UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

answerable in damages in accordance with

III. Marriage And Article 21 aforesaid. [Wassmer vs Velez (1964)]
Personal Relationship Article 21 may be applied in a breach of
promise to marry where the woman is a
Between Spouses victim of moral seduction. [Baksh vs CA
(1993)]
A. CONCEPT OF MARRIAGE
C. REQUISITES
Art. 1, FC. Marriage is a special contract of
permanent union between a man and a C.1. KINDS OF REQUISITES AND EFFECTS
woman entered into in accordance with law OF NON-COMPLIANCE
for the establishment of conjugal and family
life. It is the foundation of the family and an Essential Requisites Formal Requisites (Art.
inviolable social institution whose nature, (Art. 2) 3)
consequences, and incidents are governed by
law and not subject to stipulation, except Legal Capacity of Authority of
that marriage settlements may fix the the contracting solemnizing officer
property relations during the marriage within parties, who must
the limits provided by this Code. be a male and a
1987 Con stitu tion Article XV, Section female
2 . Marriage, as an inviolable social
institution, is the foundation of the family Consent (of the A valid marriage
and shall be protected by the State. parties) freely given license
in the presence of a
(subject to exceptions)
solemnizing officer.

Marriage is an institution, in the maintenance Marriage Ceremony

of which in its purity the public is deeply
interested. It is a relation for life and the
parties cannot terminate it at any shorter
period by virtue of any contract they may Exceptions for a valid marriage license:
make .The reciprocal rights arising from this
(1) Marriages in articulo mortis or when one
relation, so long as it continues, are such as or both parties are at the point of death,
the law determines from time to time, and
none other. [Goitia vs Campos Rueda (1916)] (2) Marriage in isolated places with no
available means of transportation,
(3) Marriage among Muslims or other
B. AGREEMENTS PRIOR TO MARRIAGE ethnic cultural communities,
Marriages of those who have lived together
Extrajudicial dissolution of the conjugal as husband and wife without any legal
partnership without judicial approval is void. impediment for at least 5 years
[Espinosa vs Omana (2011)]
Mere breach of promise to marry is not an
actionable wrong. But to formally set a Effect of absence of requisites
wedding and go through all the above-
described preparation and publicity, only to Absence Defect or Irregularity
walk out of it when the matrimony is about to
be solemnized, is quite different. This is Effect VOID VOIDABLE
palpably and unjustifiably contrary to good
customs for which defendant must be held
UP LAW BOC PERSONS AND FAMILY RELATIONS
Essential Requisites
1. Gender
N. B.: The best source for citing the
requirement of male/female is still statutory,
as provided explicitly in the Family Code.
Changing of sex in one’s birth certificate on
the basis of sex reassignment shall be
denied; otherwise, it would result in
confusion and would allow marriage between
persons of the same sex which is in defiance
of the law, as marriage is a union between a
man and a woman.[Silverio v. Republic
(2007)]
2. Age
Legal Capacity ( Art. 5 )
Male or female 18 years old and above, not
under any of the impediments mentioned in
Art. 37 (incestuous marriages) & Art. 38
(marriages against public policy) may
contract marriage.
3. Consen t freely given
Consen t here refers to the consent of the
contracting parties; not of the
parent/guardian in those cases where such
consent is required (when either party is
between 18 to 21 years of age).
Absence:
A marriage entered into by a person whose
real intent is to avoid prosecution for rape is
void for total lack of consent. The accused did
not intend to be married. He merely used
such marriage to escape criminal liability.
[People v. Santiago, (1927)]
Defect:
Art. 45, FC. A marriage may be annulled for
any of the following causes existing at the
time of the marriage: xxx (3) that the consent
of either party was obtained by fraud, unless
such party afterwards, with full knowledge of
the facts constituting the fraud, freely
cohabited with the other as husband and
wife.
CIVIL LAW
Fraud here refers to matters which relate to
the marital relation:
• Non-disclosure of previous conviction by
final judgment of a crime involving moral
turpitude;
• Concealment of pregnancy by another
man;
• Concealment of a sexually transmitted
disease;
• Concealment of drug addiction,
alcoholism, lesbianism, or homosexuality
Formal Requisites
1. Ceremony
Marriage Ceremony
No prescribed form or religious rite for the
solemnization of marriage is required. (Art. 6)
The couple's written agreement where they
declare themselves as husband and wife,
signed by them before a judge and two
capable witnesses, even though it was
independently made by them, still counts as
a valid ceremony. [Martinez v. Tan, (1909)]
Minimum requirements prescribed by law:
1. Appearance of contracting parties
personally before the solemnizing officer
(Art. 3)
2. Personal declaration that they take each
other as husband and wife. (Art. 3)
3. Presence of at least two witnesses of
legal age. (Art. 3)
4. The declaration shall be contained in the
Marriage Certificate. (Art. 6)
5. Marriage certificate shall be signed by the
contracting parties and their witnesses
and attested by the solemnizing officer.
(Art. 6)
N. B.: In a marriage in articulo mortis, when
one or both parties are unable to sign the
marriage certificate, it shall be sufficient for
one of the witnesses to write the name of said
party, which shall be attested by the
solemnizing officer. (Art. 6, par. 2)
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

Places where marriage shall be publicly Articulo Mortis

solemnized:
1. Chambers of the judge or in open court (1) Ship Captain or Airplane Chief may
2. Church, chapel, or temple solemnize a marriage in articulo mortis
between passengers or crew members
3. Office of the consul-general, consul, or (Art. 7, 31)
vice-consul (Art. 8)
Exceptions: (2) A Military commander of a unit may
solemnize marriages in articulo mortis
• Marriages performed in articulo mortis or between persons w/in the zone of
in remote places. (Art. 29) military operation. (Art. 7, 32)
• Where both parties request in writing that
marriage be solemnized at a place Marriages Abroad
designated by them.
(1) Consul-general, consul or vice-consul
N. B.: Non-compliance with this requirement
may solemnize marriages between
does not invalidate the marriage (premise:
Filipino citizens abroad. (Art. 7, 10)
more witnesses = more people can notify
officer of impediments to marriage).

Where a judge solemnizes a marriage outside

2. Authority of the Solemnizing
Officer
Who may solemnize marriage:
Normal Circumstances
(1) Incumbent member of the Judiciary
within his jurisdiction. (Art. 7)
(2) Priest, Rabbi, Imam or Minister of any
Church or Religious Sect. Must be:
(a) Duly authorized by his church or
religious sect
(b) Registered with the civil registrar
general
(c) Acting within the limits of the written
authority granted to him by his
church or religious sect.
(d) At least one of the contracting
parties belongs to the solemnizing
officer’s church or religious sect. (Art.
7)
(3) Municipal and City Mayors (LGC sec. 444-
455)
(4)
his jurisdiction, there is a resultant
irregularity in the formal requisite laid down
in Article 3, which while it may not affect the
validity of the marriage, may subject the
officiating official to administrative liability.
[Navarro v. Domagtoy (1996); Aranes v.
Occiano (2002)]
A marriage which preceded the issuance of
the marriage license is void and the
subsequent issuance of such license cannot
render valid the marriage. Except in cases
provided by law, it is the marriage license
that gives the solemnizing officer the
authority to solemnize a marriage. [Aranes v
Occiano (2002)].
3. License re quired
GENERAL RULE: License required, which is
issued by local registrar of city or municipality
where either contracting party habitually
resides (Art. 9).Each contracting party should
file separately. (Art. 11)
RA 10354 , Sec 15 – Certificate of
Compliance – No marriage license shall be
issued by the Local Civil Registrar unless the
applicants present a Certificate of
Compliance issued for free by the local
Family Planning Office certifying that they
had duly received adequate instructions and
information on responsible parenthood,
UP LAW BOC PERSONS AND FAMILY RELATIONS
family planning, breastfeeding, and infant
nutrition.
Where Valid: License valid in any part of the
Philippines
Period of Validity: It will be valid for 120
days from date of issue, automatically
cancelled at the expiration of such period.
I. . Specia l Situations
a. Anyone between 18-21 years old who has
not yet been emancipated must present
the written consent that was given by his
or her parent or guardian. (Art. 14)
b. Anyone between 21-25 must ask for
advice from his or her parents or
guardians. If the advice wasn’t obtained,
the marriage license will only be
released 3 months after the publication
of the application. (Art. 15)
I. Foreign National
When either or both parties are foreign
nationals: Certificate of legal capacity
to contra ct marriage , issued by a
diplomatic or consular official, shall be
submitted before a marriage license can be
obtained (Art. 21)
Stateless persons or refugees from other
countries: Affida vit stating
circumstan ces showing capacity to
con tract marria ge, instead of certificate of
legal capacity (Art. 21)
I. Exceptions
(1) Marriage in articulo mortis (Art. 27)
▪ The marriage may be solemnized
without the necessity of a marriage
license.
▪ It remains valid even if ailing party
survives.
(1) Between passengers or crew members in
a ship or airplane (Art. 31)
(2) Persons within a military zone (Art. 32)
(3) Marriage in remote and inaccessible
places (Art. 28)
CIVIL LAW
(4) Marriages by Muslims and Ethnic cultural
minorities provided they are solemnized
in accordance with their customs, rites or
practices. (Art. 33)
(5) Marriage by parties who have cohabited
for at least 5 years without any legal
impediment to marry each other. (Art. 34,
Ninal vs. Badayog (2000))
Requisites for the 5 -year cohabitation to be
valid for the exemption from acquiring a
marriage license
(1) The man and woman must have been
living together as husband and wife for at
least five years before the marriage;
(2) The parties must have no legal
impediment to marry each other;
(3) The fact of absence of legal impediment
between the parties must be present at
the time of marriage;
(1) The parties must execute an affidavit
stating that they have lived together for
at least five years [and are without legal
impediment to marry each other]; and
(2) The solemnizing officer must execute a
sworn statement that he had ascertained
the qualifications of the parties and that
he had found no legal impediment to
their marriage.
[Borja-Manzano vs. Judge Sanchez (2001)]
4. Marria ge certifica te
Absence and irregularity of marriage license
and contract
There is a presumption of regularity of official
acts, and the issuance of the Civil Registrar of
a Certificate of Due Search and Inability to
Findthe application for a marriage license
certifies its inexistence, rendering the
marriage void. [Republic v. CA and Castro
(1994)]
Before a marriage can be solemnized, a valid
marriage license must be presented first,
otherwise, it is void. [Moreno v. Bernabe
(1995)]
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

Marriage Certificate Exceptions:

Where parties declare that they take each (1) Marriage between persons below 18 years
other as husband and wife; contains the ff: old (Art. 35(1))
(1) Full name, sex, age of party (2) Bigamous or polygamous marriage (Art.
35(4))
(2) Citizenship, religion, habitual residence
(3) Mistake in identity (Art. 35 (5))
(3) Date and precise time of celebration of
marriage (4) Marriages void under Article 53 (Art. 35
(6))
(4) That marriage license was properly
issued (except in marriages of exceptional (5) Psychological incapacity (Art. 36)
character)
(6) Incestuous marriages (Art. 37)
(5) That parental consent was secured, when
required (7) Marriage void for reasons of public policy
(Art. 38)
(6) That requirement as to parental advice
was complied with, when required
(7) That parties have entered into marriage Essential requisites Formal requisites
settlements, if any (Art. 22)
Inherent in the parties, Requirements
N. B.: Not an essential or formal requisite
carried everywhere independent of the
without which the marriage will be
parties
void[Madridejo v. de Leon (1930)]
Best evidence that a marriage does exist. Lex Nationalii – Laws Lex loci celebrationis-
relating to family rights if valid where
[Tenebro v. CA (2004)]
and duties, or to the celebrated, then valid
status, condition, and everywhere; forms of
legal capacity of contracting marriage
D. LAW GOVERNING VALIDITY OF persons are binding are to be regulated
MARRIAGES ABROAD upon Phil citizens even by the law where it is
though living abroad celebrated. (Art. 26)
General rule in contracts (Art. 15)

As to form: Governed by the laws of the Foreign marriages void Foreign marriages
country in which they were executed (NCC Art. under Phil law due to may be void under
17) lack of an essential Phil law due to
requisite, even if valid absence of a formal
As to substantive re quiremen ts: Laws
under foreign laws, will requisite under
relating to family rights and duties, or to the
not be recognized. foreign laws.
status, condition and legal capacity of
persons, prohibitive laws regarding the
person, his or her property, those which have Proof of Foreign Marriage in order that it may
for their object public order, public policy and be upheld:
good customs bind all Filipinos regardless of
location. (NCC Art. 15, 17) (1) Provisions of the foreign law
Marriages Celebrated Abroad (2) Celebration of the marriage in
accordance with said provisions
GENERAL RULE: Marriages solemnized
abroad in accordance with the laws in force in Foreign Divorces
that country shall be valid in the Philippines.
• Those obtained by Filipino citizens are
(Art 26, par.1)
void under Philippine law.
• If the foreign spouse obtains a valid
divorce decree abroad capacitating
him/her to remarry, the Filipino spouse
UP LAW BOC PERSONS AND FAMILY RELATIONS
shall have capacity to remarry under
Philippine law. (Art. 26, par.2)
Marriages dissolved by foreign judgment
Aliens may obtain divorces abroad, which
may be recognized in the Philippines,
provided they are valid according to their
national law. The marriage tie when thus
severed as to one party, ceases to bind
either. [Van Dorn vs Romillo (1985)]
A marriage between two Filipinos cannot be
dissolved even by a divorce obtained abroad,
because of Articles 15 and 17 of the Civil Code.
In mixed marriages involving a Filipino and a
foreigner, Article 26 of the Family Code
allows the former to contract a subsequent
marriage in case the divorce is “validly
obtained abroad by the alien spouse
capacitating him or her to remarry.” A divorce
obtained abroad by a couple, who are both
aliens, may be recognized in the Philippines,
provided it is consistent with their respective
national laws. [Garcia vs Recio (2001)]
The citizenship of the spouses at the time of
the divorce determines their capacity to
obtain a valid divorce. [Quita v. Dandan
(1998)]
Courts will only determine (1) whether the
foreign judgment is inconsistent with an
overriding public policy in the Philippines;
and (2) whether any alleging party is able to
prove an extrinsic ground to repel the foreign
judgment, i.e. want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
mistake of law or fact. If there is neither
inconsistency with public policy nor adequate
proof to repel the judgment, Philippine courts
should, by default, recognize the foreign
judgment as part of the comity of nations.
[Fujiki vs Marinay (2013)]
E. COMMON-LAW MARRIAGES
Art. 147 . When a man and a woman who are
capacitated to marry each other, live
exclusively with each other as husband and
wife without the benefit of marriage or under
a void marriage, their wages and salaries
shall be owned by them in equal shares and
the property acquired by both of them
CIVIL LAW
through their work or industry shall be
governed by the rules on co-ownership.
In the absence of proof to the contrary,
properties acquired while they lived together
shall be presumed to have been obtained by
their joint efforts, work or industry, and shall
be owned by them in equal shares. For
purposes of this Article, a party who did not
participate in the acquisition by the other
party of any property shall be deemed to have
contributed jointly in the acquisition thereof if
the former's efforts consisted in the care and
maintenance of the family and of the
household.
Neither party can encumber or dispose by
acts inter vivos of his or her share in the
property acquired during cohabitation and
owned in common, without the consent of the
other, until after the termination of their
cohabitation.
When only one of the parties to a void
marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In
case of default of or waiver by any or all of the
common children or their descendants, each
vacant share shall belong to the respective
surviving descendants. In the absence of
descendants, such share shall belong to the
innocent party. In all cases, the forfeiture
shall take place upon termination of the
cohabitation.
Art. 148 . In cases of cohabitation not falling
under the preceding Article, only the
properties acquired by both of the parties
through their actual joint contribution of
money, property, or industry shall be owned
by them in common in proportion to their
respective contributions. In the absence of
proof to the contrary, their contributions and
corresponding shares are presumed to be
equal. The same rule and presumption shall
apply to joint deposits of money and
evidences of credit.
If one of the parties is validly married to
another, his or her share in the co-ownership
shall accrue to the absolute community or
conjugal partnership existing in such valid
marriage. If the party who acted in bad faith
is not validly married to another, his or her
shall be forfeited in the manner provided in
UP LAW BOC PERSONS AND FAMILY RELATIONS
the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall
likewise apply even if both parties are in both
faith.
Though there is no technical marital
partnership between person living maritally
without being lawfully married, nevertheless
there is between them an informal civil
partnership which would entitle the parties to
an equal interest in property acquired by their
joint efforts [Lesaca vs Lesaca (1952)]
F. VOID AND VOIDABLE MARRIAGES
Presumption of Marriage
(1) Presumption in favor of a valid marriage
(Art 220, CC)
(2) The presumption that a man and a
woman deporting themselves as husband
and wife have entered into a lawful
contract of marriage is satisfactory if
uncontradicted. (Sec. 3 (aa), Rule 131,
ROC)
(3) In marriages of exceptional character, the
existence of the marriage is presumed,
even in the total absence of a marriage
license. (Vda. De Jacob v CA (1999))
(4) If a marriage certificate is missing, and all
means have not yet been exhausted to
find it, then the marriage is presumed to
exist (Sevilla v. Cardenas (2006))
Absence of a marriage certificate is not proof
of absence of marriage. To prove the fact of
marriage, the following would constitute
competent evidence: (1) the testimony of
witnesses to matrimony; (2) documentary
photos or videos of the wedding; (3) the
couple’s public cohabitation; and (4) birth
and baptismal certificates of children born
during the union. [Trinidad v CA (1998)]
CIVIL LAW
F. 1. VOID MARRIAGES
Type of Void Marriages
(1) Absence of any formal/essential
requisites
(2) Bigamous and polygamous marriages
(3) Subsequent marriage, upon
reappearance of spouse
(4) Bad faith of both spouses
(5) Psychologically Incapacitated spouse
(6) Void subsequent marriages
(7) Incestuous Marriages
(8) Non-compliance with recording
requirement after declaration of nullity
Art. 39 . The action or defense for the
declaration of absolute nullity shall not
prescribe. However, in case of marriage
celebrated before the effectivity of this Code
and falling under Article 36, such action or
defense shall prescribe in ten years after this
Code shall taken effect. (As amended by
Executive Order 227)
a. Absence of Requisite s
Art. 4( 1 ) : The absence of any essential or
formal requisites shall render the marriage
void ab initio, except as stated in Article 35
(a).
Art. 5: Any male or female of the age of
eighteen years or upwards not under any of
the impediments mentioned in Articles 37
and 38, may contract marriage.
Void from the Beginning (Art. 35 )
(1) Marriage where any party is below
eighteen years of age even with the
consent of parents or guardians
(2) Marriage solemnized by any person not
legally authorized to perform marriages
unless such marriages were contracted
with either or both parties believing in
good faith that the solemnizing officer
had legal authority to do so.
Note: One’s belief in good faith that the
solemnizing officer has the required
authority is a mistake of fact, and not of
law.
UP LAW BOC PERSONS AND FAMILY RELATIONS
(3) Marriage solemnized without a valid
marriage license, except in marriages
under exceptional circumstances
(4) Bigamous or polygamous marriages not
falling under Article 41 (Art. 41:
subsequent marriage by present spouse
who obtained a declaration of
presumptive death for absent spouse
prior to the subsequent marriage)
(5) There is a mistake as to the identity of the
other contracting party
(6) Subsequent marriages that are void
under Article 53 (Non-compliance with
Art. 52)
To be considered void on the ground of
absence of a marriage license, the law
requires that the absence of such marriage
license must be apparent on the marriage
contract, or at the very least, supported by a
certification from the local civil registrar that
no such marriage license was issued to the
parties. [Alcantara v. Alcantara (2007)]
An action for nullity of marriage is
imprescriptible. [Republic v. Dayot (2008)]
b. Bigamous and Po lygamous
Marriages
Article 40 ( No Judicial Declaration Of
Nullity)
A person entered into a subsequent marriage
without first getting a judicial declaration of
nullity of the first void marriage
Article 41 ( Presumptive Death)
Failure of the spouse present to obtain a
judicial declaration of presumptive death
before entering a subsequent marriage
Article 44 ( Bad Faith of both spouses)
Both spouses entering a subsequent
marriage after presumptive death, who acted
in bad faith
It is now settled that the fact that the first
marriage is void from the beginning is not a
defense in a bigamy charge. As with a
voidable marriage, there must be a judicial
declaration of the nullity of a marriage before
contracting the second marriage. [Mercado vs
Tan (2000)]
CIVIL LAW
The accused may still be charged with the
crime of bigamy, even if there is a subsequent
declaration of the nullity of the second
marriage, so long as the first marriage was
still subsisting when the second marriage
was celebrated. [Capili vs People (2013)]
c. Sub sequen t Marriage When One
Spouse Is Absent
Re quire men ts for Subse quen t
Marria ge to be Valid When Prior
Spouse is Absent ( Art. 41 ) :
(1) Subsequent marriage due to ordinary
absence where:
(a) Absent spouse had been absent for 4
consecutive years;
(b) The spouse present had a well-
founded belief that absent spouse is
dead; and
(c) Judicial declaration of presumptive
death was secured (no prejudice to
the effect of the reappearance of the
absent spouse).
(2) Subsequent marriage due to
e xtraord inary absence where:
(a) Absent spouse had been missing for
2 consecutive years;
(b) There is danger of death under the
circumstances set forth in Art. 391 CC
attendant to the disappearance;
a. Onboard vessel lost at sea
voyage, airplane,
b. Armed forces in war, or
c. Danger of death under other
circumstances, existence not
known
(c) The spouse present had a well-
founded belief that the missing
person is dead; and
(d) Judicial declaration of presumptive
death was secured (no prejudice to
the effect of the reappearance of the
absent spouse).
Institution of a summary proceeding is not
sufficient. There must also be a summary
judgment. (Balane)
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

Only the spouse present can file or institute a Difference between Absence in the Civil
summary proceeding for the declaration of Code and Family Code
presumptive death of the absentee.
[Bienvenido v. CA (1994)] Family Civil Code
Code
While an action for declaration of death or
absence under Rule 72, Section 1(m),
As to 4 years under Absent for at
expressly falls under the category of special
period normal least 7 years;
proceedings, a petition for declaration of
circumstances;
presumptive death under Article 41 of the 2 years under 4 years under
Family Code is a summary proceeding, as extraordinary extraordinary
provided for by Article 238 of the same Code. circumstances circumstances
[Republic vs Granada (2012)]
As to In order to Declaration of
The belief of the present spouse must be the
remarriage remarry, presumptive
result of proper and honest to goodness
summary death is not
inquiries and efforts to ascertain the proceeding is necessary
whereabouts of the absent spouse and necessary
whether the absent spouse is still alive or is
already dead. This is drawn from As to who Can be The spouses
circumstances before and after the can instituted by the themselves
disappearance and the nature and extent of institute spouse present,
inquiries made. [Republic vs Granada (2012)] the action any interested
party, and the
subsequent
Effect of Reappea ran ce of Absent spouse
Spouse
As to effect Subsequent Upon
General Rule: The subsequent marriage on marriage is reappearance,
remains valid. subsequent automatically judicial
marriage terminated by proceeding is
Exception : It is automatically terminated by the recording of necessary to
the recording of the affidavit of reappearance an affidavit of declare
of the absent spouse at the instance of any reappearance of marriage null
interested person, with due notice to the the absent and void
spouses of the subsequent marriage. (Art. 42) spouse
Note: It is the recording of the affidavit of As to Well founded Generally
reappearance that automatically terminates ground belief that the believed to be
the subsequent marriage. Hence, if absentee absent spouse is dead
spouse reappears without recording affidavit dead
of reappearance, then there is no legal effect.
Meanwhile, absentee spouse cannot remarry.
(Tolentino) Related Provisions
Exception to Exception: If there is a Art. 390 , Civil Code. After an absence of 7
judgment annulling the previous marriage or years, it being unknown whether or not the
declaring it void ab initio. (Art. 42) absentee still lives, he shall be presumed
dead for all purposes, except for those of
Good Faith: period of absence for
presumptive death is MANDATORY thus succession.
cannot be shortened by good faith and if be The absentee shall not be presumed dead for
done so will be void. the purpose of opening his succession till
after an absence of 10 years. If he
disappeared after the age of 75 years, an
absence of 5 years shall be sufficient in order
that his succession may be opened.
UP LAW BOC PERSONS AND FAMILY RELATIONS
Art. 391 , Civil Code . The following shall be
presumed dead for all purposes, including
the division of the estate among the heirs:
A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing,
who has not been heard of for four years
since the loss of the vessel or aeroplane;
A person in the armed forces who has taken
part in war, and has been missing for four
years;
3. A person who has been in danger of
death under other circumstances and his
existence has not been known for four
years.
N. B.: Although 7 years is required for the
presumption of death of an absentee in the
CC, the FC makes an exception for the
purpose of remarriage by limiting such
requirement to 4 years.
d. Bad Faith of Both Spouses
Art. 44 . If both spouses of the subsequent
marriage acted in bad faith, said marriage
shall be void ab initio and all donations by
reason of marriage and testamentary
dispositions made by one in favor of the other
are revoked by operation of law.
E. Psychological Incapacity
Contracted by any party who, at the time of
the celebration, was psychologically
incapacitated to comply with the essential
marital obligations of marriage, even if such
incapacity becomes manifest only after its
solemnization(Art. 36)
There are 3 characteristics for determining
psychological incapacity: gravity, antecedent,
and incurability. [Santos v. Bedia-Santos
(1995)]
Molina Doctrine in Psychological Incapacity
(1) The burden of proof to show the nullity of
the marriage belongs to the plaintiff. This
is to be investigated by the OSG for
collusion.
CIVIL LAW
(2) The root cause of the psychological
incapacity must be: (a) medically or
clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by the
experts, (d) clearly explained in the
decision.
(3) The incapacity must be proven to be
existing at “the time of the celebration”
of the marriage.
(4) Such incapacity must also be shown to be
medically or clinically permanent or
incurable.
(5) Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of
marriage.
(6) The essential marital obligations must be
those embraced by Articles 68 up to 71 of
the Family Code as regards the husband
and wife as well as Articles 220, 221, and
225 of the same Code in regard to
parents and their children.
(7) Interpretations given by the National
Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while
not controlling/decisive, should be given
great respect by our courts.
(8) The trial court must order the prosecuting
attorney or fiscal and the Solicitor
General to appear as counsel for the
state. No decision shall be handed down
unless the Solicitor General issues a
certification. [Republic v Molina (1997)]
Refusal of husband to have sex was
interpreted as psychological incapacity. “A
man who can but won’t is psychologically
incapacitated” [Tsoi v. CA (1997)]
Psychological incapacity maybe established
by the totality of the evidence presented.
Personal medical examination could be
dispensed with. [Marcos v. Marcos (2000)]
There is no requirement that the respondent
be medically examined first. [Republic v. San
Jose (2007)]
“Pathological liar” considered as
psychological incapacity, Molina guidelines
met. [Antonio v. Reyes (2006)]
In the task of ascertaining the presence of
psychological incapacity as a ground for the
UP LAW BOC PERSONS AND FAMILY RELATIONS
nullity of marriage, the courts, which are
concededly not endowed with expertise in the
field of psychology, must of necessity rely on
the opinions of experts in order to inform
themselves on the matter, and thus enable
themselves to arrive at an intelligent and
judicious judgment. [Kalaw v. Fernandez
(2015)]
f. Incestuous Marriages
Article 37 (Incestuous):
(1) Between ascendants and
de sce ndan ts of any degree, legitimate
or illegitimate
(2) Between bro thers and sisters,
whe ther full or half blood, legitimate or
illegitimate
g. Against Public Policy
Article 38 (Against Public Policy):
(1) Between collateral blood relatives,
legitimate or illegitimate, up to the fourth
civil degree.
(2) Between step-parents and step-children.
▪ N. B.: Stepbrothers and stepsisters
can marry because marriages
between them are not among those
enumerated in Article 38.
(3) Between parents-in-law and children-in-
law.
(4) Between adopting parent and adopted
child.
(5) Between the surviving spouse of the
adopting parent and the adopted child.
(6) Between the surviving spouse of the
adopted child and the adopter.
(7) Between an adopted child and a
legitimate child of the adopter.
(8) Between adopted children of the same
adopter.
(9) Between parties where one, with the
intention to marry the other, killed that
other person's spouse, or his or her own
spouse.
CIVIL LAW
Relationships outside of Art. 37 and 38 which
are not impediments to marriage: brother-in-
law with sister-in-law, stepbrother with
stepsister, guardian with ward, adopted with
illegitimate child of the adopter, adopted son
of the husband with adopted daughter of the
wife, parties who have been convicted of
adultery
h. Non -compliance with Record ing
Req uire men t after Declara tion of
Nullity
Article 53 (Non-Recording):
Subsequent marriage of spouses, where the
requirements of recording under Art. 52 have
not have been complied with, shall be null
and void.
Art. 52. The judgment of annulment or of
absolute nullity of the marriage, the partition
and distribution of the properties of the
spouses and the delivery of the children's
presumptive legitimes shall be recorded in
the appropriate civil registry and registries of
property; otherwise, the same shall not affect
third persons.
Previous marriage declared void ab initio or
annulled
The word “solely” in Art. 40 referred to
validating subsequent marriages but NOT to
limiting the purposes for which a judicial
declaration of nullity can be invoked.
[Domingo v. CA (1993)]N. B. : Separation of
property is also a valid purpose for filing for a
judicial declaration of nullity.
Even if the judge’s first marriage contracted
in 1965 was void for not having a marriage
license, the requirement for a judicial
declaration of nullity in Art. 40 still applies
for his subsequent marriage contracted in
1991. [Atienza v. Brillantes, (1995)]
Where both marriages were contracted prior
to the effectivity of the FC, the requirement of
Art. 40 does not apply to the second
marriage where a right is already vested and
on which the FC cannot have retroactive
effect. [Apiag v. Cantero, (1997)]
UP LAW BOC PERSONS AND FAMILY RELATIONS
Article 43 and 44 (Effects of Termination of
Bigamous Marriage under Art. 42)
Art. 43 :
(1) Children of sub se quen t marria ge –
conceived prior to its
terminationconsidered legitimate;
custody and support decided by court in a
proper proceeding.
(2) Property Regime – dissolved and
liquidated (party in bad faith shall forfeit
his/her share in favor of the common
children or if there are none, children of
the guilty spouse by a previous marriage,
and in case there are none, to the
innocent spouse).
(3) Donation propter nuptias – remains
valid, (but if the donee contracted
marriage in bad faith, donations are
revoked by operation of law)
(4) Insurance bene fits – innocent spouse
may revoke designation of guilty party as
beneficiary, even if such designation is
stipulated as irrevocable.
(5) Succe ssion Rights – Party in bad faith
shall be disqualified to inherit from the
innocent spouse, whether testate or
intestate.
Article 44 (Donations):
If both spouses of the subsequent marriage
acted in bad faith, all donations by reason of
marriage and testamentary dispositions
made by one party in favor of the other are
revoked by operation of law.
Who may file the petition for nullity of void
marriages?
General Rule: Only the husband or wife may
file the petition. (AM No. 02-11-10 SC, Sec.
2a)
Specifically, A.M. No. 02-11-10-SC extends
only to marriages covered by the Family Code,
which took effect on August 3, 1988, but,
being a procedural rule that is prospective in
application, is confined only to proceedings
commenced after March 15, 2003. [Ablaza v.
Republic (2010)]
CIVIL LAW
Exceptions:
(1) Nullity of marriage cases commenced
before effectivity of A.M. No. 02-11-10-SC
(2) Marriages celebrated during the
effectivity of the Civil Code. [Carlos v.
Sandoval (2008)]
However, the absence of a provision in the
Civil Code cannot be construed as a license
for any person to institute a nullity of
marriage case. Such person must appear to
be the party who stands to be benefited or
injured by the judgment in the suit, or the
party entitled to the avails of the suit. [Carlos
vs Sandoval (2008)]
Procedure in a tta ckin g a void
marria ge
General Rule: Void Marriages may be
attacked collaterally or directly.
Exception: A person in a void marriage must
first file for a declaration of nullity in order to
subsequently marry
Requisites for valid remarriage:
Art. 52. The judgment of annulment or of
absolute nullity of the marriage the partition
and distribution of the properties of the
spouses and the delivery of the children's
presumptive legitimes shall be recorded in
the appropriate civil registry and registries of
property; otherwise the same shall not affect
third persons.
(1) The previous marriage should be
judicially declared void or annulled (final
judgment) [Terre v. Terre (1992), Atienza v.
Brillantes (1995)];
(2) Must comply with the requirements of
Art. 52.
UP LAW BOC PERSONS AND FAMILY RELATIONS
Safeguard against collusion and No
confession of judgment
Art. 48 (2 ): In the cases referred to in the
preceding paragraph, no judgment shall be
based upon a stipulation of facts or
confession of judgment.
Stip u la tio n of Fa cts: An admission by
both parties after agreeing to the existence of
any of the grounds or facts that would
constitute a void/voidable marriage
Confession of judgment: The admission by
one party admitting his/her fault to cause the
invalidity of the marriage.
Although the admission of guilt of the wife
constitutes a confession of judgment, the
husband was also able to present other
evidence to support the allegation. Hence,
there was no collusion. [Ocampo v.
Florenciano (1960)]
Participation of the OSG
The obvious intent of the AM 02-11-10-SC was
to require the OSG to appear as counsel for
the State in the capacity of a defensor vinculi
(i.e., defender of the marital bond) to oppose
petitions for, and to appeal judgments in
favor of declarations of nullity of marriage
under Article 36 of the Family Code, thereby
ensuring that only the meritorious cases for
the declaration of nullity of marriages based
on psychological incapacity-those sufficiently
evidenced by gravity, incurability and juridical
antecedence-would succeed. [Mendoza vs
Republic (2012)]
No Motion to Dismiss
AM 02-11-10-SC Sec.7 prohibits the filing of a
motion to dismiss in actions for annulment of
marriage. [Aurelio vs Aurelio (2011)]
Effect of pendency of action for
declara tion of nu llity:
(1) The court shall provide for the support of
the spouses,
(2) The custody and support of the common
children, giving paramount consideration
to their moral and material welfare, their
choice of parent with whom they wish to
remain.
(3) The court shall also provide for visitation
rights of other parent. (Art. 49)
CIVIL LAW
Effect of res judicata
Suffice it to state that parties are bound not
only as regards every matter offered and
received to sustain or defeat their claims or
demand but as to any other admissible
matter which might have been offered for
that purpose and of all other matters that
could have been adjudged in that case.
[Mallion vs Alcantara (2006)]
Effect of final judgment declaring nullity
The effects provided for by paragraphs (2), (3),
(4) and (5) of Article 43 and by Article 44
shall also apply in the proper cases to
marriages which are declared void ab initio or
annulled by final judgment under Articles 40
and 45 (Art. 50(1)).
Final judgment in such cases shall provide
for:
(1) Liquidation, partition, and distribution of
the properties of the spouses
(2) Custody and support of the common
children
(3) Delivery of their presumptive legitimes
UNLESS: such matters had been adjudicated
in previous judicial proceedings (Art. 50(2))
All creditors of the spouses/property regime
shall be notified of the proceedings for
liquidation (Art. 50(2 and 3))
In the partition, the conjugal dwelling and lot
shall be adjudicated to the spouse with whom
majority of the common children remain (Art.
102 and 129, Art. 50(4))
Tender years presumption : Children
below 7 years age will be in the custody of the
mother.
Presumptive legitimes, computed as of the
date of the final judgment, shall be delivered
in cash, property or sound securities:
(1) Unless the parties, by mutual agreement
judicially approved, had already provided
for such (Art. 51(1))
(2) The children/guardian/trustee of
property may ask for the enforcement of
the judgment (Art. 51(2))
UP LAW BOC PERSONS AND FAMILY RELATIONS
(3) The delivery of the presumptive legitimes
shall not prejudice the ultimate
successional rights, but the value of the
properties already received shall be
considered as advances on their legitime
(Art. 51(3))
Generally, children born or conceived within
void marriages are illegitimate.
Exceptions:
• Children conceived or born before the
judgment under Article 36 has
become final and executory (Art. 54)
• Children conceived or born of
subsequent marriages under Article
53 (Art. 54)
F.2. VOIDABLE OR ANNULLABLE
MARRIAGE
Article 14 : In case either or both of the
contracting parties, not having been
emancipated by a previous marriage, are
between the ages of eighteen and twenty-
one, Inaddition to the requirements of the
preceding articles:
▪ Exhibit to the local civil registrar the
consent to their marriage of their
father, mother, surviving parent or
guardian, or persons having legal
charge of them, in the order mentioned
▪ Manifested in writing by the interested
party, who personally appears before
the proper local civil registrar, or
▪ In the form of an affidavit made in the
presence of two witnesses and attested
before any official authorized by law to
administer oaths
▪ The personal manifestation shall be
recorded in both applications for
marriage license, and the affidavit, if
one is executed instead, shall be
attached to said applications.
Grounds for Annulment
Article 4 states that “xxx A defect in any of
the essential requisites shall render the
marriage voidable as provided in Article 45.”
CIVIL LAW
Article 45 . A marriage may be annulled for
any of the following causes, existing at the
time of the marriage:
(1) That the party in whose behalf it is sought
to have the marriage annulled was eighteen
years of age or over but below twenty-one,
and the marriage was solemnized without
the consent of the parents, guardian or
person having substitute parental authority
over the party, in that order, unless after
attaining the age of twenty-one, such party
freely cohabited with the other and both
lived together as husband and wife;
(2) That either party was of unsound mind,
unless such party after coming to reason,
freely cohabited with the other as husband
and wife;
(3) That the consent of either party was
obtained by fraud, unless such party
afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with
the other as husband and wife;
(4) That the consent of either party was
obtained by force, intimidation or undue
influence, unless the same having
disappeared or ceased, such party thereafter
freely cohabited with the other as husband
and wife;
(5) That either party was physically incapable
of consummating the marriage with the
other, and such incapacity continues and
appears to be incurable; or
(6) That either party was afflicted with a
sexually-transmissible disease found to be
serious and appears to be incurable.
Action to Annul: Action in rem, concerns
status of parties; res is relation between
parties or marriage tie; jurisdiction depends
on nationality or domicile not the place of
celebration.
Grounds for Annulment explained:
a. Lack of parental con sent
• 18 ≤ x < 21 without parental consent
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

• Ratified by party 18 or above but ▪ Concealment of STD regardless of

below 21 upon free cohabitation upon nature existing at time of marriage
reaching 21.
▪ Concealment of drug addiction,
habitual alcoholism,
In defending the requirement of parental homosexuality, lesbianism existing
at time of marriage
consent, the Court held that the State has
power to make adjustments in the (a) No other misrepresentation or deceit
constitutional rights of minors based on the of character, health, rank, fortune or
following grounds: 1) the peculiar chastity shall constitute fraud.
vulnerability of children, 2) to protect minors
(b) Conviction of Crime: requisites are
from immature decision making and prevent
unstable marriages, 3) on the presumption ▪ Moral turpitude
that parents act in the best interests of their
children in child rearing. (Moe v. Dinkins, (US ▪ Conviction
Case, 1981)) (a) Concealment of Pregnancy
▪ Fraud against very essence of
b. Insanity marriage; importance of
procreation of children; an assault
• Mental incapacity or insanity is a vice to the integrity of the union by
of consent; introducing ALIEN BLOOD
• Can be ratified by cohabitation after ▪ If husband knew of pregnancy, the
insanity is cured or during a lucid marriage cannot be annulled on
interval the ground of concealment
• Mere mental weakness is not a (e) May be ratified upon free
ground for annulment, but if found cohabitation after knowledge of
grave enough, it may amount to fraud.
psychological incapacity.
• Intoxication, somnambulism where
one had no mental capacity to give Art. 45 STD Art. 46 STD
consent is equivalent to insanity
Ground for The STD is a type of
• Must exist at the time of the
annulment fraud which is a ground
celebration of the marriage. Insanity
for annulment
that occurs after the celebration of
marriage does not constitute a cause
Does not have to Must be concealed
for nullity [Katipunan v. Tenorio
be concealed
(1937)]
• Law presumes SANITY, burden of Must be serious Need not be serious
proof on party alleging insanity and incurable nor incurable

The STD itself is It is the concealment

c. Fraud the ground for that gives rise to the
annulment annulment
(a) Only those enumerated in Art. 46:
▪ Non-disclosure of previous
conviction by final judgment of a
crime involving moral turpitude
▪ Concealment by wife at the time of
marriage, that she was pregnant
by another man
UP LAW BOC PERSONS AND FAMILY RELATIONS
Effect of Cure to Fraud in Art. 46:
Recovery or rehabilitation from STD, drug
addiction, and habitual alcoholism will NOT
bar action for annulment; the defect is not
the disease, but the fraud which vitiated
consent.
Wife gave birth 3 months after marriage, and
husband then filed for annulment on the
ground of concealment of non-virginity.
Denied. Court held that it was unbelievable
that husband could not have noticed when
wife had been at least 6 months pregnant
prior to marriage. [Buccat v. Mangonon de
Buccat, (1941)]
The Supreme Court granted annulment
because the wife concealed the fact that she
was 4 months pregnant during the time of
the marriage. Since Delizo was “naturally
plump,” Aquino could hardly be expected to
know, by mere looking, whether or not she
was pregnant at the time of the marriage.
[Aquino v. Delizo, (1960)]
It is the concealment of homosexuality, and
not homosexuality per se, that vitiates the
consent of the innocent party. Such
concealment presupposes bad faith and
intent to defraud the other party in giving
consent to the marriage. [Almelor v. RTC,
(2008)]
d. Force, intimida tion , undue
in fluence
(a) Force must be one as to prevent party
from acting as a free agent; will
destroyed by fear/compulsion
(b) Intimidation must be one as to
compel the party by a
reasonable/well-grounded fear of an
imminent and grave evil upon his
person/properties
(c) Degree of intimidation: age, sex,
condition of person borne in mind
(d) Threat or intimidation as not to act as
free agent;
(e) May be ratified upon cohabitation
after force, intimidation, or undue
influence has ceased or disappeared.
CIVIL LAW
e. Impotency
(a) Must exist at time of marriage, and
be continuous and incurable. If
incapacity can be remedied or is
removable by operation, not
annullable [Sarao v Guevarra(1940)]
(b) Physical condition - sexual
intercourse with a person of the
opposite sex is impossible, not mere
sterility
(c) Only the potent spouse can file the
action for annulment and he/she
must not have been aware of the
other’s impotency at the time of
marriage (Sempio-Diy)
▪ If he/she was aware, it is implied
that he/she renounced
copulation by consenting to the
marriage. (Tolentino)
(d) When both spouses are impotent,
marriage cannot be annulled because
neither spouse is aggrieved. (Sempio-
Diy)
▪ An impotent plaintiff could not
have expected copulation with
the other spouse. (Tolentino)
(e) Potency is presumed; party who
alleges impotency has burden of
proof [Jimenez v Canizares (1960)]
(f) REFUSAL of wife to be examined
DOES NOT PRESUME
impotency[Jimenez v Canizares
(1960)] N. B.: If she continues to
refuse the physical exam, she can be
held in contempt & ordered confined
in jail until she does so
f. Se xually -tran smissib le disease
serious and incurable
(a) Should exist at the time of the
marriage
(b) Should be found serious
(c) Should appear to be incurable
(d) Reason: danger to the health of
spouse & offspring/s
(e) Same as incurable impotency
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

(f) Not subject to ratification: cannot be

ratified or convalidated by
cohabitation:
▪ Affliction of STD is unknown to the
other spouse (Balane)
▪ The other spouse must also be free
from a similar STD. (Balane)

Who may file, Prescription, Ratification

Ground Who can file Prescription Ratification

(Art. 45) (Art. 47) (Art. 47) (Art. 45)

Lack of Party 18 or above but Within 5 years after Free cohabitation after
parental below 21 attaining 21. attaining age of 21.
consent
Parent or guardian who Before party below 21
did not give consent reaches 21.

Insanity Sane spouse with no Any time before the death Free cohabitation of insane
knowledge of the other’s of either party party after insane party
insanity comes to reason

Legal guardian of insane

party

Insane party During lucid interval or

after regaining sanity, and
before death

Fraud Injured party (defrauded Within 5 years after Free cohabitation after
party) discovery of fraud having full knowledge of
fraud

Force, Injured party Within 5 years after Free cohabitation after the
intimidation, disappearance of force, force or intimidation or
undue undue influence, or undue influence has
influence intimidation ceased or disappeared

Impotence Potent spouse Within 5 years after Cannot be ratified but

marriage action prescribes

STD Healthy party Within 5 years after Cannot be ratified but

marriage action prescribes
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

Marriages Not Subject to Ratification: suffice to comply with the mandatory

(1) One spouse is incurably impotent
(2) One spouse has an incurable STD
Reason: Public policy and health. Although the
action of to annul these marriages can prescribe
(5 years).
Presence of Prosecutor
Art. 48: To prevent collusion between the
parties, fabrication or suppression of evidence,
the prosecuting attorney or fiscal shall appear
on behalf of the State.
In a legal separation or annulment case, the
prosecuting attorney must first rule out
collusion as a condition sine qua non for further
proceedings. A certification by the prosecutor
that he was present during the hearing and
even cross-examined the plaintiff does not
requirement. [Corpuz v. Ochoterena, (2004)]
Effects of Pending Decree of Annulment
The Court shall provide for the support of
spouses and support and custody of children. In
determining which parent should have custody
of them, their moral and material welfare shall
be given paramount consideration.
Effects of Decree of Annulment
(Same as Decree of Nullity)
The effects provided for by paragraphs (2), (3),
(4) and (5) of Article 43 and by Article 44 shall
also apply in the proper cases to marriages
which are declared void ab initio or annulled by
final judgment under Articles 40 and 45 (Art.
50(1)).

Co mpara tive Table on Void and Vo idable Marria ges

Void Voidable

Nature No validity from the time of performance Valid until annulled

Susceptibility of Cannot be ratified Can be ratified

Ratification

Property Relation Only co-ownership; No ACP or CPG despite ACP or any other propery
having entered into a marriage settlement regime in accordance with the
marriage settlement`

Status of Illegitimate under Art. 165 (with Art 36 and Children are legitimate if
Children Art 53 as exceptions) conceived or born prior to the
decree

How Impugned (a) May be attached directly or collaterally,
but for the purpose of remarriage, a judicial
declaration of nullity is required
(b) Can be impugned even after death of the
parties
(a) Cannot be attacked
collaterally
(b) Cannot be impugned after
the death of one of the parties

Who may A proper interested person (depending on A party to the marriage

challenge validity the dates of marriage and of filing of
proceeding)

Susceptible to Does not prescribe Prescribes

Prescription

PAGE 29 OF X
UP LAW BOC PERSONS AND FAMILY RELATIONS
G. THE LAW ON SEPARATION OF THE
SPOUSES
SEPARATION IN FACT
Art. 239 . When a husband and wife are
separated in fact, or one has abandoned the
other and one of them seeks judicial
authorization for a transaction where the
consent of the other spouse is required by
law but such consent is withheld or cannot
be obtained, a verified petition may be filed
in court alleging the foregoing facts.
The petition shall attach the proposed deed,
if any, embodying the transaction, and, if
none, shall describe in detail the said
transaction and state the reason why the
required consent thereto cannot be secured.
In any case, the final deed duly executed by
the parties shall be submitted to and
approved by the court.
Agreement to Separate
A notary public should not facilitate the
disintegration of a marriage and the family
by encouraging the separation of the
spouses and extrajudicially dissolving the
conjugal partnership. [Espinosa vs Omana
(2011)]
ABSOLUTE DIVORCE
Article 26, par. 2 Where a marriage
between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse
capacitating him or her to remarry, the
Filipino spouse shall have capacity to
remarry under Philippine law. (As amended
by Executive Order 227)
If both parties are Muslims, there is a
presumption that the Muslim Code or
Muslim law is complied with. If together
with it or in addition to it, the marriage is
likewise solemnized in accordance with the
Civil Code of the Philippines, whichever
comes first is the validating rite and the
second rite is the merely ceremonial one.
But, in this case, as long as both parties are
PAGE 30 OF X
CIVIL LAW
Muslims, this Muslim Code will apply.
[Zamoranos vs People (2011)]
One of the effects of irrevocable talaq, as
well as other kinds of divorce, refers to
severance of matrimonial bond, entitling
one to remarry. [Zamoranos vs People (2011)]
H. LEGAL SEPARATION
Note: The grounds for legal separation are
exclusive. (Article 55)
These must be filed within 5 years after
occurrence of cause (Article 57)
(1) Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a child of
the petitioner;
(2) Physical violence or moral pressure to
compel the petitioner to change
religious or political affiliation;
(3) Attempt of respondent to corrupt or
induce the petitioner, a common child,
or a child of the petitioner, to engage in
prostitution, or connivance in such
corruption or inducement;
(4) Final judgment sentencing the
respondent to imprisonment of more
than six years, even if pardoned;
(5) Drug addiction or
habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the
respondent;
• It is the concealment of
homosexuality, and not
homosexuality per se, that vitiates
the consent of the innocent party.
Such concealment presupposes bad
faith and intent to defraud the other
party in giving consent to the
marriage. (Almelor vs RTC (2008))
(7) Contracting by the respondent of a
subsequent bigamous marriage,
whether in the Philippines or abroad;
UP LAW BOC PERSONS AND FAMILY RELATIONS
(8) Sexual infidelity or perversion;
• Adultery is not a continuing crime;
it is consummated at every
moment of carnal knowledge.
Thus, every sexual act is a ground
for legal separation. [People v.
Zapata and Bondoc (1951)]
(9) Attempt by the respondent against the
life of the petitioner; or
(10) Abandonment of petitioner by
respondent without justifiable cause for
more than one year.
• Abandonment is not mere physical
estrangement but also financial
and moral desertion. There must
be an absolute cessation of
marital relations, duties, and
rights with the intention of
perpetual separation. [Dela Cruz.
v. Dela Cruz (1968)]
The death of one party in a legal separation
case abates the action. This is because the
death of either spouse automatically
dissolves the marriage. An action for legal
separation is also purely personal between
the spouses. [Lapuz Sy v. Eufemio (1972)]
Acts of Violence according to RA 9262( as
grounds for legal separation under Art
55(1))
(1) Causing physical harm to the woman or
her child;
(2) Threatening to cause the woman or her
child physical harm;
(3) Attempting to cause the woman or her
child physical harm;
(4) Placing the woman or her child in fear
of imminent physical harm;
(5) Attempting to compel or compelling the
woman or her child to engage in
conduct which the woman or her child
has the right to desist from or desist
from conduct which the woman or her
child has the right to engage in, or
attempting to restrict or restricting the
woman's or her child's freedom of
movement or conduct by force or threat
PAGE 31 OF X
CIVIL LAW
of force, physical or other harm or threat
of physical or other harm, or
intimidation directed against the
woman or child. This shall include, but
not limited to, the following acts
committed with the purpose or effect of
controlling or restricting the woman's or
her child's movement or conduct:
(a) Threatening to deprive or
actually depriving the woman or
her child of custody to her/his
family;
(b) Depriving or threatening to
deprive the woman or her
children of financialsupport
legally due her or her family, or
deliberately providing the
woman's children insufficient
financial support;
(c) Depriving or threatening to
deprive the woman or her child
of a legalright;
(d) Preventing the woman in
engaging in any legitimate
profession, occupation, business
or activity or controlling the
victim's own money or
properties, or solely controlling
the conjugal or common money,
or properties;
(6) Inflicting or threatening to inflict
physical harm on oneself for the
purpose of controlling her actions or
decisions;
(7) Causing or attempting to cause the
woman or her child to engage in any
sexual activity which does not constitute
rape, by force or threat of force, physical
harm, or through intimidation directed
against the woman or her child or
her/his immediate family;
(8) Engaging in purposeful, knowing, or
reckless conduct, personally or through
another, that alarms or causes
substantial emotional or psychological
distress to the woman or her child. This
shall include, but not be limited to, the
following acts:
UP LAW BOC PERSONS AND FAMILY RELATIONS
(a) Stalking or following the
woman or her child in public or
private places;
(b) Peering in the window or
lingering outside the residence
of the woman or her child;
(c) Entering or remaining in the
dwelling or on the property of
the woman or her child against
her/his will;
(d) Destroying the property and
personal belongings or inflicting
harm to animals or pets of the
woman or her child; and
(e) Engaging in any form
harassment or violence;
(9) Causing mental or emotional anguish,
public ridicule or humiliation to the
woman or her child, including, but not
limited to, repeated verbal and
emotional abuse, and denial of financial
support or custody of minor children of
access to the woman's child/children.
Defenses
Grounds for denyin g legal
separa tion (Article 56):
(1) Condonation by aggrieved party
(2) Consent by aggrieved party to the
commission of the offense
(3) Connivance between parties in the
commission of the offense
(4) Mutual guilt or Recrimination between
spouses in the commission of any
ground for legal separation
(5) Collusion between parties to obtain
decree of legal separation
(6) Prescription of action for legal
separation (Art. 57: 5 years from
occurrence of the cause of action)
(7) Reconciliation of parties during
pendency of action (Art. 66 par.1)
(8) Death of either party during pendency
of action (Lapuz-Sy vs. Eufemio)
CIVIL LAW
When to file/try actions
An action for legal separation shall be filed
within five years from the time of the
occurrence of the cause. (Art. 57)
Coolin g-o ff and Re concila tion
Effects
Action cannot be tried before six
monthshave elapsed from the filing of the
petition (Art. 58).
Actions cannot be tried unless the court has
attempted to reconcile the spouses, and
determined that despite such efforts,
reconciliation is highly improbable (Art. 59)
of
N. B.: This is without prejudice to judicial
determination of custody of children,
alimony, and support pendente lite.
Courts can stillresolve other issues, pending
the waiting period or cooling off period. In
resolving other issues, courts should try not
to touch, as much as possible, on the main
issue (i.e. adultery if that is the ground
used). However, Court must still receive
evidence if just to settle incidental issues of
support and custody. [Araneta vs.
Concepcion, (1956)]
N. B.: This provision of the Family Code
dictating a mandatory 6-month cooling-off
period does not apply in cases where
violence, as used in RA 9262 (Anti-Violence
Against Women and their Children), is
alleged. The case should be heard as soon
as possible by the court.
Confession of Judgment
No decree of legal separation shall be
based upon a stipulation of facts or a
confession of judgment (Art. 60, par. 1. FC).
N. B.: Art. 60 par. 1 applies only if the
judgment was based solely on the
stipulation of facts or solely on the
confession of judgment. Thus, if other
grounds were used, Art. 60 par. 1 is not
applicable. (Balane)
The prohibition on confession of judgment
does not mean that the Court will not grant
PAGE 32 OF X
UP LAW BOC PERSONS AND FAMILY RELATIONS
petition if one party admits to being guilty
of the charges of adultery. The point of this
provision is that the Court should still admit
evidence, not decide just based on an
admission of guilt. Because what is
prohibited is handing down a decree of
legal separation based solely on a
confession of judgment. [Ocampo v
Florenciano (1960)]
Effects of Filing Petition
(1) The spouses are entitled to live
separately, but the marital bond is not
severed. (Art. 61 (1))
(2) Administration of community or
conjugal property – If there is no written
agreement between the parties, the
court shall designate one of them or a
third person to administer the ACP or
CPG. (Art. 61, par. 2)
Effects of Pendency
The Court shall provide for: (Art. 62, cf. Art.
49. FC)
▪ Support of spouses
▪ Custody of children: The court shall
give custody of children to one of them,
if there is no written agreement
between the spouses.
▪ Visitation rights of the other spouse
Effects of Decree of Legal
Separation
(1) The spouses can live separately (Art. 63)
but the marriage bonds are not severed.
(2) The ACP or CPG shall be dissolved and
liquidated, and the share of the guilty
spouse shall be forfeited in favor the
common children, previous children, or
innocent spouse, in that order (Art. 63.
cf. Art. 43, par. 2).
(3) Custody of the minor children shall be
awarded to the innocent spouse (Art.
63, cf. Art 213)
PAGE 33 OF X
CIVIL LAW
(4) Guilty spouse shall be disqualified from
Inheriting from innocent spouse by
intestate succession. The provisions in
favor of the guilty party in the will of the
innocent spouse shall also be revoked
by operation of law. (Art. 63)
(5) Donationsin favor of the guilty spouse
may be revoked (Art. 64) but this action
prescribes after 5 years from the decree
of legal separation.
(6) Innocent spouse may also revoke
designation of guilty spouse as
beneficiary in an Insurance policy, even
if such stipulations are irrevocable. (Art.
64. FC, cf. PD 612, sec. 11)
(7) Obligation for mutual support ceases,
but the court may order the guilty
spouse to support the innocent spouse.
(Art. 198)
(8) The wife shall continue to use the
surnameof the husband even after the
decree for legal separation. [Laperal v.
Republic (1992)]
Reconciliation
Should the spouses reconcile, they should
file a corresponding joint manifestation
under oath of such reconciliation, duly
signed by them and filed with the court in
the same proceeding for legal separation.
(Art. 65)
Effects of Reconciliation
(1) Proceedings for legal separation shall
be terminated at whatever stage. (Art.
66)
(2) If there is a final decree of legal
separation, it shall be set aside. (Art.
66)
(3) The separation of property and
forfeiture of share of guilty spouse shall
subsist, unless the spouses agree to
revive their former property regime or to
institute another property regime.(Art.
66 cf. Art. 67)
(4) Joint custody of children is restored.
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

(5) The right to intestate succession by (6) The right to testamentary succession
guilty spouse from innocent spouse is depends on the will of the innocent
restored. spouse

Annex to Void and Voidable Marriages and Legal Separation

Void Marriages Voidable Marriages Legal Separation

Grounds (1) One is a minor (1) Lack of parental (1) Repeated Physical
(2) No authority to consent Violence
marry (2) Insanity (2) Pressure to compel
to change
(3) No valid marriage (3) Fraud
religious/political
license affiliations
(4) Force, Intimidation
(4) Bigamous and
(5) Undue Influence (3) Corruption /
polygamous
Inducement to
marriages (6) Impotence
engage in
(5) Mistake of identity (7) Serious and prostitution
Incurable STD
(6) Void subsequent (4) Final judgment with
marriage sentence of more
(7) Psychological than 6 yrs.
incapacity (5) Drug Addiction /
(8) Incestuous Habitual Alcoholism
Marriages (6) Homosexuality /
(9) Marriages against Lesbianism
public policy (7) Bigamous marriage
(8) Sexual Infidelity
(9) Attempts against the
life of petitioner
(10) Abandonment
without just cause
for more than 1 year

Defenses (1) Condonation

(2) Consent
NONE (3) Connivance
(4) Collusion
(5) Mutual Guilty
(6) Prescription

Prescription No prescription (1) Lack of Parental Within 5 years from the

Consent: occurrence of the cause

PAGE 34 OF X
 Void Marriages Voidable Marriages Legal Separation

Who can file According to A.M. No. Spouses – 5 years after Only the spouses (cannot
02-11-10-SC): turning 21 survive the death of the
plaintiff)
(a) Before March 18, Parents – before the
2003 (petition for spouse turns 21
nullity or celebration of
(2) Insanity
marriage) – any party
Insane spouse – during
(b) On and after March
lucid intervals
18, 2003 (petition for
nullity or celebration of Sane spouse/guardian –
marriage) – only the lifetime
spouses
(3) Fraud – 5 years after
the discovery of the
fraud
(4) Force, Intimidation,
Undue Influence – 5
years after cessation
(5) Impotence or STD – 5
years from marriage

Effects of Pendency In the absence of adequate provisions in a written (1) Live separately
agreement:
(2) Designate either of
(1) Support of spouses them or a third person as
administrator of property
(2) Support and custody of children
(3) Visitation Rights (3) Support of spouses
(4) Support and custody
of Children
(5) Visitation rights
 Void Marriages Voidable Marriages Legal Separation

Effects of Decree (1) Children – (1) Children – considered (1) May live separately but
considered illegitimate legitimate conceived marriage bonds not
except for those and/or born prior to the severed
annulled under Art 36 termination of the
(2) ACP/CPG will be
and Art 53 marriage
dissolved and liquidated
(2) No ACP/CPG, or (2) ACP/CPG will be – offending spouse will
marriage settlement dissolved and liquidated have no right to the net
void because there was – the spouse in bad faith profits
no marriage – property will forfeit his share to
(3) Custody of minor
relations governed by his children or spouse
children – Innocent
co-ownership (same as (as the case may be) by
Spouse
common-law spouses) operation of law
(4) Disqualified to inherit
(3) Donations valid (3) Donations valid
from each other – will
unless in bad faith, unless in bad faith,
revoked by operation of
revoked by law revoked by law
law
(4) Revocation of (4) Revocation of
(5) Revocation of
designation as designation as
designation as
beneficiary beneficiary
beneficiary
(5) Disqualified to (5) Disqualified to
(6) Donations inter vivos
inherit by inherit by
are revoked
testate/intestate testate/intestate
UP LAW BOC PERSONS AND FAMILY RELATIONS
IV. Rights and
Obligations of Spouses
N. B.: These rights and duties are not subject
to stipulation between the spouses and
though they may voluntarily agree to any
change in their personal relations, this
agreement will be void and have no legal
effect.
A. LIVE TOGETHER
The right to live together refers to the right of
consortium which is “not susceptible of
precise or complete definition but, broadly
speaking, companionship, love, affection,
comfort, mutual services, sexual
intercourse—all belonging to the marriage
state—taken together make up what we refer
to as consortium.
GENERAL RULE: It is their obligation to do
so (cohabitation). It is also their obligation to
observe mutual love, respect and fidelity and
render mutual help and support. (Art. 68)
EXEMPTION : One spouse living
abroad or there are valid and
compelling reasons (Art. 69 (2)) – at the
discretion of the court.
EXEMPTION TO EXEMPTION :
Incompatibility with the solidarity of the
family (Art. 69 (2))
Goitia v. Campos Rueda (1916 ) : If the
wife abandons the family domicile (vs
obligation of cohabitation) with justifiable
causei.e. being forced to perform lewd sexual
acts, the husband’s obligation to support her
is not terminated. The law will not permit the
husband to terminate the obligation to
support his wife by his own wrongful acts in
driving the wife to seek protection in her
parents’ home.
Arroyo v. Vasquez de Arroyo (1921 ): A court
cannot compel a married woman to go back
to her husband, but the court may decree
that support be terminated.
B. FAMILY DOMICILE
PAGE 37 of 574
CIVIL LAW
The husband and wife shall fix the family
domicile. (Art. 69)
In case of disagreement, the court shall
decide. (Art. 69 (1))
C. SUPPORT
The spouses are jointly responsible for the
support of the family. The expenses for such
support and other conjugal properties shall
be paid:
• From the conjugal property;
• If none, income or the fruits of their
separate properties;
• If none, from their separate
properties, wherein they shall be
liable in proportion to their properties
(Art. 70)
In the case of a separation de facto, if it is
proved that the husband and wife were still
living together at the time of his death, it
would be safe to presume that she was
dependent on the husband for support,
unless it is shown that she is capable of
providing for herself. [SSS v. Aguas (2006)]
D. MANAGEMENT OF FAMILY LIFE
This is the right and duty of both spouses.
The expenses for such management shall be
paid in accordance with the provisions of
Article 70 (Art. 71).
E. EFFECT OF NEGLECT OF DUTY
In case the other spouse neglects his or her
duties or commits acts which tend to bring
danger, dishonor or injury to the family, the
aggrieved party may apply to the court for
relief. (Art. 72)
▪ Injury contemplated is physical,
moral, emotional or psychological,
not financial.
F. EXERCISE OF PROFESSION
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

Either spouse may exercise any legitimate Although marriage is one of the events
profession, without need for consent of the required to be recorded in the civil register, a
other. woman does not register her married name.
o The other spouse may only object on Neither does a married woman file a petition
valid, serious, and moral grounds. for change of name in order to use her
husband’s surname.
o In case of disagreement, the Court
shall decide whether:
▪ The objection is proper, and
▪ Benefit has accrued to the family
before OR after the objection.If
BEFORE, enforce resulting
obligation against the separate
property of the spouse who has
not obtained consent. (Art. 73)

G. USE OF SURNAME

Art 370 , CC. A married woman may use:

1) Her maiden first name and surname
and add her husband’s surname, or
2) Her maiden first name and her
husband’s surname or
3) Her husband’s full name, but
prefixing a word indicating that she
is his wife, such as Mrs.
Art 373, CC. A widow may use the
deceased husband’s surname as though he
were still living, in accordance with Article
370.
Art 376 , CC. No person can change his
name or surname without judicial authority
Art 377 , CC. Usurpation of a name and
surname may be the subject of an action for
damages and other relief.
Art 378 , CC. The unauthorized or unlawful
use of another person’s surname gives a
right of action to the latter.

N. B.: From the foregoing provisions, it can

be gleaned that a woman is not mandated by
law to adopt her husband’s name after
marriage. Article 370 is merely directory,
since it provides that a woman may choose
any of the options provided.

PAGE 38 of 574
UP LAW BOC PERSONS AND FAMILY RELATIONS
Marriage Settlement Rules
V. Property Relations
of Spouses
A. MARRIAGE SETTLEMENTS
According to Art. 74, Property relations
between husband and wife are governed:
(1) By marriage settlements executed before
the marriage
(2) By the provisions of this Code
(3) By the local custom
Re quisite s for Valid ity
Art. 75 . The future spouses may, in the
marriage settlements, agree upon the regime
of absolute community, conjugal partnership
of gains, complete separation of property, or
any other regime. In the absence of marriage
settlement, or when the regime agreed upon
is void, the system of absolute community of
property as established in this Code shall
govern.
N. B.: Marriage settlements are considered
accessory to the marriage, therefore as per
Art. 81, stipulations in consideration of future
marriage and donations will be void if the
marriage does not take place.
Art. 103 ( 3 ) & 130 ( 3 ) . Should the surviving
spouse contract a subsequent marriage
without compliance with the foregoing
requirements, a mandatory regime of
complete separation of property shall govern
the property relations of the subsequent
marriage.
PAGE 39 of 574
CIVIL LAW
When modifications can be made
General rule: Before marriage is
celebrated [Art. 76 ]
Art. 63 ( 2 ) : Property regime is dissolved
and liquidated
Arts. 66 and 67 : Reconciliation in case of
legal separation
Art. 128 : When abandoned spouse
petitions the court for judicial separation of
property
Art. 135 : Sufficient cause for judicial
separation of property
Art. 136 : Voluntary dissolution of ACP or
CPG by the spouses
Requirements of marriage settlements and
any modification thereof [Art. 77]
Made in writing
Signed by the parties
Executed before the marriage celebration
Not to prejudice third persons unless
registered in the local civil registry where the
marriage is recorded and in registries of
property
If executed by a person below 21 years, valid
only when persons required to give consent
to the marriage (father, mother, or guardian,
respectively) are made parties to the
agreement [Art. 78 ]
If executed by a person upon whom civil
interdiction has been pronounced or who is
subject to any other disability, valid only
when his guardian appointed by a
competent court is made party to the
agreement [Art. 79 ]
UP LAW BOC PERSONS AND FAMILY RELATIONS
B. DONATIONS BY REASON OF
MARRIAGE
Solis v. Barroso (1928 ): In donations propter
nuptias, the marriage is really a
consideration, but not in the sense of giving
birth to the obligation. There can be a valid
donation even if the marriage never took
place, but the absence of marriage is a
ground for the revocation of the donation.
Mateo v. Lagua (1969 ) : Donations propter
nuptias are without onerous consideration,
marriage being merely the occasion or motive
for the donation, not its cause. Being
liberalities, they remain subject to reduction
for inofficiousness upon the donor’s death, if
they should infringe the legitime of a forced
heir.
Requisites of donations propter nuptias
1. Made before the celebration of marriage
2. Made in consideration of marriage
3. In favor of one or both of the future
spouses
4. Donor must be one of the betrothed or any
third person
Donations excluded
• Ordinary wedding gifts given after the
celebration of the marriage
• Donations in favor of future spouses made
before marriage but not in consideration
thereof
• Donations made in favor of persons other
than the spouses even if founded on the
intended marriage
Who may donate
• Spouses to each other
• Parents of one or both spouses
• Third persons to either or both spouses
PAGE 40 of 574
CIVIL LAW
RULES FOR DONATIONS BEFORE
MARRIAGE
General rule: Future spouses who agree
upon a regime other than ACP cannot donate
to each other more than 1/5 of their present
property (excess shall be considered void).
[Art. 84]
Donations of property subject to
encumbrances
1. Are considered valid.
2. In case of foreclosure:
a. if property value < obligation, donee
shall not be liable for the deficiency
b. if property value > obligation, donee
shall be entitled to the excess (Art.
85)
GROUNDS FOR REVOCATION OF
DONATION PROPTER NUPTIAS [Art. 86]
1. If the marriage is not celebrated or
judicially declared void ab initio, EXCEPT
donations made in marriage settlements.
2. When the marriage takes place without the
consent of the parents or guardians, as
required by law.
3. When the marriage is annulled, and the
donee acted in bad faith.
4. Upon legal separation, if the donee is the
guilty spouse.
5. If there is a resolutory condition, and it is
not complied with.
6. When donee has committed an act of
ingratitude: [Art. 765, CC]
a. An offense against person or property
of donor, or his wife or children under
parental authority.
b. An imputation to the donor of any
criminal offense, or any act involving
moral turpitude, even if proven, unless
the crime is committed against the
donee, his wife or children under his
authority.
c. Refusing to support the donor, if
he/she is legally required to do so.
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

the provision prohibiting donations between

spouses during marriage.
Effects of judicial declaration of nullity
Donations by reason of marriage shall remain
valid EXCEPT that if the donee contracted Distin guished from Ordinary
marriage in bad faith, such donations made Donations
to said donee are revoked by operation of law.
[Art. 43 (3)]Thus, even if spouse in good faith Donations propter Ordinary donations
condones the donee, the donation propter nuptias
nuptias is still forfeited.
Does not require Express acceptance
Effects provided for by Art. 43(2), (3), (4), and express acceptance necessary
(5) and by Art. 44 shall also apply to
marriages that are declared void ab initio or May be made by Cannot be made by
annulled by final judgment under Article 40 minors (Art. 78) minors
(Judicial declaration of nullity) and 45
(Voidable marriages). [Art. 50] May include future Cannot include future
property property

If present property is No limit to donation of

RULES FOR DONATIONS DURING donated and property present property
MARRIAGE is not absolute provided legitimes are
General rule: Spouses cannot donate to community, limited not impaired
each other, directly or indirectly; donations to 1/5 (Art. 84)
made by spouses to each other during the
marriage are void. [Art. 87] Grounds for Grounds for revocation
revocation - in Art. 86 - in donation laws
These donations refer to donations inter vivos
(Tolentino)
Exception: Moderate gifts on the occasion of
any family rejoicing.
Harding v. Commercial Union (1918): The ABSOL UT E COMMUNIT Y OF
prohibition on donations can only be assailed PROPERT Y AND CONJUGAL
by persons who bear such relation to the PARTNERSHIP OF GAINS
parties or the property itself, that their rights Art. 80. In absence of a contrary stipulation
are being interfered with. Here, the insurance in a marriage settlement, the property
company of the donated car cannot assail the relations of the spouses shall be governed by
validity of the donation. In addition, the codal Philippine laws, regardless of the place of the
exception of “moderate gifts” depends on the celebration of the marriage and their
income class of the spouses and a car could residence.
be considered a “moderate gift” that does not
infringe the prohibition of donation between N. B.: By the Nationality Rule [Art. 15], the
spouses. rule that Absolute Community Property (ACP)
is the default mode of property relations
Nazareno v. Birog (1947): A spouse cannot absent any marriage settlement applies to all
donate to persons which the other spouse Filipinos, regardless of the place of the
may inherit from as it constitutes an indirect marriage and their residence.
donation.
EXCEPTIONS (Art. 80)
• Where both spouses are aliens
RULES FOR DONATIONS BETWEEN
COMMON-L AW SPOUSES • With respect to the extrinsic validity of
contracts affecting property not situated in
Matabuena v Cervantes (1971): The donation the Philippines and executed in the
between common-law spouses falls within country where the property is located

PAGE 41 of 574
UP LAW BOC PERSONS AND FAMILY RELATIONS
• With respect to the extrinsic validity of
contracts entered into in the Philippines but
affecting property situated in a foreign
country whose laws require different
formalities for its extrinsic validity
Art. 81 . Everything stipulated in the
settlements or contracts referred to in the
preceding articles in consideration of a future
marriage, including donations between the
prospective spouses maded therein, shall be
rendered void if the marriage does not take
place. However, stipulations that do not
depend upon the celebration of marriage
shall be valid.
e.g. recognition of paternity of illegitimate
child
Art. 89 . No waiver of rights, shares and
effects of the absolute community of property
during the marriage can be made except in
case of judicial separation of property.
When the waiver takes place upon a judicial
separation of property, or after the marriage
has been dissolved or annulled, the same
shall appear in a public instrument and shall
be recorded as provided in Article 77. The
creditors of the spouse who made such
waiver may petition the court to rescind the
waiver to the extent of the amount sufficient
to cover the amount of their credits.
Art. 90. The provisions on co-ownership shall
apply to the absolute community of property
between the spouses in all matters not
provided for in this Chapter.
N. B.: The creditors of the spouse who made
such waiver may petition the court to rescind
the waiver to the extent of the amount
sufficient to cover the amount of their credits.
PAGE 42 of 574
CIVIL LAW
ABSOL UT E COMMUNIT Y OF
PROPERTY
The community property consists of all the
property owned by the spouses at the time of
the celebration of the marriage and those
either one or both of them acquired during
the marriage. There is a presumption in law
that properties acquired during the marriage
belong to the community, unless it is proved
that it is one of those excluded therefrom.
CONJUGAL PARTNERSHIP OF GAINS
This property regime was formerly the default
regime under the Civil Code. In this regime,
the spouses retain ownership of their
separate property. However, the spouses also
place in common fund the proceeds, products,
fruits and income of their separate property
and those acquired by either or both spouses
through their efforts or by chance.
The presumption applies that all properties
acquired during the marriage belong to the
CPG. There are 3 distinct patrimonies in this
system, the husband’s capital property, the
wife’s paraphernal property and the conjugal
property.
SEPARATION OF PROPERTY
Each spouse has complete control and
ownership of his or her own properties which
will include “all earnings from his or her
profession, business or industry and all fruits,
natural, industrial or civil, due or received
during the marriage form his or her separate
property.” Expenses of the family shall be
shouldered by the spouses in proportion to
their income, or, in case of insufficiency or
default thereof, to the current market value of
their separate properties.
UP LAW BOC PERSONS AND FAMILY RELATIONS
COMPARISON OF ACP and CPG
ABSOLUTE COMMUNITY OF
PROPERTY
When it At the precise moment of the
commences celebration of the marriage [Art.
88 ]
What it consists of All the property owned by the
spouses at the time of the
celebration of the marriage or
acquired thereafter [Art. 91 ]
Under the ACP, spouses cannot
exclude specific properties from
the regime.
Winnings from gambling shall
accrue to the community property
[Art. 95 ]
PAGE 43 of 574
CIVIL LAW
CONJUGAL PARTNERSHIP OF GAINS
Default property regime for marriages
celebrated before the Family Code took effect
(August 3, 1988)
For marriages after the Family Code, if agreed
to by the parties through a marriage
settlement.
Proceeds, products, fruits, and income of their
separate properties
Everything acquired by them during marriage
through their own efforts
Everything acquired by them by chance.
Specific properties (Art. 117 )
1. Acquired by onerous title during the
marriage at the expense of the common fund;
2. Acquired through the labor, industry, work,
or profession of either or both spouses
3. Fruits from common property and net fruits
of the exclusive property of each spouse
4. Share of either spouse in hidden treasure,
whether as finder or owner of property where
treasure was found
5. Acquired through occupation such as
fishing or hunting
6. Livestock existing at dissolution of
partnership in excess of what is brought by
either spouse to the marriage
7. Acquired by chance, such as winnings from
gambling or betting
Moral damages arising from a contract paid
from the CPG [Zulueta v. Pan Am (1973 )]
Loans contracted during the marriage are
conjugal, and so is any property acquired
therefrom [Mendoza v. Reyes (1983 )]
Property purchased by installment, paid
partly with conjugal funds and partly with
exclusive funds, if full ownership was vested
during the marriage; the CPG shall reimburse
the owner-spouse [Art. 118 ]
If a winning ticket is bought by conjugal
funds, the prize is conjugal (otherwise, the
prize is exclusive property of the spouse who
UP LAW BOC PERSONS AND FAMILY RELATIONS
ABSOLUTE COMMUNITY OF
PROPERTY
What remains Properties acquired before the
exclusive property marriage, for those with
legitimate descendants with a
former marriage (to protect rights
of children by a former marriage)
Properties acquired during the
marriage by a gratuitous title, i.e.
donation, inheritance by testate
and intestate succession,
including the fruits of such
properties
Except: When expressly provided
by the donor or testator that the
property shall form part of the
ACP
Properties for personal use
Except: Jewelry (partakes of the
nature of an investment)
PAGE 44 of 574
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CONJUGAL PARTNERSHIP OF GAINS
owns the ticket)
Improvement on exclusive property: if original
value < new value (where new value = value of
land + value of improvements + net change in
value), then land becomes conjugal property,
subject to the reimbursement of the value of
the property of the owner-spouse at the
dissolution of the CPG
Property belonging to one spouse converted
into another kind totally different in nature
from its original form during marriage
becomes conjugal in the absence of proof that
the expenses of the conversion were
exclusively for the account of the original
owner-spouse, subject to reimbursement of
the value of the original property from the
conjugal partnership
Property brought into the marriage by each
spouse as his/her own
Property acquired by either spouse during the
marriage by gratuitous title
Property acquired by right of redemption, by
barter, or by exchange with property
belonging to either spouse
Plata v. Yatco: Plata purchased property
when she was single. When married, she and
her husband Bergosa co-signed a mortgage
on the property. Upon foreclosure, Bergosa
was sued for illegal detainer. A writ of
execution on the property was carried out but
Plata refused to leave the premises. SC ruled
that Plata cannot be held in contempt.
Property is not conjugal. Her husband signing
as co-mortgagor does not convert it to CPG.
She could ignore execution because the
UP LAW BOC PERSONS AND FAMILY RELATIONS
ABSOLUTE COMMUNITY OF
PROPERTY
Presumption All properties acquired during the
marriage form part of the ACP,
unless it be proven that they are
excluded. [Art. 93 ]
Charges and Arts. 94
Obligations 1. Support of the following:
a. Spouses;
b. Common children;
c. Legitimate children of previous
marriage;
d. Illegitimate children – follow
the provisions on Support; ACP
liable in case of absence or
insufficiency of the exclusive
property of the debtor-spouse but
the payment shall be considered
as advance to the share of the
debtor-spouse.
2. Expenses to enable either
spouse to commence/ complete a
professional/vocational course or
activity for self-improvement;
3. Value donated or promised by
both spouses in favor of common
legitimate children for the
exclusive purpose of
commencing/ completing a
professional/ vocational course or
activity for self-improvement
If community property is
insufficient, the spouses are
solidarily liable for the unpaid
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CONJUGAL PARTNERSHIP OF GAINS
decision was for her husband alone.
Property purchased with exclusive money
of either spouse
Property purchased by installment, paid
partly with conjugal funds and partly with
exclusive funds, if full ownership was vested
before the marriage [Art. 118 ]
Even if the installment is completed after the
marriage, the property is exclusive if
ownership was vested in one spouse before
the marriage [Lorenzo v. Nicola s (1952 )]
All property acquired during the marriage,
whether made, contracted, or registered in
the name of one spouse, are presumed
conjugal unless the contrary is prove. [Art
116 ]
Arts. 121 -123
1. Support of the following:
a. Spouses;
b. Common children;
c. Legitimate children of previous marriage;
d. Illegitimate children – follow the provisions
on Support; Partnership assets liable in case
responsibilities under Art. 121 have been
covered and there is absence or insufficiency
of the exclusive property of the debtor-spouse
but the payment shall be considered as
advance to the share of the debtor-spouse.
2. Expenses to enable either spouse to
commence/complete a
professional/vocational course or activity for
self-improvement;
3. Value donated or promised by both spouses
in favor of common legitimate children for the
exclusive purpose of commencing/
completing a professional/ vocational course
or activity for self-improvement
If conjugal partnership property is insufficient,
the spouses are solidarily liable for the unpaid
balance from their separate properties except
UP LAW BOC PERSONS AND FAMILY RELATIONS
ABSOLUTE COMMUNITY OF
PROPERTY
balance from their separate
properties except for:
1. Debts contracted by either
spouse before marriage which
have not redounded to the benefit
of the family;
2. Support of illegitimate
children; and
3. Liabilities incurred by either
spouse arising from crime or
quasi-delict.
Gambling losses of any kind (i.e.
legal or illegal) shall be borne by
the losing spouse’s separate
property [Art. 95]
Ownership, The administration and
administration, enjoyment of the community
enjoyment, and property shall belong to both
disposition spouses jointly. In case of
disagreement, the husband’s
decision shall prevail, subject to
recourse to the court by the wife
for a proper remedy, within 5
years from the date of contract
(Art. 96)
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CONJUGAL PARTNERSHIP OF GAINS
for:
1. Debts contracted by either spouse before
marriage which have not redounded to the
benefit of the family;
2. Support of illegitimate children; and
3. Liabilities incurred by either spouse arising
from crime or quasi-delict.
Gambling losses of any kind (i.e. legal or
illegal) shall be borne by the losing spouse’s
separate property [Art. 123 ]
DBP v. Adil (1988 ):
Loan contracts signed by both spouses are
conjugal, and they are jointly liable for
payment, even if only one spouse signs a
subsequent promissory note.
Ayala Inve stmen t v. Ching (1998 ):
The Supreme Court ruled that the indirect
benefits that might accrue to a husband in
signing as a surety or guarantee in an
agreement not in favor of the family but in
favor of his employer corporation are not
benefits that can be considered as giving a
direct advantage accruing to the family.
Hence, the creditors cannot go against the
conjugal partnership property in satisfying the
obligation subject of the surety agreement. A
contrary view would put in peril the conjugal
partnership by allowing it to be given
gratuitously as in cases of donation of
conjugal partnership property, which is
prohibited.
The administration and enjoyment of the CPG
shall belong to both spouses jointly. In case of
disagreement, the husband’s decision shall
prevail, subject to recourse to the court by the
wife for proper remedy, within 5 years from
the date of contract (Art. 124 )
De Ansaldo v. Sheriff of Manila (1937 ):
Spouses are not co-owners of CPG during the
marriage and cannot alienate the supposed ½
interest of each in the said properties. The
interest of the spouses in the CPG is only
inchoate or a mere expectancy and does not
ripen into title until it appears after the
dissolution and liquidation of the partnership
that there are net assets.
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

ABSOLUTE COMMUNITY OF CONJUGAL PARTNERSHIP OF GAINS

PROPERTY

Either spouse may, through a will, Art. 124 , par. 2 : Disposition or

dispose of his or her interest in
the community property. [Art. 97]
However, the will should refer
only to his or her share in the
community property.
Donation of one spouse without
the consent of the other is not
allowed. [Art. 98]
Exceptions:
Moderate donations to charity
due to family rejoicing or distress
encumbrance of conjugal property requires
the following: Authority of the court or written
consent of the other spouse. The absence of
such will render such encumbrance void.
Consent or approval by both spouses, or
authority given by the court in lieu of the
consent of the other spouse.

Moderate gifts by each spouse to

the other due to family rejoicing
Moderation depends on the
family’s socio-economic status.

ACP allows donations in excess of

one-fifth of present property of
future spouses because the
donation would form part of the
community property once the
marriage is celebrated. [Art. 84]
Jader-Manalo v. Camaisa (2002 ): Mere awareness of a transaction is NOT
consent.

Homeowner’ s Savings & Loan Bank v. Dallo (2005 ):

In the absence of (court) authority or written consent of the other spouse, any
disposition or encumbrance of the conjugal property shall be void.

Cheeseman v. IAC (1991 ):

If however, one of the spouses is an alien, the Filipino spouse may encumber or
dispose of the property w/o the consent of the former. The property is presumed
to be owned exclusively by the Filipino spouse.
Dissolution of the Terminates upon [Art. 99]: Terminates upon [Art. 126 ; cf. Art. 99]:
regime 1. Death of either spouse – 1. Death
follow rules in Art. 103 2. Legal separation
2. Legal separation – follow 3. Annulment or judicial declaration of
rules in Arts. 63 and 64 nullity
3. Annulment or judicial Judicial separation of property
declaration of nullity – follow
rules in Arts. 50 and 52
Judicial separation of property
during marriage – follow rules in
Arts. 134 to 138

Rules on de facto Rules on de facto separation Rules on de facto separation [Art. 127 ]
separation [Art. 100 ] De facto separation does not affect the CPG,
De facto separation does not except that:

PAGE 47 of 574
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affect the ACP, except that:
Spouse who leaves the conjugal
home without just cause shall not
be entitled to support; however,
he/she is still required to support
the other spouse and the family
If consent is necessary for
transaction but is withheld or
otherwise unobtainable,
authorization may be obtained
from the court
Support for family will be taken
from the ACP
If ACP is insufficient, spouses
shall be solidarily liable
Effect of de facto If it is necessary to administer or
separation encumber separate property of
spouse who left, spouse present
may ask for judicial authority to
do this
If ACP is not enough and one
spouse has no separate property,
spouse who has property is liable
for support, according to
provisions on support.
Charges and Abandonment [Art. 101]
Obligations Present/aggrieved spouse may
petition the court for:
1. Receivership
2. Judicial separation of
property
3. Authority to be the sole
administrator of the absolute
community, subject to
precautionary conditions that
the court may impose
A spouse is deemed to have
abandoned the other when he or
she has left the conjugal dwelling
without any intention of
returning.
Spouse is prima facie considered
to have abandoned the other
Rules on spouse and the family if he or she
Abandonment has:
1. Left for a period of 3 months
2. Failed to inform the other
spouse of his or her
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Spouse who leaves the conjugal home
without just cause shall not be entitled to
support; however, he/she is still required to
support the other spouse and the family
2. If consent is necessary for transaction but is
withheld or otherwise unobtainable,
authorization may be obtained from the court
3. Support for family will be taken from the
partnership property.
4. If partnership property is insufficient,
spouses shall be solidarily liable
5. If it is necessary to administer or encumber
separate property of spouse who left, spouse
present may ask for judicial authority to do
this
6. If partnership property is not enough and
one spouse has no separate property, spouse
who has property is liable for support,
according to provisions on support.
Abandonment [Art. 128 ]
Present/aggrieved spouse may petition the
court for:
1. Receivership
2. Judicial separation of property
3. Authority to be the sole administrator of the
partnership property, subject to precautionary
conditions that the court may impose
A spouse is deemed to have abandoned the
other when he or she has left the conjugal
dwelling without any intention of returning.
Spouse is prima facie considered to have
abandoned the other spouse and the family if
he or she has:
1. Left for a period of 3 months
2. Failed to inform the other spouse of his or
her whereabouts for a period of 3 months
Partosa-Jo v. CA (1992 ):
Physical separation of the spouses, coupled
with the husband’s refusal to give support to
the wife, sufficed to constitute abandonment
as a ground for an action for the judicial
UP LAW BOC PERSONS AND FAMILY RELATIONS
ABSOLUTE COMMUNITY OF
PROPERTY
whereabouts for a period of 3
months
Liquidation of Procedure [Art. 102 ]
assets and • Inventory of assets of ACP
liabilities and of spouses, with market
values
• Obligations are paid with
community property, and
separate obligations not
charged to ACP paid by
respective assets of spouses
If obligations exceed the assets of
the ACP, nothing is divided.
Creditors can go after the
separate properties of the
spouses, which are solidarily
liable for the deficiency
• Delivery of whatever remains
in their exclusive property
• Balance, or net remainder is
divided equally between the
spouses, irrespective of how
much each brought into the
community
• If personal obligations of a
spouse exceed his/her
separate property, creditor
can go after the share of the
spouse on the net remainder
of the ACP, without prejudice
to the provisions of law on
forfeitures and delivery of
presumptive legitimes
• After covering all community
obligations and obligations
of spouses, balance of
separate properties shall be
delivered to respective
spouses or their heirs, and
they will also divide into two
equal shares whatever is left
of the community assets,
without prejudice to the
provisions of law on
forfeitures and delivery of
presumptive legitimes
Rules in case of termination of marriage by death of one of the spouses [Art.
104 ]:
1. The community property shall be liquidated in the same proceeding for the
settlement of the estate of the deceased spouse.
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separation of their conjugal property.
Procedure [Art. 129 ]
1. Prepare an inventory of all properties
2. Amounts advanced by CPG in payment of
personal debts and obligations shall be
credited to the CPG
3. Reimburse each spouse for the use of
his/her exclusive funds in the acquisition
of property or for the value of his or her
exclusive property, the ownership of which
has been vested by law in the conjugal
partnership
4. Debts and obligations of CPG shall be
paid out of the conjugal assets, otherwise
both spouses are solidarily liable with
their exclusive property
5. Remains of the exclusive properties shall
be delivered to respective owner-spouses.
6. Indemnify loss/deterioration of movables
belonging to either spouse, even due to
fortuitous event, used for the benefit of
the family
7. Net remainder of CPG shall constitute the
profits which shall be divided equally
between husband and wife except when:
• A different proportion or division was
agreed upon in the marriage
settlements
• There has been a voluntary waiver or
forfeiture of such share as provided in
the FC
8. Presumptive legitimes are delivered to
common children
9. Conjugal dwelling goes to:
• Spouse with whom majority of
common children choose to remain
(below 7 y.o. = deemed to have
chosen the mother based on the
tender years presumption)
• Whoever the court chooses in case of
lack of majority
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

ABSOLUTE COMMUNITY OF CONJUGAL PARTNERSHIP OF GAINS

PROPERTY
2. If no such judicial settlement proceeding is instituted, surviving spouse shall
liquidate the community property either judicially or extra-judicially within
one year from the death of the deceased spouse.
a. If no liquidation is made within the period, any disposition or encumbrance
involving community property of the terminated marriage shall be void.
b. Non-compliance with liquidation procedures would mean that a
subsequently contracted marriage will follow a regime of complete
separation of property.
Procedure for liquidation of properties of two marriages [Art. 104 ]:
Determine the capital, fruits, and income of each community upon such proof as
may be considered according to the rules of evidence.
In case of doubt as to which community the existing properties belong, they shall
be divided between two communities in proportion to the capital and duration of
each.

Separation of Property of the Spouses and Administration of Common Property by One Spouse During
the Marriage

Art. 134 . In the absence of an express declaration in the marriage settlements. The separation of
property between spouses during the marriage shall not take place except by judicial order. Such
judicial separation of property may either be voluntary or for sufficient cause.

Sufficient Causes and Grounds for Return to Previous Regime

Sufficient Causes for Judicial Separation of Grounds for Return to Previous Regime
Property (Art. 135) (Art. 141)

(1) Spouse of petitioner has been sentenced to a (1) Termination of the civil interdiction
penalty which carries with it the penalty of civil
interdiction

(2) Spouse of petitioner is judicially declared an (2) Reappearance of absentee spouse

absentee

(3) Loss of parental authority of the spouse of (3) Restoration of parental authority to the spouse
petitioner has been decreed by the court previously deprived of it

(4) Spouse of petitioner has abandoned the latter (4) When the spouse who left the conjugal home
or failed to comply with his or her obligations to without legal separation resumes common life with
the family the other

(5) The spouse granted the power of (5) When the court, being satisfied that the spouse
administration in the marriage settlements has granted the power of administration in will not again
abused that power abuse that power, authorizes the resumption of said
administration

(6) At the time of the petition, the spouses have (6) Reconciliation and resumption of common life of
been separated in fact for at least 1 year and the spouses who had been separated in fact for at
reconciliation is highly improbable. least 1 year

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(7) When after voluntary dissolution of the ACP or

CPG has been judicially decreed upon the joint
petition of the spouses, they agree to the revival of
the former property regime. No voluntary separation
of property may thereafter be granted.

SEPARATION OF PROPERTY
Agreed upon in the marriage settlements by the spouses
Mandatory under Arts. 103 & 130 (subsequent marriages contracted by a
surviving spouse without judicial settlement of previous property regime)
When it applies
Judicial separation of property (Voluntary or just cause)
Default property regime when there is reconciliation between spouses after
judicial separation of property

Present or future property or both

Each spouse’s earnings from his or her own profession, business, or industry
What it consists of Natural, industrial or civil fruits of spouse’s separate properties
May be total or partial
If partial, property not considered separate is presumed to pertain to the ACP

Family expenses: Both spouses are liable in proportion to their income; if

Liabilities insufficient, based on the current value of their separate properties

Creditors for family expenses: Spouses solidarily liable

Spouses may own, dispose, possess, and administer separate estates without the
consent of the other

Ownership, Administration of exclusive properties may be transferred between spouses when:

administration, One spouse becomes the other spouse’s guardian
enjoyment, and 1. One spouse is judicially declared an absentee
disposition 2. One spouse is given the penalty of civil interdiction
3. One spouse becomes a fugitive

Conveyance between the spouses is allowed under Art. 1490, NCC.

In Re: voluntary dissolution of CPG of Sps.
Bernas (1965 ):
A voluntary separation of properties is not
perfected by mere consent but upon the
decree of the court approving the same. The
petition for voluntary separation of property
was denied because the children of the 1st
and 2nd marriages were not informed; the
separation of property may prejudice the
rights and shares of the children.
Maquilan v. Maquilan (2007 ):
A compromise agreement with judicial
recognition is valid, pending petition for
declaration of nullity of marriage.

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PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE, Arts. 147 -148

Art. 147 Art. 148

Man and woman living together as
husband and wife, with capacity to
marry (Art.5, without any legal
impediment)
-at least 18 years old
-not violative of Art. 37 (incestuous
Applicability void marriage)
-not violative of Art. 38 (void marriage
by reason of public policy)
-not bigamous
Man and woman living together as
husband and wife, NOT capacitated to
marry
a. Under 18 years old
b. Adulterous relationship
c. Bigamous/polygamous marriage
d. Incestuous marriages under Art. 37
e. Void marriages by reason of public policy
under Art. 38

Other void marriages due to absence

of formal requisite

Salaries and Owned in equal shares Separately owned by parties

wages

Properties Remains exclusive, provided there is Remains exclusive

acquired through proof
exclusive funds

Properties Governed by rules on co-ownership Owned in common in proportion to

acquired by both respective contribution
through work
and industry

Owned in equal shares since it is

presumed to have been acquired
through joint efforts

If one party did not participate in

acquisition, presumed to have No presumption of joint acquisition. When
Properties contributed jointly, if the former’s there is evidence of joint acquisition but
acquired while effort consisted in the care and none as to the extent of actual
living together maintenance of family and household contribution, there is a presumption of
equal sharing.
N.B. Neither party can encumber or
dispose by acts inter vivos his share in
co-owned property without the
consent of the other party until
cohabitation is terminated.

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Art. 147 Art. 148

Where only one party to a void
marriage is in good faith, share of
party in bad faith is forfeited:
-In favor of their common children
-In case of default of or waiver by any
or all of the common children or their
descendants, each vacant share shall
Forfeiture
belong to the respective surviving
descendants
-In the absence of such descendants,
such share belongs to the innocent
party
If one party is validly married to another
his/her share in the co-owned properties
will accrue to the ACP/CPG of his/her
existing valid marriage.
If the party who acted in bad faith is not
validly married to another, his/her share
shall be forfeited in the same manner as
that provided in Art 147.
The same rules on forfeiture shall apply if
both parties are in bad faith.

Difference between Articles 147 and 148

Art. 147 applies “to unions of parties who are
legally capacitated and not barred by any
impediment to contract marriage, but whose
marriage is nonetheless void for other
reasons, like the absence of a marriage
license.”

Article 148 refers to “the property regime of

bigamous marriages, adulterous
relationships, relationships in a state of
concubinage, relationships where both man
and woman are married to other persons,
multiple alliances of the same married man.”
[Nicdao Cariño v. Yee Cariño (2001)].

Yaptinchay v. Torres (1969 ):

Application of Article 148; there was no proof
of actual contribution, while there was a
subsisting marriage apart from the union
without marriage, therefore, the N. Forbes
house goes to the CPG of subsisting marriage

Villanueva v. CA (2004 ):
Transfer of certificate and tax declarations
are not sufficient proof of joint contribution.

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choose to continue employing her former

XII. Surnames husband's surname, unless [Art. 371]:
(a) The court decrees otherwise, or
A. SURNAMES OF CHILDREN (b) She or the former husband is
(1) Legitimate and legitimated married again to another person.
children shall principally use the
surname of the father. [Art. 364]
(2) An adopted child shall bear the
surname of the adopter. [Art.
365]
(3) A natural child acknowledged by
both parents shall principally use
the surname of the father. If
recognized by only one of the
parents, a natural child shall
employ the surname of the
recognizing parent. [Art 366]
(4) Natural children by legal fiction
shall principally employ the
surname of the father [Art. 367]
(5) Illegitimate children referred to in
Article
287 shall bear the surname of
the mother. [Art 368]
(6) Children conceived before the
decree annulling a voidable
marriage shall principally use
the surname of the father. [Art.
369]

B. WIFE AFTER AND

DURING MARRIAGE
(1) A married woman may use [Art. 370]:
(a) Her maiden first name and
surname and add her
husband's surname, or
(b) Her maiden first name and
her husband's surname or
(c) Her husband's full name, but
prefixing a word indicating
that she is his wife, such as
"Mrs."
(2) In case of annulment of marriage,
and the wife is the guilty party,
she shall resume her maiden
name and surname. If she is the
innocent spouse, she may
resume her maiden name and
surname. However, she may
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(3) When legal separation has been granted,

the wife shall continue using her name and
surname employed before the legal
separation. [Art. 372]
(4) A widow may use the deceased husband's
surname as though he were still living, in
accordance with Article 370. [Art 373]

C. CONFUSION AND CHANGE OF

NAMES
In case of identity of names and surnames,
the younger person shall be obliged to use
such additional name or surname as will
avoid confusion. [Art. 374]
In case of identity of names and surnames
between ascendants and descendants, the
word "Junior" can be used only by a son.
Grandsons and other direct male
descendants shall either [Art. 375]:
(1) Add a middle name or the mother's
surname, or
(2) Add the Roman Numerals II, III, and so
on.
Usurpation of a name and surname may be
the subject of an action for damages and
other relief. [Art. 377]
The unauthorized or unlawful use of another
person's surname gives a right of action to
the latter [Art. 378]
The employment of pen names or stage
names is permitted, provided it is done in
good faith and there is no injury to third
persons. Pen names and stage names cannot
be usurped. [Art. 379]
Except as provided in the preceding article,
no person shall use different names and
surnames. [Art 380]
Illegitmate Children shall use the surname
and shall be under the parental authority of
their mother. However, they may use the
surname of their father if their filiation has
been expressly recognized by their father
through:
(a) record of birth in civil register
(b) admission in public document
(c) admission in private handwritten
document

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