Persons Primer

PERSONS AND FAMILY
RELATIONS LAW
Q&A Reviewer & MCQ Quizzer
CIVIL LAW REVIEW 2012

Atty. MELENCIO S. STA.MARIA, JR.
by
BLOCK 4B 2012
BOOK I PERSONS Chapter 1. LEGITIMATE CHILDREN
TITLE I. CIVIL PERSONALITY Chapter 2. PROOF OF FILIATION
Chapter 1. GENERAL PROVISIONS Chapter 3. ILLEGITIMATE CHILDREN
Chapter 2. NATURAL PERSONS Chapter 4. LEGITIMATED CHILDREN
Chapter 3. JURIDICAL PERSONS
TITLE VII. ADOPTION (Articles 183 to 193)
TITLE II. CITIZENSHIP AND DOMICILE
TITLE VIII. SUPPORT
THE FAMILY CODE OF THE PHILIPPINES (Articles 194 to 208)
TITLE I. MARRIAGE (Articles 1 to 54) TITLE LX. PARENTAL AUTHORITY (Articles 209 to 233)
Chapter 1. REQUISITES OF MARRIAGE Chapter 1. GENERAL PROVISIONS
Chapter 2. MARRIAGES EXEMPT FROM LICENSE REQUIREMENT Chapter 2. SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY
Chapter 3. VOID AND VOIDABLE MARRIAGES Chapter 3. EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS
OF THE CHILDREN
TITLE II. LEGAL SEPARATION (Articles 55 to 67) Chapter 4. EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY
OF THE CHILDREN
TITLE III. RIGHTS AND OBLIGATIONS Chapter 5. SUSPENSION OR TERMINATION OFPARENTAL
BETWEEN HUSBAND AND WIFE AUTHORITY
(Articles 68 to 73)
TITLE X. EMANCIPATION AND AGE
TITLE IV. PROPERTY RELATIONS BETWEEN OF MAJORITY
HUSBAND AND WIFE (Articles 234 to 237)
(Articles 74 to 148)
TITLE XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
Chapter 1. GENERAL PROVISIONS (Articles 238 to 252)
Chapter 2. DONATIONS BY REASONOF MARRIAGE Chapter 1. SCOPE OF APPLICATION
Chapter 3. SYSTEM OF ABSOLUTE COMMUNITY Chapter 2. SEPARATION IN FACT BETWEENHUSBAND AND WIFE
Section 1. General Provisions Chapter 3. INCIDENTS INVOLVING PARENTALAUTHORITY
Section 2. What Constitutes Community Property PROCEEDINGS
Section 3. Charges Upon and Obligations
of the Absolute Community XII. FINAL PROVISIONS (Articles 254 to 257)
Section 4. Ownership, Administration, Enjoyment
and Disposition of the Community Property CIVIL CODE OF THE PHILIPPINES
Section 5. Dissolution of Absolute Community Regime
Section 6. Liquidation of the Absolute Community TITLE X. FUNERALS
Chapter 4. CONJUGAL PARTNERSHIP OF GAINS TITLE XII. CARE AND EDUCATION OF CHILDREN
Chapter 5. SEPARATION OF PROPERTY OF THE SPOUSE AND
ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING THE TITLE XIII. USE OF SURNAMES
MARRIAGE
Chapter 6. REGIME OF SEPARATION OFPROPERTY TITLE XIV. ABSENCE
Chapter 7. PROPERTY REGIME OF UNIONSWITHOUT MARRIAGE Chapter 1. PROVISIONAL MEASURES IN CASEOF ABSENCE
Chapter 2. DECLARATION OF ABSENCE
TITLE V. THE FAMILY (Articles 149 to 162) Chapter 3. ADMINISTRATION OF THE PROPERTYOF THE ABSENTEE
Chapter 1. THE FAMILY AS AN INSTITUTION Chapter 4. PRESUMPTION OF DEATH
Chapter 2. THE FAMILY HOME Chapter 5. EFFECT OF ABSENCE UPON THECONTINGENT
RIGHTSOF THE ABSENTEE
TITLE VI. PATERNITY AND FILIATION (Articles 163 to 182)
TITLE XVI. CIVIL REGISTRY
Art. 1-18 PRELIMINARY TITLE 1 Art. 1-18 PRELIMINARY TITLE 2
Effect and Application of Laws Effect and Application of Laws
CHAPTER 1
Q. What are the instances when a law may be given retroactive effect?
EFFECT AND APPLICATION OF LAWS
A. A law may be given retroactive effect in the following instances:
Article 1. This Act shall be known as the "Civil Code of (a) When it expressly provides for retroactivity;
the Philippines." (n) (b) When it is curative or remedial;
(c) When it is procedural;
Article 2. Laws shall take effect after fifteen days
(d) When it is penal in character and is favorable to the accused.
following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This
Q. What are the instances when the law cannot be given retroactivity?
Code shall take effect one year after such publication.
(1a)
A. A law cannot be given retroactive effect in the following instances:
Article 3. Ignorance of the law excuses no one from (a) When it impairs obligation of contracts;
compliance therewith. (2) (b) When it affects vested rights;
(c) When it will affect pending proceedings (See Espiritu v. Cipriano,
55 SCRA 533).
Q. Can the publication requirement be dispensed with on the basis of the
clause “unless otherwise it is provided” under Article 2 of the New Q. What is a curative or remedial legislation?
Civil Code?
A. It is a type of retrospective legislation that reaches back on past events
A. NO. The clause “unless otherwise it is provided” pertains to the fifteen to correct errors or irregularities, and to render valid and effective
day period and not to the requirement of publication. Publication is an attempted acts which would otherwise be ineffective for the purpose
indispensable requirement, the absence of which will not render the the parties intended. (DBP v. CA, 96 SCRA 342)
law effective. (see Tanada v. Tuvera, 146 SCRA 446)
Article 5. Acts executed against the provisions of
Q. Every person is presumed to know the law. Can this presumption be mandatory or prohibitory laws shall be void, except
overcome by evidence that the person has in fact no knowledge of the when the law itself authorizes their validity.
existence of a law?
Q. When can a violation of mandatory or prohibitory laws be valid?
A. NO. The presumption is conclusive. (See Tanada v. Tuvera, supra)
A. It is valid when the law itself authorizes their validity that acts in
Article 4. Laws shall have no retroactive effect, unless the violation of these laws are valid and enforceable. (Article 5, new Civil
contrary is provided. (3) Code)
Q. What is “retrospective legislation”? Article 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or
A. These are legislations with retroactive effect. good customs, or prejudicial to a third person with a
right recognized by law.
CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

Article 10. In case of doubt in the interpretation or

Q. When can a waiver be considered as an effective waiver? application of laws, it is presumed that the lawmaking
body intended right and justice to prevail. (n)
A. A waiver is effective when it is a “knowing and intelligent waiver.”
This means that the person knows that a right exists, and has Article 11. Customs which are contrary to law, public
knowledge of the facts basic to the exercise of the right waived, with an order or public policy shall not be countenanced. (n)
awareness of its consequences. (See Consunji v. CA, G.R. No. 137873,
April 20, 2001) Article 12. A custom must be proved as a fact,
according to the rules of evidence.
Article 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 Q. Can courts take judicial notice of customs?
contrary.
A. NO. A custom must be proved as a fact according to the rules of
When the courts declared a law to be inconsistent evidence. (Article 12, New Civil Code)
with the Constitution, the former shall be void and
the latter shall govern. Article 13. When the laws speak of years, months, days
or nights, it shall be understood that years are of
Administrative or executive acts, orders and three hundred sixty-five days each; months, of thirty
regulations shall be valid only when they are not days; days, of twenty-four hours; and nights from
contrary to the laws or the Constitution. sunset to sunrise.
Q. What is the general rule and exception when it comes to “partial
unconstitutionality” of a statute? If months are designated by their name, they shall be
computed by the number of days which they
A. As a general rule, where a part of a law is declared unconstitutional, respectively have.
other parts not declared as such will still be upheld. However, when
In computing a period, the first day shall be excluded,
the other provisions are so mutually dependent and connected with
and the last day included. (7a)
the unconstitutional provision as to warrant a belief that the
legislature intended them to be whole, those other provisions must fall.
(See Lidasan v. COMELEC, 21 SCRA 496) Q. X filed his final income tax return on April 15, 1998. X, however,
discovered that he made excessive payment. Hence, he filed a claim for
Article 8. Judicial decisions applying or interpreting
refund before the Commissioner for Internal Revenue (CIR) on
the laws or the Constitution shall form a part of the
December 15, 1999. It was denied. On April 14, 2000, he filed an action
legal system of the Philippines. (n)
for refund before the Court of Tax Appeals (CTA). However, it was
Article 9. No judge or court shall decline to render dismissed on the ground that under the law, a claim for refund must
judgment by reason of the silence, obscurity or be filed within 2 years from the date of payment. According to CTA,
insufficiency of the laws. (6) two years constitute 730 days pursuant to Article 13 of the New Civil

Code. Hence, prescription had set in on April 14, 2000 which is the
731st day since the year 2000 is a leap year. Is the CTA correct? A. No. In the eyes of Philippine law, he is still married as divorce is
not allowed. (See Tenchavez v. Escano, 15 SCRA 355)
A. NO. Article 13 of the New Civil Code was impliedly repealed by the
1987 Administrative Code. Under the latter, “year” shall be Art. 16. Real property as well as personal property is
understood as 12 calendar months. It is a period running from the subject to the law of the country where it is situated.
beginning of a certain numbered day up to, but not including, the
corresponding numbered day of the next month. Two years means However, intestate and testamentary succession, both
twenty-four months regardless of the number of days of the month. with respect to the order of succession and to the
Hence, two years from April 15, 1998 is April 14, 2000. (See CIR v. amount of successional rights and to the intrinsic
Primetown Properties, G. R. 162155, August 28, 2007) validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
Article 14. Penal laws and those of public security and under consideration, whatever may be the nature of
safety shall be obligatory upon all who live or sojourn the property and regardless of the country wherein
in the Philippine territory, subject to the principles of said property may be found. (10a)
public international law and to treaty stipulations.
(8a) Q. What is the general rule with respect to the law that governs real
and personal property?
Q. Are diplomatic agents immune from the jurisdiction of Philippine A. The law that governs real and personal property is the law of the
criminal laws? country where such property is situated.
A. Yes, by virtue of the 1961 Vienna Convention on Diplomatic Relations. Q. What is the exception to the abovementioned rule?
Art. 15. Laws relating to family rights and duties, or to A. With respect to the order of succession and the amount of
the status, condition and legal capacity of persons are successional rights, whether in intestate or testamentary
binding upon citizens of the Philippines, even though succession, they shall be regulated by the national law of the
living abroad. (9a) deceased.
Q. What is the nationality rule? Q. What law will apply if a foreigner executed a will in the
Philippines but, who, at the time of his death, was both a national
A. The nationality rule states that regardless of where a citizen of of the United States and also domiciled in the United States?
the Philippines might be, he or she will be governed by Philippine
laws with respect to his or her family rights and duties, or to his A. The law of the United States will apply. (See Bellis v. Bellis, 20
or her status, condition and legal capacity. SCRA 258)
Q. If a married Filipino obtains a decree of divorce from abroad, may

he validly remarry in accordance with Philippine law?

Article 17. The forms and solemnities of contracts, wills, Article 18. In matters which are governed by the Code of
and other public instruments shall be governed by the Commerce and special laws, their deficiency shall be
laws of the country in which they are executed. supplied by the provisions of this Code. (16a)
When the acts referred to are executed before the Q. When shall the Civil Code govern matters covered by the Code of
diplomatic or consular officials of the Republic of the Commerce and special laws?
Philippines in a foreign country, the solemnities A. Only when there is a deficiency in the Code of Commerce and special
established by Philippine laws shall be observed in their laws.
execution.
CHAPTER 2
Prohibitive laws concerning persons, their acts or Human Relations (n)
property, and those which have for their object public
order, public policy and good customs shall not be Article 19. Every person must, in the exercise of his
rendered ineffective by laws or judgments promulgated, rights and in the performance of his duties, act with
or by determinations or conventions agreed upon in a justice, give everyone his due, and observe honesty and
foreign country. (11a) good faith.
Q. What law will govern the forms and solemnities of public instruments, Article 20. Every person who, contrary to law, willfully or
wills and contracts? negligently causes damage to another, shall indemnify
the latter for the same.
A. The law of the country where they are executed.
Article 21. Any person who willfully causes loss or injury
Q. What law will govern if public instruments are executed before to another in a manner that is contrary to morals, good
Philippine diplomatic officers in a foreign country? customs or public policy shall compensate the latter for
the damage.
A. Philippine law.
Q. What are the essential requisites for a person to be held liable under
Q. Is a Filipina wife who obtained a divorce abroad and remarried an Article 19?
American liable for adultery?
A. The essential requisites are: (1) there must be a legal right or duty; (2)
A. Yes. Prohibitive laws concerning persons, their acts or property, and such right or duty is exercised in bad faith; and (3) it is exercised for
those which have for their object public order, public policy and good the sole intent of prejudicing another.
customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a Q. What matters does Article 20 cover?
foreign country. (See Tenchavez v. Escano 15 SCRA 355)
A. Article 20 speaks of a general sanction for all other provisions of law
which do not especially provide their own sanction.

Art. 37- 47 PERSONS 9 Art. 37- 47 PERSONS 10
Civil Personality Civil Personality
Q. Is willful intent necessary to constitute a violation of Article 20? Q. A person, in good faith, plants crops on land which he believed was his
own, but which turned out to be timberland belonging to the state.
A. No. It can be violated through negligence. Does he lose his right to all his crops?
Q. What are the essential requisites for a person to be held liable under A. No. (See Republic v. Ballocanag, 572 SCRA 436)
Article 21?
Q. Without A’s knowledge, a flood drives his cattle to the cultivated land
A. The essential requisites are: (1) there is an act which is legal; (2) but of B. A’s cattle were saved but B’s crop was destroyed. Is A liable to B
which is contrary to morals, good customs or public policy; and (3) it is for damages despite having committed no fault?
done with intent to injure.
A. Yes. True, A was not at fault but he was benefitted. It is but right and
Q. A government employee was singled out by the deputy administrator equitable that he should indemnify B. (Report of the Code
and strictly subjected to the rules for obtaining benefits after Commission, pages 41-42)
retirement. Meanwhile employees similarly situated were liberally
granted their benefits for as long as they substantially complied with Article 24. In all contractual, property or other relations,
the rules. Does the government employee have a right to seek when one of the parties is at a disadvantage on account
damages? of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must
A. Yes. See Article 19. (Llorente v. Sandiganbayan, 202 SCRA 309) be vigilant for his protection.
Article 22. Every person who through an act or Q. Two parties executed a contract and implemented it for a lengthy
performance by another, or any other means, acquires or period of time pursuant to its unambiguous provisions, and benefited
comes into possession of something at the expense of the from the same. May one of the parties validly invoke Article 24?
latter without just or legal ground, shall return the same
to him. A. No. The Supreme Court rejected the claim of one of the parties that
the said party was disadvantaged pursuant to Article 24, since it was
Article 23. Even when an act or event causing damage to proven that the parties undertook lengthy negotiations before the
another’s property was not due to the fault or negligence contract was finalized, and that the said party was good in business.
of the defendant, the latter shall be liable for indemnity if (See Spouses Domingo v. Astorga, G.R. No. 130982, September 16,
through the act or event he was benefited. 2005)
Q. What is the doctrine of unjust enrichment? Article 25. Thoughtless extravagance in expenses for
pleasure or display during a period of acute public want
A. It states that no person can claim what is not validly and legally his or or emergency may be stopped by order of the courts at
hers. the instance of any government or private charitable
institution.

Q. What kind of entities can invoke Article 25?

Article 27. Any person suffering material or moral loss
A. Only government or private charitable institutions can invoke Article because a public servant or employee refuses or neglects,
25. without just cause, to perform his official duty may fi le
an action for damages and other relief against the latter,
Article 26. Every person shall respect the dignity, without prejudice to any disciplinary administrative
personality, privacy and peace of mind of his neighbors action that may be taken.
and other persons. The following and similar acts,
though they may not constitute a criminal offense, shall Q. The president of a state college in bad faith and despite the decision
produce a cause of action for damages, prevention and and directives of the Office of the Bureau of Public Schools, refused to
other relief: allow a student to graduate with honors, despite the fact that the
student honestly earned and deserved such honors. Can the president
(1) Prying into the privacy of another’s residence; be held liable for damages?
(2) Meddling with or disturbing the private life or family A. Yes. The Supreme Court granted the award of damages in favor of the
relations of another; said student under Article 27. (See Ledesma v. Court of Appeals, 160
SCRA 449).
(3) Intriguing to cause another to be alienated from his
friends; Article 28. Unfair competition in agricultural,
commercial or industrial enterprises, or in labor through
(4) Vexing or humiliating another on account of his religious the use of force, intimidation, deceit, machination or any
beliefs, lowly station in life, place of birth, physical other unjust, oppressive or highhanded method shall
defect, or other personal condition. give rise to a right of action by the person who thereby
suffers damage.
Q. A family in Sorsogon sent a telegram to another member of the family
in Manila asking for money for their ailing mother. The telegram- Article 29. When the accused in a criminal
company failed to send the telegram on time and did not immediately prosecution is acquitted on the ground that his guilt
inform the family of the reason for the delay, thereby causing filial has not been proved beyond reasonable doubt, a civil
disturbance on the part of the family as they blamed each other for action for damages for the same act or omission may
failing to respond immediately to the emergency involving their be instituted. Such action requires only a
mother. Can the family validly seek damages against the telegram preponderance of evidence. Upon motion of the
company? defendant, the court may require the plaintiff to file a
bond to answer for damages in case the complaint
A. Yes. The Supreme Court awarded damages on the basis of Article should be found to be malicious.
26(2) of the Civil Code considering that the act or omission of the
telegraph company disturbed the peace of mind of the family. (See If in a criminal case the judgment of acquittal is based
RCPI v. Verchez, G.R. No. 164349, January 31, 2006) 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 A. A cause of action exists if the following elements are present: (1) a
the acquittal is due to that ground. right in favor of the plaintiff; (2) an obligation on the part of the named
defendant to respect or not to violate such right; and (3) an act or
Article 30. When a separate civil action is brought to omission on the part of such defendant that is violative of the right of
demand civil liability arising from a criminal offense, the plaintiff.
and no criminal proceedings are instituted during the
pendency of the civil case, a preponderance of Article 32. Any public officer or employee, or any
evidence shall likewise be sufficient to prove the act private individual, who directly or indirectly
complained of. obstructs, defeats, violates or in any manner impedes
or impairs any of the following rights and liberties of
Article 31. When the civil action is based on an another person shall be liable to the latter for
obligation not arising from the act or omission damages:
complained of as a felony, such civil action may
proceed independently of the criminal proceedings 1. Freedom of religion;
and regardless of the result of the latter. 2. Freedom of speech;
3. Freedom to write for the press or to maintain a
periodical publication;
Q. Does proof beyond reasonable doubt require absolute certainty? 4. Freedom from arbitrary or illegal detention;
5. Freedom of suffrage;
A. No. It only means that amount of proof which forms an abiding moral 6. The right against deprivation of property without
certainty that the accused committed the crime charged. Whereas in due process of law;
civil cases, only preponderance of evidence is required, that is, as a 7. The right to a just compensation when private
whole the evidence adduced by one side outweighs that of the adverse property is taken for public use;
party. (See Sarmiento v. Court of Appeals, G.R. No. 96740, March 25, 8. The right to the equal protection of the laws;
1999) 9. The right to be secure in one's person, house,
papers, and effects against unreasonable searches
Q. Does acquittal beyond reasonable doubt preclude one from instituting and seizures;
a suit to enforce the civil liability for the same act or omission? 10. The liberty of abode and of changing the same;
11. The privacy of communication and
A. No. The same cannot be used in evidence of his innocence in civil correspondence;
action and is not admissible in evidence to prove that he was not guilty 12. The right to become a member of associations or
of the crime with which he was charged. (See Philippine National societies for purposes not contrary to law;
Bank v. Catipon, 52 O.G. 3589; Republic of the Philippines v. Asaad, 13. The right to take part in a peaceable assembly to
51 O.G. 703) petition the Government for redress of
grievances;
Q. When does a cause of action exist?

14. The right to be a free from involuntary servitude

in any form; Q. Are judges subject to liability under Article 32?
15. The right of the accused against excessive bail;
16. The right of the accused to be heard by himself A. No. The responsibility set forth in Article 32 is not demandable from a
and counsel, to be informed of the nature and judge unless his act or omission constitutes a violation of the Penal
cause of the accusation against him, to have a Code or other penal statute. (See Esguerra v. Gonzales-Asdala, G.R.
speedy and public trial, to meet the witnesses No. 168906, December 4, 2004) This applies no matter how erroneous
face to face, and to have compulsory process to the act is, so long as the judge acts in good faith. It is only when a
secure the attendance of witness in his behalf; judge acts fraudulently or corruptly, or with gross ignorance, that he
17. Freedom from being compelled to be a witness may be held criminally or administratively responsible.
against one's self, or from being forced to confess
guilt, or from being induced by a promise of Article 33. In cases of defamation, fraud, and physical
immunity or reward to make such confession, injuries a civil action for damages, entirely separate and
except when the person confessing becomes a distinct from the criminal action, may be brought by the
State witness; injured party. Such civil action shall proceed
18. Freedom from excessive fines, or cruel and independently of the criminal prosecution, and shall
unusual punishment, unless the same is imposed require only a preponderance of evidence.
or inflicted in accordance with a statute which
has not been judicially declared unconstitutional; Article 34. When a member of a city or municipal police
and force refuses or fails to render aid or protection to any
19. Freedom of access to the courts. person in case of danger to life or property, such peace
officer shall be primarily liable for damages, and the city
In any of the cases referred to in this article, whether or municipality shall be subsidiarily responsible
or not the defendant's act or omission constitutes a therefor. The civil action herein recognized shall be
criminal offense, the aggrieved party has a right to independent of any criminal proceedings, and a
commence an entirely separate and distinct civil preponderance of evidence shall suffice to support such
action for damages, and for other relief. Such civil action.
action shall proceed independently of any criminal Article 35. When a person, claiming to be injured by a
prosecution (if the latter be instituted), and may be criminal offense, charges another with the same, for
proved by a preponderance of evidence. which no independent civil action is granted in this Code
or any special law, but the justice of the peace finds no
The indemnity shall include moral damages. reasonable grounds to believe that a crime has been
Exemplary damages may also be adjudicated. committed, or the prosecuting attorney refuses or fails to
institute criminal proceedings, the complaint may bring
The responsibility herein set forth is not demandable
a civil action for damages against the alleged offender.
from a judge unless his act or omission constitutes a
Such civil action may be supported by a preponderance
violation of the Penal Code or other penal statute.
of evidence. Upon the defendant's motion, the court may

Article 37. Juridical capacity, which is the fitness to be

require the plaintiff to file a bond to indemnify the the subject of legal relations, is inherent in every natural
defendant in case the complaint should be found to be person and is lost only through death. Capacity to act,
malicious. which is the power to do acts with legal effect, is
If during the pendency of the civil action, an information acquired and may be lost. (n)
should be presented by the prosecuting attorney, the
civil action shall be suspended until the termination of Q. When does juridical capacity and capacity to act start and end?
the criminal proceedings.
A. Juridical capacity is acquired upon the birth of a person. There are
Article 36. Pre-judicial questions, which must be even cases where a child, although not yet born and still inside the
decided before any criminal prosecution may be womb of the mother, is already given a provisional personality which
instituted or may proceed, shall be governed by rules entitles him to be supported or to receive donation (Articles 40, 41,
of court which the Supreme Court shall promulgate 742, 854). Juridical capacity is terminated only upon death. Whereas,
and which shall not be in conflict with the provisions
capacity to act is not inherent in a person; it is attained or conferred.
of this Code.
Therefore, it may be lost not only by death of a person but by any valid
cause provided by law.
Q. What is a prejudicial question?
Article 38. Minority, insanity or imbecility, the state of
A. A prejudicial question is one that arises in a case, the resolution of being a deaf-mute, prodigality and civil interdiction are
mere restrictions on capacity to act, and do not exempt
which is a logical antecedent of the issue involved therein, and the
the incapacitated person from certain obligations, as
cognizance of which pertains to another tribunal. (See Zapanta v.
Montesa, 4 SCRA 510; Fortich v. Celdran, 19 SCRA 502) There are when the latter arise from his acts or from property
always two cases involved, a civil and a criminal case. The criminal relations, such as easements. (32a)
case is always suspended because the issues in the civil case are
determinative of the outcome in the criminal case. Article 39. The following circumstances, among others,
modify or limit capacity to act: age, insanity, imbecility,
the state of being a deaf-mute, penalty, prodigality,
BOOK I family relations, alienage, absence, insolvency and
PERSONS trusteeship. The consequences of these circumstances
are governed in this Code, other codes, the Rules of
TITLE I Court, and in special laws. Capacity to act is not limited
CIVIL PERSONALITY on account of religious belief or political opinion.
A married woman, twenty-one years of age or over, is
CHAPTER 1 qualified for all acts of civil life, except in cases specified
General Provisions by law. (n)
Chapter 2

NATURAL PERSONS from his parents even if it is yet to be born. The conceived child may
even receive donations under Article 742 of the Civil Code.
Article 40. Birth determines personality; but the
conceived child shall be considered born for all purposes The lower court’s theory that support as an obligation under the Civil
that are favorable to it, provided it be born after with the Code does not contemplate children yet unborn, violates Article 40.
conditions specified in the following article. (29a) The phrase “provided it be born later with the conditions specified in
the following article” is not a condition precedent to the right of the
Article 41. For civil purposes, the foetus is considered conceived child. (See Quisumbing v. Icao, 34 SCRA 132)
born if it is alive at the time it is completely delivered
from the mother’s womb. However, if the foetus had an Q. May a parent invoke the provisional personality of a conceived child
intra-uterine life of less than seven months, it is not for damages for and on behalf of an aborted child?
deemed born if it dies within twenty-four hours after its
complete delivery from the maternal womb. (30a) A. No. The conditions set forth in Article 40 and 41 were not
subsequently met. But the parents can obtain damages in their own
Q. What determines civil personality? right against the doctor who caused the abortion. (See Geluz v. CA, 2
SCRA 801)
A. Birth determines civil personality.
Q. What is the best evidence of birth?
Q. When is a person deemed born?
A. The birth certificate is the best evidence of birth. Once registered, it
A. A person is deemed born if it is alive at the time it is completely becomes a public document. These are strictly confidential and cannot
delivered from the mother’s womb. However, if the foetus only has an be revealed save in the cases expressly provided for by law.
intra-uterine life of less than seven months, it must stay alive for
twenty-four hours after complete delivery to be deemed born. Article 42. Civil personality is extinguished by death.
Q. Are there exceptions? The effect of death upon the rights and obligations of the
deceased is determined by law, by contract and by will.
A. Yes. A conceived child, even if yet to be delivered from the mother’s (32a)
womb, shall be considered born for all purposes that are favorable to it.
Q. What terminates civil personality?
Q. X, mother of a child, sued Y for damages and support for their common
child. Y moved to dismiss the complaint on the ground that it did not A. Death terminates civil personality.
allege that the child was deemed born. The court granted the motion to
dismiss. Is this proper? Q. What is the effect of losing civil personality?
A. No. Article 40 provides that a child is given provisional personality for A. The person loses juridical capacity and capacity to act, and all the
all purposes favorable to it. The unborn child has a right to support rights pertaining thereto including the right to own and redeem

property, among others. (See Butte v. Manuel Uy & Sons, Inc., 4 SCRA Chapter 3
526) JURIDICAL PERSONS
Q. Who issues a death certificate? Article 44. The following are juridical persons:
A. The attending physician of the deceased issues the death certificate, or 1) The State and its political subdivisions;
the proper health officer in case of default.
2) Other corporations, institutions, and entities
Q. What are contained in the death certificate? for public interest or purpose, created by law;
their personality begins as soon as they have
A. The death certificate contains the following: (1) date and place of been constituted according to law;
death; (2) full name; (3) age; (4) occupation; (5) residence; (6) status as
regards marriage; (7) nationality; and (8) probable cause of death. 3) Corporations, partnerships and associations
for private interest or purpose to which the
Q. Can rights and obligations of deceased persons be regulated? law grants a juridical personality, separate
and distinct from that of each shareholder,
A. Yes, by contract, will, and by law. partner or member. (35a)
Article 43. If there is doubt, as between two or more Article 45. Juridical persons mentioned in Nos. 1 and 2 of
persons who are called to succeed each other, as to the preceding article are governed by the laws creating
which of them dies first, whoever alleges the death of one or recognizing them.
prior to the other, shall prove the same; in the absence of
proof, it is presumed that they died at the same time and Private corporations are regulated by laws of general
there shall be no transmission of rights from one to the application on the subject.
other. (33)
Partnerships and associations for private interest or
Q. When will Article 43 apply? purpose are governed by the provisions of this Code
concerning partnerships. (36 and 37a)
A. Only in cases of doubt as to who between two or more persons, called
to succeed each other, died first. Article 46. Juridical persons may acquire and possess
property of all kinds, as well as incur obligations and
Q. How can death be proven in cases of doubt? bring civil or criminal actions, in conformity with the
laws and regulations of their organization. (38a)
A. It must be established by positive evidence. But it can also be
established by circumstantial evidence, but never by mere inference Q. What is a juridical person?
arising from another inference or presumptions or assumptions.

A. A juridical person is a being of legal existence susceptible of rights and Municipal corporations exist in a dual capacity, and their functions are
obligations, or of being the subject of juridical relations. (See Roldan v. two-fold. In one, they exercise rights springing from sovereignty and
Philippine Veterans Board, 105 Phil. 1081) while in the performance of the duties pertaining thereto, their acts
are political and governmental. When performing such functions, they
Q. What is a state? are immune from suit unless otherwise provided in their charters.
A. A state is a sovereign power with people composing it viewed as an If acting in a proprietary character, the municipal corporations can be
organized corporate society under a government with the legal sued. (See Municipality of San Fernando v. Firme, G.R. No. 52179,
competence to exact obedience of its commands. April 1991)
Q. As a juridical person, what can a state do? Q. What is a corporation?
A. It can enter into treaties and contracts. It can also succeed or inherit in A. A corporation is an artificial being created by operation of law, having
certain instances provided by law. However, as a general rule, the the right of succession and the powers, attributes, and properties
State cannot be sued without its consent. expressly authorized by law or incident to its existence.
Q. How can the consent of the state be given? Q. What is a partnership?
A. Either expressly or impliedly. Express consent to be sued may be A. By contract of partnership, two or more persons bind themselves to
embodied in a general or special law. It is implied when the contribute money, property or industry to a common fund with the
government enters into business contracts, thereby descending to the intention of dividing the profits among themselves.
level of the other contracting party. When a state files a complaint, it is
also opening itself to a counterclaim. (See Merritt v. Government of the Q. What are the effects of corporations and partnerships having juridical
Philippine Islands, 182 SCRA 644) personalities?
However, the circumstance that a state is suable does not necessarily A. The corporations and partnerships have separate juridical
mean that it is liable. When a state waives its immunity, it is only personalities from its stockholders and partners. The obligations of the
giving the plaintiff a chance to prove its claim. corporation are not the obligations of its stockholders.
Q. What are political subdivisions? Q. May stockholders of a corporation intervene in a case involving
corporate liability?
A. Political subdivisions consist of municipalities, cities, and provinces.
A. No. The stockholders’ interest in corporate property is merely inchoate.
Q. Can political subdivisions be held liable for damages? Property belongs to the corporation possessing a distinct personality.
(See Saw v. CA, 195 SCRA 740)
A. It depends on the capacity for which it is being sued.
Q. Are there exceptions to the rule?

Civil Personality Citizenship and Domicile
A. Yes, in cases where piercing the veil of corporate fiction is proper. The
doctrine is applied when the separate juridical personality of the 3) Those whose fathers are citizens of the Philippines;
corporation is disregarded to promote the ends of justice. (See Laguna
Transportation Company v. Social Security System, G.R. L-14606, 4) Those whose mothers are citizens of the Philippines
April 28, 1960) and upon reaching the age of majority, elect
Philippine citizenship;
Article 47. Upon the dissolution of corporations,
institutions and other entities for public interest or 5) Those who are naturalized in accordance with law.
purpose mentioned in No. 2 of Article 44, their property
and other assets shall be disposed of in pursuance of law Article 49. Naturalization and the loss and reacquisition
or the charter creating them. If nothing has been of citizenship of the Philippines are governed by special
specified on this point, the property and other assets laws. (n)
shall be applied to similar purposes for the benefit of the
region, province, city or municipality which during the Article 50. For the exercise of civil rights and the
existence of the institution derived the principal benefits fulfillment of civil obligations, the domicile of natural
from the same. persons is the place of their habitual residence. (40a)
Q. What happens to the properties of the corporation when it ceases to Article 51. When the law creating or recognizing them, or
have legal personality? any other provision does not fix the domicile of juridical
persons, the same shall be understood to be the place
A. The properties shall be disposed of in accordance with the law creating where their legal representation is established or where
it. Otherwise, it will be transferred to the municipal corporation which they exercise their principal functions. (41a)
derived principal benefits from the corporation.
Q. What is domicile? How is it different from residence?
A. Domicile denotes a fixed permanent residence to which, when absent,

TITLE II one has the intention of returning. Residence is used to indicate a
CITIZENSHIP AND DOMICILE place of abode, whether permanent or temporary.
Article 48. The following are citizens of the Philippines: Q. May a person have more than one domicile?
1) Those who were citizens of the Philippines at the A. No. But one may have several residences.
time of the adoption of the Constitution of the
Philippines; Q. In the Philippines, how is citizenship determined?
2) Those born in the Philippines of foreign parents A. The Philippines follows Jus Sanguinis. Jus sanguinis refers to
who, before the adoption of said Constitution, had citizenship by blood, whereas jus soli refers to citizenship on the basis
been elected to public office in the Philippines; of place of birth.

Citizenship and Domicile Citizenship and Domicile
evinced a sincere desire to learn and embrace all customs,

Q. What law governs naturalization? traditions, and ideals of the Filipinos;
(g) Citizens or subjects of nations with whom the Philippines is at war
A. Commonwealth Act No. 473. during the period of war;
(h) Citizens or subject of a foreign country whose laws do not grant
Q. Under the current laws, what are the qualifications for a foreigner to Filipinos the right to become citizens or subject thereof
acquire Filipino citizenship?
Q. What law governs loss and reacquisition of citizenship?
A. The foreigner must:
(a) be not less than 21 years of age on the day of the filing of petition; A. Commonwealth Act No. 63 as amended by R.A. No. 106.
(b) have resided in the Philippines for not less than 10 continuous
years; Q. What are the grounds for loss of citizenship?
(c) have good moral character, believes in the principles underlying the
Constitution, conducted himself in a proper and irreproachable A. The following are grounds for loss of citizenship:
manner; (a) Naturalization in a foreign country;
(d) own real estate in the Philippines worth not less than five thousand (b) Express renunciation of citizenship;
pesos or must have some lucrative profession, trade or lawful (c) Subscribing to an oath of allegiance to support the constitution or
occupation; laws of a foreign country upon attaining twenty-one years of age;
(e) be able to speak and write English or Spanish or any one of the (d) By rendering service to or accepting commission in the armed forces
principal Philippine languages; and of another country;
(f) have enrolled his minor children in a school recognized by the Office (e) Cancellation of the certificate of naturalization;
of Private Education of the Philippines. (f) Having been declared by competent authority a deserter of the
Philippine armed forces in time of war; and
Q. Who are disqualified from being naturalized? (g) In case of a woman, upon her marriage to a foreigner if by virtue of
the laws in force in her husband’s country, she acquires his
A. The following are disqualified from being naturalized: nationality.
(a) Those opposed to organized government or affiliated with any
association or group of persons who uphold and teach doctrines Q. What are the grounds for reacquisition of citizenship?
opposing all organized government;
(b) Persons defending or teaching the necessity or proprietary of A. The grounds for reacquisition of citizenship are:
violence, personal assault, or assassination for the success and (1) Naturalization;
predominance of their ideas; (2) Repatriation; and
(c) Polygamists or believers in the practice of polygamy; (3) By direct act of Congress.
(d) Persons convicted of crimes involving moral turpitude;
(e) Persons suffering from mental alienation or incurable contagious
diseases; THE FAMILY CODE OF THE PHILIPPINES
(f) Persons who, during the period of their residence in the Philippines
have not mingled socially with the Filipinos or who have not

Art 1-34 MARRIAGE 29 Art 1-34 MARRIAGE 30
Requisites of Marriage Requisites of Marriage
I, CORAZON C. AQUINO, President of the Philippines, by virtue of the husband and the wife become one single moral, spiritual and social
the powers vested in me by the Constitution, do hereby order and being, not only for the purpose of procreation, but also for the purpose
promulgate the Family Code of the Philippines, as follows: of mutual help and protection physically, morally, and materially. (See
Q. When did the Family Code take effect? Saclolo v. CAR, 106 Phil. 1038)
A. The Family Code took effect on August 3, 1988. Marriage – a fundamental human right
TITLE I Q. Describe Marriage as a right recognized by law.

MARRIAGE
A. Marriage is “one of the basic civil rights of man,” fundamental to the
Chapter 1 State’s existence and survival. (Skinner v. State of Oklahoma, 316 US
Requisites of Marriage 535) It is a fundamental human right recognized and protected by
international law, by our Constitution, and by statutory law.
Art. 1. Marriage is a special contract of permanent union In international law, Article 16 of the Universal Declaration of Human
between a man and a woman entered into in accordance Rights specifically provides that “men and women of full age, without
with law for the establishment of conjugal and family any limitation due to race, nationality or religion, have the right to
life. It is the foundation of the family and an inviolable marry and to found a family.” Two other treaties to which the
social institution whose nature, consequences, and Philippines is a signatory, such as the International Covenant on Civil
incidents are governed by law and not subject to and Political Rights (ICCPR), the International Covenant on
stipulation, except that marriage settlements may fix the Economic, Social and Cultural Rights (ICESCR), also protect the right
property relations during the marriage within the limits to marry.
provided by this Code. (52a)
Under the 1987 Constitution of the Republic of the Philippines, the
Marriage – definition and nature State “recognizes the sanctity of family life and shall protect and
strengthen the family as a basic social institution (Article II, Section
Q. Define Marriage. What are its basic elements? 15, 1987 Constituition of the Republic of the Philippines).” Marriage is
“an inviolable social institution, the foundation of the family and shall
A. Article 1 of the Family Code defines marriage and provides for its basic be protected by the State (Article 15, Section 2, supra).” Marriage is
elements: within the ambit of the constitutional right of association (Article III,
(1) A special contract of permanent union between man and woman; Section 8, supra) and the right to privacy.
(2) Entered into in accordance with law; and
(3) For the purpose of establishing conjugal and family life. State Interest in Marriage
Q. Describe the nature of Marriage. Q. Since marriage is so vested with public interest, provide certain
statutes that prohibit acts contrary to the spirit of marriage.
A. Being a “special contract of permanent union,” a man and a woman
enter a joint life acting, living, and working as one … upon marriage, A. Just to list a few:

(2) That the religious marriage ceremony which the parties agreed to
1. The Revised Penal Code punishes any person who contracts hold after their civil marriage never took place. (See Anonymous v.
marriage knowing that the requirements of the law were not Anonymous, 49 NYSd 314)
met, or that a legal impediment to marriage exists;
2. Republic Act No. 6955 punishes any person who carries on a This is because these reasons were not among those provided in the
Mail-Order Bride Business; marriage laws of their respective States (See Bove v. Pinciotti, supra).
3. Republic Act No. 9208 punishes any person who would offer or More importantly however, the status created by marriage is “too
contract marriage for the purpose of prostitution, pornography, much a matter of public concern to allow the parties to tinker with it
sexual exploitation, forced labor or slavery, involuntary according to their own notions of what is expedient and proper. (See
servitude or debt bondage. Anonymous v. Anonymous, supra)
Q. As marriage is a contract, are the contracting parties free to dictate its Q. How many parties are there to a marriage?
terms?
A. Three – two willing spouses and an approving State. (Manuel v.
A. Generally, n,o. Marriage is considered the foundation of the family, People, 476 SCRA 461)
and an inviolable social institution whose nature, consequences and
incidents are governed by law and not subject to stipulation. (Article 1, Q. Is divorce allowed in the Philippines?
Family Code)
A. No. However, the constitutional reverence for marriage and the family
Except: Marriage settlements may fix the property relations during does not mean that the Legislature may not enact a law allowing it.
the marriage within the limits provided by the Family Code. (Article 1,
Family Code) Effect of Company Policies on Employees contracting Marriage
Q. Describe Marriage as a status. Q. MNO corporation’s employment policy disqualifies from work any
female employee who contracts marriage. Valid?
A. Marriage is not at most a civil contract, but is at least a civil contract,
with status and the interest of the State added to it. (Bove v. Pinciotti, A. No. Such a vile policy is discriminatory and “strikes at the very
46 Pa. D. & C. [C.P. 1942]) While other contracts may be modified or essence, ideals and purpose of marriage as an inviolable social
fixed upon the consent of the parties, once a man and a woman enter institution and ultimately, of the family as the foundation of the
into marriage, the law steps in and holds both of them to various nation. (Philippine Telegraph and Telephone Company v. NLRC, 272
obligations and liabilities. (Maynard v. Hill, 125 US 190) SCRA 596)
For example, a marriage cannot be annulled for the following reasons: Q. QRS corporation’s policy provides that in case two of its employees
should marry, one of them should resign. This is because of the
(1) That the petitioner never really intended to marry the respondent, corporation’s apprehension that the employees will become less
but only to name the child in her womb (who, however, was never efficient in the performance of their work. Valid?
born). (See Bove v. Pinciotti, supra); or

A. No. There is no LEGITIMATE BUSINESS CONCERN shown in Property Relations

imposing the questioned policy. (See Star Paper Corporation v. Simbol,
487 SCRA 228). Q. Article 1 of the Family Code provides that the contracting parties to a
marriage may fix the property relations in a marriage settlement. Up
Q. Suppose A, employed at XYZ corporation, marries B, an employee of to what extent can the parties dictate its terms?
DEF corporation. XYZ and DEF are competitors in the same industry.
XYZ corporation’s company policy requires A to inform the corporation A. The terms of the settlement should not contravene the provisions of
of his marriage to B, and if the corporation determines that the the Family Code. For example, the parties cannot provide that the
marriage may pose a possible conflict of interest, A should resign. agreed property regime will take effect at a time other than the
Valid? celebration of marriage.
A. Yes. Where XYZ corporation’s policy is based on the possibility that a Law Governing Validity of Marriage
competitor company (DEF) will gain access to its trade and business
secrets, the policy is reasonable. It involves a LEGITIMATE Q. What law determines the validity of a marriage?
BUSINESS CONCERN and does not violate the equal protection
clause of the constitution. (See Duncan v. Glaxo, 438 SCRA 343) A. The law in force at the time the marriage is contracted.
Marriage and the Right to Privacy Q. A and B, siblings, were married in 2015. Assuming the Family Code is
still in effect at that time, their marriage is considered void for being
Q. A is married to B. Now, A suspected B of having an extra-marital an incestuous marriage. However, in 2020, Congress passes a law
affair with C. As such A, without informing B, ransacked the latter’s allowing incestuous marriages. Is A and B’s marriage now valid
office and took documents that proved the affair. With these because of the subsequent law?
documents, she filed a case for legal separation against B. Are the
documents admissible to prove the extra-marital affair? A. Generally, no. A marriage void in toto at the time it was celebrated
cannot be validated by a subsequent statute. The exception is if the
A. No. While the marriage between A and B creates a permanent union subsequent statute expressly validates certain marriages formerly
between them, B did not set aside his dignity and privacy as an considered invalid. (See 52 Am. Jur. 2d 955-956)
individual. The documents A acquired violated B’s right to privacy,
and are thus, inadmissible (See Zulueta v. CA, 253 SCRA 699). Art. 2. No marriage shall be valid, unless these essential
requisites are present:
Q. A is married to B. A was prosecuted for murder. The prosecution now
wants to present B as a witness against A. Can they do so? (1) Legal capacity of the contracting parties who
must be a male and a female; and
A. Generally, no. B cannot testify against A without the latter’s consent,
(2) Consent freely given in the presence of the
while the marriage subsists. This is because the law “ensures absolute
solemnizing officer. (53a)
freedom of communication between spouses by making it privileged.”
(Zulueta v. CA, supra). Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer; to the marriage to write the name of said party, which
fact shall be attested by the solemnizing officer. (55a)
(2) A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and Q. Does the law allow for same sex marriages?
(3) A marriage ceremony which takes place with the A. No. The contracting parties must be of the opposite sex – a man and a
appearance of the contracting parties before the woman.
solemnizing officer and their personal declaration
that they take each other as husband and wife in Q. A, born a male, successfully has a sex change operation. Physically, A
the presence of not less than two witnesses of legal is now a woman. Can she validly marry a man?
age. (53a, 55a)
A. No. In determining the sex of a person who contracts marriage, the
Art. 4. The absence of any of the essential or formal law looks to the sex of the person at the time of his birth. A successful
requisites shall render the marriage void ab initio, sex-reassignment surgery is of no consequence. (See Silverio v.
except as stated in Article 35 (2). Republic, 537 SCRA 373)
A defect in any of the essential requisites shall not affect Q. A suffers from Congenital Adrenal Hyperplasia (CAH), a condition
the validity of the marriage but the party or parties where A has both male and female characteristics. Although A may
responsible for the irregularity shall be civilly, criminally genetically be a female, A actually secretes male hormones, has no
and administratively liable. (n) female genitalia and truly feels like a male person. In short, A is
considered an “intersex” individual. Can A validly marry a woman?
Art. 5. Any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in A. Yes, provided that at the age of majority, he makes the choice to live
Articles 37 and 38, may contract marriage. (54a) and be treated under the law as a man. (See Republic v. Cagandahan,
565 SCRA 72)
Art. 6. No prescribed form or religious rite for the
solemnization of the marriage is required. It shall be Q. What is the effect of the total absence of consent to a marriage?
necessary, however, for the contracting parties to appear
personally before the solemnizing officer and declare in A. The total absence of consent makes the marriage void ab initio.
the presence of not less than two witnesses of legal age
that they take each other as husband and wife. This Q. What is the effect of a defect in consent?
declaration shall be contained in the marriage certificate
which shall be signed by the contracting parties and A. Defect in consent makes the marriage valid, until annulled, hence, a
their witnesses and attested by the solemnizing officer. voidable one.
In case of a marriage in articulo mortis, when the party Q. The law requires a particular form of consent to be given by the
at the point of death is unable to sign the marriage contracting parties. True?
certificate, it shall be sufficient for one of the witnesses

A. False. Consent need not be expressed in any special manner or 2) Marriage between two contracting parties living in places where
particular form. (See Teter v. Teter, 101 Ind. 129) All that is needed is there are no means of transportation to enable them to appear
a manifestation that the contracting parties take each other as personally before the local civil registrar.
husband and wife. 3) Marriages among Muslims and other ethnic cultural minorities
performed in accordance with their practices.
Q. Does the law allow for proxy marriages? 4) Marriages of couples without any impediment to marry and living
together as husband and wife for at least five years.
A. No. The contracting parties must personally appear before the 5) Marriage solemnized by a person without authority to solemnize a
solemnizing officer and make their personal manifestation of consent marriage provided that either one of the parties believed in good
to the marriage. Of course, the law requires that the solemnizing faith that such solemnizer had the proper authority.
officer have authority to solemnize the marriage.
Q. Must the declaration of consent be vocally expressed?
Q. What happens when one of the witnesses to a marriage is not of legal
age? A. No. It may be shown by other manifestations or signs of approval and
consent. It is the agreement itself, and not the form in which it is
A. There are two views: couched, which constitutes the contract.
(1) The absence of a formal requisite makes the marriage void; and
(2) This is a mere irregularity as what is important is the agreement Q. What are some of the irregularities which do not affect the validity of a
itself of the contracting parties in the presence of the solemnizing marriage?
officer which constitutes the contract, hence the marriage is valid.
The latter is the better view. (See Perido v. Perido, 63 SCRA 97) A. These irregularities are:
(1) Absence of two witnesses of legal age during the marriage
Q. Are common law marriages recognized in the Philippines? ceremony. (Meister v. Moore, 96 US 76, 24 US L. Ed. 826)
(2) Absence of a marriage certificate. (People v. Janssen, 54 Phil.
A. They have never been and are still not recognized in our jurisdiction. 176)
(3) Marriage solemnized in a place other than publicly in the
Q. Is marriage by way of jest valid? chambers of the judge or in open court, in church, chapel, or
temple, or in the office of the consul-general, consul, or vice-
A. No. There is no genuine consent on the part of both contracting consul.
parties. (4) Issuance of marriage license in city or municipality, which is not
the residence of either of the contracting parties. (Alcantara v.
Q. Generally, absence of any of the essential or formal requirements of a Alcantara, G.R. No. 167746, August 28, 2007, 531 SCRA 446)
marriage renders such marriage null and void. What are the (5) Unsworn application for a marriage license.
exceptions? (6) Failure of the contracting parties to present original birth
certificate or baptismal certificate to the local civil registrar, who
A. The exceptions are: likewise failed to ask for the same.
1) Marriages in articulo mortis. (7) Failure of the contracting parties between the ages of eighteen
and twenty-one to exhibit consent of parents or persons having

legal charge of them to the local civil registrar. Q. What is the significance of January 1, 1992?
(8) Failure of the contracting parties between the ages of twenty-one
to twenty-five to exhibit advice of parents to local civil registrar. A. It was on this date that, with the advent of the Local Government
(9) Failure to undergo marriage counseling. Code, Mayors are now allowed to solemnize marriages.
(10) Failure of the local civil registrar to post the required notices.
(11) Issuance of marriage license despite absence of publication or Q. What is the presumption as regards to the authority of the
prior to the completion of the 10-day period for publication. solemnizing officer?
(Alcantara v. Alcantara, G.R. No. 167746, August 28, 2007, 531
SCRA 446) A. In the absence of a showing to the contrary, the authority of the
(12) Failure of the contracting parties to pay the prescribed fees for solemnizing officer is presumed. (Goshen v. Stonington, 4 Conn. 209,
the marriage license. 10 Am. Dec. 121)
(13) Failure of the person solemnizing the marriage to send copies of
the marriage certificate to the local civil registrar. (Madridejos v. Q. Must the solemnizing officer investigate whether or not the marriage
De Leon, 55 Phil. 1) license is duly issued?
(14) Failure of the local civil registrar to enter the applications for
marriage licenses filed with him in the registry book in the order A. No. All the solemnizing officer needs to know is that the license has
in which they were received. been issued by the competent official, and it may be presumed from
the issuance of the license that said official has fulfilled the duty to
Art. 7. Marriage may be solemnized by: ascertain whether the contracting parties had fulfilled the
1) Any incumbent member of the judiciary within the requirements of law. (People v. Janssen, 54 Phil. 176)
court’s jurisdiction;
2) Any priest, rabbi. imam, or minister of any church Q. In cases wherein the contracting parties are legally excused from
or religious sect duly authorized by his church or obtaining a marriage license because one of them is at the point of
religious sect and registered with the civil registrar death or there is no means of transportation to go to the local civil
general, acting within the limits of the written registrar as their places of residence are far, does the same rule hold
authority granted him by his church or religious true?
sect and provided that at least one of the
contracting parties belongs to the solemnizing A. No. In such cases, the solemnizing officer must undertake the
officer’s church or religious sect; necessary steps to ascertain the ages and relationship of the
3) Any ship captain or airplane chief only in the cases contracting parties and the absence of any legal impediment to marry.
mentioned in Article 31;
4) Any military commander of a unit to which a Q. May judges solemnize marriages outside of their jurisdiction?
chaplain is assigned, in the absence of the latter,
during a military operation, likewise only in the A. No. Incumbent judges can only solemnize within their jurisdiction. If
cases mentioned in Article 32; or they go outside their jurisdiction, the marriage is void as the
5) Any consul-general, consul or vice-consul in the solemnizing officer has no authority, which is a formal requisite. This
case provided in Article 10. (56a) is without prejudice to the defense that either of the parties believed in

good faith that such solemnizing officer has authority to conduct such A. The requisites are:
marriage. (a) the contracting parties must both be Filipino citizens, otherwise the
marriage is void; the exception is if the marriage is recognized as
Q. What are the requisites for a priest, rabbi, imam, or minister of any valid in the host country, and as such valid here pursuant to Article
church or religious sect to be able to validly solemnize a marriage? 26 of the Family Code; and
(b) the solemnities established by Philippine laws must be observed.
A. Such priest, rabbi, imam, or minister must:
(1) be duly authorized y his or her church or religious sect; Art. 8. The marriage shall be solemnized publicly in the
(2) act within the limits of the written authority granted to him or her chambers of he judge or in open court, in the church,
by the church or religious sect; chapel or temple, or in the office of the consul-general,
(3) be registered with the civil registrar general; and consul or vice-consul, as the case may be, and not
(4) at least one of the contracting parties whose marriage he or she is elsewhere, except in the cases of marriages contracted at
to solemnize belongs to his or her church or religious sect. the point of death or in remote places in accordance with
Article 29 of this Code, or where both of the parties
Q. What are the requisites for a ship captain or airplane chief to be able request the solemnizing officer in writing in which case
to validly solemnize a marriage? the marriage may be solemnized at a house or place
designated by them in a sworn statement to that effect.
A. The marriage must: (57a)
(1) be in articulo mortis;
(2) be between passengers or crew members; and Q. What are the minimum requirements of a marriage ceremony?
(3) generally, the ship must be at sea or the plane must be in flight; it
may nevertheless be solemnized during stopovers at ports of call. A. The contracting parties must appear personally before the solemnizing
officer and declare that they take each other as husband and wife in
Q. What are the requisites for a military commander to validly solemnize the presence of at least two witnesses of legal age.
a marriage?
Q. Will the non-observance of Article 8 still produce a valid marriage?
A. The requisites are:
(1) he or she must be a military commander of a unit; A. Yes. This article is directory in nature
(2) he or she must be a commissioned officer;
(3) there must be a chaplain assigned to such unit; Q. What are the exceptions to the rule on venue in marriage?
(4) the said chaplain must be absent at the time of the marriage;
(5) the marriage must be one in articulo mortis; and A. The exceptions are:
(6) the contracting parties, whether members of the armed forces or (1) marriages contracted in articulo mortis;
civilians, must be within the zone of military operation. (2) marriages contracted in a remote place in accordance with Article
29; and
Q. What are the requisites for a consul-general, consul, or vice consul to (3) marriages where both parties request a solemnizing officer in
validly solemnize a marriage? writing in which case the marriage may be solemnized at a house or
place designated by them in a sworn statement to that effect.

Art. 9. A marriage license shall be issued by the local civil Art. 11. Where a marriage license is required, each of the
registrar of the city or municipality where wither contracting parties shall file separately a sworn
contracting party habitually resides, except in marriages application for such license with the proper local civil
where no license is required in accordance with Chapter registrar which shall specify the following:
2 of this Title. (58a)
(1)Full name of the contracting party;
Q. Where should the marriage license be issued? (2)Place of birth;
(3)Age and date of birth;
A. By the local civil registrar of the place where the marriage application (4)Civil status;
was filed. If performed by a consul-general, consul, or vice-consul, the (5)If previously married, how, when and where the
marriage license shall be issued in the respective consulate. previous marriage was dissolved or annulled;
(6)Present residence and citizenship;
Q. What if the marriage license is issued in a place where the contracting (7)Degree of relationship of the contracting parties;
parties do not reside? (8)Full name, residence and citizenship of the father;
(9)Full name, residence and citizenship of the mother;
A. This is considered as a mere irregularity which will not render a and
marriage null and void or even annullable. (People v. Janssen, supra) (10) Full name, residence and citizenship of the
guardian or person having charge, in case the
Q. What is the lifetime of a marriage license? contracting party has neither father nor mother
and is under the age of twenty-one years.
A. 120 days from the date of the signing of the marriage license by the
local civil registrar. After 120 days, it automatically expires. The applicants, their parents or guardians shall not be
required to exhibit their residence certificates in any
Q. Does the fact that a party to whom the license is issued is represented formality in connection with the securing of the
by a name other than his true name or had his name spelled marriage license. (59a)
incorrectly affect the validity of such marriage?
Q. If the local civil registrar has knowledge of some legal impediment, can
A. No. This will not invalidate the marriage solemnized on the authority said registrar discontinue processing the application for marriage?
of such license.
A. No. He or she must only note down the legal impediments in the
Art. 10. Marriages between Filipino citizens abroad may application and thereafter issue the marriage license, unless otherwise
be solemnized by a consul-general, consul or vice-consul stopped by the court. Once signed and sworn to by the parties, the
of the Republic of the Philippines. The issuance of a registrar has no choice but to accept the application and process the
marriage license and the duties of the local civil registrar same up to the time of the issuance of the marriage license.
and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said Art. 12. The local civil registrar, upon receiving such
consular official. (75a) application, shall require the presentation of the original

birth certificates or, in default thereof, the baptismal

certificates of the contracting parties or copies of such Art. 13. In case either of the contracting parties has been
documents duly attested by the persons having custody previously married, the applicant shall be required to
of the originals. These certificates or certified copies of furnish, instead of the birth or baptismal certificate
the documents by this Article need not be sworn to and required in the last preceding article, the death
shall be exempt from the documentary stamp tax. The certificate of the deceased spouse or the judicial decree
signature and official title of the person issuing the of the absolute divorce, or the judicial decree of
certificate shall be sufficient proof of its authenticity. annulment or declaration of nullity of his or her previous
marriage.
If either of the contracting parties is unable to produce
his birth or baptismal certificate or a certified copy of In case the death certificate cannot be secured, the party
either because of the destruction or loss of the original or shall make an affidavit setting forth this circumstance
if it is shown by an affidavit of such party or of any other and his or her actual civil status and the name and date
person that such birth or baptismal certificate has not of death of the deceased spouse. (61a)
yet been received though the same has been required of
the person having custody thereof at least fifteen days Art. 14. In case either or both of the contracting parties,
prior to the date of the application, such party may not having been emancipated by a previous marriage,
furnish in lieu thereof his current residence certificate or are between the ages of eighteen and twenty-one, they
an instrument drawn up and sworn to before the local shall, in addition to the requirements of the preceding
civil registrar concerned or any public official articles, exhibit to the local civil registrar, the consent to
authorized to administer oaths. Such instrument shall their marriage of their father, mother, surviving parent
contain the sworn declaration of two witnesses of lawful or guardian, or persons having legal charge of them, in
age, setting forth the full name, residence and citizenship the order mentioned. Such consent shall be manifested in
of such contracting party and of his or her parents, if writing by the interested party, who personally appears
known, and the place and date of birth of such party. The before the proper local civil registrar, or in the form of
nearest of kin of the contracting parties shall be an affidavit made in the presence of two witnesses and
preferred as witnesses, or, in their default, persons of attested before any official authorized by law to
good reputation in the province or the locality. administer oaths. The personal manifestation shall be
recorded in both applications for marriage license, and
The presentation of birth or baptismal certificate shall the affidavit, if one is executed instead, shall be attached
not be required if the parents of the contracting parties to said applications. (61a)
appear personally before the local civil registrar
concerned and swear to the correctness of the lawful age Q. Is there still emancipation by marriage?
of said parties, as stated in the application, or when the
local civil registrar shall, by merely looking at the A. No. Emancipation is reached if the child attains the age of 18 years.
applicants upon their personally appearing before him,
be convinced that either or both of them have the Q. In what instance is parental consent required in order to obtain a
required age. (60a) marriage license?

been sought, together with the written advice given, if

A. Parental consent is required when either or both of the contracting any, shall be attached to the application for marriage
parties are between the ages of 18 and 21 years old. (Article 14, Family license. Should the parents or guardian refuse to give
Code) any advice, this fact shall be stated in the sworn
statement. (62a)
Q. Who may give parental consent to obtain a marriage license?
Art. 16. In the cases where parental consent or parental
A. Parental consent may be given by the father, mother, surviving advice is needed, the party or parties concerned shall, in
parent, guardian, or persons having legal charge of the contracting addition to the requirements of the preceding articles,
party, in the order mentioned. This means that preference is given to attach a certificate issued by a priest, imam or minister
the father, and in the latter’s default, it shall be the mother, and so on. authorized to solemnize marriage under Article 7 of this
(Article 14, Family Code) Code or a marriage counselor duly accredited by the
proper government agency to the effect that the
Q. What is the effect on the marriage if there is no parental consent given contracting parties have undergone marriage
to a contracting party in applying for a marriage license? counseling. Failure to attach said certificates of marriage
counseling shall suspend the issuance of the marriage
A. Under Article 45(1) of the Family Code, the absence of parental license for a period of three months from the completion
consent makes the marriage annullable. Therefore the marriage is of the publication of the application. Issuance of the
considered valid until terminated. marriage license within the prohibited period shall
subject the issuing officer to administrative sanctions
The lack of parental consent may also subject those who have but shall not affect the validity of the marriage.
neglected to acquire it to penalties of the law. (Cushman v. Cushman,
80 Was. 615) Should only one of the contracting parties need parental
consent or parental advice, the other party must be
Q. In what instance will the marriage be considered void despite the present at the counseling referred to in the preceding
presence of parental consent? paragraph. (n)
A. The marriage will be void despite the presence of parental consent if Q. When is parental advice required in order to obtain a marriage
any of the contracting parties is below 18 years old. license?
Art. 15. Any contracting party between the age of twenty- A. Parental advice is required if either or both contracting parties are
one and twenty-five shall be obliged to ask their parents between the ages of 21 and 25 years old. (Article 15, Family Code)
or guardian for advice upon the intended marriage. If
they do not obtain such advice, or if it be unfavorable, Q. Who may give parental advice to obtain a marriage license?
the marriage license shall not be issued till after three
months following the completion of the publication of the A. According to Article 15 of the Family Code, the parents or guardian
application therefor. A sworn statement by the may give advice upon the intended marriage.
contracting parties to the effect that such advice has

Q. What is the effect on the marriage if there is no parental advice given

to a contracting party in applying for a marriage license? A. The failure to submit a certificate of marriage counseling does not
affect the validity of the marriage. Similar to the requirement of a
A. The absence of parental advice, or should it be unfavorable, does not parental advice, it only serves to delay the issuance of the marriage
affect the validity of the marriage. It only serves to delay the issuance license for a period of three months from the completion of the
of the marriage license until after three months following the publication of the application for marriage license.
completion of the publication of the application for marriage license.
(Article 15, Family Code) If a marriage license is issued within this three-month period despite
the absence of a certificate of marriage counseling, the issuing officer
Q. What is the purpose or policy behind the requirement of parental may be subject to administrative sanctions. (Article 16, Family Code)
advice?
Art. 17. The local civil registrar shall prepare a notice
A. The requirement of a parental advice for those 21 to 25 years of age is which shall contain the full names and residences of the
“in keeping with Philippine tradition.” It is a means “to induce further applicants for a marriage license and other data given in
and more mature deliberation over the decision to get married.” the applications. The notice shall be posted for ten
(Minutes of the 185th Meeting of the Civil Code and Family Law consecutive days on a bulletin board outside the office of
committees, Jun. 27, 1987, page 6) the local civil registrar located in a conspicuous place
within the building and accessible to the general public.
Q. In cases where parental consent or parental advice is needed, what This notice shall request all persons having knowledge of
other requirement must be submitted to the local civil registrar in any impediment to the marriage to advise the local civil
order to obtain a marriage license? registrar thereof. The marriage license shall be issued
after the completion of the period of publication. (63a)
A. A certificate attesting to the fact that the contracting parties have
undergone marriage counseling shall be submitted in addition to the Q. When does the marriage license issue?
requirement of parental consent or parental advice.
A. The marriage license is issued after the completion of the period of
Such certificate can be issued either by: publication of the notice, except when parental advice has not been
(1) a priest, imam or minister authorized to solemnize marriages under given or is unfavorable, or when the certificate of marriage counseling
Article 7 of the Family Code; or has not been submitted.
(2) a marriage counselor duly accredited by the proper government
agency. The notice is issued by the local civil registrar and contains the full
names and residences of the contracting parties, as well as other data
If only one of the contracting parties needs parental consent or provided in the application. The notice is effectively a request to all
parental advice, the other contracting party must be present at the persons having knowledge of any impediment to the marriage, to
marriage counseling. (Article 16, Family Code) advise the local civil registrar thereof.
Q. What is the effect on the marriage if the contracting parties fail to

submit a certificate of marriage counseling?

The notice is posted for 10 consecutive days on a bulletin board outside for their subsistence a fact established by their affidavit,
the office of the local civil registrar, in a conspicuous place within the or by their oath before the local civil registrar. (65a)
building, and accessible to the general public.
Art. 20. The license shall be valid in any part of the
Q. What is the period of validity of a marriage license? Philippines for a period of one hundred twenty days
from the date of issue, and shall be deemed automatically
A. A marriage license is valid for 120 days from the date of its issue. It is canceled at the expiration of the said period if the
valid only within the Philippines. contracting parties have not made use of it. The expiry
date shall be stamped in bold characters on the face of
If the marriage license is not used within the 120 days, then it is every license issued. (65a)
deemed automatically cancelled. (Article 20, Family Code)
Q. What is the scope of the investigative power of the local civil registrar?
Q. What is deemed to be the date of issue of the marriage license?
A. The investigative power of the local civil registrar is limited to noting
A. The marriage license is deemed issued on the date of signing of the down impediments to a marriage that is known to him or brought to
marriage license by the local civil registrar. Therefore the period of his attention, and his findings thereon, in the application for marriage
validity of a marriage license shall be counted from this date of license. (Article 18, Family Code)
signing.
Q. Can the local civil registrar withhold the issuance of a marriage
Art. 18. In case of any impediment known to the local license?
civil registrar or brought to his attention, he shall note
down the particulars thereof and his findings thereon in A. The local civil registrar is not authorized to withhold the issuance of
the application for marriage license, but shall the marriage license. Even if an impediment to the marriage is known
nonetheless issue said license after the completion of the by or made known to the local civil registrar, he is duty bound to issue
period of publication, unless ordered otherwise by a the marriage license upon payment of the necessary fees, with the
competent court at his own instance or that of any exception of indigent applicants.
interest party. No filing fee shall be charged for the
petition nor a corresponding bond required for the Q. In what instance may the local civil registrar withhold issuance of a
issuances of the order. (64a) marriage license?
Art. 19. The local civil registrar shall require the payment A. The local civil registrar may withhold issuance of a marriage license
of the fees prescribed by law or regulations before the upon order by a competent court initiated by the local civil registrar or
issuance of the marriage license. No other sum shall be that of any interested party. (Article 18, Family Code)
collected in the nature of a fee or tax of any kind for the
issuance of said license. It shall, however, be issued free “Interested party” includes the contracting parties’ parents, brothers,
of charge to indigent parties, that is those who have no sisters, existing spouse, or those which may be prejudiced by the
visible means of income or whose income is insufficient marriage.

The petition filed in court to prevent the issuance of the marriage For an indigent party to be excluded from payment of marriage license
license (i.e. injunction) shall require no filing fee, nor shall a fees, he must establish the fact of his indigence via affidavit, or by oath
corresponding bond be required for the issuance of the court order. before the local civil registrar. (Article 19, Family Code)
(Article 18, Family Code)
Art. 21. When either or both of the contracting parties are
The local civil registrar may also withhold the issuance of a marriage citizens of a foreign country, it shall be necessary for
license when the contracting parties are foreigners and fail to submit a them before a marriage license can be obtained, to
certificate of legal capacity as required in Article 21 of the Family submit a certificate of legal capacity to contract
Code. In such a case, the foreigners must intend to have their marriage, issued by their respective diplomatic or
marriage solemnized by persons listed in Article 7 of the Family Code consular officials.
or the mayor pursuant to the Local Government Code.
Stateless persons or refugees from other countries shall,
Q. What is the effect on the marriage if a marriage license is issued in lieu of the certificate of legal capacity herein required,
despite an injunction on it issued by a competent court? submit an affidavit stating the circumstances showing
such capacity to contract marriage. (66a)
A. The issuance of the marriage license despite the injunction from the
court is only an irregularity in the formal requisites of a valid Q. When a foreigner wishes to marry in the Philippines, what must he or
marriage license. Therefore it does not affect the validity of the she submit to the local civil registrar to obtain a marriage license?
marriage. However, the party or parties responsible for such
irregularity may be held civilly, criminally, or administratively liable. A. A foreigner must submit a certificate of legal capacity to contract
marriage issued by his/her diplomatic or consular officials. If the
Q. What is the policy behind the ministerial duty of the local civil foreigner is a stateless person or a refugee from another country, then
registrar to issue marriage licenses, except upon order by a competent he/she must submit an affidavit stating the circumstances showing
court? his/her capacity to contract marriage. The affidavit shall be submitted
in lieu of the certificate of legal capacity issued by diplomatic or
A. It is to “eliminate any opportunity for extortion.” (Minutes of the 145th consular officials. (Article 21, Family Code)
Joint Meeting of the Civil Code and Family Law committees, Jun. 28,
1986, page 10) Q. Can the local civil registrar withhold the issuance of a marriage license
to a foreigner who has not complied with the provisions of Article 21 of
Q. Who are exempted from the payment of marriage license fees? the Family Code?
A. Indigent parties are exempted from payment of any fees relating to the A. Yes. This is one of the exceptions to the rule that the local civil
issuance of a marriage license. Indigent parties are those who: (1) have registrar must issue a marriage license even if he finds an impediment
no visible means of income; or (2) whose income is insufficient for their to the impending marriage. The other exception is when there is an
subsistence. order from a competent court prohibiting the local civil registrar from
doing the same.

Nonetheless, issuance of the marriage license despite non-compliance marriage was solemnized. Proper receipts shall be issued
with Article 21 is a mere irregularity in a formal requirement of the by the local civil registrar to the solemnizing officer
law. The resulting marriage will still be valid. transmitting copies of the marriage certificate. The
solemnizing officer shall retain in his file the
Q. In what instance can a foreigner marry in the Philippines without quadruplicate copy of the marriage certificate, the copy
obtaining a marriage license with the local civil registrar? of the marriage certificate, the original of the marriage
license and, in proper cases, the affidavit of the
A. No marriage license is required if the contracting parties are contracting party regarding the solemnization of the
foreigners who desire to have their marriage solemnized by their marriage in place other than those mentioned in Article
country’s consul-general officially assigned in the Philippines, and 8. (68a)
provided that their country’s laws allow the same.
Q. State the rule on presumption of marriage.
Art. 22. The marriage certificate, in which the parties
shall declare that they take each other as husband and A. That a man and a woman deporting themselves as husband and wife
wife, shall also state: have entered into a lawful contract of marriage is a presumption
which is considered satisfactory if uncontradicted, but may be
(1)The full name, sex and age of each contracting contracted and overcome by evidence. (Rule 131, Section 5[aa], New
party; Rules of Court of the Philippines).
(2)Their citizenship, religion and habitual residence;
(3)The date and precise time of the celebration of the Semper presumitur pro matrimonio – always presume marriage
marriage; means that public policy should aid acts that are intended to validate
(4)That the proper marriage license has been issued marriages and to retard acts that are intended to invalidate
according to law, except in marriage provided for in marriages. This is necessary for the order of society. (Adong v. Cheong
Chapter 2 of this Title; Seng Gee, 43 Phil. 43).
(5)That either or both of the contracting parties have
secured the parental consent in appropriate cases; Q. What is the best evidence of a marriage?
(6)That either or both of the contracting parties have
complied with the legal requirement regarding A. The best evidence of a marriage is the marriage contract or the
parental advice in appropriate cases; and marriage certificate. (Lim Tanhu v. Ramolete, 66 SCRA 425)
(7)That the parties have entered into marriage
settlement, if any, attaching a copy thereof. (67a) It must be the original for a mere photocopy is “a worthless piece of
paper.” (Vda. de Chua v. Court of Appeals, G.R. No. 116835, Mar. 5,
Art. 23. It shall be the duty of the person solemnizing the 1998) The exception is when the photocopy of the marriage certificate
marriage to furnish either of the contracting parties the is issued by the Office of the Local Civil Registrar and duly certified by
original of the marriage certificate referred to in Article it as an authentic copy of the records in his office. Such photocopy is
6 and to send the duplicate and triplicate copies of the admissible as evidence.
certificate not later than fifteen days after the marriage,
to the local civil registrar of the place where the

But when the photocopy of the marriage certificate is not certified by

the Office of the Local Civil Registrar, but is presented in court A. The evidence assailing the validity of the marriage must be strong,
without objection from the opposing party and consequently admitted distinct, and satisfactory in order to overcome the presumption of
by the court, then it serves as proof of marriage or the facts contained legality of marriage. (Murchison v. Green, 128 Ga. 339, 11 LRA [NS]
therein. (Sy v. Court of Appeals, G.R. No. 127263, Apr. 12, 2000) 702).
Q. What other evidence is deemed sufficient to prove marriage? Thus mere statement of a civil status of a person in a certificate of title
is not sufficient to assail the validity of a marriage. (Perido v. Perido,
A. Baptismal certificates, birth certificates, judicial decisions, and family 63 SCRA 97). So is a marriage license obtained in a place other than
bible in which the names of the spouses have been entered as married the place of residence of any of the contracting parties, since it is
can serve as evidences of marriage. (Trinidad v. Court of Appeals, 289 merely an irregularity that does not invalidate the marriage. (People v.
SCRA 188; Orfila v. Arellano, 482 SCRA 280). Janssen, 54 Phil. 176) Certification issued by the local civil registrar
that no marriage license was issued to the parties, but with an
Q. Does the absence of a marriage certificate prove that there was in fact admission that due to the work load of the office, it cannot give full
no marriage? force in locating the said marriage license, does not amount to a nullity
of the marriage. (Sevilla v. Cardenas, 497 SCRA 428)
A. No. In Delgado Vda. De La Rosa v. Heirs of Mariciana Rustia Vda. de
Damian (G.R. No. 155733, Jan. 27, 2006), the Court stated that Q. What remedy is available to persons that are not certain as to whether
although a marriage contract is the primary evidence of marriage, its or not they are legally allowed to marry?
absence does not always prove that no marriage took place. This is
because once the presumption of marriage arises, other evidence may A. The person can file a petition for declaratory relief to seek from the
be presented in support thereof. The evidence presented “need not court a judgment on his/her capacity to marry. (Republic v. Orbecido
necessarily or directly establish the marriage but must at least be III, 472 SCRA 114).
enough to strengthen the presumption of marriage.”
Q. What are the duties of the solemnizing officer with respect to the
Therefore marriage may be proved by parol evidence (Watson v. marriage certificate?
Lawrence, 134 La. 48), but both the testimony and the witness must
be credible. A. The solemnizing officer has the duty to:
(1) furnish either of the contracting parties the original of the marriage
Q. Is mere cohabitation direct proof of marriage? certificate;
(2) to send to the local civil registrar where the marriage was
A. No. To prove marriage, proper documents or oral testimony, in case solemnized the duplicate and triplicate copies of the marriage
the former has been lost, must be adduced. The conduct of the parties certificate not later than 15 days after the marriage; and
must show more than mere living together. Cohabitation must be (3) to retain in his file the quadruplicate copy of the: (a) marriage
accompanied by conduct showing that they intended to do so as certificate; (b) the original marriage license; and (c) the affidavit of
husband and wife. (Cox v. State, 117 Ala. 103) the contracting party regarding the solemnization of the marriage
in a place other than what is mentioned in Article 8 of the Family
Q. What kind of proof is required to attack the validity of a marriage? Code. (Article 23, Family Code)

where they were solemnized, and valid there as such,

Q. What is the effect of the failure of the solemnizing officer to discharge shall also be valid in this country, except those
his duties with respect to the marriage certificate as required in prohibited under Articles 35 (1), (4), (5) and (6), 3637 and
Article 23 of the Family Code? (see previous question and answer) 38. (17a)
A. Under Section 41 of the Marriage Law of 1929, the officer, priest, or Where a marriage between a Filipino citizen and a
minister who fails to deliver to either of the contracting parties one of foreigner is validly celebrated and a divorce is thereafter
the copies of the marriage contract, or to forward the other copy to the validly obtained abroad by the alien spouse capacitating
authorities within the period fixed by law, shall be punished by him or her to remarry, the Filipino spouse shall have
imprisonment of not more than one month, or by a fine of not more capacity to remarry under Philippine law. (As amended
than 300 pesos, or both, in the discretion of the court. by Executive Order 227)
Art. 24. It shall be the duty of the local civil registrar to Q. What is the general rule followed by the Philippines in determining
prepare the documents required by this Title, and to the validity of a marriage?
administer oaths to all interested parties without any
charge in both cases. The documents and affidavits filed A. The Philippines follows the lex loci celebrationis rule. The validity of a
in connection with applications for marriage licenses marriage is determined in reference to the law of the place where it is
shall be exempt from documentary stamp tax.(n) celebrated. Thus a marriage valid in the place where it is celebrated is
considered valid in the Philippines.
Art. 25. The local civil registrar concerned shall enter all
applications for marriage licenses filed with him in a Q. What is the exception to the general rule followed by the Philippines in
registry book strictly in the order in which the same are determining the validity of a marriage?
received. He shall record in said book the names of the
applicants, the date on which the marriage license was A. While the Philippines follows the general rule of lex loci celebrationis,
issued, and such other data as may be necessary. (n) and therefore recognizes as valid a marriage that is also valid under
the law of the country where it is celebrated, the exception is found in
Q. What is a marriage register? marriages prohibited under Articles 35(1), (4), (5), and (6), 36, 37, and
38. Any marriage falling under these mentioned articles remain
A. The marriage register is maintained by the local civil registrar and invalid in the Philippines, even if celebrated in a country where the
contains details of all persons married in its locality. It contains: (1) laws recognize its validity. The reason behind this exception lies in
the full names, ages, and addresses of the contracting parties; (2) the comity. Each sovereign has the right to declare what marriages it will
date and place of the solemnization of the marriage; (3) the full names or will not recognize.
and addresses of the: (a) witnesses; (b) the persons who consented to
the marriage (including their relationship with the contracting Q. Are common law marriages obtained abroad by Filipinos valid in the
parties); and (c) the person who solemnized the marriage. Philippines?
Art. 26. All marriages solemnized outside the Philippines, A. No, Philippine laws do not recognize common law marriages obtained
in accordance with the laws in force in the country abroad by Filipinos. The first paragraph of Article 26 makes use of the

term “solemnized” and not merely “contracted”. The second paragraph October 2, 2001) Divorce initiated by a Filipino is against public policy.
uses the term “celebrated”. By the use of these words, it is therefore (Cang v. Court of Appeals, 296 SCRA 128)
required that there is performance of the formal act or ceremony
joining man and woman as husband and wife for a marriage to be Q. A Filipino couple is wed here in the Philippines. Years later, they
deemed valid. obtain a divorce decree from New York. Thereafter, the woman got
married again. Is the second marriage valid?
Q. Are same sex marriages of Filipinos abroad valid in the Philippines?
A. No. As Philippine law does not recognize divorce, the wife then
A. No. Such marriages are prohibited by public policy. Also, the Family committed adultery in entering into the second marriage. (Tenchavez
Code is replete with terms and articles (e.g. husband and wife, father v. Escano, 15 SCRA 256).
and mother, man and woman) clearly indicating that the law intended
heterosexual relationships. Q. An American couple is wed in New York. Years later, they obtain a
divorce decree from New York. Thereafter, the woman got married
Q. How do you prove a foreign marriage? again. Is the second marriage valid?
A. To establish a valid marriage pursuant to the comity provision of A. Yes, provided the divorce is duly proven in court. Aliens may obtain
Article 26, it is necessary to prove the foreign law as a question of fact divorces abroad, which may be recognized in the Philippines, provided,
and then to prove the celebration of marriage pursuant thereto by they are valid according to their national law. The foreign marital law
convincing evidence. (Ching Huat v. Co Heong, 77 Phil. 988) The and the divorce decree must be duly proven and cannot be taken
presumption arises on proof of a marriage in another jurisdiction, that judicial notice of. (Garcia v. Recio, G.R. No. 138322, October 2, 2001).
such marriage was performed in accordance with the law of that Our civil law adheres to the nationality rule on the matter of status or
jurisdiction. (Patterson v. Gaines, 12 L. Ed. 553) If such law of the legal capacity of a person. (Recto v. Harden, 100 Phil. 427; Van Dorn
other state is not pleaded nor proved and for the purpose of v. Romillo, 139 SCRA 139; Pilapil v. Ibay Somera, 174 SCRA 653)
determining the validity of a marriage in the said state, the laws of
such state, in the absence of proof to the contrary, will be presumed by Q. In what instances does the second paragraph of Article 26 apply?
the court to be the same as the laws of its own state. (Wong Woo Yin v.
Vivo, 13 SCRA 552). A. The second paragraph of article 26 applies to the following:
(1) where a valid marriage is celebrated, either in the Philippines or
Q. Who has the burden of proving the fact of a foreign marriage? abroad, between a Filipino citizen and a foreigner and,
subsequently, the foreigner-spouse obtains a valid divorce abroad
A. He who asserts that the marriage is not valid under our law bears the capacitating him or her to remarry (2nd paragraph Article 26,
burden of proof to present the foreign law. (Board of Commissioners Family Code); and
(CID) v. Dela Rosa, 197 SCRA 853) (2) where originally, at the time of the marriage ceremony, both parties
were Filipinos, but at the time of the divorce, the petitioner was
Q. Is absolute divorce recognized here in the Philippines? already a citizen of a foreign country that allows absolute divorce
(Republic v. Orbecido III, G.R. No. 154380, October 5, 2005, 472
A. Generally, absolute divorce between two citizens of the Philippines is SCRA 114).
not recognized in the Philippines. (Garcia v. Recio, G.R. No. 138322,

Q. What is the effect of change of citizenship of a former Filipino as to the Q. What is the effect on a foreigner spouse if a divorce decree is
applicability of Article 26? recognized?
A. None. If the Filipino spouse subsequently acquires his or her foreign A. The foreign spouse who obtained the divorce decree loses his right to
spouse’s citizenship before the divorce and he or she initiates the claim interest in properties of the Filipino spouse. (Van Dorn v.
divorce proceeding, the eventual divorce decree will be recognized in Romillo, 139 SCRA 139). The foreigner husband also cannot file a
the Philippines not because of Article 26 but because of our adherence criminal case for adultery because, while the Filipino wife is still
to the nationality principle with respect to the status of a person. considered married to him under Philippine laws, such foreigner is not
(Quita v. Court of Appeals, 300 SCRA 406; Llorente v. Court of considered married to her and, therefore, does not have any legal
Appeals, G.R. No. 124371, November 23, 2000; Garcia v. Recio, supra). standing to file such criminal case. (Pilapil v. Ibay Somera, 174 SCRA
653)
Q. A former Filipino citizen gets a divorce abroad. He/she decides to come
home to the Philippines and reacquire his/her Philippine citizenship. Q. How is a foreign decree recognized in the Philippines?
What is the effect to the divorce decree?
A. In cases where it can be validly recognized, a foreign divorce would
A. None, the divorce decree will still be recognized here. This is because first have to be proven by presentation of a foreign divorce decree duly
at the time of the filing of the petition for divorce, and at the time of authenticated by the foreign court. Thus, in the case of Roehr v.
the issuance of the decree of divorce, he or she was not a citizen of the Rodriguez, the Supreme Court said that before our courts can give the
Philippines. His or her status, therefore, at the time of the divorce will effect of res judicata to a foreign judgment of divorce, it must be shown
be governed by the foreign country of which he or she is a naturalized that the parties opposed to the judgment had been given ample
citizen and will continue even after he or she successfully reacquires opportunity to do so on grounds allowed under Rule 39, Section 48 of
Philippine citizenship. (Recio v. Garcia, supra). the 1997 Rules of Civil Procedure.
Q. Marriage is between two Filipinos and one of them obtains an absolute Q. Upon the presentation of a duly authenticated copy, will the divorce
divorce abroad after he has been naturalized as a citizen of a foreign decree then have a conclusive effect upon Philippine courts such that it
country where absolute divorce is recognized. Such naturalized is bound to recognize it?
divorcee got a second marriage. Is the second marriage valid?
A. No. In this jurisdiction, our Rules of Court clearly provide that with
A. Yes, following the nationality principle. At the time of the divorce, he respect to actions in personam, as distinguished from actions in rem, a
was already a foreigner. (Recio v Garcia, supra). foreign judgment merely constitutes prima facie evidence of the
justness of the claim of a party and, as such, is subject to proof to the
Q. What is the effect if a Filipino obtains a divorce decree abroad from his contrary. (Rule 39, Section 48, Rules of Civil Procedure).
foreigner spouse?
Q. What is the effect of valid recognition of a divorce decree?
A. As to the foreigner spouse, the divorce decree is recognized here. As to
the Filipino spouse, however, it is not recognized. A. The marital vinculum between Rebecca and Vicente is considered
severed; they are both freed from the bond of matrimony.

Q. What is the status in the Philippines of a marriage contracted abroad

but is null and void under the laws of such foreign state? A. In case of voidable or annullable marriage (valid up to the time of
termination), the same rule as in null and void marriages applies.
A. In the event that a Filipino contracts a foreign marriage which is null
and void under the laws of the state where it has been solemnized, Article 27. In case either or both of the contracting
such marriage shall likewise be null and void in the Philippines. parties are at the point of death, the marriage may be
solemnized without necessity of a marriage license and
Q. How then do you assail here in the Philippines marriage contracted shall remain valid even if the ailing party subsequently
abroad but is null and void under the laws of such foreign state? survives. (72a)
A. A civil case can be filed in the Philippines to nullify a foreign marriage Article 28. If the residence of either party is so located
using as basis the legal grounds for nullity provided by the marriage that there is no means of transportation to enable such
laws of the state where the marriage was celebrated. party to appear personally before the local civil registrar,
the marriage may be solemnized without necessity of a
Q. What is the status in the Philippines of a marriage contracted abroad marriage license. (72a)
which is null and void under the laws of such foreign state but valid
under the laws of the Philippines? Q. In marriages celebrated in articulo mortis and exempted from the
marriage license requirement, what is the effect if the spouse who was
A. Implicit in the first paragraph of Article 26 is also the recognition that at the point of death subsequently survives?
a Filipino’s foreign marriage, which is invalid under the laws where
such marriage has been solemnized but which would have been valid A. The marriage remains valid.
had such marriage been celebrated in the Philippines, is likewise
invalid in the Philippines. Thus, if a Filipino contracts a marriage Article 29. In the cases provided for in the two preceding
solemnized in the residence of the solemnizing judge in a country articles, the solemnizing officer shall state in an affidavit
where the law provides that a marriage shall be void if celebrated in a executed before the local civil registrar or any other
place other than the chambers of the solemnizing judge, such marriage person legally authorized to administer oaths that the
shall be considered void in the Philippines although such marriage marriage was performed in articulo mortis or that the
would have been valid had the celebration been performed in the residence of either party, specifying the barrio or
Philippines also in the residence of the judge. barangay, is so located that there is no means of
transportation to enable such party to appear personally
Q. What is the extent of the authority of a Philippine judge to wed before the local civil registrar and that the officer took
persons? the necessary steps to ascertain the ages and
relationship of the contracting parties and the absence of
A. That the judge is within his or her jurisdiction, the venue of the a legal impediment to the marriage. (72a)
marriage ceremony can be anywhere within his or her jurisdiction.
Article 30. The original of the affidavit required in the
Q. What is the status in the Philippines of a marriage contracted abroad last preceding article, together with a legible copy of the
but is voidable or annullable under the laws of such foreign state? marriage contract, shall be sent by the person

solemnizing the marriage to the local civil registrar of within the zone of military operation, whether members
the municipality where it was per formed within the of the armed forces or civilians. (74a)
period of thirty days after the performance of the
marriage. (73a) Q. When may a military commander solemnize marriage?
Q. What happens to a marriage celebrated by a solemnizing officer who A. As far as the military commander is concerned, he or she must be a
fails to comply with the procedural requirements under Articles 29 commissioned officer, which means that his or her rank should start
and 30? from a second lieutenant, ensign and above. (Webster Dictionary, 1991
edition) He or she must likewise be a commander of at least a
A. The marriage remains valid. The procedure laid down in Articles 29 to battalion. Also he or she can only solemnize a marriage if it is in
30 of the Family Code relative to the duties of the solemnizing officer articulo mortis and in the absence of a chaplain. The marriage must be
with respect to the affidavit he or she has to execute is merely solemnized within the zone of military operation and during such
directory in character. Non-observance of the requirements will not military operation. The contracting parties may either be members of
render the marriage void or annullable (Loria v. Felix, 55 O.G. 8118). the armed forces or civilians.
However, under the Marriage Law of 1929, any officer, priest or
minister who, having solemnized a marriage in articulo mortis or any Article 33. Marriages among Muslims or among members
other marriage of an exceptional character, shall fail to comply with of the ethnic cultural communities may be performed
the provisions of Chapter 2, Title I of the Family Code, shall be validly without the necessity of a marriage license,
punished by imprisonment for not less than one month nor more than provided they are solemnized in accordance with their
two years, or by a fine of not less than three hundred pesos nor more customs, rites or practices. (78a)
than two thousand pesos, or both, in the discretion of the court.
Q. Are all ethnic groups exempted by Article 33 from the marriage
Article 31. A marriage in articulo mortis between requirement?
passengers or crew members may also be solemnized by
a ship captain or by an airplane pilot not only while the A. No, only Muslim tribes (Code of Muslim Personal Laws) and
ship is at sea or the plane is in flight, but also during indigenous tribal groups/cultural communities in the Cordillera
stopovers at ports of call. (74a) Autonomous Region (CAR, RA 6766) are exempted from the marriage
license requirement. As to other ethnic groups in the Philippines, they
Q. When can a chief plane pilot or a ship captain solemnize marriage? are still governed by the Family Code, as they do not have a separate
law.
A. A chief pilot or a ship captain may solemnize only marriages in
articulo mortis while the plane is in flight or the ship is at sea and Article 34. No license shall be necessary for the marriage
even during stopovers at ports of call. They can solemnize marriages of a man and a woman who have lived together as
only among their passengers and crew members. husband and wife for at least five years and without any
legal impediment to marry each other. The contracting
Article 32. A military commander of a unit, who is a parties shall state the foregoing facts in an affidavit
commissioned officer, shall likewise have authority to before any person authorized by law to administer oaths.
solemnize marriages in articulo mortis between persons The solemnizing officer shall also state under oath that

he ascertained the qualifications of the contracting is a substantial requirement of the law to be exempted from obtaining
parties and found no legal impediment to the marriage. a marriage license.
(76a)
Q. What are the requisites for a marriage to be validly exempted from the
marriage license requirement under Article 34?
A. With respect to the exemption relative to persons cohabiting for at
least five years under Article 34 of the Family Code, it must be
observed that their living together as husband and wife must meet two
distinct conditions namely: (1) they must live as such for at least five
years characterized by exclusivity and continuity that is unbroken
(Republic v. Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435);
and (2) they must be without any legal impediment to marry each
other.
Q. Must the legal impediment be absent for the whole five years?
A. No, for while the two requisites must concur, they do not qualify each
other. In other words, during the five-year period, it is not necessary
that they must not have suffered from any legal impediment. The
second condition as to the absence of any legal impediment must be
construed to refer only to the time of the actual marriage celebration.
Q. A couple files an affidavit claiming that they have cohabited as

husband and wife for more than five years to qualify them for the
exemption from the marriage license requirement. In truth and in fact,
however, they have cohabited only for 4 years. This notwithstanding,
they were exempted from the marriage license requirement and later
got married. What is the status of the marriage?
A. The marriage is null and void. In De Castro v. Assidao-De Castro, G.R.

No. 160172, February 13, 2008, 545 SCRA 162, the Supreme Court
ruled the nullity of a marriage on the ground of absence of a valid
marriage license upon evidence that there was in fact no cohabitation
for five years contrary to the statements in the falsified affidavit
executed by the parties. The falsity of the affidavit cannot be
considered to be a mere irregularity considering that the 5-year period

ART. 35-57 MARRIAGE 71 ART. 35-57 MARRIAGE 72
Void and Voidable Marriages Void and Voidable Marriages
A. Yes. There are 2 exceptions: a) Article 35(2) states that if either of the
Chapter 3 contracting parties is in good faith in believing that a solemnizing
Void and Voidable Marriages officer has authority to solemnize a marriage though he or she actually
has none, the marriage will be considered valid. b) Article 41 refers to
Art. 35. The following marriages shall be void from the a person whose spouse disappears for 4 or 3 years may validly marry
beginning: again if he or she has a well-founded belief that his or her spouse is
(1) Those contracted by any party below eighteen dead, procures a judicial declaration of presumptive death and at the
years of age even with the consent of parents or time of the subsequent marriage ceremony, is in good faith together
guardians; with the subsequent spouse. In these 2 cases, the good faith of only one
(2) Those solemnized by any person not legally of the contracting parties shall make the marriage valid.
authorized to perform marriages unless such
marriages were contracted with either or both Q. What is the property regime in a void marriage?
parties believing in good faith that the solemnizing
officer had the legal authority to do so; A. As a general rule, the property regime is one of co-ownership. An
(3) Those solemnized without license, except those exception is the subsequent void marriage due to the failure of a party
covered the preceding Chapter; to get a prior judicial declaration of nullity of the previous void
(4) Those bigamous or polygamous marriages not marriage pursuant to Article 40 of the Family Code. In this case,
failing under Article 41; Article 43 par.2 will apply and consequently, ACP or CPG property
(5) Those contracted through mistake of one regime will govern.
contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under
Article 53. Q. In a complaint for support against the husband to support their child,
the husband interposed an affirmative defense claiming that he is not
married with petitioner. Can the lower court make a declaration that
Q. May the grounds for a void marriage under Article 35 co-exist in one the marriage was void to determine the rights of the child to be
case? supported?
A. Yes. A petition may contain many grounds for nullity of marriage, A. Yes. (De Castro v. Assidao-De Castro, G.R. No. 160172, February 13,
such as absent of consent, no marriage license, psychological 2008). A void marriage can be collaterally attacked. Thus, the nullity
incapacity of the parties and bigamy, but it has only one cause of of a marriage can be asserted even if it is not the main issue of a case
action, which is the nullity of the marriage. (Mallion v. Alcantara, G.R. and that no previous declaration of nullity if required by law with
No. 141528, October 31, 2006). respect to any other matter where the issue of the voidness of a
marriage is pertinent or material, either directly or indirectly.
Q. As a general rule, good faith or bad faith of the parties are immaterial
in determining whether or not the marriage is null and void. Are there Q. If the first marriage is void and a subsequent marriage is contracted
any exceptions? without prior judicial declaration of nullity of the first marriage, is the
subsequent marriage bigamous?

A. No. In a bigamous marriage, the first marriage must have been valid. Art. 36. A marriage contracted by any party who, at the
In this case, the subsequent marriage is also void because it violates time of the celebration, was psychologically
Article 40 in relation to Articles 52 and 53 of the Family Code. incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if
Q. Does psychological incapacity under Article 36 pertain to insanity or such incapacity becomes manifest only after its
total mental inability to function in all aspects of human life? solemnization. (As amended by Executive Order 227)
A. No. The ground for nullity under Article 36 is restricted to Q. What does the incapacity under Article 36 consist of?
psychological incapacity to comply with the essential marital
obligations. A. This incapacity consists of a) a true inability to commit oneself to the
essentials of marriage, and a real inability to render what is due by
Q. When must psychological incapacity occur for it to be a ground for contract; b) this inability to commit oneself must refer to the essential
nullity of marriage? obligations of marriage: the conjugal act, the community of life and
love, the rendering of mutual help, the procreation and education of
A. It must occur at the time of the marriage ceremony but can be offspring; c) the inability must be tantamount to a psychological
manifested later on during the marriage. abnormality. Mere difficulty of assuming these obligations does not
constitute incapacity. It contemplates a true psychological disorder
Q. Can the bearing of children and cohabitation be a sign that which incapacitates a person from giving what is due. (Santos v. Court
psychological incapacity gas been cured? of Appeals and Julia Rosario Bedia-Santos, G.R. No. 112019, January
4, 1995) (citing “Canons and Commentaries on Marriage” by Ignatius
A. No. A marriage based on psychological incapacity is void thus, Gramunt, Javier Hervada and Leroy Wauck)
ratification cannot apply.
Q. What characterizes psychological incapacity?
Q. Why is insanity a ground for voidable marriage while psychological or
mental incapacity is a ground for void ab initio marriages? A. Psychological incapacity must be characterized by a) gravity, b)
juridical antecedence, and c) incurability. It must be grave or serious
A. As Justice Caguioa explained during the deliberations on the Family such that the party is incapable of carrying out the ordinary duties
Code, insanity is curable and there are lucid intervals while required in marriage; it must be rooted in the history of the party
psychological incapacity is not. Moreover, psychological incapacity is antedating the marriage, although the overt manifestations may
not a defect in the mind but in the understanding of the consequences emerge only after the marriage; and it must be incurable or, even if it
of marriage. were otherwise, the cure would be beyond the means of the party
involved. (Santos v. Court of Appeals and Julia Rosario Bedia-Santos,
Q. What are the 3 characteristics of psychological incapacity? G.R. No. 112019, January 4, 1995)
A. a) gravity, b) juridical antecedence and c) incurability. Q. What type of psychoses does Article 36 contemplate?

A. It refers to a mental (not physical) incapacity that causes a party to be sexual intercourse, although physically capable, is also considered a
truly incognitive of the basic marriage covenants, which under Article good indicator (Chi Ming Tsoi v. Court of Appeals, 78 SCAD 57, 266
68 of the Family Code, include the mutual obligations to live together, SCRA 324). Another indicator is unreasonable attachment to his or
observe love, respect and fidelity and render help and support. It is her family (parents, brothers, sisters) or to his or her friends or
confined to the most serious cases of personality disorders which “barkada” such that the importance and devotion which should be
clearly demonstrate an utter insensitivity or inability to give meaning given to his or her own spouse and children are subordinated.
and significance to the marriage. Separation and abandonment may also be a good indicator, although
not conclusive proof (Republic v. Quitero Hamano, 428 SCRA 735).
Q. When must the psychological condition exist?
Q. What are not indicators of psychological incapacity?
A. It must exist at the time the marriage is celebrated.
A. Mere psychological idiosyncrasies are not of themselves manifestations
Q. Do other forms of psychoses have any effect? psychological incapacity. It cannot be merely physical illness but must
be attributed to psychological illness (Bier v. Bier, G.R. No. 173294,
A. Yes. If they exist at the inception of the marriage, like unsound mind February 27, 2008, 547 SCRA 123). It cannot be mere refusal or
or concealment of drug addiction, habitual alcoholism, and neglect to comply with the obligations, it must be downright incapacity
homosexuality, they render the marriage voidable under Article 46. If to perform (Republic v. Cabantug-Baguio, G.R. No. 171042, June 30,
these occur during the marriage, they become grounds for legal 2008).
separation under Article 55. However, these may still be indicia of
psychological incapacity depending on the degree and severity. (Santos Q. Does the fact that a person is able to perform his or her marital
v. Court of Appeals and Julia Rosario Bedia-Santos, G.R. No. 112019, obligations with a person other than his or her other spouse negate the
January 4, 1995) existence of psychological incapacity?
Q. How is psychological incapacity proven? A. No. This ground is personal and limited so that just because a person
is psychologically incapacitated to perform his or her marital
A. Because it deals with a state of mind, it can only be proven by obligations with his or her present spouse does not mean the such will
indicators or external manifestations. These must be alleged in the also be the case with any other person.
complaint.
Q. Should the court consider expert opinion as evidence?
Q. What are indicators of psychological incapacity?
A. Yes. The court must consider as decisive evidence the expert opinion of
A. The inability to comply with marital obligations under Article 68, psychologists or psychiatrists in the psychological and mental
which provides that the husband and wife are obliged to live together, temperaments of the parties. Data about a person’s life before and
observe mutual love, respect, and fidelity, and render help and after the ceremony were presented to these experts who were asked to
support. Procreation is also an essential obligation. Likewise, they give professional opinions about the party’s mental capacity at the
must comply with their duties relative to parental authority under time of the wedding (Te v. Te, G.R. No. 161793, February 13, 2009).
Articles 220, 221, and 225. The prolonged refusal of a spouse to have Expert testimony is important to establish the precise cause of

psychological incapacity, and to show that it existed at the time of the of hearsay (Krohn v. Court of Appeals, G.R. No. 108854, June 14,
celebration (Hernandez v. Court of Appeals). However, the Court may 1994).
or may not accept the testimony since the decision must be based on
the totality of the evidence (Paras v. Paras, August 2, 2007, 529 SCRA Q. What are some elements necessary for a mature marital relationship
81). which the court must consider?
Q. Is personal examination by a physician required? A. 1) A permanent and faithful commitment to the marriage partner; 2)
openness to children and partner; 3) stability; 4) emotional maturity;
A. No, if the totality of the evidence presented is enough to sustain a 5) financial responsibility; 6) an ability to cope with the ordinary
finding of psychological incapacity. The evidence must show a link stresses and strains of marriage, etc. (Te v. Te, G.R. No. 161793,
between the manifest psychological incapacity and the psychological February 13, 2009).
disorder itself (Marcos v. Marcos).
Q. What is the shift in the use of these psychological grounds?
Q. What are some instances when the Supreme Court denied the petition
for nullity of marriage despite a finding of psychological incapacity by A. Originally, the emphasis was on the parties’ inability to exercise
a psychiatrist? proper judgment at the time of the marriage (lack of due discretion).
Recently, cases concentrate on the parties’ incapacity to assume or
A. The Supreme Court rejected the findings of a psychologist as carry out their responsibilities and obligations as promised (lack of
unreliable when the conclusions in the reports appear to be competence) (Te v. Te, G.R. No. 161793, February 13, 2009).
exaggerated extrapolations, derived from isolated incidents, rather
than from continuing patterns. The “particulars” were mere Q. What are some causes of personality disorders?
snapshots, rather than a running account of the party’s life (So v.
Valera, G.R. No. 150677, June 5, 2009). In another case, the Supreme A. (1) Freudian. Fixation at certain stages of development leads to certain
Court found that the psychological report was very general and did not personality types. Some disorders are derived from oral, anal and
state specific linkages between the personality disorder and the phallic character types.
behavioral patter of the spouse during the marriage (Rumbaua v.
Rumbaua, G.R. No. 166, August 14, 2009). (2) Genetic factors. There may be a genetic factor involved in the
etiology of antisocial and borderline personality disorders.
Q. Can the admissibility of the psychiatric report on the wife be objected
to on the ground of privileged communication between doctor and (3) Neurobiological theories. Schizotypal personality has been
patient? associated with low platelet monoamine oxidase (MAO) activity and
impaired smooth pursuit eye movement.
A. It is not within the doctor-patient privilege where the one who will
testify on the report is not the doctor but the husband. His testimony (4) Brain wave activity. Abnormalities in EEG have been reported in
will not have the force and effect of the testimony of the physician who antisocial personality. (Te v. Te, G.R. No. 161793, February 13, 2009).
made the report. The proper objection should have been on the ground
Q. What are the types of disorders?

known the obligations he was assuming, or knowing them, could

A. According to the American Psychiatric Association’s Diagnostic and not have given valid assumption thereof. The root cause must be
Statistical Manual of Mental Disorders, there are three clusters: identified as a psychological illness and its incapacitating nature
fully explained. Expert evidence may be given by qualified
(1) Cluster A: Paranoid, schizoid and schizotypal personality disorders. psychiatrists and clinical psychologists.
Persons with this disorder have odd or eccentric habits or traits.
(3) The incapacity must be proven to be existing at the time of the
(2) Cluster B: Antisocial, borderline, histrionic, narcissistic personality celebration of the marriage. While the manifestation of the illness
disorders. Persons appear overly emotional, erratic and dramatic. need not be perceivable at that time, the illness must have attached
at such moment or prior thereto.
(3) Cluster C: Avoidant, dependent, obsessive-compulsive and passive-
aggressive personality disorders. Persons appear anxious or fearful. (4) The incapacity must be shown to be medically or clinically
(Te v. Te, G.R. No. 161793, February 13, 2009). permanent or incurable. The incurability may be absolute or
relative only in regard to the other spouse, not necessarily
Q. Do decisions of the Catholic tribunal on this matter have any value in absolutely against everyone. The incapacity must also refer to the
court? assumption of marriage obligations.
A. Yes, they have persuasive effect. Because psychological incapacity as a (5) The illness must be grave enough to bring about the disability of the
ground for nullity was essentially lifted from the Canon Laws of the party to assume the essential obligations of marriage. It must be
catholic Church, the opinion of Canon Law experts are helpful in downright incapacity, not mere refusal, neglect or difficulty.
understanding Article 36. The intendment of Article 36 is consistent
with Canon Law. (6) The essential marital obligations mustt be those embraced by
Articles 68 to 71 of the Family Code as regards the husband and
Q. What are the guidelines in invoking and proving psychological wife, and Articles 220, 221 and 225 in regard to parents and
incapacity? children. The obligations not complied with must be stated in the
petition, proven by evidence, and included in the text of the
A. The Supreme Court enumerated the following guidelines: decision.
(1) The burden of proof to show the nullity of the marriage belongs to
the plaintiff. Any doubt should be resolved in favor of the existence (7) Interpretations by the National Appellate Matrimonial Tribunal of
and continuation of marriage. the Catholic Church in the Philippines, while not controlling,
should be given great respect by the courts.
(2) The root cause of the psychological incapacity must be a) medically
or clinically identified, b) alleged in the complaint, c) sufficiently (8) The trial court must order the prosecuting attorney or fiscal and the
proven by experts, and d) clearly explained in the decision. The Solicitor General to appear as counsel for the state. (Republic of the
incapacity must be psychological, not physical. The evidence must Philippines v. Court of Appeals and Molina, G.R. No. 108763,
convince the court that the party/parties was mentally or February 13, 1997).
psychically ill to such an extent that the person could not have

Q. Should the guidelines established in Molina be applied strictly? solidarity of the nuclear family (American Law Institute, Model and
Commentaries 230.2, pp. 403-407 [1980] contained in Family Law by
A. No. Each case must be judged not on the basis of a priori assumptions, Harry Krause, St. Paul, Min., West Publishing Co., 1983, pages 29-30).
predilections or generalizations but according to its own facts. The
courts should interpret the provision on a case-to-case basis; guided by
experience, the findings of experts and researchers in psychological Art. 38. The following marriages shall be void from the
disciplines, and by decisions of church tribunals (Te v. Te, G.R. No. beginning for reasons of public policy:
161793, February 13, 2009). (1) Between collateral blood relatives whether legitimate
or illegitimate, up to the fourth civil degree;
Art. 37. Marriages between the following are incestuous (2) Between step-parents and step-children;
and void from the beginning, whether relationship (3) Between parents-in-law and children-in-law;
between the parties be legitimate or illegitimate: (4) Between the adopting parent and the adopted child;
(1) Between ascendants and descendants of any degree; and (5) Between the surviving spouse of the adopting parent
(2) Between brothers and sisters, whether of the full or half and the adopted child;
blood. (81a) (6) Between the surviving spouse of the adopted child
and the adopter;
Q. What are the reasons for the prohibition of incestuous marriages? (7) Between an adopted child and a legitimate child of
the adopter;
A. There are a number of reasons. (8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to
1) They are abhorrent to the nature, not only of civilized men, but of marry the other, killed that other person's spouse, or his
barbarous and semi-civilized peoples (Gould v. Gould, 78 Conn. 242, or her own spouse. (82)
61 A 604, cited in 35 Am. Jur. 266);
Art. 39. The action or defense for the declaration of
2) It leans towards the confusion of rights and duties incident to family absolute nullity of a marriage shall not prescribe. (As
relations (supra); amended by Executive Order 227 and Republic Act No.
8533)
3) Also, science and experience have established beyond cavil that such
intermarriages very often result in deficient and degenerate offsprings, Q. What are the reasons for the prohibition of void marriages?
which would amount to a serious deterioration of the race (supra);
A. Article 38 provides for void marriages by reason of public policy.
4) This includes preventing deleterious recessive genes in their Marriages described in Article 38 will not serve the fundamental
offspring (Farrow and Juberg, Genetics and Laws Prolubity Marriage objective of nurturing a stable family unit that can effectively be the
in the United States, 209 U.A.M.A. 534, 537 [1959]); and foundation of society.
5) Another reason is the social and psychological aspects of an Q. Is the enumeration exclusive?
incestuous marriage. Social prohibitions against incest promote the

A. Yes, following the general rule that only those declared by law as a Q. Who are considered collateral relatives by consanguinity in the 4th civil
void marriage should be treated as such. degree?
A.
Q. Can a guardian and his/her ward validly marry? 1. First cousins
2. Uncle
A. Yes. 3. Aunt
4. Niece
Q. Can a principal and his/her agent marry? 5. Nephew
A. Yes. Q. Are marriages between collateral blood relatives by the half-blood

prohibited?
Q. To what extent does the prohibition on collateral blood relatives by
consanguinity apply? A. No. (Sta. Maria 2010 ed., 247, In Re Simms Estate, 26 NY2d 163, 46
ALR 3d 1398).
A. 4th civil degree of consanguinity.
Q. Why are marriages between collateral blood relatives by the half-blood
Q. What is the reason behind such prohibition? not prohibited?
A. The genetic reason and preventing deleterious recessive genes in the A. All doubts must be construed in favor of marriage. Only those
offspring (Farrow and Juberg, Genetics and Laws Prolubity Marriage expressly prohibited by law as void shall be treated as such. Also, since
in the United States, 209 U.A.M.A. 534, 537 [1959]). what is involved in Article 38(1) has been categorized as a marriage
against public policy, it must be strictly construed in favor of the
Q. Is relationship by consanguinity capable of dissolution? contracting parties and against its illegality.
A. No (Sta. Maria 2010 ed., 244). Q. What is affinity?
Q. If a common ascendant dies, is the relationship of the first cousins A. It is a connection formed by marriage. It places the husband in the
severed? same degree of nominal propinquity to the relatives of the wife as that
in which she herself stands towards them and gives the wife the same
A. No (Sta. Maria 2010 ed., 244). reciprocal connection with the relations of the husband. (Kelly v. Neely,
12 Ark. 657, 659, 56 Am. Dec. 288).
Q. How do you determine whether two persons are relatives?
Q. Who are related by affinity?
A. They have to consider their nearest and immediate common ascendant
and then count the number of relatives from one of them to the A.
common ascendant and from the common ascendant to the other one. 1. Parents in law and children in law
2. Step parents and step children

A. The second view is accepted and supported by most judicial authorities

Q. Who are prohibited to marry under marriages by affinity? (Sta. Maria 2010 ed., 253).
A. Marriages between parents in law and children in law and between Q. What are the prohibitions to marriages between persons who have an
step parents and step children. adoptive relationship?
Q. What is the effect of the termination of Marriage on the affinity A. The adopted cannot marry any of the following.
prohibition? 1. The adopter
A. Relationship by affinity is likewise terminated and said persons 2. The surviving spouse of the adopter
become strangers. Thus, allowing them to validly marry (Sta. Maria 3. The legitimate child of the adopter
2010 ed., 251-252, Back v. Back, 125 Northern Reports (NW) 1009). 4. The other adopted children of the adopter
Q. What is the effect of the death of one of the spouses to the relationship Q. What is the relationship created in adoption?
by affinity?
A. Limited to one of parent and child.
A. There are two conflicting views (Sta. Maria 2010 ed., 252).
Q. Who can the adopted validly marry?
Q. What are these views?
A. The following.
A. There are two views. 1. Parents of the adopter
2. Illegitimate child of the adopter
1. That the relationship is not terminated whether there are children or 3. Other relatives of the adopter, whether by consanguinity or
not in the marriage (Carman v. Newell, N.Y., 1 Demo 25, 26). affinity
2. The relationship by affinity is dissolved, if the spouses have no living Q. Who can the adopter validly marry?
issues or children and one of the spouses dies. The relationship by
affinity ceases with the dissolution of the marriage which produces it A. The adopter can marry.
(Kelly v. Neely, 12 Ark. 657, 659, 56 Am. Dec. 288). 1. The legitimate, illegitimate or adopted child
2. The natural parent
However, if there are living issues or children of the marriage “in 3. Other relatives, whether by consanguinity or affinity, of the adopted.
whose veins the blood of the parties are commingled, since the
relationship of affinity was continued through the medium of the issue Q. What is the prohibition under Art. 38 (9)?
of the marriage” – the relationship is continued despite the death of
one of the spouses (Paddock v. Wells, 2 Barb. Ch. 331, 333). A. Void marriages between parties, where one, with the intention to
marry the other, killed that other person’s spouse or his or her own
Q. Which is the better view? spouse.

Q. Is prior conviction required? Q. Can a contracting party who is a wrongdoer, file a petition for the JDN
of marriage?
A. No. Mere preponderance of evidence is required to prove the killing
(Minutes of the 149th Meeting of the Joint Civil Code and Family Law A. Yes. Any of the parties to a void marriage may file a nullity case.
Committees held on August 2, 1986, page 3).
Q. Can a void marriage be collaterally attacked by any interested party?
Q. Is a mutual intention to kill the other person’s spouse required?
A. Yes. In any proceeding where the determination of thr validity of the
A. No. A unilateral intention is sufficient and need not be shared by the marriage is necessary to give rise to certain rights or to negate certain
other spouse so that even the unknowing party will be affected by the rights (Chi Ming Tsoi v. CA, 78 SCAD 57, 266 SCRA 324). Ex. In an
void characted of the marriage (Minutes of the 149th Meeting of the intestate proceeding where certain heirs can attack the validity of the
Joint Civil Code and Family Law Committees held on August 2, 1986, marriage of the deceased parent so that the children of the deceased
page 3). parent can be considered illegitimate for purposes of inheritance.
Q. What is the effect of a judicial decree of nullity (JDN)? Art. 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely
A. A JDN of a marriage does not legally dissolve a marriage because such of a final judgment declaring such previous marriage
a marriage is invalid from the beginning and therefore, being non- void. (n)
existent, cannot be dissolved. The JDN merely declares or confirms the
voidness, non-existence, or incipient invalidity of a marriage. Q. What does Art. 40 require?
Q. Can a JDN be filed by the children even after the death of the A. It requires that if a marriage is void ab initio any one of them may
contracting party? contract a subsequent valid marriage only upon a previous JDN of
marriage of the previous marriage. Otherwise, the subsequent
A. No. Only the husband and the wife can file the case and if filed, the marriage in itself shall be declared void in accordance with Art. 40, 52,
case will be closed or terminated if during its pendency either of the and 53.
husband or the wife should die. Heirs can no longer file a case for the
nullity of marriage of their parents or of their parent with their step- Note: JDN must be registered with the local civil registrar and the
parent (SC en banc resolution in A.M. No. 02-11-10 and Enrico v. Heirs partition, liquidation, and distribution of the properties must be
of Medinaceli, G.R. No. 173614, September 28, 2007, 534 SCRA 419, recorded in the proper registry of property.
reversing Ninal v. Bayadong, 328 SCRA 122).
Q. What is the basis of the status of a subsequent marriage?
Q. Is the petition imprescriptible?
A. It depends upon the time of solemnization of the said subsequent
A. Yes, by express provision of Article 39. marriage.
Q. What is the reason behind the requirement of a JDN?

the Civil Code, an absence of only two years shall be

A. For the projected marriage to be free from legal infirmity. The law sufficient.
seeks to ensure that a prior marriage is no impediment to a second
sought to be contracted by one of the parties. For the purpose of contracting the subsequent marriage
Q. What is the only acceptable proof of the nullity of a first marriage for under the preceding paragraph the spouse present must
purposes of remarriage? institute a summary proceeding as provided in this Code
for the declaration of presumptive death of the absentee,
A. Judicial declaration of nullity of marriage. (Domingo v. Court of without prejudice to the effect of reappearance of the
Appeals, 226 absent spouse. (83a)
SCRA 572)
Q. What is the purpose of Article 40 in requiring a judicial declaration of Q. How is the crime of bigamy committed?
nullity
before one can remarry? A. The crime of bigamy is committed by any person who shall contract a
second or subsequent marriage (1) before the former marriage has
A. To do away with any continuing uncertainty on the status of the been legally dissolved or (2) before the absent spouse has been
second marriage (Valdes v. RTC, 260 SCRA 221). declared presumptively dead. (Article 349 of the Revised Penal Code)
Q. May the validity of a marriage be collaterally attacked in a support Q. May there be a prosecution for bigamy where the first marriage is void
case? ab initio?
A. Yes. See the case of De Castro v. Assidao-De Castro, G.R. No. 160172, A. None. Bigamy contemplates a first marriage which is valid or at least
where the Supreme Court ruled that in a case for support, a lower annullable and not void from the beginning.
court can declare a marriage void even without prior judicial
declaration of nullity of void marriage filed in a separate action. It Q. A married B in 1995. There was no marriage license. In 1998, A
reasoned that the determination of the validity of marriage was married C. B was still living at the time of the celebration of the
important in the resolution of the right of the child to be supported. second marriage. May A be prosecuted for bigamy?
Art. 41. A marriage contracted by any person during A. No. Since the first marriage is void ab initio.
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, Q. A married B in 1995. Their marriage was annullable but was not
the prior spouse had been absent for four consecutive annulled. In 1998, A married C. B was still living at the time of the
years and the spouse present has a well-founded belief celebration of the second marriage. May A be prosecuted for bigamy?
that the absent spouse was already dead. In case of A. Yes.
disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of Q. A married B in 1995. There was no marriage license. In 1998, and
without taking any steps to have the marriage with B declared void, A

married C. B was still living at the time of the celebration of the A. Due diligence must be exercised to ascertain the whereabouts of the
second marriage. What is the status of A and C’s marriage? absent spouse. (United States v. Biasbas, 25 Phil. 71).
A. The marriage is void for failing to comply with the requirement of Q. Is a judicial declaration required before the presumption of death
securing a judicial declaration of nullity. applied?
Q. Is there an exception where a second bigamous marriage may be A. No. The presumption arises by virtue of law.
considered valid?
A. Yes. A bigamous marriage may be considered valid if, prior to the Art. 42. The subsequent marriage referred to in the
subsequent marriage and without prejudice to the effect of preceding Article shall be automatically terminated by
reappearance of the other spouse, the present spouse obtains a judicial the recording of the affidavit of reappearance of the
declaration of presumptive death via a summary proceeding in court of absent spouse, unless there is a judgment annulling the
competent jurisdiction. previous marriage or declaring it void ab initio.
Q. What is the weight of a judicial declaration of presumptive death? A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of
A. The declaration is only prima facie. Contrary evidence may be shown. the residence of the parties to the subsequent marriage
at the instance of any interested person, with due notice
Q. How may a second marriage contracted after the procurement of a to the spouses of the subsequent marriage and without
judicial declaration of presumptive death be terminated? prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. (n)
A. An affidavit of reappearance of the absent spouse may be filed in the
civil registry where the parties to the second marriage reside. The Art. 43. The termination of the subsequent marriage
second marriage will then be automatically terminated. referred to in the preceding Article shall produce the
following effects:
Q. If there is failure to liquidate the property of the first marriage and the
present spouse remarries and thereafter, the absent spouse from the (1) The children of the subsequent marriage conceived prior
first marriage reappears, what is the property regime of the second to its termination shall be considered legitimate;
marriage?
(2) The absolute community of property or the conjugal
A. Complete separation of property. partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage
Q. Discuss the requirement of “well founded belief” as a requirement in bad faith, his or her share of the net profits of the
before a judicial declaration of presumptive death is issued. 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 Q. In the event that the absent spouse reappears causing the subsequent
spouse; marriage to be automatically terminated, will the donations by reason
of the second marriage remain valid?
(3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad A. It depends. If both the parties are in good faith, the donations by
faith, such donations made to said donee are revoked by reason of marriage shall remain valid even if the subsequent marriage
operation of law; is terminated. However, if the done acted in bad faith in contracting
the marriage, the donation is terminated by operation of law.
(4) The innocent spouse may revoke the designation of
the other spouse who acted in bad faith as beneficiary in Q. Is the rule with respect to donations the same as in insurance policies?
any insurance policy, even if such designation be
stipulated as irrevocable; and A. No the rules are different. Here, the innocent spouse has the choice of
revoking or maintaining as beneficiary in an insurance policy the other
(5) The spouse who contracted the subsequent marriage spouse who acted in bad faith. Even if the designation as beneficiary is
in bad faith shall be disqualified to inherit from the irrevocable, if the innocent spouse chooses to revoke, he/she can validly
innocent spouse by testate and intestate succession. (n) do so.
Art. 44. If both spouses of the subsequent marriage acted Q. Is the spouse who was in bad faith in contracting the subsequent
in bad faith, said marriage shall be void ab initio and all marriage eligible to succeed the innocent spouse?
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are A. No. The spouse in bad faith may not inherit both through testate and
revoked by operation of law. (n) intestate succession.
Q. What is the status of the subsequent marriage where bad faith is

Q. Who may file the sworn statement of reappearance? present?
A. Any interested party may file the sworn statement. (parents, children, A. It depends. If only one of the parties to the subsequent marriage is in
present spouse, subsequent spouse and even the parents and children bad faith, the marriage is still valid. For as long as there is one party
of the other contracting spouse in the subsequent marriage) who is in good faith, such marriage is valid. It is only when both
parties are in bad faith will the subsequent marriage be void.
Q. What is the status of the children conceived during the subsequent Q. What is the status of the children where both parties in the
marriage in cases of presumptive death of one of the spouses and subsequent marriage are in bad faith?
before termination of the same? A. The children are illegitimate.
A. The children are legitimate. 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 (2)Concealment by the wife of the fact that at the time of
have the marriage annulled was eighteen years the marriage, she was pregnant by a man other than
of age or over but below twenty-one, and the her husband;
marriage was solemnized without the consent of (3)Concealment of sexually transmissible disease,
the parents, guardian or person having regardless of its nature, existing at the time of the
substitute parental authority over the party, in marriage; or
that order, unless after attaining the age of (4)Concealment of drug addiction, habitual alcoholism or
twenty-one, such party freely cohabited with the homosexuality or lesbianism existing at the time of the
other and both lived together as husband and marriage.
wife;
(2)That either party was of unsound mind, unless No other misrepresentation or deceit as to character,
such party after coming to reason, freely health, rank, fortune or chastity shall constitute such
cohabited with the other as husband and wife; fraud as will give grounds for action for the annulment of
(3)That the consent of either party was obtained by marriage. (86a)
fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud,
freely cohabited with the other as husband and Q. Enumerate the grounds which, existing at the time of the marriage,
wife; may be a ground for annulment?
(4)That the consent of either party was obtained by
force, intimidation or undue influence, unless the A. Briefly, as enumerated in Article 45.
same having disappeared or ceased, such party (1) One of the contracting parties was eighteen years of age or over but
thereafter freely cohabited with the other as below twenty-one, and the consent of the parents, guardian or person
husband and wife; having substitute parental authority over the party, in that order, was
(5)That either party was physically incapable of not given.
consummating the marriage with the other, and
such incapacity continues and appears to be (2)One of the contracting parties was of unsound mind;
incurable; or
(6)That either party was afflicted with a sexually- (3)That the consent of one of the contracting parties was obtained by
transmissible disease found to be serious and fraud;
appears to be incurable. (85a)
(4)That the consent of one of the contracting parties was obtained by
Art. 46. Any of the following circumstances shall force, intimidation or undue influence;
constitute fraud referred to in Number 3 of the preceding
Article: (5) That either party was physically incapable of consummating the
(1)Non-disclosure of a previous conviction by final marriage with the other, and such incapacity continues and appears to
judgment of the other party of a crime involving moral be incurable;
turpitude;

(6)That either party was afflicted with a sexually-transmissible A. A void marriage is invalid from the beginning, but an annullable or
disease found to be serious and appears to be incurable voidable marriage is considered valid up to the time it is terminated.
The grounds for annulment are exclusive such that only those grounds Q. Why is the lack of parental consent a ground for annulment?
provided by law can sustain an action to bring an annulment suit.
A. The law considers persons age of at least 18 years and below 21 years
as not possessing that degree of maturity to be able to comprehend
Q. What constitutes “fraud” as stated in number 3 of Article 45? thoroughly the consequences and serious responsibilities of marital
relations.
A. Fraud is constituted by any of the following acts as stated in Article 46:
Q. What does the Family Code mean by unsound mind as a ground for
(1) Non-disclosure of a previous conviction by final judgment of the annulment?
other party of a crime involving moral turpitude;
A. Unsoundness of the mind refers to a derangement of the mind to
(2) Concealment by the wife of the fact that at the time of the prevent the party from comprehending the nature of the contract and
marriage, she was pregnant by a man other than her husband; from giving to it his free and intelligent consent. Thus, it is clear that
marriages are not invalidated by mere weakness of mind or dullness of
(3) Concealment of sexually transmissible disease, regardless of its intellect, or eccentricities or partial dementia are
nature, existing at the time of the marriage; or
Q. Who has the burden of proving the unsoundness of mind?
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the marriage. A. The burden of proof of insanity rests upon him who alleges insanity
. and it devolves upon him to establish the fact of insanity by a
Q. Are the grounds for annulment of marriage under the Family Code preponderance of evidence. However, if previous insanity is proved, the
exclusive? burden of proof is usually considered to shift to him who asserts that
the act was done while the person was sane.
A. Yes. Annulment cannot be left to the whims of the spouses, as the
state has a serious concern and interest over the maintenance of the Q. What does the Family Code mean by fraud as a ground for
marriage and the family unit brought about by the same. Thus, mere annulment?
co-habitation is not a ground for annulment. (Villanueva v. Court of
Appeals, G.R. No. 132955, October 27, 2006) A. Fraud refers to the non-disclosure or concealment of certain
circumstances, which materially affect the essence of marriage.
Note that annullable marriage is the same as a voidable marriage.
Q. Can any form of fraud or concealment be considered a ground for
Q. What is the difference between void and voidable marriage? annulment?
A. No. The circumstances of fraud are limited to those enumerated in
Article 46. It is exclusive

A. No. There must be a concealment of such pregnancy by the wife.

Q. Can any conviction be considered as fraud for its non-disclosure? However, if the woman did not expressly inform the man of her
pregnancy, but such physical condition was readily apparent to the
A. No. The conviction contemplated under the Family Code is a man, he cannot claim lack of knowledge of such pregnancy (Buccat v.
conviction by final judgment of a crime involving moral turpitude, Buccat, 72 Phil. 19). Also, the mere fact that the woman at the time of
which includes everything that is contrary to justice, honesty, or good the marriage is four months pregnant cannot be conclusive as to the
morals. It also must be conviction prior to marriage apparency of such pregnancy so as to bar the man from invoking this
particular ground (Aquino v. Delizo, 109 Phil. 21).
Q. Can failure to investigate the criminal record of a spouse bar the other Q. Is the unchaste character of the wife a bar to raise the ground of
spouse for raising it as a ground for annulment? concealment of pregnancy as fraud?
A. No. It is not necessary that one of the parties investigate the other and A. Yes. A man knew of the unchaste character of a woman with whom he
his or her failure to do so will not bar a case for annulment on this likewise had extra-marital sexual intercourse. He subsequently
ground if it later develops that the party concerned has been convicted married such woman who was pregnant and assured him that it was
of a crime before the marriage. his child and when in fact it could not have been his child. The man is
not allowed to have his marriage annulled on this particular
Q. Can both the husband and the wife be guilty of concealment of fraudulent act. The American Court gave four reasons: (1) he did not
pregnancy as fraud? to court with clean hands, (2) the husband, knowing of the wife’s
unchastity and pregnancy, was put upon his inquiry as to her
A. No. Only the wife can commit fraud, because maternity is always condition and the paternity of any child she may have conceived, (3) he
certain while paternity may be disputed. was sufficiently apprised of her want of chastity to deprive him of the
right to complain, (4) he, having taken the woman as his wife for
Q. Does good faith of the wife matter when the ground for annulment is better or for worse, he ought not to be permitted to say that she was
concealment of pregnancy as fraud? worse than he expected (Lyman v. Lyman, 90 Conn. 399, 97 Atl. 312,
L.R.A. 1916E, 643).
A. Yes. The concealment must have been done in bad faith. Thus, if a
woman, after having sexual intercourse with another man previous to Q. If a woman misrepresented to her fiancé that she was pregnant for the
marriage ceremony was diagnosed as not pregnant and thereafter purpose of inducing her fiancé to marry her when in fact she was not
married her fiancé believing that she was not pregnant, the marriage pregnant, can the husband use concealment of pregnancy as fraud to
cannot later be annulled. Thus, even if it turned out that her previous be a ground for annulment of their marriage?
diagnosis was completely wrong and that she was really pregnant.
There was no bad faith on her part. Thus, she could not be guilty of A. No. Article 46 (2) only contemplates concealment of a pregnancy and
fraud. not concealment of non-pregnancy.
Q. Is the mere pregnancy of the wife at the time of marriage sufficient to Q. Is the nature or gravity of sexually-transmissible disease concealed
annul the marriage? material to constitute fraud as a ground for annulment of marriage?

A. No. The fact that the STD fraudulently concealed was of a less virulent A. There must be concealment because homosexuality or lesbianism per
character and one that would be more correctly described as local, will se is not a ground for annulment. Hence, the element of bad faith on
not bar this ground. Also, consummation of the marriage is not the part of the one making the concealment is essential and must be
required for this ground to exist. proven. (Almedor v. RTC, G.R. No. 179620, August 26, 2008).
Q. Define habitual drunkenness. Q. When is consent to a marriage vitiated?
A. Habitual drunkenness is defined as the persistent habit of becoming A. Consent is vitiated when it is obtained through force, intimidation or
intoxicated, and that the nature and extent of the drunkenness must undue influence.
be such that the person by frequent indulgence may be said to have a
fixed and irresistible habit of drunkenness, whereby he has lost the Q. When is there intimidation to vitiate consent?
power or will to control his appetite for intoxicating liquor, as where he
indulges in the practice of becoming intoxicated whenever the A. There is intimidation when one of the contracting parties is compelled
temptation is presented and the opportunity is offered. (Lewis v. Lewis, by a reasonable and well-grounded fear of an imminent and grave evil
235 Iowa 693). However, to be a habitual drunkard, a person does not upon his person or property or upon the person or property of his
have to drink all the time, nor necessarily be incapacitated from spouse, descendants, or ascendants, to give his consent. To determine
pursuing, during the working hours of the day, ordinary unskilled the degree of intimidation, the age, sex and condition of the person
manual labor (Page v. Page, 43 Wash. 293). shall be borne in mind.
Q. Why is concealment of habitual drunkenness a ground to sever the Q. When is incapacity to consummate a ground for annulment?
marriage relations?
A. Incapacity to consummate denotes the permanent inability on the part
A. It is a ground because it renders him unfit for the duties of the marital of one of the spouses to perform the complete act of sexual intercourse.
relation and disqualifies him from properly rearing and caring for the It includes all types of causes for non-consummation, even
children born of the marriage (Lewis v. Lewis, 235 Iowa 693). psychological, which leads to physical inability. Thus, the provision is
not limited to impotence.
Q. Why is concealment of drug addiction as fraud a ground to sever the
marriage relations? Q. Is a psychogenic cause, which is the reason for the spouse’s mental
block or disturbance and causing to him being physically incapable of
A. The deleterious and evil effects resulting from the continued and performing the marriage act, tantamount to incapacity to consummate
excessive use of drugs are well-known, and that they interfere with the marriage?
happiness of married life, and produce other effects upon the marriage
relation as deplorable. (Gowey v. Gowey, 191 Mass. 72). A. Yes. (Alcazar v. Alcazar, G.R. No. 174451, October 13, 2009)
Q. What would constitute concealment of homosexuality or lesbianism as Q. Is excessive sensibility of the wife rendering sexual intercourse
fraud that would be a ground for the annulment of marriage? practically impossible on account of the pain it must inflict a ground to
annul the marriage?

A. There is a presumption of impotence if the situation comes within the

A. Yes. It is contemplated under the provision of incapacity to preview of the rule of triennial cohabitation. If the wife remains a
consummate marriage if it is medically and sufficiently proven. virgin for 3 years from the time the spouses started cohabitating, the
husband must show that he was not impotent during the said period
Q. Is vaginismus contemplated within the meaning of incapacity to and the burden will be upon him to overcome the presumption of
consummate the marriage? impotence.
A. Yes. Vaginismus is an incurable nervous disorder on the part of the Q. Is sterility equivalent to impotency?
wife, which renders sexual coition impossible.
A. No, because a sterile person can successfully engage in sexual coition.
Q. Is any type of sickness or refusal to consummate the marriage Sterility does not imply want of power of copulation.
considered to be incapacity to consummate a marriage?
Q. If the STD of the spouse is not concealed, can it still be a ground for
A. No. annulment of marriage?
Q. What is required in order that incapacity to consummate the marriage A. Yes, however, in order that it may be successfully invoked, sexually
could be successfully invoked? transmissible disease must be serious and incurable. The STD must
still exist at the time of the marriage ceremony.
A. The incapacity must be physical. It must exist at the time of the
marriage ceremony. It must continuous and appears to be incurable. Q. Can there be a ratification of annullable marriage?
Accidental or temporary impotency is not enough.
A. Yes. Under the Family Code, ratification is made if the “injured” party
Q. Who has the burden of proving the incapacity of the spouse to freely cohabits with the guilty party in the proper situations provided
consummate the marriage? by law, such as lack of parental consent, insanity, fraud and vitiated
consent.
A. Whoever alleges the incapacity has the burden of proving the same. As
a general rule, incapacity to engage in sexual intercourse cannot be Q. Can all types of annullable marriage be ratified?
presumed but must be proven by preponderance of evidence.
A. No. If the ground relied upon is either the incurable physical
Q. Must the incapacity or impotence be universal? incapacity to consummate marriage by either party or the affliction of
either party with an incurable sexually-transmissible disease, both
A. No. Hence, it has been said that when impotence is psychological in existing at the time of the marriage ceremony, the mere free
origin, the condition may exist only as to the present spouse and not as cohabitation as husband and wife of the parties will not ratify the
to others. annullable marriage.
Q. Explain the Rule of Triennial Cohabitation. Q. May the grounds of incapacity to consummate a marriage and
incurable sexually transmitted disease be barred by prescription?

Q. Which court has jurisdiction of an annulment case?

A. Yes, if the aggrieved parties do not bring the suit within five years
after the marriage ceremony. A. The proper court depends upon the nationality or domicile of the
parties and not the place of the celebration of the marriage, or locus
Art. 47. The action for annulment of marriage must be celebrationis. Hence, when a Filipino is domiciled in the Philippines,
filed by the following persons and within the periods the lower court has jurisdiction to annul his marriage to a Korean girl
indicated herein: contracted by him.
(1)For causes mentioned in number 1 of Article 45 by
the party whose parent or guardian did not give his Q. Summarize the rules on the prescriptive periods and who may file the
or her consent, within five years after attaining the suit for each ground of annulment.
age of twenty-one, or by the parent or guardian or A.
person having legal charge of the minor, at any time
before such party has reached the age of twenty- GROUND PARTY TO FILE PRESCRIPTION
one; PERIOD
(2)For causes mentioned in number 2 of Article 45, by 1. No Parental- a. Parent or Guardian Anytime before “no-
the same spouse, who had no knowledge of the Consent having Legal Charge of consent party” reaches
other's insanity; or by any relative or guardian or “no-consent party” the age of 21
person having legal charge of the insane, at any b. “No-Consent” Party Within Five Years after
time before the death of either party, or by the attaining 21
insane spouse during a lucid interval or after 2. Insanity a. Sane Spouse without At any time before
regaining sanity; knowledge of insanity death of either party
(3)For causes mentioned in number 3 of Article 45, by b. Relative, guardian or At any time before
the injured party, within five years after the person having legal death of either party
discovery of the fraud; charge of the insane
(4)For causes mentioned in number 4 of Article 45, by spouse
the injured party, within five years from the time c. Insane spouse During lucid interval or
the force, intimidation or undue influence after regaining sanity
disappeared or ceased; 3. Fraud Injured Party Within Five Years after
(5)For causes mentioned in number 5 and 6 of Article discovery of Fraud
45, by the injured party, within five years after the 4. Vitiated Injured Party Within Five Years from
marriage. (87a) Consent time force, intimidation
or undue influence
Q. What is the nature of an annulment case? disappeared or ceased
5. Incapability to Injured Party Within Five Years after
A. Annulment cases are actions in rem because they concerned status of Consummate/ the marriage ceremony
the parties, and the status affects or binds the whole world. Sexually
transmissible

disease Q. What if the court renders a default judgment in an annulment case?
A. It has held that an erroneous judgment is not a void judgment.

Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order the Q. May an annulment case be dismissed by the court upon motion of the
prosecuting attorney or fiscal assigned to it to appear on fiscal?
behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not A. Yes. In the case of Tolentino v. Villanueva, the court issued an order
fabricated or suppressed. directing the fiscal to investigate whether or not there is collusion and
the petitioner, upon being subpoenaed by the Fiscal, does not appear
In the cases referred to in the preceding paragraph, no claiming that she does not want to reveal her evidence prematurely to
judgment shall be based upon a stipulation of facts or the fiscal.
confession of judgment. (88a)
Q. Can an annulment suit be terminated by compromise agreement?
Art. 49. During the pendency of the action and in the
absence of adequate provisions in a written agreement A. No. There is no valid compromise legally possible on the issue of the
between the spouses, the Court shall provide for the validity of marriage. (Mendoza v. CA, 19 SCRA 756).
support of the spouses and the custody and support of
their common children. The Court shall give paramount Q. Are annulment cases subject to summary proceedings?
consideration to the moral and material welfare of said
children and their choice of the parent with whom they A. No. Summary proceedings are allowed. A full-blown hearing must be
wish to remain as provided to in Title IX. It shall also undertaken where the parties are duty-bound to prove their grounds
provide for appropriate visitation rights of the other by preponderance of evidence.
parent. (n)
Q. What governs the procedure for annulment and declaration of nullity Q. What is the role of the Fiscal or Solicitor General in annulment and
cases? nullity cases?
A. The procedure is now governed by the Supreme Court En Banc A. The fiscal or the Solicitor General is tasked to take necessary steps to
Resolution in A.M. No. 00-11-01 effective March 15, 2003. prevent collusion between the parties and to take care that evidence is
not fabricated or suppressed. He must actively participate. (Republic
Q. In annulment proceedings, can the defendant be declared in default as vs Cuison-Melgar, 486 SCRA 177, 2006)
in ordinary civil actions?
Q. What is collusion?
A. No. The court will order a full-blown hearing of the case where the
fiscal shall appear on behalf of the state. A. Collusion occurs where, for purposes of getting an annulment or
nullity decree, the parties come up with an agreement making it

appear that the marriage is defective due to the existence of any of Art. 50. The effects provided for by paragraphs (2), (3), (4)
the grounds for the annulment of the marriage or the declaration and (5) of Article 43 and by Article 44 shall also apply in
of its nullity provided by law and agreeing to represent such the proper cases to marriages which are declared ab
false or non existent cause of action before the proper court with the initio or annulled by final judgment under Articles 40
objective of facilitating the issuance of a decree of annulment or and 45.
nullity of marriage. (page 317, no reference)
The final judgment in such cases shall provide for the
Q. Is the failure of the defendant to file an answer or to appeal in court a liquidation, partition and distribution of the properties
conclusive evidence of collusion? of the spouses, the custody and support of the common
children, and the delivery of third presumptive legitimes,
A. No. (Aquino vs Delizo, 109 Phil 21, 1960) unless such matters had been adjudicated in previous
judicial proceedings.
Q. Is an agreement between the parties to file an annulment or nullity
proceeding a conclusive evidence of collusion? All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified
A. No. Even if there is an agreement, collusion will not exist if the of the proceedings for liquidation.
grounds relied upon for the nullity or annulment truly exist and are
not concocted. (page 318, no reference) In the partition, the conjugal dwelling and the lot on
which it is situated, shall be adjudicated in accordance
Q. What will happen to a judge who does not order an investigation for with the provisions of Articles 102 and 129.
collusion?
Art. 51. In said partition, the value of the presumptive
A. He can be subject to administrative sanction. (Corpus vs Garchitorena, legitimes of all common children, computed as of the
435 SCRA 446, 2004) date of the final judgment of the trial court, shall be
delivered in cash, property or sound securities, unless
Q. Can an annulment or nullity decree be issued by the court on the basis the parties, by mutual agreement judicially approved,
of stipulation of facts or confession of judgment? had already provided for such matters.
A. No, if it is solely based on stipulation of facts or confession of judgment. The children or their guardian or the trustee of their
However, stipulations of fact or confession of judgment property may ask for the enforcement of the judgment.
sufficiently supported or corroborated by other independent
substantial evidence to support the main ground relied upon, an The delivery of the presumptive legitimes herein
annulment or nullity decree may be issued. (Ocampo vs prescribed shall in no way prejudice the ultimate
Florenciano, 107 Phil 31, 1960) successional rights of the children accruing upon the
death of either of both of the parents; but the value of the
properties already received under the decree of

annulment or absolute nullity shall be considered as distribution of properties of the spouses in the proper registry of deeds
advances on their legitime. (n) and the delivery of the presumptive legitime. (page 330, no reference)
Q. What is presumptive legitime?

Q. Is the trial court’s finding of existence or non-existence of psychological
incapacity binding on the Supreme Court? A. It is that part of the testator’s property which he cannot dispose of
because the law has reserved it for certain heirs who are,
A. Yes, unless it can be sufficiently shown that the trial court’s factual therefore, called compulsory heirs. (Art 886 of the New Civil Code)
findings and evaluation of the testimonies and the pieces of
evidence presented are clearly and manifestly erroneous. (Tuason v. Q. When is the presumptive legitime computed?
Court of Appeals, 256 SCRA 158, 1996)
A. It shall be computed as of the date of the final judgment of the trial
Q. What is the meaning of the 1st paragraph in Art 50? court. (Art 51 of the Family Code)
A. In so far as void marriages are concerned, paragraphs (2), (3), (4) and Q. When should legitime be delivered?
(5) of Article 43 exceptionally apply ONLY to void subsequent
marriages that occur as a result of the non observance of Article 40. A. (1) Void subsequent marriages resulting from non observance of
Specifically, they apply only to the subsequent void marriage Article 40 in relation Articles 52 and 53 of the Family Code. (Valdes vs
contracted by a spouse of a prior void marriage before the RTC, 260 SCRA 221, 1996)
latter is judicially declared void. In this case, the property shall be
liquidated as if there is a conjugal partnership of gains or an (2) Annulment cases (Article 43 of the Family Code)
absolute community of property. In all other cases of a void marriage
(except non observance of article 40), co-ownership will govern. Art. 52. The judgment of annulment or of absolute nullity
(Valdes v. RTC, 260 SCRA 221, 1996) of the marriage, the partition and distribution of the
properties of the spouses and the delivery of the
But see: Nicdao Carino vs Carino, 351 SCRA 131, 2001. children's presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property;
Q. When will the decree of nullity or annulment be issued? otherwise, the same shall not affect third persons. (n)
A. The decision of the court will be final if no motion for reconsideration Art. 53. Either of the former spouses may marry again
or appeal is filed within 15 days from receipt of the parties of the after compliance with the requirements of the
decision. immediately preceding Article; otherwise, the
Subsequently, a Decree of Absolute Nullity of Marriage or Annulment subsequent marriage shall be null and void.
of Marriage shall be issued. However, the decree will only be
issued after the registrations of the Entry of Judgment in the Art. 54. Children conceived or born before the judgment
proper local civil registries and of the approved partition and 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 marriage are legitimate. Children conceived and born outside a valid
subsequent marriage under Article 53 shall likewise be marriage or inside a void marriage are illegitimate. However, children
legitimate. conceived and born inside a void marriage because one of the parties is
psychologically incapacitated to perform the essential martial
obligations or because the parties to the subsequent marriage have
Q. Is a partial voluntary separation of property agreed upon by the not complied with the mandatory recording and distribution
parties via a compromise agreement duly approved by the court prior requirements under Article 52 in relation to Article 53 are legitimate.
to the judicial declaration of nullity of a marriage valid?
Q. Within what time period could a respondent in a case for declaration of
A. Yes. (Maquilan vs Maquilan, 524 SCRA 166, 2007) absolute nullity of void marriages or annulment of voidable marriages
file an answer?
Q. When will the observance or non-observance of the requirements of
liquidation, partition, distribution and delivery of presumptive A. It depends on how the summons were served. If the summons were
legitime be significant? served to the respondent directly, he must file an answer within fifteen
days from said service of summons. If the summons were served by
A. It will only be crucially material in determining whether or not the publication, he must file his answer within thirty days from the last
subsequent marriage is void only if the previous marriage has issue of publication. Supreme Court En Banc Resolution A. M. 02-11-
been judicially nullified or annulled in accordance with law. Hence, it 10-SC, §8
will not be applicable if the first marriage was terminated by death of
one of the spouses and the surviving spouse remarries. (page 335, no Q. How is the respondent’s answer to a petition for declaration of absolute
reference) nullity of void marriages or annulment of voidable marriages to be
verified?
Q. Where should the judgment of annulment or judicial decree of nullity
be recorded? A. It must be verified by the respondent himself, and not by counsel or
attorney-in-fact. Supreme Court En Banc Resolution A. M. 02-11-10-
A. (1) In the local civil registry of the city or municipality where the court SC, §8
that issued the decision is functioning. (Art 409 of the New Civil
Code) AND Q. What happens when the respondent does not file an answer?
(2) In the local civil registry of the city or municipality where the A. The court shall not declare the respondent in default. However, in
marriage was solemnized. (Section 7 of the Civil Registry Law, Act such cases, and where the answer does not tender an issue, the court
No. 3753) shall order the public prosecutor to investigate whether collusion
exists between the parties. Supreme Court En Banc Resolution A. M.
Q. Give the rule on the status of children. 02-11-10-SC, §8
A. As a general rule, children conceived and born inside a valid marriage Q. What happens when the court orders the public prosecutor to
are legitimate. Children conceived and born inside an annullable investigate whether collusion exists between the parties to a case for

declaration of absolute nullity of void marriages or annulment of Q. What must the notice of pre-trial contain?
voidable marriages?
A. (1) Date of the pre-trial conference, (2) Order directing the parties to
A. Within one month from the receipt of said court order, the public file their pre-trial briefs in such manner that the same be served upon
prosecutor will submit an investigation report stating whether the the adverse party at least three days before the date of pre-trial.
parties are in collusion or not, and serve copies thereof on the parties Supreme Court En Banc Resolution A. M. 02-11-10-SC, §11
and their respective counsels, if any. Supreme Court En Banc
Resolution A. M. 02-11-10-SC, §9 Q. How is the notice of pre-trial to be served?
Q. What happens when the public prosecutor determines that collusion A. The notice shall be served separately on the parties and their
exists? respective counsels as well as the public prosecutor. It shall be sent to
the respondent even if he fails to file an answer. In case of summons
A. He shall state the basis of such finding in his report. The parties shall by publication and the respondent failed to file an answer, notice of
file their respective comments on this finding within ten days from pre-trial will be sent to his last known address. Supreme Court En
receipt of a copy of the report. The court shall set the report for Banc Resolution A. M. 02-11-10-SC, §11
hearing, and dismiss the case if it finds that collusion indeed exists.
Supreme Court En Banc Resolution A. M. 02-11-10-SC, §9 Q. Must the parties appear personally at the pre-trial?
Q. What happens when the public prosecutor determines that collusion A. Yes, it shall be their duty to appear personally. Supreme Court En
does not exist? Banc Resolution A. M. 02-11-10-SC, §11
A. The court shall set the case for pre-trial, where the public prosecutor
will appear for the State. Supreme Court En Banc Resolution A. M. 02- Q. What must the pre-trial brief contain?
11-10-SC, §9
A. (1) Statement that the parties are willing to enter into agreements as
Q. When does pre-trial commence? may be allowed by law, indicating the desired terms thereof, (2)
Concise statement of their respective claims with applicable laws and
A. On motion or motu proprio, the court shall set the pre-trial after the authorities, (3) Admitted facts and proposed stipulations of facts as
last pleading has been served and filed, or upon receipt of the public well as disputed legal and factual issues, (4) All the evidence to be
prosecutor’s investigation report stating that collusion does not exist presented, including expert opinions if any, stating the nature and
between the parties. Supreme Court En Banc Resolution A. M. 02-11- purpose thereof, (5) Number and names of witnesses and their
10-SC, §11 affidavits, (6) Such other matters as the court may require. Supreme
Court En Banc Resolution A. M. 02-11-10-SC, §12
Q. Must there always be pre-trial?
Q. What is the effect of failure to file the pre-trial brief or to comply with
A. Yes, a pre-trial in such cases is mandatory. Supreme Court En Banc the contents required by law for such?
Resolution A. M. 02-11-10-SC, §11

A. Such have the same effect as failure to appear at the pre-trial. Afterwards, the action shall proceed to trial in the proper cases.
Supreme Court En Banc Resolution A. M. 02-11-10-SC, §12 Supreme Court En Banc Resolution A. M. 02-11-10-SC, §15
Q. What is the effect of failure to appear at the pre-trial? Q. Must the presiding judge conduct the trial personally?
A. If the petitioner fails to appear personally, the case will be dismissed A. Yes. Only the reception of evidence related to matters involving the
until his counsel or representative appears in court and proves a valid property relations of the spouses may be delegated to a commissioner.
excuse for the non-appearance of the petitioner. Supreme Court En Banc Resolution A. M. 02-11-10-SC, §17
If the respondent filed an answer but fails to appear personally, pre- Q. May a judgment on the pleading, summary judgment, or confession of
trial will proceed and the court will order the public prosecutor to judgment be allowed?
investigate whether the non-appearance is due to any collusion. The
public prosecutor will submit a report on such investigation within A. No. The grounds for declaration of absolute nullity or annulment of
fifteen days from the order. If there is no collusion, the court will order the marriage must be proved. Supreme Court En Banc Resolution A.
the public prosecutor to intervene for the State during the trial on the M. 02-11-10-SC, §17
merits to prevent suppression or fabrication of evidence. Supreme
Court En Banc Resolution A. M. 02-11-10-SC, §13 Q. Must the trial be conducted in open court?
Q. May the issues of the case be referred to a mediator? A. Not necessarily. The court may order the exclusion from the
courtroom of all persons, including the press, who do not have a direct
A. Yes, the court may refer the case to a mediator at the pre-trial interest in the case if it determines on record that requiring a party to
conference, in order to reach an agreement on matters not prohibited testify in open court would not enhance the ascertainment of truth;
by law. Supreme Court En Banc Resolution A. M. 02-11-10-SC, §14 would cause the party psychological harm or inability to effectively
communicate due to embarrassment, fear, or timidity; would violate
Q. What matters are prohibited by law from becoming the subjects of a the right of a party to privacy; or would be offensive to decency or
compromise? public morals. Supreme Court En Banc Resolution A. M. 02-11-10-SC,
§17
A. (1) Civil status of person, (2) Validity of a marriage or a legal
separation, (3) Any ground for legal separation, (4) Future support, (5) Q. How must the court render its decision?
Jurisdiction of courts, (6) Future legitime. Supreme Court En Banc
Resolution A. M. 02-11-10-SC, §16 A. It shall declare in its decision that the decree of absolute nullity or
decree of annulment be issued only after compliance with Articles 50
Q. What happens after pre-trial? and 51 of the Family Code as implemented under the Rules on
Liquidation, Partition, and Distribution of Properties. Supreme Court
A. The court shall issue a pre-trial order. The parties have five days from En Banc Resolution A. M. 02-11-10-SC, §19
receipt of the pre-trial order to propose corrections or modifications.

Q. When do liquidation, partition and distribution, custody, support of A. Motu proprio or upon application under oath of any of the parties,
common children and delivery of their presumptive legitimes take guardian, or designated custodian, with or without a hearing. Supreme
place? Court En Banc Resolution A. M. 02-11-12-SC, §1
A. Upon entry of the judgment granting the petition or, where there is an Q. When can these order be enforced?
appeal, upon the receipt of the entry of judgment of the appellate
court granting the petition the Family Court upon motion of either A. Immediately, with or without a bond. Supreme Court En Banc
party shall proceed with the above actions unless such matters have Resolution A. M. 02-11-12-SC, §1
been adjudicated in previous judicial proceedings. Supreme Court En
Banc Resolution A. M. 02-11-10-SC, §21 Q. Where can the support for the spouses be taken from?
Q. When shall the Decree of Declaration of Absolute Nullity or A. In the absence of any agreement between the spouses, support may be
Annulment of Marriage be issued? taken from the properties of the absolute community of property or the
conjugal partnership. Supreme Court En Banc Resolution A. M. 02-11-
A. After (1) registration of the entry of judgment granting the petition in 12-SC, §2
the Civil Registries where the marriage was celebrated and where the
Family Court is located, (2) registration of the partition and Q. What factors would guide the court in making an award of support to
distribution of the properties of the spouses in the Register of Deeds either spouse?
where the real properties are located, and (3) delivery of the children’s
presumptive legitimes in cash, property, or sound securities. Supreme A. The court may award support in such amount and for such period as it
Court En Banc Resolution A. M. 02-11-10-SC, §22 may deem just and reasonable based on the standard of the spouse’s
living during the marriage. It may also consider other relevant factors
Q. What if a party dies during the course of the proceedings? that the court may deem just and equitable. Supreme Court En Banc
Resolution A. M. 02-11-12-SC, §2
A. (1) If the party dies before the entry of judgment, the court shall order
the case closed and terminated, without prejudice to the settlement of Q. Where can the support for the common children be taken from?
the estate in proper proceedings in the regular courts. (2) If the party
dies after the entry of judgment, the judgment shall be binding upon A. From the properties of the absolute community or conjugal
the parties and their successors in interest in the settlement of the partnership. Either parent may be required to give an amount
estate in the regular courts. Supreme Court En Banc Resolution A. M. necessary for the support, maintenance and education of the child. It
02-11-10-SC, §24 shall be in proportion to the resources or means of said spouse and the
necessities of the child. Supreme Court En Banc Resolution A. M. 02-
Q. How may the court issue provisional orders and protection orders in 11-12-SC, §3
petitions for declaration of absolute nullity of void marriage or for
annulment of voidable marriage? Q. What must the court consider in determining the right party to whom
custody of the child is to be awarded?

ART. 35-57 MARRIAGE 121 ART. 55-67 LEGAL SEPARATION 122
Void and Voidable Marriages
Art. 55. A petition for legal separation may be filed on
A. The courts shall consider the best interests of the child and give any of the following grounds:
paramount consideration to the material and moral welfare of the
child. Supreme Court En Banc Resolution A. M. 02-11-12-SC, §4 (1)Repeated physical violence or grossly abusive
conduct directed against the petitioner, a
Q. To whom may the courts award provisional custody? common child, or a child of the petitioner;
(2)Physical violence or moral pressure to compel
A. The courts may awards provisional custody in the following order of the petitioner to change religious or political
preference: (1) To both parents jointly, (2) To either parent taking into affiliation;
account all relevant considerations under the foregoing paragraph, (3)Attempt of respondent to corrupt or induce the
especially the choice of the child over seven years of age, unless the petitioner, a common child, or a child of the
parent chosen is unfit, (3) To the surviving grandparent, or if there are petitioner, to engage in prostitution, or
several of them, the grandparent chosen by the child over seven years connivance in such corruption or inducement;
of age and of sufficient discernment, unless the grandparent is unfit or (4)Final judgment sentencing the respondent to
disqualified, (4) to the eldest brother or sister over twenty-one years of imprisonment of more than six years, even if
age, unless he or she is unfit or disqualified, (5) To the child’s actual pardoned;
custodian over twenty-one yeas of age, unless unfit or disqualified, (6) (5)Drug addiction or habitual alcoholism of the
To any other person deemed by the court suitable to provide proper respondent;
care and guidance for the child. Supreme Court En Banc Resolution A. (6)Lesbianism or homosexuality of the respondent;
M. 02-11-12-SC, §4 (7)Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines
Q. What is granted to the parent who is not awarded provisional custody? or abroad;
(8)Sexual infidelity or perversion;
A. Appropriate visitation rights, provided he or she is not unfit or (9)Attempt by the respondent against the life of the
disqualified. Supreme Court En Banc Resolution A. M. 02-11-12-SC, §5 petitioner; or
(10) Abandonment of petitioner by respondent
Q. What is a “Hold Departure Order”? without justifiable cause for more than one year.
A. It is an order issued ex-parte by the court motu proprio or upon For purposes of this Article, the term "child" shall include
application under oath, addressed to the Bureau of Immigration and a child by nature or by adoption. (9a)
Deportation, directing it not to allow the departure of the child from
the Philippines without permission of the court. Supreme Court En Q. Does a decree of legal separation or relative divorce dissolve the
Banc Resolution A. M. 02-11-12-SC, §6 marriage?
A. No, it does not affect the marital status, there being no severance of
TITLE II the vinculum (Laperal v. Republic, 6 SCRA 357). A legal separation
LEGAL SEPARATION decree involves nothing more than a bed-and-board separation of the
spouses (Lapuz v. Eufemio, 43 SCRA 177).

ART. 55-67 LEGAL SEPARATION 123 ART. 55-67 LEGAL SEPARATION 124
Q. Are the grounds enumerated in Article 55 for legal separation A. Physical violence under Article 55(1) is for any purpose, so that no
exclusive? matter how insignificant the purpose, if there is repeated physical
violence, there is a ground for legal separation. Under Article 55(2),
A. Yes. No other grounds may be invoked by any party other than those the physical violence is related to political and religious conviction, and
stated by law. This is in furtherance of the policy of the State to foster need not be repeated. One incident of physical violence or moral
unity in and preserve the marital relation as the same is essential to pressure to compel a change in political or religious affiliation is
the public welfare. sufficient grounds for legal separation under Article 55(2).
Q. May repeated physical injury or grossly abusive conduct be invoked as Q. How must the ground of corruption or inducement to engage in
a ground for legal separation when inflicted upon the child of the prostitution be interpreted?
respondent or the guilty spouse?
A. The children under this ground may or may not be emancipated. The
A. No. It is only a valid ground when inflicted upon the petitioner, a immoral or corrupt act referred to is prostitution only. It cannot be
common child, or a child of the petitioner. The law does not give a any other immoral or corrupt act. To stretch the import of the article
cause of action to the petitioner to file a case for legal separation on the otherwise would not serve the policy of the law of discouraging legal
ground that the respondent-spouse repeatedly inflicts injury upon his separation.
or her own child with another person. However, such repeated
physical violence may be a cause to suspend or terminate the parental Q. Must the respondent have successfully corrupted or induced the
authority of the respondent upon his or her own minor child with petitioner, a common child, or a child of the petitioner to engage in
another person pursuant to Article 231(1) of the Family Code. prostitution or connive in such corruption or inducement?
Q. What is the determinative factor of physical violence under this A. No, a mere attempt is enough to be a ground for legal separation.
ground?
Q. Under the ground of final judgment involving more than six years of
A. The frequency of the act, and not the severity is the determinative imprisonment, against whom must the offense for which the spouse is
factor. It must be committed repeatedly and with bad faith or malice. sentenced to imprisonment be committed?
Q. Could acts not done repeatedly warrant a decree of legal separation A. Anybody. It is not necessary that said offense be committed against
under this ground? the other spouse, their common children, or the petitioner’s children.
A. Yes. Even if the act is not repeated or does not involve physical Q. Distinguish drug addiction, habitual alcoholism, lesbianism and
violence, such act may nevertheless constitute grossly abusive conduct homosexuality as a ground for legal separation from the same as a
under this ground. “Grossly abusive conduct” has no exact definition ground for annulment.
and, therefore, is determined on a case-to-case basis.
A. In annulment, such factors are instances of fraud which must exist at
Q. Differentiate physical violence under Article 55(1) from physical the time of the celebration of marriage. In legal separation, such
violence under Article 55(2). grounds can exist even after the marriage ceremony.

Q. What is the effect of committing bigamy abroad? A. The party who condoned such act is estopped from raising it as a
ground for legal separation because condonation would be tantamount
A. So long as there is a second bigamous marriage, wherever celebrated, to consent. (Minutes of the 156th Joint Meeting of the Civil Code and
a legal separation decree may issue. However, the guilty party cannot Family Law committees held on September 27, 1986, page 12)
be criminally prosecuted in the Philippines for such act committed
abroad as our penal statutes are penal in nature. Q. Are all attempts on the life of the spouse grounds for legal separation?
Q. Must sexual infidelity or perversion amount to concubinage in order to A. No. The attempt on the life of the spouse must proceed from an evil
be considered a ground for legal separation? design and not from any justifiable cause like self-defense, or from the
fact that the spouse caught the other in flagrante delicto having carnal
A. No. A husband’s single sexual act of sexual intercourse with a woman knowledge with another man or woman.
other than his wife may warrant the issuance of a decree of legal
separation. This is true even if the husband and the woman did not Q. Must the spouse who made an attempt on the life of the other be first
commit concubinage by: (a) maintaining a mistress in the conjugal convicted before legal separation can take place?
home, (b) sexual intercourse with another woman under scandalous
circumstances, and (c) cohabiting with her in any place. A. No. No previous criminal conviction is required for the legal
separation case to prosper. The criminal attempt may be proven by
Q. Would sexual intercourse with a person other than one’s spouse after a preponderance of evidence in the case for legal separation.
divorce is obtained abroad still constitute a ground for legal
separation? Q. What is required for unjustified abandonment to be a valid ground for
legal separation?
A. Yes. It has been held that a Filipina who obtains an absolute divorce
abroad and subsequently marries a foreigner and cohabits with the A. The abandonment or desertion must be willful. The act is willful when
same has technically committed “intercourse with a person other than there is a design to forsake the other spouse intentionally, or without
her husband”, considering that the divorce obtained abroad is not cause and therefore, break up the marital union; deliberate intent to
recognized in the Philippines and her subsequent marriage therefore cease living with the other spouse; abnegation of all duties of the
is bigamous. (Tenchavez v. Escano, 15 SCRA 355; Manila Surety & marriage relation, not to return. Mere severance of the relation is not
Fidelity Co., Inc. v. Teodoro, 20 SCRA 463) sufficient. There must be a wrongful intent to desert, continued for the
statutory period. (Tipton v. Tipton, 169 Ia. 182, 151 N.W. 90)
Q. Against whom must the ground of sexual perversion be committed?
Q. Characterize the abandonment contemplated by this ground for legal
A. Sexual perversion includes engaging in such behavior not only with separation.
third persons but also with the spouse. (Minutes of the 156th Joint
Meeting of the Civil Code and Family Law committees held on A. It must be an abandonment without justifiable cause. Thus, in a case
September 27, 1986, page 12) where the wife left the conjugal abode because she was being battered
by the husband, the Supreme Court ruled that the act of the wife was
Q. What is the effect of condonation of sexual infidelity or perversion? for a justifiable cause and therefore cannot be a ground for legal

separation (Ong v. Ong, 505 SCRA 76). Physical separation alone is (3)Where there is connivance between the parties in the
not the full meaning of the term “abandonment”, if the wife or commission of the offense or act constituting the
husband, despite his or her voluntary departure from the society of his ground for legal separation;
or her spouse, neither neglects the management of the conjugal (4)Where both parties have given ground for legal
partnership nor ceases to give support to his wife or her husband (Dela separation;
Cruz v. Dela Cruz, 22 SCRA 333). There must be absolute cessation of (5)Where there is collusion between the parties to obtain
marital relations, duties, and rights, with the intention of perpetual decree of legal separation; or
separation (Partosa-Jo v. Court of Appeals, 216 SCRA 692). The act of (6)Where the action is barred by prescription. (100a)
separation, and the continued intent to remain separate, must be
wrongful in the sense that there is no excuse for the spouse that Art. 57. An action for legal separation shall be filed
separated (Williamson v. Williamson, 183 Ky. 435, 209 S.W. 503, 3 within five years from the time of the occurrence of the
ALR 799). cause. (102)
Q. What if both spouses agree to the separation contemplated by this

ground? Q. What is condonation?
A. A separation where both parties willingly concur is not, in any sense of A. Condonation is the act of forgiving the offense after its commission.
the word, a willful desertion of one by the other (Smythe v. Smyth, 80 However, condonation implies a condition of future good behavior by
Ore. 150, 149 Pac. 516). the offending spouse. Subsequent violation of this condition nullifies
the condonation and revives the original offense (Ann. Cas. 1918A 657
Q. How much time must pass before a spouse can be said to have note; Brown v. Brown, 103 Kan. 53, 172 Pac. 1005, LRA 1918F 1033
abandoned the other? and note).
A. A spouse is deemed to have abandoned the other when he or she has Q. How is condonation manifested?
left the conjugal dwelling without intention of returning. The spouse
who left the conjugal dwelling for a period of three months or has A. It has been held that the act of giving money to an erring wife and the
failed within the same period to give any information as to his or her fact that no action was taken against her in the courts of justice are
whereabouts shall be prima facie presumed to have no intention of sufficient to establish forgiveness amounting to condonation, for
returning to the conjugal dwelling. (Articles 101 and 128 of the Family condonation is the forgiveness of one othe married parties of an offense
Code) which he knows the other has committed against the other. Pardon or
condonation does not require sexual intercourse, and it may be express
Art. 56. The petition for legal separation shall be denied or implied (Almacen v. Baltazar, 103 Phil. 1147).
on any of the following grounds:
(1)Where the aggrieved party has condoned the offense Q. When is there consent?
or act complained of;
(2)Where the aggrieved party has consented to the A. There is consent when either of the spouses agreed to or did not object,
commission of the offense or act complained of; despite full knowledge, to the act giving rise to a ground for legal

separation, before such act was in fact committed. Consent may also (Griffith v. Griffith, 69 N.J. Eq. 689, 60 Atl. 1099; Sandoz v. Sandoz,
be deduced from the acts of the spouses. 107 Ore. 282, 214 Pas. 590)
Q. What is connivance? Q. What is the prescriptive period of legal separation?
A. Connivance denotes direction, influence, personal exertion, or other A. An action for legal separation must be filed within 5 years from the
action with knowledge and belief that such action would produce occurrence of the cause. After the lapse of this period, the legal
certain results and which results are produced (Cohen, Divorce and separation case can no longer be filed.
Alimony in North Carolina, 59, IV, p. 98).
Q. Is the time of discovery material in counting the prescriptive period?
Q. What is the doctrine enunciated in the case of Witherspoon v.
Witherspoon, 108 Pa. Super. 309, 64 A. 842, 84e)? A. No. Time of discovery is not material.
A. Where a husband employed agents to induce, persuade and coerce his Art. 58. An action for legal separation shall in no case be
wife into participating in illicit sexual activities, this act of the tried before six months shall have elapsed since the filing
husband can be considered as active connivance. When a husband of the petition. (103)
lays a lure for his wife, either acting in person or through an agent, his
will necessarily concurs in her act. Art. 59. No legal separation may be decreed unless the
Court has taken steps toward the reconciliation of the
Q. Why is recrimination or equal guilt a ground for denying legal spouses and is fully satisfied, despite such efforts, that
separation? reconciliation is highly improbable. (n)
A. The reason for this rule lies in the equitable maxim that he who comes Art. 60. No decree of legal separation shall be based upon
into equity must come with clean hands (Ann. Cas. 1917A 178 note). a stipulation of facts or a confession of judgment.
When two persons acted in bad faith, they should be considered as
having acted in good faith. They are in pari delicto. Hence, the In any case, the Court shall order the prosecuting
plaintiff-spouse cannot invoke the guilt of the other if such plaintiff- attorney or fiscal assigned to it to take steps to prevent
spouse is guilty for giving grounds for legal separation. collusion between the parties and to take care that the
evidence is not fabricated or suppressed. (101a)
Q. Distinguish collusion from connivance.
Art. 61. After the filing of the petition for legal
A. Collusion is a corrupt agreement, while connivance is a corrupt separation, the spouses shall be entitled to live
consenting. To constitute collusion, there must be an agreement separately from each other.
between husband and wife looking to the procuring of a divorce (2 ALR
701 note). It means there is an agreement between husband and wife The court, in the absence of a written agreement
for one of the to commit, or to be represented in court as having between the spouses, shall designate either of them or a
committed, a matrimonial offense, or to suppress evidence of a valid third person to administer the absolute community or
defense, for the purpose of enabling the other to obtain a divorce conjugal partnership property. The administrator

appointed by the court shall have the same powers and A. Yes. To make sure that there is no collusion and the evidence
duties as those of a guardian under the Rules of presented is not fabricated. However, if the legal separation case is
Court. (104a) vehemently opposed, it is clear that there is no collusion. In these
cases, the non-intervention of the prosecuting-attorney to assure lack
Art. 62. During the pendency of the action for legal of collusion between the contending parties is not fatal to the validity
separation, the provisions of Article 49 shall likewise of the proceedings in court especially when it was not shown that the
apply to the support of the spouses and the custody and evidence was suppressed or fabricated by any of the parties. (Tuason v.
support of the common children. (105a) Court of Appeals, 25 SCRA 158).
Q. What is the purpose of the 6-month cooling off period?

Q. What is the procedure in filing a complaint for legal separation?
A. This 6-month period is designed to give the parties enough time to
A. (1) Upon filing of the complaint, the defendant shall be required to further contemplate their positions with the end in view of attaining
answer within 15 days from receipt of the summons and a copy of the reconciliation between them.
petition. If the defending party fails to answer, he or she cannot be
defaulted and the court shall order the prosecuting attorney to Q. What is the exception to the 6-month cooling off period?
investigate whether or not a collusion between the parties exists, and
if there is no collusion, to intervene for the state in order to see to it A. When the ground for legal separation involves violence against woman
that the evidence submitted is not fabricated. or the child (Sec. 19 of RA 9262).
(2) Whether or not the defendant files an answer to the complaint, no Q. What is the consequence for non-observance of the 6-month cooling-off
hearing on the merits shall be set by the courts for 6 months. period?
(3) The court should take steps toward the reconciliation of the spouses A. It is a ground to set aside a decision granting legal separation (Pacete
and should be satisfied that despite such efforts, reconciliation is v. Carriaga, 49 SCAD 673).
highly improbable.
Q. What can be litigated during the 6-month cooling-off period?
(4) Proof by preponderance of evidence is required to substantiate the
ground for legal separation. The material facts alleged in the A. Any other incident such as the determination of the custody of the
complaint must be proved. children, alimony and support pendnte lite may be heard inside the 6-
month cooling-off period. S motion to dismiss during the 6-month
(5) Judgment shall be issued by the judge, either granting the legal period may also be filed if there are grounds to do so. What is
separation or denying the same, prevented from being heard in this 6-month period is the hearing on
the merits with respect to the validity or invalidity of the ground for
Q. If the party answers, is the fiscal still required to be present during legal separation.
trial?
Q. What is required to substantiate the legal separation case?

A. Proof by preponderant of evidence is required to substantiate the (3)The custody of the minor children shall be
ground for legal separation (Gandionco v. Peñaranda, 155 SCRA 725). awarded to the innocent spouse, subject to the
In actions for legal separation, the material facts alleged in the provisions of Article 213 of this Code; and
complaint shall always be proved (Sec. 1, Rule 34 of the 1997 Rules of (4)The offending spouse shall be disqualified from
Civil Procedure). inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
Q. Who shall manage the properties during the legal separation suit? offending spouse made in the will of the innocent
spouse shall be revoked by operation of
A. There should be a written agreement between the spouses as to who law. (106a)
shall manage the properties. In the absence of a written agreement
between the spouses, the court shall designate either of the spouses or
a third person to administer the absolute community or conjugal Q. What are the effects of a decree of legal separation?
partnership property.
A. (a) The spouses shall be entitled to live separately from each other, but
Q. What are the powers and duties of a court appointed administrator? the marriage bond shall not be severed
A. He or she has the same powers and duties as that of a guardian under (b) The absolute community or the conjugal partnership shall be
the Rules of Court. dissolve and liquidated but the offending spouse shall have no right to
any share of the net profits earned by the absolute community or the
Q. What is the effect of death of the plaintiff before the final decree in an conjugal partnership, which shall be forfeited in accordance with the
action for legal separation? provisions of Article 43(2)
A. The death of one of the party to the action causes the death of the (c) The custody of the minor children shall be awarded to the innocent
action itself (actio personalis moritur cum persona). spouse, subject to the provision of Article 213 of the Family Code; and
(d) The offending spouse shall be disqualified from inheriting form the
Art. 63. The decree of legal separation shall have the following innocent spouse by intestate succession, Moreover, provisions in favor
effects: of the offending spouse in the will of the innocent spouse shall be
(1)The spouses shall be entitled to live separately revoked by operation of law.
from each other, but the marriage bonds shall
not be severed; Q. When will the decree of legal separation be deemed as final?
(2)The absolute community or the conjugal
partnership shall be dissolved and liquidated but A. When the decree is itself is issued, the finality of the separation is
the offending spouse shall have no right to any complete after the lapse of the period to appeal the decision to a higher
share of the net profits earned by the absolute court even if the effects, such as the liquidation of the property, have
community or the conjugal partnership, which not yet been commenced nor terminated.
shall be forfeited in accordance with the
provisions of Article 43(2); Q. Is the marriage bond severed by a decree of legal separation?

of or change in the designation of the insurance

A. No. The spouses are only entitled to live separately from each other beneficiary shall take effect upon written notification
but the marriage bond is not severed. They are still married to each thereof to the insured.
other. Thus, a spouse can still be held criminally liable for bigamy,
concubinage or adultery of he or she commits the act. The action to revoke the donation under this Article
must be brought within five years from the time the
Q. The share of the offending spouse shall be forfeited in whose favor? decree of legal separation become final. (107a)
A. His share shall be forfeited in favor of the common children or, if there Q. In case of legal separation case, what happens to donations and
be none, the children of the guilty spouse by a previous marriage or, I insurance in the name of the offending spouse?
default of children, the innocent spouse.
A. The law gives the option to the innocent party whether or not he or she
Q. Who will have custody of minor children? will revoke the donation or the designation as beneficiary of the guilty
party in an insurance.
A. The innocent spouse shall be awarded the custody of the minor
children. However, in all matters relating to the custody of the child, Q. How to revoke a donation?
the paramount interest of the child shall be the standard. Hence, the
court may even award the custody of the child to a third person of the A. The innocent spouse must file an action for revocation within 5 years
court believes that both spouses are not fit to take care of the child. from the time the decree of legal separation has become final.
Q. What is the effect of legal separation in testate or intestate succession? Q. What if the donation is void?
A. The offending spouse is disqualified from inheriting from the innocent A. The right to bring an action to declare the nullity of the donation does
spouse by intestate succession. Moreover, the provisions in favor of the not prescribe.
offending spouse made in the will of the innocent spouse shall be
revoked by operation of law. Q. When will the revocation take effect?
Art. 64. After the finality of the decree of legal separation, A. From the deliberations of the Code, the revocation of, or change in, the
the innocent spouse may revoke the donations made by designation of the insurance beneficiary shall take effect upon written
him or by her in favor of the offending spouse, as well as notification thereof to the insurer and not to the insured as provided
the designation of the latter as beneficiary in any for in the law. There is a discrepancy between the final version of the
insurance policy, even if such designation be stipulated provision and the one signed by the President into law.
as irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where Art. 65. If the spouses should reconcile, a corresponding
the properties are located. Alienations, liens and joint manifestation under oath duly signed by them shall
encumbrances registered in good faith before the be filed with the court in the same proceeding for legal
recording of the complaint for revocation in the separation. (n)
registries of property shall be respected. The revocation

Art. 66. The reconciliation referred to in the preceding Q. What are the effects of reconciliation?
Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending, A. (1) The legal separation proceedings, if still pending, shall thereby be
shall thereby be terminated at whatever stage; terminated in whatever stage; and
and
(2) The final decree of legal separation shall be set (2) The final decree of legal separation shall be set aside, but the
aside, but the separation of property and any separation of property and any forfeiture of the share of the guilty
forfeiture of the share of the guilty spouse spouse already effected shall subsist, unless the spouses agree to
already effected shall subsist, unless the spouses revive their former property regime.
agree to revive their former property regime.
The order containing the termination of the case or the setting aide of
The court's order containing the foregoing shall be the decree, as the case may be, shall be recorded in the proper civil
recorded in the proper civil registries. (108a) registries.
Art. 67. The agreement to revive the former property

regime referred to in the preceding Article shall be Q. What shall the agreement to revive the property regime specify?
executed under oath and shall specify:
(1)The properties to be contributed anew to the A. (1) The properties to be contributed anew to the restored regime
restored regime; (2) Those to be retained as separate properties of each spouse; and
(2)Those to be retained as separated properties of each (3) The names of all their known creditors, their addresses and the
spouse; and amounts owing to each.
(3)The names of all their known creditors, their
addresses and the amounts owing to each. Q. How should the parties make known their reconciliation?
The agreement of revival and the motion for its approval A. The spouses should file a joint manifestation of reconciliation in court.
shall be filed with the court in the same proceeding for
legal separation, with copies of both furnished to the Q. What is the effect of reconciliation to the separation of properties?
creditors named therein. After due hearing, the court
shall, in its order, take measure to protect the interest of A. The separation of properties shall subsist. However, the parties can
creditors and such order shall be recorded in the proper enter into an agreement, which should be approved by the court,
registries of properties. reviving the previous property regime. The agreement shall contain a
list of which properties shall remain separate and which properties
The recording of the ordering in the registries of shall be contributed to the revived property regime.
property shall not prejudice any creditor not listed or
not notified, unless the debtor-spouse has sufficient Q. What is the effect of reconciliation with the creditors of the spouses?
separate properties to satisfy the creditor's claim. (195a,
108a) A. The agreement reviving the previous property regime shall contain the
names and addresses of the creditors and the amounts of the credit.

ART. 55-67 LEGAL SEPARATION 139 Art. 68-73 RIGHTS AND OBLIGATIONS 140
BETWEEN HUSBAND AND WIFE
The creditors must be furnished the motion seeking the approval of
the agreement. After due hearing, the court shall, in its order, take
measures to protect the interest of creditors and such order shall be Q. When may a court compel a husband and a wife to comply with
recorded in the proper registry of property. The recording of the order obligations of marriage?
in the registries of property shall not prejudice any creditor any
creditor not listed or not notified, unless the debtor-spouse has A. A court cannot compel the spouses to live together, observe mutual
sufficient separate properties to satisfy the creditor’s claim. love, respect and fidelity. However, as an exception, the court may
compel the spouses to comply with their obligation for support
Q. May the parties adopt a different property regime after reconciliation? (Ramirez-Cuaderno v. Cuaderno; Potenciano v. CA). Because marital
duties and obligations are highly personal, spouses may not be
A. Yes. The new rules promulgated by the Supreme Court specifically compelled to render them.
allow the adoption of another regime of property relations different
from that which they had prior to the filing of the petition for legal Q. May a court compel a wife to render domestic assistance and conjugal
separation. companionship?
Q. What is the effect of reconciliation with the disinheritance of the A. No. Jurisprudence has held that a wife’s domestic assistance and
offending spouse? conjugal companionship are purely personal and voluntary acts, which
neither the spouses may be compelled to render (Arroyo v. Arroyo).
A. The innocent spouse has an option to again reinstitute the provision in
a will previously made to the guilty spouse, but which was revoked by Q. May damages be awarded in case of a breach or a failure to comply
operation of law by the issuance of the decree of legal separation. with marital obligations?
A. No (Ty v. CA).
TITLE III Q. What then is the remedy of the innocent spouse against the guilty
RIGHTS AND OBLIGATIONS BETWEEN spouse?
HUSBAND AND WIFE A. The guilty spouse may be held liable under the Articles 19, 20 or 21 of
the Civil Code or the abuse of right doctrine, if he or she acted in bad
Art. 68. The husband and wife are obliged to live faith in refusing to comply with the marital obligations and if the
together, observe mutual love, respect and fidelity, property regime is separation of property.
and render mutual help and support. (109a)
Q. What are some examples of instances when damages were awarded in
Q. What is role does procreation play in marriage? relation to marital obligations?
A. Procreation is an essential marital obligation, considering that such A. 1. The desertion and securing of an invalid divorce decree of one
obligation springs from the universal principle that procreation of consort entitled the other to damages and attorney’s fees (Tenchavez v.
children through sexual cooperation is the basic end of marriage (Chi Escano);
Ming Tsoi v. CA).

Art. 68-73 RIGHTS AND OBLIGATIONS 141 Art. 68-73 RIGHTS AND OBLIGATIONS 142
BETWEEN HUSBAND AND WIFE BETWEEN HUSBAND AND WIFE
2. A person who deprives a spouse of the consortium or services of the Q. What is the nature of the judicial proceedings described in paragraph
other spouse can be held liable for damages, but this must first be fully 1 and 2 of this Article?
proven (Lilius v. Manila Railroad Company).
A. The judicial proceedings shall be summary in nature.
Q. Can a husband commit rape against his wife?
Art. 70. The spouses are jointly responsible for the
A. Yes (Article 266-A of the Revised Penal Code). But the subsequent support of the family. The expenses for such support and
forgiveness by the wife as the offended party shall extinguish the other conjugal obligations shall be paid from the
criminal action or the penalty. community property and, in the absence thereof, from
the income or fruits of their separate properties. In case
Q. What is the exception to this rule? of insufficiency or absence of said income or fruits, such
obligations shall be satisfied from the separate
A. If the marriage is void ab initio, the crime shall not be extinguished properties. (111a)
nor shall the penalty be abated.
Art. 71. The management of the household shall be the
Art. 69. The husband and wife shall fix the family right and the duty of both spouses. The expenses for such
domicile. In case of disagreement, the court shall decide. management shall be paid in accordance with the
provisions of Article 70. (115a)
The court may exempt one spouse from living with the
other if the latter should live abroad or there are other Art. 72. When one of the spouses neglects his or her
valid and compelling reasons for the exemption. duties to the conjugal union or commits acts which tend
However, such exemption shall not apply if the same is to bring danger, dishonor or injury to the other or to the
not compatible with the solidarity of the family. (110a) family, the aggrieved party may apply to the court for
relief. (116a)
Q. Define domicile.
Q. Who is responsible for the management of the household?
A. The domicile of natural persons is the place of their habitual residence.
It is the place where the parties intend to have their permanent A. It shall be the right and duty of both the spouses regardless of their
residence with the intention of always returning even if they have left property regime (e.g. if the family house is separately owned by one of
it for some time. Thus, the spouses can have only one domicile but the spouses, the other spouse still has the right and duty relative to
many residences. the management of the household).
Q. What is the rule on domicile regarding minors? Q. What is the remedy of the aggrieved spouse if the other spouse
neglects his or her duties to the conjugal union or commits acts which
A. A minor follows the domicile of his or her parents. tend to bring danger, dishonor or injury to the other or to the family?
A. The aggrieved spouse may apply to court for relief, which includes:

Art. 68-73 RIGHTS AND OBLIGATIONS 143 Art. 68-73 RIGHTS AND OBLIGATIONS 144
BETWEEN HUSBAND AND WIFE BETWEEN HUSBAND AND WIFE
1. Legal separation case; A. Generally, the following are chargeable:

2. Annulment of marriage case; 1. The exercise of a legitimate profession, occupation, business or
3. Petition for receivership; activity is presumed to redound to the benefit of the family,
4. Petition for judicial separation of property; or except if is involves an isolated transaction (proof showing a
5. Petition for authority to be the sole administrator of the direct benefit to the family must be presented);
community property or the conjugal partnership. 2. Obligations incurred by the spouse in the exercise of his or her
legitimate profession, occupation, business or family business
Art. 73. Either spouse may exercise any legitimate are presumed to redound to the benefit of the family;
profession, occupation, business or activity without the 3. Debts and obligations of whatever nature and regardless of the
consent of the other. The latter may object only on valid, time they were incurred, whether before or after the marriage
serious, and moral grounds. ceremony, and redound to the benefit of the family.
In case of disagreement, the court shall decide whether Q. What is the exception to this rule?
or not:
(11) The objection is proper, and A. In case the profession is seriously invalid and immoral, the separate
(12) Benefit has occurred to the family prior to the property of the erring spouse shall be liable, even if benefits accrued in
objection or thereafter. If the benefit accrued favor of the family. However, for this to apply the innocent spouse
prior to the objection, the resulting obligation must have no knowledge of the other spouse’s engagement in an
shall be enforced against the separate property immoral activity such that he could not have interposed any objection;
of the spouse who has not obtained consent. otherwise, the innocent spouse would be deemed to have agreed with
the other spouse’s immoral endeavors.
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith. (117a)
Q. What is the regarding the exercise of the husband and the wife of a TITLE IV
business or profession? PROPERTY RELATIONS BETWEEN
HUSBAND AND WIFE
A. The general rule is that the law does not require a spouse to obtain
prior consent from the other before entering into any legitimate Chapter 1. General Provisions
profession or activity.
The exception is when one spouse objects to the occupation of the other Art. 74. The property relationship between husband and
on valid serious and moral grounds, in which case the court may wife shall be governed in the following order:
decide on the objection in a summary proceeding. (1)By marriage settlements executed before the
marriage;
Q. What are chargeable against the absolute community property or the (2)By the provisions of this Code; and
conjugal partnership of gains? (3)By the local custom. (118)

Art. 74-81 PROPERTY RELATIONS BETWEEN 145 Art. 74-81 PROPERTY RELATIONS BETWEEN 146
HUSBAND AND WIFE HUSBAND AND WIFE
General Provisions General Provisions
Art. 75. The future spouses may, in the marriage A. The following are invalid:
settlements, agree upon the regime of absolute 1. A stipulation that the absolute community property or conjugal
community, conjugal partnership of gains, complete partnership of gains will start at a time other than the precise
separation of property, or any other regime. In the moment of the celebration of marriage;
absence of a marriage settlement, or when the regime 2. A stipulation that the spouses can make substantial donations to
agreed upon is void, the system of absolute community of each other during the marriage;
property as established in this Code shall govern. (119a) 3. In case a marriage has been terminated by the death of one
spouse and there has been no liquidation of the properties of the
Art. 76. In order that any modification in the marriage previous marriage, the surviving spouse, if he or she decides to
settlements may be valid, it must be made before the remarry, cannot executed a marriage settlement providing for a
celebration of the marriage, subject to the provisions of regime other than complete separation of property regime.
Articles 66, 67, 128, 135 and 136. (121)
Q. May parties design their own property regime?
Art. 77. The marriage settlements and any modification
thereof shall be in writing, signed by the parties and A. Yes, provided it is not in violation of any law.
executed before the celebration of the marriage. They
shall not prejudice third persons unless they are Q. When must modifications to marriage settlements be made?
registered in the local civil registry where the marriage
contract is recorded as well as in the proper registries of A. Generally, these must be made prior to the marriage ceremony.
properties. (122a) Exceptionally, modifications may be made after the marriage
ceremony, provided that:
Q. What are the requisites for a valid marriage settlement? 1. There is judicial approval; and
2. It involves the following modifications:
A. The requisites for a valid marriage settlement are the following: a. Revival of the former property regime after a legal separation
1. Must be in writing; reconciliation can be made only through a court order
2. Must be signed by the parties; recorded in the proper civil registries (Arts. 66 and 67);
3. Made prior to the marriage ceremony; b. Abandonment or failure to comply with marital obligations,
4. Parties may agree on any arrangement in their marriage the court may issue a decree of judicial separation of property
settlement, provided it is not contrary to law and public policy; upon petition by the aggrieved spouse (Art. 128);
and c. Provides sufficient causes for judicial separation of property
5. Must be effective at the moment of the marriage ceremony. (Art. 135); or
That the marriage settlement be registered in the local civil registrar d. Voluntary separation and dissolution of absolute community
is not required for its validity, but only to bind third parties. property or conjugal partnership of gains (Art. 136).
Q. What are examples of prohibited stipulations in a marriage Q. What is a custom?

settlement?

General Provisions General Provisions
A. It is a rule of conduct formed by the repetition of acts uniformly Art. 80. In the absence of a contrary stipulation in a
observed as a social result, legally binding and obligatory. marriage settlement, the property relations of the
spouses shall be governed by Philippine laws, regardless
Q. What property regime will apply in case where the parties stipulate in of the place of the celebration of the marriage and their
their marriage settlement that local customs shall apply, or that residence.
absolute community property shall not govern their property relations This rule shall not apply:
but fail to stipulate what property regime shall be applied? (1)Where both spouses are aliens;
(2)With respect to the extrinsic validity of contracts
A. The local custom shall be applied. affecting property not situated in the Philippines
and executed in the country where the property
Art. 78. A minor who according to law may contract is located; and
marriage may also execute his or her marriage (3)With respect to the extrinsic validity of contracts
settlements, but they shall be valid only if the persons entered into in the Philippines but affecting
designated in Article 14 to give consent to the marriage property situated in a foreign country whose
are made parties to the agreement, subject to the laws require different formalities for its extrinsic
provisions of Title IX of this Code. (120a) validity. (124a)
Art. 79. For the validity of any marriage settlement Q. What is the rule when it comes to property relations of the spouses?
executed by a person upon whom a sentence of civil
interdiction has been pronounced or who is subject to A. The general rule is the property relations of the spouses will be
any other disability, it shall be indispensable for the governed by their agreement in the marriage settlement, provided
guardian appointed by a competent court to be made a that it must not be contrary to law or public policy and that it must be
party thereto. (123a) within the limits provided in the Family Code.
Q. What is the rule now in relation to Article 78? Q. What if there is no agreement between the spouses?
A. Article 78 was impliedly repealed when the age of majority was A. In the absence of any agreement, property relations will be governed
lowered to 18. Now, no minor may contract a valid marriage. by Philippine laws if the parties are both Filipinos, even is they
married abroad or reside abroad. This is because the basis is the
Q. What is civil interdiction? nationality rule.
A. It deprives the offender during the time of his sentence of: However, this rule is not applicable, and thus other laws shall govern,
1. Rights of parental authority; in the following cases:
2. Guardianship, either as to the person or property of any ward; a. where both spouse are foreigners; or
3. Right to manage his property; and b. involving the extrinsic validity of a contract when the
4. Right to dispose of such property by any conveyance inter vivo. property is executed abroad, whether the contract is
executed in the Philippines or abroad.

General Provisions Donations by Reason of Marriage
Art. 81. Everything stipulated in the settlements or the Civil Code, insofar as they are not modified by the
contracts referred to in the preceding articles in following articles. (127a)
consideration of a future marriage, including donations
between the prospective spouses made therein, shall be Art. 84. If the future spouses agree upon a regime other
rendered void if the marriage does not take place. than the absolute community of property, they cannot
However, stipulations that do not depend upon the donate to each other in their marriage settlements more
celebration of the marriages shall be valid. (125a) than one-fifth of their present property. Any excess shall
be considered void.
Q. What is the effect of a marriage settlement if the marriage does not
take place? Q. What is a donation propter nuptias?
A. Generally, the marriage settlement is rendered void because the A. Donations by reason of marriage, or donation propter nuptias, are
consideration of the marriage settlement is the marriage itself. those which are made before its celebration, in consideration of the
same, and in favor of one or both of the future spouses. (article 82, FC)
Q. Are there cases when the provisions in a marriage settlement are
separable? Q. What is the consideration for donations propter nuptias?
A. Yes, for instance:
1. Provisions which invalid but do not affect the rest of the A. Donations propter nuptias are without onerous consideration, the
provisions stipulated in the marriage settlement will be marriage being merely the occasion or motive for the donation, not its
rendered ineffectual, the rest will continue to remain enforced; “causa.” Being liberalities, they remain subject to reduction for
or inofficiousness upon the donor’s death, if they should infringe the
2. Stipulations which do not depend upon the celebration of legitime of the forced heir (Mateo v. Lagua, 29 SCRA 864) Thus, it has
marriage shall be valid (e.g. provision to suppose the common been held that a deed of donation executed before the marriage by one
children of the contracting parties). of the spouses, which, among other things, provides that the marriage
would have to be childless, that one of the spouses would have to die
before the donation would operate, and that the donation was made
Chapter 2. Donations by Reason of Marriage not in favor of the wife but rather in favor of those who acted as her
parents and raised her from girlhood to womanhood in the absence of
Art. 82. Donations by reason of marriage are those which her father, cannot be regarded as one made in consideration of
are made before its celebration, in consideration of the marriage. (Serrano vs. Solomon, 105 Phil. 998)
same, and in favor of one or both of the future spouses.
(126) Q. What are the requisites of a valid donation?
Art. 83. These donations are governed by the rules on A. The following are the requisites of a valid donation:
ordinary donations established in Title III of Book III of 1. Must be made prior to the marriage ceremony
2. Made in consideration of marriage

Donations by Reason of Marriage Donations by Reason of Marriage
3. Made in favor of one or both spouses co- owners of whatever each of them owns before the marriage and
4. Donee must accept the donation personally or thru an authorized whatever each of them acquires after the marriage.
person with special power of attorney for the purpose or with a
general/sufficient power Q. When will the “not more than one- fifth” limitation not apply?
5. The acceptance must be made during the lifetime of donor and
donee A. If there is a marriage settlement providing for a particular property
regime other than the absolute community property and there is also a
Q. What kind of donations are excluded? donation propter nuptias not included in a marriage settlement but
contained in a separate deed, the “not more than one- fifth” limitation
A. The following donations are excluded: will not apply. Instead, the general rules on donation contained in
1. Made in favor of the spouses after the celebration of the marriage; Title III of Book III of the Civil Code shall govern. This is subject to the
2. Executed in favor of the future spouses but not in consideration of provision in the Civil Code that “no person may give or receive, by way
marriage; and of donation, more than he may give or receive by will. The donation
3. Granted to persons other than the spouses even though they may be shall be inofficious in all that it may exceed this limitation.” (Article
founded on the marriage (6 Manresa 232, cited in Serrano v. Solomon, 752 of the Civil Code)
105 Phil. 998)
Art. 85. Donations by reason of marriage of property
Q. What are the requisites of a valid donation between future spouses? subject to encumbrances shall be valid. In case of
foreclosure of the encumbrance and the property is sold
A. The following are the requisites of a valid donation between future for less than the total amount of the obligation secured,
spouses: the donee shall not be liable for the deficiency. If the
1. There must be a valid marriage settlement property is sold for more than the total amount of said
2. The marriage settlement must stipulate a property regime obligation, the donee shall be entitled to the excess.
other than ACP (131a)
3. The donation contained in the marriage must not be more
than 1/5 of his/her present property Q. If the object of the donation is subject of an encumbrance, is the
4. The donation must be accepted by the would-be spouse donation valid?
5. It must comply w/ the requisites on donations (Title 3, Book 3,
NCC) A. Yes. The donation is still valid even if the object of donation is subject
of an encumbrance. However, the donee’s rights are subject to the
Q. When can there be a donation between future spouses? encumbrance.
A. Giving a donation propter nuptias to a would- be spouse prior to the Q. What are the consequences if the property donated is subject to an
marriage is useless if the property regime that will govern their encumbrance?
marriage is the absolute community of property. This is so because
generally, in an absolute community of property, the spouses become A. The following are the consequences if the object donated is foreclosed:

1. Deficiency – donee NOT liable if the amount obtained is less than A. A donation by reason of marriage may be revoked by the donor in the
amount of the debt of donor; he is not a solidary debtor of the liability following cases:
of the donor 1. If the marriage is not celebrated or judicially declared void ab initio
2. Excess – donee entitled to the excess; but donee cannot seek except donations made in the marriage settlements, which shall be
reimbursement from donor for the amount w/c was taken by the governed by Article 81;
creditor 2. When the marriage takes place without the consent of the parents
or guardian, as required by law;
Art. 86. A donation by reason of marriage may be revoked 3. When the marriage is annulled, and the donee acted in bad faith;
by the donor in the following cases: 4. Upon legal separation, the donee being the guilty spouse;
(1)If the marriage is not celebrated or judicially 5. If it is with a resolutory condition and the condition is complied
declared void ab initio except donations made in with;
the marriage settlements, which shall be governed 6. When the donee has committed an act of ingratitude as specified by
by Article 81; the provisions of the Civil Code on donations in general.
(2)When the marriage takes place without the consent
of the parents or guardian, as required by law; Q. What is the effect on the donation propter nuptias if the marriage is
(3)When the marriage is annulled, and the donee acted not celebrated?
in bad faith;
(4)Upon legal separation, the donee being the guilty A. If the marriage is not celebrated, the donor has the option to revoke or
spouse; to maintain the donation.
(5)If it is with a resolutory condition and the condition
is complied with; Q. What happens to the donation propter nuptias, contained in a
(6)When the donee has committed an act of marriage settlement executed prior to the marriage, if the marriage is
ingratitude as specified by the provisions of the not celebrated?
Civil Code on donations in general. (132a)
A. Generally, if the donation is contained in a marriage settlement
Art. 87. Every donation or grant of gratuitous advantage, executed prior to the marriage, the donation is void. Except in cases
direct or indirect, between the spouses during the where the donation does not depend on the celebration of the
marriage shall be void, except moderate gifts which the marriage, in which case, the donation remains effected.
spouses may give each other on the occasion of any
family rejoicing. The prohibition shall also apply to Q. Is there a prescriptive period within which the donor can exercise the
persons living together as husband and wife without a right to revoke or recover the donation given?
valid marriage. (133a)
A. Donor may revoke the donation within 5 years from the moment the
Q. What are the grounds for the revocation of a donation propter nuptias? marriage is not solemnized on the fixed date.

Q. When can the donor have the right to revoke the donation on the A. The spouse who acted in bad faith in procuring the marriage should
ground that he marriage is void? not be allowed to profit/gain from the donation. The donation, in the
instant case, is revoked by operation of law.
A. Before revocation, there must be a judicial declaration that the
marriage is void. Notably, there are five situations that can arise Q. What is the effect of the legal separation and where the donee is the
depending on the reason for the nullity of marriage: guilty party on the donation?
1. Subsequent void marriage for failure to comply w/ Art. 40 –
donation revoked by operation of law if the donee-spouse A. Generally, the donor has the option either to revoke or to maintain the
contracted the subsequent void marriage in BF (Arts. 40, 52, 53) donation. Unless, if the ground is sexual infidelity in the form of
2. One obtains judicial declaration of presumptive death & both are concubinage or adultery, the donation is VOID. Thus, the donor has 5
in bad faith in the subsequent marriage – donation revoked by years from the finality of the decree of legal separation within which to
operation of law (Arts. 41, 44) exercise his right to revoke.
3. All other rounds for nullity where good faith and bad faith of the
donee are irrelevant – donor has option to revoke the donation Q. What is the consequence if the donation propter nuptias is with a
4. Donation inside a bigamous marriage – second spouse has option resolutory condition and the condition is complied with?
to revoke the donation made to his/her spouse who has a prior
subsisting marriage; but if the spouse who contracted 2 A. Generally, if the donation propter nuptias is with a resolutory
marriages made a donation to his/her 2nd spouse, it is void if condition and the condition is complied with, such donation the donor
they are guilty of adultery, concubinage, or they were living has option to revoke or to maintain donation within 5 years. However,
together as H&W w/o a valid marriage. if one spouse makes the donation to the other, the donor can recover
5. If both parties in GF – donor has option to revoke the donation anytime.
Q. What is the effect of the absence of the consent of the parents or Q. When can the donor revoke the donation by reason of acts of
guardian to the donation propter nuptias? ingratitude?
A. The donor has the option to revoke the donation even before the A. Donor may exercise his option to revoke or to maintain the donation
marriage is annulled. If the donor knew of the non- consent of the within one year from knowledge of the fact of ingratitude & its possible
parents before the marriage, the donor may not yet revoke because the to bring the suit. However, alienations & mortgages effected before the
parents can still give their consent anytime prior to the marriage notation of the complaint for revocation in the Registry of Property
ceremony. With this, the donor has five years from the time he had shall subsist. Later ones are void.
knowledge that the needed consent was not obtained by the parties as
it is only from that time that the cause of action will accrue. Q. What are deemed as void donations?
A. The following are void donations:
Q. What is the effect of the annulment of marriage and the bad faith of 1. Donations made by persons guilty of adultery/concubinage at the
the donee to the donation? time of the donation

2. Donations between persons living together as H&W w/o a valid 1. A stepchild who has no compulsory and/or legal heirs, as
marriage his or her children, other than the other spouse at the time
of the donation;
Q. Can spouses, during the marriage, make donations to the other 2. A common child who has no compulsory and/or legal heirs
spouse? other than the other spouse at the time of the donation;
3. The parents of the other spouse;
A. Generally, donations made, directly or indirectly, between spouses 4. The other spouse’s adopted child who has no compulsory
during the marriage are VOID. This prohibition applies to common- and/or heirs or, in cases when, at the time of the donation,
law spouses or those living together as H&W w/o the benefit of the only surviving relative of the adopted is the other
marriage. (Matabuena v. Cervantes, 38 SCRA 284). Exceptions in the spouse (parent of the adopted);
following cases: 5. A common adopted child who has no other compulsory
1. Moderate gifts which the spouses may give each other on and/or legal heirs.
occasion of family rejoicing. Moderate gifts will depend on a case-to-
case basis esp. considering the financial capacity of the donor. Q. Who can challenge the validity of the transfer?
2. Donations by both spouses in favor of their common legitimate
children for the exclusive purpose of commencing/completing a A. Only persons who bear such a relation to the parties making the
professional or vocational course/activity for self-improvement are transfer or to the property itself that such transfer interfere w/ their
valid. The amount shall be chargeable to the ACP/CPG. rights or interests. The validity of the donation cannot be challenged
by those who bore absolutely no relation to the parties to the transfer
Q. Are donations made by persons who were guilty of adultery or at the time it occurred & had no rights or interests inchoate, present,
concubinage at the time of donation, valid? remote, or otherwise in the property in question at the time the
transfer occurred.
A. No. In Agapay v. Palang, 85 SCRA 640, where the husband
transferred a property to his second wife at the time his first marriage
was still subsisting, the Supreme Court ruled that the transfer was in Chapter 3
fact a donation, and therefore, void under Article 739 of the Civil Code System of Absolute Community
and also under Article 87 of the Family Code which pertinently
provides that donations between persons living together as husband Section 1
and wife without a valid marriage is void. General Provisions
Q. What are considered as indirect donations of a spouse, and are thus Art. 88. The absolute community of property between
void under Article 87? spouses shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or
A. Article 87 includes the following donations of a spouse to – implied, for the commencement of the community regime
at any other time shall be void. (145a)

System of Absolute Community System of Absolute Community
Art. 89. No waiver of rights, shares and effects of the

absolute community of property during the marriage can A. ACP commences at the precise moment of the celebration of the
be made except in case of judicial separation of property. marriage. Any stipulation, express or implied, for the commencement
of the community regime at any other time shall be void.
When the waiver takes place upon a judicial separation
of property, or after the marriage has been dissolved or
annulled, the same shall appear in a public instrument Section 2
and shall be recorded as provided in Article 77. The What Constitutes Community Property
creditors of the spouse who made such waiver may
petition the court to rescind the waiver to the extent of Art. 91. Unless otherwise provided in this Chapter or in
the amount sufficient to cover the amount of their the marriage settlements, the community property shall
credits. (146a) consist of all the property owned by the spouses at the
time of the celebration of the marriage or acquired
Art. 90. The provisions on co-ownership shall apply to the thereafter. (197a)
absolute community of property between the spouses in
all matters not provided for in this Chapter. Art. 92. The following shall be excluded from the
community property:
Q. What comprises the absolute community property (ACP) between (1)Property acquired during the marriage by
spouses? gratuitous title by either spouse, and the fruits as
well as the income thereof, if any, unless it is
A. All properties owned by the contracting parties before the marriage expressly provided by the donor, testator or grantor
ceremony and those which they may acquire thereafter shall comprise that they shall form part of the community
the absolute community property regime. Also, in a partial separation property;
of property regime, the property not agreed upon as separate shall (2)Property for personal and exclusive use of either
pertain to the absolute community. spouse. However, jewelry shall form part of the
community property;
Q. Can an alien married to a Filipino have any interest in the community (3)Property acquired before the marriage by either
or partnership? spouse who has legitimate descendants by a former
marriage, and the fruits as well as the income, if
A. No. The Supreme Court said in the case of Matthews v. Taylor, G.R. any, of such property. (201a)
no. 164584, June 22, 2009 that “aliens…have been disqualified from
acquiring lands of the public domain. Hence, by virtue of the aforecited Art. 93. Property acquired during the marriage is
constitutional provision, they are also disqualified from acquiring presumed to belong to the community, unless it is proved
private lands. The primary purpose of this constitutional provision is that it is one of those excluded therefrom. (160)
the conservation of the national patrimony.”
Q. Why is it that the system of absolute community of property (ACP) is
Q. When will the ACP commence? considered as a special type of co- ownership?

A. The property regime, in the absence of any agreement to the contrary,

A. ACP is considered as a special type of co- ownership because the shall be the absolute community of property.
spouses, as co- owners, can use the thing they owned in common in
such a way as not to injure the interests of the co- ownership. Q. What properties can be excluded from the ACP?
However, unlike ordinary co-ownership, no waiver of rights, interests,
shares and effects of the ACP during the marriage can be made, except A. The following shall be excluded from the community property:
in case of a judicial separation of property. This is for the reason that 1. Properties of each spouse that are excluded from the community
the interest of the parties in the community property is merely of property in the marriage settlement.
inchoate or an expectance prior to liquidation. (Abalos v. Macatangay, 2. Property acquired by valid gratuitous title during the marriage.
439 SCRA 649) However, the donor, testor, or grantor may provide that the
property and the fruits as well as the income thereof shall form
Q. Where can a waiver of rights, interests, shares and effects of the ACP part of the community property.
be made? 3. Property for personal and exclusive use of either of the spouses,
except jewelry which shall form part of the community property.
A. When a waiver takes place upon a judicial separation of property, or 4. Property acquired before the marriage by either spouse who has
after the marriage has been dissolved or annulled, the same shall legitimate descendants by a former marriage, and the fruits as
appear in a public instrument and shall be recorded, as provided in well as the income, if any, of such property.
Article 77.
Section 3
Q. Who may petition the court to rescind the waiver? Charges and Obligations of the Absolute Community
A. The creditors of the spouse who made such waiver may petition the Art. 94. The absolute community of property shall be
court to rescind the waiver to the extent of the amount sufficient to liable for:
cover the amount of their credits. (1) The support of the spouses, their common children,
and legitimate children of either spouse; however, the
Q. What is the effect of a waiver without a judicial separation of property support of illegitimate children shall be governed by
decree? the provisions of this Code on Support;
(2) All debts and obligations contracted during the
A. If the waiver takes place without a judicial separation of property marriage by the designated administrator-spouse for
decree, such waiver shall be void because it is contrary to law and the benefit of the community, or by both spouses, or
public policy pursuant to Article 6 of the Civil Code and because such by one spouse with the consent of the other;
waiver shall constitute an act which is against a prohibitory law as (3) Debts and obligations contracted by either spouse
provided in Article 5 of the Civil Code. without the consent of the other to the extent that the
family may have been benefited;
Q. What would govern the relationship if there was no marital agreement (4) All taxes, liens, charges and expenses, including major
entered into by the contracting parties prior to the marriage? or minor repairs, upon the community property;

(5) All taxes and expenses for mere preservation made Q. Does the right for support to education end upon reaching the age of
during marriage upon the separate property of either majority?
spouse used by the family;
(6) Expenses to enable either spouse to commence or A. No.
complete a professional or vocational course, or other
activity for self-improvement; Q. Where will the support for illegitimate child come from?
(7) Ante-nuptial debts of either spouse insofar as they
have redounded to the benefit of the family; A. It shall be taken from the separate property of the parent-spouse. In
(8) The value of what is donated or promised by both case of absence or insufficiency of separate property, the ACP shall pay
spouses in favor of their common legitimate children but it shall be considered as advances to be deducted from the share of
for the exclusive purpose of commencing or the parent concerned upon liquidation of the community.
completing a professional or vocational course or
other activity for self-improvement; Q. Can an administrator-spouse contract a debt or obligation for and in
(9) Ante-nuptial debts of either spouse other than those behalf of the ACP without obtaining the consent of the other spouse?
falling under paragraph (7) of this Article, the support
of illegitimate children of either spouse, and liabilities A. Yes, provided there is proof to show that it redounded to the benefit of
incurred by either spouse by reason of a crime or a the family. This requirement is indicative of the solicitude and tender
quasi-delict, in case of absence or insufficiency of the regard that the law manifests for the family as a unit. (BA Finance
exclusive property of the debtor-spouse, the payment Corporation v. Court of Appeals, 161 SCRA 608; Luzon Surety Co., Inc.
of which shall be considered as advances to be v. De Garcia, 30 SCRA 111)
deducted from the share of the debtor-spouse upon
liquidation of the community; and Q. What if the debt or obligation was not for the benefit of the family, will
(10) Expenses of litigation between the spouses unless the ACP be held liable?
the suit is found to be groundless.
A. Yes, if the other spouse consented. Consent may be express or implied.
If the community property is insufficient to cover the (Marmont Resort Hotel Enterprises v. Guiang, 168 SCRA 373)
foregoing liabilities, except those falling under
paragraph (9), the spouses shall be solidarily liable for Q. Supposing the debt or obligation was contracted prior to the marriage,
the unpaid balance with their separate properties. (161a, can the ACP be held liable?
162a, 163a, 202a-205a)
A. Yes, provided it redounded to the benefit of the family. But if it did not
Q. What is Support? benefit the family, the ACP, in the absence or insufficiency of the
exclusive property of the debtor spouse, shall pay and it will be
A. Support comprises everything indispensable for sustenance, dwelling, considered as advances to be deducted on the share of the debtor
clothing, medical attendance, education and transportation, in keeping spouse upon liquidation.
with the financial capacity of the family.

Q. Are the losses resulting from the exercise of a profession or family common child who has no descendants or compulsory heir other that
business by any of the spouses chargeable to the ACP? his or her parents is an indirect donation to the other spouse.
A. Yes. (Ayala Investment v. Court of Appeals, G.R. No. 118305, Q. Can the ACP be held liable to pay the obligation or debt arising from a
February 12, 1998.) crime or quasi-delict of a particular spouse?
Q. Suppose one of the spouses makes himself a surety or guarantor in A. The separate property of the erring spouse shall be liable. In case of
relation to an obligation of another person, can the ACP be held liable? absence or insufficiency of the exclusive property, the ACP shall pay,
but such payments shall be considered as advances, to be deducted
A. Any personal undertaking by a spouse cannot be presumed to be for from share of debtor spouse upon liquidation.
the benefit of the family as any advantage that may arise therefore is
merely indirect. (Security Bank and Trust Company v. Mar Tierra Q. Can the ACP be held liable for the expenses of litigation between
Corporation, G.R. No. 143382, November 29, 2006; Ching v. Court of husband and wife?
Appeals, 423 SCRA 356).
A. Yes, provided that the case is not groundless.
Q. Can the taxes, liens, charges, and expenses upon the community
property be done without the consent of the other spouse? Q. Can the ACP be held liable for a suit not involving a case between
husband and wife?
A. Yes, following the general rules on co-ownership.
A. Yes, for as long as the suit benefits the family.
Q. Is the ACP liable for the expenditures incurred for the preservation of
the separate property of any of the spouses? Q. A wife was criminally sued by her husband for adultery and the wife
had to spend attorney’s fees to defend herself, can the ACP be held
A. Yes, because it is premised on the fact that the separate property has liable for such fees?
been used or is being used by the family during the marriage.
A. Yes. The legal fees spent during litigation, wherein she was
Q. Can the value of a donation or promise by both spouses in favor of subsequently acquitted, “was as necessary as a claim for support,
their common legitimate children ne chargeable to the ACP? inasmuch as the right to a good name and reputation and the right to
personal liberty are, at least, as vital and deserving of protection as the
A. Only if it is for the exclusive purpose of commencing or completing a right to existence which is, in the last analysis, the meaning of the
professional or vocational course or other activity for self-improvement. right to support.” (Seva v. Nolan, 64 Phil. 374)
Q. What if only one of the spouses donates? Q. A stipulation in a lawyer-client agreement stating:
A. This may fall under the prohibition under Article 87 making donations “I hereby agree to pay said Attorney Claro M.
between spouses, direct or indirect, void. A donation by one spouse to a Recto twenty (20%) per cent of the value of the share
and participation which I may receive in the funds

and properties of the said conjugal partnership of the community but any winnings therefrom shall form
myself and Defendant Fred M. Harden, as a result of part of the community property. (164a)
the liquidation thereof either by death, divorce,
judicial separation, compromise or by any means or Q. Suppose a stranger just gave, without consideration, one of the
method by virtue of which said partnership is or may spouses a sweepstake ticket which eventually won, will the winning
be liquidated.” form part of the ACP?
Can the CPG be held liable? A. No. It is separate property, unless the donor expressly provided it to
form part of the ACP.
A. No, it does not seek to bind the CPG. “By virtue of said contract, Mrs.
Harden merely bound herself — or assumed the personal obligation Section 4. Ownership, Administration, Enjoyment and
— to pay, by way of contingent fees, 20% of her share in said Disposition of the Community Property
partnership. The contract neither gives, nor purports to give, to the
Appellee any right whatsoever, personal or real, in and to her Art. 96. The administration and enjoyment of the
aforesaid share. The amount thereof is simply a basis for the community property shall belong to both spouses jointly.
computation of said fees.” (Recto v. Harden, 100 Phil. 427) In case of disagreement, the husband's decision shall
prevail, subject to recourse to the court by the wife for
Q. The spouses shall be solidarily liable for unpaid balance with their proper remedy, which must be availed of within five
separate properties if the community property is insufficient to cover years from the date of the contract implementing such
the liabilities for which the ACP is liable. What are not included in the decision.
solidary liability?
In the event that one spouse is incapacitated or
A. (1) Ante-nuptial debts not redounding to the benefit of the family, (2) otherwise unable to participate in the administration of
support of illegitimate children by either spouses, and (3) liabilities the common properties, the other spouse may assume
incurred by the spouse by reason of a crime or quasi-delict. sole powers of administration. These powers do not
include disposition or encumbrance without authority of
Q. If the husband and wife maintains joint administration, and one of the court or the written consent of the other spouse. In
them becomes insolvent, may the right of the insolvent spouse be to the absence of such authority or consent, the disposition
jointly administer be legally curtailed by the court? or encumbrance shall be void. However, the transaction
A. Yes. The court may make the non-insolvent spouse the sole shall be construed as a continuing offer on the part of the
administrator or appoint a third person. consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by
Art. 95. Whatever may be lost during the marriage in any the other spouse or authorization by the court before the
game of chance, betting, sweepstakes, or any other kind offer is withdrawn by either or both offerors. (206a)
of gambling, whether permitted or prohibited by law,
shall be borne by the loser and shall not be charged to Q. May administration of property be validly delegated to only one
spouse?

A. No. The innocent purchaser for value may rely on what is officially
A. Yes, in a marriage settlement executed prior to the marriage. annotated in the TCT. The remedy of the aggrieved spouse is to
compel the erring spouse to account for the proceeds of the sale, as the
Q. Does joint administration require the husband and wife to always act same is part of the ACP. (PNB v. Court of Appeals, 153 SCRA 435)
together?
Q. Suppose that a husband, without the consent of his wife but with her
A. No. Each spouse may validly exercise full power of management alone, knowledge, enters into a contract affecting the ACP, what is the status
subject to the intervention of the court in proper cases. of the contract?
Q. The signature of the husband or wife alone appears in a complaint A. It is annullable at the instance of the wife. (Ravina v. Abrille, G.R. No.
filed in court involving community or conjugal property. Is this valid? 160708, October 16, 2009) However, if the wife ratifies the contract by
any express or implied act, she cannot seek the annulment of the
A. Yes. Each of the spouse may be reasonably presumed to have personal contract even within the 5 year prescriptive period.
knowledge of the filing or non-filing by the other spouse of any action
or claim similar to the petition which the other spouse filed given the Note: The wife has the right to annul or nullify, as the case may be,
notices and legal processes involved in a legal proceeding involving not only her share in the property involved, but the entire contract
real property. (Docena v. Lapesura, G.R. No. 140153, March 28, 2001) itself.
Note: The ordinary rules on co-ownership apply in a suppletory Q. What is the effect of incapacity of one of the spouses on
character. administration?
Q. If, despite a disagreement, the wife implements her desires or enters A. The other spouse may assume sole powers of administration.
into any contract to enforce her objectives, what is the remedy of the
husband? Q. If the spouse if absent or separated in fact, or abandoned the other, or
consent is withheld, how is the appointment to be effected?
A. The husband can go to court for adequate relief.
A. Through a summary proceeding.
Q. What is the effect of any disposition by one spouse of the properties in
an ACP, without the knowledge and consent of the other spouse? Q. What about if the spouse is “incompetent” who is in a comatose or
semi-comatose condition, without motor or mental faculties?
A. It is null and void. It is likewise imprescriptible.
A. The proper remedy is a judicial guardianship proceeding under Rule
Q. Suppose that a third-party purchaser relied in good faith on the 93 of the Rules of Court, not a summary proceeding under the Family
Transfer Certificate of Title indicating that the person named therein Code. (Uy v. Court of Appeals, G.R. No. 109557, November 29, 2000)
is single, when in fact he/she is married. Can the transaction be
voided? Note: In any event, should the administering spouse decide to sell real
property as such administrator of the community of conjugal property,

he or she must observe the procedure for sale of the ward’s estate A. Either spouse may, without the consent of the other, make moderate
required of judicial guardians under Rule 95, not summary donations from the community property for charity or on occasions of
proceedings under the Family Code. This is so because as the family rejoicing or distress.
administrator spouse, he or she must perform the duties of a guardian.
(Uy v. Court of Appeals, G.R. No. 109557, November 29, 2000) Section 5
Dissolution of Absolute Community Regime
Q. What is the legal significance of a transaction under this article?
Art. 99. The absolute community terminates:
A. It is treated as a continuing offer on the part of the consenting spouse (1)Upon the death of either spouse;
and the third person. (2)When there is a decree of legal separation;
(3)When the marriage is annulled or declared void; or
Art. 97. Either spouse may dispose by will of his or her (4)In case of judicial separation of property during the
interest in the community property. (n) marriage under Articles 134 to 138. (175a)
Q. Will such disposition be considered a waiver of interest in the Q. Does the termination of the ACP result to the termination of the
community property? marriage?
A. No. Such waiver is prohibited under Article 89 of the Family Code. The A. No. But the termination of the marriage simultaneously results in the
act of disposition precisely highlights the testator’s intent to control the dissolution of the ACP.
property to take effect after death.
Q. Suppose that after a decree of legal separation has been obtained, the
Art. 98. Neither spouse may donate any community parties reconciled, may they agree to revive the property regime?
property without the consent of the other. However,
either spouse may, without the consent of the other, A. Yes, subject to the provisions of Article 67.
make moderate donations from the community property
for charity or on occasions of family rejoicing or family Q. What happens when a reappearing spouse or an interested person files
distress. (n) an affidavit of reappearance to terminate the subsequent marriage of
the present spouse?
Q. What is the reason for the prohibition?
A. The subsequent marriage shall be terminated and result in the
A. It is intended to protect the other spouse’s share from the prodigality of dissolution of the ACP or CPG.
a reckless or faithless spouse. (Estate of McNutt, 36 Cal App 2d 542,
98 P2d 253) Art. 100. The separation in fact between husband and
wife shall not affect the regime of absolute community
Q. What are the exceptions? except that:

(1) The spouse who leaves the conjugal home or refuses absence or insufficiency of community property for the support of the
to live therein, without just cause, shall not have family?
the right to be supported;
(2) When the consent of one spouse to any transaction A. Only the present spouse.
of the other is required by law, judicial
authorization shall be obtained in a summary Art. 101. If a spouse without just cause abandons the
proceeding; other or fails to comply with his or her obligations to the
(3) In the absence of sufficient community property, family, the aggrieved spouse may petition the court for
the separate property of both spouses shall be receivership, for judicial separation of property or for
solidarily liable for the support of the family. The authority to be the sole administrator of the absolute
spouse present shall, upon proper petition in a community, subject to such precautionary conditions as
summary proceeding, be given judicial authority to the court may impose.
administer or encumber any specific separate
property of the other spouse and use the fruits or The obligations to the family mentioned in the preceding
proceeds thereof to satisfy the latter's share. (178a) paragraph refer to marital, parental or property
relations.
Q. What is the effect of a separation in fact between the spouses?
A spouse is deemed to have abandoned the other when
A. Generally, the ACP will not be affected, with the exception of the her or she has left the conjugal dwelling without
circumstances enumerated in the article. intention of returning. The spouse who has left the
conjugal dwelling for a period of three months or has
Q. May the mere fact of separating from the conjugal roof constitute a failed within the same period to give any information as
reason for annulling the right of support? to his or her whereabouts shall be prima facie presumed
to have no intention of returning to the conjugal
A. No. It cannot be presumed culpable when there is no evidence of any dwelling. (178a)
fault or guilt on the part of the one who so separates. (Sumulong v.
Cembrano, 51 Phil. 719) Fault must always be proven. Q. What is abandonment?
Q. May the spouse who left the conjugal home without a valid cause seek A. Abandonment must not only be physical estrangement but also
judicial authorization when the consent of the other spouse is not amount to financial and moral desertion. (Dela Cruz v. Dela Cruz, 130
obtained? Phil. 324)
A. Yes. Q. What obligations are contemplated in this article?
Q. Who is given legal standing by law to seek judicial authority to A. Marital, parental, or property relationship.
administer or encumber any specific property of the other spouse and
use the fruits or proceeds thereof to satisfy the latter’s share in the

Q. Does mere refusal or failure of the administrator of the property to (4) The net remainder of the properties of the
inform the other spouse of the progress of family businesses constitute absolute community shall constitute its net assets,
abuse of administration? which shall be divided equally between husband and
wife, unless a different proportion or division was
A. No. (Dela Cruz v. Dela Cruz, 130 Phil. 32) agreed upon in the marriage settlements, or unless
there has been a voluntary waiver of such share
Note: If it is shown that such failure to comply with the obligations of provided in this Code. For purpose of computing the
a family constitutes a psychological incapacity to perform the essential net profits subject to forfeiture in accordance with
marital obligations, which existed at the time of marriage, the Articles 43, No. (2) and 63, No. (2), the said profits shall
marriage itself can be considered void under Article 36. And if the be the increase in value between the market value of
abandonment without just cause is for more than one year, another the community property at the time of the celebration
remedy is the filing of a legal separation case. of the marriage and the market value at the time of its
dissolution.
(5) The presumptive legitimes of the common children

shall be delivered upon partition, in accordance with
Section 6 Article 51.
Liquidation of the Absolute Community
(6) Unless otherwise agreed upon by the parties, in
Art. 102. Upon dissolution of the absolute community the partition of the properties, the conjugal dwelling
regime, the following procedure shall apply: and the lot on which it is situated shall be adjudicated
to the spouse with whom the majority of the common
(1) An inventory shall be prepared, listing separately children choose to remain. Children below the age of
all the properties of the absolute community and the seven years are deemed to have chosen the mother,
exclusive properties of each spouse. unless the court has decided otherwise. In case there
in no such majority, the court shall decide, taking into
(2) The debts and obligations of the absolute consideration the best interests of said children. (n)
community shall be paid out of its assets. In case of
insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their Q. How do you liquidate an Absolute Community Regime?
separate properties in accordance with the provisions
of the second paragraph of Article 94. A. See Art. 102
(3) Whatever remains of the exclusive properties of Q. When can the dissolution process begin?
the spouses shall thereafter be delivered to each of
them. A. It occurs upon the happening of the events enumerated in Art. 99

Q. Does this procedure apply in a voluntary judicial separation of Art. 103. Upon the termination of the marriage by
property? death, the community property shall be liquidated in
the same proceeding for the settlement of the estate of
A. No. It may be governed by the agreement of the parties provided that the deceased.
the court approves the same.
If no judicial settlement proceeding is instituted, the
Q. What should be inventoried? surviving spouse shall liquidate the community
property either judicially or extra-judicially within
A. All properties or assets at the time of the dissolution, whether six months from the death of the deceased spouse. If
belonging to the Absolute Community of property or separate property upon the lapse of the six months period, no
of the spouses, should be inventoried. liquidation is made, any disposition or encumbrance
involving the community property of the terminated
Q. What should be the basis when appraising the value of the inventoried marriage shall be void.
items?
Should the surviving spouse contract a subsequent
A. The market value or, in default thereof, the assessed value at the time marriage without compliance with the foregoing
of liquidation should be taken into account and not the purchase price. requirements, a mandatory regime of complete
separation of property shall govern the property
Q. Will equal sharing between the spouses always apply in the partition relations of the subsequent marriage. (n)
of the net assets?
Q. Why is any disposition or encumbrance involving the community
A. No. If there is a division agreed upon in the marriage settlement, it
property void if no liquidation was made prior to such actions?
will be followed. Or if there is a voluntary waiver made by one of the
spouses in accordance with the law.
A. This is because it is only after liquidation and partition when specific
properties are definitely and physically determined. This is only the
Q. When should the presumptive legitime be delivered?
time when a sale of such allotted property can be made. Prior to
liquidation and partition, the spouse or heirs of the decedent only
A. It should be delivered only after the finality of a judicial decree of
acquires an interest to the entire property.
annulment or of nullity of a subsequent void marriage.
Q. What happens if there is a surviving spouse and compulsory heirs?
Q. Should the presumptive legitimes be delivered in cases of legal
separation or in a case of judicially declared void marriage other than
A. A co-ownership of the community property will be formed between
in a subsequent void marriage as a result of the non-observance of
them upon the death of the spouse.
Article 40?
Q. Can the surviving spouse or the compulsory heirs undertake any act of
A. No. It is only delivered in the two situations mentioned previously.
dominion over the property prior liquidation and partition?

A. Yes they can but only over their interest, share or participation and Q. Does this mandatory regime apply if the termination of the marriage
not over a specific concrete property. is by nullity or annulment?
A. No. This mandatory regime will only apply in case the termination of
Q. If a co-owner mortgages his interest over the property, can an the first marriage is by DEATH. If it is by nullity or annulment, the
administrator still sell such property? property regime in the subsequent marriage is co-ownership since it is
void pursuant to Articles 52 and 53.
A. Yes. The attachment is still subject to the administration of the estate.
The administrator retains the power to sell the property if it is
necessary to pay off the debts of the deceased. Art. 104. Whenever the liquidation of the community
properties of two or more marriages contracted by
Q. Where should a creditor make his claim against the community the same person before the effectivity of this Code is
property upon the death of the debtor-spouse? carried out simultaneously, the respective capital,
fruits and income of each community shall be
A. The claim should be filed in the settlement of estate proceeding of the determined upon such proof as may be considered
deceased spouse. according to the rules of evidence. In case of doubt as
to which community the existing properties belong,
Q. Is this rule absolute? the same shall be divided between the different
communities in proportion to the capital and
A. No. If the surviving spouse committed himself or herself to be duration of each. (189a)
solidarily liable for the claim against the community property, a
complaint may be brought against such spouse.
Q. When is Article 104 applicable?
Q. What happens if the surviving spouse remarries without liquidating
and partitioning the community property of the first marriage? A. It is applicable when there are at least two marriages contracted prior
August 3, 1988 and the community properties of such marriages are to
A. The regime of Complete Separation of Property shall govern the be liquidated at the same time.
subsequent marriage.
Q. What happens if there are two marriages that are equal in duration
Q. Is this mandatory? and the total amount of assets is 15k?
A. Yes, it is mandatory. A. The heirs of each marriage get 7.5k each
Q. What if prior to the subsequent marriage, a marriage settlement was Q. What if the first marriage lasted 2 years while the other 3 years and
executed which states that either the ACP or CPG shall govern? the total amount of assets is 15k?
A. Such stipulation is not valid as it is against the law. A. The first marriage gets 2/5 of 15k and the second marriage gets 3/5.

Art. 88-104 PROPERTY RELATIONS BETWEEN 181 Art 105-133 PROPERTY RELATIONS BETWEEN 182
System of Absolute Community Conjugal Partnership of Gains
both spouses through their efforts or by chance, and,

Q. What if the duration of the marriage is unknown but the amount of
upon dissolution of the marriage or of the
assets of each marriage are known (1k for the first, 2k for the second)?
partnership, the net gains or benefits obtained by
either or both spouses shall be divided equally
A. The first marriage will get 1/3 of 15k while the second 2/3.
between them, unless otherwise agreed in the
marriage settlements. (142a)
Q. What if the first marriage lasted for 2 years and had 1k of assets while
the second lasted for 3 years and had 2k of assets?
A. Multiply the duration and the amount of each marriage then pro-rate Q. What is covered by the Conjugal Partnership of Gains?
the entire amount of assets. In this case the first marriage will get 2/8
of 15k while the second marriage will get 6/8 of 15k. A. The spouses place in a common fund the proceeds, products, fruits and
income from their separate properties and those acquired by either or
both spouses through their efforts or by chance.
Chapter 4 Q. When is there a presumption of conjugality?

Conjugal Partnership of Gains
A. The presumption attaches if it can be proven that the property was
Section 1 acquired DURING the marriage.
General Provisions
Art. 107. The rules provided in Articles 88 and 89 shall
Art. 105. In case the future spouses agree in the marriage also apply to conjugal partnership of gains. (n)
settlements that the regime of conjugal partnership
gains shall govern their property relations during Q. When does the Conjugal Partnership commence?
marriage, the provisions in this Chapter shall be of
supplementary application. A. It commences at the precise moment (hour, not day) when the
marriage ceremony is celebrated.
The provisions of this Chapter shall also apply to
Q. Can a waiver be made of rights, interests, shares and effects of the
conjugal partnerships of gains already established
conjugal property during the marriage?
between spouses before the effectivity of this Code,
A. There can be no waiver during marriage by any of the spouse except
without prejudice to vested rights already acquired in
when there is a judicial separation of property.
accordance with the Civil Code or other laws, as
provided in Article 256. (n)
Art. 108. The conjugal partnership shall be governed by
the rules on the contract of partnership in all that is not
Art. 106. Under the regime of conjugal partnership of
in conflict with what is expressly determined in this
gains, the husband and wife place in a common fund
Chapter or by the spouses in their marriage settlements.
the proceeds, products, fruits and income from their
(147a)
separate properties and those acquired by either or

Art 105-133 PROPERTY RELATIONS BETWEEN 183 Art 105-133 PROPERTY RELATIONS BETWEEN 184
Conjugal Partnership of Gains Conjugal Partnership of Gains
Q. How is the ACP different from the CPG? A. Yes, if the owner-spouse consents to such. Otherwise, the other spouse
cannot.
A. In ACP, the rules on CO-OWNERSHIP apply suppletorily while in
CPG, it is the rules on the contract of PARTNERSHIP which applies. Q. What if the property was purchased before the marriage but was only
registered after the marriage under the name of the owner-spouse and
Q. If a spouse files an action against the third party, is it required to the other spouse as co-owner?
make the other spouse a party to the case?
A. Such property is still to be deemed as the exclusive property of the
A. No, the other spouse is not an indispensable party to the case. Being a owner-spouse since he bought it with his exclusive funds prior the
partner, they are deemed co-owners and the filing of one co-owner does marriage. The registering of the other spouse as co-owner only creates
not need the joining of the other co-owners. a trust.
Section 2 Q. How are properties acquired by gratuitous title made in ACP similar
Exclusive Property of Each Spouse with donations made in CPG?
Art. 109. The following shall be the exclusive property of A. Both donations shall belong exclusively to the spouse-recipient.
each spouse:
(1)That which is brought to the marriage as his or Q. How are they different?
her own;
(2)That which each acquires during the marriage A. In ACP, the income and fruits of such property are deemed as
by gratuitous title; exclusive property of the recipient-spouse while in CPG, it shall be
(3)That which is acquired by right of redemption, considered as conjugal property.
by barter or by exchange with property
belonging to only one of the spouses; and Q. What about redeemed properties?
(4)That which is purchased with exclusive money of
the wife or of the husband. (148a) A. It shall belong exclusively to the spouse who had the right to redeem
such property even if he uses his own funds or used conjugal funds. If
Q. What are the properties to be deemed owned exclusively by the conjugal funds were used, such spouse is obliged to reimburse such
spouses? amount.
A. See Art. 109. Q. What if conjugal property were executed upon and sold and one of the
spouses redeemed such property with her own funds, would it still be
Q. Can the properties brought into the marriage by the owner-spouse as conjugal property?
his own be encumbered, alienated or disposed of by the other spouse?
A. No, it will be the exclusive property of the redeeming spouse.

Q. What happens if separate properties were sold and the proceeds were Art. 112. The alienation of any exclusive property of a
added to conjugal funds to buy properties, what is the nature of such spouse administered by the other automatically
property? terminates the administration over such property and
the proceeds of the alienation shall be turned over to the
A. The property will be considered as conjugal property. owner-spouse. (n)
Q. A property was purchased using the exclusive money of one of the Q. Is Article 111 still in effect?
spouses and the title was taken in the spouses’ joint names, what is
the nature of the property? A. It has been rendered superfluous by Article 234 which lowers the
majority age to eighteen years.
A. It depends. The circumstances of the situation will be considered to see
if such is a donation to the other spouse or a trust was intended. Q. Is there a limitation on the power of the owner-spouse to automatically
terminate the administration of the other spouse by alienating the
Art. 110. The spouses retain the ownership, possession, property?
administration and enjoyment of their exclusive
properties. A. Yes. Article 127 contemplates a situation where the spouses are
separated in fact and the present spouse had been given authority by
Either spouse may, during the marriage, transfer the the courts to administer or encumber any specific property of the other
administration of his or her exclusive property to the spouse if the conjugal funds are not sufficient to pay off its obligations.
other by means of a public instrument, which shall be In this case, the owner-spouse cannot revoke such administration by
recorded in the registry of property of the place the merely alienating such property. He may only alienate it upon the
property is located. (137a, 168a, 169a) court’s approval.
Q. Can an owner-spouse still encumber, dispose or donate his exclusive

properties even after he transferred its administration to the other Art. 113. Property donated or left by will to the spouses,
spouse? jointly and with designation of determinate shares, shall
pertain to the donee-spouses as his or her own exclusive
A. Yes, he still can. property, and in the absence of designation, share and
share alike, without prejudice to the right of accretion
Art. 111. A spouse of age may mortgage, encumber, when proper. (150a)
alienate or otherwise dispose of his or her exclusive
property, without the consent of the other spouse, and Art. 114. If the donations are onerous, the amount of the
appear alone in court to litigate with regard to the same. charges shall be borne by the exclusive property of the
(n) donee spouse, whenever they have been advanced by the
conjugal partnership of gains. (151a)

Q. Is there accretion in cases of donation made in favor of husband and

wife? Q. Is an annuity a gratuity?
A. Yes, there is accretion. If ¾ of a property is donated to a husband and A. An annuity is not a gratuity if the recipient thereof is entitled to it as a
¼ to the wife, the share of one spouse will go to the other in case he/she matter of right. So if a government teacher complied with all the
rejects such donation. requirements of law to be entitled to an annuity which shall be
considered as conjugal.
Q. What about in properties left by will, will there be accretion?
Q. Are pensions gratuity?
A. It depends, if the property left by will to the husband and wife is pro-
indiviso (not divided), then there would be accretion. However, if the A. No. Pensions are in the nature of compensation for services previously
will states that husband will get Cebu property while wife will get rendered for which full compensation was not received. It is, in effect,
Makati property, there would be no accretion in this case as the pay withheld. Therefore, pensions are considered as conjugal.
properties are not pro-indiviso.
Q. What about Insurance proceeds?
Q. What if conjugal funds were used to pay for an onerous donation?
A. It would depend on how the insurance was paid. If it were paid by
A. The property donated will still be considered as exclusive property of conjugal funds, then the proceeds would be conjugal property. If it was
the donee-spouse. However, he will be obligated to reimburse the paid by exclusive funds, then the proceeds will be exclusive property. If
conjugal partnership. it was paid partly by conjugal funds and partly by exclusive funds, the
proceeds will be partly owned by the conjugal partnership and partly
separate property in proportion with the amount of contribution.
Art. 115. Retirement benefits, pensions, annuities,
gratuities, usufructs and similar benefits shall be
governed by the rules on gratuitous or onerous Section 3
acquisitions as may be proper in each case. (n) Conjugal Partnership Property
Q. Are pensions, annuities and gratuities conjugal or separate? Art. 116. All property acquired during the marriage,
whether the acquisition appears to have been made,
A. It would depend on a case-to-case basis. The manner it was obtained contracted or registered in the name of one or both
and the circumstances of the case will be considered. spouses, is presumed to be conjugal unless the contrary
is proved. (160a)
Q. When does a gratuity become separate property?
Q. What property is presumed to be conjugal?
A. It is considered as separate property if it was given because of previous
work.

A. All property acquired during the marriage, whether the acquisition A. The fact that the title is in the wife’s name alone is determinative.
appears to have been made, contracted or registered in the name of (Maramba v. Lozano, et al., G.R. No. L-21533, June 29, 1967, 20 SCRA
one or both spouses, is presumed to be conjugal unless the contrary is 474)
proved.
Q. A Torrens Title states that the owner is “A married to B”. Does that
Q. When is the presumption applicable? inscription prove that the land is conjugal?
A. The presumption is applied when it has been proven that the property A. No, the phrase “married to” is merely descriptive of civil status.
in controversy was acquired during the marriage. Proof of acquisition (Magallon v. Mantejo, 146 SCRA 282; see also Heirs of Jugalbot v.
during the marriage is a condition sine qua non for the presumption to Court of Appeals, G.R. No. 170346, March 12, 2007, 518 SCRA 203)
operate. (Jocson v. Court of Appeals, 170 SCRA 333) For as long as
acquisition is proven during the marriage, the presumption will apply Q. Is registration of the property proof of acquisition during the
even when the manner in which the properties were acquired does not marriage?
appear (Tan v. Court of Appeals, 273 SCRA 229) and even if the
property is registered in the name of one or both of the spouses A. No, because the property could have been acquired while the owner
(Villanueva v. Court of Appeals, G.R. No. 143286, April 12, 2004, 427 was single and registered only after the marriage ceremony
SCRA 439) (Metropolitan Bank and Trust Company v. Tan, G.R. No. 163712,
November 30, 2006, 509 SCRA 383)
Q. Does the presumption apply even when the spouses are living
separately? Q. A left his wife B and family to bigamously marry another woman, C.
Does registration of the property under the name of C disprove that
A. Yes, the presumption also applies even though the spouses are living the property is conjugal property of A and B?
separately (Wong v. IAC, 200 SCRA 792)
A. No, it does not. (Belcodero v. Court of Appeals, 45 SCAD 400, 227
Q. Is the presumption conclusive? SCRA 303)
A. No, it is a rebuttable presumption. The presumption of the conjugal Q. A is the wife of B. A conveyed her property to a third person C. It was
nature of properties subsists in the absence of clear, satisfactory and reconveyed to A several months later. Is the property automatically
convincing evidence to overcome said presumption or to prove that the transformed into conjugal property?
properties are exclusively owned by one of the spouses. (Wong v. IAC,
200 SCRA 792) A. No, the reconveyance does not transform it to conjugal property, in the
absence of proof that the money paid in the reconveyance came from
Q. What happens when there is no showing as to when the property in conjugal funds. (Plata v. Yatco, 12 SCRA 718)
question was acquired and the title is in the wife’s name alone?

Q. Are proofs consisting of tax declaration in the name of one of the (1) Those acquired by onerous title during the marriage at the expense
spouses obtained during the marriage evidence of acquisition and of the common fund, whether the acquisition be for the partnership,
enough to give rise to the presumption that the property is conjugal? or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of
A. No, they are not. (Pintiano-Anno v. Anno, G.R. No. 163743, January either or both of the spouses;
27, 2006, 480 SCRA 419) (3) The fruits, natural, industrial, or civil, due or received during the
marriage from the common property, as well as the net fruits from
Art. 117. The following are conjugal partnership properties: the exclusive property of each spouse;
(1)Those acquired by onerous title during the marriage (4) The share of either spouse in the hidden treasure which the law
at the expense of the common fund, whether the awards to the finder or owner of the property where the treasure is
acquisition be for the partnership, or for only one of found;
the spouses; (5) Those acquired through occupation such as fishing or hunting;
(2)Those obtained from the labor, industry, work or (6) Livestock existing upon the dissolution of the partnership in excess
profession of either or both of the spouses; of the number of each kind brought to the marriage by either
(3)The fruits, natural, industrial, or civil, due or received spouse; and
during the marriage from the common property, as (7) Those which are acquired by chance, such as winnings from
well as the net fruits from the exclusive property of gambling or betting. However, losses therefrom shall be borne
each spouse; exclusively by the loser-spouse. (153a, 154a, 155, 159)
(4)The share of either spouse in the hidden treasure
which the law awards to the finder or owner of the Q. Spouses A and B finance a contract through their conjugal partnership
property where the treasure is found; of gains. A third person C unduly breaches the contract. Are damages
(5)Those acquired through occupation such as fishing or granted by the courts in favor of any of the spouses conjugal?
hunting;
(6)Livestock existing upon the dissolution of the A. Yes (Zulueta v. Pan American World Airways, Inc., 49 SCRA 1)
partnership in excess of the number of each kind
brought to the marriage by either spouse; and Q. The exclusive property of spouse A was illegally detained. Are the
(7)Those which are acquired by chance, such as winnings damages arising out of such illegal detention conjugal?
from gambling or betting. However, losses therefrom
shall be borne exclusively by the loser-spouse. (153a, A. Yes, if such detention deprived the partnership of the use and earnings
154a, 155, 159) of the same. (Bismorte v. Aldecoa, 17 Phil. 480)
Q. What consists of conjugal property? Q. Spouse A was physically injured by a third person C. Damages were
awarded to A. Is the damages conjugal?
A. The following are conjugal partnership properties:

A. No, said damages exclusively belong to the said injured spouse. (Lilius shall be reimbursed by the owner or owners upon
v. Manila Railroad Co., 62 Phil. 56, 64-65, cited in Zulueta v. Pan liquidation of the partnership. (n)
American World Airways, Inc., 49 SCRA 1)
Q. What does Article 118 contemplate?
Q. What is the significance of using the term “net fruits”?
A. It contemplates a situation when installment was initiated prior to the
A. “Net fruits” are referred to because the fruits of the separate property marriage and ended during the marriage.
will be applied first to the expenses of administration of the said
separate property and the remaining balance of the said fruits which Q. How is ownership determined when property is bought on installment
constitute the net fruits shall be considered conjugal (See Minutes of basis partly by exclusive funds of either or both spouses and partly by
the 174th Joint Meeting of the Civil Code and Family Law committees conjugal funds?
held on February 28, 1987, page 13)
A. The ownership is determined by the time when the title is vested. If
Q. What is the meaning of hidden treasure? ownership is vested before the marriage, it belongs to the class of
properties exempted from conjugal partnership as property brought to
A. Hidden treasure contemplates artifacts or objects which have the marriage by the spouses. However, if ownership is vested upon the
undergone transformation from their original raw state, such as buyer-spouse after the marriage ceremony, it shall form part of the
earrings, necklace and the like. conjugal partnership and the spouse who contracted the purchase
shall have the right of reimbursement from the partnership.
Q. Are gold nuggets, precious stones in the raw state, oil and the like
hidden treasures? Q. Spouse A bought friar lands before her marriage. However, some of
A. No, because they did not undergo transformation from their original the installments were paid for with the conjugal funds during their
raw state. marriage. Is the conjugal partnership entitled to the land?
Q. Who bears the losses from gambling or betting? A. No, the conjugal funds would only be entitled to reimbursement for the
expense (Lorenzo v. Nicolas, 91 Phil. 686). Under the Friar Lands Act
A. Losses shall be borne exclusively by the loser-spouse. No. 1120, the equitable and beneficial title to the land passes to the
purchaser the moment the first installment is paid and a certificate of
Art. 118. Property bought on installments paid partly sale is issued. (Alvarez v. Espiritu, 14 SCRA 892, citing Director of
from exclusive funds of either or both spouses and partly Lands v. Rizal, 87 Phil. 806)
from conjugal funds belongs to the buyer or buyers if full
ownership was vested before the marriage and to the Q. A property was bought during the marriage. The purchase was funded
conjugal partnership if such ownership was vested partly by the exclusive money of either or both of the spouses and
during the marriage. In either case, any amount partly by conjugal funds. Should the property be deemed both
advanced by the partnership or by either or both spouses paraphernal and conjugal in proportion to the contributions of each?

A. In the case of Castillo, Jr. v. Pasco, 11 SCRA 102, the Supreme Court
decided that the property should be considered as both paraphernal Q. Will interests falling due during the marriage belong exclusively to the
and conjugal, taking in consideration the contributions of each to the spouse who owns the credit?
total purchase price.
However, the applicability of the above jurisprudence may be A. No, the second sentence of Article 119 specifically provides that
questioned right now in view of Article 118. Clearly, the reason is to interests falling due during the marriage on the principal shall belong
give life to the state’s public policy of, as much as possible creating a to the conjugal partnership.
unified ownership of properties between husband and wife during the
time of marriage. While Article 118 contemplates a situation where Art. 120. The ownership of improvements, whether for
the property was bought prior to the marriage, the public policy sought utility or adornment, made on the separate property of
to be achieved by the said provision must with more reason, the spouses at the expense of the partnership or through
necessarily be carried into effect also in cases where the property was the acts or efforts of either or both spouses shall pertain
purchased at the time when the parties are already and legally to the conjugal partnership, or to the original owner-
married. spouse, subject to the following rules:
If it is bought partly by conjugal funds and partly by separate funds, it When the cost of the improvement made by the conjugal
cannot be said to be exclusively bought by the exclusive money of partnership and any resulting increase in value are more
either of the spouses and therefore, the property so bought should be than the value of the property at the time of the
considered conjugal, subject to the same reimbursement scheme under improvement, the entire property of one of the spouses
the last sentence of Article 118. shall belong to the conjugal partnership, subject to
reimbursement of the value of the property of the owner-
Art. 119. Whenever an amount or credit payable within a spouse at the time of the improvement; otherwise, said
period of time belongs to one of the spouses, the sums property shall be retained in ownership by the owner-
which may be collected during the marriage in partial spouse, likewise subject to reimbursement of the cost of
payments or by installments on the principal shall be the the improvement.
exclusive property of the spouse. However, interests In either case, the ownership of the entire property shall
falling due during the marriage on the principal shall be vested upon the reimbursement, which shall be made
belong to the conjugal partnership. (156a, 157a) at the time of the liquidation of the conjugal
partnership. (158a)
Q. What does Article 119 contemplate?
Q. When an improvement is made on a separate property at the expense
A. It contemplates a situation where one of the spouses has in his or her of the partnership, to who shall the improvement and property belong?
favor, a credit payable in installments or, in any case, a credit which
will be fully paid during the marriage. Article 119 provides that in A. It depends. If the value of the improvement and any resulting increase
such instances, all payments made on the principal during the in value are more than the value of the separate property at the time
marriage shall belong exclusively to the spouse who owns the credit. of improvement, the entire property shall belong to the conjugal

partnership. But ownership shall vest only upon reimbursement to the (6) Expenses to enable either spouse to commence or
owner-spouse. If the value of the improvement and any resulting complete a professional, vocational, or other activity
increase in value are not more than the value of the separate property for self-improvement;
at the time of improvement, the property shall be retained by the (7) Ante-nuptial debts of either spouse insofar as they
owner-spouse, subject to reimbursement of the cost of improvement. have redounded to the benefit of the family;
(8) The value of what is donated or promised by both
Q. When shall reimbursement be made? spouses in favor of their common legitimate children
for the exclusive purpose of commencing or
A. Reimbursement shall be made at the time of the liquidation of the completing a professional or vocational course or
conjugal partnership. other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the
Section 4 suit is found to groundless.
Charges Upon and Obligations of the Conjugal Partnership If the conjugal partnership is insufficient to cover the
foregoing liabilities, the spouses shall be solidarily liable
Art. 121. The conjugal partnership shall be liable for: for the unpaid balance with their separate
properties. (161a)
(1) The support of the spouse, their common children,
and the legitimate children of either spouse; however, Q. What are the charges upon and obligations of the conjugal
the support of illegitimate children shall be governed partnership?
by the provisions of this Code on Support;
(2) All debts and obligations contracted during the A. The conjugal partnership shall be liable for:
marriage by the designated administrator-spouse for (1) The support of the spouse, their common children, and the
the benefit of the conjugal partnership of gains, or by legitimate children of either spouse; however, the support of
both spouses or by one of them with the consent of the illegitimate children shall be governed by the provisions of this Code
other; on Support;
(3) Debts and obligations contracted by either spouse (2) All debts and obligations contracted during the marriage by the
without the consent of the other to the extent that the designated administrator-spouse for the benefit of the conjugal
family may have benefited; partnership of gains, or by both spouses or by one of them with the
(4) All taxes, liens, charges, and expenses, including consent of the other;
major or minor repairs upon the conjugal partnership (3) Debts and obligations contracted by either spouse without the
property; consent of the other to the extent that the family may have benefited;
(5) All taxes and expenses for mere preservation made (4) All taxes, liens, charges, and expenses, including major or minor
during the marriage upon the separate property of repairs upon the conjugal partnership property;
either spouse; (5) All taxes and expenses for mere preservation made during the
marriage upon the separate property of either spouse;

(6) Expenses to enable either spouse to commence or complete a Q. Is the signature of one of the spouses as a mere witness and not as a
professional, vocational, or other activity for self-improvement; party to the contract indicative of her implied consent to a contract
(7) Ante-nuptial debts of either spouse insofar as they have redounded executed by the other spouse?
to the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor A. Yes. (Pelayo v. Perez, G.R. No. 141323, June 8, 2005).
of their common legitimate children for the exclusive purpose of
commencing or completing a professional or vocational course or other Q. Who has the burden of proof to show that the liability redounded to
activity for self-improvement; and the benefit of the family?
(9) Expenses of litigation between the spouses unless the suit is found
to groundless. A. The burden of proof must be on the person claiming it. (Homeowners
If the conjugal partnership is insufficient to cover the foregoing Savings and Loan Bank v. Dalio, G.R. No. 153802, March 11, 2005,
liabilities, the spouses shall be solidarily liable for the unpaid balance 453 SCRA 283)
with their separate properties. (161a)
Q. A husband is the administrator of a commercial enterprise. Debts are
Q. Are liabilities always chargeable to the conjugal partnership? incurred by the husband for gain or in exercise of the industry or
profession by which he contributes to the support of the family. Are
A. No, liabilities shall only be chargeable to the conjugal partnership if it such debts chargeable to the conjugal partnership?
benefits the same.
A. Yes, the conjugal partnership of gains shall be liable. (Cobb-Perez v.
Q. Can creditors of a third person go against the conjugal partnership Lantin, 23 SCRA 637; Abella de Diaz v. Erlanger and Galinger, 56
property if one of the spouses is the surety? Phil. 326; Javier v. Osmena, 34 Phil. 336)
A. No, a husband acting as guarantor or surety for another does not act Q. What happens if the conjugal partnership is insufficient to cover the
for the benefit of the conjugal partnership. A contrary view would put debts and obligations enumerated in Article 121?
in peril the conjugal partnership property by allowing it to be given
gratuitously as in cases of donation of conjugal partnership property A. The creditors may demand payment from either or any of the spouses
which is prohibited. (Ayala Investment & Development Corp. v. Court with their respective separate properties. He or she who made the
of Appeals, G.R. No. 118305, February 12, 1998) payment may claim from his or her spouse only the share which
corresponds to each, with the interest for the payment already due. If
Q. Can creditors go against the conjugal partnership property if both the the payment is made before the debt is due, no interest for the
husband and the wife are sureties of a third person? intervening period may be demanded (Article 1217 of the Civil Code).
A. Yes, if both spouses signed the surety agreement, then the conjugal
partnership is liable. Q. When can the separate properties of the spouses be solidarily held
liable?

A. (1) If the conjugal partnership is insufficient to cover the debts and A. As a general rule, no. However, if it redounded to the benefit of the
obligations enumerated in Article 121. family, it shall be chargeable to the conjugal partnership. Also, the
(2) If the spouses expressly made themselves liable in a solidary payment of the personal debts contracted by either spouse before the
manner in any obligation contracted by them for the benefit of the marriage, that of fines and indemnities imposed upon them, as well as
conjugal partnership of gains. the support of illegitimate children of either spouse, may be enforced
against the partnership assets after the responsibilities in Article 121
Q. Can the assignee take possession of the conjugal partnership property have been covered, if the spouse who is bound should have no
for the payment of the insolvent debtor’s obligations? exclusive property or if it should be insufficient. However, at the time
of the liquidation of the partnership, such spouse shall be charged for
A. No, except insofar as it has redounded to the benefit of the family. what has been paid for.
(Article 2238)
Q. What must be shown so that the payment of the personal debts
Art. 122. The payment of personal debts contracted by contracted by either spouse before the marriage, that of fines and
the husband or the wife before or during the marriage indemnities imposed upon them, as well as the support of illegitimate
shall not be charged to the conjugal partnership except children of either spouse, may be enforced against the partnership
insofar as they redounded to the benefit of the family. assets?
Neither shall the fines and pecuniary indemnities A. It must be shown that the obligations under Article 121 have been
imposed upon them be charged to the partnership. covered and that the debtor-spouse has insufficient or not exclusive
properties to pay the debt or obligation involved.
However, the payment of personal debts contracted by
either spouse before the marriage, that of fines and Q. What is the difference between the conjugal partnership of gains and
indemnities imposed upon them, as well as the support of the absolute community regime in terms of liabilities and obligations?
illegitimate children of either spouse, may be enforced
against the partnership assets after the responsibilities A. The conjugal partnership is liable for the personal debts, fines and
enumerated in the preceding Article have been covered, indemnities of either spouse only after payment of all the liabilities of
if the spouse who is bound should have no exclusive the conjugal partnership as enumerated under Article 121 are covered
property or if it should be insufficient; but at the time of and when the separate property of the spouse is insufficient. Under
the liquidation of the partnership, such spouse shall be the absolute community regime, such liabilities may be charged
charged for what has been paid for the purpose above- against the community in case the separate property of the spouse is
mentioned. (163a) insufficient, without the need for payment of all the liabilities of the
absolute community property.
Q. Are payments of personal debts contracted by one spouse before or
during the marriage, fines and indemnities imposed upon them Art. 123. Whatever may be lost during the marriage in
chargeable to the conjugal partnership? any game of chance or in betting, sweepstakes, or any
other kind of gambling whether permitted or prohibited

by law, shall be borne by the loser and shall not be consenting spouse and the third person, and may be
charged to the conjugal partnership but any winnings perfected as a binding contract upon the acceptance by
therefrom shall form part of the conjugal partnership the other spouse or authorization by the court before the
property. (164a) offer is withdrawn by either or both offerors. (165a)
Q. Who bears the loss in a game of chance, betting, sweepstakes or any Art. 125. Neither spouse may donate any conjugal
other kind of gambling? partnership property without the consent of the other.
However, either spouse may, without the consent of the
A. The loser. It shall not be charged to the conjugal partnership. other, make moderate donations from the conjugal
partnership property for charity or on occasions of
Q. Who gains the winnings in a game of chance, betting, sweepstakes or family rejoicing or family distress. (174a)
any other kind of gambling?
Q. Is the rule for conjugal partnership of gains and absolute community
A. The conjugal partnership property, regardless of which of the spouses of property the same with regard to administration of the properties?
won.
A. Yes, Articles 124 and 125, pertaining to conjugal partnership of gains
Section 5. Administration of the Conjugal Partnership and Articles 96 and 98, pertaining to absolute community property are
Property exactly identical.
Art. 124. The administration and enjoyment of the Q. To whom shall the administration and enjoyment of the conjugal
conjugal partnership shall belong to both spouses jointly. partnership belong?
In case of disagreement, the husband's decision shall
prevail, subject to recourse to the court by the wife for A. To both spouses jointly.
proper remedy, which must be availed of within five
years from the date of the contract implementing such Q. What happens in case of disagreement of the spouses with regard to
decision. the administration and enjoyment of the conjugal partnership?
In the event that one spouse is incapacitated or A. The husband's decision shall prevail, subject to recourse to the court by
otherwise unable to participate in the administration of the wife for proper remedy, which must be availed of within five years
the conjugal properties, the other spouse may assume from the date of the contract implementing such decision.
sole powers of administration. These powers do not
include disposition or encumbrance without authority of Q. What happens to the administration of the conjugal properties in the
the court or the written consent of the other spouse. In event that one spouse is incapacitated or unable to participate in such
the absence of such authority or consent, the disposition administration?
or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the A. The other spouse may assume sole powers of administration.

A. The sale is voidable at the instance of the wife who is given five (5)
Q. Does this mean that the spouse having sole powers of administration years from the date of the contract implementing the decision of the
may encumber or dispose the properties? husband to institute the case (Ravina v. Abrille, G.R. No. 160708,
October 16, 2009)
A. No, the powers do not include disposition or encumbrance without
authority of the court or the written consent of the other spouse. In the Q. If an act of administration is with the knowledge but without the
absence of such authority or consent, the disposition or encumbrance consent of the wife, is the contract valid?
shall be void. However, the transaction shall be construed as a A. Yes, the contract is merely rescissible at the instance of the wife and
continuing offer on the part of the consenting spouse and the third she can question the transaction in court within five (5) years from the
person, and may be perfected as a binding contract upon the implementation of the contract.
acceptance by the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors. Q. In case the buyers knew that the property formed part of conjugal
partnership property but they bought it from the husband only
Q. If the marriage settlement provides for the conjugal partnership of without the consent of the wife, is the sale valid?
gains as governing the property relationship within a marriage, but
the same stipulates that the sharing will not be equal upon A. No, the sale is totally void. However, because of the doctrine of unjust
liquidation, will such unequal sharing affect the administration? enrichment, the purchase price had to be returned to the buyers with
interest (Onesiforo v. Alinas, G.R. No. 158040, April 14, 2008)
A. No, such unequal sharing will not affect the joint administration of the
spouses during the marriage which places the spouses in equal footing, Q. What is the nature of the proceedings when the wife seeks to annul
unless otherwise agreed upon also in the marriage settlement (See the husband’s decision in the administration and enjoyment of the
Minutes of the 173rd Joint Meeting of the Civil Code and Family Law conjugal property?
committees held on February 21, 1987, page 13).
A. Summary procedure pursuant to Title XI (Articles 238 up to 253) of
Q. Are alienations of conjugal partnership property made by one spouse the Family Code shall apply.
valid?
Section 6
A. No, any alienation made by one spouse without the knowledge and Dissolution of Conjugal Partnership Regime
consent of the other is invalid. (Homeowners Savings & Loans Bank v.
Dialo, G.R. No. 153802, March 11, 2005, 453 SCRA 283; Bautista v. Art. 126. The conjugal partnership terminates:
Silva, G.R. No. 157434, September 19, 2006, 502 SCRA 334) (1)Upon the death of either spouse;
(2)When there is a decree of legal separation;
Q. If the sale of the conjugal partnership property done by the husband (3)When the marriage is annulled or declared void; or
was with the knowledge but without the approval of the wife, is the (4) In case of judicial separation of property during the
sale valid? marriage under Articles 134 to 138. (175a)

Q. How does the conjugal partnership terminate? Q. In case of separation in fact, how is consent to a conjugal transaction
acquired?
A. Through the death of either spouse, a decree of legal separation, a
decree of annulment or nullity, or judicial separation of property. A. Through a judicial authorization obtained in a summary proceeding.
Q. Will partnership rules apply upon the dissolution of the conjugal Q. In case of separation in fact and the property of the absent spouse is
partnership? necessary in order to support the family, how is his separate
property sold or encumbered?
A. No. Upon termination, the conjugal partnership immediately ceases to
exist. (Nable Jose v. Nable Jose, 41 Phil. 713) A. Through judicial authorization.
Art. 127. The separation in fact between husband and Q. Is the conjugal partnership liable if a spouse who leaves the conjugal
wife shall not affect the regime of conjugal partnership, home incurs a debt for the benefit of the family?
except that:
A. Yes. Their separation in fact will not justify the non-liability of the
(1)The spouse who leaves the conjugal home or refuses to community property. (Garcia v. Cruz, 25 SCRA 225)
live therein, without just cause, shall not have the
right to be supported; Art. 128. If a spouse without just cause abandons the
(2)When the consent of one spouse to any transaction of other or fails to comply with his or her obligation to the
the other is required by law, judicial authorization family, the aggrieved spouse may petition the court for
shall be obtained in a summary proceeding; receivership, for judicial separation of property, or for
(3) In the absence of sufficient conjugal partnership authority to be the sole administrator of the conjugal
property, the separate property of both spouses shall partnership property, subject to such precautionary
be solidarily liable for the support of the family. The conditions as the court may impose.
spouse present shall, upon petition in a summary
proceeding, be given judicial authority to administer The obligations to the family mentioned in the preceding
or encumber any specific separate property of the paragraph refer to marital, parental or property
other spouse and use the fruits or proceeds thereof to relations.
satisfy the latter's share. (178a)
A spouse is deemed to have abandoned the other when
Q. If one spouse leaves the conjugal home without just case, is he or she he or she has left the conjugal dwelling without intention
entitled to support? of returning. The spouse who has left the conjugal
dwelling for a period of three months or has failed within
A. No. the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no

intention of returning to the conjugal dwelling. (167a,

191a) Q. Do these rules likewise apply in case of failure to comply with
obligations to the family?
Q. What is the essence of abandonment?
A. Yes.
A. Abandonment implies a departure by one spouse with the avowed
intent never to return, followed by prolonged absence without just Q. Specifically, what are the obligations to the family being referred to?
cause, and without in the meantime providing in the lease for one’s
family although able to do so. There must be absolute cessation of A. Marital, parental or property obligations.
marital relations, duties, and rights with the intention of
perpetual separation.
Q. Statutorily, when is a spouse deemed to have abandoned the other?

A. When he or she has left the conjugal dwelling without intention of
returning.
Q. When does a prima facie presumption of abandonment arise?
A. When a spouse leaves the conjugal dwelling for a period of three Section 7
months or has failed within the same period to give any information Liquidation of the
as to his or her whereabouts. Conjugal Partnership
Assets and Liabilities
Q. Does mere physical estrangement constitute abandonment?
Art. 129. Upon the dissolution of the conjugal partnership
A. No. There must be financial and moral desertation as well. (Dela Cruz regime, the following procedure shall apply:
v. Dela Cruz, 130 Phil. 324)
(1)An inventory shall be prepared, listing separately all
Q. What are the remedies of the aggrieved spouse in case of the properties of the conjugal partnership and the
abandonment? exclusive properties of each spouse.
(2)Amounts advanced by the conjugal partnership in
A. Receivership, judicial separation of property, and authority to be the payment of personal debts and obligations of either
sole administrator of the conjugal partnership. spouse shall be credited to the conjugal partnership as
an asset thereof.
Q. Any limitations? (3)Each spouse shall be reimbursed for the use of his or
her exclusive funds in the acquisition of property or
A. Subject to such precautionary measures as the court may impose. for the value of his or her exclusive property, the

ownership of which has been vested by law in the

conjugal partnership. Q. What is the step by step procedure in dissolution?
(4)The debts and obligations of the conjugal partnership
shall be paid out of the conjugal assets. In case of A. See article 129.
insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their Q. What are the modes of liquidating the conjugal partnership?
separate properties, in accordance with the provisions
of paragraph (2) of Article 121. A. Extrajudicial settlement, partition, testate proceedings, and intestate
(5)Whatever remains of the exclusive properties of the proceedings. (Villocino v. Doyon , 63 SCRA 460)
spouses shall thereafter be delivered to each of them.
(6)Unless the owner had been indemnified from Q. In the inventory, what value is taken into consideration?
whatever source, the loss or deterioration of movables
used for the benefit of the family, belonging to either A. The market value and, in the default thereof the assessed value at the
spouse, even due to fortuitous event, shall be paid to time of liquidation. (Prado v. Natividad, 47 Phil. 775)
said spouse from the conjugal funds, if any.
(7)The net remainder of the conjugal partnership Q. Is the initial determination of the value fixed?
properties shall constitute the profits, which shall be
divided equally between husband and wife, unless a A. No. If the proceedings take a long time and the values assessed are
different proportion or division was agreed upon in substantially altered, a new valuation can be made. (Padilla v.
the marriage settlements or unless there has been a Paterno, 93 Phil. 884)
voluntary waiver or forfeiture of such share as
provided in this Code. Q. How are amounts advanced by the conjugal partnership to the spouses
(8)The presumptive legitimes of the common children treated?
shall be delivered upon the partition in accordance
with Article 51. A. They are treated as assets.
(9)In the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall, Q. In the payment of partnership debts and obligations, what is paid
unless otherwise agreed upon by the parties, be first?
adjudicated to the spouse with whom the majority of
the common children choose to remain. Children A. Advances made by either spouse in favor of the conjugal partnership
below the age of seven years are deemed to have are paid first.
chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court Q. In the absence of stipulation or a valid waiver, how will the net
shall decide, taking into consideration the best remainder be shared by the spouses?
interests of said children. (181a, 182a, 183a, 184a, 185a)
A. Equally.

Q. In what instances is the presumptive legitime delivered? A. Judicial or extrajudicial liquidation within one year from death.
A. In case of annulment of marriage under Article 45 or nullity under Q. What if there is no liquidation within one year from death?
Article 40.
A. Any disposition or encumbrance involving the conjugal partnership
Q. Which spouse retains possession of the conjugal dwelling? shall be void.
A. The spouse with whom majority of the children remain. Q. What if the surviving spouse remarries without liquidating assets of
the conjugal partnership?
Art. 130. Upon the termination of the marriage by death,
the conjugal partnership property shall be liquidated in A. Complete separation of property governs the property relations of the
the same proceeding for the settlement of the estate of subsequent marriage.
the deceased.
Q. A and B are married. A dies. A parcel of land is in B’s name but B’s
If no judicial settlement proceeding is instituted, the civil status is described as “married”. Should the property be treated
surviving spouse shall liquidate the conjugal partnership as separate or conjugal?
property either judicially or extra-judicially within six
months from the death of the deceased spouse. If upon A. Separate. In the absence of proof that the property was acquired
the lapse of the six-month period no liquidation is made, during the marriage, the property shall be considered as owned by the
any disposition or encumbrance involving the conjugal person stated in the certificate. (Estonia v. Court of Appeals, 266
partnership property of the terminated marriage shall be SCRA 627)
void.
Art. 131. Whenever the liquidation of the conjugal
Should the surviving spouse contract a subsequent partnership properties of two or more marriages
marriage without compliance with the foregoing contracted by the same person before the effectivity of
requirements, a mandatory regime of complete this Code is carried out simultaneously, the respective
separation of property shall govern the property capital, fruits and income of each partnership shall be
relations of the subsequent marriage. (n) determined upon such proof as may be considered
according to the rules of evidence. In case of doubt as to
Q. In case of termination of the marriage by death, where shall the which partnership the existing properties belong, the
conjugal partnership property be liquidated? same shall be divided between the different partnerships
in proportion to the capital and duration of each. (189a)
A. In the settlement of the estate of the deceased.
Q. What if settlement proceedings are not instituted?

Q. In case a person has had two marriages and the properties of both
marriages are being liquidated simultaneously, how is the liquidation Q. Is this enumeration exclusive?
carried out?
A. Yes. (Babao v. Villavicencio, 44 Phil. 921)
A. The capital, fruits and income shall pertain to the marriage where
they were respectively acquired. Q. What if the children are already of age, gainfully employed, or
married?
Q. What if there is doubt as to which marriage the capital fruits and
income belong? A. They can still claim support. (Santero v CFI, 153 SCRA 728)
A. They shall be apportioned in proportion to the capital and duration of Q. How is the maintenance and support taken by a widow from the
each. conjugal partnership treated?
(For further illustrations, see the five scenarios under Article 104).
A. It is treated as an advance to be deducted from her share in the final
Art. 132. The Rules of Court on the administration of distribution. (Santos v. Bartolome, 44 Phil. 76)
estates of deceased persons shall be observed in the
appraisal and sale of property of the conjugal
partnership, and other matters which are not expressly
determined in this Chapter. (187a)
Q. In cases of appraisal and sale of property, what rules govern?

Chapter 5.
A. The Rules of Court. Separation of Property of the
Spouses and Administration of Common
Art. 133. From the common mass of property support Property by One Spouse During the Marriage
shall be given to the surviving spouse and to the children
during the liquidation of the inventoried property and Art. 134. In the absence of an express declaration in the
until what belongs to them is delivered; but from this marriage settlements, the separation of property
shall be deducted that amount received for support between spouses during the marriage shall not take
which exceeds the fruits or rents pertaining to them. place except by judicial order. Such judicial separation
(188a) of property may either be voluntary or for sufficient
cause. (190a)
Q. During the liquidation, who can claim support from the common mass
of property? Q. What are the ways for a separation of property to exist?
A. Only the surviving spouse and the children. A. Marriage settlement or judicial order.

Separation of Property of the Spouses and Administration Separation of Property of the Spouses and Administration
of Common Property by One Spouse During the Marriage of Common Property by One Spouse During the Marriage
Q. How will a judicial order be obtained? Q. What if he left a person in charge of the administration of his
property?
A. Voluntarily or for a sufficient cause.
A. The period is extended to five years.
Art. 135. Any of the following shall be considered
sufficient cause for judicial separation of property: Q. When will the judicial declaration of absence take effect?
(1) That the spouse of the petitioner has been sentenced
to a penalty which carries with it civil interdiction; A. Six months after publication.
(2) That the spouse of the petitioner has been judicially
declared an absentee; Q. Loss of parental authority refers to which child?
(3) That loss of parental authority of the spouse of
petitioner has been decreed by the court; A. Common child whether legitimate or illegitimate or a child with
(4) That the spouse of the petitioner has abandoned the another person whether legitimate or illegitimate.
latter or failed to comply with his or her obligations to
the family as provided for in Article 101; Q. What constitutes abuse of administration?
(5) That the spouse granted the power of administration
in the marriage settlements has abused that power; A. Abuse connotes willful and utter disregard of the interests of the
and partnership, evidenced by a repetition of deliberate acts and/or
(6) That at the time of the petition, the spouses have been omissions prejudicial to the latter. (Dela Cruz v. Dela Cruz, 130 Phil.
separated in fact for at least one year and 342)
reconciliation is highly improbable.
Q. Will mere refusal or failure of the husband to inform the wife of the
In the cases provided for in Numbers (1), (2) and (3), the progress of the family business constitute abuse?
presentation of the final judgment against the guilty or
absent spouse shall be enough basis for the grant of the A. No. (Dela Cruz v. Dela Cruz, 130 Phil. 342)
decree of judicial separation of property. (191a)
Q. Will the simple performance of an act or acts prejudicial to the other
Q. What are the grounds for a judicial separation of property? spouse constitute abuse?
A. See Article 135. A. No.
Q. When can a declaration of absence be sought? Q. Will mere separation in fact constitute a ground for judicial separation
of property?
A. Two years having elapsed without any news about the absentee or
since the receipt of the last news.

A. No. They must have been separated in fact for at least one year and Art. 137. Once the separation of property has been
reconciliation must be highly improbable. decreed, the absolute community or the conjugal
partnership of gains shall be liquidated in conformity
Art. 136. The spouses may jointly file a verified petition with this Code.
with the court for the voluntary dissolution of the
absolute community or the conjugal partnership of gains, During the pendency of the proceedings for separation of
and for the separation of their common properties. property, the absolute community or the conjugal
partnership shall pay for the support of the spouses and
All creditors of the absolute community or of the their children. (192a)
conjugal partnership of gains, as well as the personal
creditors of the spouse, shall be listed in the petition and Q. What process must be followed in the liquidation of the property
notified of the filing thereof. The court shall take regime?
measures to protect the creditors and other persons with
pecuniary interest. (191a) A. The process laid down in Article 102 and Article 129 must be observed.
However the delivery of the presumptive legitime is no necessary
Q. What is the default sharing between the spouses? because such delivery applies only in case the marriage is either
judicially annulled under Article 45 or declared void under Article 40.
A. Equal sharing.
Q. Is a partial voluntary separation of property agreed upon by the
Q. What are the exceptions? parties valid?
A. Agreement to the contrary or a valid waiver. A. Yes. (Maquilan v. Maquilan, 524 SCRA 167)
Q. What is the exception to the exception? Art. 138. After dissolution of the absolute community or
of the conjugal partnership, the provisions on complete
A. If the agreement or waiver is against public policy. separation of property shall apply. (191a)
Q. Will the failure to notify the creditors nullify the judicial order? Q. What property relations results after the dissolution of the absolute
community property or the conjugal partnership?
A. No.
A. Complete Separation of Property.
Q. When will the separation of property take effect?
Q. Does the mere filing of the petition to initiate the proceeding
A. From the time of the issuance of the decree. automatically result in the dissolution of the property regime?
A. No. Only after the finality of the decision of the court decreeing the
separation.

spouses, they agree to the revival of the former

Art. 139. The petition for separation of property and the property regime. No voluntary separation of property
final judgment granting the same shall be recorded in may thereafter be granted.
the proper local civil registries and registries of
property. (193a) The revival of the former property regime shall be
governed by Article 67. (195a)
Art. 140. The separation of property shall not prejudice
the rights previously acquired by creditors. (194a) Q. What are the instances where the property regime that existed before
the separation of property is revived?
Q. What is the purpose of recording the petition for separation of
property? A. (1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
A. To aid present and future creditors in determining the whether an (3) When the court, being satisfied that the spouse granted the power
asset of a spouse is conjugal or really separate. of administration in the marriage settlements will not again abuse
that power, authorizes the resumption of said administration;
Art. 141. The spouses may, in the same proceedings (4) When the spouse who has left the conjugal home without a decree
where separation of property was decreed, file a motion of legal separation resumes common life with the other;
in court for a decree reviving the property regime that (5) When parental authority is judicially restored to the spouse
existed between them before the separation of property previously deprived thereof;
in any of the following instances: (6) When the spouses who have separated in fact for at least one year,
(1)When the civil interdiction terminates; reconcile and resume common life; or
(2)When the absentee spouse reappears; (7) When after voluntary dissolution of the absolute community of
(3)When the court, being satisfied that the spouse property or conjugal partnership has been judicially decreed upon the
granted the power of administration in the marriage joint petition of the spouses, they agree to the revival of the former
settlements will not again abuse that power, property regime. No voluntary separation of property may thereafter
authorizes the resumption of said administration; be granted.
(4)When the spouse who has left the conjugal home
without a decree of legal separation resumes common Q. What are the procedural requirements to initiate the above said
life with the other; revival?
(5)When parental authority is judicially restored to the
spouse previously deprived thereof; A. To be able to revive the previous property regime, the spouses should
(6)When the spouses who have separated in fact for at file a motion in the same court proceeding where the separation was
least one year, reconcile and resume common life; or decreed. The agreement to revive the property regime shall be
(7)When after voluntary dissolution of the absolute executed under oath and specify: (1) the properties to be contributed
community of property or conjugal partnership has anew to the restored regime; (2) those to be retained as separate
been judicially decreed upon the joint petition of the

properties of each spouse; and (3) the names of all their known that jurisdiction; specifically, one who flees to avoid punishment.”
creditors, their addresses and the amounts owing to each. (Ochida v. Cabarraguis, 71 SCRA 40).
Art. 142. The administration of all classes of exclusive

property of either spouse may be transferred by the Chapter 6. Regime of Separation of Property
court to the other spouse:
(1)When one spouse becomes the guardian of the Art. 143. Should the future spouses agree in the marriage
other; settlements that their property relations during marriage
(2)When one spouse is judicially declared an absentee; shall be governed by the regime of separation of property, the
(3)When one spouse is sentenced to a penalty which provisions of this Chapter shall be suppletory. (212a)
carries with it civil interdiction; or
(4)When one spouse becomes a fugitive from justice or Q. In a regime of separation of property what shall principally govern the
is in hiding as an accused in a criminal case. regime?
If the other spouse is not qualified by reason of A. The marriage settlement. The Family Code shall only be suppletorily
incompetence, conflict of interest, or any other just applied.
cause, the court shall appoint a suitable person to be the
administrator. (n) Art. 144. Separation of property may refer to present or
future property or both. It may be total or partial. In the
Q. What are the instances where the administration of classes of latter case, the property not agreed upon as separate
exclusive property of either spouse may be transferred by the court to shall pertain to the absolute community. (213a)
the other spouse?
Q. If the separation of property pertains only to a partial amount of the
A. (1) When one spouse becomes the guardian of the other; property, What property regime will apply to the other portion?
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it A. It shall pertain to the absolute community.
civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in hiding as Q. Can the spouses agree that the regime of absolute community of
an accused in a criminal case. property be effective up to until their first year of marriage and the
regime of separation of property be applied thereafter?
Q. What are the jurisprudential guidelines in determining a fugitive from
justice? A. No. This is tantamount to dissolving the absolute community property
by virtue of a cause or contingency not provided by law.
A. A fugitive from justice refers to “one who having committed or being
accused of a crime in one jurisdiction is absent for any reason from Art. 145. Each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate,

Regime of Separation of Property Property Regimes of Unions without Marriage
without need of the consent of the other. To each spouse In the absence of proof to the contrary, properties
shall belong all earnings from his or her profession, acquired while they lived together shall be presumed to
business or industry and all fruits, natural, industrial or have been obtained by their joint efforts, work or
civil, due or received during the marriage from his or her industry, and shall be owned by them in equal shares.
separate property. (214a) For purposes of this Article, a party who did not
participate in the acquisition by the other party of any
Q. What belongs to each spouse in a regime of separation of property? property shall be deemed to have contributed jointly in
the acquisition thereof if the former's efforts consisted in
A. To each spouse shall belong all earnings from his or her profession, the care and maintenance of the family and of the
business or industry and all fruits, natural, industrial or civil, due or household.
received during the marriage from his or her separate property.
Neither party can encumber or dispose by acts inter
Art. 146. Both spouses shall bear the family expenses in vivos of his or her share in the property acquired during
proportion to their income, or, in case of insufficiency or cohabitation and owned in common, without the consent
default thereof, to the current market value of their of the other, until after the termination of their
separate properties. cohabitation.
The liabilities of the spouses to creditors for family When only one of the parties to a void marriage is in
expenses shall, however, be solidary. (215a) good faith, the share of the party in bad faith in the co-
ownership shall be forfeited in favor of their common
Q. What is the liability of the spouses to creditors for family expenses? children. In case of default of or waiver by any or all of
the common children or their descendants, each vacant
A. Solidary. share shall belong to the respective surviving
descendants. In the absence of descendants, such share
shall belong to the innocent party. In all cases, the
Chapter 7 forfeiture shall take place upon termination of the
Property Regime of Unions Without Marriage cohabitation. (144a)
Art. 147. When a man and a woman who are capacitated Q. Who qualifies so that Art. 147 will apply?
to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or A. To qualify under Article 147, the man and the woman must: (1) must
under a void marriage, their wages and salaries shall be be capacitated to marry each other; (2) live exclusively with each other
owned by them in equal shares and the property as husband and wife; and (3) be without the benefit of marriage or
acquired by both of them through their work or industry under a void marriage. All these requisites must concur.
shall be governed by the rules on co-ownership.
Q. What is the structure of the property relationship under Article 147?

Property Regimes of Unions without Marriage Property Regimes of Unions without Marriage
cases, the forfeiture shall take place upon termination of the

A. (1) Wages and salaries shall be owned by them in equal shares; cohabitation.
(2) Property acquired by either of the parties exclusively by his or her
own fund belongs to such party provided that there is proof that he or Art. 148. In cases of cohabitation not falling under the
she acquired it by exclusive funds; preceding Article, only the properties acquired by both
(3) Property acquired by both of them through their work or industry of the parties through their actual joint contribution of
shall be governed by the rules on co-ownership. Consequently, either money, property, or industry shall be owned by them in
spouse may alienate in favor of the other his or her share in the common in proportion to their respective contributions.
property; In the absence of proof to the contrary, their
(4) In the absence of proof to the contrary, properties acquired while contributions and corresponding shares are presumed to
they lived together shall be presumed to have been obtained by their be equal. The same rule and presumption shall apply to
joint efforts, work or industry, and shall be owned by them in equal joint deposits of money and evidences of credit.
shares. For purposes of this Article, a party who did not participate in
the acquisition by the other party of any property shall be deemed to If one of the parties is validly married to another, his or
have contributed jointly in the acquisition thereof if the former's efforts her share in the co-ownership shall accrue to the
consisted in the care and maintenance of the family and of the absolute community or conjugal partnership existing in
household; such valid marriage. If the party who acted in bad faith is
(5) The fruits of the couple’s separate property are not included in the not validly married to another, his or her shall be
co-ownership (Valdes v. RTC, 260 SCRA 221); forfeited in the manner provided in the last paragraph of
(6) Property acquired by any of the parties after separation shall be the preceding Article.
exclusively owned by the party who acquired it; The foregoing rules on forfeiture shall likewise apply
(7) Neither party can encumber or dispose by acts inter vivos of his or even if both parties are in bad faith. (144a)
her share in the property acquired during cohabitation and owned in
common, without the consent of the other, until after the termination Q. What relationships are contemplated under Art. 148?
of their cohabitation. However, either spouse may alienate in favor of
the other his or her share in the property co-owned. But no one can A. (1) A man and a woman living together as husband and wife, without
donate or waive any interest in the co-ownership that would constitute the benefit of marriage, but are not capacitated to marry;
an indirect or direct grant of gratuitous advantage to the other which (2) An adulterous relationship even if it occurred prior to the effectivity
is void pursuant to Art. 87; of the Family Code (Atienza vs. De Castro, 508 SCRA 593).
(8)When only one of the parties to a void marriage is in good faith, the (3) A bigamous or polygamous marriage;
share of the party in bad faith in the co-ownership shall be forfeited in (4) Incestuous void marriages under Art. 37; and
favor of their common children. In case of default of or waiver by any (5) Void Marriages by reason of public policy under Art. 38.
or all of the common children or their descendants, each vacant share
shall belong to the respective surviving descendants. In the absence of Q. What is the structure of the property relationship under Art. 148?
descendants, such share shall belong to the innocent party. In all

Art. 147-148 PROPERTY RELATIONS BETWEEN 229 Art. 149-151 THE FAMILY 230
HUSBAND AND WIFE Family as an Institution
Property Regimes of Unions without Marriage
The Family as an Institution

A. (1) The salaries and wages are separately owned by the parties and if
any of the spouses is married, his or her salary is the property of the Art. 149. The family, being the foundation of the nation, is
conjugal partnership of gains of such legitimate marriage; a basic social institution which public policy cherishes
(2) Property solely acquired by funds of any of the parties belongs to and protects. Consequently, family relations are
such party; governed by law and no custom, practice or agreement
(3) Only the properties acquired by both of the parties through their destructive of the family shall be recognized or given
actual joint contribution of money, property, or industry shall be effect. (216a, 218a)
owned by them in common in proportion to their respective
contributions; Q. Husband and wife agrees to each have a paramour which will not be a
(4) The respective shares of the parties over properties owned in ground to invalidate the marriage. Is the agreement valid?
common are presumed to be equal. However, proofs may be shown to
show that their contribution and respective shares are not equal. A. No. The agreement is void. No agreement which will be destructive to
Without proof of actual contribution by both parties, there can be no the family shall not be recognized.
presumption of co-ownership and equal sharing (Villanueva v. Court of
Appeals, G.R. No. 143286, April 14, 2004; Rivera v. Heirs of Romualdo Art. 150. Family relations include those:
Villanueva, G.R. No. 141501, July 21, 2006, 496 SCRA 135).
(5) The rule and presumption mentioned above shall apply to joint (1) Between husband and wife;
deposits of Money and evidences of credit; and (2) Between parents and children;
(6) If one of the parties is validly married to another, his or her share (3) Among brothers and sisters, whether of the full or
in the co-ownership shall accrue to the absolutes community or half-blood. (217a)
conjugal partnership existing in such valid marriage. If the party who
acted in bad faith is not validly married to another, his or her share Q. What does family relations include?
shall be forfeited in the manner provided in the last paragraph of
Article 147. The foregoing rules on forfeiture shall likewise apply even A. 1) Between husband and wife;
if both parties are in bad faith. (2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood.
Art. 151. No suit between members of the same family

shall prosper unless it should appear from the verified
complaint or petition that earnest efforts toward a
compromise have been made, but that the same have
failed. If it is shown that no such efforts were in fact
TITLE V made, the same case must be dismissed.
THE FAMILY This shall not apply to cases which may not be the
subject of compromise under the Civil Code. (222a)
Chapter 1

Art. 149-151 THE FAMILY 231 Art. 152-162 THE FAMILY 232
Family as an Institution The Family Home
Q. As a general rule, what is needed before a suit between members of

the same family will prosper?
Q. What is a family home?
A. No suit between members of the same family shall prosper unless it
A. Article 152. An additional requirement is that the land and the
should appear from the verified complaint or petition that earnest
dwelling house must be owned by the person or persons constituting
efforts toward a compromise have been made, but that the same have
the family home.
failed.
Q. When is a family home deemed constituted?
Q. What is the exception to the above general rule?
A. Under the Family Code, a family home is deemed constituted on a
A. It is not required if included in the suit between family members is a
house and land from the time it is actually occupied as a family
stranger not of the same family. This is so because the interest of the
residence. (Arriola v. Arriola, G.R. No. 177703, January 28, 2008, 542
stranger differs from the interest of the members of the same family.
SCRA 666) The occupancy must be actual and not constructive,
The rule will not also apply to cases which may not be compromised
something which is merely possible or presumptive. (Patricio v. Dario
under the Civil Code. These cases are enumerated in Art. 2035. It also
III, G.R. No. 170829, November 20, 2006)
does not apply to special proceedings like a petition for settlement of
Q. Who can constitute a family home?
estate guardianship and custody of children, and habeas corpus.
A. Spouses must constitute a family home jointly. However, an
unmarried head of the family can constitute by himself or herself. The
occupancy of any of the beneficiaries can likewise constitute a home as
Chapter 2
a family home.
The Family Home
Q. What is the period of exemption from execution?
Art. 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a
A. The exemption from execution, forced sale, or attachment provided by
family, is the dwelling house where they and their family
law is effective from the time of the family home as such and lasts so
reside, and the land on which it is situated. (223a)
long as any of its beneficiaries actually resides therein. ( Modequillo v.
Breva, 185 SCRA 766)
Art. 153. The family home is deemed constituted on a
house and lot from the time it is occupied as a family
Q. What is the characteristic of this right of exemption?
residence. From the time of its constitution and so long
as any of its beneficiaries actually resides therein, the
A. It is a personal right (Versola v. Court of Appeals, G.R. No. 164740,
family home continues to be such and is exempt from
July 31, 2006, 497 SCRA 385). However it is not an absolute right as
execution, forced sale or attachment except as
there obligations and indebtedness excluded from the exemption as
hereinafter provided and to the extent of the value
listed in Article 155. Article 160 also gives a judgment creditor, whose
allowed by law.
credit is not included in Article 155, the option to apply for the family

The Family Home The Family Home
home’s execution if he or she has reasonable grounds to believe that (1) For nonpayment of taxes;
the family home is actually worth more than the maximum amount (2) For debts incurred prior to the constitution of the
allowable for a family home. family home;
(3) For debts secured by mortgages on the premises
Art. 154. The beneficiaries of a family home are: before or after such constitution; and
(1) The husband and wife, or an unmarried person who is (4) For debts due to laborers, mechanics, architects,
the head of a family; and builders, materialmen and others who have rendered
(2) Their parents, ascendants, descendants, brothers and service or furnished material for the construction of the
sisters, whether the relationship be legitimate or building. (243a)
illegitimate, who are living in the family home and who
depend upon the head of the family for legal support. Q. How is the term “debt” to be understood under Article 155?
(226a)
A. The term “debt” used in Article 155 is not qualified and must
Q. Who are the beneficiaries of a family home? therefore be used in its generic sense, i.e., “obligations” in general. A
court judgment is not necessary to clothe a pre-existing debt under
A. Article 154 Article 155 with the privileged character of being enforceable against
the family home.
Q. What is the importance of knowing the beneficiaries of a family home?
Art. 156. The family home must be part of the properties
A. Knowing the beneficiaries is important because their actual occupancy of the absolute community or the conjugal partnership,
of a home may constitute the same as a family home provided their or of the exclusive properties of either spouse with the
actual occupancy of the house and lot is with the consent either of the latter's consent. It may also be constituted by an
husband and/or the wife who own the house and lot or of the unmarried head of a family on his or her own property.
unmarried person who is the head of the family and who likewise
owns the house and lot, even if said owners do not actually reside Nevertheless, property that is the subject of a conditional
therein. (Manacop v. Court of Appeals 27 SCRA 57) sale on installments where ownership is reserved by the
vendor only to guarantee payment of the purchase price
Q. What are the requisites to be a beneficiary? may be constituted as a family home. (227a, 228a)
A. 1) They must be among the relationships enumerated in Article Q. Where can a family home be constituted?
154. 2) They actually live in the family home. 3) They are dependent
for legal support upon the head of the family. A. A family home must be constituted at a place where there is a fixed
and permanent connection with the persons constituting it. It must be
Art. 155. The family home shall be exempt from part of the absolute community or the conjugal partnership, or of the
execution, forced sale or attachment except: exclusive properties of either spouse with the latter's consent. It may

also be constituted by an unmarried head of a family on his or her own Q. Can the family home be sold or otherwise alienated? Under what
property. conditions?
Art. 157. The actual value of the family home shall not A. The family home may be sold, alienated, donated, assigned or
exceed, at the time of its constitution, the amount of the encumbered by the owner or owners thereof with the written consent
three hundred thousand pesos in urban areas, and two of the person constituting the same, the latter's spouse, and a majority
hundred thousand pesos in rural areas, or such amounts of the beneficiaries of legal age. In case of conflict, the court shall
as may hereafter be fixed by law. decide.
In any event, if the value of the currency changes after Art. 159. The family home shall continue despite the
the adoption of this Code, the value most favorable for death of one or both spouses or of the unmarried head of
the constitution of a family home shall be the basis of the family for a period of ten years or for as long as there
evaluation. is a minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons therefor.
For purposes of this Article, urban areas are deemed to This rule shall apply regardless of whoever owns the
include chartered cities and municipalities whose property or constituted the family home. (238a)
annual income at least equals that legally required for
chartered cities. All others are deemed to be rural areas. Q. Can the heirs partition the family home upon the death of the person
(231a) who constituted it?
Q. When is this actual value of the family home examined? A. No. The family home shall continue as a family home for a period of 10
years or for as long as there is a minor beneficiary. The heirs cannot
A. It is the value at the time of the constitution that is important. Hence, partition the same unless the court finds compelling reasons therefor.
if after the constitution, the value of the house increased due to The Supreme Court found that though a house and lot passed to the
improvements or renovations to an amount more than that fixed by heirs because of the death of the father, it cannot be immediately
law at the time of the constitution, such family home will remain a partitioned because of Article 159. Article 159 imposes the proscription
family home. against the immediate partition of the family home regardless of its
ownership. (Arriola v. Arriola, 542 SCRA 666)
Art. 158. The family home may be sold, alienated,
donated, assigned or encumbered by the owner or Art. 160. When a creditor whose claims is not among
owners thereof with the written consent of the person those mentioned in Article 155 obtains a judgment in his
constituting the same, the latter's spouse, and a majority favor, and he has reasonable grounds to believe that the
of the beneficiaries of legal age. In case of conflict, the family home is actually worth more than the maximum
court shall decide. (235a) amount fixed in Article 157, he may apply to the court
which rendered the judgment for an order directing the

sale of the property under execution. The court shall so Q. What is the extent and legal significance of Article 162 of the Family
order if it finds that the actual value of the family home Code?
exceeds the maximum amount allowed by law as of the
time of its constitution. If the increased actual value A. As discussed by the Supreme Court in Modequillo v. Breva, 185 SCRA
exceeds the maximum allowed in Article 157 and results 766, Article 162 does not mean that Articles 152 and 153 of the family
from subsequent voluntary improvements introduced by code have a retroactive effect such that all existing family residences
the person or persons constituting the family home, by are deemed to have been constituted as family homes at the time of
the owner or owners of the property, or by any of the their occupation prior to the effectivity of the Family Code and are
beneficiaries, the same rule and procedure shall apply. exempt from execution for the payment of obligations incurred before
the effectivity of the Family Code. Article 162 simply means that all
At the execution sale, no bid below the value allowed for existing family residences at the time of the effectivity of the Family
a family home shall be considered. The proceeds shall be Code, are considered family homes and are prospectively entitled to
applied first to the amount mentioned in Article 157, and the benefits accorded to a family home under the Family Code. Article
then to the liabilities under the judgment and the costs. 162 does not state that the provisions of Chapter 2, Title V have a
The excess, if any, shall be delivered to the judgment retroactive effect.
debtor. (247a, 248a)
Q. What is the difference between claims under Article 155 and claims
under Article 16
A. Unlike Article 155, there is a need under Article 160 for a court
decision before a judgment creditor can avail of the privilege under
Article 160 of the family code. Also, the judgment creditor making a
claim under Article 160 should not be one of those mentioned in Article
155.
Art. 161. For purposes of availing of the benefits of a

family home as provided for in this Chapter, a person
may constitute, or be the beneficiary of, only one family
home. (n)
Art. 162. The provisions in this Chapter shall also govern

existing family residences insofar as said provisions are
applicable. (n)

Arts. 163-172 PATERNITY AND FILIATION 239 Arts. 163-172 PATERNITY AND FILIATION 240
Legitimate Children Legitimate Children
with the birth certificate of the child.
TITLE VI Q. In recognizing children conceived as a result of artificial insemination,

PATERNITY AND FILIATION does it mean then that the Code gave legality to such process?
Chapter 1 A. No. We are not concerned with the legality or illegality of artificial
Legitimate Children insemination. We are not concerned with the morality or immorality of
it. But we are concerned of the status of the child born of that
Art.163. The filiation of children may be by nature or fact. (Justice Caguioa, Hearing on Committee on Women and
by adoption. Natural filiation may be legitimate or Family Relations of the Senate, 1988)
illegitimate. (n)
Q. What are the two types of artificial insemination?
Art.164. Children conceived or born during the marriage A. Homologous and Heterologous. Homologous insemination is the
of the parents are legitimate. process by which the wife is artificially impregnated with the semen of
her husband. This procedure is referred to as AIH (Artificial
Children conceived as a result of artificial insemination Insemination Husband). Heterologous insemination is the
of the wife with the sperm of the husband or that of a artificial insemination of the wife by the semen of a third-party donor
donor or both are likewise legitimate children of the (Artificial Insemination Donor).
husband and his wife, provided, that both of them
authorized or ratified such insemination in a written Q. Does the wife, who conceived a child as a result of artificial
instrument executed and signed by them before the birth insemination without the consent of his husband, liable for adultery?
of the child. The instrument shall be recorded in the civil
A. No. A wife who, without consent of the husband, had herself artificially
registry together with the birth certificate of the child.
inseminated by the semen of another which led to the siring of a child
(55a, 258a)
not of the husband, cannot be held criminally liable for adultery. The
crime of adultery has been defined in Article 333 of the Revised Penal
Art. 165. Children conceived and born outside a valid
Code as committed by any married woman who shall have sexual
marriage are illegitimate, unless otherwise provided in
intercourse with a man not her husband. Artificial insemination,
this Code.
nevertheless, does not involve sexual intercourse which is one of the
essential elements in the crime of adultery in the Revised Penal Code.
Q. What are the requirements for a child conceived as a result of
(U.S. v. Abad Santos, 36 Phil. 243; People v. Yu Huat, 99 Phil. 728)
artificial insemination to be recognized as legitimate?
Art. 166. Legitimacy of a child may be impugned only on
A. Children conceived as a result of artificial insemination of the wife the following grounds:
with the sperm of the husband or that of a donor or both are
likewise legitimate children provided that: a) both of them (1) That it was physically impossible for the husband to
authorized or ratified such insemination in a written instrument have sexual intercourse with his wife within the first 120
executed and signed by them before the birth of the child; and b) the days of the 300 days which immediately preceded the
instrument shall be recorded in the civil registry together

birth of the child because of: husband and wife is void?
(a) the physical incapacity of the husband to have A. If the ground for nullity is article 36 or Article 53 of the Family Code.
sexual intercourse rith his wife;
Q. In any event that any of the grounds enumerated in Article 166 is
(b) the fact that the husband and wife were living proven, what will be the status of the child?
separately in such a way that sexual intercourse
was not possible; or A. The child will neither be legitimate nor illegitimate in so far as the
husband is concerned. Simply, the husband and the child will not be related
(c)serious illness of the husband, which absolutely to each other in any manner considering that the husband did not
prevented sexual intercourse; participate in any way as to the child’s procreation. In so far as the mother
is concerned, the child will be illegitimate.
(2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the Q. Where does Articles 166 and 167 necessarily apply?
husband, except in the instance provided in the
second paragraph of Article 164; or A. Only to a situation where the child has been delivered by a woman
who is the child’s natural mother. They do nt apply where the alleged
(3) That in case of children conceived through artificial mother did not, in fact, deliver the child herself, or, in short, where the child
insemination, the written authorization or ratification of did not come from her own womb. This is likewise a condition sine qua
either parent was obtained through mistake, fraud, non for Articles 166 and 167 to apply.
violence, intimidation, or undue influence. (255a)
Q. Is it correct to rely on Articles 164, 166, 167, 170 and 171 in opposing a
Art. 167. The child shall be considered legitimate persons’s claim to be the only daughter of the deceased married couple
although the mother may have declared against its whose estate was under consideration?
legitimacy or may have been sentenced as an adulteress.
A. No. The articles do not contemplate a situation, like in the instant
(256a)
case, where a child is alleged not to be the child of nature or biological
Q. When is Article 166 applicable? child of a certain couple. Rather, these articles govern a situaton
where a husband (or his heirs) denies as his own a child of his wife.
A. Article 166 necessarily presupposes a valid marriage between the (Benitez-Badua v. Court of Appeals, G.R. No. 105625, January 24,
husband and the wife. 1994, 47 SCAD 416)
Q. Who can invoke the grounds under article 166?

Art. 168. If the marriage is terminated and the mother
A. Only the husband and, in proper cases provided in Article 171, the contracted another marriage within three hundred days
heirs can invoke the grounds under Article 166. No other person can after such termination of the former marriage, these
make the same. rules shall govern in the absence of proof to the contrary:
Q. What is the exception to the rule that the legitimacy of the child can
(1) A child born before one hundred eighty days after the
likewise be questioned on the ground that the marriage between the
solemnization of the subsequent marriage is considered

to have been conceived during the former marriage, the marriage shall be proved by whoever alleges such
provided it be born within three hundred days after the legitimacy or illegitimacy. (261a)
termination of the former marriage;
Q. Is there a presumption for a child born after 300 days after the
(2) A child born after one hundred eighty days following termination of a marriage?
the celebration of the subsequent marriage is considered
to have been conceived during such marriage, even A. No. In the absence of any subsequent marriage after the termination
though it be born within the three hundred days after of the first marriage, the father of a child born after 300 days from
the termination of the former marriage. (259a) such termination can be anybody. This includes the husband of the
previous marriage as it is not improbably that the gestation period
Q. Why is there a presumption of access prior to the termination of may extend extraordinarily beyond 300 days or that the previously
marriage? married couple had sexual intercourse after the finality of their decree
of annulment or nullity.
A. This is so because it is not unlikely that the spouses could have
engaged in sexual intercourse just prior to the death of one of them or Q. What happens if a child is born after 300 days after the termination of
just before the issuance of a decree of annulment or a declaration of a marriage?
nullity. Also, the law fixes the period of 300 days as the longest
gestation period for a child inside the womb of the mother. A. Other convincing proofs of filiation must be shown. No presumption
can attach, thereby necessitating the introduction of evidence by
Q. What is the basis behind the 180-300 day period provided by law? whoever alleges legitimacy or illegitimacy.
A. The 180-day period provided by law is considered as the shortest Art. 170. The action to impugn the legitimacy of the child
gestation period of a woman. On the other hand, the 300-day period is shall be brought within one year from the knowledge of
considered the longest gestation period. the birth or its recording in the civil register, if the
husband or, in a proper case, any of his heirs, should
Q. What happens when the mother marries again and a child is born reside in the city or municipality where the birth took
within 180 days from the solemnization of the second marriage and place or was recorded.
within the 300-day period after the termination of the first marriage
and there is no concrete proof as to the father of the child? If the husband or, in his default, all of his heirs do not
reside at the place of birth as defined in the first
A. The child is considered to have been conceived of the first marriage. paragraph or where it was recorded, the period shall be
The presumption is in accordance with decency, reason and the two years if they should reside in the Philippines; and
supposed virtue of the mother. three years if abroad. If the birth of the child has been
concealed from or was unknown to the husband or his
Art. 169. The legitimacy or illegitimacy of a child born heirs, the period shall be counted from the discovery or
after three hundred days following the termination of knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier. (263a)

husband. Can a case where the paramour of a wife who filed an action
Art. 171. The heirs of the husband may impugn the for the custody of the child prosper?
filiation of the child within the period prescribed in the
preceding article only in the following cases: A. The action should be dismissed because only the husband, as a general
rule, can claim that the child is illegitimate in a direct action for that
(1) If the husband should die before the expiration of the purpose and only on the grounds provided for by law. To allow the
period fixed for bringing his action; custody case to prosper would mean allowing the paramour to impugn
the legitimacy of the child vis-à-vis the husband which is not
(2) If he should die after the filing of the complaint sanctioned by the law.
without having desisted therefrom; or
Q. Who are the heirs contemplated by law that can file an action as a
(3) If the child was born after the death of the husband. substitute for the husband?
(262a)
A. All kinds of heirs, whether testamentary or legal, compulsory or
Q. Who may file an action to impugn the legitimacy of the child? voluntary, are contemplated by law.
A. Principally, only the husband can file a direct action to impugn the Q. Can the mother have standing to impugn the legitimacy of her child?
legitimacy of the child. Article 171 provides for the exception. His
heirs can substitute him only if he dies before the period fixed for A. The law does not give the mother standing to file an action to impugn
bringing the action or after the filing of the same, without having the filiation or legitimacy of her children because maternity is never
desisted therefrom, or if the child was born after his death. uncertain (Eloi v. Made, 1 Rob. 581). Moreover, for reasons of public
decency and morality, a married woman cannot say that she had no
Q. Can legitimacy be collaterally attacked? intercourse with her husband and that her offspring is spurious
(People ex rel. Gonzales v. Monroe, 43 Ill. App 2d 1, 192 N.E. 2d 691)
A. Legitimacy cannot be collaterally attacked or impugned (Angeles v.
Maglaya, G.R. No. 153798, September 2, 2005, 469 SCRA 363). It can Q. What is reason behind the limitation of parties with legal standing to
be impugned only in a direct suit precisely filed for the purpose of impugn the legitimacy of the child?
assailing the legitimacy of the child. However, if one of the issues
presented in an action for annulment of an extrajudicial partition A. The reason for preventing disavowal of paternity except within
concerned the right of a particular person to inherit and the assertion extremely narrow limits is based upon a desire to protect innocent
that the alleged heir was not in fact the child of the deceased, a children against attacks upon paternity (Russell v. Russell Eng [1924]
determination of filiation can be made (Spouses Fidel v. Court of AC 687 [HL]; Taylor v. Taylor, 295 So. 2d 494). To allow other persons,
Appeals, G.R. No. 168263, July 21, 2008) especially those not belonging to the family wherein the child was
born, to bring an action to impugn the legitimacy of such child, would
Q. Consider this situation. A wife gives birth to a child of her paramour, be to invite similar actions, with or without basis, by those whose only
and the child is born inside the valid marriage of the wife and the purpose is to break up a family to satisfy a jealous or revengeful feeling
(A v. X, Y, and Z, Supreme Court of Wyoming, 641 P2d 1222 74 L. Ed.

2d 518). Moreover, it is also to prevent a child so born from

repudiating his own legitimacy (Eloi v. Made, 1 Rob [La] 581 cited in Q. When does the prescriptive period start to run?
10 Am. Jur. 2d 858)
A. It starts to run from the time of the knowledge of birth or its recording
Q. What are the prescriptive period for the husband or, in proper cases, in the civil register.
the heirs to impugn the legitimacy of a child?
A. The following are the different prescriptive periods: Chapter 2

1) One (1) year from knowledge of the birth or its recording in the civil Proof of Filiation
register, if the impugner resides in the city or municipality where the
birth took place or was recorded; Art. 172. The filiation of legitimate children is established
2) Two (2) years from knowledge of the birth or its recording in the by any of the following:
civil register, if the impugner resides in the Philippines other than in
the city or municipality where the birth took place or was recorded; (1) The record of birth appearing in the civil
and register or a final judgment; or
3) Three (3) years, if the impugner resides abroad;
If the birth of the child has been concealed from or was unknown (2) An admission of legitimate filiation in a public
to the husband or his heirs, the period shall be counted from the document or a private handwritten instrument and
discovery or knowledge of the birth of the child or of the fact of signed by the parent concerned.
registration of the birth, whichever is earlier.
In the absence of the foregoing evidence, the legitimate
Q. Why are the prescriptive periods for impugning the legitimacy shorter filiation shall be proved by:
compared to the other prescriptive period relative to any other action (1) The open and continuous possession of the
such as annulment of marriage and legal separation? status of a legitimate child; or
A. This is precisely to avoid leaving in dispute for a long period of time (2) Any other means allowed by the Rules of Court
the status of the child. Bastardization of a child is a very serious and special laws. (265a, 266a, 267a)
matter which public policy does not encourage.
Q. How is the filiation of legitimate children established?
Q. Can the legitimacy of the child still be question after the lapse of the
applicable prescriptive period? A. The filiation of legitimate children may be established by the following:
1) The record of birth appearing in the civil register or a final
A. No, after the lapse of the prescriptive period, the status of the child judgment; 2) An admission of legitimate filiation in a public document
becomes fixed and cannot be questioned anymore (Angeles v. Maglaya, or a private handwritten instrument and signed by the parent
G.R. No. 153798, September 2, 2005, 469 SCRA 363; Tison v. Court of concerned.
Appeals, 276 SCRA 582; De Jesus v. Estate of Decedent Juan Gamboa In the absence of the foregoing evidence, the legitimate filiation shall
Dizon). be proved by: 1) The open and continuous possession of the status of a

Proof of Filiation Proof of Filiation
legitimate child; or 2) Any other means allowed by the Rules of Court compromise agreement upon the civil status of persons shall be valid.
and special laws. In Rivero v. Court of Appeals, G.R. No. 141273, May 17, 2005, 458
SCRA 714, the Supreme Court said that “paternity and filiation, or the
Q. What is the weight of the record of birth as evidence in establishing lack of the same, is a relationship that must be judicially established,
filiation? and it is for the court to determine its existence or absence. It cannot
be left to the will or agreement of the parties.”
A. It is a prima facie evidence of the facts therein considered. (Article 410
of the Civil Code; Malicdem v. Republic, 12 SCRA 313). As prima facie Q. Does an admission of legitimate filiation in a public instrument or
evidence, the statements in the record of birth may be rebutted. private handwritten instrument require court action?
Hence, if there are no evidences to disprove the facts contained
therein, the presumption will hold and the children, as stated in the A. An admission of legitimate filiation in a public instrument or a private
birth certificate, shall be considered legitimate (Mariategui v. Court of handwritten instrument and signed by the parent concerned is a
Appeals, 205 SCRA 337). complete act of recognition without need of court action. (De Jesus v.
De Jesus, G.R. No. 142877, October 2, 2001).
Q. What is the implication if the alleged father did not sign in the birth
certificate? Q. What does “continuous possession” mean in the context of legitimate
filiation?
A. It has been held that if the alleged father did not sign in the birth
certificate the placing of his name by the mother, or doctor or registrar, A. In Mendoza v. Court of Appeals, 201 SCRA 675, the Supreme Court
is incompetent evidence of paternity of said child (Reyes v. Court of explained what continuous possession means, to wit:
Appeals, 135 SCRA 439; Berciles v. GSIS, 128 SCRA 53; Roces v. Local “continuous” does not mean that the concession of status
Civil Registrar, 102 Phil. 1050) shall continue forever but only that it shall not be of an
intermittent character while it continues. The possession of such
Q. Which between the two presumptions will prevail, a presumption of status means that the father has treated the child as his own,
fact created by the record of birth or a presumption or declaration of directly and not through others, spontaneously and without
law provided for in Article 164? concealment though without publicity x x x. There must be a
showing of the permanent intention of the supposed father to
A. The presumption or declaration of law provided for in Article 164 will consider the child as his own, by continuous and clear
prevail. (Concepcion v. Court of Appeals, 468 SCRA 438) manifestation of paternal affection and care (Mendoza v. Court of
Appeals, 201 SCRA 675)
Q. Can a final judgment on the status of the children be based on a
compromise agreement? Q. What are the overt acts and conduct that satisfy the requirement
of open and continuous possession of legitimate status?
A. A final judgment based on a compromise agreement where the parties
stipulated and agreed on the status of a person is void. Contractually A. In Jison v. Court of Appeals, G.R. No. 124853, February 24,
agreeing and establishing the civil status of a person is against the law 1998, the following overt acts and conduct satisfy the
and public policy. Article 2035(1) of the Civil Code provides that no requirement:

[L]ike sending appellant to school, paying for her tuition

fees, school uniforms, books, board and lodging at the Colegio del A. Yes, deoxyribonucleic acid (DNA) testing is also a valid means of
Sagrado de Jesus, defraying appellant’s hospitalization determining paternity. (Agustin v. Court of Appeals, G.R. No.
expenses, providing her with [a] monthly allowance, paying for 162571, June 15, 2005)
her funeral expenses of appellant’s mother, acknowledging
appellant’s paternal greetings and calling appellant his “hija” or Q. What is the minimum value of the Probability of Paternity
child, instructing his office personnel to give appellant’s monthly required in order for there to be a refutable presumption of
allowance, recommending appellant for employment at the paternity?
Miller, Cruz & Co., allowing appellant to use his house in
Bacolod and paying for her long distance telephone calls. Having A. If the value of the Probability of Paternity is 99.9% or higher,
appellant spend her vacation in his apartment in Manila and there is a refutable presumption of paternity. If it is lower than
also at his Forbes residence, allowing appellant to use his 99.9% it should be considered as corroborative evidence. (Herrera
surname in her scholastic and other records. v. Alba, G.R. No. 148220, June 15, 2005
Q. Can a baptismal record or certificate constitute proof of filiation? Art. 173. The action to claim legitimacy may be brought
by the child during his or her lifetime and shall be
A. Yes. For a baptismal certificate to be proof of filiation under the transmitted to the heirs should the child die during
Rules of Court, it must be shown that the father therein minority or in a state of insanity. In these cases, the heirs
participated in the preparation of the same. A birth certificate shall have a period of five years within which to institute
not signed by the father is not competent proof of filiation. the action.
Q. Is the certificate of live birth purportedly identifying the putative The action already commenced by the child shall survive
father competent evidence of paternity? notwithstanding the death of either or both of the
parties.
A. It is not a competent evidence when there is no showing that the
putative father had a hand in the preparation of said certificates, Q. As between the parent and the child, can other persons file an action
and the Local Civil Registrar is devoid of authority to record the to claim legitimacy in behalf of the child?
paternity of an illegitimate child upon the information of a third
person. Simply put, if the alleged father did not intervene in the A. Generally, no. The right of action for legitimacy devolving upon the
birth certificate, e.g. supplying the information himself, the child is of a personal character and generally pertains exclusively to
inscription of his name by the mother or doctor or registrar is him. Only the child may exercise it at any time during his lifetime. As
null and void; the mere certificate by the registrar without the exception, and in three cases only, it may be transmitted to the heirs of
signature of the father is not proof of voluntary acknowledgment the child, to wit: if he or she died during his or her minority, or while
on the latter’s part. (Jison v. Court of Appeals, G.R. No. 124853, insane, or after action had already been instituted. Inasmuch as the
February 24, 1998) right of action accruing to the child to claim his or her legitimacy lasts
during his or her whole lifetime, he or she may exercise it either
Q. Is there a scientific method in proving paternity?

against the presumed parents, or his or her heirs (Conde v. Abaya, 13 case for an illegitimate child (Art. 195 2, 3). As to successional rights,
Phil. 249) the legitime of an illegitimate child is only one-half of a legitimate
child (Art. 364, Civil Code) and he or she has no right to inherit ab
instestado from the legitimate children and relatives of his or her
Art. 174. Legitimate children shall have the right: parents (Art. 992, Civil Code) while a legitimate child has.
(1) To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on
Surnames; Chapter 3
Illegitimate Children
(2) To receive support from their parents, their
ascendants, and in proper cases, their brothers and Art. 175. Illegitimate children may establish their
sisters, in conformity with the provisions of this Code on illegitimate filiation in the same way and on the same
Support; and evidence as legitimate children. The action must be
brought within the same period specified in Article 173,
(3) To be entitled to the legitimate and other successional
except when the action is based on the second paragraph
rights granted to them by the Civil Code. (264a)
of Article 172, in which case the action may be brought
Q. What are the rights of a legitimate child? during the lifetime of the alleged parent. (289a)
A. Legitimate children shall have the right: Q. May an illegitimate child establish his or her illegitimate filiation in
the same way and on the same evidence as legitimate children?
(1) To bear the surnames of the father and the mother, in conformity
with the provisions of the Civil Code on Surnames; A. Yes (Montefalcon v. Vasquez, GR No. 165016). The action must be
brought within the same period specified in Article 173, except
(2) To receive support from their parents, their ascendants, and in
when the action is based on the second paragraph of Article 172, in
proper cases, their brothers and sisters, in conformity with the
which case the action may be brought during the lifetime of the alleged
provisions of this Code on Support; and
parent.
(3) To be entitled to the legitimate and other successional rights
Q. In proving illegitimate filiation, if there is no record of birth or an
granted to them by the Civil Code.
admission of illegitimate filiation in a public document or a private
Q. Is there a greatest and preferential sum of rights to legitimate children handwritten instrument and signed by the parent concerned, what
compared with an illegitimate child? other evidence can be presented?
A. Yes. (Clemena v. Clemena) A legitimate child has lifetime to claim A. Illegitimacy can be proven within the lifetime of the parent through
legitimacy (Art. 172), such right may be transmitted to heirs (Art. 173) open and continuous possession of the status of an illegitimate child
but an illegitimate child can only bring an action during the lifetime of or any other means allowed by the Rules of Court and special laws.
the parent and such right is not transmissible to heirs. He or she is
Q. Is a judicial testimony sufficient to prove paternity?
also entitled to support from ascendants and descendants (Arts. 195,
199) and not merely from grandparents or grandchildren, which is the

Illegitimate Children Illegitimate Children
A. Yes, provided it is not rebutted and in fact not disputed by the alleged v. Posadas, GR No. 159785)
parent (Navarro v. Bacalla, 15 SCRA 114).
Q. What are the prescriptive periods to prove illegitimate filiation?
Q. In proving filiation, what are examples of other means allowed by the
Rules of Court? A. Same as a legitimate child if filiation is established by any of the
following: (1) the record of birth appearing in the civil register or a
A. Such evidence may consist of his baptismal certificate, a judicial final judgment; or (2) an admission of legitimate filiation in a public
admission, a family Bible in which his name has been entered, document or a private handwritten instrument and signed by the
common reputation respecting his pedigree, admission by silence, the parent concerned (Art. 172, first paragraph). In the absence of these,
testimonies of witnesses, and other kinds of proof admissible under the legitimate filiation should be proved during the lifetime of the
Rule 130 of the Rules of Court (Mendoza v. Court of Appeals, 201 parent by (1) the open and continuous possession of the status of a
SCRA 675). illegitimate child; or (2) any other means allowed by the Rules of Court
and special laws (Art. 172, second paragraph). The parties should be
Q. Should the evidence be clear and convincing to prove filiation? allowed to adduce evidence to know whether he or she falls under the
first or second paragraph (Tayag v. Tayag- Gallor, GR No. 174680).
A. Yes. If the birth of the illegitimate child is way beyond nine months
from the approximate time of conception resulting from the alleged Art. 176. Illegitimate children shall use the surname and
sexual intercourse between the parties, this can negate filiation shall be under the parental authority of their mother,
(Constantino v. Mendez, 209 SCRA 28). and shall be entitled to support in conformity with this
Code. However, illegitimate children may use surname of
Q. Are private letters and notes enough to prove filiation?
their father if their filiation has been expressly
A. No. Private letters and notes are not enough to prove filiation Section recognized by the father through the record of birth
40, Rule 130, Rules of Court: appearing in the civil register, or when an admission in a
public document or private handwritten instrument is
“The reputation or tradition existing in a family previous to the made by the father. Provided, the father has the right to
controversy, in respect to the pedigree of any one of its members, may institute an action before the regular courts to prove
be received in evidence if the witness testifying thereon be also a non-filiation during his lifetime. The legitime of each
member of the family, either by consanguinity or affinity. Entries illegitimate child shall consist of one-half of the legitime
in family bibles or other family books or charts, engraving on of a legitimate child.(As amended by Republic Act 9255,
rings, family portraits and the like, may be received as evidence of approved February 24,2004.)
pedigree.” They do not fall unde rhte phrase “and the like” (Jison v.
Court of Appeals). Q. Can an illegitimate child use the surname of his or her father?
Q. How about love letters? A. Yes. An illegitimate child may use the surname of his or her father if
the filiation has been expressly recognized by the father through the
A. The love letters are in the handwriting of the petitioner, using alias,
record of birth appearing in the civil register, or when an admission
declaring that should the respondent got pregnant, he will have no
in a public document or private handwritten instrument is made by
regret and they should enjoy the responsibility are considered as a
the father.
private handwritten instrument that can establish filiation (Verseles

Illegitimate Children Legitimated Children
Q. Does the father have the right to institute an action before the regular the former, were not disqualified by any impediment to
courts to prove non-filiation during his lifetime? marry each other may be legitimated. (269a)
A. Yes, even though he allowed the use of his surname by the illegitimate Art. 178. Legitimation shall take place by a subsequent
child. valid marriage between parents. The annulment of a
voidable marriage shall not affect the legitimation. (270a)
Q. What is the legitime of an illegitimate child?
A. The legitime of each illegitimate child shall consist of one-half of the Art. 179. Legitimated children shall enjoy the same rights
legitime of a legitimate child. as legitimate children. (272a)
Q. Who exercises parental authority over the illegitimate child? Art. 180. The effects of legitimation shall retroact to the
time of the child's birth. (273a)
A. The mother has parental authority over the illegitimate child. This is
the case notwithstanding the recognition of the father (Briones v.
Q. Who can be legitimated?
Miguel, GR No. 156343) because the alleged putative father may not
be the real natural father, hence, the parental authority is solely given A. Only children conceived and born outside of wedlock of parents who, at
to the mother. Even though paternity is certain, the mother still has the time of the conception of the former, were not disqualified by
custody with the father not cohabiting with the mother (David v. CA, any impediment to marry each other may be legitimated.
65 SCAD 508).
Q. When does legitimation take place?
Q. Is parental authority waivable?
A. Legitimation takes place by a subsequent valid marriage between
A. No, except in cases of adoption, guardianship, and surrender to a parents.
child’s home or orphan institution.
Q. Does the annulment of marriage affect legitimation?
Q. Can the illegitimate child be under the parental authority of the father
and mother? A. The annulment of a voidable marriage does not affect the legitimation.
A. Yes, if the father lives together with the illegitimate child whom he Q. What are the rights of a legitimated child?
admits as his, and with the mother, parental authority is
A. A legitimated child enjoys the same rights as a legitimate child.
exercised by both parents?
Q. When do the effects of legitimation retroact?
A. The effects of legitimation retroact to the time of the child's birth.

Chapter 4
Legitimated Children Q. How should legitimation be construed?
Art. 177. Only children conceived and born outside of A. Legitimation is construed liberally (Cardenas v. Cardenas, 12 III. App
wedlock of parents who, at the time of the conception of 2d 497) because it is remedial in character intended for the benefit
and protection of the innocent offspring.

Legitimated Children Legitimated Children
Q. What are the requirements of legitimation? Art. 182. Legitimation may be impugned only by those
who are prejudiced in their rights, within five years from
A. The requirements for legitimation are: 1) the parents do not suffer any the time their cause of action accrues. (275a)
legal impediment or are disqualified to marry because either one or
both of them are 18 years of age at the time of the conception of the Q. Who may impugn legitimation?
child by the mother; 2) the child has been conceived and born outside
of a valid marriage; and 3) the parents subsequently enter into a valid A. Legitimation can only by those who are prejudiced in their rights
marriage.
Q. What is the prescriptive period to impugn legitimation?
Q. Could legitimation be applied prior to the effectivity of the Family
Code? A. The prescriptive period is within five years from the time the cause of
action accrues.
A. Yes, it retroacts when the law [the Family Code] becomes effective
(Henry v. Jean, 238 La 314, 225 So2d 363). This is for the benefit of Q. Can creditors impugn legitimation?
the child and for his or her paramount interest.
A. Yes, if the legitimation affected their rights and are prejudiced.
Q. Should legitimation prior to the effectivity of the Family Code affect
Q. What does “rights” in Art. 182 include?
property rights?
A. The “rights” refer to successional rights, the persons who can be
A. No, it will not affect vested property rights (Mudrow v. Cladwell, 173
prejudiced are the legal heirs of the parents.
SC 243).
Republic Act 8552
Q. If one or both of the parents is/are less that 18 years old, is
legitimation possible? AN ACT ESTABLISHING THE RULES AND POLICIES ON THE
DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR
A. Yes, legitimation is allowed if the legal impediment consists of one or OTHER PURPOSES
both of the parties are less that 18 years old.
SECTIONS 1-3
Art. 181. The legitimation of children who died before the
celebration of the marriage shall benefit their Q. Who is a child?
descendants. (274)
A. 1.) a person below 18 years of age
Q. Can legitimation of children who died before the celebration of the
2.) a person over 18 of age but is unable to fully take care of
marriage benefit their descendants?
him/herself or protect himself/herself from abuse, neglect, cruelty,
A. The legitimation of children who died before the celebration of the exploitation or discrimination because of physical or mental disability
marriage benefits their descendants to give the descendants or condition. (RA 9523)
what they should have enjoyed during the lifetime of their father or
Q. Who is a Child Legally Available for Adoption?
mother.
A. Certification has been issued by the DSWD that he/she is available for

RA 8552 ADOPTION 261 RA 8552 ADOPTION 262
Republic Act No. 8552 Republic Act No. 8552
adoption either by being voluntarily or involuntarily committed. compliance with mandatory requirements is enough to validate an
adoption degree(Republic v CA and Zenaida Bobiles, 205 scra 356).
Q. Define voluntarily committed child, involuntarily committed child,
abandoned child, and neglected child? Q. What is the purpose behind adoption?
A. Voluntarily committed child – parent(s) knowingly and willingly A. Promotion of the welfare of the child and the enhancement of his or
relinquishes parental authority to the Department. her opportunities for a useful and happy life (Daoang v Municipal
Judge of san Nicholas, Ilocos Norte, 159 SCRA 366, citing In re
Involuntarily committed child – parents, known or unknown, has Adoption of Resaba, 95 Phil 244; Santos v Aranzanso, 123 Phil 160).
been permanently and judicially deprived of parental authority due to
SECTION 4
1.) abandonment;
Q. To whom are counselling sessions provided?
2.) substantial, continuous, or repeated neglect;
A. principal parties namely, the 1.) natural parents, 2.) adopter and 3.)
3.) abuse; or incompetence to discharge parental responsibilities. adoptee.
Abandoned child – 1.) no proper parental care or guardianship or Q. What is this period given to Biological Parents?
2.) whose parent(s) has deserted him/her for a period of atleast 6 A. A period of 6 months is given to the biological parents to reconsider
months and has been judicially declared as such. any decision to relinquish his/her child for adoption before the decision
become irrevocable. However, such irrevocability must give way to the
Neglected child – a child whose basic needs have been deliberately
“child’s best interest” rule.
unattended or inadequately attended within a period of three (3)
continuous months. Neglect may occur in two (2) ways: Q. Is an adoption plan granted prior the birth his/her child binding?
a. Physical neglect – malnourished, ill-clad, and without proper A. No binding commitment of adoption shall be permitted before the birth
shelter, provisions and/or supervision. of the child.
b. Emotional neglect – maltreated, raped, seduced, exploited, SECTION 5-6
overworked, made to work under ill conditions, made to beg,
or placed in moral danger, gambling, prostitution, and other Q. Adoption process involves how many phases?
vices. (RA 9523)
A. Two phases 1.) Administrative phase – govern by RA 9523
Q. What is the status of an adoption degree which did not comply with all
requirements of law? 2.) Judicial phase – done by proper family courts.
A. NULL (In re O’Keefe, 164 Misc 473 [1937]), but the burden of proof in SECTION 7
establishing adoption is upon the person claiming such relationship, as
Q. Who may adopt?
such he/she must prove compliance with the statutes relating to
adoption (Lazatin v Campos, 92 scra 263). However, substantial A. Any Filipino citizen, any alien or guardians

Q. What are the requirements for Filipino citizens to adopt? 2.) One who seeks to adopt a legitimate son/daughter of his/her
Filipino spouse; or
A. 1.) with full civil capacity and legal rights
3.) One who is married to a Filipino citizen and seeks to adopt
2.) good moral character and has not been convicted of any crime jointly with his/her spouse a relative within the 4th civil
involving moral turpitude degree of consanguinity and affinity of the Filipino spouse.
3.) emotionally and psychologiucally capable of caring for children Q. What are the requirements for a Guardian to adopt?
4.) atleast 16 years older than the adoptee A. 1.) only applies with respect to his/her ward
5.) able to support and care for his/her children in keeping with the 2.) after the termination of the guardianship and
means of the family.
3.) clearance of financial accountabilities.
NOTE: requirement of 17 years difference may be waived when
adopter is the biological parent of the adoptee or the spouse of the Q. May Husband and wife adopt separately?
adoptee’s parent.
A. General Rule is NO (In Re: Petition for Adoption of Michelle Lim, G.R.
Q. What are the requirements for Alien to adopt? Nos. 168992-93, May 21, 2009). Except when:
A. 1.) Same qualification stated for Filipino adopter 1.) If one spouse seeks to adopt the legitimate son/daughter of
the other; or
2.) His/her country has diplomatic relations with the Republic of the
Philippines 2.) If one spouse seeks to adopt his/her own illegitimate
son/daughter with the consent of the other spouse; or
3.) He/she has been living in the Philippines for at least three (3)
continuous years prior to the filing of the application for adoption 3.) If the spouses are legally separated from each other.
and maintains such residence until the adoption decree is entered
- final and executory. NOTE: Joint Parental Authority shall be exercised by the spouses
except in situation #3 (legally separated). In case of disagreement
4.) He/she has been certified by his/her diplomatic or consular office or however, the father’s decision shall prevail unless there is a
any appropriate government agency that he/she has the legal judicial order to the contrary (Art. 211).
capacity to adopt in his/her country, and that his/her government
allows the adoptee to enter his/her country as his/her adopted SECTION 8
son/daughter.
Q. Who may be adopted?
NOTE: Residency and certification requirements may be waived, in
A. 1.) A child legally available for adoption; or
the discretion of the court, in cases of:
2.) legitimate son/daughter of one spouse by the other spouse; or
1.) Former Filipino seeking to adopt a relative within the 4th civil
degree of consanguinity or affinity; or 3.) illegitimate son/daughter by a qualified adopter to improve status

to legitimate; or Q. What is the effect of adoption?
4.)a person of legal age, if prior to the adoption, said person has been A. ALL legal ties with biological parents are effectively cut except when
consistently considered and treated by the adopter(s) as his/her the biological parent is the spouse of the adopter. It makes the
own child since minority; or adopted child the natural child of the adoptive parents.
5.) a child who’s previous adoption has been rescinded (minor); or NOTE: Such effect is not affected even if adoptive parents died, or
adopted child reached majority age or his/her subsequent marriage.
6.) a child who’s biological or adoptive parent(s) has died (minor):
Provided, no proceedings shall be initiated within six (6) months NOTE However: Such relationship is limited only to the adoptive
from the time of death of said parent(s). parents and adopted child and does not extend to other relatives.
SECTION 9 SECTION 18
Q. What consent is needed and from whom? Q. What are the succession rights of the adopted child?
A. Written consent is required from A. It is as if he/she is a natural and legitimate child of the adoptive
parents, with no legal ties as to its biological parents except if made
1.) The adoptee, if ten (10) years of age or over; and through testamentary succession. The only exception is that no
right of representation is given to the adopted because this does not
2.) Biological parents, legal guardian or state; or
involve “reciprocal” rights between parent and child. Thus, unless
3.) Legitimate and adopted children, ten (10) years of age or over, of provided by the adoption statute, the adopted child does not inherit
the adopter(s) and adoptee, if any; or from the lineal or collateral kindred of the adoptive parents (in re
Harrington’s Estate, 120 ALR 8300; Shemaker v Newman, 89 ALR
4.) Illegitimate children, ten (10) years of age or over, of the adopter if 1034).
living with said adopter and the latter’s spouse, if any; or
SECTION 19
5.) The spouse, if any, of the person adopting or to be adopted.
Q. Who may rescind an adoption?
NOTE: Written consent is mandatory.
A. Only the adoptee except if minor or if over 18 but is incapacitated, then
In the case of Santos v Aranzanso it states that consent by with assistance of DSWD as guardian/counsel.
parents to the adoption is not absolute, in cases of abandoned
child, consent of guardian or/and state suffices. Q. What are the grounds of rescission?
In the case of Landingin v Republic, if child is illegitimate, consent of A. 1.) repeated physical and verbal maltreatment despite counselling;
mother suffices. Except when the father acknowledged and
2.) attempt on the life of the adoptee;
admitted that the child is his and there is no doubt as to the same,
his consent must likewise be obtained. 3.) sexual assault or violence;
SECTION 16-17

RA 8552 ADOPTION 267 AM 02-6-02 SC ADOPTION 268
Republic Act No. 8552 Inter-Country Adoption
4.) abandonment and failure to comply with parental obligations.

Q. Can the Inter-Country Adoption Board (ICAB) cancel the license of
Q. Won’t the adopter have a right to rescind adoption? child-caring/placement agencies once issued?
A. No. He has not right to rescind but may disinherit for cause provided
A. Yes, the ICAB can cancel the license to operate and blacklist the child-
in Article 919 of the Civil Code.
caring and placement agency involved from the accreditation list of the
ICAB upon finding of violation of any provision under the Act. (Sec. 4
(h), RA 8043)
Q. What are the requirements before the ICAB will accredit foreign
private adoption agencies?
Procedural Rule A.M. No. 02-6-02 SC
A. (1) The foreign private adoption agency must have demonstrated
Inter-Country Adoption professionalism, competence and have consistently pursued non-profit
objectives to engage in the placement of Filipino children in their own
Q. What is inter-country adoption? country; (2) Such foreign adoption agency is duly authorized and
accredited by their own government to conduct inter-country adoption;
A. It refers to the socio-legal process of adopting a Filipino child by a (3) The total number of authorized and accredited foreign private
foreigner or a Filipino citizen permanently residing abroad where the adoption agencies shall not exceed 100 a year. (Sec. 6 (i), RA 8043)
petition is filed, the supervised custody is undertaken, and the decree
of adoption is issued outside the Philippines. (R.A. 8043, Sec. 3 [a]) Q. Can an alien who is 25 years old apply for inter-country adoption,
wherein the child available for adoption is 8 years old?
Q. Is the Inter-Country Adoption Act applicable only to foreign nationals
who want to adopt Filipino children? A. Generally no, because the law says that the alien must be at least 27
years old and at least 16 years older than the child to be adopted. The
A. No, the Act can also apply to Filipino citizens permanently residing exception is when the adopter is the natural parent of the child or the
abroad. spouse of such parent. (Sec. 9 (a), RA 8043)
Q. Where is the decree of adoption issued under this Act? Q. Must a married couple jointly file for adoption?
A. In the foreign country where the applicant resides. A. Yes. This is an explicit requirement under the law. (Sec. 9 (b), RA
8043)
Q. What does the term “legally-free child” mean?
Q. Where can an applicant file an application for inter-country adoption?
A. A child who has been voluntarily or involuntarily committed to the
Department of Social Welfare and Development, in accordance with A. In the Philippine Regional Trial Court having jurisdiction over the
the Child and Youth Welfare Code. (Sec. 3 (f), RA 8043) child or with the ICAB through an intermediate agency, whether

AM 02-6-02 SC ADOPTION 269 AM 02-6-02 SC ADOPTION 270
Inter-Country Adoption Inter-Country Adoption
governmental or an authorized and accredited agency, in the country A. When the ICAB fails to find another placement for the child within
of the prospective adoptive parents. reasonable time after the termination of the pre-adoptive relationship
and that repatriation is the only option available provided it is still in
Q. Before a child can be legally adopted under the Inter-Country the best interest of the child. (Sec. 47, Rules and Regulations)
Adoption Act, must there be a finding that all possibilities for adoption
of the child in the Philippines have been exhausted? Q. Where and when can the petition for adoption be filed?
A. Yes, in fact, the rules says that there should be a certification first by A. This is filed with the proper court of the country where the applicant
the Department of Social Welfare and Development that all resides within 6 months after the completion of the trial custody
possibilities for the adoption of the child in the Philippine have been period.
exhausted and that inter-country adoption is in the best interest of the
child (Sec. 32, Rules and Regulation). Also, the law says that no child Q. Are the illegal acts under RA 8043 mala in se or mala prohibita?
shall be matched to a foreign adoptive family unless it is satisfactorily
shown that the child cannot be adopted locally. (Sec. 11, RA 8043). A. Mala prohibita, thus mere perpetration of the act is enough to be
adjudged guilty of committing the crime.
Q. What is “matching”?
TITLE VIII
A. It refers to the judicious pairing of the applicant and the child to SUPPORT
promote a mutually satisfying parent-child relationship.
Q. What is the purpose of the clause “in keeping with the financial
Q. What are the costs that the applicant must bear incidental to the position of the family”?
placement of the child?
A. It determines the amount of support to be given. It also eliminates the
A. (1) The cost of bringing the child from the Philippines to the residence distinction between natural support and civil support (Sta. Maria,
of the applicant abroad, including all travel expenses within the p. 756).
Philippines and abroad and (2) The cost of passport, visa, medical
examination and psychological evaluation required and other related Q. Distinguish natural support from civil support.
expenses. (Sec. 12, RA 8043)
A. Natural support has been understood as the basic necessities while
Q. During the trial custody what must be submitted by the adoptive civil support refers to anything beyond the basic necessities.
parents to the governmental agency or authorized and accredited
agency? Q. Who are obliged to support each other?
A. A progress report of the child’s adjustment. (Sec. 14, RA 8043) A. 1. Spouses

2. Legitimate ascendants and descendants.
Q. When can the child be repatriated? 3. Parents and their legitimate children and the legitimate and
illegitimate children of the latter.

Art. 194- 208 SUPPORT 271 Art. 194- 208 SUPPORT 272
4. Parents and their illegitimate children and the legitimate and A. Yes, if the status of the chid has been proven provisionally, which can
illegitimate children of the latter. be attained if there is prima facie evidence (affidavit of the claimant-
5. Legitimate brothers and sisters, whether of full or half-blood child, testimonies)? However, the finding is only provisional and is
(Article 195, Family Code) subject to the final outcome of the trial on the merits (Mangulabnan
v. IAC, 185 SCRA 760)
Q. Can a common-law wife ask support from her common-law husband?
Q. Can an illegitimate sibling ask for support?
A. No. Support between spouses presupposes a valid marriage. It is the
fact of a valid marriage that gives rise to the duty (Santos v. Sweeney, A. Yes, unless the sibling is of age, and that the need for support is due
4 Phil. 79) to a cause imputable to the claimant’s fault or negligence (Article 196,
Family Code).
Q. What is a valid defense against an action for support by a wife?
Q. Where do you get the support to be given to descendants, ascendants,
A. Adultery (Quintana v. Lerma, 24 Phil. 285). However, the adultery of brothers and sisters?
the wife must be established by competent evidence (Reyes v. Ines-
Luciano, 88 SCRA 803). A. From the separate property of the one who is obliged to give support.
However, if the obligor has no separate property, the absolute
Q. Can a spouse ask for support pendente lite from the other spouse in a community or conjugal partnership will be liable, if financially capable,
case wherein the validity of the marriage is the very lis mota of the and such will be considered as a deduction from the share of the
case without a hearing? spouse obliged upon liquidation (Article 197, Family Code).
A. No, they shall be supported by the absolute community or the conjugal Q. What is the exception to this?
partnership (Article 198, Family Code; Sta. Maria, p. 760)
A. When the one who is to be supported is the common child of the
Q. When does the obligation to give support, as between a husband and husband and the wife, the absolute community or conjugal
his wife, cease? partnership shall be principally charged (Article 94 [1] and
Article 121 [1], Family Code, Sta. Maria p. 763). However, if it is
A. When the marriage is annulled or declared void ab initio (Mendoza v. an illegitimate child of a spouse, mere insufficiency of the
Parungao, 41 Phil. 271) separate property is enough to make the absolute community, or
Q. What is a valid defense to refuse to give support to a child? the conjugal partnership liable if all the required conditions in are
complied with and there is insufficient separate property of the one
A. That the child is a fruit of an adulterous relationship (Sanchez v. who is obliged to give support.
Zulueta, 68 Phil. 110)
Q. When two or more persons are obliged to give support, what is the
Q. If the status of the child is the issue of the case, can the child get order upon whom the obligation devolves?
support pendent lite?
A. 1. Spouse;

2. Descendants in the nearest degree;

3. Ascendants in the nearest degree; A. Demandable from the time the person has a right to receive the same
4. Brothers and Sisters (Article 199, Family Code) needs it. It is payable only upon judicial or extrajudicial demand, and
it should be paid within the first five days of each corresponding
Q. When the obligation to give support falls upon two or more persons, month (Article 203, Family Code).
how is the payment divided?
Q. Does the right to support arise from the mere fact of relationship?
A. In proportion to the resources of each (Article 200, Family Code).
A. No. It arises from imperative necessity without which it cannot be
Q. What if there is an urgent need? demanded, and the law presumes that such necessity does not exist
unless support is demanded (Jocson v. Empire Insurance Co. 103 Phil.
A. A judge may order only one to pay, without prejudice to his right to 580).
claim from the others the share due from them (Article 200, Family
Code). Q. Can a claimant get support in arrears?
Q. What if there are two or more claimants and only one obligor? A. Yes (Mangonon v. CA 494 SCRA 1).
A. He must satisfy both. In the event that s/he has insufficient means, Q. What are the options of the one who is obliged to give support?
the order in Article 199 should be followed, unless the claimant
is a child under his/her parental authority, then the child is preferred A. Fulfill the obligation by paying the allowance fixed, or by receiving and
(Article 200, Family Code). maintaining the family dwelling the person who has a right to receive
it.
Q. Is a judgment for support final or provisional?
Q. Does the obligor always have a choice?
A. It is provisional in character. It can be reduced or increased according
to the necessities of the recipient and the resources or means of the A. No. Maintaining and receiving the family dwelling cannot be availed
person obliged to furnish the same (Article 201, Family Code). of in case there is a moral or legal obstacle thereof (Article 204, Family
Code)
Q. Does the 5-year period for execution apply in support cases?
Q. Can the right to receive support, as well as any money or property
A. No. The support under the judgment becomes due from the time to obtained as such be levied up on attachment or execution?
time as provided and is enforceable by simple motion at ANY
time, except as to instalments not recovered within the statute of A. No (Article 205, Family Code).
limitations (Sta. Maria, p. 771).
Q. Does a stranger/third person have a cause of action against the person
Q. When does the obligation to give support demandable? When is it who is obliged to give support if the stranger/third person was the one
payable? who gave the needed support even without the knowledge of the

person required to give the support?

A. One which is entered into by the parties usually with reciprocal
A. Yes, unless it appears he gave it without intention of being reimbursed obligations, and is not mandated by law (Sta. Maria, p. 777)
(Article 206, Family Code).
Q. What is the difference between contractual support and support given
Q. What are the requirements for a stranger to be reimbursed? by will?
A. 1. The support has been furnished a dependent of one bound to give A. While both can be subject to levy on attachment or execution, when
support but who fails to do so. there is excess in amount beyond that required for legal support,
2. The support was supplied by a stranger Contractual support can be a subject of adjustment whenever
3. The support was given without knowledge of the person charged modification is necessary (Article 208, Family Code; Sta. Maria p. 777)
with the duty to give support (Ramirez and De Marciada v. Redfern,
49 Phil. 849) TITLE IX
PARENTAL AUTHORITY
Q. What happens if the person obliged to give support unjustly refuses or
fails to give support when it is urgently needed? Chapter 1
General Provisions
A. Any third party may furnish such support with a right to be
reimbursed by the person obliged (Article 207, Family Code). Article 209. Pursuant to the natural right and duty of
parents over the person and property of their
Q. What are the requirements for Article 207 to apply? unemancipated children, parental authority and
responsibility shall include the caring for and rearing of
A. 1. There is an urgent need to be supported such children for civic consciousness and efficiency and
2. The person obliged to give support unjustly refuses or fails to give it the development of their moral, mental and physical
3. A third person furnishes the support to the needy individual character and well-being. (n)
(Sta. Maria, p. 776)
Q. What is the nature of parental authority?
Q. What is the resulting relationship between the third party and the
person obliged to give support? A. Under the present concept of parental authority, the right of the
parents to the company and custody of their children is but ancillary to
A. Quasi-contract (Sta. Maria, p. 774) the proper discharge of parental duties to provide the children with
adequate support, education, moral, intellectual and civic training, and
Q. What is legal support? development (Medina vs. Makabali, 27 SCRA 502; Luna vs. IAC, 137
SCRA 7).
A. It is the one mandated by the law (Sta. Maria, p. 777)
Q. Can a child below seven years old be separated from the mother?
Q. What is contractual support?

Art. 209-215 PARENTAL AUTHORITY 277 Art. 209-215 PARENTAL AUTHORITY 278
General Provision General Provision
A. Thus, while our law recognizes the right of a parent to the custody of
the child, courts have not lost sight of the basic principle that “in all Article 211. The father and the mother shall jointly
questions of the care, custody, education and property of the children, exercise parental authority over the persons of their
the latter’s welfare shall be paramount and that for compelling common children. In case of disagreement, the father’s
reasons, even a child under seven may be ordered separated from the decision shall prevail, unless there is a judicial order to
mother’’ (Medina vs. Makabali, 27 SCRA 502; Luna vs. IAC, 137 the contrary. Children shall always observe respect and
SCRA 7). reverence toward their parents and are obliged to obey
them as long as the children are under parental
Q. What is the coverage of parental authority? authority. (17a, P.D. No. 603)
A. Parental authority is the sum total of the rights of parents over the Q. How is parental authority exercised?
person and property of their children (2 Manresa 8, cited in Paras,
Civil Code of the Philippines, Annotated, Fourth Ed., p. 591). A. The father and the mother shall jointly exercise parental authority
over the persons of their common children. In case of disagreement,
Article 210. Parental authority and responsibility may the father’s decision shall prevail, unless there is a judicial order to the
not be renounced or transferred except in the cases contrary.
authorized by law. (313a)
Q. Is joint parental authority only applicable to legitimate children?
Q. May parental authority be renounced or transferred?
A. No, Article 211 of the Family Code uses the phrase “common children”
A. Yes, parental authority and responsibility may be renounced or which does not distinguish whether the said “common children” are
transferred in cases provided by law. The right attached to parental legitimate or illegitimate.
authority, being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and surrender to a Q. What is needed for joint parental authority to apply to illegitimate
children’s home or orphan institution. Only in cases of parent’s death, children?
absence, or unsuitability may substitute parental authority be
exercised by the surviving parents (Santos vs. Court of Appeals, 58 A. Two requisites must concur: 1) the father is certain and 2) the
SCAD 17, 242 SCRA 407). illegitimate children are living with the said father and mother,
who are cohabiting without benefit of marriage or under a void
It is a rule that parental authority is inalienable and every abdication marriage not falling under Article 36 and 53.
of this authority by the parents is void (1 Planiol and Ripert, 324;
Bacayo vs. Calum, 35 [CA] 53 O.G. 8607). It cannot be waived except Q. Is parental authority waivable?
under circumstances allowed by law like adoption, guardianship or
surrender to a children’s home or an orphan asylum (See Act No. A. Once parental authority is vested, it cannot be waived except in cases
3094). If a mother, as in Celia vs. Cafuin, 86 Phil. 554, would of adoption, guardianship and surrender to a children’s home or an
surrender the custody of her child to another — that is merely orphan institution (Sagala-Eslao vs. Court of Appeals, 78 SCAD
temporary — it does not deprive her of the right to get back or regain 50, 266 SCRA 317) However, parental authority can be terminated
the custody of her child. in accordance with the legal grounds provided in the Family Code.

considerations, especially the choice of the child over
Q. How is the preferential choice of the father exercised? seven years of age, unless the parent chosen is unfit. (n)
A. The binding force of the decision of the father in case of conflict is No child under seven years of age shall be separated
highlighted by the law itself when it provides that only a court order from the mother unless the court finds compelling
can alter it. If the mother or the children want to change the decision reasons to order otherwise.
of the father, they must go to court.
Q. If the child is seven years old and above, is his or her choice of a
Article 212. In case of absence or death of either parent, parent with whom he or she will live conclusive upon the courts?
the parent present shall continue exercising parental
authority. The remarriage of the surviving parent shall A. If the child is seven years old and above, his or her choice of a parent
not affect the parental authority over the children, with whom he or she will live is significant and the court should take
unless the court appoints another person to be the this into consideration. However, such choice is not determinative of
guardian of the person or property of the children (17a, the issue of custody because, while the choice may be in favor of
P.D. No. 603). parent, the court may still nevertheless award custody to the other
parent or even to a third person if the paramount interest of the child
Q. Will death of one of the parents terminate parental authority? so dictates.
A. The death of one of the parents will not terminate the parental Q. What is the nature of the word “shall” under Article 213 of the Family
authority of the surviving parent over their children. Code?
Q. How about remarriage of the surviving parent to another? A. The use of the word “shall” in Article 363 of the Civil Code (now Article
213 of the Family Code), coupled with the observations made by
A. Upon remarriage of the surviving parent, the parental authority over the Code Commission in respect to the said legal provision,
the children shall likewise not be affected. The new spouse, by virtue of underscores its mandatory character. It prohibits in no uncertain
his or her marrying the surviving parent, does not automatically terms the separation of a mother and her child below seven years,
possess parental authority over the children of the surviving parent unless such separation is grounded upon compelling reasons as
unless such new spouse adopts the children. Upon remarriage of the determined by a court (Lacson vs. San Jose-Lacson, 24 SCRA 837).
surviving parent, the court may appoint another person to be the Thus, any agreement by the parties unduly depriving the mother of
guardian of the person or property of the children if it is clearly shown the custody of her children under seven years of age in the absence of
that, by reason of the remarriage, the surviving parent cannot any compelling reason to warrant the same is null and void (Ibid.)
undertake the necessary devotion, care, loyalty and concern
toward the children. Q. How may a mother be deprived of custody of a child under seven years
of age? How can it be shown?
Article 213. In case of separation of the parents, parental A. Compelling reason must be clearly shown by positive and clear
authority shall be exercised by the parent designated by evidence of the unfitness of the mother and its determination is left
the Court. The Court shall take into account all relevant

to the sound discretion of the courts (Medina vs. Makabali, 27 still in a position to take care of the child. This is especially so
SCRA 502; Cervantes vs. Fajardo, 169 SCRA 575). because parental authority and responsibility is inalienable and may
not be transferred or renounced except in cases authorized by law
Q. Is being a lesbian enough to deprive a mother of custody of a child (Santos vs. CA, et. al., G.R. No. 113054, March 16, 1995, 59 SCAD
under seven years of age? 672).
A. No, it is not enough to show that the mother was lesbian. It must be Article 215. No descendant shall be compelled, in a
shown that the purported relationship with a person of the same sex in criminal case, to testify against his parents and
the presence of the child is not conducive for the child’s proper moral grandparents, except when such testimony is
development (Gualberto vs. Rafaelito) indispensable in a crime against the descendant or by
one parent against the other. (315a)
Q. Is judgment of custody final and irreversible?
Q. May a descendant testify against his parents in a criminal case?
A. The decisions of the courts, even the Supreme Court, on the custody of
minor children are always open to adjustments as the circumstances A. The privilege is solely addressed to the descendant-witness. He or she
relevant to the matter may demand in the light of the inflexible may or may not testify against his or her parents in a criminal case. If
criterion, namely the paramount interest of the children (Unson III vs. the descendant does not want to testify, he or she cannot be compelled.
Navarro, 101 SCRA 189).
Article 214. In case of death, absence or unsuitability of

the parents, substitute parental authority shall be
exercised by the surviving grandparent. In case several
survive, the one designated by the court taking into
account the same consideration mentioned in the
preceding article, shall exercise the authority. (19a, P.D.
No. 603)
Q. When may substitute parental authority be exercised?
A. It is in case of death of the parents or their unsuitability or absence

that substitute parental authority shall be exercised by the
grandparents, but the law still considers the welfare, moral, and
physical development of the child as the most important consideration.
The rearing of the child for civic efficiency shall be considered by the
grandparents. The law says that it is in case of the absence of the
parents, death or unsuitability that the grandparents will
exercise parental authority; so, if the mother of the child is abroad, the
custody of the child should be given to the father since the father is

Substitute and Special Parental Authority Substitute and Special Parental Authority
Chapter 2 A. The order must, as much as possible, be observed especially when all
Substitute and Special Parental Authority those enumerated are equally fit to take care of the children.
Art. 216. In default of parents or a judicially appointed Art. 217. In case of foundlings, abandoned neglected or
guardian, the following person shall exercise substitute abused children and other children similarly situated,
parental authority over the child in the order indicated: parental authority shall be entrusted in summary
(1) The surviving grandparent, as provided in Art. judicial proceedings to heads of children's homes,
214; orphanages and similar institutions duly accredited by
(2) The oldest brother or sister, over twenty-one the proper government agency. (314a)
years of age, unless unfit or disqualified; and
Q. Who is a foundling?
(3) The child's actual custodian, over twenty-one
years of age, unless unfit or disqualified. A. A foundling is a newborn child abandoned by its parents who are
unknown.
Whenever the appointment or a judicial guardian over
the property of the child becomes necessary, the same Q. Who is an abandoned child?
order of preference shall be observed. (349a, 351a, 354a)
A. An abandoned child is one who has no proper parental care or
guardianship, or whose parents or guardians have deserted him for a
Q. Why do persons exercising substitute parental authority have very
period of at least six continuous months.
important roles to undertake?
Q. Who is a neglected child?
A. They have very important roles because they shall have all the rights
of the parents enumerated under in Article 220. They shall have the A. A neglected child is one whose basic needs have been deliberately
same authority over the person of the child as the parents (Article unattended or inadequately attended. Neglect may either be physical
233). And they shall be civilly liable for the injuries and damages neglect or emotional neglect.
caused by the acts or omissions of the unemancipated children living
in their company and under their parental authority. Q. Who is an abused child?
A. An abused child can come within an emotionally neglected child: when

Q. Is the order in Article 216 mandatory?
children are maltreated, raped or seduced; when children are
exploited, overworked or made to work under conditions not conducive
A. No. to good health; or are made to beg in the streets or public places, or
when children are in moral danger, or exposed to gambling,
Q. What must be the basis of the custody and care of the child?
prostitution or other vices.
A. Always, the paramount interest of the child must be the basis of the Q. Who is a dependent child?
custody and care.
A. A dependent child is one who is without a parent, guardian or
Q. What is the purpose of the order? custodian; or one whose parent, guardian or custodian for good cause
desires to be relieved of his care and custody; and is dependent upon

Substitute and Special Parental Authority Substitute and Special Parental Authority
the public for support. agency or individual. The child must be surrendered in writing by the
parent or guardian to the Department or duly licensed child placement
Q. What is required to establish a child welfare agency? agency.
A. Any private person, natural or juridical, who shall establish a child Art. 218. The school, its administrators and teachers, or
welfare agency must first secure a license from the Department of the individual, entity or institution engaged in child are
Social Welfare which shall not be transferable and shall be used only shall have special parental authority and responsibility
by the person or institution to which it was issued and the place stated over the minor child while under their supervision,
therein. The license shall be granted if the purpose or function of the instruction or custody.
agency is clearly defined and stated in writing which shall include the
geographical are to be served, the children to be accepted and the Authority and responsibility shall apply to all authorized
services to be provided. The protection and best interests of the child activities whether inside or outside the premises of the
shall be the first and basic consideration in the granting, suspension or school, entity or institution. (349a)
revocation of the license (PD 603).
Art. 219. Those given the authority and responsibility
Q. How and to whom is parental authority transferred over these under the preceding Article shall be principally and
children? solidarily liable for damages caused by the acts or
omissions of the unemancipated minor. The parents,
A. Parental authority over these children shall be entrusted in a judicial guardians or the persons exercising substitute
summary proceeding to heads of children’s homes, orphanages and parental authority over said minor shall be subsidiarily
similar institutions duly accredited by the proper government agency. liable.
Q. What is involuntary transfer of parental authority? The respective liabilities of those referred to in the
preceding paragraph shall not apply if it is proved that
A. The Department of Social Welfare Secretary or his authorized
they exercised the proper diligence required under the
representative or any duly-licensed child placement agency having
knowledge of a child who appears to be dependent, abandoned or particular circumstances.
neglected, may file a verified petition to the proper court for the All other cases not covered by this and the preceding
involuntary commitment of the child to the care of any duly licensed articles shall be governed by the provisions of the Civil
child placement agency. After due hearing, when a child shall have Code on quasi-delicts. (n)
been committed, his parents or guardians shall thereafter exercise no
authority over him except upon such conditions as the court may Q. Who are given special parental authority?
impose. The Department of Social Welfare or any duly licensed child
placement agency or individual receiving a child pursuant to the order A. The school, its administrators and teachers, or the individual, entity or
of the court shall be the legal guardian. institution engaged in child care.
Q. What is voluntary transfer of parental authority? Q. Over whom can such special parental authority be exercised?
A. The parent or guardian of the child may voluntarily commit him to the A. Only over minors while under their supervision, instruction or
Department of Social Welfare or any duly licensed child placement custody. The authority or supervision also attaches to all activities

Substitute and Special Parental Authority Effect of Parental Authority Upon
the Persons of the Children
whether inside or outside the school, entity or institution.
unemancipated children on wards the following rights
Q. What is the consequence of such special parental authority? and duties:
A. They are civilly liable for acts and omissions of the minor. However, (1) To keep them in their company, to support, educate
the liabilities will not apply if it is proved that they exercised the and instruct them by right precept and good example,
proper diligence required under the particular circumstances. and to provide for their upbringing in keeping with their
means;
Q. Who is the teacher referred to in this Article?
(2) To give them love and affection, advice and counsel,
A. The teacher must be the teacher-in-charge, the one designated by the companionship and understanding;
dean, principal or other administrative superior to exercise supervision
over the pupils and is the one immediately involved in the discipline of (3) To provide them with moral and spiritual guidance,
the student and has direct control and influence over them. (Amadora inculcate in them honesty, integrity, self-discipline, self-
v. Court of Appeals, 160 SCRA 315). reliance, industry and thrift, stimulate their interest in
civic affairs, and inspire in them compliance with the
Q. What is the liability of parents, judicial guardians or persons duties of citizenship;
exercising substitute parental authority?
(4) To furnish them with good and wholesome
A. They shall be subsidiarily liable because while the child is in school, educational materials, supervise their activities,
the said persons do not have direct custody of the children. They shall recreation and association with others, protect them
only be liable if the persons with special parental authority cannot from bad company, and prevent them from acquiring
satisfy their liability. habits detrimental to their health, studies and morals;
Q. What is the defense of persons with special parental authority? (5) To represent them in all matters affecting their
A. The defense of the exercise of proper diligence required under the interests;
particular circumstances. (6) To demand from them respect and obedience;
Q. What applies when the students are not minors? (7) To impose discipline on them as may be required
A. Article 2180 of the Civil Code. under the circumstances; and
(8) To perform such other duties as are imposed by law

upon parents and guardians. (316a)
Chapter 3 Q. Where does the concept of parental rights and duties stem from?
Effect of Parental Authority Upon the Persons of the Children A. The law’s concept of the family rests on the presumption that parents
Art. 220. The parents and those exercising parental possess what a child lacks in maturity, experience and capacity for
authority shall have with the respect to their judgment required for making difficult life decisions. Also, it has been
recognized that natural bonds of affection lead parents to act in the

Effect of Parental Authority Upon Effect of Parental Authority Upon
the Persons of the Children the Persons of the Children
best interest of the child. A. It is anchored upon parental authority coupled with presumed
parental dereliction in the discharge of the duties accompanying such
Q. Can the child, despite her wrong and seemingly incorrigible behavior, authority.
file an action to compel the parents to provide support?
Q. How do you overturn the presumption of parental dereliction?
A. There has been no case decided by the Supreme Court on this matter.
However, American decisions may be helpful. In Roe v. Doe, 29 NY 2d A. The parents must show that they exercised the diligence of a good
188, 272 N.E. 2d 567, 324 NY S.2d 71 (1971), it was held that the father of a family to prevent the damage.
actions of the child in disregarding the parental authority of the parent
forfeited her rights to demand support. Q. Who is liable when a minor child, who shot another person, was
subject of adoption proceedings but was still in the custody and
Art. 221. Parents and other persons exercising parental parental authority of the natural parents?
authority shall be civilly liable for the injuries and
damages caused by the acts or omissions of their A. The natural parents. Although the law provides that the adoption
unemancipated children living in their company and decree has a retroactive effect that goes back to the filing of the
under their parental authority subject to the appropriate petition for adoption, such cannot apply to issues of vicarious liability
defenses provided by law. (2180(2)a and (4)a ) of parents which can only attach, if at the time of the incident, the
child were under their custody and parental authority. (Tamargo v.
Q. What is the liability of parents and other persons exercising parental Court of Appeals, 209 SCRA 518)
authority?
Art. 222. The courts may appoint a guardian of the child's
A. They are principally and primarily liable for the acts or omission of property or a guardian ad litem when the best interests
their unemancipated children resulting in injuries to others. For the of the child so requires. (317)
liability to attach, the child must be living in their company and under
their parental authority. Q. What is a guardianship?
Q. What is the philosophy of parental liability? A. A guardianship is a trust relation of the most sacred character, in
which one person, called a “guardian”, acts for another, called the
A. The principle of parental liability is a species of vicarious liability, or “ward”, whom the law regards as incapable of managing his own
the doctrine of imputed negligence, where a person is not only liable affairs (39 Am. Jur. 9).
for torts committed by himself but also for torts committed by other
with whom he has a certain relationship and for whom he is Q. Who is a guardian ad litem?
responsible. Parental liability is made a natural and logical
A. Guardians ad litem are considered officers of the court in a limited
consequence of parental authority which includes the instructing,
sense, and the office of such guardian is to represent the interest of the
controlling and disciplining of the child. (Tamargo v. Court of Appeals,
incompetent or minor. (Rivero v. Court of Appeals, G.R. No. 141273,
209 SCRA 518)
May 17, 2005, 458 SCRA 714)
Q. What is parental liability anchored upon?
Q. What is the selection process?

A. Appointment of a guardian ad litem is addressed to the sound

discretion of the court and designed to assist the court in the Q. Where is the petition filed?
determination of the best interest of the child (Rivero v. Court of
Appeals, G.R. No. 141273, May 17, 2005, 458 SCRA 714). A. Petition may be filed in the Family Court of the province or city
where the minor actually resides. If he resides in a foreign
Q. Who cannot be appointed as a guardian? country, it shall be filed with the Family Court of the province or
city where his property or any part thereof is situated. (Section 3,
A. A court cannot appoint a guardian who is not personally subject to its
A.M. No. 03-02-05-SC)
jurisdiction (Vancil v. Belmes, G.R. No. 132223, June 19, 2001).
AM No. 03-02-05-SC Q. What are the grounds for the appointment of a guardian?
Rule on Guardianship of Minors
A. (1) death, continued absence, or incapacity of his parents; (2)
Q. In what cases will this rule apply? suspension, deprivation or termination of parental authority; (3)
remarriage of his surviving parent, if the latter is found
A. This Rule shall apply to petitions for guardianship over the person unsuitable to exercise parental authority; or (4) when the best
or property, or both, of a minor. (Section 1, A.M. No. 03-02-05-SC) interests of the minor so require. (Section 4, A.M. No. 03-02-05-
This Rule amends Rules 92 to 97 inclusive of the Rules of Court on SC)
guardianship of minors. Guardianship of incompetents who are
not minors shall continue to be under the jurisdiction of the Q. In appointing a guardian, what factors shall the court consider?
regular courts and governed by the Rules of Court. (Section 27,
A.M. No. 03-02-05-SC) A. The court shall consider the guardian’s: (a) moral character; (b)
physical, mental, and physical condition; (c) financial status; (d)
Q. Will the rule apply in case the father and the mother jointly relationship of trust with the minor; (e) availability to exercise the
exercise legal guardianship over the person and property of their powers and duties of a guardian for the full period of the
unemancipated common child without the necessity of a court guardianship; (f) lack of conflict of interest with the minor; and (g)
appointment? ability to manage the property of the minor. (Section 5, A.M. No.
03-02-05-SC)
A. In such case, the rule shall be suppletory to the provisions of the
Family Code on Guardianship. (Section 1, A.M. No. 03-02-05-SC) Q. Who may be appointed as guardian?
Q. Who may petition for appointment of guardian? A. In default of parents or a court-appointed guardian, the court may
appoint a guardian, observing as far as, practicable, the following
A. Any relative or other person on behalf of a minor, or the minor order of preference: (a) the surviving grandparent and in case
himself if fourteen (14) years of age or over. The petition may also several grandparents survive, the court shall select any of them
be filed by the Secretary of Social Welfare and Development and taking into account all relevant considerations; (b) the oldest
by the Secretary of Health in the case of an insane minor who brother or sister of the minor over twenty-one years of age, unless
needs to be hospitalized. (Section 2, A.M. No. 03-02-05-SC) unfit or disqualified; (c) the actual custodian of the minor over

twenty-one years of age, unless unfit or disqualified; and (d) any court a verified inventory of the property of his ward within three
other person, who in the sound discretion of the court, would serve months after his appointment, and annually thereafter, the
the best interests of the minor. (Section 6, A.M. No. 03-02-05-SC) rendition of which may be required upon the application of an
interested person; (f) To report to the court any property of the
Q. How is a guardian of a non-resident minor appointed? ward not included in the inventory which is discovered, or
succeeded to, or acquired by the ward within three months after
A. Any relative or friend of such minor, or any one interested in his such discovery, succession, or acquisition; and (g) To render to the
property, in expectancy or otherwise, may petition the Family court for its approval an accounting of the property one year from
Court for the appointment of guardian over the property. The his appointment, and every year thereafter or as often as may be
court may dispense with the presence of the non-resident minor. required. (Section 17, A.M. No. 03-02-05-SC)
(Section 12, A.M. No. 03-02-05-SC)
Q. What are the grounds for removal of a guardian?
Q. What are the general duties of a guardian?
A. When a guardian: (a) becomes insane or otherwise incapable of
A. A guardian shall have the care and custody of the person of his discharging his trust or is found thereafter to be unsuitable; (b)
ward and the management of his property, or only the has wasted or mismanaged the property of the ward; or (c) has
management of his property. A guardian shall perform the failed to render an account or make a return for thirty days after
following duties: (a) To pay the just debts of the ward out of the it is due. However, no motion for removal shall be grated unless
personal property and the income of the real property of the ward, the guardian has submitted the proper accounting of the property
If the same is sufficient; otherwise, out of the real property of the of the ward and the court has approved the same. (Section 24,
ward upon obtaining an order for its sale or encumbrance; (b) To A.M. No. 03-02-05-SC)
settle all accounts of his ward, and demand, sue for, receive all
debts due him, or may, with the approval of the court, compound Q. Can a guardian resign?
for the same and give discharges to the debtor on receiving a fair
and just dividend of the property and effects; and to appear for A. Yes. For justifiable causes. However, no motion for resignation
and represent the ward in all actions and special proceedings, shall be grated unless the guardian has submitted the proper
unless another person is appointed for that purpose; (c) To accounting of the property of the ward and the court has approved
manage the property of the ward frugally and without waste, and the same. (Section 24, A.M. No. 03-02-05-SC)
apply the income and profits thereon, insofar as may be necessary,
to the comfortable and suitable maintenance of the ward; and if Q. What are the grounds for termination of guardianship?
such income and profits be insufficient for that purpose, to sell or
encumber the real or personal property, upon being authorized by A. When the ward has: (a) come of age; or (b) died, the court motu
the court to do so; (d) To consent to a partition of real or personal proprio or upon verified motion of any person allowed to file a
property owned by the ward jointly or in common with others petition for guardianship may terminate the guardianship.
upon authority granted by the court after hearing, notice to (Section 25, A.M. No. 03-02-05-SC)
relatives of the ward, and a careful investigation as to the
necessity and propriety of the proposed action; (e) To submit to the

Art. 223. The parents or, in their absence or measures for the child’s improvement and which the court may
incapacity, the individual, entity or institution provide as warranted under the premises.
exercising parental authority, may petition the
proper court of the place where the child resides, for Q. What is the measure imposable on the child?
an order providing for disciplinary measures over the
child. The child shall be entitled to the assistance of A. Commitment of the child for not more than thirty days in entities
counsel, either of his choice or appointed by the or institutions engaged in child care or in children’s homes duly
court, and a summary hearing shall be conducted accredited by the proper government agency. The parent
wherein the petitioner and the child shall be heard. exercising parental authority shall not interfere with the care of
the child whenever committed but shall provide for his or her
However, if in the same proceeding the court finds the support.
petitioner at fault, irrespective of the merits of the
petition, or when the circumstances so warrant, the R.A. No. 8972
court may also order the deprivation or suspension of Solo Parents’ Welfare Act of 2000
parental authority or adopt such other measures as it
may deem just and proper. (318a) Q. Who is a ‘solo parent’ under the provisions of the law?
Art. 224. The measures referred to in the preceding A. (1) A woman who gives birth as a result of rape and other crimes
article may include the commitment of the child for against chastity even without a final conviction of the
not more than thirty days in entities or institutions offender: Provided, That the mother keeps and raises the child; (2)
engaged in child care or in children's homes duly Parent left solo or alone with the responsibility of parenthood due
accredited by the proper government agency. to death of spouse; (3) Parent left solo or alone with the
responsibility of parenthood while the spouse is detained or is
The parent exercising parental authority shall not serving sentence for a criminal conviction for at least one (1) year;
interfere with the care of the child whenever (4) Parent left solo or alone with the responsibility of parenthood
committed but shall provide for his support. Upon due to physical and/or mental incapacity of spouse as certified by a
proper petition or at its own instance, the court may public medical practitioner; (5) Parent left solo or alone with the
terminate the commitment of the child whenever just responsibility of parenthood due to legal separation or de facto
and proper. (391a) separation from spouse for at least one (1) year, as long as he/she
is entrusted with the custody of the children; (6) Parent left solo or
Q. Who has the principal duty of undertaking measures to discipline alone with the responsibility of parenthood due to declaration of
children? nullity or annulment of marriage as decreed by a court or by a
church as long as he/she is entrusted with the custody of the
A. The parents, provided that they do not treat their children children; (7) Parent left solo or alone with the responsibility of
inhumanly or beyond what is absolutely necessary. However, if parenthood due to abandonment of spouse for at least one (1) year;
the children remain incorrigible, the parents are given the right to (8) Unmarried mother/father who has preferred to keep and rear
seek the aid of the court to impose other more drastic disciplinary her/his child/children instead of having others care for them or

give them up to a welfare institution; (9) Any other person who education; and non-formal education programs) (Section 9); (e)
solely provides parental care and support to a child or children; housing benefits (Section 10); and (f) medical assistance (Section
(10) Any family member who assumes the responsibility of head of 11).
family as a result of the death, abandonment, disappearance or
prolonged absence of the parents or solo parent. (Section 3, RA Chapter 4
8972) Effect of Parental Authority Upon the Property of the Children
Q. Will a change in status or circumstance of the parent terminate Art. 225. The father and the mother shall jointly exercise
his or her eligibility to claim benefits under the law? legal guardianship over the property of the
unemancipated common child without the necessity of a
A. Yes. Such that he or she is no longer left alone with the court appointment. In case of disagreement, the father's
responsibility of parenthood. (Section 3, RA 8972) decision shall prevail, unless there is a judicial order to
the contrary.
Q. Are all solo parents eligible to claim benefits under the law?
Where the market value of the property or the annual
A. No. Only those whose income in the place of domicile falls below income of the child exceeds P50,000, the parent
the poverty threshold as set by the National Economic and concerned shall be required to furnish a bond in such
Development Authority (NEDA) and subject to the assessment of amount as the court may determine, but not less than ten
the DSWD worker in the area shall be eligible for assistance. per centum (10%) of the value of the property or annual
However, any solo parent whose income is above the poverty income, to guarantee the performance of the obligations
threshold shall enjoy the benefits mentioned in Sections 6 (flexible prescribed for general guardians.
work schedule), 7 (no work discrimination) and 8 (parental leave)
of the Act. A verified petition for approval of the bond shall be filed
in the proper court of the place where the child resides,
Q. What are the benefits which a solo parent is entitled to claim or, if the child resides in a foreign country, in the proper
under the law? court of the place where the property or any part thereof
is situated.
A. (a) flexible work schedule provided, the same shall not affect
individual and company productivity (Section 6); (b) no work The petition shall be docketed as a summary special
discrimination with respect to terms and conditions of proceeding in which all incidents and issues regarding
employment on account of his or her status (Section 7); (c) the performance of the obligations referred to in the
parental leave, in addition to leave privileges under existing laws, second paragraph of this Article shall be heard and
of not more than seven (7) working days every year if the solo resolved.
parent employee has rendered service for at least one (1) year
(Section 8); (d) educational benefits for both the solo parents and The ordinary rules on guardianship shall be merely
their children by DECS, CHED and TESDA (i.e. scholarship suppletory except when the child is under substitute
programs in institutions of basic, tertiary and technical or skills parental authority, or the guardian is a stranger, or a

Effect of Parental Authority Upon the Property of the Children Effect of Parental Authority Upon the Property of the Children
parent has remarried, in which case the ordinary rules thus give in whole or in part shall not be charged to the
on guardianship shall apply. (320a) child's legitime. (322a)
Q. What is the reason for the P50,000 bench mark? Q. What is the scope of the parent or guardian’s authority over the estate
of the child or ward?
A. The committee considers P50,00 as the amount when the property is
valuable enough to require a bond on the basis of the current A. It is limited only to acts of management or administration. Thus,
valuation. (Minutes of the 186th Joint Meeting on the Civil Code and parents cannot execute acts of encumbrance or disposition. A sale of
Family Law committees) the ward’s realty by the guardian without authority from the court is
void.
Q. What does “market value of the property of annual income of the child”
mean? Q. Do parents have the power to compromise their children’s claims?
A. It means the aggregate of the child’s property or annual income. Thus, A. No, for a compromise has always been deemed equivalent to an
if the total of the child’s property or annual income exceeds P50,000, alienation and is an act of strict ownership that goes beyond mere
then the parents are required to furnish a bond. (Pineda vs. CA, 226 administration. (Visaya et al., vs. Suguitan, et al., G.R. No. L-8300,
SCRA 754) November 18, 1955; Lindain vs. CA, 212 SCRA 725) The court’s
approval is necessary in compromises entered into by guardians,
Art. 226. The property of the unemancipated child earned parents, absentee’s representatives and administrators or executors of
or acquired with his work or industry or by onerous or decedent’s estates. (Article 2032 of New Civil Code)
gratuitous title shall belong to the child in ownership
and shall be devoted exclusively to the latter's support Q. What does the phrase “all incidents and issues” include?
and education, unless the title or transfer provides
otherwise. A. It may include the alienation, disposition, mortgaging or otherwise
encumbering of the property beyond P50,000. These incidents and
The right of the parents over the fruits and income of the issues shall be decided in an expeditious and inexpensive manner
child's property shall be limited primarily to the child's without regard to technical rules in the same proceeding where the
support and secondarily to the collective daily needs of bond was approved.
the family. (321a, 323a)
Q. When will the rules on ordinary guardianship apply?
Art. 227. If the parents entrust the management or
administration of any of their properties to an A. In three instances: (a) when the child is under substitute parental
unemancipated child, the net proceeds of such property authority; (b) guardian is a stranger; or (c) a parent has remarried.
shall belong to the owner. The child shall be given a
reasonable monthly allowance in an amount not less Q. Is a child obliged to support his or her parents?
than that which the owner would have paid if the
administrator were a stranger, unless the owner, grants
the entire proceeds to the child. In any case, the proceeds

Effect of Parental Authority Upon the Property of the Children Suspension or Termination of Parental Authority
A. Yes, according to Article 195 of the Family Code. The support can be parent’s refusal to consent to the marriage of their unemancipated
taken from his or her separate property if the parents need it and if minor children?
the child can afford it.
A. No, this is not included in the causes established by the laws for
Chapter 5. Suspension or Termination of Parental Authority depriving parents of patria potestas and the custody of their
unemancipated minor children.
Art. 228. Parental authority terminates permanently:
(1) Upon the death of the parents; Q. Upon rescission of the adoption decree, who has parental authority
(2) Upon the death of the child; or over the adoptee?
(3) Upon emancipation of the child. (327a)
A. The adoptee’s biological parents (if known) or the DSWD’s legal
Q. What is the effect of Article 228? custody shall be restored.
A. Parental authority is permanently terminated due to events that Q. What does abandonment mean?
happen without fault on the part of the parents. Here, parental
authority cannot be revived. A. It is any conduct on the part of the parent which evinces a settled
purpose to forego all parental duties and relinquish all parental claims
Art. 229. Unless subsequently revived by a final to the child. It means neglect or refusal to perform the natural and
judgment, parental authority also terminates: legal obligations of care and support which they owe to their children.
(1)Upon adoption of the child;
(2)Upon appointment of a general guardian; Q. What proof is needed in order for the court to issue a decree of
(3)Upon judicial declaration of abandonment of the termination of parental authority?
child in a case filed for the purpose;
(4)Upon final judgment of a competent court A. Clear, convincing and positive proofs.
divesting the party concerned of parental
authority; or Art. 230. Parental authority is suspended upon
(5)Upon judicial declaration of absence or conviction of the parent or the person exercising the
incapacity of the person exercising parental same of a crime which carries with it the penalty of civil
authority. (327a) interdiction. The authority is automatically reinstated
upon service of the penalty or upon pardon or amnesty of
Q. Can the court appoint a guardian for the person and property of the the offender. (330a)
child?
Q. What is civil interdiction?
A. Yes. Under Art. 20 of PD 603, the court can appoint a guardian on
petition of any relative or friend of the family or the DSWD. A. It is an accessory penalty that involves the depravation of the offender
during the time of his or her sentence of the rights of parental
Q. Is parental authority terminated upon the parents’ act of compelling authority, or guardianship, either as to the person or property of any
their unemancipated minor daughter to marry against her will or the ward, of marital authority, of the right to manage his property and of

Suspension or Termination of Parental Authority Suspension or Termination of Parental Authority
the right to dispose of such property by any act or conveyance inter A. No, unless the circumstantial evidence is so strong and convincing that
vivos. (Article 34, Revised Penal Code) the only conclusion that can be derived from the acts of the parents
would cause the child serious physical, mental, moral and emotional
Art. 231. The court in an action filed for the purpose in a harm. (Blore vs. John and Susan Z., 53 ALR 3d 592)
related case may also suspend parental authority if the
parent or the person exercising the same: Art. 232. If the person exercising parental authority has
(1) Treats the child with excessive harshness or subjected the child or allowed him to be subjected to
cruelty; sexual abuse, such person shall be permanently deprived
(2) Gives the child corrupting orders, counsel or by the court of such authority. (n)
example;
(3) Compels the child to beg; or Q. May the parental authority of father who has sexually abused his
(4) Subjects the child or allows him to be subjected daughter be revived upon a showing that he has reformed and will not
to acts of lasciviousness. subject his daughter to the same abusive acts?
The grounds enumerated above are deemed to include A. No, his parental authority cannot be revived even if the reformation of
cases which have resulted from culpable negligence of the father is authentic. It is a permanent deprivation.
the parent or the person exercising parental authority.
Q. What are the grounds for terminating parental authority under the
If the degree of seriousness so warrants, or the welfare of Revised Penal Code?
the child so demands, the court shall deprive the guilty
party of parental authority or adopt such other measures A. When any ascendant, guardian, teacher or person entrusted un any
as may be proper under the circumstances. capacity with the care of a child under 16 years of age to deliver, either
gratuitously or in consideration of any price, compensation or promise
The suspension or deprivation may be revoked and the such child to any habitual vagrant or beggar, or to any person who,
parental authority revived in a case filed for the purpose being an acrobat, gymnast, rope-walker, diver, wild animal tamer or
or in the same proceeding if the court finds that the circus manager or engaged in a similar calling who employs said
cause therefor has ceased and will not be repeated. (33a) children in exhibitions.
Q. What is the procedure to suspend parental authority? Art. 233. The person exercising substitute parental
authority shall have the same authority over the person
A. Under Art. 231, it can be judicially decreed in a case specifically filed of the child as the parents.
for hat purpose or in a related case. The phrase “related case” can be
an “off-shoot of an incident or a collateral pronouncement in another In no case shall the school administrator, teacher of
case” or “an independent or collateral proceeding”. individual engaged in child care exercising special
parental authority inflict corporal punishment upon the
Q. May severe beating of a child be a ground to terminate parental child. (n)
authority?
Q. What is corporal punishment under Art. 233?

profit or advantage therefrom.
A. It is the infliction of physical disciplinary measures to a student.
Q. Who are children in prostitution?
Q. May a teacher be held feloniously liable for the criminal offense of
A. Under Article III, Children, whether male or female, who for money,
slight physical injuries? profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or
A. No. Where there was no criminal intent on the part of the teacher and
lascivious conduct, are deemed to be children exploited in prostitution
where the purpose was to discipline a student. (Bagajo vs. Marave, 86
and other sexual abuse.
SCRA 389)
Q. Who may be liable for an attempt to commit child prostitution?
Q. May parents inflict corporal punishment?
A. (1) any person who, not being a relative of a child, is found alone with
A. Yes. Only persons exercising special parental authority cannot inflict the said child inside the room or cubicle of a house, motel, hotel, or
corporal punishment. Parents and persons exercising substitute other similar establishments, vessel, vehicle or any other hidden or
parental authority can inflict it but must do it in a reasonable manner secluded area under circumstances which would lead a reasonable
and not treat the child with excessive harshness or cruelty. person to believe that the child is about to be exploited in prostitution
and other sexual abuse.
Q. May parents be held criminally liable?
(2) any person receiving services from a child in a sauna parlor or bath,
A. Yes, upon commission of the acts enumerated under Art. 59 of PD 603. massage clinic, health club and other similar establishments.
Q. What is child trafficking?

REPUBLIC ACT NO. 7610
“Special Protection of Children Against Child Abuse, Exploitation A. It is committed by Any person who shall engage in trading and dealing
and Discrimination Act.” with children including, but not limited to, the act of buying and
selling of a child for money, or for any other consideration, or barter
Q. What is the legislation for the protection of children?
Q. May a child be employed?
A. On June 17, 1992, President Corazon Aquino approved Republic Act
A. Yes, children below 15 years of age may be employed and only when
Number 7610, otherwise known as the “Special Protection of Children
the following minimum requirements are present:
Against Child Abuse, Exploitation and Discrimination Act.”
(a) The employer shall secure for a work permit from the Department
Q. Are children in prostitution criminals? of Labor and Employment;
A. No, they are deemed children exploited in prostitution and other (b) The employer shall ensure the protection, health, safety, and
sexual abuse. Penalty is imposed on those who 1) who engage in or morals of the child;
promote, facilitate or induce child prostitution 2) commit the act of
sexual intercourse or lascivious conduct with a child exploited in (c) The employer shall institute measures to prevent exploitation or
prostitution or subjected to other sexual abuse (3) Those who derive discrimination taking into account the system and level of

remuneration, and the duration and arrangement of working time; (c) Immediate notice of such arrest to the parents or guardian of the
and child; and
(d) The employer shall formulate and implement continuous program (d) Release of the child on recognizance within twenty- four (24) hours
for training and skill acquisition of the child. to the custody of the Department of Social Welfare and Development
or any responsible member of the community as determined by the
Q. What is the prohibition on the employment of children? court.
A. No person shall employ child models in all commercials or Q. Who may file a complaint for unlawful acts committed against
advertisements promoting alcoholic beverages, intoxicating drinks, children?
tobacco and its by-products, and violence.
A. The (a) Offended party; (b) Parents or guardians; (c) Ascendant or
Q. What are the protections given to children of indigenous cultural collateral relative within the third degree of consanguinity; (d) Officer,
communities? social worker or representative of a licensed child-caring institution; (e)
Officer or social worker of the Department of Social Welfare and
A. Children of indigenous cultural communities shall be entitled to
protection, survival and development consistent with the customs and Development; (f) Barangay chairman; or (g) At least three (3)
concerned responsible citizens where the violation occurred.
traditions of their respective communities. They are also protected
against any and all forms of discrimination. It is also the interest of Q. How are the protection accorded to offended children after the filing of
the state to provide them access to education and deliver basic social a complaint against their offenders?
services in health and nutrition.
A. (1) The offended party shall be immediately placed under the
Q. What is the policy for children in situations of armed conflict?
protective custody of the Department of Social Welfare and
A. They are declared as Zones of Peace. Thus, it shall be the Development pursuant to Executive Order No. 56, series of 1986.
responsibility of the State and all other sectors concerned to resolve
armed conflicts in order to promote the goal of children as zones of (2) At the instance of the offended party, his name may be withheld
peace. They shall be prioritized during evacuation as a result of armed from the public until the court acquires jurisdiction over the case.
conflict.
(3) It shall be unlawful for any media to cause undue and
Q. What are the rights of children arrested for reasons related to armed sensationalized publicity of any case of violation RA 7610 which
conflict? results in the moral degradation and suffering of the offended party.
A. Any child who has been arrested for reasons related to armed conflict,
(4) Cases involving violations of RA 7610 shall be heard in the
either as combatant, courier, guide or spy is entitled to the
chambers of the judge of the Regional Trial Court duly designated as
following rights:
Juvenile and Domestic Relations Court.
(a) Separate detention from adults except where families are
accommodated as family units; RULES ON EXAMINATION OF A CHILD WITNESS
(b) Immediate free legal assistance; Q. When is the rule on examination of child witnesses applicable?

(b) The guardian ad litem: (1) Shall attend all interviews, depositions,
A. Examination of child witnesses who are victims, accused, and hearings, and trial proceedings in which a child participates; (2) Shall
witnesses to crime. It shall apply in all criminal proceedings and non- make recommendations to the court concerning the welfare of the
criminal proceedings involving child witnesses child; (3) Shall have access to all reports, evaluations, and records
necessary to effectively advocate for the child, except privileged
Q. How shall the rule be construed? communications; (4) Shall marshal and coordinate the delivery of
resources and special services to the child; (5) Shall explain, in
A. Liberally, to uphold the best interests of the child, and to promote language understandable to the child, all legal proceedings, including
maximum accommodation of child witnesses, without prejudice to the police investigations, in which the child is involved; (6) Shall assist the
rights of the accused. child and his family in coping with the emotional effects of crime and
subsequent criminal or non-criminal proceedings in which the child is
Q. Who may be considered a child witness? involved; (7) May remain with the child while the child waits to testify;
(8) May interview witnesses; and (9) May request additional
A. Any person who, at the time of giving testimony, is below the age of 18 examinations by medical or mental health professionals if there is a
years. In child abuse cases, a child includes one over 18 years but is compelling need therefor.
found by the court as unable to fully take care of himself or protect
himself from abuse, neglect, cruelty, exploitation, or discrimination (c) The guardian ad litem shall be notified of all proceedings but shall
because of a physical or mental disability or condition. not participate in the trial. However, he may file motions pursuant to
sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer,
Q. Who is a “guardian ad litem”? he may object during trial that questions asked of the child are not
appropriate to his developmental level.
A. A person appointed by the court where the case is pending for a child
who is a victim of, accused of, or a witness to a crime to protect the best (d) The guardian ad litem may communicate concerns regarding the
interests of the said child. child to the court through an officer of the court designated for that
purpose.
Q. What are the powers and functions of the Guardian Ad Litem?
(e) The guardian ad litem shall not testify in any proceeding
concerning any information, statement, or opinion received from the
A. Section 5. Guardian ad litem. –
child in the course of serving as a guardian ad litem, unless the court
(a) The court may appoint a guardian ad litem for a child who is a
finds it necessary to promote the best interests of the child.
victim of, accused of, or a witness to a crime to promote the best
interests of the child. In making the appointment, the court shall
(f) The guardian ad litem shall be presumed to have acted in good faith
consider the background of the guardian ad litem and his familiarity
in compliance with his duties described in sub-section (b).
with the judicial process, social service programs, and child
development, giving preference to the parents of the child, if qualified.
Q. What are “the best interests of the child”?
The guardian ad litem may be a member of the Philippine Bar. A
person who is a witness in any proceeding involving the child cannot
A. The totality of the circumstances and conditions as are most congenial
be appointed as a guardian ad litem.
to the survival, protection, and feelings of security of the child and
most encouraging to his physical, psychological, and emotional

development. It also means the least detrimental available alternative who can serve as an interpreter for the child, he shall not be
for safeguarding the growth and development of the child. disqualified and may serve as the interpreter of the child. The
interpreter, however, who is also a witness, shall testify ahead of the
Q. What is the rule with regard to the qualification of the child as a child
witness?
(c) An interpreter shall take an oath or affirmation to make a true and
A. Every child is presumed qualified to be a witness. However, the court accurate interpretation.
shall conduct a competency examination of a child, motu proprio or on
motion of a party, when it finds that substantial doubt exists regarding Q. When may the court appoint a facilitator to ask questions to the child?
the ability of the child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the duty to tell the A. Section 10. Facilitator to pose questions to child.
truth in court. (a) The court may, motu proprio or upon motion, appoint a facilitator if
it determines that the child is unable to understand or respond to
Q. Who must prove the need for competency examinations? questions asked. The facilitator may be a child psychologist,
psychiatrist, social worker, guidance counselor, teacher, religious
A. A party seeking a competency examination must present proof of leader, parent, or relative.
necessity of competency examination. The age of the child by itself is
(b) If the court appoints a facilitator, the respective counsels for the
not a sufficient basis for a competency examination. Moreover, to rebut
parties shall pose questions to the child only through the facilitator.
the presumption of competence enjoyed by a child, the burden of proof
The questions shall either be in the words used by counsel or, if the
lies on the party challenging his competence.
child is not likely to understand the same, in words that are
comprehensible to the child and which convey the meaning intended
Q. Is the competency examination a final determination as to the
by counsel.
competence of the child?
(c) The facilitator shall take an oath or affirmation to pose questions to
A. No. The court has the duty of continuously assessing the competence of the child according to the meaning intended by counsel.
the child throughout his testimony.
Q. Who is a “support person”?
Q. When may the court appoint an interpreter for the child?
A. Person chosen by the child to accompany him to testify at or attend a
A. Section 9. Interpreter for child. - judicial proceeding or disposition to provide emotional support for him.
(a) When a child does not understand the English or Filipino language
or is unable to communicate in said languages due to his Q. What are the rules relevant to support persons?
developmental level, fear, shyness, disability, or other similar reason,
an interpreter whom the child can understand and who understands A. Section 11. Support persons. –
the child may be appointed by the court, motu proprio or upon motion, (a) A child testifying at a judicial proceeding or making a deposition
to interpret for the child. shall have the right to be accompanied by one or two persons of his
own choosing to provide him emotional support. (1) Both support
(b) If a witness or member of the family of the child is the only person persons shall remain within the view of the child during his testimony.

(2) One of the support persons may accompany the child to the witness A. Yes. The court shall permit a child to use dolls, anatomically-correct
stand, provided the support person does not completely obscure the dolls, puppets, drawings, mannequins, or any other appropriate
child from the view of the opposing party, judge, or hearing officer. (3) demonstrative device to assist him in his testimony.
The court may allow the support person to hold the hand of the child
or take other appropriate steps to provide emotional support to the Q. May the child be allowed to have an “emotional security item”?
child in the course of the proceedings. (4) The court shall instruct the
support persons not to prompt, sway, or influence the child during his A. Yes. While testifying, a child shall be allowed to have an item of his
testimony. own choosing such as a blanket, toy, or doll.
(b) If the support person chosen by the child is also a witness, the court Q. Does the examination of the child need to follow strictly the usual
may disapprove the choice if it is sufficiently established that the procedure for examination of witnesses?
attendance of the support person during the testimony of the child
would pose a substantial risk of influencing or affecting the content of A. No. Some exceptions are:
the testimony of the child. 1. The court may allow leading questions in all stages of examination
of a child if it will further the interests of justice
Q. May the courtroom environment be adjusted to make the child more 2. The court may allow the child witness to testify in a narrative form
comfortable? 3. Objections must be couched in a manner so as not to mislead,
confuse, frighten, or intimidate the child.
A. Yes. Section 13 says: “To create a more comfortable environment for
the child, the court may, in its discretion, direct and supervise the Q. Does the child witness’ testimony need to be corroborated?
location, movement and deportment of all persons in the courtroom
including the parties, their counsel, child, witnesses, support persons, A. No. His / her testimony, if credible by itself, shall be sufficient.
guardian ad litem, facilitator, and court personnel. The child may be
allowed to testify from a place other than the witness chair. The Q. On what grounds may the court exclude the public during the
witness chair or other place from which the child testifies may be examination of a child witness?
turned to facilitate his testimony but the opposing party and his
counsel must have a frontal or profile view of the child during the A. Such an order may be made to protect the right to privacy of the child
testimony of the child. The witness chair or other place from which the or if the court determines on the record that requiring the child to
child testifies may also be rearranged to allow the child to see the testify in open court would cause psychological harm to him, hinder
opposing party and his counsel, if he chooses to look at them, without the ascertainment of truth, or result in his inability to effectively
turning his body or leaving the witness stand. The judge need not communicate due to embarrassment, fear, or timidity.
wear his judicial robe. Nothing in this section or any other provision of
law, except official in-court identification provisions, shall be construed Q. Does the child need to testify inside the courtroom?
to require a child to look at the accused. Accommodations for the child
under this section need not be supported by a finding of trauma to the A. No. The prosecutor, counsel or the guardian ad litem may apply for an
child.” order that the testimony of the child be taken in a room outside the
courtroom and be televised to the courtroom by live-link television.
Q. May the child use “testimonial aids” during his / her testimony?
Also, the judge may question the child in chambers, or in some

comfortable place other than the courtroom, in the presence of the
support person, guardian ad litem, prosecutor, and counsel for the Q. What is the Sexual Abuse Shield Rule?
parties. The questions of the judge shall not be related to the issues at
trial but to the feelings of the child about testifying in the courtroom. A. Section 30. Sexual abuse shield rule. -
(a) Inadmissible evidence. - The following evidence is not admissible in
Q. What are the grounds to allow testimony by live-link television? any criminal proceeding involving alleged child sexual abuse: (1)
Evidence offered to prove that the alleged victim engaged in other
A. If there is a substantial likelihood that the child would suffer trauma sexual behavior; and (2) Evidence offered to prove the sexual
from testifying in the presence of the accused, his counsel or the predisposition of the alleged victim.
prosecutor as the case may be.
(b) Exception. - Evidence of specific instances of sexual behavior by the
Q. What other similar measures may the court take aside from live-link alleged victim to prove that a person other than the accused was the
television? source of semen, injury, or other physical evidence shall be admissible.
A. The prosecutor or the guardian ad litem may apply for an order that A party intending to offer such evidence must: (1) File a written
the chair of the child or that a screen or other device be placed in the motion at least fifteen (15) days before trial, specifically describing the
courtroom in such a manner that the child cannot see the accused evidence and stating the purpose for which it is offered, unless the
while testifying. If the court grants an application to shield the child court, for good cause, requires a different time for filing or permits
from the accused while testifying in the courtroom, the courtroom shall filing during trial; and (2) Serve the motion on all parties and the
be arranged to enable the accused to view the child. guardian ad litem at least three (3) days before the hearing of the
motion. Before admitting such evidence, the court must conduct a
Q. May the testimony of the child be given through videotaped hearing in chambers and afford the child, his guardian ad litem, the
deposition? parties, and their counsel a right to attend and be heard. The motion
A. Yes. If the court finds that the child will not be able to testify in open and the record of the hearing must be sealed and remain under seal
court at trial, it shall issue an order that the deposition of the child be and protected by a protective order set forth in section 31(b). The child
taken and preserved by videotape. shall not be required to testify at the hearing in chambers except with
his consent.
Q. Does the hearsay rule apply to children’s testimony?
Q. How is the privacy of the child protected?
A. Not strictly, in child abuse cases. A statement made by a child
A. Any records regarding the child shall be confidential and kept under
describing any act or attempted act of child abuse, not otherwise
seal. Except upon written request and order of the court, the record
admissible under the hearsay rule, may be admitted in evidence in any
may only be released to certain persons under Section 31(a). Moreover,
criminal or non-criminal proceeding subject to certain rules found in
any videotape or audiotape of a child that is part of the court record
Section 28 (a)
shall be under a protective order as provided by Section 31(b). The
court may issue additional protection orders to protect the child’s
Q. May the court admit videotape and audiotape interviews as evidence?
privacy. Whoever publishes or causes to be published the identifying
information of the child or the immediate family of the child shall be
A. Yes, under certain conditions imposed under Section 29.
liable to the contempt power of the court. Any videotape or audiotape

Art. 228-233 PARENTAL AUTHORITY 317 Art. 234-237 EMANCIPATION AND AGE OF MAJORITY 318
Suspension or Termination of Parental Authority
of a child made part of the court record shall be destroyed after 5 years Q. What happens when a person between 18 to 21 decides to marry
from the date of entry of judgment. without the consent of his/her parents? Is the marriage valid, void, or
voidable?
Q. How are the ordinary rules of Court applied?
A. Valid, Art. 236 of the Family Code does not make parental consent an
A. Suppletorily. essential requirement nor a formal requirement of marriage in the
sense that its absence will render the marriage void. The requirement
TITLE X of parental consent in case of marriage is a recognition of Filipino
EMANCIPATION AND AGE OF MAJORITY culture and tradition.
Art. 234. Emancipation takes place by the attainment of Art. 237. The annulment or declaration of nullity of the
majority. Unless otherwise provided, majority marriage of a minor or of the recorded agreement
commences at the age of twenty-one years. mentioned in the foregoing. Articles 234 and 235 shall
Emancipation also takes place: revive the parental authority over the minor but shall
(1) By the marriage of the minor; or not affect acts and transactions that took place prior to
(2) By the recording in the Civil Register of an the recording of the final judgment in the Civil Register.
agreement in a public instrument executed by the parent (n)
exercising parental authority and the minor at least
eighteen years of age. Such emancipation shall be
irrevocable. (397a, 398a, 400a, 401a)
TITLE XI
Art. 235. The provisions governing emancipation by SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
recorded agreement shall also apply to an orphan minor
and the person exercising parental authority but the Chapter 1
agreement must be approved by the court before it is Prefatory Provisions
recorded. (n)
Art. 238. Until modified by the Supreme Court, the
Q. Define emancipation? procedural rules provided for in this Title shall apply as
regards separation in fact between husband and wife,
A. Emancipation takes place by the attainment of majority. In the abandonment by one of the other, and incidents
Philippines, majority is attained at the age of 18 years. involving parental authority. (n)
Art. 236. Emancipation for any cause shall terminate Chapter 2

parental authority over the person and property of the Separation in Fact
child who shall then be qualified and responsible for all
acts of civil life. (412a) Art. 239. When a husband and wife are separated in fact,
or one has abandoned the other and one of them seeks
judicial authorization for a transaction where the

Art. 238-253 SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW 319 Art. 238-253 SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW 320
consent of the other spouse is required by law but such

consent is withheld or cannot be obtained, a verified Art. 243. A preliminary conference shall be conducted by
petition may be filed in court alleging the foregoing facts. the judge personally without the parties being assisted
by counsel. After the initial conference, if the court
The petition shall attach the proposed deed, if any, deems it useful, the parties may be assisted by counsel at
embodying the transaction, and, if none, shall describe in the succeeding conferences and hearings. (n)
detail the said transaction and state the reason why the
required consent thereto cannot be secured. In any case, Art. 244. In case of non-appearance of the spouse whose
the final deed duly executed by the parties shall be consent is sought, the court shall inquire into the reasons
submitted to and approved by the court. (n) for his failure to appear, and shall require such
appearance, if possible. (n)
Q. What is the remedy of a wife separated in fact with his husband who
wants a portion of their conjugal partnership of gains disposed to Art. 245. If, despite all efforts, the attendance of the non-
support the needs of their child when the husband, just to spite the consenting spouse is not secured, the court may proceed
wife, does not agree to the alienation? ex parte and render judgment as the facts and
circumstances may warrant. In any case, the judge shall
A. The wife may seek judicial approval (Art. 239). The petition should be endeavor to protect the interests of the non-appearing
verified and must detail the transaction and state the reason why the spouse. (n)
required consent thereto cannot be secured.
Art. 246. If the petition is not resolved at the initial
Art. 240. Claims for damages by either spouse, except conference, said petition shall be decided in a summary
costs of the proceedings, may be litigated only in a hearing on the basis of affidavits, documentary evidence
separate action. (n) or oral testimonies at the sound discretion of the court. If
testimony is needed, the court shall specify the witnesses
Art. 241. Jurisdiction over the petition shall, upon proof to be heard and the subject-matter of their testimonies,
of notice to the other spouse, be exercised by the proper directing the parties to present said witnesses. (n)
court authorized to hear family cases, if one exists, or in
the regional trial court or its equivalent sitting in the Q. What is the nature of proceedings for cases involving properties of
place where either of the spouses resides. (n) spouses?
Art. 242. Upon the filing of the petition, the court shall A. Summary proceedings. (Art. 246)
notify the other spouse, whose consent to the transaction
is required, of said petition, ordering said spouse to show Art. 247. The judgment of the court shall be immediately
cause why the petition should not be granted, on or final and executory. (n)
before the date set in said notice for the initial
conference. The notice shall be accompanied by a copy of Art. 248. The petition for judicial authority to administer
the petition and shall be served at the last known or encumber specific separate property of the
address of the spouse concerned. (n) abandoning spouse and to use the fruits or proceeds

Art. 238-253 SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW 321 Art. 238-253 SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW 322
thereof for the support of the family shall also be Civil Code of the Philippines, as amended, and Articles
governed by these rules. (n) 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential
Decree No. 603, otherwise known as the Child and Youth
Chapter 3. Incidents Involving Parental Authority Welfare Code, as amended, and all laws, decrees,
executive orders, proclamations, rules and regulations,
Art. 249. Petitions filed under Articles 223, 225 and 235 of or parts thereof, inconsistent herewith are hereby
this Code involving parental authority shall be verified.. repealed.
(n)
Art. 255. If any provision of this Code is held invalid, all
Art. 250. Such petitions shall be verified and filed in the the other provisions not affected thereby shall remain
proper court of the place where the child resides. (n) valid.
Art. 251. Upon the filing of the petition, the court shall Art. 256. This Code shall have retroactive effect insofar as
notify the parents or, in their absence or incapacity, the it does not prejudice or impair vested or acquired rights
individuals, entities or institutions exercising parental in accordance with the Civil Code or other laws.
authority over the child. (n)
Art. 257. This Code shall take effect one year after the
Art. 252. The rules in Chapter 2 hereof shall also govern completion of its publication in a newspaper of general
summary proceedings under this Chapter insofar as they circulation, as certified by the Executive Secretary,
are applicable. (n) Office of the President.
Q. How about cases involving parental authority? Publication shall likewise be made in the Official
Gazette.
A. Summary proceedings. This is for the benefit of the child. (Art 252)
R.A. No. 8369
Chapter 3 FAMILY COURTS
Incidents Involving Parental Authority
Q. Where shall Family Courts be established?
Art. 253. The foregoing rules in Chapter 2 and 3 hereof
shall likewise govern summary proceedings filed under A. It shall be established in every province and city in the country. If the
Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are city is the capital of the province, the Family Court shall be
applicable. established in the municipality with the highest population. (Sec. 3)
TITLE XII Q. What are the qualifications of Family Court Judges?

FINAL PROVISIONS
A. He/she must be a natural-born citizen of the Philippines, at least 35
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of years of age, and has been engaged in the practice of law in the
Book I of Republic Act No. 386, otherwise known as the Philippines for at least 10 years, or has held a public office in the

FAMILY COURTS 323 FAMILY COURTS 324
Philippines which requires admission to the practice of law as an Q. What is the Social Services Counseling Division (SSCD)?
indispensable requisite. (Sec. 4)
A. The SSCD, under the guidance of the DSWD, as established in each
Q. What are the cases falling under the exclusive jurisdiction of Family judicial region as the Supreme Court deems necessary, is tasked with
Courts? providing appropriate social services to all juvenile and family cases
filed with the court and recommend the proper social action. It shall
A. See Section 5 of RA 8369. also develop programs, formulate uniform policies and procedures, and
provide technical supervision and monitoring of all SSCD in
Q. What are the cases falling under the concurrent jurisdiction of Family coordination with the judge. (Sec. 9)
Courts?
Q. What is the composition of the SSCD?
A. In cases of habeas corpus involving minors, Family Courts, the
Supreme Court, and the Court of Appeals have concurrent jurisdiction. A. The SSCD shall be composed of qualified social workers and other
(Madrinan v Madrinan, GR No. 159374, July 12, 2007, 527 SCRA personnel with academic preparation in behavioral sciences. (Sec. 9)
487)
Q. In areas where there is no Family Court, who handles juvenile and
Q. What are the special provisional remedies which a Family Court may family cases filed in the RTC?
grant?
A. The DSWD shall designate and assign qualified workers of the local
A. Family Court may issue a restraining order in cases of violence among government units. (Sec. 10)
immediate family members living in the same domicile or household.
It may also order the temporary custody of children in all civil action Q. How are the decisions and orders of the Family Courts appealed?
for their custody. The court may also order support pendent lite,
including deduction from salary and use of conjugal home and other A. They shall be appealed in the same manner and subject to the same
properties in all civil actions for support. (Sec. 7) conditions as appeals from the ordinary RTC. (Sec. 14)
Q. When can a Family Court issue a restraining order? TITLE X

FUNERALS
A. The Family Court may issue restraining order against the accused or
defendant upon verified application or defendant upon a verified Article 305. The duty and the right to make
application by the complainant or the victim for relief from abuse. (Sec. arrangements for the funeral of a relative shall be in
7) accordance with the order established for support, under
article 294. In case of descendants of the same degree, or
Q. Who has direct control and supervision of youth detention homes of brothers and sisters, the oldest shall be preferred. In
established by the LGU? case of ascendants, the paternal shall have a better right.
A. The judge of the Family Court. (Sec. 8) Q. Who has the duty and the right to make arrangements for a deceased
relative’s funeral?

Art. 305-310 CIVIL CODE OF THE PHILIPPINES 325 Art. 305-310 CIVIL CODE OF THE PHILIPPINES 326
Funerals Funerals
Q. What happens if a person allows disrespect to the dead or wrongfully

A. This duty and right shall fall first on the spouse; and in his or her interferes with a funeral?
absence or incapacity, on the descendants in the nearest degree. In
their absence or incapacity, it shall fall on the ascendants in the A. That person shall be made liable to the family of the deceased for
nearest degree and the paternal shall be preferred. In the absence of material and moral damages. (Art. 309)
all these persons, the duty and right shall fall on the brothers and
sisters and the oldest shall be preferred. (Art. 294 and 305) Article 310. The construction of a tombstone or
mausoleum shall be deemed a part of the funeral
Article 306. Every funeral shall be in keeping with the expenses, and shall be chargeable to the conjugal
social position of the deceased. partnership property, if the deceased is one of the
spouses.
Article 307. The funeral shall be in accordance with the
expressed wishes of the deceased. In the absence of such Q. How shall the expenses for the construction of a tombstone or
expression, his religious beliefs or affiliation shall mausoleum be treated?
determine the funeral rites. In case of doubt, the form of
the funeral shall be decided upon by the person obliged A. They are deemed part of the funeral expenses. If the deceased is one of
to make arrangements for the same, after consulting the the spouses shall be chargeable to the conjugal partnership property.
other members of the family.
TITLE XII
Q. How shall the funeral rites be executed? CARE AND EDUCATION OF CHILDREN
A. The funeral shall be in keeping with the social position of the deceased. Article 356. Every child:
The expressed wishes of the deceased shall be primarily followed. In (1) Is entitled to parental care;
its absence, is/her religious beliefs or affiliation shall determine the (2) Shall receive at least elementary education;
funeral rites. In case of doubt, the form of the of the funeral shall be (3) Shall be given moral and civic training by the
decided by the person obliged to make the arrangements, after parents or guardian;
consulting with the other family members. (Art. 307) (4) Has a right to live in an atmosphere conducive to
his physical, moral and intellectual development.
Article 308. No human remains shall be retained,
interred, disposed of or exhumed without the consent of Q. What are the rights of a child?
the persons mentioned in articles 294 and 305.
A. Every child is entitled to (1) parental care, (2) receive at least
Article 309. Any person who shows disrespect to the elementary education, (3) moral and civic training by parents or
dead, or wrongfully interferes with a funeral shall be guardians, and (4) the right to live in an atmosphere conducive to his
liable to the family of the deceased for damages, material physical, moral and intellectual development. (Art. 356)
and moral.
Article 357. Every child shall:

Care and Education of Children Care and Education of Children
(1) Obey and honor his parents or guardian; (1) Schools in every barrio, municipality and city
(2) Respect his grandparents, old relatives, and where optional religious instruction shall be taught as
persons holding substitute parental authority; part of the curriculum at the option of the parent or
(3) Exert his utmost for his education and training; guardian;
(4) Cooperate with the family in all matters that (2) Puericulture and similar centers;
make for the good of the same. (3) Councils for the Protection of Children; and
(4) Juvenile courts.
Q. What are the duties of a child?
Q. What is the responsibility of the government to the child?
A. Every child shall: (1) obey and honor his parents or guardians, (2)
respect his grandparents, old relatives , and persons holding substitute A. The government promotes the faculties of every child. Whenever
parental authority, (3) exert utmost for his education and training, and possible, it shall establish (1) schools in every barrio, municipality and
(4) cooperate with the family in all matters that make for the good of city where religious instruction shall be taught at the option of the
the same. (Art. 357) parents or guardians (2) puericulture and similar centers, (3) Council
for the Protection of Children And (3) Juvenile Courts. (Art. 359)
Article 358. Every parent and every person holding
substitute parental authority shall see to it that the Article 360. The Council for the Protection of Children
rights of the child are respected and his duties complied shall look after the welfare of children in the
with, and shall particularly, by precept and example, municipality. It shall, among other functions:
imbue the child with highmindedness, love of country, (1) Foster the education of every child in the
veneration for the national heroes, fidelity to democracy municipality;
as a way of life, and attachment to the ideal of permanent (2) Encourage the cultivation of the duties of
world peace. parents;
(3) Protect and assist abandoned or mistreated
Q. What are the responsibilities of a parent and every person holding children, and orphans;
substitute parental authority? (4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
A. They shall see to it that the rights of the child are respected and his (6) Promote the opening and maintenance of
duties complied with. They shall, by example, imbue the child with playgrounds;
high mindedness, love of country, veneration for national heroes, (7) Coordinate the activities of organizations
fidelity to democracy as a way of life, and attachment to the ideal of devoted to the welfare of children, and secure their
permanent world peace. (Art. 358) cooperation.
Article 359. The government promotes the full growth of Q. What is the Council for the Protection of Children?
the faculties of every child. For this purpose, the
government will establish, whenever possible:

Care and Education of Children Civil Register
A. It is the body entrusted with the function to look after the welfare of A. 1) The given or proper name and 2) the surname or family name. The
the children in the municipality. See Article 360 for the enumeration of given or proper name is that which is given to the individual at birth
the functions of the Council. or at baptism. The surname or family is that which identifies the
family to which he belongs and is continued from parent to child. (In
Article 361. Juvenile courts will be established, as far as the matter of the adoption of Stephanie Nathy Astorga Garcia 454
practicable, in every chartered city or large municipality. SCRA 541 March 31, 2005)
Q. What happens if a child is found delinquent by any court? Q. How is one’s name constituted?
A. The father, mother, or guardian may, in proper cases, be judicially A. The given name may be freely selected by the parents for the child
admonished. (Art. 361) while the surname is fixed by law.
Article 362. Whenever a child is found delinquent by any Q. What is the significance of the middle name of a person?
court, the father, mother, or guardian may in a proper
case be judicially admonished. A. It serves to identify the maternal lineage or filiation of a person and
further distinguishes the person from another who may have the same
Article 363. In all questions on the care, custody, given and surname.
education and property of children the latter's welfare
shall be paramount. No mother shall be separated from Q. May a legitimate / legitimated child use the surname of his / her
her child under seven years of age, unless the court finds mother?
compelling reasons for such measure.
A. Yes. The word “principally” in Art.364 is not equivalent to
Q. What shall be considered in questions of care, custody, education and “exclusively”. There is no legal bar to a child who opts to choose the
property of children? surname of his / her mother. (Alfon v. Republic 97 SCRA 858 May 29,
1980)
A. In such cases, the child’s welfare is paramount. In cases of custody, the
mother shall not be separated from her child, unless the court finds Article 365. An adopted child shall bear the surname of
compelling reasons for such measure. (Art. 363) the adopter.
TITLE XIII Article 366. A natural child acknowledged by both

USE OF SURNAMES parents shall principally use the surname of the father. If
recognized by only one of the parents, a natural child
Article 364. Legitimate and legitimated children shall shall employ the surname of the recognizing parent.
principally use the surname of the father.
Article 367. Natural children by legal fiction shall
Q. What constitutes the name of an individual? principally employ the surname of the father.

Civil Register Civil Register
Article 368. Illegitimate children referred to in article 287

shall bear the surname of the mother. Article 371. In case of annulment of marriage, and the
wife is the guilty party, she shall resume her maiden
Article 369. Children conceived before the decree name and surname. If she is the innocent spouse, she
annulling a voidable marriage shall principally use the may resume her maiden name and surname. However,
surname of the father. she may choose to continue employing her former
husband's surname, unless:
Q. May illegitimate children use the surname of their father? (1) The court decrees otherwise, or
(2) She or the former husband is married again to
A. Yes. Illegitimate children may use the surname of their father if their another person.
filiation has been expressly recognized by the father through the
record of birth appearing in the civil register or when an admission in Article 372. When legal separation has been granted, the
a public document or private handwritten instrument is made by the wife shall continue using her name and surname
father. employed before the legal separation.
Article 370. A married woman may use: Article 373. A widow may use the deceased husband's
(1) Her maiden first name and surname and add her surname as though he were still living, in accordance
husband's surname, or with article 370.
(2) Her maiden first name and her husband's
surname or Article 374. In case of identity of names and surnames,
(3) Her husband's full name, but prefixing a word the younger person shall be obliged to use such
indicating that s she is his wife, such as "Mrs." additional name or surname as will avoid confusion.
Q. May a married woman maintain her name and surname? Article 375. In case of identity of names and surnames
between ascendants and descendants, the word "Junior"
A. Yes. Art. 370 is directory and permissive in character. A married can be used only by a son. Grandsons and other direct
woman can maintain her name and surname or follow any of the male descendants shall either:
names in Art. 370. (1) Add a middle name or the mother's surname, or
(2) Add the Roman numerals II, III, and so on.
Q. May a married woman who used her husband’s surname in her
passport revert to using her maiden surname in case of renewal? Q. May a female person use the word “Junior” in her name?
A. No. Under R.A No. 8239, a married woman who initially used the A. No. Under Art. 375, the word “Junior” can be used only by a son. N.B:
surname of her husband in her passport can revert to her maiden RA No. 10172 has amended Sec.1 of RA No. 9048, “SECTION 1.
surname in subsequent renewals only if the marriage were annulled Authority to Correct Clerical or Typographical Error and Change of
or nullified or the woman obtained a valid divorce abroad. (Remo v. First Name or Nickname. – No entry in a civil register shall be
Honorable Secretary of Foreign Affairs, GR No.169202, March 5, 2010) changed or corrected without a judicial order, except for clerical or

typographical errors and change of first name or nickname, the day there is no injury to third persons. Pen names and stage
and month in the date of birth or sex of a person where it is names cannot be usurped.
patently clear that there was a clerical or typographical error
or mistake in the entry, which can be corrected or changed by the Article 380. Except as provided in the preceding article,
concerned city or municipal civil registrar or consul general in no person shall use different names and surnames.
accordance with the provisions of this Act and its implementing rules
and regulations.” Q. Is the employment of pen names or stage names allowed?
Article 376. No person can change his name or surname A. Yes. Provided that it is done in good faith and there is no injury to
without judicial authority. third persons.
Article 377. Usurpation of a name and surname may be TITLE XIV

the subject of an action for damages and other relief. ABSENCE
Article 378. The unauthorized or unlawful use of another Chapter 1

person's surname gives a right of action to the latter. Provisional Measures in Case of Absence
Q. May a male person who became biologically a woman through sexual Article 381. When a person disappears from his domicile,
reassignment use this as a ground to change his name? his whereabouts being unknown, and without leaving an
agent to administer his property, the judge, at the
A. No. A person’s sex is immutable from birth. (Silverio v. Republic 537 instance of an interested party, a relative, or a friend,
SCRA 373 October 19, 2007) N.B: In Republic v. Cagandahan (565 may appoint a person to represent him in all that may be
SCRA 72), a change was allowed by the S.C where the person did not necessary.
undergo sexual reassignment in a case where the person was found to
have Congenital Adrenal Hyperplasia (CAH) which was a rare This same rule shall be observed when under similar
biological condition where the person had the sex organs of a male and circumstances the power conferred by the absentee has
a female, had no menstruation, no breasts as a woman, and was expired. (181a)
wanting in woman-hormones.
Article 382. The appointment referred to in the preceding
Q. Does a change of name alter the status of persons? article having been made, the judge shall take the
necessary measures to safeguard the rights and interests
A. No. A change of name does not alter family relations, rights or duties, of the absentee and shall specify the powers, obligations
legal capacity, civil status or citizenship. (Calderon v. Republic, 19 and remuneration of his representative, regulating them,
SCRA 721) according to the circumstances, by the rules concerning
guardians. (182)
Article 379. The employment of pen names or stage
names is permitted, provided it is done in good faith and

Article 383. In the appointment of a representative, the

spouse present shall be preferred when there is no legal Article 386. The judicial declaration of absence shall not
separation. take effect until six months after its publication in a
newspaper of general circulation. (186a)
If the absentee left no spouse, or if the spouse present is a
minor, any competent person may be appointed by the Q. Whose interests does a Judicial Declaration of absence protect?
court. (183a)
A. Interested persons, including the absentee.
Q. Is court appointment of a representative necessary?
Q. What is the effect of a Judicial Declaration of absence to the present
A. Yes. It should be by way of a court order. Ablang v. Fernandez, 25 Phil. spouse?
33
A. It is a cause for an involuntary judicial separation of property between
Q. Is the phrase “spouse present is a minor” still effective? spouses under Art. 135 of the Family Code. Furthermore, it is a
ground for the transfer of all classes of exclusive properties of a spouse
A. No. It has been repealed by R.A. No. 6809 which lowered the to his or her other spouse under Art. 142 of the Family Code. Lastly, it
emancipation age to 18. is a basis for the termination of parental authority under Art. 224 of
the Family Code.
Chapter 2
Declaration of Absence Q. When should the absence of the absentee be counted?
Article 384. Two years having elapsed without any news A. Date on which the last news of the absentee was received. (Jones v.
about the absentee or since the receipt of the last news, Hortiguela, 64 Phil. 179)
and five years in case the absentee has left a person in
charge of the administration of his property, his absence Chapter 3
may be declared. (184) Administration of the Property of the Absentee
Article 385. The following may ask for the declaration of Article 387. An administrator of the absentee's property
absence: shall be appointed in accordance with article 383. (187a)
(1) The spouse present;
(2) The heirs instituted in a will, who may present Article 388. The wife who is appointed as an
an authentic copy of the same; administratrix of the husband's property cannot alienate
(3) The relatives who may succeed by the law of or encumber the husband's property, or that of the
intestacy; conjugal partnership, without judicial authority. (188a)
(4) Those who may have over the property of the
absentee some right subordinated to the condition of his Q. Does Art. 388 likewise prohibit the husband from alienating properties
death. (185) of the wife without her consent?

Article 391. The following shall be presumed dead for all

A. Yes. Under the Family Code, rights of the spouses as to their purposes, including the division of the estate among the
respective exclusive properties are respected. heirs:
(1) A person on board a vessel lost during a sea
Article 389. The administration shall cease in any of the voyage, or an aeroplane which is missing, who has not
following cases: been heard of for four years since the loss of the vessel or
(1) When the absentee appears personally or by aeroplane;
means of an agent; (2) A person in the armed forces who has taken part
(2) When the death of the absentee is proved and his in war, and has been missing for four years;
testate or intestate heirs appear; (3) A person who has been in danger of death under
(3) When a third person appears, showing by a other circumstances and his existence has not been
proper document that he has acquired the known for four years. (n)
absentee's property by purchase or other title.
Article 392. If the absentee appears, or without appearing
In these cases the administrator shall cease in the his existence is proved, he shall recover his property in
performance of his office, and the property shall be at the the condition in which it may be found, and the price of
disposal of those who may have a right thereto. (190) any property that may have been alienated or the
property acquired therewith; but he cannot claim either
Q. What is the purpose of appointing an administrator? fruits or rents. (194)
A. Protect the properties of the owner during his/her absence. Q. How should absence be understood?
Chapter 4 A. A person is not at the place of his domicile and his actual residence is
Presumption of Death unknown, and it is for this reason that his existence is doubtful.
Article 390. After an absence of seven years, it being Q. Is mere removal alone sufficient?
unknown whether or not the absentee still lives, he shall
be presumed dead for all purposes, except for those of A. No. Gorham v. Settegast, 98 SW 655
succession.
Q. Do you need to file a case to declare the presumption of death?
The absentee shall not be presumed dead for the purpose
of opening his succession till after an absence of ten A. General rule, No. Except for purposes of remarriage under Art. 41 of
years. If he disappeared after the age of seventy-five Family Code.
years, an absence of five years shall be sufficient in order
that his succession may be opened. (n) Q. Can a person claim under Art. 391 when a person fell into the sea
while on board a vessel and consequently drowned?

A. No because the vessel was not lost during a sea voyage. Caltex v. lapse of time fixed for prescription. In the record that is
Villanueva, 2 SCRA 897 made in the Registry of the real estate which accrues to
the coheirs, the circumstance of its being subject to the
Q. When does the presumption of death start? provisions of this article shall be stated. (197)
A. Time when the person was last heard of and not at the end of the Article 396. Those who may have entered upon the
period. inheritance shall appropriate the fruits received in good
faith so long as the absentee does not appear, or while his
Chapter 5. Effect of Absence Upon the Contingent Rights of the representatives or successors in interest do not bring the
Absentee proper actions. (198)
Article 393. Whoever claims a right pertaining to a TITLE XVI

person whose existence is not recognized must prove CIVIL REGISTER
that he was living at the time his existence was necessary
in order to acquire said right. (195) Article 407. Acts, events and judicial decrees concerning
the civil status of persons shall be recorded in the civil
Q. X made a donation of a house to Y to be given on January 5, 1990 and register. (325a)
likewise promised to give another donation of a specific car also to Y in
the event that Y would still be alive by January 2, 1991. If after Q. What are the duties of the local civil registrar?
December 25, 1990, Y was nowhere to be found, what are the rights of
the heirs? A.
a. file registerable certificates and documents presented to them for
A. The heirs of Y can claim that the car already belongs to Y after entry;
January 2, 1991 by proving that Y was alive on such date. b. compile the same monthly and prepare and send any information
required of them by the Civil Registrar General;
Article 394. Without prejudice to the provision of the c. issue certified transcripts or copies of any certificate or document
preceding article, upon the opening of a succession to registered, upon payment of the proper fees;
which an absentee is called, his share shall accrue to his d. order the binding, properly classified, of all certificates or documents
coheirs, unless he has heirs, assigns, or a representative. registered during the year;
They shall all, as the case may be, make an inventory of e. send to the Civil Registrar-General during the first ten days of each
the property. (196a) month, a copy of the entries made during the preceding month, for
filing;
Article 395. The provisions of the preceding article are f. index the same to facilitate search and identification in case any
understood to be without prejudice to the action of information is required; and
petition for inheritance or other rights which are vested g. administer oaths, free of charge, for civil register purposes (Section 12
in the absentee, his representatives or successors in of the Civil Registry Law, Act No. 3753).
interest. These rights shall not be extinguished save by

Article 408. The following shall be entered in the civil

register: A. Proofs which, if remaining unrebutted or uncontradicted, is sufficient
(1) Births; (2) marriages; (3) deaths; (4) legal separations; to maintain the fact such evidence seeks to substantiate. It creates a
(5) annulments of marriage; (6) judgments declaring presumption of fact. Malicden v. Republic, 12 SCRA 313
marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10) Article 411. Every civil registrar shall be civilly
naturalization; (11) loss, or (12) recovery of citizenship; responsible for any unauthorized alteration made in any
(13) civil interdiction; (14) judicial determination of civil register, to any person suffering damage thereby.
filiation; (15) voluntary emancipation of a minor; and (16) However, the civil registrar may exempt himself from
changes of name. (326a) such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful
Article 409. In cases of legal separation, adoption, alteration. (n)
naturalization and other judicial orders mentioned in
the preceding article, it shall be the duty of the clerk of Article 412. No entry in a civil register shall be changed
the court which issued the decree to ascertain whether or corrected, without a judicial order. (n)
the same has been registered, and if this has not been
done, to send a copy of said decree to the civil registry of Q. Is Art. 412 still good law?
the city or municipality where the court is functioning.
(n) A. No. It has been amended by R.A. No. 9048
Article 410. The books making up the civil register and Q. What does clerical error mean?
all documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts A. Error in copying or writing. (Yu v. Republic 21 SCRA 1018)
therein contained. (n)
Q. Does a change in civil status and nationality involve a clerical error?
Q. Can the local civil registrar allow the removal of documents
entrusted to his A. No. It is a substantial change which has to pass through judicial
care? proceedings
A. No except by court order. Article 413. All other matters pertaining to the
registration of civil status shall be governed by special
Q. Does the Civil Register Law provide for constructive notice to all laws. (n)
persons of any document filed in the Office of the Local Civil Registrar
or Office of the Civil Registrar General?
A. No.
Q. What does prima facie evidence mean?

Art. 407-413 CIVIL CODE OF THE PHILIPPINES 343
Civil Register
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PERSONS AND FAMILY

CIVIL LAW REVIEW 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

Article 10. In case of doubt in the interpretation or

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

Q. If a married Filipino obtains a decree of divorce from abroad, may

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

Q. What kind of entities can invoke Article 25?

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

the absence of any declaration to that effect, it may be

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

14. The right to be a free from involuntary servitude

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

Article 37. Juridical capacity, which is the fitness to be

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

Q. As a juridical person, what can a state do? Q. What is a corporation?

Q. How can the consent of the state be given? Q. What is a partnership?

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

A. Domicile denotes a fixed permanent residence to which, when absent,

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

evinced a sincere desire to learn and embrace all customs,

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

TITLE I Q. Describe Marriage as a right recognized by law.

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

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A. No. There is no LEGITIMATE BUSINESS CONCERN shown in Property Relations

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

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CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

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CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

birth certificates or, in default thereof, the baptismal

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

been sought, together with the written advice given, if

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

Q. What is the effect on the marriage if there is no parental advice given

Q. What is the effect on the marriage if the contracting parties fail to

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

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But when the photocopy of the marriage certificate is not certified by

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

where they were solemnized, and valid there as such,

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

Q. What is the status in the Philippines of a marriage contracted abroad

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

Q. A couple files an affidavit claiming that they have cohabited as

A. The marriage is null and void. In De Castro v. Assidao-De Castro, G.R.

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CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012

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known the obligations he was assuming, or knowing them, could

CIVIL LAW REVIEW 4B 2012 CIVIL LAW REVIEW 4B 2012