FIRST WEEK

I. Effect and Application of Laws – New Civil Code

A. When law takes effect

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided.

Effectivity of an ordinary law:

a. On the date it is expressly provided to take effect
b. If no such date is made, then after 15 days following the completion of its publication in the Official Gazette or
in a newspaper of general circulation.

** Publication is not necessary so long as it is not punitive in character. Circulars which are mere statements of general
policy as to how the law should be construed do not need presidential approval and publication in the Official Gazette for
their effectivity.

 ‘15 days following’ - does this mean on the 15th or 16th day? The law is not clear.
 Under Article 2, publication in the Official Gazette was necessary. Now, under E.O. No. 200, publication may
either be in the Official Gazette or a newspaper of general publication.
 ‘unless otherwise provided’ refers to when the law shall take effect. It does not mean that publication can be
dispensed with. Otherwise, that would be a violation of due process.
 General Rule: Laws must be published in either the Official Gazette or a newspaper of general circulation.
 Exception: The law may provide for another manner of publication. Different manner meaning:
1. Not in Official Gazette or newspaper of general circulation; or
Example: Read over the television or the radio (provided that the alternative is reasonable)
2. Change in the period of effectivity
 ‘publication’ means making it known; dissemination. It doesn’t have to be in writing.
 ‘Change period of effectivity’ – the gap between publication and effectivity should be reasonable under the
circumstances.
 Before publication, cannot apply the law whether penal or civil (Pesigan vs. Angeles) Why? How can you be
bound if you don’t know the law.
 Requirement of publication applies to all laws and is mandatory.

Tañada vs. Tuvera, 146 SCRA 446

Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws
where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in
question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable
for their effectivity.

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided, ...

Publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-
for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.

Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of
its effectivity. In Pesigan vs. Angeles--"publication is necessary to apprise the public of the contents of [penal] regulations and
make the said penalties binding on the persons affected thereby. "

The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously,
presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the
people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular
persons or class of persons such as administrative and executive orders need not be published on the assumption that they have
been circularized to all concerned.

The Court ordered respondents to publish in the Official Gazette all unpublished presidential issuances which are of general
application, and unless so published, they shall have no binding force and effect.

ISSUE:

To what does the clause "unless it is otherwise provided" in Article of the Civil Code refer to?

Does publication have to be in its entirety?

HELD:
[i]The clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately
upon approval, or on any other date, without its previous publication.

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Publication is indispensable in every case, but the legislature may in its discretion provide that the usual 15 day period be
shortened or extended. An example is the Civil Code which did not become effective after 15 days form its publication in the
Official Gazette but "one year after such publication." The general rule did not apply because it was "otherwise provided."

Publication must be full or it is no publication at all since its purpose is to inform the public of the contents of the laws. As
correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its
whereabouts (e.g., "with secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette
cannot satisfy the publication requirement. This is not even substantial compliance.

B. Ignorance of the Law

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

“Ignorantia legis non excusat”—ignorance of the law excuses no one from compliance therewith.

 Art. 3 applies to all kinds of domestic laws, whether civil or penal and whether substantive or remedial.; the
maxim refers only to mandatory or prohibitive laws, not to permissive or suppletory laws.
 This is a necessary rule for all civilized society. Otherwise it would be impossible to enforce the law. It is very
hard to determine whether or not a person really does not know the law. Without this rule, there would be
anarchy. The law sacrifices occasional harshness to prevent universal anarchy.
 There are potential methods to mitigate the severity of Article 3 – Articles 526 (¶3), 2155, 1334. *
 In Kasilag vs. Rodriguez, the SC said that the possession of the antichretic credit as possession in good faith since
a difficult question of law was involved – antichresis. In this case, the parties were not very knowledgeable of
the law. Here, one who possesses land by virtue of a void contract can, nevertheless, be considered a possessor
in good faith if the law involved is comparatively difficult to comprehend, and as such he is entitled to
reimbursement for useful improvements he had introduced on the land before he is deprived of the land.
 Article 3 applies only to ignorance of Philippine law. It does not apply to foreign law. In Private International
Law, foreign law must be proven even if it is applicable. Otherwise, the courts will presume the foreign law to
be the same as Philippine law.
 Ignorance of foreign law is not ignorance of the law, but ignorance of the fact because foreign laws must be
alleged and proved as maters of fact, there being no judicial notice of said foreign laws. If the foreign law is not
properly alleged and proved, the presumption is that it is the same as our law—processual presumption.
 While ignorance of the law is no excuse for not complying with the law, ignorance of the fact eliminates criminal
intent as long as there is no negligence.

C. Retroactivity of Laws

Art. 4. Laws shall have no retroactive effect, unless the contrary is provided.

 If laws were retroactive, grave injustice would occur, for these laws would punish individuals for violation of
laws not yet enacted.
 Lex de futuro judex de preterito (The law provides for the future, the judge for the past).
 Retroactive law – one which creates a new obligation and imposes a new duty or attaches a new disability with
respect to transactions or considerations already past.
 General Rule: Law must be applied prospectively.

Exceptions:
1. If the laws themselves provide for retroactivity
Exception to the exception:
a. ex post fact law (It should be noted that generally, the Philippine Constitution does not prohibit
retroactive laws.) An example of an ex post facto law is one that makes criminal and punishable an act
done before the passing of the law and which was innocent when done. The prohibition against ex
post facto laws applies only to criminal matters, and not to civil matters.
b. Laws which impair the obligation of contracts
2. If the laws are remedial in nature
Reason: there are no vested rights in rules of procedure. Therefore, new rules of court on procedure can apply to pending
actions.
3. If the statute is penal in nature, provided:
a. It is favorable to the accused or to the convict

PROSPECTIVITY
This is also called irretrospectivity.

*
Art. 526, ¶3. Mistake upon a doubtful or difficult question of law may be the basis of good faith.
Art. 2155. Payment by reason of a mistake in the construction or application of a doubtful or difficult question of law may come
within the scope of the preceding article.
Art. 1334. Mutual error as to the legal effect of an agreement when the real purpose of the parties is frustrated, may vitiate consent.

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Acts or omissions will only be subject to a penal law if they are committed after a penal law had already taken effect.
Vice-versa, this act or omission which has been committed before the effectivity of a penal law could not be penalized by
such penal law because penal laws operate only prospectively.

In some textbooks, an exemption is said to exist when the penal law is favorable to the offender, in which case it would
have retroactive application; provided that the offender is not a habitual delinquent and there is no provision in the law
against its retroactive application.

The exception where a penal law may be given retroactive application is true only with a repealing law. If it is an original
penal law, that exception can never operate. What is contemplated by the exception is that there is an original law and
there is a repealing law repealing the original law. It is the repealing law that may be given retroactive application to
those who violated the original law, if the repealing penal law is more favorable to the offender who violated the original
law. If there is only one penal law, it can never be given retroactive effect.

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 b. And provided further that the accused or convict is not a habitual delinquent. 1

Habitual Delinquency—a person is a habitual delinquent if within a period of ten (10) years from the date of his (last) release, a
conviction of the crimes of (1) serious or less serious physical injuries, (2) robbery, (3) theft (4) estafa and (5) falsification, he is
found guilty of any of said crimes a third time or offense.

4. If the laws are of an emergency nature and are authorized by the police power of the government.
5. If the law is curative. However, this kind of law, to be valid, must not impair vested rights nor affect final
judgments.
6. If a substantive right be declared for the first time, unless vested rights are impaired. A vested right is some right
or interest in property that has become fixed and established that it is no longer open to controversy. If may also
be defined as such right the deprivation of which would amount to a deprivation of property without due
process of law. A right is also vested when it has so far been perfected that nothing remains to be done by the
party asserting it.

Liam Law vs. Olympic Sawmill, 129 SCRA 439

Facts: On 7 September 1957, Liam Law (plaintiff) loaned P10,000.00, without interest, to Olympic Sawmill Co. and Elino Lee Chi,
as the latter’s managing partner (defendants). The loan became ultimately due on 31 January 1960, but was not paid on that
date, with the debtors asking for an extension of 3 months, or up to 30 April 1960. On 17 March 1960, the parties executed
another loan document. Payment of the P10,000.00 was extended to 30 April 1960, but the obligation was increased by P6,000
which formed part of the principal obligation to answer for attorney’s fees, legal interest, and other cost incident thereto to be
paid unto the creditor and his successors in interest upon the termination of this agreement. The defendants again failed to pay
their obligation.

On 23 September 1960, the plaintiff instituted the collection case before the Court of First Instance of Bulacan. The defendants
admitted the P10,000.00 principal obligation, but claimed that the additional P6,000.00 constituted usurious interest. Upon the
plaintiff’s application, the Trial Court issued a writ of Attachment on real and personal properties of defendants. After the Writ
of Attachment was implemented, proceedings before the Trial Court versed principally in regards to the attachment. On 18
January 1961, an Order was issued by the Trial Court allowing both parties to simultaneously submit a Motion for Summary
Judgment. On 26 June 1961, the Trial Court rendered decision ordering defendants to pay the plaintiff the amount of
P10,000.00 plus the further sum of P6,000.00. The defendants appealed before the then court of Appeals, which endorsed it to
the Supreme Court stating that the issue involved was one of law.

Issue [1]: Whether the allegation of usury should be made in writing and under oath, pursuant to Section 9 of the Usury Law.

Held [1]: Section 9 of the Usury Law provides that “the person or corporation sued shall file its answer in writing under oath to
any complaint brought or filed against said person or corporation before a competent court to recover the money or other
personal or real property, seeds or agricultural products, charged or received in violation of the provisions of this Act. The lack of
taking an oath to an answer to a complaint will mean the admission of the facts contained in the latter.” It envisages a complaint
filed against an entity which has committed usury, for the recovery of the usurious interest paid. In that case, if the entity sued
shall not file its answer under oath denying the allegation of usury, the defendant shall be deemed to have admitted the usury.
The provision does not apply to a case where it is the defendant, not the plaintiff, who is alleging usury.

Issue [2]: Whether the repeal of Rules of Court or any procedural law is with retroactive effect.
Held [2]: The Court opined that the Rules of Court in regards to allegations of usury, procedural in nature, should be considered
repealed with retroactive effect. It has been previously held (People vs. Sumilang, and De Lopez, et al. vs. Vda. de Fajardo, et al.)
that statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the
time of their passage. Procedural laws are retrospective in that sense and to that extent.

D. 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.

 A mandatory law is one which prescribes some element as a requirement (i.e., wills must be written – Article 804;
form of donations – Article 749)
 A prohibitory law is one which forbids something (i.e., joint wills – Article 818)
 General Rule: Acts which are contrary to mandatory or prohibited laws are void.

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Art. 22. Retroactive effect of penal laws. — Penal Laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is
not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving the same.

Art. 804. Every will must be in writing and executed in a language or dialect known to the testator.

Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property
donated and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect
unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step
shall be noted in both instruments.

Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a
third person.

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 Exceptions:
1. When the law itself authorized its validity (i.e., lotto, sweepstakes)
2. When the law makes the act only voidable and not void (i.e., if consent is vitiated/ revoked, the contract is
voidable and not void)
3. When the law makes the act valid but punishes the violator (i.e., if the marriage is celebrated by someone
without legal authority but the parties are in good faith, the marriage is valid but the person who married
the parties is liable)
4. When the law makes the act void but recognizes legal effects flowing therefrom (i.e., Articles 1412 & 1413)

E. 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.

 What one can waive are rights and not obligations. Example, a creditor can waive the loan but the debtor may not.
 Waiver means the intentional or voluntary relinguishment of a known right, or such conduct as warrants an
inference of the relinguishment of such right.
 There is no form required for a waiver since a waiver is optional. You can waive by mere inaction, refusing to collect
a debt for example is a form of waiver.
 Requisites of a valid waiver (Herrera vs. Boromeo)
1. Existence of a right
2. Knowledge of the existence of the right
3. An intention to relinquish/ abandon the right (implied in this is the capacity to dispose of the right)
4. The person waiving must be capacitated to make the waiver. (Hence, a waiver by a minor or by an insane
person or non-compos mentis is voidable)
5. The person waiving must actually have the right which he is renouncing; otherwise, he will not be
renouncing anything
 General Rule: Rights can be waived.
 Exceptions:
1. If waiver is contrary to law, public order, public policy, morals or good customs
2. If the waiver would be prejudicial to a 3rd party with a right recognized by law. (e.g., If A owes B P10M, B
can’t waive the loan if B owes C and B has no other assets.)
 Examples of rights/ waivers which are prohibited:
1. Natural rights, such as the right to life/ Waiver of future support
2. Alleged rights which really do not yet exist/ Repudiation/ rejection of future inheritance
3. Waiver of the protection of pactum commissorium
4. Waiver of the right to revoke a will
5. Those the renunciation of which would infringe upon public policy
 The right to be heard in court
 A waiver in advance of the one-month separation pay
 Waiver of minimum wage
 Waiver of employment benefits in advance
6. When the waiver is prejudicial to a third person with a right recognized by law
 While an heir may renounce present inheritance, still if the waiver will prejudice existing
creditors, the latter can accept the inheritance in the name of the heir, but only to the extent
sufficient to cover the amount of their credits

F. Repeal of Laws

Art. 7. Laws are repealed only by subsequent ones, 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.

 Article 7 is obvious because time moves forward.

 Only subsequent laws can repeal prior laws either through:
1. A repealing clause
2. Incompatibility of the subsequent and prior laws


Art. 1412. If the act in which the unlawful or forbidden cause consists does not constitute a criminal offense, the following rules shall be
observed:
(1) When the fault is on the part of both contracting parties, neither may recover what he has given by virtue of the contract,
or demand the performance of the other's undertaking;
(2) When only one of the contracting parties is at fault, he cannot recover what he has given by reason of the contract, or ask
for the fulfillment of what has been promised him. The other, who is not at fault, may demand the return of what he has given
without any obligation to comply his promise.
Art. 1413. Interest paid in excess of the interest allowed by the usury laws may be recovered by the debtor, with interest
thereon from the date of the payment.

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 The violation of a law is not justified even if:
1. No one follows the law (i.e., nonpayment of taxes)
2. There is a custom to the contrary
 The 2nd par. of Article 7 is judicial review in statutory form.

Rule for General and Special Laws

In case of conflict between a general and a special law, which should prevail?
a. If the general law was enacted prior to the special law, the latter is considered the exception to the general
law. Therefore, the general law, in general remains good law, and there is no repeal, except insofar as the
exception or special law is concerned.
b. If the general law was enacted after the special law, the special law remains unless:
 There is an express declaration to the contrary
 Or there is a clear, necessary and unreconcilable conflict
 Or unless the subsequent general law covers the whole subject and is clearly intended to
replace the special law on the matter.

Problem: A committed an offense, but before the time of trial, the offense was no longer considered an offense by the
law. Should A still be punished?

Answer: It depends.
a. If there has been a complete repeal, he should not be punished anymore
b. It is otherwise if the law merely lapsed.

Lapse of Laws. Laws may lapse (i.e., end by itself in view of the expiration of the period during which it was supposed to
be effective) without the necessity of any repeal.

Effect if the repealing law is itself repealed

a. 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.
b. When a law which repeals a prior law, not expressly but by implication, it itself repealed, the
repeal of the repealing law revives the prior law, unless the language of repealing statute provides
otherwise.

Effect of a law that has been declared unconstitutional

While it is true that generally an unconstitutional law confers no right, creates no office, affords no protection, and
justifies no acts performed under it, there are instances when the operation and effects of the declaration of its
unconstitutionality may be relaxed or qualified because the actual existence of the law prior to such declaration is an
operative fact and may have consequences which cannot justly be ignored.

Operative Fact Doctrine—this is when a legislative or executive act, prior to its being declared as
unconstitutional by the courts, is valid and must be complied with. 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 law s of the Constitution.

G. Judicial Decisions

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines.

 Still, these judicial decisions are not laws, otherwise the courts would be allowed to legislate contrary to the
principle of separation of powers; but are evidence of what the laws mean; the interpretation placed upon the
written law by a competent court has the force of law
 Only the decisions of the SC, and unreversed decisions of the CA on cases of first impression, establish jurisprudence
or doctrines in the Philippines; the SC, by tradition and in our system of judicial administration, has the last word on
what the law is; it is the final arbiter of any justiciable controversy
 However, the fact that a decision has become final does not prevent a modification thereof, because eve with the
finality of judgment, when its execution becomes impossible or unjust, it may be modified or altered to harmonize
with justice and the facts.
 Doctrine of Stare Decisis. (et non quieta movere—let it stand) The doctrine, which is really “adherence to
precedents,” states that once a case has been decided one way, then another case, involving exactly the same point
at issue, should be decided in the same manner. Of course, when a case has been decided erroneously, such an error
must not be perpetuated by blind obedience to the doctrine of stare decisis. No matter how sound a doctrine may
be, and no matter how long it has been followed thru the years, still if found to be contrary to law, it must be
abandoned. The doctrine does not and should not apply when there is a conflict between the precedent and the
law.
 Obiter Dicta are opinions not necessary to the determination of a case. They are not binding, and cannot have the
force of judicial precedents.
 How Judicial Decisions may be abrogated. A) by a contrary ruling by the SC itself, b) by corrective legislative acts of
Congress

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
De Roy vs. CA, 157 SCRA 757
The firewall of a burned out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of
the private respondents resulting in injuries to private respondents had been warned by petitioners to vacate their shop in view
of its proximity to the weakened wall but the former failed to do. In the RTC, petitioners were found guilty of gross negligence.
On the last day of the 15 days period to file an appeal, petitioners filed a motion for reconsideration which was again denied.
The Supreme Court finds that Court of Appeal did not commit a grave abuse of discretion when it denied petitioner’s motion for
reconsideration. It correctly applied the rule laid down in Habulaya’s vs Japzon. Counsel for petitioner contends that the said
case should not be applied non-publication in the Official Gazette.

ISSUE: Whether or not Supreme Court decisions must be published in the Official Gazette before they can be binding.

HELD: There is no law requiring the publication of Supreme Court decision in the Official Gazette before they can be binding and
as a condition to their becoming effective. It is bounden duty of counsel as lawyer in active law practice to keep abreast of
decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated and published in the
advance reports of Supreme Court decisions and in such publications as the SCRA and law journals.

H. Duty to Render Judgment

Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity, or insufficiency of
the laws.

 A judge must give a decision, whether he knows what law to apply or not.
 Dura lex sed lex—the law may be harsh, but it is still the law. Hence, the first duty of the judge is to apply the law—
whether it be wise or not, whether just or unjust—provided that the law is clear, and there is no doubt. It is the
sworn duty of the judge to apply the law without fear or favor, to follow its mandate, not to temper with it. What the
law grants, the court cannot deny. If some laws are unwise and detrimental, proper representations may be made to
Congress.

I. Presumption and Applicability of Custom

Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body
intended right and justice to prevail.

 In case of doubt, the judge should presume that “the lawmaking body intended right and justice to prevail.” After all,
it has been truly said that “we should interpret not by the letter that killeth, but by the spirit that giveth life.” Judicial
conclusions inconsistent with the spirit of a law must be avoided. Moreover, it has been wisely stated that “when the
reason for the law ceases, the law automatically ceases to be one.”

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

 A custom is a rule of human action (conduct established by repeated acts, and uniformly observed or practiced as a
rule of society, thru the implicit approval of the lawmakers, and which is therefore generally obligatory and legally
binding.
 Law vs Custom. While ordinarily a law is written, consciously made, and enacted by Congress, a custom is unwritten,
spontaneous and comes from society. Moreover, a law is superior to a custom as a source of right. While the courts
take cognizance of local laws, there can be no judicial notice of customs, even if local.
 Requisites before the courts can consider customs
a. A custom must be proved as a fact, according to the rules of evidence, otherwise, the custom cannot be
considered a source of right
b. The custom must not be contrary to law, public order, or public policy
c. There must be a number of repeated acts
d. The repeated acts must have been uniformly performed
e. There must be a juridical intention to make a rule of social conduct, i.e., there must be a conviction in the
community that it is the proper way of acting, and that, therefore, a person who disregards the custom in
fact also disregards the law
f. There must be a sufficient lapse of time—this by itself is not a requisite of custom, but it gives evidence of
the fact that indeed it exists and is being duly observed

Art. 12. A custom must be proved as a fact, according to the rules of evidence.

 A custom is presumed not to exist when those who should know, do not know of its existence.
 The law doesn’t specify the cases when custom is relevant in litigation. But in case custom is relevant, it should be
proven.
 Commentators say that custom is important in cases involving negligence. For example, if a kalesa in Manila is by
custom supposed to have rattan baskets to prevent people from slipping, if a person slips because there is no rattan
basket, then he can sue for negligence.

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 J. Legal Periods

Art. 13. When the laws 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, of twenty-four hours; and nights from sunset to sunrise.
If months are designated by their name, they shall be computed by the number of days which they respectively
have.
In computing a period, the first day shall be excluded, and the last day included.

 Computation of periods. In computing a period, the first day shall be excluded, and the last day included.
 Rule if the last day is a Sunday or a Legal Holiday. It depends.
a. In an ordinary contract, the general rule is that an act is due even if the last day be a Sunday or a legal
holiday.
b. When the time refers to a period prescribed or allowed by the Rules of Court, by an order of the court, or
by any other applicable statute, if the last day is a Sunday or a legal holiday, it is understood that the last
day should really be the next day, provided said day is neither a Sunday not a legal holiday.
c. Rural Bank vs. CA—the pretermission (exclusion from computation) of a holiday applies only to a period
fixed by law or the Rules of Court, not to a date fixed by the Judge or a government officer. Thus, if a public
sale or foreclosure is set by the sheriff for a certain day, and that day is declared a special public holiday,
the next date of the sale cannot be the next day if the needed publication for the sale on that day has not
been made. If by the Rules of Court a defendant should answer within 15 days, and the 15 th day is declared
a holiday, the last day for the answer will be the 16 th day. But if a Judge fixes a trial hearing for a certain day,
and that day is declared a holiday, trial will not be on the following day.

Quiqui vs. Boncaros, 151 SCRA 416

Private respondents were able to secure Free Patent on a 450-sq m lot. However herein petitioners contend that said lot
belongs to them. They filed a complaint with Negros Oriental RTC for reconveyance and/or annulment of title with damages
against private respondents. The trial court, with respondent Judge Boncaros presiding, dismissed the Complaint for
reconveyance on the ground that it had no jurisdiction over the case.

July 17, 1979—petitioners received a copy of said order.

August 17, 1979—petitioners filed MR, date of MR is August 16, 1979

The private respondents opposed the MR, stating that the same had been filed beyond the 30 day reglamentary period under
the Rules. The private respondents maintain that inasmuch as the petitioners received their copy of the Order of dismissal on
July 17, 1979, they had up to August 16, 1979 to file the Motion for reconsideration, computed on the basis of the 30-day
reglamentary period. They contend that since the said Motion was filed beyond the 30-day period, the Order of dismissal has
become final and executory and could no longer be the subject of a Motion for reconsideration.

August 21, 1979, the trial court denied the MR

August 23, 1979—petitioners filed a Notice of Appeal

August 28, 1979—trial court denied the Notice of Appeal, including the Motion to approve the Appeal Bond.

Rule 41, Sec 3 of the Revised Rules of Court, the period to appeal is thirty (30) days

Art. 13 of the Civil Code—in the computation of the period exclude the first (day), include the last (sic), August 16, 1979
therefore was the last day to file the motion for reconsideration but it was filed on August 17 or one day late and this motion for
reconsideration was denied on August 21, 1979.

Hence. this petition.

Held: The Notice of Appeal, therefore, was properly denied.

Under the cited provision, the Appeal may be taken within 30 days from notice of the judgment or order of the trial court. In the
event that the party aggrieved by the judgment or order of the trial court files a Motion to set aside the judgment or order, i. e a
Motion for Reconsideration, the time during which such Motion is pending resolution shall, as a rule, be deducted from the 30-
day period. In relation thereto, the NCC states that in computing a period, the first day shall be excluded and the last day
included.

In computing the 30-day period, July 17, 1979 (the first day) is excluded, counting 30 days thereafter, beginning on July 18, 1979,
the petitioners had up to August 16, 1979 to file their Motion for Reconsideration. Their MR, although dated August 16, 1979,
was filed with the trial court on August 17, 1979 or one day beyond the 30-day reglamentary period prescribed by Section 3 of
Rule 41.

Under these circumstances, the order of the trial court dismissing the Complaint has become final and executory. Perfection of
an appeal in the manner and within the period laid down by law is not only mandatory but also jurisdictional and failure to
perfect an appeal as required by the rules has the effect of rendering the judgment final and executory. A strict observance of
the reglamentary period within which to exercise the statutory right of appeal has been considered as absolutely indispensable
to the prevention of needless delays.

K. Applicability of Penal Laws

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.

8
Generality
Generality of criminal law means that the criminal law of the country governs all persons within the country regardless of
their race, belief, sex, or creed. However, it is subject to certain exceptions brought about by international agreement.
Ambassadors, chiefs of states and other diplomatic officials are immune from the application of penal laws when they are
in the country where they are assigned.

Note that consuls are not diplomatic officers. This includes consul-general, vice-consul or any consul in a foreign country,
who are therefore, not immune to the operation or application of the penal law of the country where they are assigned.
Consuls are subject to the penal laws of the country where they are assigned.

It has no reference to territory. Whenever you are asked to explain this, it does not include territory. It refers to persons
that may be governed by the penal law.

General Rule: Criminal laws apply to everyone in the territory (citizens and aliens)
Exceptions: In these instances, all the Philippines can do is expel them
a. Treaty stipulations which exempt some persons within the jurisdiction of Philippine courts (e.g., Bases
Agreement)
b. Heads of State and Ambassadors
(Note: Consuls are subject to the jurisdiction of our criminal courts.)

L. Conflict of Laws

Conflict of Laws is that part of municipal law of the state which directs its courts and administrative agencies, when
confronted with legal problems involving a foreign element, to determine whether to apply foreign law or foreign laws.
.
Breaking it down, the elements are as follows:
*
 There is a directive to courts and administrative agencies;
 It is a part of municipal law of the a state
 There is a legal problem involving foreign element; and
 There is either an application or non-application of a foreign law or foreign laws.
.
Steps in dealing with a problem in Conflict of Laws:
1. Determine whether the court has jurisdiction over the case;
2. Determine whether it should assume jurisdiction; and
3. Determine whether to apply the law of the forum or the foreign law.

Art. 15. Laws relating to family rights and duties or to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living abroad

 Theories on Personal Law:

a. Domiciliary theory - the personal laws of a person are determined by his domicile
b. Nationality theory - the nationality or citizenship determines the personal laws of the individual
 Nationality Principle: refers to:
a. Family rights and duties
b. Status
c. Condition
d. Legal capacity
 Lex Loci Celebrationis—the capacity to enter into an ordinary contract is governed by the national law of the person,
and not by the law of the place where the contract was entered into
 Capacity to enter into other relations. Capacity to enter into other relations or contracts is not necessarily governed
by the national law of the person concerned. Thus:
a. Capacity to acquire, encumber, assign, donate or sell property depends on the law of the place where the
property is situated
b. Capacity to inherit depends not on the national law of the heir, but on the national law of the decedent.
c. Capacity to get married depends not on the national law of the parties, but on the law of the place where
the marriage was entered into subject to certain exceptions.
 General Rule: Under Article 26 of the Family Code, all marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were solemnized and valid there as such, is also valid in the
Philippines.
Exception: If the marriage is void under Philippine law, then the marriage is void even if it is valid in the country
where the marriage was solemnized.
Exception to the exception: Article 35, ¶2, Family Code

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 the testamentary provisions, shall be regulated by the

9
 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.

 Lex rei sitae—law of the place where the property is situated. Property, whether real or personal, is as a rule
governed by lex rei sitae.
 Exceptions to the Lex Situs Rule:
a. Order of succession
b. Amount of successional rights
c. Intrinsic validity of the provisions of a will
d. Capacity to succeed
 In Miciano vs. Brimo, the SC said that the will of a foreigner containing the condition that the law of the Philippines
should govern regarding the distribution of the properties is invalid.
 The Renvoi Problem. Renvoi literally means a referring back; the problem arises when there is a doubt as to whether
a reference in our law to a foreign law
a. Is a reference to the internal law of said foreign law or
b. Is a reference to the whole of the foreign law, including its conflicts rules
 In Aznar vs. Garcia, what was involved was the renvoi doctrine. In this case, the decedent was a citizen of California
who resided in the Philippine. The problem was that under Philippine law, the national law of the decedent shall
govern. On the other hand, under California law, the law of the state where the decedent has his domicile shall
govern. The SC accepted the referral by California law and applied Philippine law (single renvoi).

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 the 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

 Formalities for the acquisition, encumbering and alienation of property (whether real or personal) shall however, be
governed not by the lex loci celebrationis but by the lex rei sitae.
 Lex loci celebrationis (formal requirements of contracts, wills, and other public instruments are governed by the
country in which they are executed)
 There is no conflict between the 1st ¶ of Article 16 and the 1st ¶ of Article 17 since they talk of 2 different things.
 Thus, the formal requirements of a contract involving real property in the Philippines must follow the formal
requirements of the place where the contract was entered into. However, if what is involved is not the formal
requirements, then the law of the place where the properties (whether real or personal) are located shall govern.
 Rule of Exterritoriality. Even if the act be done abroad, still if executed before Philippine diplomatic and consular
officials, the solemnities of Philippine laws shall be observed. The theory is that the act is being done within an
extension of Philippine territory.
 Rule respecting prohibitive laws. The third paragraph gives one exception to the rule that a foreign law, contract, or
judgment can be given effect. The reason is that public policy in the Philippines prohibits the same. For instance: An
absolute divorce granted Filipinos abroad even if valid where given cannot be recognized in the Philippines inasmuch
as under the Civil Code, absolute divorce is prohibited (except insofar as Mohammedan Filipinos are concerned)
 Lex Loci Voluntatis (the law of the place voluntarily selected) or Lex Loci Intentionis (the law of the place intended by
the parties to the contract)_ While the first paragraph of Art. 17 speaks of forms and solemnities, no mention is
made of the law that should govern the intrinsic validity of contracts in general. The prevailing rule in private
international law today is to consider the lex loci voluntatis or the lex loci intentionis.

ABSOLUTE DIVORCE
• GENERAL RULE: our courts only observe relative divorce (legal separation). Any divorce sought in Philippine courts will
not be granted. Filipino couples cannot obtain absolute divorces abroad and neither shall a valid divorce obtained abroad
by Filipino couples be recognized here.
• EXCEPTIONS:
1. Valid divorce obtained abroad between foreigners whose national laws allow divorce.
2. 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 have capacity to
remarry under Philippine law.
• Hague Convention provides that the granting of divorce or separation must comply with the national law of the spouses
and the law of the place where the application for divorce is made.

Art. 26, ¶2. 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 have capacity to
remarry under Philippine law.

 General Rule: Foreign divorces obtained by Filipino citizens will be considered void and are not recognized.
 Exception: In case the parties to the marriage are a Filipino citizen and a foreigner. If the foreigner obtains a valid
foreign divorce, the Filipino spouse shall have capacity to re-marry under Philippine law.
 However, if it is the Filipino citizen who secures the divorce, the divorce will not be recognized in the Philippines.

1
 Requisites of Article 26, ¶2: (1) The marriage must be one between a Filipino and a foreigner, (2) Divorce is granted
abroad, (3) Divorce must have been obtained by the alien spouse, (4) Divorce must capacitate the alien spouse to
remarry.
 Article 26, ¶2 has a retroactive effect if no vested rights are affected.
 Problem: Suppose at the time of the marriage, both are Filipinos. Later on, one spouse is naturalized. This spouse
obtains a foreign divorce. Will Article 26, ¶2 apply?
2 views:
1. Justice Puno—It won’t. Article 26, ¶2 requires that at the time the marriage is celebrated, there must be 1
foreigner.
2. DOJ Opinion—It applies, Article 26, ¶2 is not specific.

Van Dorn Vs. CA 139 scra 139

Petitioner Alice Reyes is a citizen of the Philippines while private respondent is a citizen of the United States; they were married
in Hongkong. Thereafter, they established their residence in the Philippines and begot two children. Subsequently, they were
divorced in Nevada, United States, and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn. Private
respondent filed suit against petitioner, stating that petitioner’s business in Manila is their conjugal property; that petitioner he
ordered to render accounting of the business and that private respondent be declared to manage the conjugal property.
Petitioner moved to dismiss the case contending that the cause of action is barred by the judgment in the divorce proceedings
before the Nevada Court. The denial now is the subject of the certiorari proceeding.

ISSUE: Whether or not the divorce obtained by the parties is binding only to the alien spouse.

HELD: Is it true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to
their national law. In this case, the divorce in Nevada released private respondent from the marriage from the standards of
American Law, under which divorce dissolves the marriage.

Thus, pursuant to his national law, private respondent is no longer the husband petitioner. He would have no standing to sue in
the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is bound by the decision of his
own country’s court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is stopped by
his own representation before said court from asserting his right over the alleged conjugal property.

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.

 In case of conflict with the Code of Commerce or special laws, the Civil Code shall only be suppletory, except if
otherwise provided for under the Civil Code. In general, therefore, in case of conflict, the special law prevails over
the Civil Code, which is general in nature.
 When the civil code is superior. There are instances when the Civil Code expressly declares itself superior to special
laws:
a. Common carriers
b. Insolvency

Board of Commissioners vs. Dela Rama 197 SCRA 853

De Tavera vs. Phil. Tuberculosis Society, 112 SCRA 243

Plaintiff is a doctor of Medicine by profession and a recognized specialist in the treatment of tuberculosis, a member of the BoD
and Executive Sec. of defendant Society, was removed from her position without informing her of the cause and that her
position was expediently declared vacant. Defendants answered that plaintiff’s position is held at the pleasure of the BOD.

Plaintiff filed a complaint for damages filed under the Sec 6, Article 11 of the Constitution in relation to Arts 12 and 32(6) of the
NCC, and her constitutional right to equal protection of the law, as guaranteed by Sec 1, Art IV of the Constitution. The court
said that the plaintiff was not illegally rendered or used from her position since plaintiff as holding an appointment all the
pleasure of the appointing power and hence her appointment in essence was temporary in nature, terminable at a moment's
notice without need to show that the termination was for cause. MR and appeal denied. Hence, a petition to SC.

That, as a consequence of the unfair and malicious removal of plaintiff from her office, which the plaintiff maintains to be
contrary to morals, good customs, public policy, the pertinent provisions of said By-Laws of the Society, the laws, and the
guarantees of the Constitution, by defendants, the plaintiff suffered not only material damages, but serious damage to her
priceless properties, consisting of her honor and reputation, which were maliciously and unlawfully besmirched, thereby
entitling her to compensation for material and moral damages, from said defendants, jointly and severally, under Article 21, in
relation to Article 32(6) of the NCC; that her removal is without due process of law, denying to her the enjoyment of the
guaranty of the Constitution to equal protection of the law, the plaintiff suffered material and moral damages as a result of the
debasement of her dignity, both as an individual and as a professional (physician) of good standing, therefore, defendants
should be ordered to pay her moral damages, jointly and severally.

Issue: WON Petitioner can seek relief from the general provisions of the NCC on Human Relations as a result of her removal
from her position

Held: Petitioner was not illegally removed or from her position as Executive Secretary in violation of Code of By-laws of the
Society. the NCC and the pertinent provisions of the Constitution.

1
The absence of a fixed term in the letter addressed to petitioner informing her of her appointment as Executive Secretary is very
significant. This implies that petitioner held an appointment at the pleasure of the appointing power and is in essence
temporary in nature. Hence, when the Board opts to replace the incumbent, technically there is no removal but only an
expiration of term where there is no need of prior notice, due hearing or sufficient grounds before the incumbent can be
separated from office.

Petitioner cannot likewise seek relief from the general provisions of the NCC on Human Relations nor from the fundamental
principles of the New Constitution on preservation of human dignity. While these provisions present some basic principles that
are to be observed for the rightful relationship between human beings and the stability of social order, these are merely guides
for human conduct in the absence of specific legal provisions and definite contractual stipulations. Here, the Code of By-Laws of
the Society contains a specific provision governing the term of office of petitioner. The same necessarily limits her rights under
the NCC and the New Constitution upon acceptance of the appointment.

The decision of the lower court holding that petitioner was not illegally removed or ousted from her position as Executive
Secretary of the Philippine Tuberculosis Society, Inc., is affirmed.

II. Human Relations – New Civil Code

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.

Acting with justice and giving another his due. This is elaborated in the ff articles:
a. Art. 20 – indemnification of another due to illegal acts
b. Art. 21 – indemnification due to immoral acts
c. Art. 22 – unjust enrichment
d. Art. 24 – unfair competition

Observance of Honesty and Good Faith. This is elaborated in the ff articles:

a. Art. 26 – respect for the personality and dignity of others
b. Art. 25 – restraint of undue extravagance
c. Art 31 et seq – independent civil actions

Lorente vs. Sandiganbayan, 202 SCRA 309

Petitioner was charged with violation of Sec. 3c of the Anti Graft and Corrupt Practices Act but was acquitted on the ground that
he was not shows to have acted in bad faith. Despite said acquittal, petitioner was held civilly liable and ordered to pay
“compensatory damages” in the total sum of P90,000.00; and in support thereof the Sandiganbayan ruled that the petitioner
was nonetheless guilty of abuse of right under Art 19 of the Civil Code and as a public officer he was liable for damages suffered
by the aggrieved party (under Art 27 of the Civil Code.) On appeal the SC held:

Under the 1986 Rules of Criminal Procedure, the judgment of the Court shall include, in case of acquittal and unless there is a
clear showing that the act from which the civil liability might arise did not exist, a finding on the civil liability of the accused in
favor of the offended party. The rule is based on the provisions of substantive law, that if acquittal proceeds from reasonable
doubt, a civil action lies nonetheless.

The judgment found that petitioner in refusing to issue a certificate of clearance in favor of the private offended party,
Hermenegildo Curio, did not act with “evidence of bad faith,” one of the elements of Sec 3c of RA 3019. The judgment is correct
insofar as it found lack of evident bad faith by the petitioner, basically, because the petitioner was acting within the bounds of
law in refusing to clear Curio although the practice was that the clearance was nevertheless approved and then the amount of
the unsettled obligation was deducted from the gratuity benefits of the employee.

Although the petitioner did not act with evident bad faith, he acted with bad faith nevertheless, for which he should respond for
damages. The records show that the office practice indeed in the Phil Coconut Authority was to clear the employee and deduct
his accountabilities from his gratuity benefits. There is no debate about the existence of this practice and in fact he cleared three
employees on the condition that their obligations should be deducted from their benefits.

The petitioner had unjustly discriminated against Mr. Curio. It is no defense that the petitioner was motivated by no ill-will. it is
the essence of Art 19 of the Civil Code, under which the petitioner was made to pay damages, together with Art. 27, that the
performance of duty be done with justice and good faith. The petitioner is liable for damages under Art 19 of the Civil Code.

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter
for the same.

 The article punishes illegal acts whether done willfully or negligently. Thus, in the law of torts or quasi
delicts – “Whoever by act or omission causes damage to another, there being fault or negligence is obliged
to pay for the damage done” (Art. 2176, NCC)
 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.
 If someone be damaged, he does not necessarily have the right to be indemnified. It is essential that some
right of his be impaired.
 When judiciary can interfere in decisions of religious tribunals. On at least one occasion, the SC has stated
the instances when it can or cannot inquire into the validity of decisions of ecclesiastical courts. In Fonacier
vs CA, the SC held that the expulsion of a member of the Filipino Independent Church who had not been
given any notice or opportunity to be heard is not conclusive upon civil courts when a property right is
involved. Civil courts have jurisdiction to inquire into the jurisdiction of religious tribunals and the regularity

1
 of their procedure, and may even subject their decisions to the test of fairness or to the test furnished by
the Constitution and the laws of the Church.

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

Can there be an action for breach of promise to marry:

a. For the recovery of actual damages, yes. Thus, if a person gives another P500 because the latter promised to
marry the former, and the promise is not fulfilled, the money given can be recovered. Thus also, if a teacher
resigns from her position because of a man’s promise to marry her, she can recover indemnity for damages if
later on the promise is not fulfilled (Garcia v del Rosario). The same thing may be said for the recovery of
wedding expenses, such as the wedding breakfast, the ceremony, the trousseau, the issuance of invitations, if
one party fails to appear.
b. Recovery of moral damages. There can be no recovery of moral damages for a breach of promise to marry.
However, if there be seduction, moral damages may be recovered under Art. 2219, par. 3 2of the Civil Code. The
Court, however, implied that if there be moral seduction (Art 337 3 and Art 338 4, RPC) as distinguished from
criminal seduction, there may be a grant of moral damages, possibly under Art. 21.

In an action based on a breach of promise to marry, what rights has the aggrieved party in cases:
a. When there has been carnal knowledge?
a. Ask the other to recognize the child, should there be one, and give support to said child
b. Sue for moral damages, if there be criminal or moral seduction, but not if the intercourse was due
to mutual lust
c. Sue for actual damages, should there be any, such as the expenses for wedding preparations
b. When there has been no carnal knowledge?
a. There may be an action for actual and moral damages under certain conditions, as when there
has been a deliberate desire to inflict loss or injury, or when there has been an evident abuse of a
right. Thus, a man who deliberately fails to appear at the alter during the scheduled wedding
simply because it was his intention to embarrass or humiliate the girl n doubt inflicts irreparable
injury to her honor and reputation, wounds her feelings, and leads the way for her possible social
ostracism. The girl in such a case can recover not only actual but also moral and exemplary
damages.

2
Art. 2219. Moral damages may be recovered in the following and analogous cases:
(3) Seduction, abduction, rape, or other lascivious acts;
The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order
named.

3
Art. 337. Qualified seduction. — The seduction of a virgin over twelve years and under eighteen years of age, committed by any person in
public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education or
custody of the woman seduced, shall be punished by prision correccional in its minimum and medium periods.
The penalty next higher in degree shall be imposed upon any person who shall seduce his sister or descendant, whether
or not she be a virgin or over eighteen years of age.
Under the provisions of this Chapter, seduction is committed when the offender has carnal knowledge of any of the
persons and under the circumstances described herein.

4
Art. 338. Simple seduction. — The seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of
age, committed by means of deceit, shall be punished by arresto mayor.

1
Wassmer vs. Velez 12 scra 648
FACTS: Two days before the wedding (meaning everything about the wedding was already set, as well as bridal showers and
gifts) the groom Francisco Velez suddenly flew to his home in Cagayan de Oro, leaving the bride, Beatriz Wassmer, only this
note: “will have to postpone wedding – my mother opposes it.” The next day (day before the wedding) he sent this message
through telegram: “Nothing changed rest assured returning soon.” But he never returned and was never heard from again.

ISSUE: Whether or not breach of promise to marry is actionable

HELD: This is not the case of mere breach of promise to marry. Mere breach of promise to marry is not an actionable wrong. But
to formally set a wedding and go through all the preparations publicity, only to walk out of it when the matrimony is about to be
solemnized is quite different. This is contrary to good customs for which the defendant must be held answerable in damages in
accordance with Art. 21 NCC. Defendant is liable for actual damages, as well as to moral and exemplary damages. Judgment
affirmed with modifications (on amount of damages).

Art. 22. Every person who through an act of 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.

Essential requisites of an Accion in Rem Verso

a. One party must be enriched and the other made poorer
b. There must be a casual relation between the two
c. The enrichment must not be justifiable (so if the law itself allows the enrichment, or if the enrichment results
from a contract or from the impoverished person’s own negligence, there can be no recovery)
d. There must be no other way to recover
e. The indemnity cannot exceed the loss or enrichment, whoever is less.

CIR vs. Firemen’s Fund Insurance Co. 148 SCRA 315

Facts: From January, 1952 to 1958, private respondent Fireman's Fund Insurance Co. entered into various insurance contracts
involving casualty, fire and marine risks, for which the corresponding insurance policies were issued. From January, 1952 to
1956, documentary stamps were bought and affixed to the monthly statements of policies issues; and from 1957 to 1958
documentary stamps were bought and affixed to the corresponding pages of the policy register, instead of on the insurance
policies issued.

In 1959, respondent company discovered that its monthly statements of business and policy register were lost and reported
such to the NBI and the CIR. The CIR through its examiner, after conducting an investigation of said loss, ascertained that
respondent company failed to affix the required documentary stamps to the insurance policies issued by it and failed to
preserve its accounting records within the time prescribed by Sec. of the Revenue Code by using loose leaf forms as registers of
documentary stamps without written authority from the CIR. As a consequence of these findings, petitioner assessed and
demanded from petitioner the payment of documentary stamp taxes for the years 1952 to 1958 in the total amount of P
79,806.87 and plus compromise penalties, a total of P 81,406.87.

Issue: WON the CIR may impose and require the payment of the subject stamp tax for the documents in
question.

Ruling: NO. There is no justification for the government which has already realized the revenue which is the object of the
imposition of subject stamp tax, to require the payment of the same tax for the same documents. Enshrined in our basic legal
principles is the time honored doctrine that no person shall unjustly enrich himself at the expense of another. It goes without
saying that the government is not exempted from the application of this doctrine.
While there appears to be no question that the purpose of imposing documentary stamp taxes is to raise revenue, however, the
corresponding amount has already been paid by respondent and has actually become part of the revenue of the government. In
the same manner, evidence was shown to prove that the affixture of the stamps on documents not authorized by law is not
attended by bad faith as the practice was adopted from the authority granted to one of respondent's general agents.

1
B. 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 case, 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.

 An independent civil action is one that is brough distinctly and separately from a criminal case allowed for
considerations of public policy because the proof needed for civil cases is less than the 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. It should be noted that the bringing of the independent civil action is
PERMISSIVE, not compulsory.
 Instances when the law grants an independent civil action:
o Art. 32 – breach of constitutional and other rights
o Art. 33 – defamation, fraud, physical injuries
o Art. 34 – refusal or failure of city or municipal police to give protection
o Art. 2177 – quasi-delict or culpa aquiliana
 Art. 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

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or
in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter
for damages:
(1) Freedom or 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, papers, 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 of grievances;
(14) The right to be a 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 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 inflicted in
accordance with a statute which has not been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense,
the aggrieved party has a 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 mat be
proved by a preponderance of evidence.

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 penal statute.

 Scope: It should be noted that the ff can be made liable

a. Any public officer or employee

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 b. Any private individual even if he be in good faith; the precise purpose of the Article is to eliminate the
defense of good faith, otherwise the main reason for the Article would be lost
 Defendant in an independent civil action. The defendant is not the state, but the public officer involved.
Hence, the consent of the state is not required.

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. 33 speaks of:

o Defamation (or libel or slander or intrigue against honor)
o Fraud (or estafa or swindling)
o Physical injuries including consummated, frustrated and attempted homicide, murder,
parricide, infanticide—as long as there was physical injury

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 therefor. The civil action herein recognized shall be independent of any criminal
proceedings, and a preponderance of evidence shall suffice to support such action.

 Primary liability is assessed against the member of the police force who refuses or fails to render aid or
protection. Subsidiary liability is imposed on the city or municipality concerned in case of insolvency. (Art.
34, NCC)

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 complaint 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 should 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.

 Rule if no independent civil action is granted. This Article applies to cases when there is no independent
civil action (such as when the liability sought to be recovered arises from a crime); and not to a tortuous
action such as that provided for under Art. 33.
 E.g. A woman accused her classmate of committing against her the crime of unintentional abortion. But the
fiscal refused to institute criminal proceedings. She may bring a civil action for damages against the alleged
offender, but if in the course of the trial, an information should be presented by the fiscal, charging the
classmate with the crime, the civil action shall be suspended until the termination of the criminal
proceedings.
 Canlas v Chan Lin Po—in a criminal case, the aggrieved party reserved the right to file a separate civil
action. Despite this, the Court sentenced the caccused to pay civil indemnity. The judgement, except as to
the fact of commission by the accused of the act charged therein cannot be res judicata, constituting a bar
to the civil action to enforce the subsidiary or primary liability of the defendants who were not parties to
the criminal case.

C. Prejudicial Questions –

Art. 36. Pre-judicial questions, which must be decided before any criminal prosecution may be instituted or may proceed,
shall be governed by rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the
provisions of this Code.

 Prejudicial questions is one which must be decided first before a criminal action may be instituted or may
proceed because a decision therein is vital to the judgment in the criminal case. A prejudicial question is a
question which is based on a fact distinct and separate from the crime but so intimately concerned with it
that its resolution is determinative of the guilt or innocence of the accused.
 Requisites:
o The civil case involves facts intimately related to those upon which the criminal prosecution
would be based
o In the resolution of the issue or issues raised in the civil actions, the guilt or innocence of the
accused would necessarily be determined; and
o Jurisdiction to try said question must be lodged in another tribunal

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Uypitching, et al. v. Quiamco, G.R. No. 146322, December 6, 2006

Facts: 1982: respondent Ernesto C. Quiamco was approached by Juan Davalan, Josefino Gabutero and Raul Generoso to
amicably settle the civil aspect of a criminal case for robbery filed by Quiamco against them. They surrendered to him a red
Honda XL-100 motorcycle and a photocopy of its certificate of registration. The motorcycle was parked in an open space inside
respondent’s business establishment, Avesco-AVNE Enterprises, where it was visible and accessible to the public.

October 1981: the motorcycle had been sold on installment basis to Gabutero by petitioner Ramas Uypitching Sons, Inc., a
family-owned corporation managed by petitioner Atty. Ernesto Ramas Uypitching. To secure its payment, the motorcycle was
mortgaged to petitioner corporation. When Gabutero could no longer pay the installments, told petitioner corporation’s
collector, Wilfredo Veraño, that the motorcycle had allegedly been “taken by respondent’s men.”

January 26, 1991: petitioner Uypitching, accompanied by policemen, went to Avesco-AVNE Enterprises to recover the
motorcycle. Unable to find respondent, the policemen went back to Avesco-AVNE Enterprises and, on petitioner Uypitching’s
instruction and over the clerk’s objection, took the motorcycle.

February 18, 1991: petitioner Uypitching filed a criminal complaint for qualified theft and/or violation of the Anti-Fencing Law
against respondent in the Office of the City Prosecutor of Dumaguete City.

July 30, 1994: the trial court rendered a decision finding that petitioner Uypitching was motivated with malice and ill will when
he called respondent a thief, took the motorcycle in an abusive manner and filed a baseless complaint for qualified theft and/or
violation of the Anti-Fencing Law. Petitioners appealed the RTC decision but the CA affirmed the trial court’s decision.

Thus, this petition.

Issue: Whether or not the petitioners are liable for damages?

Held: WHEREFORE, the petition is hereby DENIED.

Ratio Decidendi
As they never questioned the findings of the RTC and CA that malice and ill will attended not only the public imputation of a
crime to respondent but also the taking of the motorcycle, petitioners were deemed to have accepted the correctness of such
findings.

A mortgagee may take steps to recover the mortgaged property to enable it to enforce or protect its foreclosure right thereon.
There is, however, a well-defined procedure for the recovery of possession of mortgaged property:
· if a mortgagee is unable to obtain possession of a mortgaged property for its sale on foreclosure, he must bring a civil action
either to recover such possession as a preliminary step to the sale, or to obtain judicial foreclosure.

Petitioner corporation failed to bring the proper civil action necessary to acquire legal possession of the motorcycle. Instead,
petitioner Uypitching descended on respondent’s establishment with his policemen and ordered the seizure of the motorcycle
without a search warrant or court order.

Worse, in the course of the illegal seizure of the motorcycle, petitioner Uypitching even mouthed a slanderous statement.

There is an abuse of right when it is exercised solely to prejudice or injure another. The exercise of a right must be in accordance
with the purpose for which it was established and must not be excessive or unduly harsh; there must be no intention to harm
another. Otherwise, liability for damages to the injured party will attach. In this case, the manner by which the motorcycle was
taken at petitioners’ instance was not only attended by bad faith but also contrary to the procedure laid down by law.
Considered in conjunction with the defamatory statement, petitioners’ exercise of the right to recover the mortgaged vehicle
was utterly prejudicial and injurious to respondent.

On the other hand, the precipitate act of filing an unfounded complaint could not in any way be considered to be in accordance
with the purpose for which the right to prosecute a crime was established. Thus, the totality of petitioners’ actions showed a
calculated design to embarrass, humiliate and publicly ridicule respondent. Petitioners acted in an excessively harsh fashion to
the prejudice of respondent. Contrary to law, petitioners willfully caused damage to respondent. Hence, they should indemnify
him.

Palma Development Corp. v. Municipality of Malangas, Zamboanga Del Sur, 459 Phil. 1042, 1050 (2003)
FACTS: Petitioner Palma Development Corporation is engaged in milling and selling rice and corn to wholesalers in Zamboanga
City with the municipal port of Malangas, Zamboanga del Sur as transshipment point for its goods. The port, as well as the
surrounding roads leading to it, belong to and are maintained by the Municipality of Malangas, Zamboanga del Sur.

The municipality passed an ordinance imposing service fee for the use of the municipal roads or streets leading to the wharf and
to any point along the shorelines within the jurisdiction of the municipality and for police surveillance on all goods and all
equipment harbored or sheltered in the premises of the wharf and other within the jurisdiction of the municipality.

Accordingly, the service fees imposed was paid by petitioner under protest. It contended that under RA 7160 (Local
Government Code of 1991,) municipal governments did not have the authority to tax goods and vehicles that passed through
their jurisdictions. Thereafter, before the RTC of Pagadian City, petitioner filed against the Municipality of Malangas an action for
declaratory relief assailing the validity of Section 5G.01 of the municipal ordinance. Petitioner argues that while respondent has
the power to tax or impose fees on vehicles using its roads, it cannot tax the goods that are transported by the vehicles.

The trial court rendered a decision declaring the entire ordinance as ultra vires and, hence, null and void.

The CA held that local government units already had revenue-raising powers as provided for under Sections 153 and 155 of RA
No. 7160. It ruled as well that within the purview of these provisions -- and therefore valid -- is Section 5G.01.

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Issue: WON the ordinance is contrary to R.A. No. 7160 or the Local Government Code of the Philippines under the contention of
undue enrichment

Held: Valid.

By express language of Sections 153 and 155 of RA No. 7160, local government units, through their Sanggunian, may prescribe
the terms and conditions for the imposition of toll fees or charges for the use of any public road, pier or wharf funded and
constructed by them. A service fee imposed on vehicles using municipal roads leading to the wharf is thus valid. However,
Section 133(e) of RA No. 7160 prohibits the imposition, in the guise of wharfage, of fees -- as well as all other taxes or charges in
any form whatsoever -- on goods or merchandise. It is therefore irrelevant if the fees imposed are actually for police surveillance
on the goods, because any other form of imposition on goods passing through the territorial jurisdiction of the municipality is
clearly prohibited by Section 133(e). Wharfage is "a fee assessed against the cargo of a vessel engaged in foreign or domestic
trade based on quantity, weight, or measure received and/or discharged by vessel." It is apparent that a wharfage does not lose
its basic character by being labeled as a service fee "for police surveillance on all goods."

Unpersuasive is the contention of respondent that petitioner would unjustly be enriched at the former’s expense. Though the
rules thereon apply equally well to the government, for unjust enrichment to be deemed present, two conditions must generally
concur: (a) a person is unjustly benefited, and (b) such benefit is derived at another’s expense or damage.

Here, the benefits from the use of the municipal roads and the wharf were not unjustly derived by petitioner. Those benefits
resulted from the infrastructure that the municipality was mandated by law to provide. There is no unjust enrichment where the
one receiving the benefit has a legal right or entitlement thereto, or when there is no causal relation between one’s enrichment
and the other’s
impoverishment.

Republic v. Court of Appeals, No. L-31303-04, May 31, 1978, 83 SCRA 453, 480).

Ledesma vs. CA, 160 SCRA 449

FACTS:
Violeta Delmo was treasurer of an organization formed by students of the West Visayas College. She extended loans from the
funds of the club to some of the students of the school. As a result, the school president (petitioner) denied her the right to
graduate MAGNA CUM LAUDE despite the order of the Director of the Bureau of Public Schools that she be conferred such
honor.

ISSUE:
Is the school president liable for damages?

HELD:
[i]It cannot be disputed that Violeta Delmo went through a painful ordeal, which was brought about by the petitioner's neglect
of duty and callousness. Thus, moral damages are but proper.

The Solicitor- General tried to cover-up the petitioner's deliberate omission to inform Miss Delmo by stating that it was not the
duty of the petitioner to furnish her a copy of the Director's decision. Granting this to be true, it was nevertheless the
petitioner's duty to enforce the said decision. He could have done so considering that he received the decision XXX and even
though he sent it back with the records of the case, he undoubtedly read the whole of it, which consisted of only 3 pages.
Moreover, the petitioner should have had the decency to meet Mr. Delmo, the girl's father, and inform the latter, at the very lest
of the decision. This, the petitioner failed to do, and not without the attendant bad faith which the appellate court correctly
pointed out in its decision.

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PERSONS

I. Persons and Personality – New Civil Code

Person—any being, natural or artificial, capable of possessing legal rights and obligations.
a. Natural persons—human beings created by God through the intervention of the parents
b. Juridical persons—those created by law

A. Capacity to Act

1. Civil Personality
Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural
person 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.

 2 component elements of capacity:

1. Juridical capacity
 There are no degrees of juridical capacity.
 Juridical capacity is the same in every person. No one has more juridical capacity than others. It is
inherent in natural persons. On the other hand, it arises in artificial persons when such artificial
persons are created.
2. Capacity to act
 This is best presented by a spectrum:

0% Infant Alien Most People 100%

 Nobody has 100% capacity to act. The law imposes restrictions on capacity to act. As long as one has
contractual capacity (a.k.a. full civil capacity) one is near 100% capacity to act. “Full civil capacity” is not really
100% but close to it. With contractual capacity, one is generally able to perform contracts and dispose of
property.
 Nobody has 0% capacity to act. Infants are close to 0% but still have capacity to act. For example, even fetus has
the right to succeed and also have the right to the integrity of body. Aliens cannot own colleges or broadcast
media.

 Restrictions on Capacity to Act

Art. 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are
mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations, a
when the latter arise from his acts or from property relations, such as easements.

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.

 Articles 38 and 39 are really the same thing. They are redundant.
 Insolvency – certain obligations cannot be performed (i.e., one cannot pay off debts in favor of one creditor while
excluding other creditors)
 Trusteeship - one is placed in guardianship.
 Restrictions on capacity to act:
o Prodigality - it is not by itself a restriction. It is a ground to be placed in guardianship
o Minority (below 18)—Generally, a minor needs parental consent before he can enter into an ordinary
contract. Otherwise, the contract is voidable.
o Insanity or imbecility—insanity is a condition in which a person’s mind is sick, imbecility is feeble-
mindedness, or a condition in which a person thinks like a small child
o Civil interdiction (the deprivation by the court of a person’s right)
o State of being a deaf-mute
 These restrictions don’t exempt incapacitated persons from certain obligations. Under Article 1156, there are 5
sources of obligations:
1. Law
2. Contract
3. Delict
4. Quasi-delict
5. Quasi-contract
 Thus, Articles 38 and 39 prevent incapacitated persons from incurring contractual obligations only. Thus, even
though an insane person cannot be thrown in jail for a criminal act, the insane person is still civilly liable (delict). An
incapacitated person must still pay income tax if income is earned.

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 Although Articles 38 and 39 don’t mention it, incapacitated persons may acquire rights. For example, they have the
right to accept donations or to succeed.
 The enumeration in Articles 38 and 39 is not exclusive. There are others spread throughout the code. (i.e., a lawyer
cannot buy property in litigation – Article 1491 (5) )
 Article 39, last ¶ has been amended by R.A. No. 6809. 21 years is no longer the age of majority but 18.
 Article 39, last ¶ – What are the cases specified by law?

3. Birth

Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are
favorable 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 months, it is not deemed born if it
dies within twenty-four hours after its complete delivery from the maternal womb.

 Personality does not begin at birth, it beins at conception. This personality at conception is called presumptive
personality.
 Principles:
1. For personality to be acquired one must be born
2. Once birth occurs, personality for favorable purposes retroacts to the moment of conception
 To be born means to be alive after the fetus is completely separated from the mother’s womb by cutting off the
umbilical cord.
 General Rule: To be born, it is enough that the fetus is alive when the umbilical cord is cut
Exception: If the intra-uterine life is less than 7 months, it must live for at least 24 hours, before it is considered
born (There is no distinction as to how the child dies – whether natural, accidental, etc.)
 According to Professor Balane, modern medicine cannot as of yet determine if the intra-uterine life is 7 months or
less in terms of number of days. Modern medicine cannot determine the exact time when fertilization took place.
Modern medicine estimates the fetus age in weeks.
 An example of a case where upon birth occurs personality retroacts to the moment of conception is in case of
succession since it is favorable to the child. On the other hand, if the purpose is for paying taxes, personality does
not retroact since it is unfavorable to the child.
 In Geluz vs. CA, the SC said that the father could not file the action for damages. The fetus never acquired
personality because it was never born – it was not alive at the time it was delivered from the mother’s womb. Since
the fetus did not acquire any personality, it acquired no rights which could be transmitted to the father. Thus, the
father could not sue in a representative capacity. The father could have sued in his personal capacity had the father
suffered anguish which he did not.

3. Death

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.

 This article deals with the extinguishment of civil personality

 Death is not defined in the Civil Code. Not even doctors know precisely when death occurs. There are many
theories.
 The fact of death is important because it affects civil personality and legal relations. The main effect of death is
readily seen in succession. Death is also relevant to labor law and insurance.

Art. 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them
died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall be no transmission of rights from one to the other.

Rule 131, Rules of Court

Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:

(jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or
conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred,


Art. 1491. The following persons cannot acquire by purchase, even at a public or judicial auction, either in
person or through the mediation of another:
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers
and employees connected with the administration of justice, the property and rights in litigation or
levied upon an execution before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights which may be the object of any litigation in which they
may take part by virtue of their profession.

2
the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the
following rules:
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age of sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the
sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have
survived.

 This is a presumption regarding simultaneous death and not a rule on survivorship. On the other hand, the Rules
provide for a presumption of survivorship based on certain criteria.
 The Rules of Court shall apply where:
1. The issue does not involve succession but something else (i.e., insurance, suspensive conditions); and
2. The persons perish in the same calamity
 Article 43 shall apply where:
1. The case involves succession; and
2. The persons do not perish in the same calamity.
 If the conditions in the Rules of Court or Article 43 do not concur, do not apply either.
 Problem: What if succession is involved and the persons perish in the same calamity?

Most commentators say Article 43 will prevail. This is the only case of conflict between the Rules of Court and Article 43.
 In Joaquin vs. Navarro, Article 43 was not applied. There was no need to apply the presumption in Article 43 since
there was evidence to show who died first.

B. Domicile and residence of person

Art. 50. For the exercise of civil rights and the fulfillment 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.

 Article 50 governs the domicile of natural persons. Article 51 talks about the domicile of juridical persons.
 Requisites of Domicile (Callego vs. Vera):
1. Physical Presence
2. Intent to remain permanently
 Kinds of Domicile
1. Domicile of Origin - Domicile of parents of a person at the time he was born.
2. Domicile of Choice - Domicile chosen by a person, changing his domicile of origin. A 3 rd requisite is
necessary – intention not to return to one’s domicile as his permanent place.
3. Domicile by Operation of Law (i.e., Article 69, domicile of minor)
 Residence vs. Domicile
 Residence is not permanent (There is no intent to remain)
 Domicile is permanent (There is intent to remain)
 According to the Supreme Court in Marcos vs. COMELEC, the wife does not lose her domicile upon marriage. She
does not necessarily acquire her husband’s domicile. Until the spouses decide to get a new domicile, the wife
retains her old domicile. Under Article 698 of the Family Code, the domicile is fixed jointly.
 3 Rules:
1. A man must have a domicile somewhere.
2. A domicile once established remains until a new one is acquired.
3. A man can only have one domicile at a time.
 The following Articles in the Civil Code mention domicile:

1. Article 821

Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document, perjury or false testimony.

2. Article 829

Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid
when it is done according to the law of the place where the will was made, or according to the law of the place in which
the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with
the provisions of this Code.

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

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 3. Article 1251

Art. 1251. Payment shall be made in the place designated in the obligation.
There being no express stipulation and if the undertaking is to deliver a determinate thing, the payment shall be made
wherever the thing might be at the moment the obligation was constituted.

In any other case the place of payment shall be the domicile of the debtor.

If the debtor changes his domicile in bad faith or after he has incurred in delay, the additional expenses shall be borne by
him.

These provisions are without prejudice to venue under the Rules of Court.

 The concept of domicile is not as important in civil law countries unlike common law countries which follow the
nationality theory.

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Marriage – Family Code (Aug. 3, 1988)
EXCLUDE: Muslim Code, (PD 1083)

A. Requisites

1. Nature of Marriage, Art. 1

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.

 Marriage is a contract. It is a contract and much more. It is a contract of permanent union between a man and
a woman. A contract of marriage unlike other contracts confers status.
 The primordial purpose of marriage is the establishment of family life.
 Marriage has two aspects:
o (1) as a contract
 Generally in contracts, the parties are free to enter into contractual stipulations. However, in
a marriage contract parties are generally not free to enter into contractual stipulations. All
the consequences of marriage are determined by law. The only area in which the parties
may stipulate is with regard to property relations as long as these stipulations are not
contrary to law. In fact, the parties are not limited to the 3 major regimes in the Family Code.
 As contract, marriage differs from other contracts in that
 Only a man and a woman can enter into the contract of marriage
 Marriage is a permanent contract, i.e. it can only be dissolved by the death of one
of the parties
(2) as a status
 marriage is an inviolable social institution
 The nature, consequences and incidents are governed by law and not subject to stipulation

2. Kinds of Requisites, Arts. 2-3

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. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;
(2) A 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.

3. Effect of absence of requisites, Art. 4

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.

 2 Kinds of Elements
1. Essential
a. Legal capacity (included in legal capacity is the difference in sex)
b. Consent

2. Formal—these affect the extrinsic validity, not the intrinsic validity, of the marriage
a. Authority of the solemnizing Ofyficer
b. Valid marriage license
c. Marriage ceremony

 3 terms
1. Absence
a. General Rule: The absence of either an essential or formal requisite makes the marriage void.

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 Exceptions:
1. Article 35, paragraph 2 5
2. Marriages exempted from marriage license (Articles 27, 28, 31, 32, 33, 34) 6
2. Defect
a. Defect occurs in essential requisites alone.
b. Fairly well-defined since there are many specific articles.
c. Effect: Marriage is voidable
3. Irregularity
a. Irregularity refers to formal requisites alone
b. No enumeration as to irregularity unlike defect
c. Effects:
i. Valid marriage
 Party responsible for irregularity may be held liable

5
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;
6
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. (72a)
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)
Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed
validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or
practices. (78a)
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 are found no legal impediment to the
marriage. (76a)

2
4. Essential – Art. 5

Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments
mentioned in Arts 37 & 38 7, may contract marriage.

 For both male and female, the minimum age is 18.

5. Ceremony, Art. 6

Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be
necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare
in the presence of not less than 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 a marriage in articulo mortis, when the party at the point of death is unable to sign the
marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said
party, which fact shall be attested by the solemnizing officer.

 The following are the barest minimum required:

o Personal appearance of parties before the solemnizing officer
o Declaration that they take each other as husband and wife (manifestation of intent)
 The law does not require a specific ceremony neither does it require specific words or symbols.
 Marriages by proxy are NOT ALLOWED since the contracting parties must personally appear before the
solemnizing officer.
 The intent (their declaration that they each other as husband and wife) may be manifested in any form (i.e.,
words, gestures, etc.). In the case of Martinez vs. Tan, the intent was manifested in writing.
 Some commentaries say that the 2 witnesses must be of legal age. Others say they need not be of legal age. To
be safe, the witnesses should be of legal age.
 It is only the appearance of the contracting parties before the solemnizing officer required by this Article that is
a formal requisite of marriage under Art. 3(3), so that in the absence of such appearance, the marriage is void.
 The other requirements in this article will not render the marriage void even if they are totally lacking like:
o There were no witnesses to the marriage
o The parties did not orally declare before the solemnizing officer that they take each other as husband
and wife
o There was no marriage certificate or contract
 Failure to comply with the above requirements are mere irregularities that do not affect the validity of the
marriage

6. Formal – Arts. 7, 31, 32

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 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 the case mentioned in Article 31 8 ;

7
Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties
be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood. (81a)

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 parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(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)
8
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)

2
 (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 9;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10 10.

 Article 7(1), justices of the Supreme Court and Court of Appeals can solemnize marriages anywhere in the
Philippines. Justices of the Regional Trial Courts and Municipal/Metropolitan/Municipal Circuit Trial Courts can
only solemnize marriages within their territorial jurisdiction.
 The Family Code removed the authority of mayors to solemnize marriages, however, in the Local Government
Code, such authority was granted under Sec. 444 as to municipal mayors and Sec. 455 to city mayors.
 In order to validly solemnize a marriage, the priest, rabbi, imam, or minister of any church or religious sect must
be
o Duly authorized by his church, or religious sect, and
o Registered with the Office of the Civil Registrar General
 It is required that at least one of the contracting parties belongs to the solemnizing officer’s church or religious
sect, and the religion of the parties must be stated in their marriage contract in accordance with Art. 22(2). 11
 Consuls general, consuls or vice consuls may solemnize marriages only in the case provide din Art. 10, i.e.
marriages between Filipinos abroad in the foreign assignments of these officials; consuls on home assignment in
the Philippines cannot solemnize marriages

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.

 Definition: The translation of articulo mortis is "at the point of death" or "in the moment of death" and a
marriage in articulo mortis is a marriage that is performed when either the bride or groom is at the point of
death and unable to sign a marriage license application or certificate.
 The marriages may be solemnized not only while the ship is at sea or the plane is in flight but also during stop
over at ports of call, because the authority is given during the voyage and in such cases, the voyage is not yet
terminated
 Not every ship officer of airplane pilot can solemnize marriages under this article. He must be the captain of the
ship or the chief pilot of the airplane.

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.

 The military commander must be a commissioned officer, not a mere corporal or sergeant
 He can solemnize a marriage only if it is in articulo mortis between persons within the zone of military
operations, whether members of the armed forces or civilians
 He can solemnize a marriage in articulo mortis only in the absence of the chaplain
 The unit of the military commander must be a battalion, not just a company
 The situation must be one of emergency

7. Solemnizing authority, Art. 7-8, 10

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 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 the case 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;

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)
10

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)
11

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;

2
 (5) Any consul-general, consul or vice-consul in the case provided in Article 10.

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 the consul-general, consul or vice-consul, as the case may be, and not
elsewhere, except in cases of marriages contracted on 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.

 This provision is only directory, not mandatory, so that non-compliance therewith will not invalidate the
marriage
 Gabriel v Gabriel, C.A., 56 O.G. 3555—a judge cannot solemnize a marriage on a Sunday, which is not an office
day
 The requirement of public solemnization of the marriage is based on the premise that the more people witness
the marriage, more people can notify the solemnizing officer if they know of any impediments to said marriage

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

 In these marriages, a marriage license is still required to be issued by the consular official who will solemnize
the marriage
 The marriage must be between Filipino citizens abroad; if one of the parties is a foreigner, this article cannot
apply

a. Exceptions – Art. 35 (2)

Art. 35. The following marriages shall be void from the beginning:
(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;

 Article 35 (2), if one or both of the contracting parties believes in good faith that the solemnizing officer had
authority to do so even if such person was not authorized, the marriage is not void but valid.
 Good faith in Article 35 (2) refers to a question of fact. For example, the parties did not know that the license of the
priest had expired or that the judge had retired. If the parties thought that Ping Lacson had the authority marry
them, that is not goof faith. That is ignorance of the law. The same is also true if the parties believe that an RTC
judge of Quezon City can marry them in Tawi-Tawi. That is an error of law.

8. License Required – Arts 3 (2), 9, 11, 20, 26

Art. 3. The formal requisites of marriage are:

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

 General Rule: A marriage license is required.

 Exceptions:
1. Marriages in articulo mortis (Articles 27, 31, 32)

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.

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.


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 the necessary steps
to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage.

2
 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.

 Articles 31 and 32 are not distinct exceptional marriages but marriages in articulo mortis.

2. Residence is located such that either party has no means of transportation to enable such party to
appear before the Civil Registrar (Article 28) 12

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 with
Chapter 2 of this Title.

 A violation of this provision will not, however, invalidate the marriage license, but the party who falsified his or her
application for marriage license by stating that he/ she is a resident of the place where the license was applied for, is
criminally liable
 People v Jansen—the solemnizing officer is not required to investigate whether or not the license was issued in the
place required by law.

Art. 11. Where a marriage license 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 party;
(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
party 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 certificates in any
formality in connection with the securing of the marriage license.

 The oath to the application shall be administered by the local civil registrar with whom the application for license is
filed
 The two parties to the intended marriage are required to file separate or individual sworn applications because the
data that they will state under oath are different
 Even if the parties falsify the information given in their marriage applications, the marriage license will still be valid if
issued by the LCR of the place where the application is filed but the party who gave wrong information would be
civilly, criminally and administratively liable

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 the said period if the
contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of
every license issued.

 The marriage license may be used anywhere in the Philippines but not in foreign countries
 The license is good for only 120 days. It is not subject to extension and once it has expired, it is deemed cancelled
and cannot be used anymore.

a. Foreign National – Art. 21

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.
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.

 The capacity of a foreigner to get married in the Philippines is governed by his national law, a foreign law, so that our
government offices and courts cannot take judicial notice of said law. Hence, if he applies for a marriage license to
12
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)

2
 be able to get married in the Philippines, he is required to present a certificate of legal capacity to contract marriage
from the embassy or consular office of his country in the Philippines, since they are the ones who know the national
law of said foreigner and whether he has capacity to marry under said law.
 If the foreigner is stateless or a refugee from another country, so that there is no embassy or consular office from
which he can get a certificate or divorce decree, it is enough that he executes an affidavit stating the circumstances
showing his capacity to contract marriage.

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1),
(4), (5) and (6), 3637 and 38. (17a)

9. Marriage Certificate, Art. 22, 23

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 marriage provided for in Chapter
2 of this Title;
(5) That either or both of the contracting parties have secured the parental consent in appropriate cases;
(6) That either or both of the contracting parties have complied with the legal requirement regarding parental
advice in appropriate cases; and
(7) That the parties have entered into marriage settlement, if any, attaching a copy thereof.

 The marriage certificate is not an essential or formal requisite of marriage without which the marriage will be
void.
 An oral marriage is, therefore, valid, and failure of a party to sign the marriage certificate or the omission of the
solemnizing officer to send a copy of the marriage certificate to the proper local civil registrar does not
invalidate the marriage. Also, the mere fact that no record of the marriage can be found, does not invalidate the
marriage provided all the requisites for its validity are present.
 The marriage certificate is, however, the best evidence that a marriage does exist.

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 the marriage, to the local civil registrar of the place where the marriage was
solemnized. Proper receipts 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
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 place other than those mentioned in Article 8.

 A marriage certificate is proof of marriage. It is however not the only proof (i.e., witnesses)

ALAVADO VS. TACLOBAN CITY, 139 SCRA 230

RIVERA VS. IAC, 182 SCRA 322

B. Effect of Marriage celebrated abroad and foreign divorce,

Art. 26, ¶1. All marriages solemnized outside the Philippines, in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited
under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. 13
13
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;
parties believing in good faith that the solemnizing officer had the legal authority to do so;
(4) Those bigamous or polygamous marriages not failing 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.

Art. 36. A marriage contracted by any party who, at the time of the celebration, was 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. (As amended by Executive Order 227)

2
 General Rule: Foreign marriages which are in accordance with the law in force in the country where they were
solemnized and valid there are valid in the Philippines.

 Exception: Void marriages under Philippine Law

 Exception to the exception:

1. Article 35, ¶2

Art. 35. The following marriages shall be void from the beginning:
(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 license, except those covered the preceding Chapter;

Art. 26, ¶2. 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 have
capacity to remarry under Philippine law.

 General Rule: Foreign divorces obtained by Filipino citizens will be considered void and are not recognized.

 Exception: In case the parties to the marriage are a Filipino citizen and a foreigner. If the foreigner obtains a valid
foreign divorce, the Filipino spouse shall have capacity to re-marry under Philippine law.

 However, if it is the Filipino citizen who secures the divorce, the divorce will not be recognized in the Philippines.

 Requisites of Article 26, ¶2

1. The marriage must be one between a Filipino and a foreigner
2. Divorce is granted abroad
3. Divorce must have been obtained by the alien spouse.
4. Divorce must capacitate the alien spouse to remarry.

 Article 26, ¶2 has a retroactive effect if no vested rights are affected.

 Problem: Suppose at the time of the marriage, both are Filipinos. Later on, one spouse is naturalized. This spouse
obtains a foreign divorce. Will Article 26, ¶2 apply?
2 views:
1. Justice Puno

 It won’t. Article 26, ¶2 requires that at the time the marriage is celebrated, there must be 1 foreigner.
2. DOJ Opinion

 It applies, Article 26, ¶2 is not specific.

Pilapil vs. Ibay Somera, 174 SCRA 653

Petitioner Imelada Pilpil a Filipino citizen was married to a German national, private respondent Erich in Germany. Later on the
couple lived in Malate Manila where their only child was Isabella was born. The couple been separated de facto and after about
3 ½ years respondent initiated a divorce against petitioner. 5 months after the issuance of divorce decree respondent Erich filed
two complaints of Adultery against petitioner separately before the trial court alleging that the petitioner had an affair with
William Chia in 1982 and James Chua in 1983 while still married to the respondent. Petitioner filed a motion to dismiss for
grounds of insufficiency of evidence but was denied by the respondent court.Petitioner elevated the case before the secretary

Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the
parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood. (81a)

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 parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(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)

3
of justice for review of the cases. One of the cases was dismissed and other was reset. Petitioner filed a motion to quash against
the respondent court but it was denied by the court. Petitioner filed a special civil action for certiorari and prohibition.

Issue: whether or not private respondent can file a complaint of adultery against the petitioner

Held: Crimes against chastity cannot be prosecuted except upon sworn written complaint filed by the offended spouse. In this
case the respondent have already obtained a divorce decree against the petitioner. After a divorce has been decreed, the
innocent spouse no longer has the right to institute proceedings against the offender. Art. 26 of FC provides: where a marriage
of a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained by the alien spouse
capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under the Philippine
laws.

C. Void and Voidable marriages

1. Void Marriage – Arts. 5, 35, 36-8, 52-3

Age (Articles 5, 35(1), 39, 45(1), 37(1))

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.

 For both male and female, the minimum age is 18.

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;

 If any contracting party is below 18, the marriage is void.

Art. 39. The action or defense for the declaration of absolute nullity shall not prescribe.

 The period to have the marriage declared void shall not prescribe.

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 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;

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 has
reached the age of twenty-one;

 Despite R.A. No. 6809, parental consent is required for a contracting party who has not yet reached 21.
 Article 47(1) tells us who can set aside the marriage which is voidable for lack of the necessary parental consent.
The parent who did not give he necessary parental consent until such child reaches the age of 26.
 However in Article 45(1), ratification of the marriage is possible if the party who needed parental consent cohabits
with the other spouse. Ratification may only occur after such party reaches 21.
 Once the marriage has been ratified, the parents cannot annul under this ground.
 If the parents filed the annulment before their child reached 21, but upon reaching 21, their child cohabits, the
action to annul the marriage continues. What would be determinative in such a situation is the time of filing.
 The capacitated person or his parents may not have the marriage annulled for lack of parental consent.

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

 Psychological incapacity is not a substitute for divorce. The theory behind psychological incapacity is that one or
both of the spouses cannot discharge one or more of the essential marital obligations (Article 68). There must be an
absolute incapability to do so.

3
 During the 1st years of the effectivity of the Family Code, many couples resorted to Article 36 as a convenient way to
end their marriage. As a result of these abuses, the Supreme Court became very strict in applying Article 36.
 Psychological incapacity must exist at the time the marriage is celebrated (like impotence). However, psychological
incapacity need not be manifested at the time of the celebration of the marriage. This is the tricky part.
 In Santos vs. CA, the Supreme Court enumerated the following characteristics of psychological incapacity:
1. Gravity
2. Juridical antecedence
3. Incurability
 In Republic vs. CA (Molina), the Supreme Court reiterated Santos vs. CA. Furthermore, the
Supreme Court laid down several guidelines:
1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubts
should be resolved in favor of the existence and continuation of the marriage and against the
dissolution and nullity.
2. The root cause of the psychological incapacity must be:
a. Psychological and not physical (although psychological incapacity can be manifested
physically)
b. Medically or clinically identified
c. Alleged in the complaint
d. Proved sufficiently by experts (i.e. psychiatrists, psychologists)
e. Clearly explained in the decision
3. The incapacity must be proven to be existing “at the time of the celebration” of the marriage.
4. Such incapacity must also be shown to be medically or clinically permanent or incurable.
5. Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage
6. The essential marital obligations must be those embraced by Articles 60 to 71 of the Family
Code as regards the husband and wife, as well as Articles 220, 221 and 225 of the same Code in
regard to parents and their children. Such non-complied marital obligations must also be stated
in the petition, proven by evidence and included in the test of the decision.
7. 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.
8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the State. The Solicitor General’s role is to issue a certification stating why
he does or does not agree.
 In Chi Ming Tsoi vs. CA, the convergence of all the factors stated in the complaint amounted to
psychological incapacity.

Art. 37. Marriages between the following are incestuous and void from the beginning, whether
relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.

 Incestuous Relationship
1. In the direct line, in any degree – no limit
2. 2nd degree collaterals (brothers & sisters) whether full or half blood, legitimate or
illegitimate

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;

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 (5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter;

 Article 38 (1) refers to uncles, aunts and first cousins

 Article 38 (3) is a new provision – marriage between parents-in-law and children-in-law
 Articles 38 (5) and 38 (6) are provided for to guard against scandal – marriage between the surviving spouse of the
adopting parent and the adopted child; marriage between the surviving spouse of the adopted child and adopter.
 Article 38 (8) prohibits the marriage between adopted children of the same adopter while Art. 38 (7) prohibits the
marriage between an adopted child and a legitimate child of the adopted. What is not prohibited are the following:
1. Marriage between an adopted child and an illegitimate child of the adopter.
2. Marriage between stepchildren

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

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

 Despite declaration of annulment or nullity of the marriage, before the former spouses may contract a
subsequent marriage, the following must be recorded in the appropriate civil registry and registries of
property:
1. Judgment of annulment or of absolute nullity
2. Partition and distribution of the properties of the spouses
3. Delivery of the children’s presumptive legitime
 If the preceding tasks are not accomplished, then any subsequent marriage is void.

a. Absence of Requisites, Art. 35

b. Psychological incapacity, Art. 36

Art. 36. A marriage contracted by any party who, at the time of the celebration, was 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. (As amended by Executive Order 227)
 To be a ground for declaration of nullity of marriage, the psychological incapacity of either party to comply with
the essential marital obligations must already be present at the time of the marriage, although it might have
become manifest only after the marriage
 The action to declare the marriage void under this article does not prescribe
 The children conceived or born before the decree of nullity of marriage are considered legitimate (Art. 54). This,
together with children born of the subsequent marriage under Art. 53, are exceptions to Art. 165 defining
illegitimate children.
 JURISPRUDENCE:
 Leouel Santos v CA and Julia Rosario Bedia-Santos—psychological incapacity should refer to no less
than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to the marriage xxx
thus, the fact that respondent wife left her husband and baby two years after her marriage to work as
a nurse in the U.S. and never returned, and that her husband desperately tried to locate her but all his
efforts to find her failed, were considered not sufficient for the wife to be considered psychologically
incapacitated under Art. 36
 Chi Ming Tsoi v CA—“the senseless and protracted refusal of one of the parties” of sexual cooperation
for the procreation of children is equivalent to psychological incapacity. In this case, there was no
sexual contact between the parties since their marriage or for almost a year.
 Republic v Molina—there was no psychological incapacity on the part of the respondent husband but
more a “difficulty” if not outright “refusal” or “neglect” in the performance of some martial duties,
and that the evidence merely shows that the parties could not get along with each other.xxx The root
cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision

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  However, in the succedding case of Marcos v Marcos, the SC held categorically that psychological
incapacity “may be established by the totality of evidence presented” and that “there is no
requirement that the respondent should be examined by a physicial or a psychologist as a condition
sine qua non for such declaration.”

GONZALO VILLANUEVA, vs. SPOUSES FROILAN and LEONILA BRANOCO, G.R. No. 172804 January 24, 2011

G.R. No. 178741 January 17, 2011

ROSALINO L. MARABLE vs. MYRNA F. MARABLE,
It is indispensable that the evidence must show a link, medical or the like, between the acts that manifest psychological
incapacity and the psychological disorder itself.

Rosalino L. Marable and Myrna F. Marable were sweethearts since they were still students at Arellano University. Later on in
their relationship, they eloped from their homes and married through civil rites before the mayor of Tanay, Rizal. Within the
same month after the civil wedding, a church wedding was celebrated. They had five children. However, after years of being
together, they started to fight verbally and even physically more frequently. This was aggravated when they encountered
problems with their daughter who was transferred from one school to another because of misbehavior and then later on
became pregnant untimely. Rosalino’s way of of spoiling their children also was a cause of quarrels between him and his spouse,
Myrna. Rosalino, who is beginning to get worn out by their unhealthy relationship, had an affair with another woman. When
Myrna discovered it, Rosalino immediately ended the relationship with his mistress. The quarrels between them unfortunately
worsened and this led to Rosalino’s departure from their home, leaving his wife and children. After some time, he converted to
Islam after going out with many women. Rosalino decided to legally end his marriage with Myrna so he filed a petition for
absolute nullity of marriage on the ground of his psychological incapacity to perform the essential obligations of marriage. He
went to a clinical psychologist to be examined for the purpose of presenting evidence in court. Dr. Tayag, the clinical psychologist
who examined him, concluded that Rosalino is suffering from “Anti-Social Personality Disorder” which manifests a pervasive
pattern of social deviancy, rebelliousness, impulsivity, self-centeredness, deceitfulness, and lack of remorse. It was said to be
rooted from Rosalino’s childhood hardships due to a dysfunctional family, deep feelings of rejection, and constant need for
attention. Because of this finding, Dr. Tayag concluded that Rosalino was psychologically incapacitated to perform his marital
obligations.

The Regional Trial Court of Antipolo rendered judgment annulling the marriage of the Marable spouses. However, the Court of
Appeals reversed the decision of the RTC upon granting the appeal of the Office of the Solicitor General which declared the
marriage as still valid and subsisting. The Court of Appeals held that the evidence submitted was insufficient to prove
psychological incapacity. Hence, this appeal.

ISSUE: Whether or not the Court of Appeals erred in reversing the decision of the RTC which granted the annulment of marriage
of the Marable spouses based on the evidence of Rosalino’s psychological incapacity.

HELD: Appeal DENIED for lack of merit. CA Decision AFFIRMED.

In cases of annulment of marriage based on Article 36 of the Family Code, as amended, the psychological illness and its root
cause must be proven to exist from the inception of the marriage. Here, the appellate court correctly ruled that the report of Dr.
Tayag failed to explain the root cause of Rosalino’s alleged psychological incapacity. The evaluation of Dr. Tayag merely made a
general conclusion that petitioner is suffering from an Anti-social Personality Disorder but there was no factual basis stated for
the finding that Rosalino is a socially deviant person, rebellious, impulsive, self-centered and deceitful. For sure, the spouses’
frequent marital squabbles and differences in handling finances and managing their business affairs, as well as their conflicts on
how to raise their children, are not manifestations of psychological incapacity which may be a ground for declaring their
marriage void. Rosalino even admitted that despite their financial difficulties, they had happy moments together. Also, the
records would show that the Rosalino acted responsibly during their marriage and in fact worked hard to provide for the needs
of his family, most especially his children. Their personal differences do not reflect a personality disorder tantamount to
psychological incapacity.

Rosalino tried to make it appear that his family history of having a womanizer for a father, was one of the reasons why he
engaged in extra-marital affairs during his marriage. However, it appears more likely that he became unfaithful as a result of a
general dissatisfaction with his marriage rather than a psychological disorder rooted in his personal history. His tendency to
womanize, assuming he had such tendency, was not shown to be due to causes of a psychological nature that is grave,
permanent and incurable. In fact, the records show that when respondent learned of his affair, he immediately terminated it. In
short, Rosalino’s marital infidelity does not appear to be symptomatic of a grave psychological disorder which rendered him
incapable of performing his spousal obligations. It has been held in various cases that sexual infidelity, by itself, is not sufficient
proof that petitioner is suffering from psychological incapacity. It must be shown that the acts of unfaithfulness are
manifestations of a disordered personality which make Rosalino completely unable to discharge the essential obligations of
marriage. That not being the case with Rosalino, his claim of psychological incapacity must fail. It bears stressing that
psychological incapacity must be more than just a “difficulty,” “refusal” or “neglect” in the performance of some marital
obligations. Rather, it is essential that the concerned party was incapable of doing so, due to some psychological illness existing
at the time of the celebration of the marriage. In Santos v. Court of Appeals. the intention of the law is 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.

c. Incestuous marriages, Arts. 37-38

Art. 37. Marriages between the following are incestuous and void from the beginning, whether
relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and

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

 Incestuous Relationship
3. In the direct line, in any degree – no limit
4. 2nd degree collaterals (brothers & sisters) whether full or half blood, legitimate or
illegitimate

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 parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter;

 Article 38 (1) refers to uncles, aunts and first cousins

 Article 38 (3) is a new provision – marriage between parents-in-law and children-in-law
 Articles 38 (5) and 38 (6) are provided for to guard against scandal – marriage between the surviving spouse of the
adopting parent and the adopted child; marriage between the surviving spouse of the adopted child and adopter.
 Article 38 (8) prohibits the marriage between adopted children of the same adopter while Art. 38 (7) prohibits the
marriage between an adopted child and a legitimate child of the adopted. What is not prohibited are the following:
1. Marriage between an adopted child and an illegitimate child of the adopter.
2. Marriage between stepchildren

2. Prescription, Art. 39

Art. 39. The action or defense for the declaration of absolute nullity shall not prescribe.

 The period to have the marriage declared void shall not prescribe.

3. Subsequent marriage, Arts. 40-44

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis
solely of a final judgment declaring such previous marriage void.

 Even if the 1st marriage is void, there is still a need for a summary proceeding declaring such marriage void ab initio.
Thus, if a 2nd marriage is contracted without first securing the declaration of nullity with regard to the 1 st marriage,
then the 2nd marriage is also void. Plus, bigamy has been committed.

 This article applies to remarriages under the Family code, that is, it is retroactive.

 A marriage void for lack of a marriage license still needs a judicial declaration of such fact under the Family Code
even for purposes other than remarriage.

 Where a party marries again on the mere belief that his/her spouse is already dead without filing the summary
proceeding required in this Article, the second marriage is bigamous and void.

Art. 41. A marriage contracted by any person during 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 has 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.

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

 There are two kinds of bigamous marriages under this Article, namely:
o The void bigamous marriage, which is contracted by a person during the subsistence of his or her
previous marriage. Here, the good faith of the party who marries again is immaterial, the second
marriage would still be void. On the other hand, the person who marries again in bad faith is even
criminally liable for bigamy; and
o The voidable bigamous marriage, which is contracted by a person whose spouse has been absent for
four consecutive years (in ordinary absence) or two years (in extraordinary absence), said person
having a well-founded belief that his or her absent spouse was already dead, and after having the
latter judicially declared presumptively dead in a summary proceeding.
 By “absent spouse” means that the other spouse has been missing for at least four years, it being unknown whether
or not he or she is still alive, and the present spouse having a well-founded belief that the missing spouse is already
dead.

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.

 Requisites of a marriage under Article 41:

1. Absence of a prior spouse for at least 4 consecutive years or 2 consecutive
years if the circumstances fall under Art. 391.
2. Spouse presents a well-founded belief that the absent spouse was already
dead
3. Institution by the present spouse of a summary proceeding for the declaration
of presumptive death.
 Rules for marriages under Article 41
1. The marriage is valid until it is terminated under Article 42 (Note: The term
“terminated” and not “annulled” is used since the 2nd marriage is not a defective but a regular
marriage)
2. General Rule: The termination of the 2nd marriage takes effect upon the
recording of the affidavit of reappearance of the absent spouse.
3. Exception: There is no termination of the 2nd marriage if there is a judgment of
annulment or nullity with regard to the 1st marriage.
 Any interested party may case the recording of the affidavit of reappearance (i.e.,
present spouse, absent spouse, subsequent spouse, children)
 The affidavit of reappearance should contain the facts and circumstances of
appearance
 The affidavit of reappearance must be recorded in the civil registry of the residence
of the parties to the subsequent marriage.
 Due notice of the recording of the affidavit of reappearance must be sent to the
spouses of the subsequent marriage. The fact of reappearance may, however, be refereed to the
courts in a proper action if such fact is disputed.
 Effectiveness: The affidavit of reappearance is sufficient in itself unless it is judicially
challenged.

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;
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of
the net profits of the community property or conjugal partnership property shall be forfeited in favor

3
 of the common children or, if there are none, the children of the guilty spouse by a previous marriage
or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage
in bad faith, such donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as
beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from
the innocent spouse by testate and intestate succession.

 Effects:
1. Essentially, 1st marriage continues.
2. According to Article 43 (5), the spouse who contracted the subsequent marriage in bad faith
shall be disqualified to inherit from the innocent spouse – testate and intestate succession.
Therefore, the implication sis that if the parties are in good faith, they are still heirs of each
other. Professor Balane doesn’t agree with this. According to Professor Balane, if the 2 nd
marriage is terminated, it should follow that the parties to the second marriage lose their
right to be heirs of each other.

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 favor of the other
are revoked by operation of law.

 By the spouses having acted “in bad faith” means that both spouses to the subsequent marriage knew that the
absent spouse was still alive when they entered into said marriage
 The spouses to the subsequent marriage being in bad faith, their marriage is void ab initio and they may even be
prosecuted for bigamy
 The subsequent marriage being void ab initio, its effects on the personal and property relations of the spouses as
well as their children will be those of marriages that are null and void and not those of voidable marriages.

Wigel vs. Sempio-Dy, 143 SCRA 449

Lilia Olivia Wiegel got married to Karl Heinz Wiegel on July, 1978 at the Holy CatholicApostolic Christian Church in Makati.
Karl, upon learning that Lilia had a subsisting marriage, filed for a declaration of nullity of their marriage. Lilia contracted
her first marriage with Eduardo Maxion on June 25, 1972. She claims that the first marriage is not valid because they
were forced to enter the union and Maxion was married to someone else at that time.

ISSUE: WON Lilia’s first marriage is void?

HELD: No. It’s voidable. Petition dismissed.

RATIO:

1. Presence of force only makes a marriage voidable, not void. (CC ART. 85) It is valid until annulled and since there was
no annulment, marriage is still valid.

2. Even if marriage is void, judicial declaration of nullity is still needed especially for purposes of remarriage.

Republic of the Philippines VS. Bermudez – Lorino

G.R. No. 160258. January 19, 2005
Facts: Gloria Bermudez and Francisco Lorino were married in June 1987. The wife was unaware that her husband was a
habitual drinker with violent attitude and character and had the propensity to go out with his friends to the point of
being unable to work. In 1991 she left him and returned to her parents together with her three children. She went
abroad to work for her support her children. From the time she left him, she had no communication with him or his
relatives.

In 2000, nine years after leaving her husband, Gloria filed a verified petition with the RTC under the rules on Summary
Judicial Proceedings in the Family Law. The lower court issued an order for the publication of the petition in a newspaper
of general circulation.

In November 7, 2001, the RTC granted the summary petition. Although the judgment was final and executors under the
provisions of Act. 247 of the Family Code, the OSG for the Republic of the Philippines filed a notice of appeal.

Issue: Whether or not the factual and legal bases for a judicial declaration of presumptive death under Art 41 of the
Family Code were duly established.

Held: Art. 238 of the Family Code under Title XI Summary Judicial Proceeding in the Family Law, sets the tenor for cases

3
scoured by these rules, to wit:

Art238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this
Code requiring summary court proceeding. Such cases shall be decided in an expedition’s manner with out regards
technical rules.

The judge of the RTC fully complied with the above-cited provision by expeditiously rending judgment within ninety (90)
days after the formal offer of evidence by the petitioner.

TERRE VS. TERRE, 211 SCRA 6

FACTS:
Complainant Dorothy Terre was married to her first cousin while respondent Jordan Terre is a member of the Philippine
Bar. Notwithstanding his knwoledge that she was married he courted her and since she was convince by his explanation
that her prior marriage was void she agreed to marry him.

Respondent disappered later complainant found out that Atty. Terre married a certain Helina Malicdem. She then filed an
administrative case for disbarment who . Respodnent Terre claimsing that he had believed in good faith that his prior
marriage with complainant Dorothy Terre was null and void ab initio and that no action for a judicial declaration of nullity
was necessary.[i]

ISSUE:
Was there was no necessity for a judicial declaration of nullity of marriage?

HELD:
[i]The Court considers this claim on the part of respondent Jordan Terre as a spurious defense. In the first place,
respondent has not rebutted complainant's evidence as to the basic fact which underscores that bad faith of respondent
Terre. In the second place, the pretended defense is the same argument by which he inveigled complainant into believing
that her prior marriage or Merlito A. Bercenilla being incestuous and void ab initio (Dorothy and Merlito being allegedly
first cousins to each other), she was free to contract a second marriage with the respondent. Respondent Jordan Terre,
being a lawyer, knew or should have known that such an argument ran counter to the prevailing case law of the supreme
Court which holds that for purposes 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.

Even if we were to assume, arguendo merely, that respondent held that mistaken belief in good faith, the same result will
follow. For it we are to hold Jordan Terre to his argument, his first marriage to complainant Dorothy Terre must be
deemed valid, with the result that his second marriage to Heline Malicdem must be regarded as bigamous and criminal in
character.

YAP VS. CA, 145 SCRA 229

REPUBLIC VS. NOLASCO, 220 SCRA 20

FACTS:

Gregorio Nolasco is a seaman. He met Janet Parker, a British, in bar in England. After that, Janet started living with
Nolasco in his ship for six months. It lasted until the contract of Nolasco expired then he brought her to his hometown in
Antique. They got married in January 1982. Due to another contract, Nolasco left the province. In 1983, Nolasco
received a letter from his mother informing him that his son had been born but 15 days after, Janet left. Nolasco went
home and cut short his contract to find Janet’s whereabouts. He did so by securing another seaman’s contract going to
London. He wrote several letters to the bar where they first met but it was all returned. Gregorio petitioned in 1988 for
a declaration of presumptive death of Janet.

ISSUE: Whether or not Nolasco had a well-founded belief that his wife, Janet, is already dead?

HELD:

The Supreme Court ruled that Nolasco’s efforts to locate Janet were not persistent to show that he has a well-founded
belief that his wife was already dead because instead of seeking assistance of local authorities and the British Embassy,
he even secured another contract. More so, while he was in London, he did not even try to solicit help of the authorities
to find his wife.

4. Annullable marriage, Arts. 14, 45-46

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

3
presence of two witnesses and attested before any official authorized by law to administer oaths. The personal
manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead,
shall be attached to said applications.

 if a marriage is solemnized without the parental consent required, the marriage is voidable
 Parental consent is required if the girl or boy is 18 and above but below 21 years of age
 if the applicant had already been previously emancipated by a previous marriage, although still below 21 years, he or
she does not need parental consent
 The parental consent may be in the form of a sworn statement acknowledged in the presence of two witnesses
before any official authorized to administer oaths, or the parents or guardians may appear personally before the LCR
and accomplish the written consent before him.

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 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 the
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 b 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

(6) That either party was afflicted with a sexually transmitted disease found to be serious or appears to be
incurable.

Grounds for annulment of marriage

1. Lack of parental consent

 this applies to persons who, being 18 years and above but below 21 years of age,
get married without parental consent
 the marriage may, however, be ratified if the parties freely cohabit with each other
upon 21 years of age. Mere transient sexual intercourse is not sufficient

2. Insanity of one of the parties

 the marriage can be ratified by the sane party’s cohabitation with the other after
the latter’s insanity has been cured
 intoxication which results in lack of mental capacity to give consent is equivalent to
insanity, so is somnambulism
 the insanity of one party must exist at the time of the marriage, not prior or
subsequent thereto
 since the presumption of the law is generally in favor of sanity, the burden of proof
is on the party who alleges the insanity of the other.

3. Fraud
 the marriage may be ratified by the cohabitation between the parties after full
knowledge of the fraud

4. Force, intimidation, or undue influence

 Art. 1335, NCC—There is intimidation when one of the contracting parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his
house, descendants or ascendants, to give his consent.
 Art. 1337. There is undue influence when a person takes improper advantage of his power over the will of another,
depriving the latter of a reasonable freedom of choice. the following shall be considered: the confidential, family,
spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced
was suffering from mental weakness, or was ignorant or in financial distress.
 Tiongco v Matig-a, 44 O.G. No. 1—the threat or intimidation must be of such a nature as to prevent the victim from
acting as a free agent. Thus, where a man was threatened with armed demonstrations by the brothers of the woman
in order to marry the latter, the marriage was held annulable.

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 Undue influence was added as a ground for annulment of marriage because while the fear that induces a person to
enter into a marriage may not strictly be founded on any threatened physical, material, or moral harm, he may be
compelled to enter into a marriage our of reverential fear, i.e. fear of causing distress, disappointment or anger on
the part of one whom a person has been conditioned to revere, respect, or obey out of a special debt of gratitude,
like the parents, grandparents, etc.

5. Impotency
 this refers to lack of power to copulate, not to mere sterility
 the impotency of one party must be present at the time of the marriage, must be continuous, and must
appear incurable (Sara v Guevarra)
 only the potent spouse can file the action for annulment and he or she must not have been aware of the
other’s impotency at the time of the marriage
 impotency due to old age is not a ground for annulment since one who marries an old person takes a
calculated risk that the latter may be impotent
 the court cannot assume that the wife is impotent and annul the marriage upon complaint of her husband if
she refuses to submit to a physical examination to determine her potency. This refusal does not create a
presumption of impotency because Filipiono girls are inherently shy and bashful. The trial court must order the
physical examination of the girl, because without proof of impotency, she is presumed to be potent. To order her to
submit to a physical examination does not infringe on her constitutional right against self-incrimination. (Jimenez v
Canizares)\
 Relative impotency. This may not be invoked as a ground for annulment under the Family code. I.e. the
physical incapability of one party to consummate the marriage with the other. Xxx A person impotent with respect to
his spous but not with other men or women.

6. Affliction of sexually transmissible disease found to be serious and which appears incurable.

How may voidable marriages be ratified or convalidated?

A voidable marriage may be ratified or convalidated by cohabitation and by prescription. Except the ff:
1. Those vitiated by a prior subsisting marriage, since the cause for annulment exists as long as the absent spouse is
alive.
2. Those vitiated by impotency of one spouse, since the cause does not ceases to exist as long as such impotency
remains
3. Those vitiated by the affliction of one spouse of a sexually transmissible disease found to be serious and appears to
be incurable, since like impotency, the cause for annulment remains as long as the sick spouse remains so afflicted

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 has 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 oat any time
before the death of either party; or by the insane spouse during a lucid interval or after regaining
insanity;

(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

(6) Article 45, by the injured party, within five years after the marriage.

 Despite R.A. No. 6809, parental consent is required for a contracting party who has not yet reached 21.
 Article 47(1) tells us who can set aside the marriage which is voidable for lack of the necessary parental consent.
The parent who did not give he necessary parental consent until such child reaches the age of 26.
 However in Article 45(1), ratification of the marriage is possible if the party who needed parental consent cohabits
with the other spouse. Ratification may only occur after such party reaches 21.
 Once the marriage has been ratified, the parents cannot annul under this ground.
 If the parents filed the annulment before their child reached 21, but upon reaching 21, their child cohabits, the
action to annul the marriage continues. What would be determinative in such a situation is the time of filing.

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 The capacitated person or his parents may not have the marriage annulled for lack of parental consent.

 Summary

Ground for Annulment Who can file action Period of prescription Convalidaion or Ratification

Lack of parental (1) Party under age Within 5 years after attaining 21 Free cohabitation after
consent reaching 21

(2) Parent or guardian Before child reaches 21

Insanity of one party (1) The sane spouse Before death of other party Free cohabitation after insane
regains insanity
(2) Guardian of insane Before death of other party
spouse

(3) Insane spouse During lucid interval or after regaining

sanity, also before death of other party

Fraud The injured party Within 5 years from discovery of fraud Free cohabitation after
knowledge of fraud

Force, intimidation, or The injured party Within 5 years from cessation of cause Free cohabitation after cause
undue influence has disappeared

Impotence of one The potent party Within 5 years after marriage Cannot be ratified but action
party prescribes

Serious sexually The healthy party Within 5 years after marriage Cannot be ratified, but action
transmissible disease prescribes
of one party

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 judgment 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 the 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.

 Fraud here is not the fraud founding contracts and obligations. Fraud here has a very technical meaning – Article 46.
 Article 46 is an EXCLUSIVE LIST.
 Articles 46 (1) and (2) are clear. In Article 46 (3), the STD need not be serious or incurable. As long as the STD,
existing at the time of marriage, is concealed, it constitutes fraud.
 Article 46 (4), must the homosexual be a practicing homosexual or is such sexual orientation enough under here?
There is no jurisprudence yet.
 The injured party has 5 years from the time the fraud was discovered to file for annulment.
 A marriage which is defective due to fraud may be ratifies. Ratification occurs when the injured party freely cohabits
with the other despite having full knowledge of the facts constituting fraud.
 In Buccat vs. Buccat, the Supreme Court said that there was no concealment by the wife of the fact that she was
pregnant with another man’s child. There was no concealment since at the time of marriage, she was already in her
6th month.
 In Art. 45(6), the fact the one party is afflicted with a sexually-transmissible disease found to be serious and appears
to be incurable is a ground for annulment of marriage, whether such fact was concealed or not from the other party,
as long as the disease was present at the time of the marriage. In Art. 46(3) however, the concealment of a sexually
transmissible disease by the sick party from the other party which constitutes fraud that would justsify the
annulment of their marriage refer to any kind of sexually transmissible disease, regardless of its nature, i.e. whether
serious or not, or incurable or not.inform the other party about it, and the latter discovers such fact only on the
night after the wedding. The healthy party can annul the marriage on the ground of fraud.

Additional Requirements for Annulment or Declaration of Nullity

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 Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between
the parties and to take care that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or
confession of judgment.

 Prosecuting attorney or fiscal should:

1. Take steps to prevent collusion between the parties
2. Take care that evidence is not fabricated or suppressed
NOTE: No judgment shall be based upon a stipulation of facts or confession of judgment.

5. Voidable marriages, Art. 45-47

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the
marriage:
 That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over
but below 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;

 That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the
other as husband and wife

 That the consent of either party was obtained by fraud, unless such party afterwards, with the knowledge
of the facts constituting the fraud, freely cohabited with the other as husband and wife

 That the consent of either party was obtained b force, intimidation or undue influence, unless the same
having disappeared or ceased such party thereafter freely cohabited with the other as husband and wife

 That either party was physically incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable

 That either party was afflicted with a sexually transmitted disease found to be serious or appears to be
incurable.

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 has
reached the age of twenty-one;

7. Pendency of action, Art. 49

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.

 During the pendency of the case for annulment of marriage or declaration of nullity of marriage, the court
shall provide for the support of the spouses and the custody and suport of their common children, unless
the parties have already agreed in writing on such matters, which agreement the court will then enforce.
 The support of the spouses and the children during the pendency of the case shall of course come from the
absolute community or conjugal properties of the spouses
 After the annulment or declaration of the nullity of the marriage, support between the spouses shall
already cease, since they are no longer husband and wife and have no more duty to support each other,
but they shall continue to support their children
 As to custody of the children, the court should be guided by the best interests and welfare of said children
taking into account all relevant considerations, as well as the choice of the child over seven years of age as
to the parent he would like to live with, unless the parent chosen is unfit (Art. 213)
 No child under seven years old shall, however, be separated from the mother, unless the court finds
compelling reasons to order otherwise. (Art. 213 par. 2).

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8. Effects of nullity, Arts. 50-54

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 14 and by Article 44 15
shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment
under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition and distribution of the
properties of the spouses, the custody and support of the common children, and the delivery of third
presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.
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.

 Note that if the marriage is void ab initio, the parties would not have an absolute community or conjugal
partnership of property, and the rules in Arts. 147 and 147 on “property Regime of Unions Without
Marriage” would apply.
 In the partition, the conjugal dwelling and the lot on which it is situated shall be adjudicated in accordance
with Arts. 102 and 109
 Said house and lot shall be adjudicated to the spouse with whom the majority of the common children
should choose to remain
 Children below 7 years are deemed to have chosen the mother, unless the court decides otherwise
 In case there is no majority (of the common children), the court shall decide, taking into account the best
interests of the children

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 trustee of their property, may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes therein prescribed shall in no way prejudice the ultimate successional
rights fo 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 legitimes.

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

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

* Despite declaration of annulment or nullity of the marriage, before the former spouses may contract a subsequent
marriage, the following must be recorded in the appropriate civil registry and registries of property:
 Judgment of annulment or of absolute nullity
 Partition and distribution of the properties of the spouses
 Delivery of the children’s presumptive legitime
If the preceding tasks are not accomplished, then any subsequent marriage is void.

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Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the
net profits of the community property or conjugal partnership property shall be forfeited in favor of the
common children or, if there are none, the children of the guilty spouse by a previous marriage or in
default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in
bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as
beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession. (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 favor of the other are revoked by operation of law.

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 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.

Legitimate – if conceived before final judgment

Illegitimate - if conceived after final judgment

CASES:
Cojuangco vs Palma, A.C. No. 2474 June 30, 2005

Facts: On June 22, 1982, respondent Atty. Leo J. Palma, despite his subsisting marriage, wed Maria Luisa Cojuangco, the
daughter of complainant Eduardo M. Cojuangco, Jr. Thus, the latter filed on November 1982, a complaint disbarment
against respondent. Palma moved to dismiss the complaint.

On March 2, 1983, the court referred the case to OSG for investigation and recommendation. The Assistant Solicitor
General heard the testimonies of the complainant and his witness in the presence of respondent’s counsel.

On March 19, 1984 respondent filed with the OSG an urgent motion to suspend proceedings on the ground that the final
actions of his civil case for the declaration of nullity of marriage between him and his wife Lisa, poses a prejudicial
question to the disbarment proceeding, but it was denied.

The OSG transferred the disbarment case to the IBP, the latter found respondent guilty of gross immoral conduct and
violation of his oath as a lawyer, hence, was suspended from the practice of law for a period of three years.
In his motion for reconsideration, respondent alleged that he acted under a “firm factual and legal conviction in declaring
before the Hong Kong Marriage Registry that he is a bachelor because his first marriage is void even if there is no judicial
declaration of nullity.

Issue: Whether or not a subsequent void marriage still needs a judicial declaration of nullity for the purpose of
remarriage.

Held: Respondents arguments that he was of the “firm factual and legal conviction when he declared before the HIC
authorities that he was a bachelor since his first marriage is void and does not need judicial declaration of nullity” cannot
exonerate him. In Terre vs Terre, the same defense was raised by respondent lawyer whose disbarment was also sought.

We held: “xxx respondent Jordan Terre, being a lawyer, knew or should have known that such an argument ran counter to
the prevailing case law of this court which holds that purposes of determining whether a person is legally free to contract
a second marriage, a judicial declaration that the first marriage was null and void an initio is essential. Even if we were to
assume, arguendo merely, that Jordan Terre held that mistaken belief in good faith, the same result will follow. For if we
are to hold Jordan Terre to his own argument, his frist marriage to complainant Dorothy Terre must be deemed valid,
with the result that his second marriage must be regarded as bigamous and criminal.

PABLO-GUALBERTO VS. COURT OF APPEALS

G.R. Nos. 154994 and 156254 June 28, 2005

Facts: Crisanto Rafaelito G. Gualberto V filed before the RTC a petition for declaration of nullity of his marriage to
Joycelyn w/ an ancillary prayer for custody pendente lite of their almost 4 year old son, Rafaello, whom her wife took
away w/ her from their conjugal home and his school when she left him.

The RTC granted the ancillary prayer for custody pendente lite, since the wife failed to appear despite notice. A house
helper of the spouses testified that the mother does not care for the child as she very often goes out of the house and
even saw her slapping the child. Another witness testified that after surveillance he found out that the wife is having
lesbian relations.

The judge issued the assailed order reversing her previous order, and this time awarded the custody of the child to the
mother. Finding that the reason stated by Crisanto not to be a compelling reason as provided in Art 213 of the Family
Code.

Issue: Whether or not the custody of the minor child should be awarded to the mother.

Held: Article 213 of the Family Code provided: “Art 213. In case of separation of parents parental authority shall be
exercised by the parent des granted by the court. The court shall take into account all relevant consideration, especially
the choice of the child over seven years of age, unless the parent chosen is unfit.”

No child under seven yrs of age shall be separated from the mother unless the court finds compelling reasons to order
otherwise,”

This Court has held that when the parents separated, legally or otherwise, the foregoing provision governs the custody of
their child. Article 213 takes its bearing from Article 363 of the Civil Code, w/c reads:
“Art 363. In all question on the care, custody, education and property pf children, the latter welfare shall be paramount.
No mother shall be separated from her child under seven years of age, unless the court finds compelling reason for such
measure.”

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III. Legal Separation

Legal separation or relative divorce is only separation from bed and board but the parties remain married.

In legal separation, the grounds arise after the marriage; in annulment , the grounds must exist at the time of or before
the marriage.

A. Grounds, Art. 55

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 judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

5. Drug addiction or habitual alcoholism of the respondent;

6. Lesbianism or homosexuality of the respondent;

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

NOTE:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a
child of the petitioner;

 The key words are “repeated” and “grossly”.

 This may be 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;

 There must be undue pressure since some pressure is expected in every marriage. It must go beyond what is
permissible (case to case basis).

(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;
 The one whom respondent has attempted to corrupt may be his wife, their own daughter, a daughter of his wife
by a former marriage, or his own natural child.
 Connivance in such attempt to corrupt or induce into prostitution is also included.

(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
 This presupposes a conviction.
 The penalty imposed must have been more than six years (which means that the crime is serious and not
probational)

(5) Drug addiction or habitual alcoholism of the respondent;

 The drug addiction can occur after the marriage. Article 55 (5) does not talk of concealment of drug addiction
unlike Article 46(4).

Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

4
  If the drug addiction or habitual alcoholism of the spouse was present at the time of the marriage and has
deprived him or her of the capacity to perform the essential obligations of marriage, it can even amount to
psychological incapacity under Art. 36 which is a ground for declaring the marriage null and void.

(6) Lesbianism or homosexuality of the respondent;

 Is this talking about homosexuality in terms of practice or is such sexual orientation enough? Again, there are
no cases.

 If it was already present at the time of the wedding, it can be a ground either fro declaring the marriage void
under Art. 36 (psychological incapacity) or for annulment of the marriage, if it was concealed from the other
spouse.

(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or
abroad;
 This is ground for legal separation, whether the second marriage was contracted in the Philippines or abroad
 If the husband did not contract a second marriage but is only living with another woman, the ground will be
“sexual infidelity” under par. 8 of this Article.

(8) Sexual infidelity or perversion;

 Under the Family Code, both men and women need only commit one act of sexual infidelity to fall under Article
55 (8).

 In Gandionco vs. Peñaranda, the Supreme Court said that a criminal conviction of concubinage is not necessary,
only preponderance of evidence. In fact, a civil action for legal separation based on concubinage may proceed
ahead of or simultaneously with a criminal action.

 Sexual perversion is a relative term.

(9) Attempt by the respondent against the life of the petitioner; or

 Article 55 (9) – under this ground, there is no need for conviction.

 This implies intent to kill, i.e., attempted or frustrated parricide

 Mere infliction of physical injuries is not enough. However, if it is repeatedly done, it can fall under par. 1 of this
Article. On the other hand, if the guilty spouse is convicted and the penalty is more than 6 years, it would fall under
par. 4 of this Article.

 If the act of the respondent spouse is justified, as when a husband catches his wife in the act of adultery, there is no
ground for legal separation.

 Likewise, if the respondent spouse acts in self defense or in defense of a child against the unlawful aggression of the
other spouse, there is no ground for legal separation.

 There is no need for criminal conviction for the ground to be invoked.

 If the act is the result of criminal negligence, the ground does not exist since there is no intent to kill.

(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.

 Abandonment is not mere separation, but when a spouse leaves the family and the conjugal dwelling with no
intention of returning. Hence, there is a complete cessation of marital relations between husband and wife, both
personal and property, as well as parental relations with the children.

 The abandonment must be without justifiable cause.

 The abandonment must be for more than one year.

Republic Act. 9262, Anti-Violence Against Women and Children

“Violence against women and their children” refers to any act or a series of acts committed by any person against a woman who
is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he
has a common child, or against her child whether legitimate or illegitimate, within or without the family abode which result in or

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of
the marriage.

4
is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

“Physical violence” refers to acts that include bodily or physical harm

“Sexual violence” refers to an act which is sexual in nature, committed against a woman or her child. It includes but is not
limited to:
 Rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and
sexually suggestive remarks, physically attacking the sexual parts of the victim’s body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent acts and/ or make films thereof, forcing
the wife and mistress/ lover to live in the conjugal home or sleep together in the same room with the abuser;
 Acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other
harm of threat of physical or other harm or coercion;
 Prostituting the woman or child

“Psychological violence” refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as
but not limited to intimation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse
and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse or a
member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or
to unlawful or unwanted deprivation of the right to custody and/ or visitation of common children

“Economic abuse” refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited
to the following:

 Withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business
or activity, except in cases wherein the other spouse/ partner objects on valid, serious and moral grounds as defined in Art.
7316 of the Family Code:
 Deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal,
community or property owned in common
 Destroying household property
 Controlling the victims’ own money or properties or solely controlling the conjugal money or properties

B. Defenses, Arts. 56-57

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 complained of;
(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 decree of legal separation; or
(6) Where the action is barred by prescription.

 There are 2 more grounds not found in Article 56:

1. Death of either party during the pendency of the case (Lapuz-Sy vs. Eufemio)

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Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent
of the other. The latter may object only on valid, serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper, and
(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the
objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained
consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in good faith.

 There is an error here. This is NOT the full text. The text should read:

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 community property. If the
benefit accrued thereafter, such obligation shall be enforced against the separate property of the spouse who
has not obtained consent.

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 2. Reconciliation of the spouses during the pendency of the case (Article 66 (1) )

 In Lapuz-Sy vs. Eufemio, the lawyer wanted to proceed with legal separation despite of the death of one of the
parties. The Supreme Court denied it since the primary purpose of legal separation is bed and board separation
while the effect on their property relations is merely incidental.

 Condonation is the forgiveness or pardon of the guilty spouse by the aggrieved spouse. It may be express or implied

 Consent may be express or iimplied. Xxx Where the spouses entered into an agreement that each could live with and
have carnal knowledge with other persons without interference from each spouse, the agreement is null and void
being contrary to law and morals, but it may be considered consent which bars an action for legal separation.

 Connivance –a husband who actively connives in the adultery of his wife by luring her into adultery cannot ask for
legal separation on the ground of connivance. It is the duty of the husband to protect his wife from temptation and
not connive in her downfall.

 Mutual guilt—where both parties have given ground for legal separation, neither can file an action for legal
separation; the guilt may be of the same ground or a different ground; this defense is based on the principle that a
person must come to court with clean hands, it matters not whether it was the petitioner or the respondent who
committed the first offense, or one is more guilty than the other; the parties being both guilty, there is no offended
spouse who deserves tof ile the action, and this is true even if one spouse has been pardoned by the other spouse,
but the latter has not been pardoned.

 Collusion means that the spouses agree to make it appear in court that one of them has committed a ground for
legal separation, or to suppress evidence of a valid defense to such action, for the purpose of enabling the other to
obtain a decree of legal separation. Under Art. 60, legal separation cannot be decreed on a stipulation of facts or a
confession of judgment, and the court shall order its prosecuting fiscal to take steps to prevent collusion between
the parties and to take care that the evidence presented by either of them is not fabricated.

 Prescription of the action. If the action is already barred by prescription under Art. 57, it will not prosper. Xxx In the
case of adultery by the wife, each act of sexual intercourse is a separate act of adultery. Hence, the prescriptive
period shall be computed from the last act of adultery, unless there was condonaton or consent.

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

B. Cooling-off Period, Art. 58

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.

 This article is intended to give the spouses a chance to reconcile. This is the cooling-off period – can only try the
petition for legal separation after 6 months from filing. The Supreme Court has interpreted Article 58 to mean that
there shall be no hearing on the main issue but the court may hear incidental issues.

 In the case of Araneta vs. Concepcion, the Supreme Court allowed the court to hear the issue regarding the custody
of the children even if the 6-month period had not yet elapsed. Professor Balane didn’t like the ruling in this case.
According to him, what are you going to talk about if you don’t go to the main case?

D. Reconciliation efforts, Art. 59

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.

 For legal separation to be declared, reconciliation must be highly unlikely.

 Like all cases involving spouses and members of the same family, the court is enjoined to take steps towards the
reconciliation of the spouses and must be fully satisfied that, despite such efforts, reconciliation is highly improbable

 Again, the purpose of this Article is to see to it that all avenues for reconciliation are exhausted to prevent the break-
up of the marriage, before legal separation is granted.


Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage

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Lapuz vs. Eufemio, 43 SCRA 314

E. Confession of Judgment, Art. 60

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent
collusion between the parties and to take care that the evidence is not fabricated or suppressed.

 No decree of legal separation shall be based upon a stipulation of facts or a confession judgment. In Ocampo vs.
Florenciano, the Supreme Court said that legal separation cannot be granted on the basis of the wife’s admission
alone. There must be other proof.

 The court is required in every case to order its trial fiscal to take steps to prevent collusion between the parties and
to take care that the evidence is not fabricated or suppressed.

F. Effects of Filing Petition, Art. 61

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 written agreement between the spouses, shall designate either oft hem or a third person to
administer the absolute community or conjugal partnership property. The administrator appointed by the court shall
have the same poweres and duties as those of a guardian under the Rules of Court.

a. Spouses can live separately from each other.

b. The administration of the common properties (ACP, CPG, etc) shall be given by the court to either of the
spouses or to a 3rd person as is best for the interests of the community.
c. In the absence of a written agreement of the spouses, the court shall provide for the support between the
spouses and the custody and support of the common children, taking into account the moral and material
welfare of the children and their choice of the parent with whom they wish to remain.
d. When the consent of 1 spouse to any transaction of the other is required by law, judicial authorization shall
be necessary, unless such spouse voluntarily gives such consent.

Lerma vs. CA, 61 SCRA 440

G. Effects of pendency, Art. 62

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

Effect of death of plaintiff or petitioner during pendency of action

1. An action for legal separation is purely personal between the spouses. Hence, the death of one party
causes the death of the action itself and the action must be dismissed. (Lapuz Sy v Eufemio)
2. Lapuz Cy v Eufemio—the wife brought an action for legal separation against her husband on the
ground of concubinage committed by the latter, and prayed that the husband’s share in their conjugal
partnership profits be forfeited. During the pendency of the case, the wife died, and the court
dismissed the case. The wife’s father, who was her sole heir, appealed. It was held that the action did
not survive the death of the wife. Even if the action involved property rights of the deceased wife;
these rights were intransmissible, mere effects of legal separation and mere rights in expectation
before the finality of the decree. Hence, they cannot survive if the plaintiff dies prior to the decree.

H. Effects of legal separation, Arts. 63-64

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 bonds 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
 (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by
intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent
spouse shall be revoked by operation of law.

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
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 become final.

 Although the parties have the right to live separately from each other, the obligation of mutual fidelity remains.
Hence, the wife may be convicted of adultery or the husband of concubinage if either commits any of such crimes.
 Since the right to cohabit or live together has ceased, the husband cannot insist in having sexual intercourse with his
wife. If he forces her, he will be guilty of rape.
 The wife can already establish a domicile separate her husband.
 Even if the offending spouse forgets or fails to revoke a will in favor of the offending spouse, the will becomes ipso
jure revoked. If, however, the offended spouse executes another will in favor of the offending spouse after the
decree of legal separation, the will shall be valid.
 During the pendency of the proceedings, the spouses and the children shall be supported from the properties of the
absolute community or the conjugal partnership (Art. 198)
 After the decree of legal separation, the obligation of mutual support between the spouses cease.
 The court may, however, order the guilty spouse to support the inncocent one, specifying the terms of such order, if
the latter needs such support, considering that they are still married.

I. Reconciliation, Arts. 65-67

Effects of Reconciliation
a. Joint custody of the children is restored.
b. The right to succeed by the guilty spouse from the offended spouse is restored – compulsory only.
c. With regard testamentary spouse in the will of the innocent spouse.
d. If the donation propter nuptias succession, reconciliation will not automatically revive the institution of the
guilty were revoked, the same is not automatically restored.

 Articles 65 and 66 always allow reconciliation even after the decree.

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.

Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at 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.
The court's order containing the foregoing shall be recorded in the proper civil registries.

 According to Professor Balane, it is not the reconciliation which produces the effects in Article 66. Rather, it is the
filing of the joint manifestation of reconciliation.

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 proceedings 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.

5
 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.

Effects of Reconciliation of the spouses:

1. On their personal relations

a. Reconciliation means resumption of cohabitation and marital relations

b. It is a bilateral act requiring the common consent of the spouses, express or implied

2. On the proceedings for and decree of legal separation

a. If the proceedings are still pending, they will be terminated in whatever stage

b. If there is already a Decree of Legal Separation, it will be set aside by a court order, and the court
shall issue a Decree of Reconciliation.

3. On the property relations of the spouses

a. Separation of property between the spouses and any forfeiture of the share of the guilty
spouse shall continue to subsist after the reconciliation, unless the spouses agree to revive their
former property regime

b. If the spouses agree to revive their former property regime or adopt a new regime, they
shall execute an agreement under oath and submit the court with a motion asking for its approval

IV. Rights and Obligations Between Husband and Wife

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

 This is really a declaration of policy

 The 3 duties of the spouses to each other are:

1. Live together
 The duty to live together includes cohabitation or consortium and sexual intercourse
 The wife has the duty to live with her husband, but she may refuse to do so in certain cases
 Arroyo v Vasquez de Arroyo—if the wife abandons the conjugal home without justifiable
cause, the husband cannot compel her to come home under pain of contempt of court
because cohabitation is a purely personal obligation and to compel her to comply with
such obligation would be a violation of her personal liberty which is guaranteed by the
Constitution.
2. Observe mutual love, respect, and fidelity
3. Render mutual help and support

 The management of the household is the right and duty of both spouses; either spouse may exercise any
legitimate profession, or activity without the consent of the other; both spouses manage the absolute
community or conjugal property together; both spouses exercise parental authority over their common
children

 Article 68 is Article 36’s reference when it refers to the spouse’s inability to comply with the essential
marital obligations.

 Although the courts cannot compel the spouses to comply with their marital obligations, under Articles 100
and 127, the spouse who leaves the conjugal home or refuses to live there without just cause shall not
have the right to be supported.

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.

 The power to fix the domicile is joint.

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 General Rule: Separation is incompatible with family solidarity.

 Exception: Article 69, ¶2*

3. One spouse should live abroad
4. Other valid and compelling reasons

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 the separate properties.

 Support is a joint responsibility. Both spouses are responsible for the support of the family because they are now
joint administrators of the absolute community or conjugal property.

 Such support shall be satisfied in the following order:

o First, from the community property or conjugal property;
o Second, from the income or fruits of the separate properties of the spouses
o Third, from the separate properties of the spouses

 Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family (Article 194)

 Under Articles 94 (last ¶), 121 (last ¶) and 146 (¶2), if the community property is insufficient to cover debts of the
community property, then the spouses are solidarily liable with their separate property. If the spouses have a
regime of separation of property, the spouses are solidarily liable to creditors for family expenses.

Art. 71. The management of the household shall be the right and duty of both spouses. The expenses for such
management shall be paid in accordance with the provisions of Article 70.

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 the family, the aggrieved party may apply to the court for relief.

 The injury contemplated here is not economic or financial, but physical, moral, emotional or psychological
 The court may admonish or issue an injunction order tot he guilty spouse and even threaten her with contempt of
court if he or she refuses to heed the court order.

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.

 There is an error here. This is NOT the full text. The text should read:

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 community property. If the benefit
*
Art. 69, ¶2. 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.

Art. 94, last ¶. 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.

Art. 121, last ¶. 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.

Art. 146, ¶2. The liabilities of the spouses to creditors for family expenses shall, however, be solidary.

5
 accrued thereafter, such obligation shall be enforced against the separate property of the spouse who has
not obtained consent.

Is the absolute community or the conjugal partnership liable for the acts or transactions of the spouse who acted
without the consent or notwithstanding the objection of the other?

a. If the benefit has accrued to the family prior to the objection, the absolute community or conjugal
partnership is liable for the obligations incurred since all the profits or income from the acts or transactions of the
spouse who acted without the consent of the other become part of the absolute community or conjugal properties.

b. If profits accrued after the objection, the resulting obligations of the spouse who acted
without the consent of the other shall be enforced only against his or her separate properties

c. Creditors who acted in good faith are, however, protected and will not be prejudiced in
their rights. Thus, they may go after the absolute community or conjugal roperties or the separate
properties of the spouse with whom they contracted.