of seven years, it being unknown

whether or not the absentee still lives, he shall be presumed dead for
all purposes, except for those of succession.

232
 The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age seventy-five years, an absence of five years
shall be sufficient in order that his succession may be opened.

Article 391. The following shall be presumed dead for all

purposes, including the division of the estate among the heirs:
(1.) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four years
since the loss of the vessel or aeroplane;
(2.) A person in the armed forces who has taken part in war, and
has been missing for four years;
(3.) A person who has been in danger of death under other
circumstances and his existence has not been known for four years.

Article 392. If the absentee appears, or without appearing his

existence is proved, he shall recover his property in the condition in
which it may be found, and the price of any property that may have
been alienated or the property acquired therewith; but he cannot claim
either fruits or rents.

NOTES
1.When a person disappears, his whereabouts being unknown, and there is no showing whether or not
he is still alive, the law presumes that he is already dead after the lapse of seven (7) years. If his
disappearance is under great danger of death as enumerated in Article 391, he will be presumed dead after a
lapse of four (4) years from the time disappears. The presumption of death after the lapse of seven years or
four years as the case maybe is created by law, thus, there is no need any more for a judicial pronouncement
to that effect. However, for purposes of opening up the estate of the absentee for succession, the absence of
ten (10) years is required. The law provides that the absent spouse shall be presumed dead for “all purposes”
except succession. Thus, it is only after an absence of ten (10) years that his succession will be opened. In
that case, his heirs can now commence an intestate proceeding, for purposes of dividing or distributing his
estate, for by then, the right of inheritance shall have already become choate. If the absentee is already more
than seventy five years (75) of age, an absence of five years shall be sufficient in order that his succession
may be opened.

2. For purposes other than marriage, judicial declaration of presumptive death is no longer necessary.
This is so because the already presumes the death of the absentee after the lapse of a certain period. The
presumption is merely prima facie or disputable and could be rebutted by evidence that the absentee is still
alive. It is therefore clear that the judicial declaration of presumptive death, because a person has been
missing for seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the
stage of finality. If a judicial decree declaring a person presumptively dead because he had not been heard of
in seven years cannot become final and executory, even after the lapse of the reglementary period to appeal,
then a petition for such declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.
The Court should not waste its valuable time and be made to perform a superfluous and meaningless act (In
re Szatraw, 81 Phil. 461).
233
 3. Under Article 41 of the Family Code, judicial declaration of presumptive death is absolutely necessary
for purposes of remarriage. Four years of absence is enough for an absentee to be judicially presumed dead.
However, if the disappearance is under dangerous circumstances as specified in Article 391 of the Civil Code,
the period is shortened to two years. For other purposes, there is no need of a judicial declaration but the
required period for one to be presumed dead is seven years or four years except for the opening of succession
which is ten years.

4. The extra ordinary circumstances where there is greater danger of death and where the period is
shortened to four years (now two years) under Article 391 of the Civil Code applies only if the vessel or the
aeroplane is lost during voyage. The said Article cannot apply to a person who accidentally fell into the sea
while on board a vessel and consequently drowned. This is so vessel was not lost during sea voyage (Caltex
vs. Villanueva, 2 SCRA 897). The presumption of death of persons aboard a vessel lost during a sea voyage,
applies only to cases wherein the vessel cannot be located nor accounted for, or when its fate is unknown or
there is no trace of its whereabouts, inasmuch as the word “lost” used in said Article must be given the same
meaning as “missing”. Also, if the airplane crashed and the body of a passenger is not found, Article 391 will
not apply as the airplane is not missing.

Chapter 5
Effect of Absence Upon the Contingent
Rights of the Absentee

Article 393. Whoever claims a right pertaining to a person whose

existence is not recognized must prove that he was living at the time
his existence was necessary in order to acquire said right.

NOTES
1. For the heirs of an absentee to inherit from a testator who bequeathed a property in favor of the
absentee, it is necessary for them to prove that the absentee is still alive at the time of the testator’s death.
This is so because no transmission of right will pass on from the testator to the absentee if the latter
predecease the testator. Consequently, the heirs of the absentee will get nothing as no right is transmitted to
their predecessor.

Article 394. Without prejudice to the provisions of the preceding

article, upon the opening of a succession to which an absentee is
called, his share shall accrue to his co-heirs, unless he has heirs,
assigns, or a representative. They shall all, as the case maybe, make an
inventory of the property.

Article 395. The provisions of the preceding article are

understood to be without prejudice to the action or petition for
inheritance or other rights which are vested in the absentee, his
representatives or successors in interest. This right shall not be
234
 extinguished save by lapse of time fixed for prescription. In the record
that is made in the Registry of the real estate which accrues to the co-
heirs, the circumstance of its being subject to the provisions of this
article shall be stated.

NOTES
1. When the parents of an absentee dies, his share in the estate of his parents will accrue in favor of
his co-heirs (ie. brothers and sisters). This is known in law as accretion. However, if the absentee has his own
heirs, assigns, or representative, his share will go to them.

2.In case the property supposed to be inherited by the absentee accrues to the co-heirs because he
has no known heirs at the time of the death of their parents, the title of the property passed on to them must
contain an annotation stating that, within the prescriptive period provided for by law, the property can be
subject to the claim of any person having an interest in the said property especially the absentee, or his or her
representative or successors. Thus, if the said absentee reappears, or if turns out that the absentee has an
heir, the property may be recovered by them from the co-heirs. However, the action or petition to recover the
property must be filed within the prescriptive period of ten years. But, if the co-heirs have already sold the
property to a buyer in good faith and for value, the heirs of the absentee could no longer recover it from the
buyer because of the protection afforded by the Torrens System to a buyer in good faith.

Article 396. Those who may have entered upon the inheritance
shall appropriate the fruits received in good faith so long as the
absentee does not appear, or while his representatives or successors
do not bring the proper actions.

NOTES
1.The co-heirs, or their successors, who have entered upon the inheritance , shall have the right to
use, enjoy, and appropriate the fruits received in good faith from the supposed share of the absentee so long
as the absentee does not appear, or while his representatives or successors in interest do not bring the proper
action. Once the absentee appears or his or her representative or successor filed a claim in court, those who
entered upon the inheritance could not anymore make such appropriation.

Title XVI
CIVIL REGISTRY

Article 407. Acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register.

Article 408. The following shall be entered in the civil register:

(1.) Births; (2.) marriages; (3.) deaths; (4.) legal separations;

(5.) annulment of marriages; (6.) judgment declaring
235
 marriages void from the beginning; (7.) legitimations; (8.)
adoptions; (9.) acknowledgments of natural children; (10.)
naturalization; (11.) loss; or (12.) recovery of citizenship;
(13.) civil interdiction; (14.) judicial determination of
filiation; (15.) voluntary emancipation of a minor; and (16.)
changes of name.

Article 409. In cases of legal separation, adoption, naturalization

and other judicial orders mentioned in the preceding article, it shall be
the duty of the clerk of court which issued the decree to ascertain
whether the same has been registered, and if this has not been done,
to send a copy of the said decree to the civil registry of the city or
municipality where the court is functioning.

Article 410. The books making up the civil register and all
documents relating thereto shall be considered public documents and
shall be prima facie evidence of the facts therein contained.

NOTES
1. The Office of the Local Civil Registrar in every city or municipality shall be the custodian of all
records pertaining to the civil status of a person. Among the records that must be kept on file in the office of
the local civil registrar are the records of: birth, marriage, death, legal separation, annulment of marriage,
declaration of nullity of a void marriage, legitimation, adoption, acknowledgment of natural children,
naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation, voluntary
emancipation of a minor, and change of name.

2. The books making up the civil register and all documents relating thereto are considered public
documents. As such, they are open to the public during office hours and must be kept in a suitable safe.
However, birth records, including birth certificates, are strictly confidential and the contents therein cannot be
revealed except when obtained by those persons interested therein, such as the person himself or anyone
authorized by him or her; his parents, spouse, direct descendants or guardian; court or proper public official
whenever absolutely necessary in administrative, judicial or other official proceedings to determine the identity
of a person; or in case of death, the nearest of kin (P.D. 603, Article 7). No document entrusted to the Local
Civil Registrar for his care shall be removed from his office, except by order of a court, in which case proper
receipt must be taken. He may issue certified true copies of any document in his custody, upon payment of
the proper fees required by law.

3. In legal separation, adoption, naturalization and other judicial orders registrable with the office of
the local civil registrar, it is the duty of the clerk of court which issued the decree to ascertain whether the
same has been registered, and if this has not been done, to immediately send a copy of the decree to the civil
registry for registration.
4. The records in the civil registry are considered prima facie evidence of the facts therein contained. It
means that they are sufficient proofs, unless rebutted by contrary evidence, as to the facts it seeks to
substantiate. It is not conclusive proof, however, that is why the law allows the correction or cancellation of
entries in the records of the civil registrar.
236
 5. Anyone affected by the existence of a birth certificate may ask for its cancellation. Thus, in Babiera
vs. Catotal, the Supreme Court said that a legitimate child is a proper party in the proceeding for the
cancelation of the birth certificate of a child who claims to be the child of her parents. Petitioner Presentacion
Catotal, who claims to be the only surviving child of the Spouses Eugenio and Hermogena Babiera, filed the
action to cancel the birth certificate of the child of their housemaid as it was made to appear therein that the
said child named Teofista Babiera is the child of the spouses Eugenio and Hermogena Babiera. Petitioner
contends that the birth certificate of the child was forged as her parents did not give birth to the said child.
The Supreme Court rejected the contention of the housemaid’s child that the birth certificate must be
considered authentic considering that it enjoys the presumption of regularity in its issuance. The Court said
that while it is true that an official document such as a birth certificate enjoys the presumption of regularity,
the specific facts attendant to the case at bar, as well as the totality of evidence presented during trial,
sufficiently negate such presumption. First, there were already irregularities in the birth certificate itself. It was
not signed by the local civil registrar and the signature of the alleged mother was clearly forged. Second, there
is no proof of the pregnancy of Hermogena, the alleged mother of the child, who at the time of birth of the
child was already 54 years old. Lastly, the deposition of Hermogena herself before she died where she
categorically denied being the mother of the child Teofista. Relying merely on the assumption of validity of the
Birth Certificate, petitioner has presented no other evidence other than the said document to show that she
really is the child of Hermogena, thus, her claim is denied (Babiera vs. Catotal, G.R. No. 138493, June 15,
2000).

Article 411. Every civil registrar shall be civilly responsible for

any unauthorized alteration made in any civil register, to any person
suffering damage thereby, However, the civil registrar may exempt
himself from such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful alteration.

Article 412. No entry in a civil register shall be changed or

corrected, without judicial order.

Article 413. All other matters pertaining to the registration of

civil status shall be governed by special laws.

NOTES
1. As a general rule, no entry in a civil register shall be changed or corrected, without judicial order.
This rule found in Article 412, however, has already been amended by Republic Act No. 9048. Under the said
Act, correction of clerical or typographical errors and change of first name or nickname in the birth certificate
can now be done by the local civil registrar concerned or by the consul general, without need of judicial order.
Clerical or typographical error refers to a mistake committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled
name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and
can be corrected or changed only by reference to other existing record or records: Provided, however, That no
correction must involve the change of nationality, age, status or sex of the petitioner (Sec. 2, par. 3 of R.A.
9048).

237
 2. Correction of entries in the birth certificate can now be done either administratively or judicially.
Administrative correction can be done by the local civil registrar only on clerical or typographical errors and
change of first name or nickname. When the error is already substantial, the correction must be done
judicially. The proceeding must be judicial and adversarial if the changes involve substantial or controversial
matters such as those which involve a person’s civil status, nationality or citizenship, and filiation of the
offsprings of parents. These substantial and controversial matters should be threshed out in an appropriate
court proceeding where the State and the parties are notified and represented to the end that the case may
be decided with due process of law and on the basis of the facts proven (Chug Siu vs. Local Civil Registrar, 20
SCRA 877).

3. The procedural rules for the cancellation or correction of entries in the civil registry is found in Rule
108 of the Rules of Court. It has been said before that Rule 108 deals with summary judicial proceedings
referred to in Article 412 of the Civil Code in connection with the changes of clerical or innocuous errors. The
former doctrine laid down by the Supreme Court in the case of Ty Kong Tin vs. Republic, 94 Phil. 321, provides
that only “clerical” or “harmless” errors can be corrected by petition under Article 412 of the Civil Code. This
was the rule despite the promulgation in 1964 of Rule 108 of the Rules of Court, which prescribes publication
of notice of hearing and the impleading of the local civil registrar and all interested parties. Under the said Ty
Kong Tin doctrine, entries affecting civil status and citizenship could not be corrected by petition under Article
412 and Rule 108. However, the Ty Kong Tin doctrine was later on abandoned by the case of Republic vs.
Valencia in 1986.

4. In the Valencia case, the Supreme Court affirmed the trial court’s decision granting petitioner’s
prayer that her civil status and citizenship as appearing in two of her children’s birth certificates, as well as the
civil status and citizenship of her children, be corrected. The Court said, “It is undoubtedly true that if the
subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but
one involving nationality and citizenship, which is undisputably substantial and controversial, affirmative relief
cannot be granted in a proceeding summary in nature.” However, it is also true that a right in law may be
enforced and a wrong may be remedied as long as the appropriate remedy is used. That remedy refers to a
proceeding that is adversarial in nature. It was held that if the procedural requirements under Rule 108 have
been followed, the proceedings can no longer be described as summary. Corrections involving the nationality
or citizenship of a person were substantial and could not be affected except in adversarial proceedings. This
Court adheres to the principle that even substantial errors in a civil registry may be corrected and the true
facts established provided the parties aggrieved by the error avail themselves of the ‘appropriate proceedings.’
Thus, in said case the Court requires that a petition for a substantial correction or change of entries in the civil
registry should have as respondents the civil registrar, as well as all other persons who have or claim to have
any interest that would be affected thereby. It further mandates that a full hearing, not merely summary
proceeding, be conducted. Thus, although the entries sought to be corrected in the Valencia case (ie: from
Chinese to Filipino and from Legitimate to Illegitimate) are substantial, the Supreme allowed the case to be
filed under Article 142 of the Civil Code which normally deals only with clerical or innocuous errors correctible
by a summary proceedings in court because the requirements in Rule 108 of the Rules of Court are fulfilled.
(Republic vs. Leonor Valencia, G.R. No. L-32181, March 5, 1986, 141 SCRA 462).

5. A petition filed by the mother seeking to change an entry in her child Victoria Miclat’s birth
certificate, alleging that she had never been married to her daughter’s father, and that she wanted to have her
civil status appearing on the certificate changed from “married” to “single”, cannot be granted because the
238
proper parties had not been impleaded. In the said case, only the Office of the Solicitor General through the
Office of the Provincial Fiscal was notified. Since the change is substantial and the proceeding will be
adversarial, all other indispensable parties should have been made respondents. They include not only the
declared father of the child but the child as well, together with the paternal grandparents, if any, as their
hereditary rights would be adversely affected thereby. All other persons who may be affected by the change
should be notified or represented. The truth is best ascertained under an adversary system of justice (Labayo-
Rowe vs. Republic, 168 SCRA 294).

6. A petition to cancel the middle name “Carulasan” in the birth certificate of petitioner’s child named
Julian Lin Carulasan Wang is not tenable. The contention that it would be for the best interest of the child to
drop his middle name as this would help him adjust more easily to and integrate himself into Singaporean
society is not a valid reason to change his record of birth. The State has an interest in the names borne by
individuals and entities for purposes of identification, and that a change of name is a privilege and not a right,
so that before a person can be authorized to change his name given him either in his certificate of birth or civil
registry, he must show proper or reasonable cause, or any compelling reason which may justify such change.
Otherwise, the request should be denied (In Re Petition for Change of Name Julian Wang vs. Cebu City Civil
Registrar, G.R. No. 159966, March 30, 2005).

APPENDICES

239
APPENDICES

A - The Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages
(A.M. No. 02-11-10-SC)

B - The Rule on Legal Separation (A.M. No. 02-11-11-SC)

C - Rule on Provisional Orders (A.M. No. 02-11-12-SC)

D - Rule on Guardianship of Minors (A.M. No. 03-02-05-SC)

E - Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors
(A.M. No. 03-04-04-SC)

F - An Act Establishing Family Courts, Granting them Exclusive Original Jurisdiction Over Child and
Family Cases, Amending Batas Pambansa 129, as Amended, otherwise known as Act of 1980, Appropriating
Funds Therefor and for Other Purposes. (R.A. 8369)

G - An Act Establishing the Rules and Policies on the Domestic Adoption of Filipino Children and for
Other Purposes. (R.A. 8552)
240
H - An Act Requiring Certification of the Department of Social Welfare and Development (DSWD) to
Declare a “Child Legally Available for Adoption” as a Prerequisite for Adoption Proceedings, Amending for
this Purpose Certain Provisions of R.A. 8552, R.A. 8043, P.D. 603, and for Other Purposes. (R.A. 9523)

I - An Act Establishing the Rules to Govern Inter - Country Adoption of Filipino Children and for Other
Purposes. (R.A. 8043)

J - Rule on Adoption (A.M. No. 02-06-02-SC)

K - An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation
and Discrimination, Providing Penalties for its Violation, and for Other Purposes. (R.A. 7610)

L - An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for the Purpose
Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines. (R.A. 9255)

M - An Act Providing for the Legitimation of Children Born to Parents Below the Marrying Age,
Amending for the Purpose the Family Code of the Philippines, As Amended. (R.A. 9858)

N - An Act Authorizing the City or Municipal Civil Registrar or the Consul General to Correct a Clerical or
Typographical Error in an Entry and/or Change in the First Name or Nickname in the Civil Register
Without Need of a Judicial Order, Amending for this Purpose Articles 376 and 412 of the Civil Code of
the Philippines. (R.A. 9048)

APPENDIX “A”

241
RULE ON
DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES
AND
ANNULMENT OF VOIDABLE MARRIAGES
(A.M. 02-11-10-SC)

Section 1. Scope.– This Rule shall govern petitions for declaration of absolute nullity of void marriages
and annulment of voidable marriages under the Family Code of the Philippines.
The Rules of Court shall apply suppletorily.
Sec. 2. Petition for declaration of absolute nullity of void marriages.–
(a) Who may file.–A petition for declaration of absolute nullity of void marriage may be filed solely by
the husband or the wife. (n)
(b) Where to file.–The petition shall be filed in the Family Court.
(c) Imprescriptibility of action or defense.–An action or defense for the declaration of absolute nullity
of void marriage shall not prescribe.
(d) What to allege.–A petition under Article 36 of the Family Code shall specifically allege the complete
facts showing that either or both parties were psychologically incapacitated from complying with the essential
marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes
manifest only after its celebration.
The complete facts should allege the physical manifestations, if any, as are indicative of psychological
incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.
Sec. 3. Petition for annulment of voidable marriages.–
(a) Who may file.–The following persons may file a petition for annulment of voidable marriage based
on any of the grounds under Article 45 of the Family Code and within the period herein indicated:
(1) The contracting party whose parent, or guardian, or person exercising substitute parental
authority did not give his or her consent, within five years after attaining the age of twenty-one
unless, after attaining the age of twenty-one, such party freely cohabitated with the other as
husband or wife; or the parent, guardian or person having legal charge of the contracting party, at
any time before such party has reached the age of twenty-one;
(2) The sane spouse who had no knowledge of the other’s insanity; or by any relative, guardian, or
person having legal charge of the insane, at any time before the death of either party; or by the
insane spouse during a lucid interval or after regaining sanity, provided that the petitioner, after
coming to reason, has not freely cohabited with the other as husband or wife;
(3) The injured party whose consent was obtained by fraud, within five years after the discovery of
the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not
freely cohabited with the other as husband or wife;
(4) The injured party whose consent was obtained by force, intimidation, or undue influence, within
five years from the time the force, intimidation, or undue influence disappeared or ceased,
provided that the force, intimidation, or undue influence having disappeared or ceased, said party
has not thereafter freely cohabited with the other as husband or wife;

242
 (5) The injured party where the other spouse is physically incapable of consummating the marriage
with the other and such incapacity continues and appears to be incurable, within five years after
the celebration of marriage; and
(6) The injured party where the other party was afflicted with a sexually-transmissible disease found
to be serious and appears to be incurable, within five years after the celebration of marriage.
(b) Where to file.–The petition shall be filed in the Family Court.
Sec. 4. Venue.–The petition shall be filed in the Family Court of the province or city where the petitioner
or the respondent has been residing for at least six months prior to the date of filing, or in the case of a non-
resident respondent, where he may be found in the Philippines, at the election of the petitioner.
Sec. 5. Contents and form of petition.–(1) The petition shall allege the complete facts constituting the
cause of action.
(2) It shall state the names and ages of the common children of the parties and specify the regime
governing their property relations, as well as the properties involved.
If there is no adequate provision in a written agreement between the parties, the petitioner may apply for
a provisional order for spousal support, custody and support of common children, visitation rights,
administration of community or conjugal property, and other matters similarly requiring urgent action.
(3) It must be verified and accompanied by a certification against forum shopping. The verification and
certification must be signed personally by the petitioner. No petition may be filed solely by counsel or through
an attorney-in-fact.
If the petitioner is in a foreign country, the verification and certification against forum shopping shall be
authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or
vice-consul or consular agent in said country.
(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the
Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing
and submit to the court proof of such service within the same period.
Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the
petition.
Sec. 6. Summons.–The service of summons shall be governed by Rule 14 of the Rules of Court and by
the following rules:
(1) Where the respondent cannot be located at his given address or his whereabouts are unknown and
cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by
publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and
in such places as the court may order. In addition, a copy of the summons shall be served on the respondent
at his last known address by registered mail or any other means the court may deem sufficient.
(2) The summons to be published shall be contained in an order of the court with the following data: (a)
title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the
reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of
publication.
Sec. 7. Motion to dismiss.–No motion to dismiss the petition shall be allowed except on the ground of
lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that
might warrant a dismissal of the case may be raised as an affirmative defense in an answer.
Sec. 8. Answer.–(1) The respondent shall file his answer within fifteen days from service of summons, or
within thirty days from the last issue of publication in case of service of summons by publication. The answer
must be verified by the respondent himself and not by counsel or attorney-in-fact.
243
 (2) If the respondent fails to file an answer, the court shall not declare him or her in default.
(3) Where no answer is filed or if the answer does not tender an issue, the court shall order the public
prosecutor to investigate whether collusion exists between the parties.
Sec. 9. Investigation report of public prosecutor.–(1) Within one month after receipt of the court order
mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating
whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if
any.
(2) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The
parties shall file their respective comments on the finding of collusion within ten days from receipt of a copy of
the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall
dismiss the petition.
(3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It
shall be the duty of the public prosecutor to appear for the State at the pre-trial.
Sec. 10. Social worker.–The court may require a social worker to conduct a case study and submit the
corresponding report at least three days before the pre-trial. The court may also require a case study at any
stage of the case whenever necessary.
Sec. 11. Pre-trial.–
(1) Pre-trial mandatory.–A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-
trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor
that no collusion exists between the parties.
(2) Notice of pre-trial.–(a) The notice of pre-trial shall contain:
(1) the date of pre-trial conference; and
(2) an order directing the parties to file and serve their respective pre-trial briefs in such manner as
shall ensure the receipt thereof by the adverse party at least three days before the date of pre-
trial.
(b) The notice shall be served separately on the parties and their respective counsels as well as on the
public prosecutor. It shall be their duty to appear personally at the pre-trial.
(c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of
summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to
respondent at his last known address.
Sec. 12. Contents of pre-trial brief.–The pre-trial brief shall contain the following:
(a) A statement of the willingness of the parties to enter into agreements as may be allowed by law,
indicating the desired terms thereof;
(b) A concise statement of their respective claims together with the applicable laws and authorities;
(c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;
(d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the
nature and purpose thereof;
(e) The number and names of the witnesses and their respective affidavits; and
(f) Such other matters as the court may require.
Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as
failure to appear at the pre-trial under the succeeding paragraphs.
244
 Sec. 13. Effect of failure to appear at the pre-trial.–(a) If the petitioner fails to appear personally,
the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves
a valid excuse for the non-appearance of the petitioner.
(b) If the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial
and require the public prosecutor to investigate the non-appearance of the respondent and submit within
fifteen days thereafter a report to the court stating whether his non-appearance is due to any collusion
between the parties. If there is no collusion, the court shall require the public prosecutor to intervene for the
State during the trial on the merits to prevent suppression or fabrication of evidence.
Sec. 14. Pre-trial conference.–At the pre-trial conference, the court:
(a) May refer the issues to a mediator who shall assist the parties in reaching an agreement on matters
not prohibited by law.
The mediator shall render a report within one month from referral which, for good reasons, the court may
extend for a period not exceeding one month.
(b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial
conference, on which occasion it shall consider the advisability of receiving expert testimony and such other
matters as may aid in the prompt disposition of the petition.
Sec. 15. Pre-trial order.–(a) The proceedings in the pre-trial shall be recorded. Upon termination of the
pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed on the pleadings, and, except as to the ground
of declaration of nullity or annulment, the agreements or admissions made by the parties on any of the
matters considered, including any provisional order that may be necessary or agreed upon by the parties.
(b) Should the action proceed to trial, the order shall contain a recital of the following:
(1) Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this
Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have been marked and will be presented;
(4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and
(5) Schedule of the presentation of evidence.
(c) The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and
take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or
suppression of evidence during the trial on the merits.
(d) The parties shall not be allowed to raise issues or present witnesses and evidence other than those
stated in the pre-trial order. The order shall control the trial of the case, unless modified by the court to
prevent manifest injustice.
(e) The parties shall have five days from receipt of the pre-trial order to propose corrections or
modifications.
Sec. 16. Prohibited compromise.–The court shall not allow compromise on prohibited matters, such as
the following:
(a) The civil status of persons;
(b) The validity of a marriage or of a legal separation;
(c) Any ground for legal separation;

245
 (d) Future support;
(e) The jurisdiction of courts; and
(f) Future legitime.
Sec. 17. Trial.–(1) The presiding judge shall personally conduct the trial of the case. No delegation of the
reception of evidence to a commissioner shall be allowed except as to matters involving property relations of
the spouses.
(2) The grounds for declaration of absolute nullity or annulment of marriage must be proved. No
judgment on the pleadings, summary judgment, or confession of judgment shall be allowed.
(3) The court may order the exclusion from the courtroom of all persons, including members of the press,
who do not have a direct interest in the case. Such an order may be made if the court determines on the
record that requiring a party to testify in open court would not enhance the ascertainment of truth; would
cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or
timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals.
(4) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be
made by any person other than a party or counsel of a party, except by order of the court.
Sec. 18. Memoranda.–The court may require the parties and the public prosecutor, in consultation with
the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen
days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own
memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted
without leave of court. After the lapse of the period herein provided, the case will be considered submitted for
decision, with or without the memoranda.
Sec. 19. Decision.–(1) If the court renders a decision granting the petition, it shall declare therein that
the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with
Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution
of Properties.
(2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of
the decision personally or by registered mail. If the respondent summoned by publication failed to appear in
the action, the dispositive part of the decision shall be published once in a newspaper of general circulation.
(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of
judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties,
the public prosecutor, or the Solicitor General.
(4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties
have no properties.
If the parties have properties, the court shall observe the procedure prescribed in Section 21 of this Rule.
The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and in
the Civil Registry where the Family Court granting the petition for declaration of absolute nullity or annulment
of marriage is located.
Sec. 20. Appeal.–
(1) Pre-condition.–No appeal from the decision shall be allowed unless the appellant has filed a motion
for reconsideration or new trial within fifteen days from notice of judgment.
(2) Notice of appeal.–An aggrieved party or the Solicitor General may appeal from the decision by filing
a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The
appellant shall serve a copy of the notice of appeal on the adverse parties.
246
 Sec. 21. Liquidation, partition and distribution, custody, support of common children and
delivery of their presumptive legitimes.–Upon entry of the judgment granting the petition, or, in case of
appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on
motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the
spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant
to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial
proceedings.
Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage.–(a)
The court shall issue the Decree after:
(1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment
of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the
place where the Family Court is located;
(2) Registration of the approved partition and distribution of the properties of the spouses, in the
proper Register of Deeds where the real properties are located; and
(3) The delivery of the children’s presumptive legitimes in cash, property, or sound securities.
(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the
Decree the approved deed of partition.
Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local
Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected.
Sec. 23. Registration and publication of the decree; decree as best evidence.–(a) The prevailing
party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the
Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office.
He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the
Decree.
(b) In case service of summons was made by publication, the parties shall cause the publication of the
Decree once in a newspaper of general circulation.
(c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or
annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and
respondent as well as the properties or presumptive legitimes delivered to their common children.
Sec. 24. Effect of death of a party; duty of the Family Court or Appellate Court.–(a) In case a
party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed
and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts.
(b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding
upon the parties and their successors in interest in the settlement of the estate in the regular courts.
Sec. 25. Effectivity.–This Rule shall take effect on March 15, 2003 following its publication in a newspaper
of general circulation not later than March 7, 2003.

APPENDIX “B”

RULE ON
LEGAL SEPARATION
(A.M. No. 02-11-11-SC)
247
 SECTION 1. Scope.–This Rule shall govern petitions for legal separation under the Family Code of the
Philippines.

The Rules of Court shall apply suppletorily.

Sec. 2. Petition.–

(a) Who may and when to file.–(1) A petition for legal separation may be filed only by the husband
or the wife, as the case may be, within five years from the time of the occurrence of any of the following
causes:

(a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a
common child, or a child of the petitioner;

(b) Physical violence or moral pressure to compel the petitioner to change religious or
political affiliation;

(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of
the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

(d) Final judgment sentencing the respondent to imprisonment of more than six years, even
if pardoned;

(e) (e) Drug addiction or habitual alcoholism of the respondent;

(f) (f) Lesbianism or homosexuality of the respondent;

(g) (g) Contracting by the respondent of a subsequent bigamous marriage, whether in

or outside the Philippines;

(h) (h) Sexual infidelity or perversion of the respondent;

248
 (i) (i) Attempt on the life of petitioner by the respondent; or

(j) (j) Abandonment of petitioner by respondent without justifiable cause for more
than one year.

(b) Contents and form.–The petition for legal separation shall:

(1) Allege the complete facts constituting the cause of action.

(2) (2) State the names and ages of the common children of the parties, specify the
regime governing their property relations, the properties involved, and creditors, if any.

If there is no adequate provision in a written agreement between the parties, the

petitioner may apply for a provisional order for spousal support, custody and support of
common children, visitation rights, administration of community or conjugal property, and
other similar matters requiring urgent action.

(3) Be verified and accompanied by a certification against forum shopping. The verification
and certification must be personally signed by the petitioner. No petition may be filed
solely by counsel or through an attorney-in-fact.

If the petitioner is in a foreign country, the verification and certification against forum
shopping shall be authenticated by the duly authorized officer of the Philippine embassy
or legation, consul general, consul or vice-consul or consular agent in said country.

(4) Be filed in six copies. The petitioner shall, within five days from such filing, furnish a copy
of the petition to the City or Provincial Prosecutor and the creditors, if any, and submit to
the court proof of such service within the same period.

Failure to comply with the preceding requirements may be a ground for immediate
dismissal of the petition.

(c) Venue.–The petition shall be filed in the Family Court of the province or city where the petitioner
or the respondent has been residing for at least six months prior to the date of filing or in the case of a non-
resident respondent, where he may be found in the Philippines, at the election of the petitioner.
249
 Sec. 3. Summons.–The service of summons shall be governed by Rule 14 of the Rules of Court and
by the following rules:

(a) Where the respondent cannot be located at his given address or his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service of summons may, by
leave of court, be effected upon him by publication once a week for two consecutive
weeks in a newspaper of general circulation in the Philippines and in such place as the
court may order.

In addition, a copy of the summons shall be served on respondent at his last known
address by registered mail or by any other means the court may deem sufficient.

(b) The summons to be published shall be contained in an order of the court with the
following data: (1) title of the case; (2) docket number; (3) nature of the petition; (4)
principal grounds of the petition and the reliefs prayed for; and (5) a directive for
respondent to answer within thirty days from the last issue of publication.

Sec. 4. Motion to Dismiss.–No motion to dismiss the petition shall be allowed except on the ground
of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground
that might warrant a dismissal of the case may be raised as an affirmative defense in an answer.

Sec. 5. Answer .– (a) The respondent shall file his answer within fifteen days from receipt of
summons, or within thirty days from the last issue of publication in case of service of summons by publication.
The answer must be verified by respondent himself and not by counsel or attorney-in-fact.

(b) If the respondent fails to file an answer, the court shall not declare him in default.

(c) Where no answer is filed, or if the answer does not tender an issue, the court shall order the public
prosecutor to investigate whether collusion exists between the parties. .

Sec. 6. Investigation Report of Public Prosecutor.–(a) Within one month after receipt of the
court order mentioned in paragraph (c) of the preceding section, the public prosecutor shall submit a report to
the court on whether the parties are in collusion and serve copies on the parties and their respective counsels,
if any.

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 (b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The
parties shall file their respective comments on the finding of collusion within ten days from receipt of copy of
the report. The court shall set the report for hearing and if convinced that parties are in collusion, it shall
dismiss the petition.

(c) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It
shall be the duty of the public prosecutor to appear for the State at the pre-trial.

Sec. 7. Social Worker.–The court may require a social worker to conduct a case study and to submit
the corresponding report at least three days before the pre-trial. The court may also require a case study at
any stage of the case whenever necessary.

Sec. 8. Pre-trial.–

(a) Pre-trial mandatory.–A pre-trial is mandatory. On motion or motu proprio, the court shall set
the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public
prosecutor that no collusion exists between the parties on a date not earlier than six months from date of the
filing of the petition.

(b) Notice of Pre-trial.–(1) The notice of pre-trial shall contain:

(a) the date of pre-trial conference; and

(b) an order directing the parties to file and serve their respective pre-trial briefs in such
manner as shall ensure the receipt thereof by the adverse party at least three days before
the date of pre-trial.

(2) The notice shall be served separately on the parties and their respective counsels as well as on the
public prosecutor. It shall be their duty to appear personally at the pre-trial.

(3) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of
summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to
respondent at his last known address.

Sec. 9. Contents of pre-trial brief.–The pre-trial brief shall contain the following:

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 (1) A statement of the willingness of the parties to enter into agreements as may be allowed
by law, indicating the desired terms thereof;

(2) A concise statement of their respective claims together with the applicable laws and
authorities;

(3) Admitted facts and proposed stipulations of facts, as well as the disputed factual and
legal issues;

(4) All the evidence to be presented, including expert opinion, if any, briefly stating or
describing the nature and purpose thereof;

(5) The number and names of the witnesses and their respective affidavits; and

(6) Such other matters as the court may require.

Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as
failure to appear at the pre-trial under the succeeding section.

Sec. 10. Effect of failure to appear at the pre-trial.–(1) If the petitioner fails to appear
personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court
and proves a valid excuse for the non-appearance of the petitioner.

(2) If the respondent filed his answer but fails to appear, the court shall proceed with the pre-trial and
require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen
days a report to the court stating whether his non-appearance is due to any collusion between the parties. If
there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on
the merits to prevent suppression or fabrication of evidence.

Sec. 11. Pre-trial conference.–At the pre-trial conference, the court may refer the issues to a
mediator who shall assist the parties in reaching an agreement on matters not prohibited by law.

The mediator shall render a report within one month from referral which, for good reasons, the court
may extend for a period not exceeding one month.

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 In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial
conference, on which occasion it shall consider the advisability of receiving expert testimony and such other
matters as may aid in the prompt disposition of the petition.

Sec. 12. Pre-trial order.–(a) The proceedings in the pre-trial shall be recorded. Upon termination of
the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed on the pleadings, and, except as to the ground
of legal separation, the agreements or admissions made by the parties on any of the matters considered,
including any provisional order that may be necessary or agreed upon by the parties.

(b) Should the action proceed to trial, the order shall contain a recital of the following:

(1) Facts undisputed, admitted, and those which need not be proved subject to Section 13 of
this Rule;

(2) Factual and legal issues to be litigated;

(3) Evidence, including objects and documents, that have been marked and will be
presented;

(4) Names of witnesses who will be presented and their testimonies in the form of affidavits;
and

(5) Schedule of the presentation of evidence.

The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and
take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or
suppression of evidence during the trial on the merits.

(c) The parties shall not be allowed to raise issues or present witnesses and evidence other than those
stated in the pre-trial order. The order shall control the trial of the case unless modified by the court to
prevent manifest injustice.

(d) The parties shall have five days from receipt of the pre-trial order to propose corrections or
modifications.

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 Sec. 13. Prohibited compromise.–The court shall not allow compromise on prohibited matters,
such as the following:

(1) The civil status of persons;

(2) The validity of a marriage or of a legal separation;

(3) Any ground for legal separation;

(4) Future support;

(5) The jurisdiction of courts; and

(6) Future legitime.

Sec. 14. Trial.–(a) The presiding judge shall personally conduct the trial of the case. No delegation of
the reception of evidence to a commissioner shall be allowed except as to matters involving property relations
of the spouses.

(b) The grounds for legal separation must be proved. No judgment on the pleadings, summary
judgment, or confession of judgment shall be allowed.

(c) The court may order the exclusion from the courtroom of all persons, including members of the
press, who do not have a direct interest in the case. Such an order may be made if the court determines on
the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would
cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or
timidity; would violate the party’s right to privacy; or would be offensive to decency or public morals.

(d) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof
be made by any person other than a party or counsel of a party, except by order of the court.

Sec. 15. Memoranda.–The court may require the parties and the public prosecutor to file their
respective memoranda in support of their claims within fifteen days from the date the trial is terminated. No
other pleadings or papers may be submitted without leave of court. After the lapse of the period herein
provided, the case will be considered submitted for decision, with or without the memoranda.
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 Sec. 16. Decision.–(a) The court shall deny the petition on any of the following grounds:

(1) The aggrieved party has condoned the offense or act complained of or has consented to
the commission of the offense or act complained of;

(2) There is connivance in the commission of the offense or act constituting the ground for
legal separation;

(3) Both parties have given ground for legal separation;

(4) There is collusion between the parties to obtain the decree of legal separation; or

(5) The action is barred by prescription.

(b) If the court renders a decision granting the petition, it shall declare therein that the Decree of
Legal Separation shall be issued by the court only after full compliance with liquidation under the Family Code.

However, in the absence of any property of the parties, the court shall forthwith issue a Decree of
Legal Separation which shall be registered in the Civil Registry where the marriage was recorded and in the
Civil Registry where the Family Court granting the legal separation is located.

(c) The decision shall likewise declare that:

(1) The spouses are entitled to live separately from each other but the marriage bond is not
severed;

(2) The obligation of mutual support between the spouses ceases; and

(3) The offending spouse is disqualified from inheriting from the innocent spouse by intestate
succession, and provisions in favor of the offending spouse made in the will of the
innocent spouse are revoked by operation of law.

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 (d) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of
the decision personally or by registered mail. If the respondent summoned by publication failed to appear in
the action, the dispositive part of the decision shall also be published once in a newspaper of general
circulation.

Sec. 17. Appeal.–

(a) Pre-condition.–No appeal from the decision shall be allowed unless the appellant has filed a
motion for reconsideration or new trial within fifteen days from notice of judgment.

(b) Notice of Appeal.–An aggrieved party or the Solicitor General may appeal from the decision by
filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial.
The appellant shall serve a copy of the notice of appeal upon the adverse parties.

Sec. 18. Liquidation, partition and distribution, custody, and support of minor children.–
Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment
of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the
liquidation, partition and distribution of the properties of the spouses, including custody and support of
common children, under the Family Code unless such matters had been adjudicated in previous judicial
proceedings.

Sec. 19. Issuance of Decree of Legal Separation.–(a) The court shall issue the Decree of Legal
Separation after:

(1) registration of the entry of judgment granting the petition for legal separation in the Civil
Registry where the marriage was celebrated and in the Civil Registry where the Family
Court is located; and

(2) registration of the approved partition and distribution of the properties of the spouses, in
the proper Register of Deeds where the real properties are located.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to
the Decree the approved deed of partition.

Sec. 20. Registration and publication of the Decree of Legal Separation; decree as best
evidence. -

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 (a) Registration of decree.–The prevailing party shall cause the registration of the Decree in the
Civil Registry where the marriage was registered, in the Civil Registry of the place where the Family Court is
situated, and in the National Census and Statistics Office. He shall report to the court compliance with this
requirement within thirty days from receipt of the copy of the Decree.

(b) Publication of decree.–In case service of summons was made by publication, the parties shall
cause the publication of the Decree once in a newspaper of general circulation.

(c) Best evidence.–The registered Decree shall be the best evidence to prove the legal separation of
the parties and shall serve as notice to third persons concerning the properties of petitioner and respondent.

Sec. 21. Effect of death of a party; duty of the Family Court or Appellate Court.–(a) In case
a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case
closed and terminated without prejudice to the settlement of estate in proper proceedings in the regular
courts.

(b) If the party dies after the entry of judgment, the same shall be binding upon the parties and their
successors in interest in the settlement of the estate in the regular courts.

Sec. 22. Petition for revocation of donations.–(a) Within five (5) years from the date the
decision granting the petition for legal separation has become final, the innocent spouse may file a petition
under oath in the same proceeding for legal separation to revoke the donations in favor of the offending
spouse.

(b) The revocation of the donations shall be recorded in the Register of Deeds in the places where the
properties are located.

(c) Alienations, liens, and encumbrances registered in good faith before the recording of the petition
for revocation in the registries of property shall be respected.

(d) After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the
designation of the offending spouse as a beneficiary in any insurance policy even if such designation be
stipulated as irrevocable. The revocation or change shall take effect upon written notification thereof to the
insurer.

Sec. 23. Decree of Reconciliation.–(a) If the spouses had reconciled, a joint manifestation under
oath, duly signed by the spouses, may be filed in the same proceeding for legal separation.

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 (b) If the reconciliation occurred while the proceeding for legal separation is pending, the court shall
immediately issue an order terminating the proceeding.

(c) If the reconciliation occurred after the rendition of the judgment granting the petition for legal
separation but before the issuance of the Decree, the spouses shall express in their manifestation whether or
not they agree to revive the former regime of their property relations or choose a new regime.

The court shall immediately issue a Decree of Reconciliation declaring that the legal separation
proceeding is set aside and specifying the regime of property relations under which the spouses shall be
covered.

(d) If the spouses reconciled after the issuance of the Decree, the court, upon proper motion, shall
issue a decree of reconciliation declaring therein that the Decree is set aside but the separation of property
and any forfeiture of the share of the guilty spouse already effected subsists, unless the spouses have agreed
to revive their former regime of property relations or adopt a new regime.

(e) In case of paragraphs (b), (c), and (d), if the reconciled spouses choose to adopt a regime of
property relations different from that which they had prior to the filing of the petition for legal separation, the
spouses shall comply with Section 24 hereof.

(f) The decree of reconciliation shall be recorded in the Civil Registries where the marriage and the
Decree had been registered.

Sec. 24. Revival of property regime or adoption of another.–(a) In case of reconciliation under
Section 23, paragraph (c) above, the parties shall file a verified motion for revival of regime of property
relations or the adoption of another regime of property relations in the same proceeding for legal separation
attaching to said motion their agreement for the approval of the court.

(b) The agreement which shall be verified shall specify the following:

(1) The properties to be contributed to the restored or new regime;

(2) Those to be retained as separate properties of each spouse; and

(3) The names of all their known creditors, their addresses, and the amounts owing to each.
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 (c) The creditors shall be furnished with copies of the motion and the agreement.

(d) The court shall require the spouses to cause the publication of their verified motion for two
consecutive weeks in a newspaper of general circulation.

(e) After due hearing, and the court decides to grant the motion, it shall issue an order directing the
parties to record the order in the proper registries of property within thirty days from receipt of a copy of the
order and submit proof of compliance within the same period.

Sec. 25. Effectivity.–This Rule shall take effect on March 15, 2003 following its publication in a
newspaper of general circulation not later than March 7, 2003.

APPENDIX “C”

RULE ON PROVISIONAL ORDERS

(A.M. No. 02-11-12-SC)

SECTION 1. When Issued.–Upon receipt of a verified petition for declaration of absolute nullity of
void marriage or for annulment of voidable marriage, or for legal separation, and at any time during the
proceeding, the court, motu proprio or upon application under oath of any of the parties, guardian or
designated custodian, may issue provisional orders and protection orders with or without a hearing. These
orders may be enforced immediately, with or without a bond, and for such period and under such terms and
conditions as the court may deem necessary.
Sec. 2. Spousal Support.–In determining support for the spouses, the court may be guided by the
following rules:
(a) In the absence of adequate provisions in a written agreement between the spouses, the spouses
may be supported from the properties of the absolute community or the conjugal partnership.
(b) The court may award support to either spouse in such amount and for such period of time as the
court may deem just and reasonable based on their standard of living during the marriage.
(c) The court may likewise consider the following factors: (1) whether the spouse seeking support is
the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside
employment; (2) the time necessary to acquire sufficient education and training to enable the spouse seeking
support to find appropriate employment, and that spouse’s future earning capacity; (3) the duration of the
marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities
in the labor market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to the
marriage, including services rendered in home-making, child care, education, and career building of the other
spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the spouses; (9)
the ability of the supporting spouse to give support, taking into account that spouse’s earning capacity, earned

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and unearned income, assets, and standard of living; and (10) any other factor the court may deem just and
equitable.
(d) The Family Court may direct the deduction of the provisional support from the salary of the
spouse.
Sec. 3. Child Support.–The common children of the spouses shall be supported from the properties
of the absolute community or the conjugal partnership.
Subject to the sound discretion of the court, either parent or both may be ordered to give an amount
necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources
or means of the giver and to the necessities of the recipient.
In determining the amount of provisional support, the court may likewise consider the following
factors: (1) the financial resources of the custodial and non-custodial parent and those of the child; (2) the
physical and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living
the child has been accustomed to; (4) the non-monetary contributions that the parents will make toward the
care and well-being of the child,
The Family Court may direct the deduction of the provisional support from the salary of the parent.
Sec. 4. Child Custody.–In determining the right party or person to whom the custody of the child of
the parties may be awarded pending the petition, the court shall consider the best interests of the child and
shall give paramount consideration to the material and moral welfare of the child,
The court may likewise consider the following factors: (a) the agreement of the parties; (b) the desire
and ability of each parent to foster an open.’ and loving relationship between the child and the, other parent;
(c) the child’s health, safety, and welfare;.(d) any history of child or spousal abuse by the person seeking
custody or who has had any filial relationship with the child, including anyone courting the parent; (e) the
nature and frequency of contact with both parents; (f) habitual use of alcohol or regulated substances; (g)
marital misconduct; (h) the most suitable physical, emotional, spiritual, psychological and educational
environment; and (i) the preference of the child, if over seven years of age and of sufficient discernment,
unless the parent chosen is unfit.
The court may award provisional custody in the following order of preference: (1) to both parents
jointly; (2) to either parent taking into account all relevant considerations under the foregoing paragraph,
especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3) to the
surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years
of age and of sufficient discernment, unless the grandparent is unfit or disqualified; (4) to the eldest brother or
sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the child’s actual custodian
over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court
suitable to provide proper care and guidance for the child.
The custodian temporarily designated by the court shall give the court and the parents five days notice
of any plan to change the residence of the child or take him out of his residence for more than three days
provided it does not prejudice the visitation rights of the parents.
Sec. 5. Visitation Rights.–Appropriate visitation rights shall be provided to the parent who is not
awarded provisional custody unless found unfit or disqualified by the court.
Sec. 6. Hold Departure Order.–Pending resolution of the petition, no child of the parties shall be
brought out of the country without prior order from the court,
The court, motu proprio or upon application under oath, may issue ex-parte a hold departure order,
addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child
from the Philippines without the permission of the court.

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 The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and
the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order
issued within twenty-four hours from the time of its issuance and through the fastest available means of
transmittal.
The hold-departure order shall contain the following information:
(a) the complete name (including the middle name), the date and place of birth, and the place
of last residence of the person against whom a hold-departure order has been issued or
whose departure from the country has been enjoined;
(b) the complete title and docket number of the case in which the hold departure was
issued;
(c) the specific nature of the case; and
(d) the date of the hold-departure order,
If available, a recent photograph of the person against whom a hold-departure order has been issued
or whose departure from the country has been enjoined should also be included,
The court may recall the order, motu proprio or upon verified motion of any of the parties after
summary hearing, subject to such terms and conditions as may be necessary for the best interests of the
child.
Sec. 7. Order of Protection.–The court may issue an Order of Protection requiring any person:
(a) to stay away from the home, school, business, or place of employment of the child, other parent or
any other party, and to stay away from any other specific place designated by the court;
(b) to refrain from harassing, intimidating, or threatening such child or the other parent or any person
to whom custody of the child is awarded;
(c) to refrain from acts of commission or omission that create an unreasonable risk to the. health,
safety, or welfare of the child;
(d) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to
visit the child at stated periods;
(e) to permit a designated party to enter the residence during a specified period of time in order to
take personal belongings not contested in a proceeding pending with the Family Court;
(f) to comply with such other orders as are necessary for the protection of the child.
Sec. 8. Administration of Common Property.–If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved
party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole
administrator of the common property subject to such precautionary conditions it may impose.
The receiver or administrator may not dispose of or encumber any common property or specific
separate property of either spouse without prior authority of the court.
The provisional order issued by the court shall be registered in the proper Register of Deeds and
annotated in all titles of properties subject of the receivership or administration.
Sec. 9. Effectivity.–This Rule shall take effect on March 15, 2003 following its publication in a
newspaper of general circulation not later than March 7, 2003.

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APPENDIX “D”

RULE ON GUARDIANSHIP OF MINORS

(A.M. No. 03-02-05-SC)

Section 1. Applicability of the Rule. – This Rule shall apply to petitions for guardianship over the
person or property, or both, of a minor.
The father and the mother shall jointly exercise legal guardianship over the person and property
of their unemancipated common child without the necessity of a court appointment. In such case, this
Rule shall be suppletory to the provisions of the Family Code on guardianship.
Sec. 2. Who may petition for appointment of guardian. – On grounds authorized by law, any
relative or other person on behalf of a minor, or the minor himself if fourteen years of age or over,
may petition the Family Court for the appointment of a general guardian over the person or property,
or both, of such minor. The petition may also be filed by the Secretary of Social Welfare and
Development and by the Secretary of Health in the case of an insane minor who needs to be
hospitalized.
Sec. 3. Where to file petition. – A petition for guardianship over the person or property, or both,
of a minor may be filed in the Family Court of the province or city where the minor actually resides. If
he resides in a foreign country, the petition shall be flied with the Family Court of the province or city
where his property or any part thereof is situated.
Sec. 4. Grounds of petition.-The grounds for the appointment of a guardian over the person or
property, or both, of a minor are the following:
(a) death, continued absence, or incapacity of his parents;
(b) suspension, deprivation or termination of parental authority;
(c) remarriage of his surviving parent, if the latter Is found unsuitable to exercise
parental authority; or
(d) when the best interests of the minor so require.
Sec. 5. Qualifications of guardians. – In appointing a guardian, the court shall consider the
guardian’s:
(a) moral character;
(b) physical, mental and psychological condition;
(c) financial status;
(d) relationship of trust with the minor;
(e) availability to exercise the powers and duties of a guardian for the full period of
the guardianship;
(f) lack of conflict of interest with the minor; and
(g) ability to manage the property of the minor.

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 Sec. 6. Who may be appointed guardian of the person or property, or both, of a minor. – In
default of parents or a court-appointed guardian, the court may appoint a guardian of the person or
property, or both, of a minor, observing as far as practicable, the following order of preference:
(a) the surviving grandparent and In case several grandparents survive, the court
shall select any of them taking Into account all relevant considerations;
(b) the oldest brother or sister of the minor over twenty-one years of age, unless unfit
or disqualified;
(c) the actual custodian of the minor over twenty-one years of age, unless unfit or
disqualified; and
(d) any other person, who in the sound discretion of the court, would serve the best
interests of the minor.
Sec. 7. Contents of petition. – A petition for the appointment of a general guardian must allege
the following:
(a) The jurisdictional facts;
(b) The name, age and residence of the prospective ward;
(c) The ground rendering the appointment necessary or convenient;
(d) The death of the parents of the minor or the termination, deprivation or
suspension of their parental authority;
(e) The remarriage of the minor’s surviving parent;
(f) The names, ages, and residences of relatives within the 4th civil degree of the minor, and
of persons having him in their care and custody;
(g) The probable value, character and location of the property of the minor; and
(h) The name, age and residence of the person for whom letters of guardianship are
prayed.
The petition shall be verified and accompanied by a certification against forum shopping.
However, no defect in the petition or verification shall render void the issuance of letters of
guardianship.
Sec. 8. Time and notice of hearing. – When a petition for the appointment of a general guardian
is filed, the court shall fix a time and place for its hearing, and shall cause reasonable notice to be
given to the persons mentioned in the petition, including the minor if he is fourteen years of age or
over, and may direct other general or special notice to be given.
Sec. 9. Case study report. – The court shall order a social worker to conduct a case study of the
minor and all the prospective guardians and submit his report and recommendation to the court for
its guidance before the scheduled hearing. The social worker may intervene on behalf of the minor if
he finds that the petition for guardianship should be denied.
Sec. 10. Opposition to petition. – Any interested person may contest the petition by filing a
written opposition based on such grounds as the majority of the minor or the unsuitability of the
person for whom letters are prayed, and pray that the petition be denied, or that letters of
guardianship issue to himself, or to any suitable person named in the opposition.
Sec. 11. Hearing and order for letters to issue. – At the hearing of the petition, it must be shown
that the requirement of notice has been complied with. The prospective ward shall be presented to
the court. The court shall hear the evidence of the parties in support of their respective allegations. If
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 warranted, the court shall appoint a suitable guardian of the person or property, or both, of the
minor.
At the discretion of the court, the hearing on guardianship may be closed to the public and the
records of the case shall not be released without its approval.
Sec. 12. When and how a guardian of the property for non-resident minor is appointed; notice. –
When the minor resides outside the Philippines but has property in the Philippines, any relative or
friend of such minor, or any one interested in his property, in expectancy or otherwise, may petition
the Family Court for the appointment of a guardian over the property.
Notice of hearing of the petition shall be given to the minor by publication or any other means as
the court may deem proper. The court may dispense with the presence of the non-resident minor.
If after hearing the court is satisfied that such non-resident is a minor and a guardian is
necessary or convenient, it may appoint a guardian over his property.
Sec. 13. Service of final and executory judgment or order. – The final and executory judgment or
order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides
and the Register of Deeds of the place where his property or part thereof is situated shall annotate
the same in the corresponding title, and report to the court his compliance within fifteen days from
receipt of the order.
Sec. 14. Bond of guardian; amount; conditions.-Before he enters upon the execution of his trust,
or letters of guardianship issue, an appointed guardian may be required to post a bond in such sum
as the court shall determine and conditioned as follows:
(a) To make and return to the court, within three months after the issuance of his letters of
guardianship, a true and complete Inventory of all the property, real and personal, of his ward which
shall come to his possession or knowledge or to the possession or knowledge of any other person in
his behalf;
(b) To faithfully execute the duties of his trust, to manage and dispose of the property
according to this rule for the best interests of the ward, and to provide for his proper care, custody
and education;
(c) To render a true and Just account of all the property of the ward in his hands, and of all
proceeds or interest derived therefrom, and of the management and disposition of the same, at the
time designated by this rule and such other times as the court directs; and at the expiration of his
trust, to settle his accounts with the court and deliver and pay over all the property, effects, and
monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled
thereto; and
(d) To perform all orders of the court and such other duties as may be required by law.
Sec. 15. Where to file the bond; action thereon. – The bond posted by a guardian shall be filed in
the Family Court and, In case of breach of any of its conditions, the guardian may be prosecuted in
the same proceeding for the benefit of the ward or of any other person legally interested in the
property.
Whenever necessary, the court may require the guardian to post a new bond and may discharge
from further liability the sureties on the old bond after due notice to interested persons, if no injury
may result therefrom to those interested in the property.
Sec. 16. Bond of parents as guardians of property of minor. – lf the market value of the property
or the annual Income of the child exceeds P50,000.00, the parent concerned shall furnish a bond In
such amount as the court may determine, but in no case less than ten per centurn of the value of

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 such property or annual income, to guarantee the performance of the obligations prescribed for
general guardians.
A verified petition for approval of the bond shall be flied in the Family Court of the place where
the child resides or, if the child resides in a foreign country, in the Family Court of the place where
the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding In which all incidents and issues
regarding the performance of the obligations of a general guardian shall be heard and resolved.
Sec. 17. General duties of guardian. – A guardian shall have the care and custody of the person
of his ward and the management of his property, or only the management of his property. The
guardian of the property of a nonresident minor shall have the management of all his property within
the Philippines.
A guardian shall perform the following duties:
(a) To pay the just debts of the ward out of the personal property and the income of
the real property of the ward, If the same is sufficient; otherwise, out of the real property
of the ward upon obtaining an order for its sale or encumbrance;
(b) To settle all accounts of his ward, and demand, sue for, receive all debts due him,
or may, with the approval of the court, compound for the same and give discharges to the
debtor on receiving a fair and just dividend of the property and effects; and to appear for
and represent the ward in all actions and special proceedings, unless another person is
appointed for that purpose;
(c) To manage the property of the ward frugally and without waste, and apply the
income and profits thereon, insofar as may be necessary, to the comfortable and suitable
maintenance of the ward; and if such income and profits be insufficient for that purpose, to
sell or encumber the real or personal property, upon being authorized by the court to do
so;
(d) To consent to a partition of real or personal property owned by the ward jointly or
in common with others upon authority granted by the court after hearing, notice to
relatives of the ward, and a careful investigation as to the necessity and propriety of the
proposed action;
(e) To submit to the court a verified inventory of the property of his ward within three
months after his appointment, and annually thereafter, the rendition of which may be
required upon the application of an interested person;
(f) To report to the court any property of the ward not included in the inventory which is
discovered, or succeeded to, or acquired by the ward within three months after such
discovery, succession, or acquisition; and
(g) To render to the court for its approval an accounting of the property one year from
his appointment, and every year thereafter or as often as may be required.
Sec. 18. Power and duty of the court – The court may:
(a) Request the assistance of one or more commissioners in the appraisal of the
property of the ward reported in the initial and subsequent inventories;
(b) Authorize reimbursement to the guardian, other than a parent, of reasonable
expenses incurred in the execution of his trust, and allow payment of compensation for his
services as the court may deem just, not exceeding ten per centum of the net income of

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 the ward, if any; otherwise, in such amount the court determines to be a reasonable
compensation for his services; and
(c) Upon complaint of the guardian or ward, or of any person having actual or
prospective interest in the property at the ward, require any person suspected of having
embezzled, concealed, or disposed of any money, goods or interest, or a written instrument
belonging to the ward or his property to appear for examination concerning any thereof
and issue such orders as would secure the property against such embezzlement,
concealment or conveyance.
Sec. 19. Petition to sell or encumber property.-When the income of a property under
guardianship is insufficient to maintain and educate the ward, or when it is for his benefit that his
personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the
proceeds invested in safe and productive security, or in the improvement or security of other real
property, the guardian may file a verified petition setting forth such facts, and praying that an order
issue authorizing the sale or encumbrance of the property.
Sec. 20. Order to show cause. – If the sale or encumbrance is necessary or would be beneficial
to the ward, the court shall order his next of kin and all person/s interested in the property to appear
at a reasonable time and place therein specified and show cause why the petition should not be
granted.
Sec. 21. Hearing on return of order; costs. – At the time and place designated in the order to
show cause, the court shall hear the allegations and evidence of the petitioner and next of kin, and
other persons interested, together with their witnesses, and grant or deny the petition as the best
interests of the ward may require.
Sec. 22. Contents of order for sale or encumbrance and its duration; bond. – If, after full
examination, it is necessary, or would be beneficial to the ward, to sell or encumber the property, or
some portion of it, the court shall order such sale or encumbrance the proceeds of which shall be
expended for the maintenance or the education of the ward, or invested as the circumstances may
require. The order shall specify the grounds for the sale or encumbrance and may direct that the
property ordered sold be disposed of at public sale, subject to such conditions as to the time and
manner of payment, and security where a part of the payment is deferred. The original bond of the
guardian shall stand as security for the proper appropriation of the proceeds of the sale or
encumbrance, but the court may, if deemed expedient, require an additional bond as a condition for
the sale or encumbrance. The authority to sell or encumber shall not extend beyond one year, unless
renewed by the court.
Sec. 23. Court may order investment of proceeds and direct management of property. – The
court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and
any other money of his ward in his hands, in real or personal property, for the best interests of the
ward, and may make such other orders for the management, investment, and disposition of the
property and effects, as circumstances may warrant.
Sec. 24. Grounds for removal or resignation of guardian. – When a guardian becomes insane or
otherwise incapable of discharging his trust or is found thereafter to be unsuitable, or has wasted or
mismanaged the property of the ward, or has failed to render an account or make a return for thirty
days after it is due, the court may, upon reasonable notice to the guardian, remove him as such and
require him to surrender the property of the ward to the person found to be lawfully entitled thereto.
The court may allow the guardian to resign for justifiable causes.
Upon the removal or resignation of the guardian, the court shall appoint a new one.

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 No motion for removal or resignation shall be granted unless the guardian has submitted the
proper accounting of the property of the ward and the court has approved the same.
Sec. 25. Ground for termination of guardianship. – The court motu proprio or upon verified
motion of any person allowed to file a petition for guardianship may terminate the guardianship on
the ground that the ward has come of age or has died. The guardian shall notify the court of such
fact within ten days of its occurrence.
Sec. 26. Service of final and executory judgment or order. – The final and executory judgment or
order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides
and the Register of Deeds of the province or city where his property or any part thereof is situated.
Both the Local Civil Registrar and’ the Register of Deeds shall enter the final and executory judgment
or order in the appropriate books in their offices.
Sec. 27. Effect of the rule. – This Rule amends Rules 92 to 97 inclusive of the Rules of Court on
guardianship of minors. Guardianship of incompetents who are not minors shall continue to be under
the jurisdiction of the regular courts and governed by the Rules of Court.
Sec. 28. Effectivity. - This Rule shall take effect on May 1, 2003 following its publication in a
newspaper of general circulation not later than April 15, 2003.

APPENDIX “E”

RULE ON CUSTODY OF MINORS

AND WRIT OF HABEAS CORPUS

IN RELATION TO CUSTODY OF MINORS

(A.M. No. 03-04-04-SC)

SECTION 1. Applicability. - This rule shall apply to petitions for custody of minors and writs of habeas
corpus in relation thereto.
The Rules of Court shall apply suppletorily.
SEC. 2. Petition for custody of minors; who may file.- A verified petition for the rightful custody of a minor
may be filed by any person claiming such right. The party against whom it may be filed shall be designated as
the respondent.
SEC. 3. Where to file petition. - The petition for custody of minors shall be filed with the Family Court of
the province or city where the petitioner resides or where the minor may be found.
SEC. 4. Contents of petition. - The verified petition shall allege the following:

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 (a) The personal circumstances of the petitioner and of the respondent;
(b) The name, age and present whereabouts of the minor and his or her
relationship to the petitioner and the respondent;
(c) The material operative facts constituting deprivation of custody; and
(d) Such other matters which are relevant to the custody of the minor.
The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner
must sign personally.
SEC. 5. Summons; personal service on respondent. - If the court is satisfied that the petition is sufficient
in form and substance, it shall direct the clerk of court to issue summons, which shall be served together with
a copy of the petition personally on the respondent.
SEC. 6. Motion to Dismiss. - A motion to dismiss the petition is not allowed except on the ground of lack
of jurisdiction over the subject matter or over the parties. Any other ground that might warrant the dismissal
of the petition may be raised as an affirmative defense in the answer.
SEC. 7. Verified Answer. - The respondent shall file an answer to the petition, personally verified by him,
within five days after service of summons and a copy of the petition.
SEC. 8. Case study; duty of social worker. - Upon the filing of the verified answer or the expiration of the
period to file it, the court may order a social worker to make a case study of the minor and the parties and to
submit a report and recommendation to the court at least three days before the scheduled pre-trial.
SEC. 9. Notice of mandatory pre-trial. - Within fifteen days after the filing of the answer or the expiration
of the period to file answer, the court shall issue an order: (1) fixing a date for the pre-trial conference; (2)
directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure receipt
thereof by the adverse party at least three days before the date of pre-trial; and (3) requiring the respondent
to present the minor before the court.
The notice of its order shall be served separately on both the parties and their respective counsels. The
pre-trial is mandatory.
SEC. 10. Contents of pre-trial brief. - The pre-trial brief shall contain the following:
(a) A statement of the willingness of the parties to enter into agreements that may be
allowed by law, indicating its terms;
(b) A concise statement of their respective claims together with the applicable laws and
authorities;
(c) Admitted facts and proposed stipulations of facts;
(d) The disputed factual and legal issues;
(e) All the evidence to be presented, briefly stating or describing its nature and
purpose;
(f) The number and names of the witnesses and their respective affidavits which shall
serve as the affiant's testimony on direct examination; and
(g) Such other matters as the court may require to be included in the pre-trial brief.
Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as
failure to appear at the pre-trial.

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 SEC. 11. Effect of failure to appear at the pre-trial.-(a) If the petitioner fails to appear personally at the
pre-trial, the case shall be dismissed, unless his counsel or a duly authorized representative appears in court
and proves a valid excuse for the non-appearance of the petitioner.
(b) If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be
allowed to present his evidence ex parte. The court shall then render judgment on the basis of the pleadings
and the evidence thus presented.
SEC. 12. What may be done at pre-trial. - At the pre-trial, the parties may agree on the custody of the
minor. If the parties fail to agree, the court may refer the matter to a mediator who shall have five days to
effect an agreement between the parties. If the issue is not settled through mediation, the court shall proceed
with the pre-trial conference, on which occasion it shall consider such other matters as may aid in the prompt
disposition of the petition.
SEC. 13. Provisional order awarding custody. - After an answer has been filed or after expiration of the
period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable,
the following order of preference shall be observed in the award of custody:
(a) Both parents jointly;
(b) Either parent, taking into account all relevant considerations, especially the choice of the
minor over seven years of age and of sufficient discernment, unless the parent chosen is
unfit;
(c) The grandparent, or if there are several grandparents, the grandparent chosen by the
minor over seven years of age and of sufficient discernment, unless the grandparent
chosen is unfit or disqualified;
(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or
disqualified;
(e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit
or disqualified; or
(f) Any other person or institution the court may deem suitable to provide proper care and
guidance for the minor.
SEC. 14. Factors to consider in determining custody. - In awarding custody, the court shall consider the
best interests of the minor and shall give paramount consideration to his material and moral welfare. The best
interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the
survival, protection, and feelings of security of the minor encouraging to his physical, psychological and
emotional development. It also means the least detrimental available alternative for safeguarding the growth
and development of the minor.
The court shall also consider the following:
(a) Any extrajudicial agreement which the parties may have bound themselves to comply with
respecting the rights of the minor to maintain direct contact with the non custodial parent
on a regular basis, except when there is an existing threat or danger of physical, mental,
sexual or emotional violence which endangers the safety and best interests of the minor;
(b) The desire and ability of one parent to foster an open and loving relationship between the
minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking custody or who has had any
filial relationship with the minor, including anyone courting the parent;

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 (e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol, dangerous drugs or regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual, psychological and educational
environment for the holistic development and growth of the minor; and
(i) The preference of the minor over seven years of age and of sufficient discernment,
unless the parent chosen is unfit.
SEC. 15. Temporary visitation rights. - The court shall provide in its order awarding provisional custody
appropriate visitation rights to the non-custodial parent or parents, unless the court finds said parent or
parents unfit or disqualified.
The temporary custodian shall give the court and non custodial parent or parents at least five days' notice
of any plan to change the residence of the minor or take him out of his residence for more than three days
provided it does not prejudice the visitation rights of the non-custodial parent or parents.
SEC. 16. Hold Departure Order. - The minor child subject of the petition shall not be brought out of the
country without prior order from the court while the petition is pending.
The court, motu proprio or upon application under oath, may issue ex parte a hold departure order,
addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the minor
from the Philippines without the permission of the court.
The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the
Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order within
twenty-four hours from its issuance and through the fastest available means of transmittal.
The hold departure order shall contain the following information:
(a) The complete name (including the middle name), the date and place of birth, the
nationality and the place of last residence of the person against whom a hold departure
order has been issued or whose departure from the country has been enjoined;
(b) The complete title and docket number of the case in which the hold departure order
was issued;
(c) The specific nature of the case;
(d) The date of the hold departure order; and
(e) A recent photograph, if available, of the party against whom a hold departure order
has been issued or whose departure from the country has been enjoined.
The court may recall the hold departure order motu proprio, or upon verified motion of any of the parties
after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the
minor.
SEC. 17. Protection Order. - The court may issue a Protection Order requiring any person:
(a) To stay away from the home, school, business, or place of employment of the minor,
other parent or any other party, or from any other specific place designated by the court;
(b) To cease and desist from harassing, intimidating, or threatening such minor or the
other parent or any person to whom custody of the minor is awarded;
(c) To refrain from acts of commission or omission that create an unreasonable risk to the
health, safety, or welfare of the minor;
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 (d) To permit a parent, or a party entitled to visitation by a court order or a separation
agreement, to visit the minor at stated periods;
( e) To permit a designated party to enter the residence during a specified period of time in
order to take personal belongings not contested in a proceeding pending with the Family
Court; and
(f) To comply with such other orders as are necessary for the protection of the minor.
SEC. 18. Judgment. - After trial, the court shall render judgment awarding the custody of the minor to the
proper party considering the best interests of the minor.
If it appears that both parties are unfit to have the care and custody of the minor, the court may
designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any
reputable person to take charge of such minor, or commit him to any suitable home for children.
In its judgment, the court may order either or both parents to give an amount necessary for the support,
maintenance and education of the minor, irrespective of who may be its custodian. In determining the amount
of support, the court may consider the following factors: (1) the financial resources of the custodial and non-
custodial parent and those of the minor; (2) the physical and emotional health, special needs, and aptitude of
the minor; (3) the standard of living the minor has been accustomed to; and (4) the non-monetary
contributions that the parents would make toward the care and well-being of the minor.
The court may also issue any order that is just and reasonable permitting the parent who is deprived of
the care and custody of the minor to visit or have temporary custody.
SEC. 19. Appeal. - No appeal from the decision shall be allowed unless the appellant has filed a motion for
reconsideration or new trial within fifteen days from notice of judgment.
An aggrieved party may appeal from the decision by filing a Notice of Appeal within fifteen days from
notice of the denial of the motion for reconsideration or new trial and serving a copy thereof on the adverse
parties.
SEC. 20. Petition for writ of habeas corpus. - A verified petition for a writ of habeas corpus involving
custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to
which the Family Court belongs.
However, the petition may be filed with the regular court in the absence of the presiding judge of the
Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its
presiding judge returns to duty.
The petition may also be filed with the appropriate regular courts in places where there are no Family
Courts.
The writ issued by the Family Court or the regular court shall be enforceable in the judicial region where
they belong.
The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members
and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable
to a Family Court or to any regular court within the region where the petitioner resides or where the minor may
be found for hearing and decision on the merits.
Upon return of the writ, the court shall decide the issue on custody of minors. The appellate court, or the
member thereof, issuing the writ shall be furnished a copy of the decision.
SEC. 21. Confidentiality of proceedings. - The hearings on custody of minors may, at the discretion of the
court, be closed to the public and the records of the case shall not be released to non-parties without its
approval.

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 SEC. 22. Effectivity. - This Rule shall take effect on May 15, 2003 following its publication in a newspaper
of general circulation not later than April 30, 2003.
Appendix “F”

REPUBLIC ACT NO. 8369

AN ACT ESTABLISHING FAMILY COURTS, GRANTING THEM EXCLUSIVE ORIGINAL JURISDICTION

OVER CHILD AND FAMILY CASES, AMENDING BATAS PAMBANSA BILANG 129,AS AMENDED,
OTHERWISE KNOWN AS ACT OF 1980, APPROPRIATING FUNDS THEREFOR AND FOR OTHER
PURPOSES.

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Section 1. Title. - This Act shall be known as the "Family Courts Act of 1997".

Sec. 2. Statement of National Policies. - The State shall protect the rights and promote the welfare of
children in keeping with the mandate of the Constitution and the precepts of the United Nations Convention on
the rights of the Child. The State shall provide a system of adjudication for youthful offenders which takes into
account their peculiar circumstances.

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. The courts shall preserve the solidarity of the family, provide procedures for the
reconciliation of spouses and the amicable settlement of family controversy.

Sec. 3. Establishment of Family Courts. - There shall be established a Family Court in every province
and city in the country. In case where the city is the capital of the province, the Family Court shall be
established in the municipality which has the highest population.

Sec. 4. Qualification and Training of Family Court Judges. - Sec. 15 of Batas Pambansa Blg. 129, as
amended, is hereby further amended to read as follows:

"Sec. 15. (a) Qualification. - No person shall be appointed Regional Trial Judge or Presiding Judge of the
Family Court unless he is a natural-born citizen of the Philippines, at least thirty-five (35) years of age,
and, for at least ten (10) years, has been engaged in the practice of law in the Philippines or has held a
public office in the Philippines requiring admission to the practice of law as indispensable requisite.

"(b) Training of Family Court Judges. - The Presiding Judge, as well as the court personnel of the
Family Courts, shall undergo training and must have the experience and demonstrated ability in dealing
with child and family cases.

"The Supreme Court shall provide a continuing education program on child and family laws, procedure
and other related disciplines to judges and personnel of such courts."

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 Sec. 5. Jurisdiction offamily Courts. - The Family Courts shall have exclusive original jurisdiction to hear
and decide the following cases:

a) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less
than nine (9) years of age but not less than nine (9) years of age or where one or more of the victims is
a minor at the time of the commission of the offense: Provided, That if the minor is found guilty, the
court shall promulgate sentence and ascertain any civil liability which the accused may have incurred.

The sentence, however, shall be suspended without need of application pursuant to Ptesidential Decree
No. 603, otherwise known as the "Child and Youth Welfare Code";

b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

c) Petitions for adoption of children and the revocation thereof;

d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to
marital status and property relations of husband and wife or those living together under different status
and agreements, and petitions for dissolution of conjugal partnership of gains;

e) Petitions for support and/or acknowledgment;

f) Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise
known as the "Family Code of the Philippines";

g) Petitions for declaration of status of children as abandoned, dependent o neglected children,

petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration
of parental authority and other cases cognizable under Presidential Decree No. 603, Executive Order No.
56, (Series of 1986), and other related laws;

h) Petitions for the constitution of the family home;

i) Cases against minors cognizable under the Dangerous Drugs Act, as amended;

j) Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against
Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No. 7658; and

k) Cases of domestic violence against:

1) Women - which are acts of gender based violence that results, or are likely to result in
physical, sexual or psychological harm or suffering to women; and other forms of physical
abuse such as battering or threats and coercion which violate a woman's personhood, integrity
and freedom movement; and

2) Children - which include the commission of all forms of abuse, neglect, cruelty, exploitation,
violence, and discrimination and all other conditions prejudicial to their development.

If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings
and the corresponding penalties.

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 If any question involving any of the above matters should arise as an incident in any case pending in
the regular courts, said incident shall be determined in that court.

Sec. 6. Use of Income. - All Family Courts shall be allowed the use of ten per cent (10%) of their
income derived from filing and other court fees under Rule 141 of the Rules of Court for research and other
operating expenses including capital outlay: Provided, That this benefit shall likewise be enjoyed by all courts
of justice.

The Supreme Court shall promulgate the necessary guidelines to effectively implement the provisions
of this Sec.

Sec. 7. Special Provisional Remedies. - In cases of violence among immediate family members living in
the same domicile or household, the Family Court may issue a restraining order against the accused of
defendant upon verified application by the complainant or the victim for relief from abuse.

The court may order the temporary custody of children in all civil actions for their custody. The court may also
order support pendente lite, including deduction from the salary and use of conjugal home and other
properties in all civil actions for support.

Sec. 8. Supervision of Youth Detention Homes. - The judge of the Family Court shall have direct
control and supervision of the youth detention home which the local government unit shall establish to
separate the youth offenders from adult criminals: Provided, however, That alternatives to detention and
institutional care shall be made available to the accused including counseling, recognizance, bail, community
continuum, or diversions from the justice system: Provided, further, That the human rights of the accused are
fully respected in a manner appropriate to their well-being.

Sec. 9. Social Services and Counseling Division. - Under the guidance ofthe Department of Social
Welfare and Development (DSWD), a Social Services and Counseling Division (SSCD) shall be established in
each judicial region as the Supreme Court shall deem necessary based on the number of juvenile and family
cases existing in such jurisdiction. It shall provide appropriate social services to all juvenile and family cases
filed with the court and recommend the proper social action. It shall also develop programs, formulate uniform
policies and procedures, and provide technical supervision and monitoring of all SSCD in coordination with the
judge.

Sec. 10. Social Services and Counseling Division Staff. - The SSCD shall have a staff composed of
qualified social workers and other personnel with academic preparation in behavioral sciences to carry out the
duties'of conducting intake assessment, social case studies, casework and counseling, and othersocial services
that may be needed in connection with cases filed with the court: Provided, however, That in adoption cases
and in petitions for declaration of abandonment, the case studies may be prepared by social workers of duly
licensed child caring or child placement agencies, or the DSWD. When warranted, the division shall
recommend that the court avail itself of consultative services of psychiatrists, psychologists, and other
qualified specialists presently employed in other departments of the government in connection with its cases.

The position of Social Work Adviser shall be created under the Office of the Court Administrator, who
shall monitor and supervise the SSCD ofthe Regional Trial Court.

Sec. 11. Alternative Social Services. - In accordance with Sec. 17 of this Act, in areas where no Family
Court has been established or no Regional Trial Court was designated by the Supreme Court due to the limited
number of cases, the DSWD shall designate and assign qualified, trained, and DSWD accredited social workers
of the local government units to handle juvenile and family cases filed in the designated Regional Trial Court of
the place.

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 Sec. 12. Privacy and Confidentiality of Proceedings. - All hearings and conciliation of the child and
family cases shall be treated in a manner consistent with the promotion of the child's and the family's dignity
and worth, and shall respect their privacy at all stages of the proceedings. Records of the cases shall be dealt
with utmost confidentiality and the identity of parties shall not be divulged unless necessary and with
authority of the judge.

Sec. 13. Special Rules of Procedure. - The Supreme Court shall promulgate special rules of procedure
for the transfer of cases to the new courts during the transition period and for the disposition of family cases
with the best interests of the child and the protection of the family as primary consideration taking into
account the United Nations Convention on the Rights of the Child.

Sec. 14. Appeals. - Decisions and orders of the court shall be appealed in the same manner and subject
to the same conditions as appeals from the ordinary Regional Trial Courts.

Sec. 15. Appropriations. - The amount necessary to carry out the provisions of this Act shall be
included in the General Appropriations Act of the year following in its enactment into law and thereafter.

Sec. 16. Implementing Rules and Regulations. - The Supreme Court, in coordination with the DSWD,
shall formulate the necessary rules and regulations for the effective implementation of the social aspects of
this Act.

Sec. 17. Transitory Provisions. - Pending the establishment of such Family Courts, the Supreme Court
shall designate from among the branches ofthe Regional Trial Court at least one Family Court in each of the
cities of Manila, Quezon, Pasay, Caloocan, Makati, Pasig, Mandaluyong, Muntinlupa, Laoag, Baguio, Santiago,
Dagupan, Olongapo, Cabanatuan, San Jose, Angeles, Cavite, Batangas, Lucena, Naga, Iriga, Legazpi, Roxas,
Iloilo, Bacolod, Dumaguete, Tacloban, Cebu, Mandaue, Tagbilaran, Surigao, Butuan, Cagayan de Oro, Davao,
General Santos, Oroquieta, Ozamis, Dipolog, Zamboanga, Pagadian, Iligan, and in such other places as the
Supreme Court may deem necessary.

Additional cases other than those provided in Sec. 5 may be assigned to the Family Courts when their
dockets permit: Provided, That such additional cases shall not be heard on the same day family cases are
heard.

In areas where there are no Family Courts, the cases referred to in Sec. 5 of this Act shall be
adjudicated by the Regional Trial Court.

Sec. 18. Separability Clause. - In case any provision of this Act is declared unconstitutional, the other
provisions shall remain in effect.

Sec. 19. Repealing Clause. - All other laws, decrees, executive orders, rules or regulations inconsistent
herewith are hereby repealed, amended or modified accordingly.

Sec. 20. Effectivity. - This Act shall take effect fifteen (15) days after its publication in at least two (2)
national newspapers of general circulation.

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Approved October 28, 1997.

Appendix “G”

Republic Act No. 8552

AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC ADOPTION OF FILIPINO
CHILDREN AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

ARTICLE I
GENERAL PROVISIONS

Section 1. Short Title. – This Act shall be known as the "Domestic Adoption Act of 1998."

Section 2. Declaration of Policies. – (a) It is hereby declared the policy of the State to ensure that
every child remains under the care and custody of his/her parent(s) and be provided with love, care,
understanding and security towards the full and harmonious development of his/her personality. Only when
such efforts prove insufficient and no appropriate placement or adoption within the child's extended family is
available shall adoption by an unrelated person be considered.

(b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the
paramount consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the
Rights of the Child; UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of
Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally; and the
Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption. Toward
this end, the State shall provide alternative protection and assistance through foster care or adoption for every
child who is neglected, orphaned, or abandoned.

(c) It shall also be a State policy to:

(i) Safeguard the biological parent(s) from making hurried decisions to relinquish his/her parental
authority over his/her child;

(ii) Prevent the child from unnecessary separation from his/her biological parent(s);

(iii) Protect adoptive parent(s) from attempts to disturb his/her parental authority and custody over
his/her adopted child.

Any voluntary or involuntary termination of parental authority shall be administratively or

judicially declared so as to establish the status of the child as "legally available for adoption" and
his/her custody transferred to the Department of Social Welfare and Development or to any duly
licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take
steps for the permanent placement of the child;

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 (iv) Conduct public information and educational campaigns to promote a positive environment
for adoption;

(v) Ensure that sufficient capacity exists within government and private sector agencies to
handle adoption inquiries, process domestic adoption applications, and offer adoption-related services
including, but not limited to, parent preparation and post-adoption education and counseling; and

(vi) Encourage domestic adoption so as to preserve the child's identity and culture in his/her
native land, and only when this is not available shall intercountry adoption be considered as a last
resort.

Section 3. Definition of Terms. – For purposes of this Act, the following terms shall be defined as:

(a) "Child" is a person below eighteen (18) years of age.

(b) "A child legally available for adoption" refers to a child who has been voluntarily or involuntarily
committed to the Department or to a duly licensed and accredited child-placing or child-caring agency,
freed of the parental authority of his/her biological parent(s) or guardian or adopter(s) in case of
rescission of adoption.

(c) "Voluntarily committed child" is one whose parent(s) knowingly and willingly relinquishes parental
authority to the Department.

(d) "Involuntarily committed child" is one whose parent(s), known or unknown, has been permanently
and judicially deprived of parental authority due to abandonment; substantial, continuous, or repeated
neglect; abuse; or incompetence to discharge parental responsibilities.

(e) "Abandoned child" refers to one who has no proper parental care or guardianship or whose
parent(s) has deserted him/her for a period of at least six (6) continuous months and has been
judicially declared as such.

(f) "Supervised trial custody" is a period of time within which a social worker oversees the adjustment
and emotional readiness of both adopter(s) and adoptee in stabilizing their filial relationship.

(g) "Department" refers to the Department of Social Welfare and Development.

(h) "Child-placing agency" is a duly licensed and accredited agency by the Department to provide
comprehensive child welfare services including, but not limited to, receiving applications for adoption,
evaluating the prospective adoptive parents, and preparing the adoption home study.

(i) "Child-caring agency" is a duly licensed and accredited agency by the Department that provides
twenty four (24)-hour residential care services for abandoned, orphaned, neglected, or voluntarily
committed children.

(j) "Simulation of birth" is the tampering of the civil registry making it appear in the birth records that a
certain child was born to a person who is not his/her biological mother, causing such child to lose
his/her true identity and status.

ARTICLE II
PRE-ADOPTION SERVICES

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 Section 4. Counseling Service. – The Department shall provide the services of licensed social
workers to the following:

(a) Biological Parent(s) – Counseling shall be provided to the parent(s) before and after the birth of
his/her child. No binding commitment to an adoption plan shall be permitted before the birth of his/her
child. A period of six (6) months shall be allowed for the biological parent(s) to reconsider any decision
to relinquish his/her child for adoption before the decision becomes irrevocable. Counseling and
rehabilitation services shall also be offered to the biological parent(s) after he/she has relinquished
his/her child for adoption.

Steps shall be taken by the Department to ensure that no hurried decisions are made and all
alternatives for the child's future and the implications of each alternative have been provided.

(b) Prospective Adoptive Parent(s) – Counseling sessions, adoption fora and seminars, among others,
shall be provided to prospective adoptive parent(s) to resolve possible adoption issues and to prepare
him/her for effective parenting.

(c) Prospective Adoptee – Counseling sessions shall be provided to ensure that he/she understands the
nature and effects of adoption and is able to express his/her views on adoption in accordance with
his/her age and level of maturity.

Section 5. Location of Unknown Parent(s). – It shall be the duty of the Department or the child-
placing or child-caring agency which has custody of the child to exert all efforts to locate his/her unknown
biological parent(s). If such efforts fail, the child shall be registered as a foundling and subsequently be the
subject of legal proceedings where he/she shall be declared abandoned.

Section 6. Support Services. – The Department shall develop a pre-adoption program which shall
include, among others, the above mentioned services.

ARTICLE III
ELIGIBILITY

Section 7. Who May Adopt. – The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral
character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically
capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to
support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16)
year difference between the age of the adopter and adoptee may be waived when the adopter is the biological
parent of the adoptee, or is the spouse of the adoptee's parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That
his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the
Philippines for at least three (3) continuous years prior to the filing of the application for adoption and
maintains such residence until the adoption decree is entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to
adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her
adopted son/daughter: Provided, Further, That the requirements on residency and certification of the alien's
qualification to adopt in his/her country may be waived for the following:

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 (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a
relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or

(c) The guardian with respect to the ward after the termination of the guardianship and clearance of
his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

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

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

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

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

Section 8. Who May Be Adopted. – The following may be adopted:

(a) Any person below eighteen (18) years of age who has been administratively or judicially declared
available for adoption;

(b) The legitimate son/daughter of one spouse by the other spouse;

(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;

(d) A person of legal age if, prior to the adoption, said person has been consistently considered and
treated by the adopter(s) as his/her own child since minority;

(e) A child whose adoption has been previously rescinded; or

(f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be
initiated within six (6) months from the time of death of said parent(s).

Section 9. Whose Consent is Necessary to the Adoption. – After being properly counseled and
informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the
following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government
instrumentality which has legal custody of the child;

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and
adoptee, if any;
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 (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said
adopter and the latter's spouse, if any; and

(e) The spouse, if any, of the person adopting or to be adopted.

ARTICLE IV
PROCEDURE

Section 10. Hurried Decisions. – In all proceedings for adoption, the court shall require proof that
the biological parent(s) has been properly counseled to prevent him/her from making hurried decisions caused
by strain or anxiety to give up the child, and to sustain that all measures to strengthen the family have been
exhausted and that any prolonged stay of the child in his/her own home will be inimical to his/her welfare and
interest.

Section 11. Case Study. – No petition for adoption shall be set for hearing unless a licensed social
worker of the Department, the social service office of the local government unit, or any child-placing or child-
caring agency has made a case study of the adoptee, his/her biological parent(s), as well as the adopter(s),
and has submitted the report and recommendations on the matter to the court hearing such petition.

At the time of preparation of the adoptee's case study, the concerned social worker shall confirm with
the Civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not
registered with the Civil Registry, it shall be the responsibility of the concerned social worker to ensure that the
adoptee is registered.

The case study on the adoptee shall establish that he/she is legally available for adoption and that the
documents to support this fact are valid and authentic. Further, the case study of the adopter(s) shall
ascertain his/her genuine intentions and that the adoption is in the best interest of the child.

The Department shall intervene on behalf of the adoptee if it finds, after the conduct of the case
studies, that the petition should be denied. The case studies and other relevant documents and records
pertaining to the adoptee and the adoption shall be preserved by the Department.

Section 12. Supervised Trial Custody. – No petition for adoption shall be finally granted until the
adopter(s) has been given by the court a supervised trial custody period for at least six (6) months within
which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding
relationship. During said period, temporary parental authority shall be vested in the adopter(s).

The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to
be in the best interest of the adoptee, stating the reasons for the reduction of the period. However, for alien
adopter(s), he/she must complete the six (6)-month trial custody except for those enumerated in Sec. 7 (b) (i)
(ii) (iii).

If the child is below seven (7) years of age and is placed with the prospective adopter(s) through a
pre-adoption placement authority issued by the Department, the prospective adopter(s) shall enjoy all the
benefits to which biological parent(s) is entitled from the date the adoptee is placed with the prospective
adopter(s).

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 Section 13. Decree of Adoption. – If, after the publication of the order of hearing has been
complied with, and no opposition has been interposed to the petition, and after consideration of the case
studies, the qualifications of the adopter(s), trial custody report and the evidence submitted, the court is
convinced that the petitioners are qualified to adopt, and that the adoption would redound to the best interest
of the adoptee, a decree of adoption shall be entered which shall be effective as of the date the original
petition was filed. This provision shall also apply in case the petitioner(s) dies before the issuance of the
decree of adoption to protect the interest of the adoptee. The decree shall state the name by which the child
is to be known.

Section 14. Civil Registry Record. – An amended certificate of birth shall be issued by the Civil
Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the child of the adopter(s)
by being registered with his/her surname. The original certificate of birth shall be stamped "cancelled" with the
annotation of the issuance of an amended birth certificate in its place and shall be sealed in the civil registry
records. The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended
issue.

Section 15. Confidential Nature of Proceedings and Records. – All hearings in adoption cases
shall be confidential and shall not be open to the public. All records, books, and papers relating to the
adoption cases in the files of the court, the Department, or any other agency or institution participating in the
adoption proceedings shall be kept strictly confidential.

If the court finds that the disclosure of the information to a third person is necessary for purposes
connected with or arising out of the adoption and will be for the best interest of the adoptee, the court may
merit the necessary information to be released, restricting the purposes for which it may be used.

ARTICLE V
EFFECTS OF ADOPTION

Section 16. Parental Authority. – Except in cases where the biological parent is the spouse of the
adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall
then be vested on the adopter(s).

Section 17. Legitimacy. – The adoptee shall be considered the legitimate son/daughter of the
adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law
to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is
entitled to love, guidance, and support in keeping with the means of the family.

Section 18. Succession. – In legal and intestate succession, the adopter(s) and the adoptee shall
have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and
his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

ARTICLE VI
RESCISSION OF ADOPTION

Section 19. Grounds for Rescission of Adoption. – Upon petition of the adoptee, with the
assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as
guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the
adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone
counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and
failure to comply with parental obligations.

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 Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s).
However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

Section 20. Effects of Rescission. – If the petition is granted, the parental authority of the
adoptee's biological parent(s), if known, or the legal custody of the Department shall be restored if the
adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the adopter(s) and the
adoptee to each other shall be extinguished.

The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and
restore his/her original birth certificate.

Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of
judicial rescission. Vested rights acquired prior to judicial rescission shall be respected.

All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable
under the Penal Code if the criminal acts are properly proven.

ARTICLE VII
VIOLATIONS AND PENALTIES

Section 21. Violations and Penalties. – (a) The penalty of imprisonment ranging from six (6) years
and one (1) day to twelve (12) years and/or a fine not less than Fifty thousand pesos (P50,000.00), but not
more than Two hundred thousand pesos (P200,000.00) at the discretion of the court shall be imposed on any
person who shall commit any of the following acts:

(i) obtaining consent for an adoption through coercion, undue influence, fraud, improper material
inducement, or other similar acts;

(ii) non-compliance with the procedures and safeguards provided by the law for adoption; or

(iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation.

(b) Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a
person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth, and shall be punished by
prision mayor in its medium period and a fine not exceeding Fifty thousand pesos (P50,000.00).

Any physician or nurse or hospital personnel who, in violation of his/her oath of office, shall cooperate
in the execution of the abovementioned crime shall suffer the penalties herein prescribed and also the penalty
of permanent disqualification.

Any person who shall violate established regulations relating to the confidentiality and integrity of
records, documents, and communications of adoption applications, cases, and processes shall suffer the
penalty of imprisonment ranging from one (1) year and one (1) day to two (2) years, and/or a fine of not less
than Five thousand pesos (P5,000.00) but not more than Ten thousand pesos (P10,000.00), at the discretion
of the court.

A penalty lower by two (2) degrees than that prescribed for the consummated offense under this
Article shall be imposed upon the principals of the attempt to commit any of the acts herein enumerated. Acts
punishable under this Article, when committed by a syndicate or where it involves two (2) or more children
shall be considered as an offense constituting child trafficking and shall merit the penalty of reclusion
perpetua.
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 Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of
three (3) or more persons conspiring and/or confederating with one another in carrying out any of the
unlawful acts defined under this Article. Penalties as are herein provided, shall be in addition to any other
penalties which may be imposed for the same acts punishable under other laws, ordinances, executive orders,
and proclamations.

When the offender is an alien, he/she shall be deported immediately after service of sentence and
perpetually excluded from entry to the country.

Any government official, employee or functionary who shall be found guilty of violating any of the
provisions of this Act, or who shall conspire with private individuals shall, in addition to the above-prescribed
penalties, be penalized in accordance with existing civil service laws, rules and regulations: Provided, That
upon the filing of a case, either administrative or criminal, said government official, employee, or functionary
concerned shall automatically suffer suspension until the resolution of the case.

Section 22. Rectification of Simulated Births. – A person who has, prior to the effectivity of this
Act, simulated the birth of a child shall not be punished for such act: Provided, That the simulation of birth was
made for the best interest of the child and that he/she has been consistently considered and treated by that
person as his/her own son/daughter: Provided, further, That the application for correction of the birth
registration and petition for adoption shall be filed within five (5) years from the effectivity of this Act and
completed thereafter: Provided, finally, That such person complies with the procedure as specified in Article IV
of this Act and other requirements as determined by the Department.

ARTICLE VIII
FINAL PROVISIONS

Section 23. Adoption Resource and Referral Office. – There shall be established an Adoption
Resources and Referral Office under the Department with the following functions: (a) monitor the existence,
number, and flow of children legally available for adoption and prospective adopter(s) so as to facilitate their
matching; (b) maintain a nationwide information and educational campaign on domestic adoption; (c) keep
records of adoption proceedings; (d) generate resources to help child-caring and child-placing agencies and
foster homes maintain viability; and (e) do policy research in collaboration with the Intercountry Adoption
Board and other concerned agencies. The office shall be manned by adoption experts from the public and
private sectors.

Section 24. Implementing Rules and Regulations. – Within six (6) months from the promulgation
of this Act, the Department, with the Council for the Welfare of Children, the Office of Civil Registry General,
the Department of Justice, Office of the Solicitor General, and two (2) private individuals representing child-
placing and child-caring agencies shall formulate the necessary guidelines to make the provisions of this Act
operative.

Section 25. Appropriations. – Such sum as may be necessary for the implementation of the
provisions of this Act shall be included in the General Appropriations Act of the year following its enactment
into law and thereafter.

Section 26. Repealing Clause. – Any law, presidential decree or issuance, executive order, letter of
instruction, administrative order, rule, or regulation contrary to, or inconsistent with the provisions of this Act
is hereby repealed, modified, or amended accordingly.

Section 27. Separability Clause. – If any provision of this Act is held invalid or unconstitutional, the
other provisions not affected thereby shall remain valid and subsisting.

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 Section 28. Effectivity Clause. – This Act shall take effect fifteen (15) days following its complete
publication in any newspaper of general circulation or in the Official Gazette.

Approved: February 25, 1998

Appendix “H”

Republic Act No. 9523

AN ACT REQUIRING CERTIFICATION OF THE DEPARTMENT OF SOCIAL WELFARE AND

DEVELOPMENT (DSWD) TO DECLARE A "CHILD LEGALLY AVAILABLE FOR ADOPTION" AS A
PREREQUISITE FOR ADOPTION PROCEEDINGS, AMENDING FOR THIS PURPOSE CERTAIN
PROVISIONS OF REPUBLIC ACT NO. 8552, OTHERWISE KNOWN AS THE DOMESTIC ADOPTION
ACT OF 1998, REPUBLIC ACT NO. 8043, OTHERWISE KNOWN AS THE INTER-COUNTRY
ADOPTION ACT OF 1995, PRESIDENTIAL DECREE NO. 603, OTHERWISE KNOWN AS THE CHILD
AND YOUTH WELFARE CODE, AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

Section 1. Declaration of Policy. – It is hereby declared the policy of the State that alternative
protection and assistance shall be afforded to every child who is abandoned, surrendered, or neglected. In this
regard, the State shall extend such assistance in the most expeditious manner in the interest of full emotional
and social development of the abandoned, surrendered, or neglected child.

It is hereby recognized that administrative processes under the jurisdiction of the Department of Social
Welfare and Development for the declaration of a child legally available for adoption of abandoned,
surrendered, or neglected children are the most expeditious proceedings for the best interest and welfare of
the child.

Section. 2. Definition of Terms. – As used in this Act, the following terms shall mean:

(1) Department of Social Welfare and Development (DSWD) is the agency charged to implement the
provisions of this Act and shall have the sole authority to issue the certification declaring a child legally
available for adoption.

(2) Child refers to a person below eighteen (18) years of age or a person over eighteen (18) years of
age but is unable to fully take care of him/herself or protect himself/herself from abuse, neglect, cruelty,
exploitation, or discrimination because of physical or mental disability or condition.

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 (3) Abandoned Child refers to a child who has no proper parental care or guardianship, or whose
parent(s) have deserted him/her for a period of at least three (3) continuous months, which includes a
founding.

(4) Neglected Child refers to a child whose basic needs have been deliberately unattended or
inadequately attended within a period of three (3) continuous months. Neglect may occur in two (2) ways:

(a) There is physical neglect when the child is malnourished, ill-clad, and without proper shelter. A child
is unattended when left by himself/herself without proper provisions and/or without proper supervision.

(b) There is emotional neglect when the child is maltreated, raped, seduced, exploited, overworked, or
made to work under conditions not conducive to good health; or is made to beg in the streets or public places;
or when children are in moral danger, or exposed to gambling, prostitution, and other vices.

(5) Child Legally Available for Adoption refers to a child in whose favor a certification was issued by the
DSWD that he/she is legally available for adoption after the fact of abandonment or neglect has been proven
through the submission of pertinent documents, or one who was voluntarily committed by his/her parent(s) or
legal guardian.

(6) Voluntarily Committed Child is one whose parent(s) or legal guardian knowingly and willingly
relinquished parental authority to the DSWD or any duly accredited child-placement or child-caring agency or
institution.

(7) Child-caring agency or institution refers to a private non-profit or government agency duly
accredited by the DSWD that provides twenty-four (24) hour residential care services for abandoned,
neglected, or voluntarily committed children.

(8) Child-placing agency or institution refers to a private non-profit institution or government agency
duly accredited by the DWSD that receives and processes applicants to become foster or adoptive parents and
facilitate placement of children eligible for foster care or adoption.

(9) Petitioner refers to the head or executive director of a licensed or accredited child-caring or child-
placing agency or institution managed by the government, local government unit, non-governmental
organization, or provincial, city, or municipal Social Welfare Development Officer who has actual custody of the
minor and who files a certification to declare such child legally available for adoption, or, if the child is under
the custody of any other individual, the agency or institution does so with the consent of the child's custodian.

(10) Secretary refers to the Secretary of the DSWD or his duly authorized representative.

(11) Conspicuous Place shall refer to a place frequented by the public, where by notice of the petition
shall be posted for information of any interested person.

(12) Social Case Study Report (SCSR) shall refer to a written report of the result of an assessment
conducted by a licensed social worker as to the social-cultural economic condition, psychosocial background,
current functioning and facts of abandonment or neglect of the child. The report shall also state the efforts of
social worker to locate the child's biological parents/relatives.

Section 3. Petition. – The petition shall be in the form of an affidavit, subscribed and sworn to
before any person authorized by law to administer oaths. It shall contain facts necessary to establish the
merits of the petition and shall state the circumstances surrounding the abandonment or neglect of the child.

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 The petition shall be supported by the following documents:

(1) Social Case Study Report made by the DSWD, local government unit, licensed or accredited child-
caring or child-placing agency or institution charged with the custody of the child;

(2) Proof that efforts were made to locate the parent(s) or any known relatives of the child. The
following shall be considered sufficient:

(a) Written certification from a local or national radio or television station that the case was aired on
three (3) different occasions;

(b) Publication in one (1) newspaper of general circulation;

(c) Police report or barangay certification from the locality where the child was found or a certified copy
of a tracing report issued by the Philippine National Red Cross (PNRC), National Headquarters (NHQ), Social
Service Division, which states that despite due diligence, the child's parents could not be found; and

(d) Returned registered mail to the last known address of the parent(s) or known relatives, if any.

(3) Birth certificate, if available; and

(4) Recent photograph of the child and photograph of the child upon abandonment or admission to the
agency or institution.

Section 4. Procedure for the Filing of the Petition. – The petition shall be filed in the regional
office of the DSWD where the child was found or abandoned.

The Regional Director shall examine the petition and its supporting documents, if sufficient in form and
substance and shall authorize the posting of the notice of the petition conspicuous place for five (5)
consecutive days in the locality where the child was found.

The Regional Director shall act on the same and shall render a recommendation not later than five (5)
working days after the completion of its posting. He/she shall transmit a copy of his/her recommendation and
records to the Office of the Secretary within forty-eight (48) hours from the date of the recommendation.

Section 5. Declaration of Availability for Adoption. – Upon finding merit in the petition, the
Secretary shall issue a certification declaring the child legally available for adoption within seven (7) working
days from receipt of the recommendation.

Said certification, by itself shall be the sole basis for the immediate issuance by the local civil registrar
of a foundling certificate. Within seven (7) working days, the local civil registrar shall transmit the founding
certificate to the National Statistic Office (NSO).

Section 6. Appeal. – The decision of the Secretary shall be appealable to the Court of Appeals within
five (5) days from receipt of the decision by the petitioner, otherwise the same shall be final and executory.

Section 7. Declaration of Availability for Adoption of Involuntarily Committed Child and

Voluntarily Committed Child. – The certificate declaring a child legally available for adoption in case of an
involuntarily committed child under Article 141, paragraph 4(a) and Article 142 of Presidential Decree No. 603
shall be issued by the DSWD within three (3) months following such involuntary commitment.

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 In case of voluntary commitment as contemplated in Article 154 of Presidential Decree No. 603, the
certification declaring the child legally available for adoption shall be issued by the Secretary within three (3)
months following the filing of the Deed of Voluntary Commitment, as signed by the parent(s) with the DSWD.

Upon petition filed with the DSWD, the parent(s) or legal guardian who voluntarily committed a child
may recover legal custody and parental authority over him/her from the agency or institution to which such
child was voluntarily committed when it is shown to the satisfaction of the DSWD that the parent(s) or legal
guardian is in a position to adequately provide for the needs of the child: Provided, That, the petition for
restoration is filed within (3) months after the signing of the Deed of Voluntary Commitment.

Section 8. Certification. – The certification that a child is legally available for adoption shall be
issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature.

The certification, shall be, for all intents and purposes, the primary evidence that the child is legally
available in a domestic adoption proceeding, as provided in Republic Act No. 8552 and in an inter-country
adoption proceeding, as provided in Republic Act No. 8043.

Section. 9. Implementing Rules and Regulations. – The DSWD, together with the Council for
Welfare of Children, Inter-Country Adoption Board, two (2) representatives from licensed or accredited child-
placing and child-caring agencies or institution, National Statistics Office and Office of the Civil Registrar, is
hereby tasked to draft the implementing rules and regulations of this Act within sixty (60) days following its
complete publication.

Upon effectivity of this Act and pending the completion of the drafting of the implementing rules and
regulations, petitions for the issuance of a certification declaring a child legally available for adoption may be
filled with the regional office of the DSWD where the child was found or abandoned.

Section 10. Penalty. – The penalty of One hundred thousand pesos (P100,000.00) to Two hundred
thousand pesos (P200,000.00) shall be imposed on any person, institution, or agency who shall place a child
for adoption without the certification that the child is legally available for adoption issued by the DSWD. Any
agency or institution found violating any provision of this Act shall have its license to operate revoked without
prejudice to the criminal prosecution of its officers and employees.

Violation of any provision of this Act shall subject the government official or employee concerned to
appropriate administrative, civil and/or criminal sanctions, including suspension and/or dismissal from the
government service and forfeiture of benefits.

Section 11. Repealing Clause. – Sections 2(c)(iii), 3(b), (e) and 8(a) of Republic Act No. 8552,
Section 3(f) of Republic Act No. 8043, Chapter 1 of Title VII, and VIII of Presidential Decree No. 603 and any
law, presidential decree, executive order, letter of instruction, administrative order, rule, or regulation contrary
to or inconsistent with the provisions of this Act are hereby reprealed, modified or amended accordingly.

Section 12. Separability Clause. – If any provision of this Act is held invalid or unconstitutional, the
other provisions not affected thereby shall remain valid and subsisting.

Section 13. Effectivity. – This Act shall take effect fifteen (15) days following its complete
publication in two (2) newspapers of general circulation or in the Official Gazette.

Approved: March 12, 2009.

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Appendix “I”

REPUBLIC ACT NO. 8043

. AN ACT ESTABLISHING THE RULES TO GOVERN INTER-COUNTRY ADOPTION OF

FILIPINO CHILDREN, AND FOR OTHER PURPOSES.

ARTICLE I
GENERAL PROVISIONS

Section 1. Short Title. — This Act shall be known as the "Inter-Country Adoption Act of
1995."

Sec. 2. Declaration of Policy. — It is hereby declared the policy of the State to

provide every neglected and abandoned child with a family that will provide such child with love
and care as well as opportunities for growth and development. Towards this end, efforts shall be
exerted to place the child with an adoptive family in the Philippines. However, recognizing that
inter-country adoption may be considered as allowing aliens not presently allowed by law to
adopt Filipino children if such children cannot be adopted by qualified Filipino citizens or aliens,
the State shall take measures to ensure that inter-country adoptions are allowed when the same
shall prove beneficial to the child's best interests, and shall serve and protect his/her
fundamental rights.

Sec. 3. Definition of Terms. — As used in this Act. the term:

(a) Inter-country adoption refers to the socio-legal process of adopting a Filipino

child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed,
the supervised trial custody is undertaken, and the decree of adoption is issued outside the
Philippines.

(b) Child means a person below fifteen (15) years of age unless sooner emancipated
by law.

(c) Department refers to the Department of Social Welfare and Development of the
Republic of the Philippines.

(d) Secretary refers to the Secretary of the Department of Social Welfare and
Development.

(e) Authorized and accredited agency refers to the State welfare agency or a
licensed adoption agency in the country of the adopting parents which provide comprehensive
social services and which is duly recognized by the Department.
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 (f) Legally-free child means a child who has been voluntarily or involuntarily
committed to the Department, in accordance with the Child and Youth Welfare Code.

(g) Matching refers to the judicious pairing of the adoptive child and the applicant
to promote a mutually satisfying parent-child relationship.

(h) Board refers to the Inter-country Adoption Board.

ARTICLE II
THE INTER-COUNTRY ADOPTION BOARD

Sec. 4. The Inter-Country Adoption Board. — There is hereby created the Inter-
Country Adoption Board, hereinafter referred to as the Board to act as the central authority in
matters relating to inter-country adoption. It shall act as the policy-making body for purposes of
carrying out the provisions of this Act, in consultation and coordination with the Department, the
different child-care and placement agencies, adoptive agencies, as well as non-governmental
organizations engaged in child-care and placement activities. As such, it shall:

(a) Protect the Filipino child from abuse, exploitation, trafficking and/or sale or any
other practice in connection with adoption which is harmful, detrimental, or prejudicial to the
child;

(b) Collect, maintain, and preserve confidential information about the child and the
adoptive parents;

(c) Monitor, follow up, and facilitate completion of adoption of the child through
authorized and accredited agency;

(d) Prevent improper financial or other gain in connection with an adoption and
deter improper practices contrary to this Act;

(e) Promote the development of adoption services including post-legal adoption;

(f) License and accredit child-caring/placement agencies and collaborate with them
in the placement of Filipino children;

(g) Accredit and authorize foreign adoption agency in the placement of Filipino
children in their own country; and

(h) Cancel the license to operate and blacklist the child-caring and placement
agency or adoptive agency involved from the accreditation list of the Board upon a finding of
violation of any provision under this Act.

Sec. 5. Composition of the Board. — The Board shall be composed of the Secretary of
the Department as ex officio Chairman, and six (6) other members to be appointed by the
President for a nonrenewable term of six (6) years: Provided, That there shall be appointed one
(1) psychiatrist or psychologist, two (2) lawyers who shall have at least the qualifications of a
regional trial court judge, one (1) registered social worker and two (2) representatives from non-
governmental organizations engaged in child-caring and placement activities. The members of
the Board shall receive a per diem allowance of One thousand five hundred pesos (P1,500) for

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each meeting attended by them: Provided, further, That no compensation shall be paid for more
than four (4) meetings a month.

Sec. 6. Powers and Functions of the Board. — The Board shall have the following
powers and functions:

(a) to prescribe rules and regulations as it may deem reasonably necessary to carry
out the provisions of this Act, after consultation and upon favorable recommendation of the
different agencies concerned with the child-caring, placement, and adoption;

(b) to set the guidelines for the convening of an Inter-country Adoption Placement
Committee which shall be under the direct supervision of the Board;

(c) to set the guidelines for the manner by which selection/matching of prospective
adoptive parents and adoptive child can be made;

(d) to determine a reasonable schedule of fees and charges to be exacted in

connection with the application for adoption;

(e) to determine the form and contents of the application for inter-country
adoption;

(g) to institute systems and procedures to prevent improper financial gain in

connection with adoption and deter improper practices which are contrary to this Act;

(h) to promote the development of adoption services, including post-legal adoption

services,

(i) to accredit and authorize foreign private adoption agencies which have
demonstrated professionalism, competence and have consistently pursued non-profit objectives
to engage in the placement of Filipino children in their own country: Provided, That such foreign
private agencies are duly authorized and accredited by their own government to conduct inter-
country adoption: Provided, however, That the total number of authorized and accredited foreign
private adoption agencies shall not exceed one hundred (100) a year;

(j) to take appropriate measures to ensure confidentiality of the records of the child,
the natural parents and the adoptive parents at all times;

(k) to prepare, review or modify, and thereafter, recommend to the Department of

Foreign Affairs, Memoranda of Agreement respecting inter-country adoption consistent with the
implementation of this Act and its stated goals, entered into, between and among foreign
governments, international organizations and recognized international non-governmental
organizations;

(l) to assist other concerned agencies and the courts in the implementation of this
Act, particularly as regards coordination with foreign persons, agencies and other entities
involved in the process of adoption and the physical transfer of the child; and

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 (m) to perform such other functions on matters relating to inter-country adoption as
may be determined by the President.

ARTICLE III
PROCEDURE

Sec. 7. Inter-Country Adoption as the Last Resort. — The Board shall ensure that all
possibilities for adoption of the child under the Family Code have been exhausted and that inter-
country adoption is in the best interest of the child. Towards this end, the Board shall set up the
guidelines to ensure that steps will be taken to place the child in the Philippines before the child
is placed for inter-country adoption: Provided, however, That the maximum number that may be
allowed for foreign adoption shall not exceed six hundred (600) a year for the first five (5) years.

Sec. 8. Who May be Adopted. — Only a legally free child may be the subject of inter-
country adoption. In order that such child may be considered for placement, the following
documents must be submitted to the Board:

(a)Child study;

(b)Birth certificate/foundling certificate;

(c)Deed of voluntary commitment/decree of abandonment/death certificate of

parents;

(d)Medical evaluation /history;

(e)Psychological evaluation, as necessary; and

(f)Recent photo of the child.

Sec. 9. Who May Adopt. — An alien or a Filipino citizen permanently residing abroad
may file an application for inter-country adoption of a Filipino child if he/she:

(a) is at least twenty-seven (27) years of age and at least sixteen (16) years older
than the child to be adopted, at the time of application unless the adopter is the parent by nature
of the child to be adopted or the spouse of such parent:

(b) if married, his/her spouse must jointly file for the adoption;

(c) has the capacity to act and assume all rights and responsibilities of parental
authority under his national laws, and has undergone the appropriate counseling from an
accredited counselor in his/her country;

(d) has not been convicted of a crime involving moral turpitude;

(e) is eligible to adopt under his/her national law;

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 (f) is in a position to provide the proper care and support and to give the necessary
moral values and example to all his children, including the child to be adopted;

(g) agrees to uphold the basic rights of the child as embodied under Philippine laws,
the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued
to implement the provisions of this Act;

(h) comes from a country with whom the Philippines has diplomatic relations and
whose government maintains a similarly authorized and accredited agency and that adoption is
allowed under his/her national laws; and

(i) possesses all the qualifications and none of the disqualifications provided herein
and in other applicable Philippine laws.

Sec. 10. Where to File Application. — An application to adopt a Filipino child shall be
filed either with the Philippine Regional Trial Court having jurisdiction over the child, or with the
Board, through an intermediate agency, whether governmental or an authorized and accredited
agency, in the country of the prospective adoptive parents, which application shall be in
accordance with the requirements as set forth in the implementing rules and regulations to be
promulgated by the Board.

The application shall be supported by the following documents written and officially
translated in English.

(a.) Birth certificate of applicant(s);

(b) Marriage contract, if married, and divorce decree, if applicable;

(c) Written consent of their biological or adoptive children above ten (10) years of
age, in the form of sworn statement;

(d) Physical, medical and psychological evaluation by a duly licensed physician and
psychologist;

(e) Income tax returns or any document showing the financial capability of the
applicant(s);

(f) Police clearance of applicant(s);

(g) Character reference from the local church/minister, the applicant's employer
and a member of the immediate community who have known the applicant(s) for at least five (5)
years; and

(h) Recent postcard-size pictures of the applicant(s) and his immediate family;

The Rules of Court shall apply in case of adoption by judicial proceedings.

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 Sec. 11. Family Selection/Matching. — No child shall be matched to a foreign
adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. The
clearance, as issued by the Board, with the copy of the minutes of the meetings, shall form part
of the records of the child to be adopted. When the Board is ready to transmit the Placement
Authority to the authorized and accredited inter-country adoption agency and all the travel
documents of the child are ready, the adoptive parents, or any one of them, shall personally fetch
the child in the Philippines.

Sec. 12. Pre-adoptive Placement Costs. — The applicant(s) shall bear the following
costs incidental to the placement of the child;

(a) The cost of bringing the child from the Philippines to the residence of the
applicant(s) abroad, including all travel expenses within the Philippines and abroad; and

(b) The cost of passport, visa, medical examination and psychological evaluation
required, and other related expenses.

Sec. 13. Fees, Charges and Assessments. — Fees, charges, and assessments
collected by the Board in the exercise of its functions shall be used solely to process applications
for inter-country adoption and to support the activities of the Board.

Sec. 14. Supervision of Trial Custody. — The governmental agency or the authorized
and accredited agency in the country of the adoptive parents which filed the application for inter-
country adoption shall be responsible for the trial custody and the care of the child. It shall also
provide family counseling and other related services. The trial custody shall be for a period of six
(6) months from the time of placement. Only after the lapse of the period of trial custody shall a
decree of adoption be issued in the said country a copy of which shall be sent to the Board to
form part of the records of the child.

During the trial custody, the adopting parent(s) shall submit to the governmental
agency or the authorized and accredited agency, which shall in turn transmit a copy to the Board,
a progress report of the child's adjustment. The progress report shall be taken into consideration
in deciding whether or not to issue the decree of adoption.

The Department of Foreign Affairs shall set up a system by which Filipino children
sent abroad for trial custody are monitored and checked as reported by the authorized and
accredited inter-country adoption agency as well as the repatriation to the Philippines of a
Filipino child whose adoption has not been approved.

Sec. 15. Executive Agreements. — The Department of Foreign Affairs, upon

representation of the Board, shall cause the preparation of Executive Agreements with countries
of the foreign adoption agencies to ensure the legitimate concurrence of said countries in
upholding the safeguards provided by this Act.

ARTICLE IV
PENALTIES

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 Sec. 16. Penalties. — (a) Any person who shall knowingly participate in the conduct
or carrying out of an illegal adoption, in violation of the provisions of this Act, shall be punished
with a penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years
and/or a fine of not less than Fifty thousand pesos (P50,000), but not more than Two hundred
thousand pesos (P200.000), at the discretion of the court. For purposes of this Act, an adoption is
illegal if it is effected in any manner contrary to the provisions of this Act or established State
policies, its implementing rules and regulations, executive agreements, and other laws pertaining
to adoption. Illegality may be presumed from the following acts:

(1)consent for an adoption was acquired through, or attended by coercion, fraud,

improper material inducement;

(2)there is no authority from the Board to effect adoption;

(3)the procedures and safeguards placed under the law for adoption were not
complied with; and

(4)the child to be adopted is subjected to, or exposed to danger, abuse and

exploitation.

(b)Any person who shall violate established regulations relating to the

confidentiality and integrity of records, documents and communications of adoption applications,
cases and processes shall suffer the penalty of imprisonment ranging from one (1) year and one
(1) day to two (2) years, and/or a fine of not less than Five thousand pesos (P5,000), but not
more than Ten thousand pesos (P10,000), at the discretion of the court.

A penalty lower by two (2) degrees than that prescribed for the consummated
felony under this Article shall be imposed upon the principals of the attempt to commit any of the
acts herein enumerated.

Acts punishable under this Article, when committed by a syndicate or where it

involves two or more children shall be considered as an offense constituting child trafficking and
shall merit the penalty of reclusion perpetua.

Acts punishable under this Article are deemed committed by a syndicate if carried
out by a group of three (3) or more persons conspiring and/or confederating with one another in
carrying out any of the unlawful acts defined under this Article.Penalties as are herein provided
shall be in addition to any other penalties which may be imposed for the same acts punishable
under other laws, ordinances, executive orders, and proclamations.

Sec. 17. Public Officers as Offenders. — Any government official, employee or

functionary who shall be found guilty of violating any of the provisions of this Act, or who shall
conspire with private individuals shall, in addition to the above-prescribed penalties, be
penalized in accordance with existing civil service laws, rules and regulations: Provided, That
upon the filing of a case, either administrative or criminal, said government official, employee or
functionary concerned shall automatically suffer suspension until the resolution of the case.

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ARTICLE V
FINAL PROVISIONS

Sec. 18. Implementing Rules and Regulations. — The Inter-country Adoption Board,
in coordination with the Council for the Welfare of Children, the Department of Foreign Affairs,
and the Department of Justice, after due consultation with agencies involved in child-care and
placement, shall promulgate the necessary rules and regulations to implement the provisions of
this Act within six (6) months after its effectivity.

Sec. 19. Appropriations. — The amount of Five million pesos (P5,000,000) is hereby
appropriated from the proceeds of the Lotto for the initial operations of the Board and
subsequently the appropriations of the same shall be included in the General Appropriations Act
for the year following its enactment.

Sec. 20. Separability Clause. — If any provision, or part hereof is held invalid or
unconstitutional, the remainder of the law or the provision not otherwise affected, shall remain
valid and subsisting.

Sec. 21. Repealing Clause. — Any law, decree, executive order, administrative order
or rules and regulations contrary to, or inconsistent with the provisions of this Act are hereby
repealed, modified or amended accordingly.

Sec. 22. Effectivity Clause. — This Act shall take effect fifteen (15) days after its
publication in two (2) newspapers of general circulation.

Approved: June 7, 1995

APPENDIX “J”

RULE ON ADOPTION
(A.M. No. 02-6-02-SC)

A. DOMESTIC ADOPTION

SECTION 1. Applicability of the Rule. – This Rule covers the domestic adoption of Filipino children.
SEC. 2. Objectives. – (a) The best interests of the child shall be the paramount consideration in all
matters relating to his care, custody and adoption, in accordance with Philippine laws, the United Nations (UN)
Convention on the Rights of the Child, UN Declaration on Social and Legal Principles Relating to the Protection
and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and
Internationally, and the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-
country Adoption.
(b) The State shall provide alternative protection and assistance through foster care or adoption for
every child who is a foundling, neglected, orphaned, or abandoned. To this end, the State shall:
(i) ensure that every child remains under the care and custody of his parents and is provided
with love, care, understanding and security for the full and harmonious development of his personality. Only

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when such efforts prove insufficient and no appropriate placement or adoption within the child’s extended
family is available shall adoption by an unrelated person be considered.
(ii) safeguard the biological parents from making hasty decisions in relinquishing their parental
authority over their child;
(iii) prevent the child from unnecessary separation from his biological parents;
(iv) conduct public information and educational campaigns to promote a positive environment
for adoption;
(v) ensure that government and private sector agencies have the capacity to handle adoption
inquiries, process domestic adoption applications and offer adoption-related services including, but not limited
to, parent preparation and post-adoption education and counseling;
(vi) encourage domestic adoption so as to preserve the child’s identity and culture in his native
land, and only when this is not available shall inter-country adoption be considered as a last resort; and
(vii) protect adoptive parents from attempts to disturb their parental authority and custody over
their adopted child.
Any voluntary or involuntary termination of parental authority shall be administratively or judicially
declared so as to establish the status of the child as “legally available for adoption” and his custody transferred
to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or
child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child.

SEC. 3. Definition of Terms. – For purposes of this Rule:

(a.) “Child” is a person below eighteen (18) years of age at the time of the filing of the petition for
adoption.

(b.)“A child legally available for adoption” refers to a child who has been voluntarily or involuntarily
committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of
the parental authority of his biological parents, or in case of rescission of adoption, his guardian or adopter(s).

(c.) “Voluntarily committed child” is one whose parents knowingly and willingly relinquish parental
authority over him in favor of the Department.

(d.)“Involuntarily committed child” is one whose parents, known or unknown, have been permanently
and judicially deprived of parental authority over him due to abandonment; substantial, continuous or
repeated neglect and abuse; or incompetence to discharge parental responsibilities.

(e.) “Foundling” refers to a deserted or abandoned infant or child whose parents, guardian or relatives
are unknown; or a child committed to an orphanage or charitable or similar institution with unknown facts of
birth and parentage and registered in the Civil Register as a “foundling.”

(f.) “Abandoned child” refers to one who has no proper parental care or guardianship or whose parents
have deserted him for a period of at least six (6) continuous months and has been judicially declared as such.

(g.) Dependent child” refers to one who is without a parent, guardian or custodian or one whose
parents, guardian or other custodian for good cause desires to be relieved of his care and custody and is
dependent upon the public for support.

(h.) “Neglected child” is one whose basic needs have been deliberately not attended to or
inadequately attended to, physically or emotionally, by his parents or guardian.

(i.) “Physical neglect” occurs when the child is malnourished, ill-clad and without proper shelter.

(j.) “Emotional neglect” exists when a child is raped, seduced, maltreated, exploited, overworked or
made to work under conditions not conducive to good health or made to beg in the streets or public places, or
placed in moral danger, or exposed to drugs, alcohol, gambling, prostitution and other vices.
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 (k.) “Child-placement agency” refers to an agency duly licensed and accredited by the Department to
provide comprehensive child welfare services including, but not limited to, receiving applications for adoption,
evaluating the prospective adoptive parents and preparing the adoption home study report.

(l.) “Child-caring agency” refers to an agency duly licensed and accredited by the Department that
provides 24-hour residential care services for abandoned, orphaned, neglected or voluntarily committed
children.

(m.) “Department” refers to the Department of Social Welfare and Development.

(n.) “Deed of Voluntary Commitment” refers to the written and notarized instrument relinquishing
parental authority and committing the child to the care and custody of the Department executed by the child’s
biological parents or in their absence, mental incapacity or death, by the child’s legal guardian, to be witnessed
by an authorized representative of the Department after counseling and other services have been made
available to encourage the biological parents to keep the child.

(o.) “Child Study Report” refers to a study made by the court social worker of the child’s legal status,
placement history, psychological, social, spiritual, medical, ethno-cultural background and that of his biological
family needed in determining the most appropriate placement for him.

(p.) “Home Study Report” refers to a study made by the court social worker of the motivation and
capacity of the prospective adoptive parents to provide a home that meets the needs of a child.

(q.) “Supervised trial custody” refers to the period of time during which a social worker oversees the
adjustment and emotional readiness of both adopters and adoptee in stabilizing their filial relationship.

(r.) “Licensed Social Worker” refers to one who possesses a degree in bachelor of science in social
work as a minimum educational requirement and who has passed the government licensure examination for
social workers as required by Republic Act No. 4373.

(s.) “Simulation of birth” is the tampering of the civil registry to make it appear in the birth records that
a certain child was born to a person who is not his biological mother, thus causing such child to lose his true
identity and status.

(t.) “Biological Parents” refer to the child’s mother and father by nature.

(u.) Pre-Adoption Services” refer to psycho-social services provided by professionally-trained social

workers of the Department, the social services units of local governments, private and government health
facilities, Family Courts, licensed and accredited child-caring and child-placement agencies and other
individuals or entities involved in adoption as authorized by the Department.

(v.) “Residence” means a person’s actual stay in the Philippines for three (3) continuous years
immediately prior to the filing of a petition for adoption and which is maintained until the adoption decree is
entered. Temporary absences for professional, business, health, or emergency reasons not exceeding sixty
(60) days in one (1) year does not break the continuity requirement.

(w.) “Alien” refers to any person, not a Filipino citizen, who enters and remains in the Philippines and is
in possession of a valid passport or travel documents and visa.

SEC. 4. Who may adopt. – The following may adopt:

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 (1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good
moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and
psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in
a position to support and care for his children in keeping with the means of the family. The requirement of a
16-year difference between the age of the adopter and adoptee may be waived when the adopter is the
biological parent of the adoptee or is the spouse of the adoptee’s parent;

(2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That
his country has diplomatic relations with the Republic of the Philippines, that he has been living in the
Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains
such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular
office or any appropriate government agency to have the legal capacity to adopt in his country, and that his
government allows the adoptee to enter his country as his adopted child. Provided, further, That the
requirements on residency and certification of the alien’s qualification to adopt in his country may be waived
for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4 th) degree of
consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate child of his Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative
within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

(3) The guardian with respect to the ward after the termination of the guardianship and clearance
of his financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate child of one spouse by the other
spouse; or

(ii) if one spouse seeks to adopt his own illegitimate child: Provided, however, That
the other spouse has signified his consent thereto; or

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

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

SEC. 5. Who may be adopted. – The following may be adopted:

(1) Any person below eighteen (18) years of age who has been voluntarily committed to the
Department under Articles 154, 155 and 156 of P.D. No. 603 or judicially declared available for adoption;
(2) The legitimate child of one spouse, by the other spouse;
(3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy;
(4.)A person of legal age regardless of civil status, if, prior to the adoption, said person has been
consistently considered and treated by the adopters as their own child since minority;
(5.) A child whose adoption has been previously rescinded; or

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 (6.)A child whose biological or adoptive parents have died: Provided, That no proceedings shall be
initiated within six (6) months from the time of death of said parents.
(7.) A child not otherwise disqualified by law or these rules.

SEC. 6. Venue. – The petition for adoption shall be filed with the Family Court of the province or city
where the prospective adoptive parents reside.

SEC. 7. Contents of the Petition. – The petition shall be verified and specifically state at the heading of
the initiatory pleading whether the petition contains an application for change of name, rectification of
simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned,
dependent or neglected.
(1.) If the adopter is a Filipino citizen, the petition shall allege the following:
(a.) The jurisdictional facts;

(b.)That the petitioner is of legal age, in possession of full civil capacity and legal rights; is of
good moral character; has not been convicted of any crime involving moral turpitude; is emotionally
and psychologically capable of caring for children; is at least sixteen (16) years older than the adoptee,
unless the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent; and
is in a position to support and care for his children in keeping with the means of the family and has
undergone pre-adoption services as required by Section 4 of Republic Act No. 8552.

(2.) If the adopter is an alien, the petition shall allege the following:

(a.)The jurisdictional facts;

(b.) Sub-paragraph 1(b) above;

(c.)That his country has diplomatic relations with the Republic of the Philippines;

(d.)That he has been certified by his diplomatic or consular office or any appropriate
government agency to have the legal capacity to adopt in his country and his government
allows the adoptee to enter his country as his adopted child and reside there permanently as an
adopted child; and

(e.)That he has been living in the Philippines for at least three (3) continuous years prior to the
filing of the petition and he maintains such residence until the adoption decree is entered.

The requirements of certification of the alien’s qualification to adopt in his country and of residency
may be waived if the alien:
(i) is a former Filipino citizen who seeks to adopt a relative within the fourth degree of consanguinity
or affinity; or
(ii) seeks to adopt the legitimate child of his Filipino spouse; or
(iii) is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the
fourth degree of consanguinity or affinity of the Filipino spouse.

(3.) If the adopter is the legal guardian of the adoptee, the petition shall allege that guardianship had
been terminated and the guardian had cleared his financial accountabilities.

(4.) If the adopter is married, the spouse shall be a co-petitioner for joint adoption except if:

(a) one spouse seeks to adopt the legitimate child of the other, or

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 (b) if one spouse seeks to adopt his own illegitimate child and the other spouse signified written
consent thereto, or
(c) if the spouses are legally separated from each other.

(5.) If the adoptee is a foundling, the petition shall allege the entries which should appear in his birth
certificate, such as name of child, date of birth, place of birth, if known; sex, name and citizenship of adoptive
mother and father, and the date and place of their marriage.

(6.) If the petition prays for a change of name, it shall also state the cause or reason for the change of
name.

In all petitions, it shall be alleged:

(a) The first name, surname or names, age and residence of the adoptee as shown by his
record of birth, baptismal or foundling certificate and school records.
(b) That the adoptee is not disqualified by law to be adopted.
(c) The probable value and character of the estate of the adoptee.
(d) The first name, surname or names by which the adoptee is to be known and registered in
the Civil Registry.

A certification of non-forum shopping shall be included pursuant to Section 5, Rule 7 of the 1997 Rules
of Civil Procedure.

Sec. 8. Rectification of Simulated Birth. – In case the petition also seeks rectification of a simulated of
birth, it shall allege that:

(a) Petitioner is applying for rectification of a simulated birth;

(b) The simulation of birth was made prior to the date of effectivity of Republic Act
No. 8552 and the application for rectification of the birth registration and the petition for
adoption were filed within five years from said date;
(c) The petitioner made the simulation of birth for the best interests of the adoptee;
and
(d) The adoptee has been consistently considered and treated by petitioner as his
own child.

SEC. 9. Adoption of a foundling, an abandoned, dependent or neglected child. – In case the adoptee
is a foundling, an abandoned, dependent or neglected child, the petition shall allege:

(a) The facts showing that the child is a foundling, abandoned, dependent or
neglected;
(b) The names of the parents, if known, and their residence. If the child has no
known or living parents, then the name and residence of the guardian, if any;
(c) The name of the duly licensed child-placement agency or individual under whose
care the child is in custody; and
(d) That the Department, child-placement or child-caring agency is authorized to
give its consent.

SEC. 10. Change of name. – In case the petition also prays for change of name, the title or caption
must contain:
(a) he registered name of the child;
(b) Aliases or other names by which the child has been known; and
(c) The full name by which the child is to be known.
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 SEC. 11. Annexes to the Petition. – The following documents shall be attached to the petition:

A. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name,
age and residence of the adoptee;

B. Affidavit of consent of the following:

1. The adoptee, if ten (10) years of age or over;
2. The biological parents of the child, if known, or the legal guardian, or the child-placement
agency, child-caring agency, or the proper government instrumentality which has legal custody of
the child;
3. The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10)
years of age or over;
4. The illegitimate children of the adopter living with him who are ten (10) years of age or over;
and
5. The spouse, if any, of the adopter or adoptee.

C. Child study report on the adoptee and his biological parents;

D. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate
government agency that he has the legal capacity to adopt in his country and that his government
allows the adoptee to enter his country as his own adopted child unless exempted under Section
4(2);

E.Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to
adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country
Adoption Board; and

F. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological
parents of the adoptee, if any.

SEC. 12. Order of Hearing. – If the petition and attachments are sufficient in form and substance, the
court shall issue an order which shall contain the following:

(1.) the registered name of the adoptee in the birth certificate and the names by which the adoptee
has been known which shall be stated in the caption;

(2.) the purpose of the petition;

(3.)the complete name which the adoptee will use if the petition is granted;

(4.) the date and place of hearing which shall be set within six (6) months from the date of the
issuance of the order and shall direct that a copy thereof be published before the date of hearing at least once
a week for three successive weeks in a newspaper of general circulation in the province or city where the
court is situated; Provided, that in case of application for change of name, the date set for hearing shall not be
within four (4) months after the last publication of the notice nor within thirty (30) days prior to an election.

The newspaper shall be selected by raffle under the supervision of the Executive Judge.

(5.) a directive to the social worker of the court, the social service office of the local government unit
or any child-placing or child-caring agency, or the Department to prepare and submit child and home study
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reports before the hearing if such reports had not been attached to the petition due to unavailability at the
time of the filing of the latter; and

(6.) a directive to the social worker of the court to conduct counseling sessions with the biological
parents on the matter of adoption of the adoptee and submit her report before the date of hearing.

At the discretion of the court, copies of the order of hearing shall also be furnished the Office of the
Solicitor General through the provincial or city prosecutor, the Department and the biological parents of the
adoptee, if known.
If a change in the name of the adoptee is prayed for in the petition, notice to the Solicitor General shall
be mandatory.

SEC. 13. Child and Home Study Reports. – In preparing the child study report on the adoptee, the
concerned social worker shall verify with the Civil Registry the real identity and registered name of the
adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of
the social worker to register the adoptee and secure a certificate of foundling or late registration, as the case
may be.

The social worker shall establish that the child is legally available for adoption and the documents in
support thereof are valid and authentic, that the adopter has sincere intentions and that the adoption shall
inure to the best interests of the child.

In case the adopter is an alien, the home study report must show the legal capacity to adopt and that
his government allows the adoptee to enter his country as his adopted child in the absence of the certification
required under Section 7(b) of Republic Act No. 8552.

If after the conduct of the case studies, the social worker finds that there are grounds to deny the
petition, he shall make the proper recommendation to the court, furnishing a copy thereof to the petitioner.

SEC. 14. Hearing. – Upon satisfactory proof that the order of hearing has been published and
jurisdictional requirements have been complied with, the court shall proceed to hear the petition. The
petitioner and the adoptee must personally appear and the former must testify before the presiding judge of
the court on the date set for hearing.

The court shall verify from the social worker and determine whether the biological parent has been
properly counseled against making hasty decisions caused by strain or anxiety to give up the child; ensure that
all measures to strengthen the family have been exhausted; and ascertain if any prolonged stay of the child in
his own home will be inimical to his welfare and interest.

SEC. 15. Supervised Trial Custody. – Before issuance of the decree of adoption, the court shall give
the adopter trial custody of the adoptee for a period of at least six (6) months within which the parties are
expected to adjust psychologically and emotionally to each other and establish a bonding relationship. The
trial custody shall be monitored by the social worker of the court, the Department, or the social service of the
local government unit, or the child-placement or child-caring agency which submitted and prepared the case
studies. During said period, temporary parental authority shall be vested in the adopter.

The court may, motu proprio or upon motion of any party, reduce the period or exempt the parties if it
finds that the same shall be for the best interests of the adoptee, stating the reasons therefor.

An alien adopter however must complete the 6-month trial custody except the following:
a) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or
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 b) one who seeks to adopt the legitimate child of his Filipino spouse; or
c) one who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse
the latter’s relative within the fourth (4th) degree of consanguinity or affinity.

If the child is below seven (7) years of age and is placed with the prospective adopter through a pre-
adoption placement authority issued by the Department, the court shall order that the prospective adopter
shall enjoy all the benefits to which the biological parent is entitled from the date the adoptee is placed with
him.

The social worker shall submit to the court a report on the result of the trial custody within two weeks
after its termination.

SEC. 16. Decree of Adoption. – If the supervised trial custody is satisfactory to the parties and the
court is convinced from the trial custody report and the evidence adduced that the adoption shall redound to
the best interests of the adoptee, a decree of adoption shall be issued which shall take effect as of the date
the original petition was filed even if the petitioners die before its issuance.

The decree shall:

A. State the name by which the child is to be known and registered;

B. Order:

1) the Clerk of Court to issue to the adopter a certificate of finality upon expiration of the 15-day
reglementary period within which to appeal;

2) the adopter to submit a certified true copy of the decree of adoption and the certificate of
finality to the Civil Registrar where the child was originally registered within thirty (30) days
from receipt of the certificate of finality. In case of change of name, the decree shall be
submitted to the Civil Registrar where the court issuing the same is situated
.
(3.) the Civil Registrar of the place where the adoptee was registered:

a. to annotate on the adoptee’s original certificate of birth the decree of adoption

within thirty (30) days from receipt of the certificate of finality;

b. to issue a certificate of birth which shall not bear any notation that it is a new or
amended certificate and which shall show, among others, the following: registry number, date of
registration, name of child, sex, date of birth, place of birth, name and citizenship of adoptive
mother and father, and the date and place of their marriage, when applicable;

c. to seal the original certificate of birth in the civil registry records which can be
opened only upon order of the court which issued the decree of adoption; and

d. to submit to the court issuing the decree of adoption proof of compliance with all
the foregoing within thirty days from receipt of the decree.

If the adoptee is a foundling, the court shall order the Civil Registrar where the foundling was
registered, to annotate the decree of adoption on the foundling certificate and a new birth certificate shall be
ordered prepared by the Civil Registrar in accordance with the decree.

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 SEC. 17. Book of Adoptions. – The Clerk of Court shall keep a book of adoptions showing the date of
issuance of the decree in each case, compliance by the Civil Registrar with Section 16(B)(3) and all incidents
arising after the issuance of the decree.

SEC. 18. Confidential Nature of Proceedings and Records. – All hearings in adoption cases, after
compliance with the jurisdictional requirements shall be confidential and shall not be open to the public. All
records, books and papers relating to the adoption cases in the files of the court, the Department, or any other
agency or institution participating in the adoption proceedings shall be kept strictly confidential.

If the court finds that the disclosure of the information to a third person is necessary for security
reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the
adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the
purposes for which it may be used.

SEC. 19. Rescission of Adoption of the Adoptee. – The petition shall be verified and filed by the
adoptee who is over eighteen (18) years of age, or with the assistance of the Department, if he is a minor, or
if he is over eighteen (18) years of age but is incapacitated, by his guardian or counsel.
The adoption may be rescinded based on any of the following grounds committed by the adopter:
1) repeated physical and verbal maltreatment by the adopter despite having undergone
counseling;
2) attempt on the life of the adoptee;
3) sexual assault or violence; or
4) abandonment or failure to comply with parental obligations.

Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter.
However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

SEC. 20. Venue. – The petition shall be filed with the Family Court of the city or province where the
adoptee resides.

SEC. 21. Time within which to file petition. – The adoptee, if incapacitated, must file the petition for
rescission or revocation of adoption within five (5) years after he reaches the age of majority, or if he was
incompetent at the time of the adoption, within five (5) years after recovery from such incompetency.

SEC. 22. Order to Answer. – The court shall issue an order requiring the adverse party to answer the
petition within fifteen (15) days from receipt of a copy thereof. The order and copy of the petition shall be
served on the adverse party in such manner as the court may direct.

SEC. 23. Judgment. – If the court finds that the allegations of the petition are true, it shall render
judgment ordering the rescission of adoption, with or without costs, as justice requires.
The court shall order that the parental authority of the biological parent of the adoptee, if known, or
the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated and
declare that the reciprocal rights and obligations of the adopter and the adoptee to each other shall be
extinguished.
The court shall further declare that successional rights shall revert to its status prior to adoption, as of
the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be
respected.
It shall also order the adoptee to use the name stated in his original birth or foundling certificate.
The court shall further order the Civil Registrar where the adoption decree was registered to cancel the
new birth certificate of the adoptee and reinstate his original birth or foundling certificate.

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 SEC. 24. Service of Judgment. – A certified true copy of the judgment together with a certificate of
finality issued by the Branch Clerk of the Court which rendered the decision in accordance with the preceding
Section shall be served by the petitioner upon the Civil Registrar concerned within thirty (30) days from receipt
of the certificate of finality. The Civil Registrar shall forthwith enter the rescission decree in the register and
submit proof of compliance to the court issuing the decree and the Clerk of Court within thirty (30) days from
receipt of the decree.
The Clerk of Court shall enter the compliance in accordance with Section 17 hereof.

SEC. 25. Repeal. - This supersedes Rule 99 on Adoption and Rule 100 of the Rules of Court.

B. INTER-COUNTRY ADOPTION

SEC. 26. Applicability. – The following sections apply to inter-country adoption of Filipino children by
foreign nationals and Filipino citizens permanently residing abroad.

SEC. 27. Objectives. – The State shall:

a.) consider inter-country adoption as an alternative means of child care, if the child cannot be placed
in a foster or an adoptive family or cannot, in any suitable manner, be cared for in the Philippines;
b) ensure that the child subject of inter-country adoption enjoys the same protection accorded to
children in domestic adoption; and

c) take all measures to ensure that the placement arising therefrom does not result in improper
financial gain for those involved.

SEC. 28. Where to File Petition. – A verified petition to adopt a Filipino child may be filed by a foreign
national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place
where the child resides or may be found.

It may be filed directly with the Inter-Country Adoption Board.

SEC. 29. Who may be adopted. – Only a child legally available for domestic adoption may be the
subject of inter-country adoption.

SEC. 30. Contents of Petition. – The petitioner must allege:

a.) his age and the age of the child to be adopted, showing that he is at least twenty-seven
(27) years of age and at least sixteen (16) years older than the child to be adopted at the time of
application, unless the petitioner is the parent by nature of the child to be adopted or the spouse of
such parent, in which case the age difference does not apply;
b.)if married, the name of the spouse who must be joined as co-petitioner except when the
adoptee is a legitimate child of his spouse;
c.) that he has the capacity to act and assume all rights and responsibilities of parental
authority under his national laws, and has undergone the appropriate counseling from an accredited
counselor in his country;

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 d.) that he has not been convicted of a crime involving moral turpitude;

e.) that he is eligible to adopt under his national law;

f.) that he can provide the proper care and support and instill the necessary moral values and
example to all his children, including the child to be adopted;

g.) that he agrees to uphold the basic rights of the child, as embodied under Philippine laws and
the U. N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to
implement the provisions of Republic Act No. 8043;

h.) that he comes from a country with which the Philippines has diplomatic relations and whose
government maintains a similarly authorized and accredited agency and that adoption of a Filipino child
is allowed under his national laws; and
i.)that he possesses all the qualifications and none of the disqualifications provided in this Rule,
in Republic Act No. 8043 and in all other applicable Philippine laws.

SEC. 31. Annexes. - The petition for adoption shall contain the following annexes written and officially
translated in English:

a) Birth certificate of petitioner;

b) Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the
marriage;
c) Sworn statement of consent of petitioner’s biological or adopted children above ten (10) years
of age;
d) Physical, medical and psychological evaluation of the petitioner certified by a duly licensed
physician and psychologist;
e) Income tax returns or any authentic document showing the current financial capability of the
petitioner;
f) Police clearance of petitioner issued within six (6) months before the filing of the petitioner;
g) Character reference from the local church/minister, the petitioner’s employer and a member of
the immediate community who have known the petitioner for at least five (5) years;
h) Full body postcard-size pictures of the petitioner and his immediate family taken at least six (6)
months before the filing of the petition.

SEC. 32. Duty of Court. – The court, after finding that the petition is sufficient in form and substance
and a proper case for inter-country adoption, shall immediately transmit the petition to the Inter-Country
Adoption Board for appropriate action.

SEC. 33. Effectivity. - This Rule shall take effect on August 22, 2002 following its publication in a
newspaper of general circulation.

APPENDIX “K”

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[REPUBLIC ACT NO. 7610]

AN ACT PROVIDING FOR STRONGER DETERRENCE AND

SPECIAL PROTECTION AGAINST CHILD ABUSE,

EXPLOITATION AND DISCRIMINATION, PROVIDING

PENALTIES FOR ITS VIOLATION, AND FOR OTHER

PURPOSES

Be it enacted by the Senate and House of Representatives of

the Philippines in Congress assembled:

ARTICLE I

TITLE, POLICY, PRINCIPLES AND DEFINITION OF TERMS

SECTION 1. Title. - This Act shall be known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act."

SEC. 2. Declaration of State Policy and Principles. - It is hereby declared to be the policy of the State to
provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination,
and other conditions prejudicial to their development; provide sanctions for their commission and carry out a
program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation and
discrimination.

The State shall intervene on behalf of the child when the parent, guardian, teacher or person having
care or custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination
or when such acts against the child are committed by the said parent, guardian, teacher or person having care
and custody of the same.

It shall be the policy of the State to protect and rehabilitate children gravely threatened or endangered
by circumstances which affect or will affect their survival and
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normal development and over which they have no control.

The best interests of children shall be the paramount consideration in all actions concerning them,
whether undertaken by public or private social welfare institutions, courts of law, administrative authorities,
and legislative bodies, consistent with the principle of First Call for Children as enunciated in the United
Nations Convention on the Rights of the Child. Every effort shall be exerted to promote the welfare of children
and enhance their opportunities for a useful and happy life.

SEC. 3. Definition of Terms. -

(a) "Children" refers to persons below eighteen (18) years of age or those over but are unable to fully
take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition;

(b) "Child abuse" refers to the maltreatment, whetherhabitual or not, of the child which includes any of
thefollowing:

(1) Psychological and physical abuse, neglect, cruelty,sexual abuse and emotional
maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and
dignity of a child as a humanbeing;

(3) Unreasonable deprivation of his basic needs forsurvival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious
impairment of his growthand development or in his permanent incapacity or death.

(c) "Circumstances which gravely threaten or endanger the survival and normal development of
children" include, but are not limited to, the following:

(1) Being in a community where there is armed connect or being affected by armed conflict-
related activities;

(2) Working under conditions hazardous to life, safety andmorals which unduly interfere with
their normal development;

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 (3) Living in or fending for themselves in the streets of urban or rural areas without the
care of parents or a guardian or any adult supervision needed for their welfare;

(4) Being a member of an indigenous cultural community and/or living under conditions of
extreme poverty or in an area which is underdeveloped and/or lacks or has inadequate access to basic
services needed for a good quality of life;

(5) Being a victim of a man-made or natural disaster or calamity; or

(6) Circumstances analogous to those above stated which endanger the life, safety or normal
development of children.

(d) Comprehensive program against child abuse, exploitation and discrimination" refers to the
coordinated program of services and facilities to protect children against:

(1) Child prostitution and other sexual abuse;

(2) Child trafficking;

(3) Obscene publications and indecent shows,

(4) Other acts of abuse; and

(5) Circumstances which threaten or endanger the survival

and normal development of children.

ARTICLE II

PROGRAM ON CHILD ABUSE,

EXPLOITATION AND DISCRIMINATION

SEC. 4. Formulation of the Program. - There shall be a comprehensive program to be formulated by

the Department of Justice and the Department of Social Welfare and Development in coordination with other
government agencies and private sector concerned, within one (1) year from the effectivity of this Act, to
protect children against child prostitution and other sexual abuse; child trafficking; obscene publications and

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indecent shows; other acts of abuse; and circumstances which endanger child survival and normal
development.

ARTICLE III

CHILD PROSTITUTION AND OTHER SEXUAL ABUSE

SEC. 5. Child Prostitution and Other Sexual Abuse. -Children, whether male or female, who for money,
profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge
in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other
sexual abuse.The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed
upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not
limited to, thefollowing:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute

by means of written or oral advertisements or other similar

means;

(3) Taking advantage of influence or relationship to

procure a child is a prostitute;

(4) Threatening or using violence towards a child to engage

him as a prostitute; or

(5) Giving monetary consideration, goods or other pecuniary

Benefit to a child with the intent to engage such child in

prostitution.

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of
age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for rape or lascivious conduct. as the case maybe: Provided, That

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the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; and

(c) Those who derive profit or advantage there from, whether as manager or owner of the
establishment where the prostitution take place, or of the sauna, disco, bar, resort, place of entertainment or
establishment serving as a cover or which engages in prostitution in addition to the activity for which the
license has been issued to said establishment.

SEC. 6. Attempt to Commit Child Prostitution. - There is an attempt to commit child prostitution under
Section 5,paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the
said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar
establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a
reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse.

There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when
any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other
similar establishments. A penalty lower by two (2) degrees than that prescribed for the consummated felony
under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child
prostitution under this Act, or, in the proper case, under the Revised Penal Code.

ARTICLE IV

CHILD TRAFFICKING

SEC. 7. Child Trafficking. - Any person who shall engage in trading and dealing with children including,
but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter,
shall suffer the penalty of reclusion temporal to reclusion perpetua. The penalty shall be imposed in its
maximum period when thevictim is under twelve (12) years of age.

SEC. 8. Attempt to Commit Child Trafficking. - There is an attempt to commit child trafficking under
Section 7 of this Act:

(a) When a child travels alone to a foreign country without valid reason therefore and without
clearance issued by the Department of Social Welfare and Development or written permit or justification from
the child's parents or legal guardian;

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 (b) When a pregnant mother executes an affidavit of consent for adoption for a consideration;

(c) When a person, agency, establishment or child-caring institution recruits women or couples to bear
children for the purpose of child trafficking;

(d) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any
other person simulates birth for the purpose of child trafficking; or

(e) When a person engages in the act of finding children among low-income families, hospitals, clinics,
nurseries, day-care centers, or other child-caring institutions who can be offered for the purpose of child
trafficking.

A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 7
hereof shall be imposed upon the principals of the attempt to commit child trafficking under this Act.

ARTICLE V

OBSCENE PUBLICATIONS AND INDECENT SHOWS

SEC. 9. Obscene Publications and Indecent Shows. – Any person who shall hire, employ, use,
persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in
video, pose, or model in obscene publications or pornographic materials or to sell or distribute the said
materials shall suffer the penalty of prision mayor in its medium period.

If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the
penalty shall be imposed in its maximum period.

Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause
and/or allow such child to be employed or to participate in anobscene play, scene, act, movie or show or in
any other acts covered by this section shall suffer the penalty of prision mayor in its medium period.

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ARTICLE VI

OTHER ACTS OF ABUSE

SEC. 10. Other Acts of Neglect, Abuse, or Exploitation and Other Conditions Prejudicial to the Child
Development.

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible
for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential
Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the
penalty of prision mayor in its minimum period.

(b) Any person who shall keep or have in his company a minor, twelve (12) years or under or who is
ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret,
pension house, sauna or massage parlor, beach and/or other tourist resort or similar places shall suffer the
penalty of prision mayor in its

maximum period and a fine of not less than Fifty thousand pesos (P5O,00): Provided, That this provision shall
not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond
recognized by law, local custom and tradition, or acts in the performance of asocial, moral or legal duty.

(c) Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or
have in his company a minor as provided in the preceding paragraph shall suffer the penalty of prision mayor
in its medium period and a fine of not less than Forty thousand pesos (P40,000):Provided, however, That
should the perpetrator be an

ascendant, stepparent or guardian of the minor, the penalty to be imposed shall be prision mayor in its
maximum period, a fine of not less than Fifty thousand pesos (P 50,000), and the loss of parental authority
over the minor.

(d) Any person, owner, manager or one entrusted with the operation of any public or private place of
accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any
person to take along with him to such place or places any minor herein described shall be imposed a penalty
of prision mayor in its medium period and a fine of not less than Fifty thousand pesos (P50,000),and the loss
of the license to operate such a place or establishment.

(e) Any person who shall use, coerce, force or intimidate a street child or any other child to:

(1) Beg or use begging as a means of living;

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 (2) Act as conduit or middlemen in drug trafficking or

pushing; or

(3) Conduct any illegal activities, shall suffer the

penalty of prision correccional in its medium period to

reclusion perpetua.

For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249,
262, paragraph 2,and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes
of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve (12) years of age. The penalty for the commission of acts punishable
under Articles 337, 339, 340and 341 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of
qualified seduction, acts of lasciviousness with the consent of the offended party, corruption of minors, and
white slave trade, respectively, shall be one (1) degree higher than that imposed by law when the victim is
under twelve (12) years of age.

The victim of the acts committed under this section shall be entrusted to the care of the Department of
Social Welfare and Development.

ARTICLE VII

SANCTIONS FOR ESTABLISHMENTS OR ENTERPRISES

SEC. 11. Sanctions for Establishments or Enterprises which Promote, Facilitate, or Conduct Activities
Constituting Child Prostitution and Other Sexual Abuse, Child Trafficking Obscene Publications and Indecent
Shows, and Other Acts of Abuse. - All establishments and enterprises which promote or facilitate child
prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts
of abuse shall be immediately closed and their authority or license to operate cancelled, without prejudice to
the owner or manager thereof being prosecuted under this Act and/or the Revised Penal Code, as amended,
or special laws. A sign with the words "off limits" shall be conspicuously displayed outside the establishments
or enterprises by the Department of Social Welfare and Development for such period which shall not be less
than one(1) year, as the Department may determine. The unauthorized removal of such sign shall be
punishable by prision correccional.

An establishment shall be deemed to promote or facilitate child prostitution and other sexual abuse,
child trafficking, obscene publications and indecent shows, and other acts of abuse if the acts constituting the
same occur in the premises of said establishment under this Act or in violation of the Revised Penal Code, as
amended. An enterprise such as a sauna, travel agency, or recruitment agency which: promotes the
aforementioned acts as part of a tour for foreign tourists; exhibits children in a lewd or indecent show;
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provides child masseurs for adults of the same or opposite sex and said services include any lascivious conduct
with the customer; or solicits children for activities constituting the aforementioned acts shall be deemed to
have committed the

acts penalized herein.

ARTICLE VIII

WORKING CHILDREN

SEC. 12. Employment of Children. - Children below fifteen(15) years of age may be employed:
Provided, That, thefollowing minimum requirements are present:

(a) The employer shall secure for the child a work permitfrom the Department of Labor and
Employment;

(b) The employer shall ensure the protection, health,safety and morals of the child;

(c) The employer shall institute measures to preventexploitation or discrimination taking into account
the systemand level of remuneration, and the duration and arrangementof working time; and

(d) The employer shall formulate and implement a continuous program for training and skill acquisition
of the child.

The Department of Labor and Employment shall promulgate rules and regulations necessary for the
effective implementation of this section.

SEC. 13. Non-formal Education for Working Children. – The Department of Education, Culture and
Sports shall promulgate a course design under its non-formal education program aimed at promoting the
intellectual, moral and vocational efficiency of working children who have not undergone or finished
elementary or secondary education. Such course design shall integrate the learning process deemed most
effective under given circumstances.

SEC. 14. Prohibition on the Employment of Children in Certain Advertisement. - No person shall employ
child models in all commercials or advertisements promoting alcoholic beverages, intoxicating drinks, tobacco
and its by products, and violence.

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 SEC. 15. Duty of Employer. - Every employer shall comply with the duties provided for in Articles 108
and 109 of Presidential Decree No. 603.

SEC. 16. Penalties. - Any person who shall violate any provision of this Article shall suffer the penalty of
a fine of not less than One thousand pesos (P1,000) but not more than Ten thousand pesos (P10,000) or
imprisonment of not less than three (3) months but not more than three (3) years, or both at the discretion of
the court: Provided, That, in case of repeated violations of the provisions of this Article, the offender's license
to operate shall be revoked.

ARTICLE IX

CHILDREN OF INDIGENOUS CULTURAL COMMUNITIES

SEC. 17. Survival, Protection and Development. - In addition to the rights guaranteed to children under
this Act and other existing laws, children of indigenous cultural communities shall be entitled to protection,
survival and development consistent with the customs and traditions of their respective communities.

SEC. 18. System of and Access to Education. – The Department of Education, Culture and Sports shall
develop and institute an alternative system of education for children of indigenous cultural communities which
is culture-specific and relevant to the needs and the existing situation in their communities. The Department of
Education, Culture and Sports shall also accredit and support non-formal but functional indigenous educational
programs conducted by non-governmental organizations in said communities.

SEC. 19. Health and Nutrition. - The delivery of basic social services in health and nutrition to children
of indigenous cultural communities shall be given priority by all government agencies concerned. Hospitals and
other health institutions shall ensure that children of indigenous cultural communities are given equal
attention. In the provision of health and nutrition services to children of indigenous cultural communities,
indigenous health practices shall be respected and recognized.

SEC. 20. Discrimination. - Children of indigenous cultural communities shall not be subjected to any
and all forms of discrimination.

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 Any person who discriminates against children of indigenous cultural communities shall suffer a penalty
of arresto mayor in its maximum period and a fine of not less than Five Thousand Pesos (P5,000) not more
than Ten thousand pesos(P10,000).

SEC. 21. Participation. - Indigenous cultural communities, through their duly-designated or appointed
representatives shall be involved in planning, decision-making,

implementation, and evaluation of all government programs affecting children of indigenous cultural
communities. Indigenous institutions shall also be recognized and

respected.

ARTICLE X

CHILDREN IN SITUATIONS OF ARMED CONFLICT

SEC. 22. Children as Zones of Peace. - Children are hereby declared as Zones of Peace. It shall be the
responsibility of the State and all other sectors concerned to resolve armed conflicts in order to promote the
goal of children as zones of peace. To attain this objective, the following policies shall be observed:

(a) Children shall not be the object of attack and shall been titled to special respect. They shall be
protected from any form of threat, assault, torture or other cruel, inhumane or degrading treatment;

(b) Children shall not be recruited to become members of the Armed Forces of the Philippines or its
civilian units or other armed groups, nor be allowed to take part in the fighting, or used as guides, couriers, or
spies;

(c) Delivery of basic social services such as education, primary health and emergency relief services
shall be kept unhampered;

(d) The safety and protection of those who provide services including those involved in fact-finding
missions from both government and nongovernment institutions shall be ensured. They shall not be subjected
to undue harassment in the performance of their work;

(e) Public infrastructure such as schools, hospitals and rural health units shall not be utilized for military
purposes such as command posts, barracks, detachments, and supply depots; and

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 (f) All appropriate steps shall be taken to facilitate the reunion of families temporarily separated due to
armed conflict.

SEC. 23. Evacuation of Children During Armed Conflict. Children shall be given priority during
evacuation as a result of armed conflict. Existing community organizations shall be tapped to look after the
safety and well-being of children during evacuation operations. Measures shall be taken to ensure that children
evacuated are accompanied by persons responsible for their safety and well-being.

SEC. 24. Family Life and Temporary Shelter. – Whenever possible, members of the same family shall
be housed in the same premises and given separate accommodation from other evacuees and provided with
facilities to lead a normal family

life. In places of temporary shelter, expectant and nursing mothers and children shall be given additional food
in proportion to their physiological needs. Whenever feasible, children shall be given opportunities for physical
exercise, sports and outdoor games.

SEC. 25. Rights of Children Arrested for Reasons Related to Armed Conflict. - Any child who has been
arrested for reasons related to armed conflict, either as combatant, courier, guide or spy is entitled to the
following rights:

(a) Separate detention from adults except where familiesarc accommodated as family units;

(b) Immediate free legal assistance;

(c) Immediate notice of such arrest to the parents orguardian of the child; and

(d) Release of the child on recognizance within twenty-four (24) hours to the custody of the
Department of Social Welfare and Development or any responsible member of the community as determined
by the court.

If after hearing the evidence in the proper proceedings the court should find that the aforesaid child
has committed the acts charged against him, the court shall determine the imposable penalty, including any
civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court shall
suspend all further proceedings and shall commit such child to the custody or care of the Department of Social
Welfare and Development or to any training institution operated by the Government, or duly-licensed agencies
or any other responsible person, until he has had reached eighteen (18) years of age or, for a shorter period
as the court may deem proper, after considering the reports and recommendations of the Department of
Social Welfare and Development or the agency or responsible individual under whose care he has been
committed.

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 The aforesaid child shall be subject to visitation and supervision by a representative of the Department
of Social Welfare and Development or any duly-licensed agency or such other officer as the court may
designate subject to such conditions as it may prescribe.

The aforesaid child whose sentence is suspended can appeal from the order of the court in the same
manner as appeals in criminal cases.

SEC. 26. Monitoring and Reporting of Children in Situations of Armed Conflict. - The chairman of the
barangay affected by the armed conflict shall submit the names of children residing in said barangay to the
municipal social welfare and development officer within twenty-four (24) hours from the occurrence of the
armed conflict.

ARTICLE XI

REMEDIAL PROCEDURES

SEC. 27. Who May File a Complaint. - Complaints on cases of unlawful acts committed against children
as enumerated herein may be filed by the following:

(a) Offended party;

(b) Parents or guardians;

(c) Ascendant or collateral relative within the third

degree of consanguinity;

(d) Officer, social worker or representative of a licensed

child-caring institution;

(e) Officer or social worker of the Department of Social

Welfare and Development;

(f) Barangay chairman; or

(g) At least three (3) concerned, responsible citizens

where the violation occurred.

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 SEC. 28. Protective Custody of the Child. - The offended party shall be immediately placed under the
protective custody of the Department of Social Welfare and Development pursuant to Executive Order No. 56,
series of 1986. In the regular performance of this function, the officer of the Department of Social Welfare and
Development shall be free from any administrative, civil or criminal liability. Custody proceedings shall be in
accordance with the provisions of Presidential Decree No. 603.

SEC. 29. Confidentiality. - At the instance of the offended party, his name may be withheld from the
public until the court acquires jurisdiction over the case. It shall be unlawful for any editor, publisher, and
reporter or columnist in case of printed materials, announcer or producer in case of television and radio
broadcasting, producer and director of the film in case of the movie industry, to cause undue and
sensationalized publicity of any case of violation of this Act which results in the moral degradation and
suffering of the offended party.

SEC. 30. Special Court Proceedings. - Cases involving violations of this Act shall be heard in the
chambers of the judge of the Regional Trial Court duly designated as Juvenile and Domestic Relations Court.
Any provision of existing law to the contrary notwithstanding and with the exception of habeas corpus,
election cases, and cases involving detention prisoners and persons covered by Republic Act No. 4908, all
courts shall give preference to the hearing or disposition of cases involving violations of this Act.

ARTICLE XII

COMMON PENAL PROVISIONS

SEC. 31. Common Penal Provisions. –

(a) The penalty provided under this Act shall be imposed in its maximum period if the offender has
been previously convicted under this Act;

(b) When the offender is a corporation, partnership or association, the officer or employee thereof who
is responsible for the violation of this Act shall suffer the penalty imposed in its maximum period;

(c) The penalty provided herein shall be imposed in its maximum period when the perpetrator is an
ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or
affinity, or a manager or owner of an establishment which has no license to operate or its license has expired
or has been revoked;

(d) When the offender is a foreigner, he shall be deported immediately after service of sentence and
forever barred from entry to the country; (e) The penalty provided for in this Act shall be imposed in its
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maximum period if the offender is a public officer or employee: Provided, however, That if the penalty
imposed is reclusion perpetua or reclusion temporal, then the penalty of perpetual or temporary absolute
disqualification shall also be imposed: Provided, finally, That if the penalty imposed is prision correccional or
arresto mayor, the penalty of suspension shall also be imposed; and(f) A fine to be determined by the court
shall be imposed and administered as a cash fund by the Department of Social Welfare and Development and
disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the
perpetrator of the offense.

ARTICLE XIII

FINAL PROVISIONS

SEC. 32. Rules and Regulations. - Unless otherwise provided in this Act, the Department of Justice, in
coordination with the Department of Social Welfare and Development, shall promulgate rules and regulations
for the effective implementation of this Act. Such rules and regulations shall take effect upon their publication
in two (2) national newspapers of general circulation.

SEC. 33. Appropriations. - The amount necessary to carry out the provisions of this Act is hereby
authorized to be appropriated in the General Appropriations Act of the year following its enactment into law
and thereafter.

SEC. 34. Separability Clause. - If any provision of this Act is declared invalid or unconstitutional, the
remaining provisions not affected thereby shall continue in full force

and effect.

SEC. 35. Repealing Clause. - All laws, decrees, or rules inconsistent with the provisions of this Act are
hereby repealed or modified accordingly.

SEC. 36. Effectivity Clause. - This Act shall take effect upon completion of its publication in at least two
(2) national newspapers of general circulation.

Appendix “L”

Republic Act No. 9255

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 AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR
FATHER, AMENDING FOR THE PURPOSE ARTICLE 176 OF EXECUTIVE ORDER NO.
209, OTHERWISE KNOWN AS THE "FAMILY CODE OF THE PHILIPPINES"

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of the
Philippines, is hereby amended to read as follows:

"Article 176. Illegitimate children shall use the surname and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with this Code. However, illegitimate
children may use the surname of their father if their filiation has been expressly recognized by the
father through the record of birth appearing in the civil register, or when an admission in a public
document or private handwritten instrument is made by the father. Provided, the father has the right
to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of
each illegitimate child shall consist of one-half of the legitime of a legitimate child."

SECTION 2. Repealing Clause. – All laws, presidential decrees, executive orders, proclamations, rules
and regulations, which are inconsistent with the provisions of this Act are hereby repealed or modified
accordingly.

SECTION 3. Effectivity Clause. – This Act shall take effect fifteen (15) days from its publication in the
Official Gazette or in two (2) newspapers of general circulation.

February 24, 2004

Appendix “M”

REPUBLIC ACT. NO. 9858

AN ACT PROVIDING FOR THE LEGITIMATION OF CHILDREN BORN TO

PARENTS BELOW MARRYING AGE, AMENDING FOR THE PURPOSE THE
FAMILY CODE OF THE PHILIPPINES, AS AMENDED

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

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 Section 1. Article 177 of Executive Order No. 209, otherwise known as the "Family Code of the
Philippines", as amended, is hereby further amended to read as follows:

"Art. 177. Children conceived and born outside of wedlock of parents who, at the time of
conception of the former, were not disqualified by any impediment to marry each other, or
were so disqualified only because either or both of them were below eighteen (18) years of
age, may be legitimated."

"Art. 178. Legitimation shall take place by a subsequent valid marriage between parents.
The annulment of a voidable marriage shall not affect the legitimation."

Section 2. Implementing Rules. – The civil Registrar General shall, in consultation with the
chairpersons of the Committee on Revision of Laws of the House of Representatives and the Committee on
Youth, Women and Family Relations of the Senate, the Council for the Welfare of Children, the Department of
Justice (DOJ), the Department of Foreign Affairs (DFA), the office of the Supreme Court Administrator, the
Philippine Association of Civil Registrars (PACR) and the UP Law Center, issue the necessary rules/regulations
for the effective implementation of this Act not later than one (1) month from its effectivity.

Section 3. Repealing Clause. – All laws, presidential decrees, executive orders, proclamations and/or
administrative regulations which are inconsistent with the provisions of this Act are hereby amended, modified,
superseded or repealed accordingly.

Section 4. Effectivity Clause. – This Act shall take effect fifteen (15) days after its complete publication
in the Official Gazette or in at least two (2) newspapers of national circulation.

APPENDIX “N”

REPUBLIC ACT NO. 9048

AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL

REGISTRAR OR THE CONSUL GENERAL TO CORRECT

A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY

AND/OR CHANGE OF FIRST NAME OR NICKNAME IN

THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL

ORDER, AMENDING FOR THIS PURPOSE ARTICLES 376

AND 412 OF THE CIVIL CODE OF THE PHILIPPINES

Be it enacted by the Senate and House of Representatives of the

Philippines in Congress assembled:

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 SECTION 1. Authority to Correct Clerical or TypographicalError and Change of First Name or Nickname.
– No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its
implementing, rules and regulations.

SEC. 2. Definition of Terms. – As used in this Act, the following terms shall mean:

(1) "City or municipal civil registrar" refers to the head of the local civil registry office of the city or
municipality, as the case may be, who is appointed as such by the city or municipal mayor in accordance with
the provisions of existing laws.

(2) "Petitioner" refers to a natural person filing the petition and who has direct and personal interest in
the correction of a clerical or typographical error in an entry or change of first name or nickname in the civil
register.

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work
in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other existing record or records:
Provided, however, That no correction must involve the change of nationality, age,

status or sex of the petitioner

(4) "Civil register" refers to the various registry books andrelated certificates and documents kept in the
archives of the local civil registry offices, Philippine Consulate and of the Office of the Civil Registrar General.

(5) "Civil registrar general" refers to the administrator of the National Statistics Office which is the
agency mandated to carry out and administer the provision of laws on civil registration.

(6) "First name" refers to a name or a nickname given to a person which may consist of one or more
names in addition to the middle and last names.

SEC. 3. Who May File the Petition and Where. – Any person having direct and personal interest in the
correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil
register may file in person, a verified petition with the local civil registry office of the city or municipality where
the record being sought to be corrected or changed is kept. In case the petitioner has already migrated to
another place in the country and it would not be practical for such party, in terms of transportation expenses,
time and effort, to appear in person before the local civil registrar keeping the documents to be corrected or
changed, the petition, may be filed in person, with the local civil registrar of the place where the interested
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party is presently residing or domiciled. The two (2) local civil registrars concerned will then communicate to
facilitate the processing of the petition.

Citizens of the Philippines, who are presently residing or domiciled in foreign countries, may file their
petition in person with the nearest Philippine Consulates. The petitions filed with the city or municipal civil
registrar or the consul general shall be processed in accordance with this Act and its implementing rules and
regulations. All petitions for the correction of clerical or typographical errors and/or change of first names or
nicknames may be availed of only once.

SEC. 4. Grounds for Change of First Name or Nickname.– The petition for change of first name or
nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner, and
he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

SEC. 5. Form and Contents of the Petition. – The petition shall be in the form of an affidavit, subscribed
and sworn to before any person authorized by law to administer oaths. The affidavit shall set forth facts
necessary to establish the merits of the petition

and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner
shall state the particular erroneous entry or entries which are sought to be corrected and/or the changed
sought to be made. The petition shall be supported with the following documents:

(1.) A certified true machine copy of the certificate or of the page of the registry book containing the
entry or entries sought to be corrected or changed;

(2) At least two (2) public or private documents showing the correct entry or entries upon which the
correction or change shall be based; and

(3) Other documents which the petitioner or the city or municipal civil registrar, or the consul general
may consider relevant and necessary for the approval of the petition.

In case of change of first name or nickname, the petition shall likewise be supported with the documents
mentioned in the immediately preceding paragraph. In addition, the petition shall be published at least once a
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week, for two (2) consecutive weeks, in a newspaper of general circulation. Furthermore, the petitioner shall
submit a certification from the appropriate law enforcement agencies that he has no pending case or no
criminal record. The petition and its supporting papers shall be filed in three(3) copies to be distributed as
follows: first copy, to the concerned city or municipal civil registrar, or the consul general; second copy, to the
Office of the Civil Registrar General; and the third copy, to the petitioner.

SEC. 6. Duties of the City or Municipal Civil Registrar or the Consul General. – The city or municipal civil
registrar or the consul general, to whom the petition is presented, shall examine the petition and its supporting
documents. He shall post the petition in a conspicuous place provided for that purpose for ten (10)
consecutive days after he finds the petition and its supporting documents sufficient in form and substance.
The city or municipal civil registrar or the consul general shall act on the petition and shall render a decision
not later than five (5) working days after the completion of the posting and/or publication requirement. He
shall transmit a copy of his decision together with the records of the proceedings to the Office of the Civil
Registrar General within five (5) working days from the date of the decision.

SEC. 7. Duties and Powers of the Civil Registrar General.– The civil registrar general shall, within ten
(10) working days from receipt of the decision granting a petition, exercise the power to impugn such decision
by way of an objection based on the following grounds:

(1) The error is not clerical or typographical;

(2) The correction of an entry or entries in the civil register is substantial or controversial as it affects
the civil status of a person; or

(3) The basis used in changing the first name or nickname of a person does not fall under Section
4.The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of
the action taken on the decision. Upon receipt of the notice thereof, the city or municipal civil registrar, or the
consul general shall notify the petitioner of such action. The petitioner may seek reconsideration with the civil
registrar general or file the appropriate petition with the proper court. If the civil registrar general fails to
exercise his power to impugn the decision of the city or municipal civil registrar or of the consul general within
the period prescribed herein, such decision shall become final and executory. Where the petition is denied by
the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the
civil registrar general or file the appropriate petition with the proper court.

SEC. 8. Payment of Fees. – The city or municipal civil registrar or the consul general shall be authorized
to collect reasonable fees as a condition for accepting the petition. An indigent petitioner shall be exempted
from the payment of the said fee.

SEC. 9. Penalty Clause. – A person who violates any of the provisions of this Act shall, upon conviction,
be penalized by imprisonment of not less than six (6) years but not more than twelve (12) years, or a fine of
not less than Ten Thousand Pesos (P10,000) but not more than One hundred thousand pesos(P100,000), or

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both, at the discretion of the court. In addition, if the offender is a government official or employee, he shall
suffer the penalties provided under civil service laws, rules and regulations.

SEC. 10. Implementing Rules and Regulations. – The civil registrar general shall, in consultation with
the Department of Justice, the Department of Foreign Affairs, the Office of the Supreme Court Administrator,
the University of the Philippines Law Center and the Philippine Association of Civil Registrars, issue the
necessary rules and regulations for the effective implementation of this Act not later than three (3) months
from the effectivity of this law.

SEC. 11. Retroactivity Clause. – This Act shall have retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code and other laws.

SEC. 12. Separability Clause. – If any portion or provision of this Act is declared void or
unconstitutional, the remaining portions or provisions thereof shall not be affected by such declaration.

SEC. 13. Repealing Clause. – All laws, decrees, orders, rules and regulations, other issuances, or parts
thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

SEC. 14. Effectivity Clause. – This Act shall take effect fifteen (15) days after its complete publication in
at least two (2)national newspapers of general circulation.

Approved, March 22, 2001.

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