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CHAPTER 3. VOID AND VOIDABLE MARRIAGES

- There are basically 2 kinds of defective marriages:
 1. void marriage
 Meaning void from the very beginning. Called void ab initio.
 2. voidable marriage/annullable marriage
 Marriages are valid until annulled.
- VOID VS. VOIDABLE

VOID MARRIAGE VOIDABLE MARRIAGE

- Defective from the very start - Valid until it is annulled
- Not curable OR cannot be remedied - Curable
o Defect may be ratified by
continued cohabitation or by allowing
the prescriptive period to expire. Then
the marriage will be considered as
valid.
- May be attacked collaterally. - May be attacked directly.
o Means the issue in the case is something else. The o You have to file a case for
validity of the marriage is a collateral issue. Annulment of marriage and have the
court declare the marriage as null and
o Example: A person died. His heirs are quarreling
void. That is a direct attack on the
over his estate. Ang atong giawayan kay dili man nullity or
validity of the marriage.
validity of the marriage of our father and the 2 nd wife but this
became an issue in an in rem case in the settlement of estate
of the deceased person. Again, this is an example of a
collateral attack.
o When the marriage is void it can always be
questioned or attacked collaterally if it is necessary to
resolve a pending issue.
- The action to declare the marriage void is imprescriptible. - There is a prescriptive period.
o There is no prescriptive period. o Generally, it is five (5) years. This is
the general prescriptive period.
o We will go to this when we’ll discuss
Art. 45.
VOID MARRIAGES
- Let us go to Void Marriages first. What are the void marriages?
- The void marriages are enumerated in the Family Code under Article 35, 36, 37, 38, 40 and 53.
Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were
contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority
to do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
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o 1. Art. 35
 basis for the void marriage here or the nullity of the marriage here is the ABSENCE OF ANY OF THE
ESSENTIAL OR FORMAL REQUISITES OF MARRIAGE.
 Art. 35 (1), a marriage between parties when either one or both of the parties is below 18 years of
age.
 Because there is ABSENCE of LEGAL CAPACITY
 Art. 35 (2), when the person who solemnized the marriage is not authorized by law to solemnize the
marriage.
 EXCEPTION is that, when either or both parties to the marriage believes in good faith that
the person who solemnized the marriage is authorized by law to solemnize the marriage. So, this is
one instance where good faith can make the marriage valid.
o Normally, good faith can never make the marriage valid. You cannot use good faith in an
action to nullify the marriage.
 Art. 35 (3). The 3rd one is marriage without a marriage license. Absence of a valid marriage license.
o the marriage is void
o EXCEPT when the marriage is in:
 (a) articulo mortis,
 (b) far or in a remote place,
 (c) marriages between Muslims,
 (d) ratification of marital cohabitation.
 Art. 35 (4). Bigamous or polygamous marriages.
 When you contract a 2nd marriage without having your 1st marriage judicially dissolved.
o You must have to dissolve legally your 1st marriage before you contract a 2nd marriage.
o POLYGAMOUS, if you have more than 2 marriages.
 Except when you are a Muslim. Muslims in the Philippines can contract up to 4
marriages under the Muslim laws.
 Art. 35 (5). Marriage by mistake. This is where there is a mistake in identity.
 Art. 35 (6). Void marriage under Art. 53. In Art. 53, it refers to a void marriage because the parties
did not comply with the requirement of registration of the settlement of the estate of the deceased or the
liquidation and partition of the conjugal partnership as well as the giving of the legitime of their children.
Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization.
 But, what do you mean by psychological incapacity?
 Even in the Canon Law it was not very well defined.
 And so the framers of our Law said psychological incapacity simply means the inability. This
is the minimum definition kay wa man gyud klarong definition sa psychological incapacity even until
now.
 And the reason that they gave was that it is not good to give a definition to every provision of
the law because you will be straight jacketed to that definition. You have no more leeway. So, to give
the courts leeway in deciding what marriages can be saved and those that are not worth saving
anymore, comes a new ground of psychological incapacity.
 Psychological incapacity is simply defined as the inability of one spouse to comply with the
essential marital obligation due to psychological reasons.
 Do not think that psychological incapacity means insanity. This is the common
misconception by many.
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 There are many psychologically incapacitated persons who are genius, brilliant. Many of
them are scientists. But many of them are psychologically incapacitated. They are very bright but
there are things that they cannot do in marriage because his mind dictates that he should not do it.
There are things that he cannot perform but these are essential marital obligation because of
psychological reasons.
 I think that the best example that I would always give to my students is this. But let us first
understand the essential marital obligations because it cannot be psychological incapacity under this
Article if what you cannot do is an obligation that is not very important, like ang bana di manghugas
ug plato, di manlaba. These are not essential obligation of the husband in the marriage (talk about
gender equality!!)
 Under Art. 67, 68 and 69, you would know the duties and responsibilities of the husband and
the wife. These are the essential marital obligations.
 One of the essential marital obligations is FIDELITY—that the husband and the wife must
remain faithful and loyal to one another. If you have an affair with another person, then you are
violating the vow of fidelity.
 If you have a wife who is a lymphomaniac, don’t you think she is suffering from psychological
incapacity? A wife who is a lymphomaniac will always look for another man. She would not be happy
would not be happy of her husband alone. When the husband is away, the wife will look for another
man. A woman who is a lymphomaniac is not an insane person. But if you start having an affair with
another man because of your sexual urges and you cannot stop it, then, you are considered
psychologically incapacitated to comply with essential marital obligations. The same is true with a
husband who is a homosexual. If imong bana kay bayot, di man na siya makamaintain sa vow of
fidelity. Because a homosexual will always want to have an affair of another man, that is also a form of
infidelity. Now, why is he doing it? It’s all psychological. These are examples of psychological
incapacity.
 The first case decided by the Supreme Court where it granted the petition to declare the
marriage void on the ground of psychological incapacity was the case of Chi Ming Tsoi vs. Republic.
In this case, the man refuses to have sex with his wife because he considers sex as something that is
dirty. So, there is something wrong with his mind! Dili siya boang but it prevents him from complying
with the essential marital obligations. And what is this essential marital obligation? Of course, it is
procreation or to have sex with your partner. So, a husband who refuses to have sex with his wife is
considered to be a psychologically incapacitated person.
 3 elements.
o 1. Juridical Antecedence
 Thedefect of the husband or the wife who is said to be psychologically incapacitated, the
defect must already be existing at the time of marriage. But it was discovered only after the
marriage. Dili na mahimo nga during the marriage lang na siya nahitabo. It must have been
there already. Its already with the husband or the wife, long before the marriage but it
becomes manifest only during the marriage.
o 2. Gravity
 The defect must be serious or grave defect.
o 3. Incurability
 Example: the husband who is a homosexual since he was a child but he tried to hide it to look
macho. So, he was able to marry his wife but it was only during the marriage that the wife
discovered that her husband is a homosexual. That defect has been existing before the
marriage, so there is what we call juridical antecedence. Now, gravity and incurability, diba
dili ba na grabe nga depikto nga ang imong bana bayot? That is a very serious defect and it is
incurable. Naa ba gud tambal sa bayot? Maski pa paimnon pa na nimo ug antibiotic, bisan pa
pila pa ka milligrams, dili gyud na madala, bayot gyud na siya. (Homosexuality is not a
disease!)
o Absent any of the 3 will render your case without merit. The court will dismiss your case.
But I tell, of the many cases that reached the Supreme Court involving Art. 36, only about 10 or at
most 20% is approved by the Supreme Court. 80% are denied, even if you do a survey of all the
cases which reached the SC. You know it is easy to get a favorable judgment in the RTC because
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there are many judges there who are very lenient but when the Office of the Solicitor General will
appeal the decision of the RTC to the Court of the Appeals, patay ka na, because the CA is very
strict, the more the SC. So, kasagaran gyud nga ma-appeal, it is granted by the RTC for example
unya mo-appeal ang OSG, kasagaran gyud kayu denied gyud na. I-reverse ang lower court when it
comes to psychological incapacity. Why? Because the SC is very meticulous in examining the
presence of the 3 essential elements of psychological incapacity. The SC will say, is this a defect
that is existed long before the marriage? Is this really grave or serious? Is this incurable?
o It is incumbent upon the plaintiff to establish these 3 essential elements of psychological
incapacity. That is why when this provision was still new. In 1989, after the approval of the
Family Code and this Article was approved. There were thousands of cases filed all over the
Philippines. It sprouted like mushrooms in all courts and the judges were still, shall we say,
unaware and were not properly guided as what to do with these cases. So ang uban huwes,
lenient kaayo and ang uban kay strikto.
o But when I started handling cases like this, I immediately used psychologist. I presented
psychologist as a witness because for me, this is the only way where I can establish the element
of juridical antecedence, gravity and incurability. If ang imo rang witness, if ang imong cliente kay
imo rang bana, then you present the plaintiff, the husband, then you present the neighbors as
witnesses, are they competent to testify on these 3 elements? No. The best person to testify on that
is a psychologist or a psychiatrist, an expert. So, there is a need for an expert opinion.
o Although the SC had said in the case of Marcos, the SC said that there is no need to present
an expert witness. It is up to the Court to decide whether or not the act mentioned in the
complaint constitutes psychological incapacity.
o However, in a later case of Matias vs. Dagdag, the SC said, well, although it is not required
that you present an expert witness, it is good that you present an expert witness because it
will better guide the Court in resolving the issue of psychological incapacity.
o At first the SC said, no need for an expert witness. No need to present a psychologist. BUT
later on, the case of Matias vs. Dagdag, SC said that it is good to present a psychologist
because it will make your case stronger. You will be helping the Court understand the
meaning of psychological incapacity because there are many trial judges who do not understand
the meaning of psychological incapacity.
- PSYCHOLOGICALLY INCAPACITATED CAN FILE
o Can he be the one to file the case of psychological incapacity claiming that he is one
psychologically incapacitated? YES! This was answered in the case of Halili vs. Halili. This is a
case where the plaintiff who filed the case for the declaration of nullity of marriage claims that he
is the one who is psychologically incapacitated and the Court granted it if you can prove that you
are psychologically incapacitated.
- CAN REMARRY
o If a person is declared psychologically incapacitated, can he or she remarry? YES! He can
remarry because according to the Court, he can only be psychologically incapacitated with his
present spouse. But he may not be psychologically incapacitated with another spouse. Mahimo
ba gud na? (Class answers) YES! Selected incapacity! But that is actually what the SC said.
- GUILDELINES
o In the case of Republic vs. Molina, the SC set guidelines in determining psychological
incapacity. Accdg. to the SC, they are alarmed by so many cases of psychological incapacity filed
in the trial courts. And most of these cases are granted by the trial courts without examining
closely whether the elements are present. So, the SC at that time decided in this case that it is
about time that the SC will issue jurisprudential guidelines on the determination of psychological
incapacity. What are these guidelines?
 a. The burden of proof on the nullity of the marriage belongs to the plaintiff.
 b. The root cause of psychological incapacity must be clinically or medically
identified, alleged in the complaint and must be sufficiently established by experts and clearly
explained in the decision.
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The incapacity must be proven to be existing at the time of the marriage. So this is the 1 st
 c.
element, juridical antecedence.
 d. The incapacity must be shown to be medically or clinically permanent or
incurable.
 e. The incapacity must be grave enough to prevent the party from assuming the
essential marital obligation.
 f. Essential marital obligations must be those mentioned in Title 3, Articles 68-71 of
the Family Code.
 g. The interpretation given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be given great
respect by our Courts.
 h.
The trial court must order the prosecuting attorney, the Fiscal or the Solicitor General to
appear as counsel for the State. No decision should be handed down unless the Solicitor
General issues a certification which will be quoted in the decision. In other words, mananghid
pa ang korte sa Solicitor General before the Court will release the decision.
o These are the guidelines in the case of Molina. But these guidelines were later on abandoned
by the modern SC. In the case of Te vs. Te and later on it was followed by Ting vs. Ting. But
before I go into that, the decision of the Matrimonial Tribunal, the tribunal of the Church which
annuls marriage, should be given weight and respect by our civil courts. I think that was the
reason why the case of Antonio Reyes vs. Republic (GR No. 155800, March 10, 2006) the SC
granted the petition and declared the wife as psychologically incapacitated. If you read the case
of Antonio Reyes, the case of Reyes is really for me, not a very strong case.
 The husband filed a case against the wife to declare the wife psychologically incapacitated
because, according to him, his wife is an incorrigible liar. Bakakon kaayo! Grabe kuno
kabakakon! Since they started the relationship, even before they got married, puro bakak ang
gisulti sa iyang asawa. But the only reason is that the wife is a congenital liar, according to the
husband. And the Court granted it. When it was appealed by the OSG to the SC, the SC said
that yes, it is a form of psychological incapacity.
 Now, if you read the other cases that were denied by the SC, maglibog ka! Ngano
man? In all other cases, mas lig-on pa gani. Bana nga kusog kaayo mangulata sa asawa. Bana
nga palahubog, irresponsable, naa tanan ang bati sa usa ka bana. But yet the SC said, these are
not psychological incapacities.
 But here comes the case, where the only defect of the wife is that she is a congenital liar,
according to the husband. Yet, the SC said that it is a form of psychological incapacity. When I
read the case, and I hope you would find time to read it for you to understand, if you notice in
this case that there was also a case filed by the husband against his wife in the Matrimonial
Tribunal in the Church because you cannot remarry even if your marriage has been annulled
by the Courts. The Church will not remarry you, if you want to get married in the Church
again. Dili mokasal ang simbahan if you will not annul your marriage in the Church. So, what
Antonio Reyes did is that he also filed, in fact he filed the annulment case ahead in the Church,
then, he also filed a case before civil courts. So, this case before the Church had been granted
by the Matrimonial Tribunal in Manila. In the Church, annulment of marriage, once the
Matrimonial Tribunal here in the Philippines will decide, the decision will be automatically
reviewed in Rome by the Roman Rota in Vatican. After it has been reviewed in Vatican, if the
Vatican affirms the decision of the Matrimonial Tribunal in the Philippines; so, while the case
has been appealed in the Supreme Court, the husband who filed the case cited the decision of
the Matrimonial Tribunal in Manila, which was affirmed by Vatican. And I believe that the SC
was swayed by this decision. And probably also to give meaning to one of the jurisprudential
guideline in the case of Molina.
 One of the jurisprudential guidelines is the civil court must give weight and respect
to the decision of the Matrimonial Tribunal of the Church involving nullity of marriage on the
ground of psychological incapacity. Why should we give respect to the decision of the Church?
Because we copied this decision from the Canon Law. We copied this from Canon 5 (1095?),
par. 3. So, if the Matrimonial Tribunal of the Church has already granted the annulment of
marriage on the same ground of psychological incapacity, then, we should respect it and give
weight to it.
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 In fact, I remember that there was a time when Pabling Garcia sponsored, I don’t
know what happened to that, a bill that decisions of the Church involving annulment of
marriages based on psychological incapacity should automatically be recognized by the Civil
Courts. But I do not know what happened to that.
 The rule now is that the decision of the Church is not binding on the Civil Courts but
if the decision of the Church declaring the marriage null and void on the ground of
psychological incapacity under Canon 5 (1095?), par. 3, civil courts should as much as
possible give weight and respect to that decision. And that is applied here in the case of
Antonio Reyes.
o However, later on, in a more recent case decided, the case of Nagera vs. Nagera, where the
Court said that if the decision of the Matrimonial Tribunal declaring the marriage void is
based on Article 1095, par. 2, not par. 3, that should not be respected by the civil courts. Only
decisions based on Canon 1095, par. 3, because that is the basis of Art. 36.
o MORAL DAMAGES
o ]Later on, there is one more case that I want to point out. Can moral damages be recovered
from the guilty in an action for declaration of nullity of marriage based on psychological
incapacity?
 Example: the wife filed a case on nullity of marriage on the ground of the
psychological incapacity of the husband. Can the wife demand damages from the husband in
the same case, if she could prove that her husband is psychologically incapacitated?
 TheSC has already answered this in the case of Buenaventura vs. CA, March 31, 2005,
where the SC said moral damages cannot be recovered by a guilty party in an action for
declaration of nullity of marriage in the ground of psychological incapacity. This is because
psychologically incapacitated person is not aware of his incapacity, and therefore, cannot be
held answerable for moral damages. So, in this case, the SC said that how can you demand
moral damages from the defendant whom you claimed to be psychologically incapacitated
does not even know that he is psychologically incapacitated? Normally, you don’t know that
you are psychologically incapacitated, so there is no basis of moral damages.
o Now, in the more recent case of Te vs. Te, the SC re-examined the decision of Molina vs.
Republic, where the Court in the Molina case laid down the jurisprudential guidelines that I have
mentioned earlier.
 This time the SC said that it is wrong for us to put a jurisprudential guideline in
determining psychological incapacity.
 Why?
 Because it will put a very strict and rigid guideline. It will jacket the concept of
psychological incapacity. The trial court will no longer have the leeway to determine
what really is psychological incapacity. It defeats the very purpose of the law. Because
according to our new SC, if we examine the history of psychological incapacity, it was
included in the Family Code, in order to give the court a leeway. That is the reason why
there is no clear and precise definition of psychological incapacity. It is because the law
intended it to be that way. To give the courts leeway to decide on what marriages are
worth saving and those that are not.
 It is not correct to apply the jurisprudential guidelines. In other words, the new SC
said that the guidelines in the Molina case need not follow the guidelines strictly. In fact some
of the guidelines there in the Molina case are already amended by law. Like for example, the
requirement that before the judge can render a decision, he must ask the opinion of the OSG;
that there is a need to inform the OSG. That is no longer true now. That has already been
removed by a law.
 But in the case of Te vs. Te, the court is very careful in saying that we have not actually
abrogated the Molina doctrine. We are not saying that the jurisprudential guidelines in the
Molina case are no longer applicable. But what it is saying is that you need not follow it
strictly. Some of which may not be strictly observed by the Court. But the only guidelines
there that the TC must not disregard are the 3 elements of psychological incapacity,
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namely, (a) juridical antecedence, (b) gravity and (c) incurability. The ruling in this case (Te
vs. Te), the court granted the petition.
o It was later on followed in the case of Benjamin Ting vs. Carmen Velez Ting, which
happened here in Cebu.
 The wife, Carmen Velez is the daughter of the owner of the Velez hospital. The
husband, Benjamin Ting, is a famous doctor in Cebu at that time but they separated and the
husband is now living in South Africa as an anesthesiologist. The wife is also a doctor, I think.
 They separated and the wife filed a case against the husband claiming that her
husband is psychologically incapacitated. Because, according to the wife, the husband is a
drunkard, gambler, irresponsible and so many defect. But the husband fought it out in Court.
She presented a psychologist, Dr. Moniaque, to support her claim.
 But the husband presented 2 psychologists to prove that he is not. He was examined
by the chief of Don Vicente Sotto and he testified that he is not. The husband also presented a
psychologist in South Africa, a British doctor, that there is nothing wrong with the husband.
When it was decided, the SC believed the husband because he is not psychologically
incapacitated.
 The petition of the wife was denied. It was not declared void. So up to this time, they
are still married although they are no longer living with each other.
o There are other recent cases like Azueta vs. Republic, Renato Reyes vs. Valera, where the
Court sometimes would say that yes, it is psychological incapacity and sometimes no, it is not.
o My finding really is that this article is becoming vague and vague every year. There is really
no clear meaning. It only depends on the SC, what it sees as psychological incapacity. So, we have
to rely on the SC. It is better that this law should be amended, or some would say, that divorce
should be legalized. In my understanding if asked what is psychological incapacity? My answer
would be is that it all depends on the SC. It is on a case to case basis. The SC said in many cases
that a case should be decided on a case to case basis. There is no clear delineation on what
psychological incapacity is.
Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship
between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
o 3. Article 37. Incestuous Marriages
 There are only 2 classes of incestuous marriages:
(a) between ascendants and descendants, parents and children or grandparents and grandchildren;
(b) between brothers and sisters, whether of full or half blood.
Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or
her own spouse.
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o 4. Article 38. Marriage against public policy.

 Art. 38 (1). When you say fourth civil degree, when you count, don’t say 4 th degree cousin. Your 1st
degree cousin is your 4th degree relative because when you count degree, say by 1 layer, like from you to
your parent, that is one degree and to your grandparents, that is 2 nd degree and to your uncle, the
brothers and sisters of your parent, they are your 3 rd degree. The children of your uncles and aunts are
your 4th degree. So your 2nd degree cousin is actually your 5 th degree relative, so you can marry him. That
is not against public policy.
 What is the reason why incestuous marriages are not allowed?
o Because it would result to degenerate offspring. It has been proven that those who marry
that are closely related by blood, most of them are kuwang-kuwang, kuwang ug hugot sa tornilo!
(haha)
 You will notice that the basis of the prohibition to marry under this article is the blood relationship.
The blood relationship could be by consanguinity or it could be a relationship by affinity.
 MARRIAGE TO MOTHER-IN-LAW
 So, when your wife dies, can you marry your mother-in law?
o No. (Art. 38 (3))
o But there is another view advanced by some authority in Civil law that that prohibition
should not apply because when your wife dies, then, your mother-in-law ceases to be one. The
relationship is extinguished by the death of your wife.
o There is one ruling in America which qualifies this, provided that there is no common
denominator between the 2, that you don’t have a child. For example, when your wife dies and
you marry your mother-in-law, according to one state in the US, yes, provided that you don’t
have a child with your wife. Because if you have a child with your wife, there is now a common
denominator between you and your mother-in-law. This will create a confusion in the
relationship.
o But here in the Philippines, there is no case yet decided on the matter. I believe that the
prohibition still applies even after the death of the wife.
- ENUMERATION IS EXCLUSIVE
 Now, the enumeration under this article is exclusive. It means that what is not included is deemed
excluded.
 Can you marry your sister-in-law, if your wife dies, can you marry the sister of your wife?
o Yes. There is no prohibition in law.
 An adopted child cannot marry the legitimate child of his adopter. What about the
illegitimate child of his adopter, can the adopted marry the illegitimate child?
o Yes. There is no prohibition in law.
 These are examples of marriages that can be made because there are no prohibitions
provided for under the law.
 A marriage between the killer and the surviving spouse of his victim is not valid because it is
against public policy.
 If you kill your own spouse in order to marry another woman with whom you already have
an affair, your marriage to that other woman after the death of your wife is not valid because it is
against public policy. It is found under this article, par. 9.
o But if the killing is not intentional, of course, you can marry. The killing must be with the
intention to marry another person. Probably, you would kill the spouse of the married woman, to
get rid of him so that you can marry the surviving spouse, this is also against public policy.
 When we talk of void marriages, is there a prescriptive period to file an action to declare the
marriage void?
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o As what I have said earlier on, if the marriage is void, the action to declare the marriage void
is IMPRESCRIPTIBLE.
o However, there is one kind of void marriage that contains a prescriptive period under the
Family Code and that is under Article 36.
 In the original under Art. 39 of the FC, it provides there that if the ground for nullity
is Art. 36, which is psychological incapacity, the action must be brought within 10 years after
the effectivity of the Family Code if the marriage was solemnized before the effectivity of the
Family Code.
 But if the marriage was solemnized after August 3, 1988, then, there is no
prescriptive period.
 This has been distinguished under Article 39.
 If you were married before August 3, 1988, which is the before the effectivity of the
Family Code, then, you can only declare your marriage void under this ground if you file the
case within 10 years. That is the prescriptive period. But if after the effectivity of the Family
Code, then, you can always have your marriage declared void any time. There is no
prescriptive period.
 Because of this prescriptive period, many lobbied in Congress to amend this law to
remove the prescriptive period and so eventually, Congress removed the prescriptive period
of 10 years. That was before August 3, 1988. Congress passed RA 8533 which removed the
10-year prescriptive period.
 So now, there is NO MORE PRESCRIPTIVE PERIOD in all kinds of void marriages.
 When the marriage is void, who can declare the marriage void? Who can ask that the
marriage be declared void?
o Under the new rules on the nullity of marriage, it is only the parties themselves and nobody
else can ask the court to declare the marriage void.
o Only the husband and the wife can declare the marriage void.
o This renders the case of Conjuanco vs. Romillo as immaterial now.
 Before this new rule, there was a decision in this case where the Court allowed the
father to file a case to declare the marriage of his daughter null and void.
 And this Conjuanco is Danding Conjuanco. He had a daughter who was married by
his own trusted lawyer, but this lawyer is married. So, the lawyer tried to entice the daughter
and eventually, he had an affair. They went to Hongkong. The man filed a divorce against the
wife in Hongkong and got married in Hongkong. So, Danding, the father, questioned and filed
the case to declare the marriage of his daughter null and void. And the court accepted it. The
SC granted it.
 This is a case where the declaration of nullity is filed not by the parties of the
marriage but by the father of the bride.
 This case is no longer possible now because of the new rules on annulment of
marriage and declaration of nullity of marriage which provides specifically that only the
married couple, or the parties can declare their marriage void.
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis
solely of a final judgment declaring such previous marriage void.
 Art. 40
 Art. 40 speaks of bigamy.
 This article provides for the absolute nullity of a previous marriage for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage void.
 The general rule is this: when a marriage is void, a party to that marriage can contract a
subsequent marriage only after he or she has the previous marriage judicially declared null and void.
So the subsequent marriage contracted by that party without having the 1st marriage declared void
is considered a bigamous marriage. It is a null and void marriage. When your 1st marriage is void,
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and you want to contract a 2nd marriage, you have to have your 1st marriage declared void first
before you contract a 2nd marriage.
 Article 40 provides that for purposes of remarriage, the only basis for you to contract a 2nd
marriage is that your 1st marriage was already legally dissolved.
 This article is quite controversial in the sense that our SC changing its mind every now and
then on this matter. As to the issue as to WON a judicial declaration of nullity of marriage is necessary
before one can contract a 2nd marriage, the SC decision on this is swinging like a pendulum.
 Let me bring to you on the history on this.
o People vs. Mendoza and People vs. Aragon, both cases where decided in 1954 and 1957,
respectively.
 The SC ruled that when your 1 st marriage is void, then, you can contract a 2 nd marriage right
away without declaring the 1st marriage void. The reason given by the SC is that when your 1 st
marriage is void, it is as if it is nothing. Its as if you never married at all. A void marriage does
not produce any legal effect. So, if your 1 st marriage is void ab initio, then, why should you
have it declared void by the court? There is no need to have it declared void. You can marry
right away and you cannot be held liable for bigamy.
o Gomez vs. Lipana and Consegra vs. GSIS, decided by the SC in 1970 and 1971, respectively.
The SC said NO, you cannot marry again without having your 1 st marriage declared void. You
should not be the one to decide for your selves that your 1 st marriage is void. The law will not
allow you to decide on your own. Let the court decided whether your 1 st marriage is indeed a
void one. And when the court decides as such, then, you can now contract marriage. In these
cases, the SC said that there is a need for a judicial declaration of nullity of your 1 st marriage
before you can contract a 2nd marriage.
o However later on, in the case of Odayap vs. Amante, decided in 1977, the SC returned to the
old rule that the have enunciated in the cases of Mendoza and Aragon. They said that there is no
need to declare your 1st marriage null and void.
o But a few years after, in the case of Sempio-Dy, decided in 1986, the SC went back to
decisions made in the cases of Lipana and Consegra that there is a need to have the 1 st marriage
declared void.
o It was later on abandoned in the case of Yap vs. CA, decided in 1986
o This flip-flopping of the SC has prompted the makers of the FC to put a stop to this pendulum
from swinging it back and forth.
 Article 40 has clarified this conflicting decisions made by the SC. Now, your 1 st marriage has
to be declared void before you can contract a 2 nd marriage. But please take note that the declaration
of your 1st marriage is never only when you want to contract a 2 nd marriage, “for purposes of
remarriage”.
o You cannot marry without having your 1st marriage declared void. But for other purposes,
there is no need anymore for judicial declaration of nullity of marriage. There is no need to have
your marriage declared null and void.
o As I have said, nullity of marriage can be attacked collaterally in the issue of distribution of
inheritance among the children, among the legitimate and illegitimate children. So, no need of
judicial declaration.
 Article 40 of the FC restated the rule that even if the marriage is void, there is a need to have
the marriage declared void by the court for it is solely on the basis of that final judgment that a party
can remarry or contract a 2nd marriage.
 This leads us to the issue of BIGAMY
o When a person contracts a 2nd marriage, without having his first marriage declared void, the
first marriage is really void but did not have the court declare it as null and void yet, and that
person contracted a 2nd marriage, is he liable for bigamy?
 YES.
 Before there was a nice decision in the case of People vs. Kobar, as deiced by the CA.
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 Where the SC(daw) discusses this matter by saying that there is no bigamy if you
contract a 2nd marriage without having your first marriage declared void first, because,
according to the CA, and Dean agrees with the CA on this, CA says:
o Bigamy is a crime. It is not covered by the Civil Code. It is covered by the
RPC.
o So when you are ask to decide whether there is bigamy or not, you have to
decide it in accordance with the RPC, not in accordance with the Civil Code.
 In the RPC, it is clear that bigamy is committed only when you contract a 2 nd
marriage while your first marriage is still subsisting and that 1 st marriage is
a valid marriage.
 If there was no prior valid marriage, there is no bigamy.
 BUT the SC did not accept that ruling because in the case of Carino vs. Carino and in
the case of Mercado vs. Tan.:
o SC said there is bigamy when you contract a 2 nd marriage without having
your first marriage declared void.
o Apparently, the SC did not agree with the view of the CA in the case of
Kobar.
 But remember the case of Morigo because you might be confused here.
 In the case of Carino vs. Carino, Tan vs. Tan, the first marriage was considered void
because of the absence of a valid marriage license. And then the husband contracted a
2nd marriage, believing that the first marriage is not valid because of the lack of license,
he contracted a 2nd marriage.
 In the Morigo case, the man was married and the only defect of his first marriage
was that the person who solemnized his marriage did not perform a ceremony. He was
charged for bigamy also.
o His defense was that his first marriage was not valid. In fact, the court later
on declared it to be void when he filed a civil case to declare his marriage void, it
was granted by the court.
o SC said there is no bigamy because the absence of marriage ceremony
renders it that, or is equivalent to having no marriage at all. No marriage took
place.
 This is different from the case of Carino and in the case of Mercado vs. Tan because
in Mercado vs. Tan, there was really marriage that was solemnized but the marriage turns out
to be not valid becuas ethe marriage license is defective or there was absence of a marriage
license. There was marriage only that the marriage is defective.
 Whereas in Morigo, according to the SC, there was no marriage at all. For if there
was no ceremony, it is as if there was no marriage at all that took place. So there is no
bigamy because the SC considered his marriage to his first wife as NON-EXISTENT. It did
not happen.
 In the Carino and Mercado, the SC said, the marriage happened but there is defect
and the defect was in the marriage license. So it is void.
 Soyou should have the court declare it void first before you contract a 2 nd marriage and
since you did not do that, then you are liable for bigamy.

JULY 9, 2011- FIRST PART

- Additions on Article 40 in relation to Bigamy:
- There are recent decisions of the SC involving Article 36:
o One of this is the case of Najera vs. Najera:
 Page | 12

 SC said the decision of the National Appellate Matrimonial Tribunal to be given weight and respect by
our court must be anchored on Canon 1095 Paragraph 3 which is the basis of our Article 36. IOW , if the
decision of the Matrimonal Tribunal is anchored on Canon 1095 paragraph 2, which is another ground,
that cannot be given weight by our courts which is trying Article 36.
 When you talk of Article 36, Article 36 is lifted from Canon 1095 Paragraph 3. So the decisions of the
MT that can be given weight and respect by our courts must only refer to annulment of marriage based
on Canon 1095, Paragraph 3.
o You remember that in Molina vs. Republic, SC laid down several jurisprudential guideline in
determining whether there is psychological incapacity. One of the jurisprudential guideline, particulary no. 8,
a certification of the OSG agreeing to the grant of the petition. That is one of the guidelines in the Molina Case,
that before the court will render judgment, there must be a certification from the OSG to the effect that they
have no objection to the grant of the petition.
 That particular requirement, paragraph 8 is no longer needed NOW. In the light of the case of
Lumbawa vs. Lumbawa and also because of Administrative Matter 02-11-10SC.
o Lumbawa vs. Lumbawa
 The requirement found in paragraph H of the guidelines which is paragraph 8 in the Molina doctrine
relative to the certification by the OSG before a decision can be handed down has already been dispensed
with by Administrative Matter 02-11-10Supreme Court. The said rule as a remedial measure removes the
mandatory OSG certification and may be applied retroactively to pending matters.
o In the case of Te vs. Te
 When Article 36 was incorporated by the framers of the law was really not to give a precise definition
of Article 36, a precise definition of psychological incapacity because they want the trial court to have
greater leeway in decideing what are those marriages that are worth saving and what are those
marriages that cannot be saved anymore. Thus, it is not advisable to have a very strict and rigid definition
of psychological incapacity.
 But later on when the law took effect, there were thousands of cases that were filed in the trial courts
involving Article 36 and it has been observed that many judges were too linient in granting the petition
such that the SC became alarmed of that development. So this led the SC to place a guideline and the
guidelines to determine psychological incapacity which was contained in the case of Molina, the famous
MOLINA DOCTRINE.
 There the SC laid down 8 guidelines and with that guidelines in the Molina case, many
complained that it has become very difficult already for cases involving A36 to be granted by the
court. And so because of that many cases, most of the cases that reached the CA and SC were denied
in the light of the very strict and rigid guidelines in the Molina doctrine.
 This prompted the SC to revisit the origin of Article 36 in the case of Edward Kenneth Ngo Te
v. Rowena Ong Gutierrez Yu-Te:
o Here the SC said the Molina doctrine has become a strait-jacket, forcing all sizes to fit into and
be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed
diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously
debase and pervert the sanctity of marriage.
 IOW,the SC is saying in this case that if we apply strictly the Molina case, then no marriage
will be declared void and we will instead be allowing these people (sociopaths, etc) to
continue or stay on with the marriage.
o And according to the SC here in the case of TE (as penned down by Nachura while the Molina
doctrine was penned down by Justice Panganiban, who later on became a chief justice was
known to be a Catholic Faith Defender and the lawyer of the Catholic church in many cases, so he
was very strict), the SC found out that the Molina doctrine has made it difficult for the couple to
dissolve their marriage contrary to the intention of Article 36 when it was enacted.
o So the SC said in the case of Te vs. Te that no case is on all force with another case as far as
psychological incapacity as a ground for nullity of marriage is concerned.
 Lest it be misunderstood, we are not suggesting the abandonment of Molina in this
case. We reiterate once more the principle that each case must be judged, not on the basis of a
priori assumptions, predilections or generalizations but according to its own facts. And, to
 Page | 13

repeat for emphasis, courts should interpret the provision on a case-to-case basis; guided by
experience, the findings of experts and researchers in psychological disciplines, and by decisions
of church tribunals.
 So here, the SC became a little bit linient but the SC said, we are not actually
abandoning the Molina doctrine, they are simply saying that we need not strictly follow the
guidelines, the case must be decided on a case to case basis. You may still follow some of the
guidelines but not necessarily all.
 In fact, paragraph 8 was already abandoned by a SC Circular as meniotned by the SC
in Lumbawa vs. Lumbawa.
 The only jurisprudential guideline there in the Molina doctrine which you cannot dispense with are
the 3 essential elements of psychological incapacity:
 (a) juridical antecedence,
 (b) gravity and
 (c) incurability.
 Later on, in the case of Teng vs. Teng, they were denied their petition to declared their marriage void
on the ground of A36.
o In the case of Ashcueta, the SC granted it. After that Te vs. Te, the SC decided cases involving A36 on a
case to case basis. Sometimes they would grant, sometimes they will not grant. It started to feel like A36
means like what the SC think it is because there is no more clear guideline, it is up to the SC what is A36. And
there is a danger there because that is tantamount to judicial legislation.
 Comment by Dean: I think Congress has to do something to clarify this matter and avoid confusion
among the people. As of now, if you will be asked what is the meaning of PI, it is still up to the SC because
according to the SC, cases involving A36 must be decided on a case to case basis.
 That is why the SC says no PI: bata na lalake na mangulata no PI but bakakon kaayo that is PI.
 In the case of Aschueta, dependent personality disorder is a form of PI as ruled in the case of
Aschueta.
ARTICLE 40
ARTICLE 40 and the CRIME OF BIGAMY
- The rule has now been clarified by our FC, that if your marriage is void, you must have it declared void first
before you contract a 2nd marriage, OW you will be liable for bigamy.
o This A40 settles one and for all the flip flopping on the issue of WON you are liable for bigamy if you
contract a 2nd marriage when your first marriage is a void marriage.
 As early in 1954 and 1957, the SC said that if your first marriage is void, you can go ahead and
marry again. You can contract a 2nd marriage without need of judicial declaration of nullity because
according to the SC when your marriage is void, it is as if it does not exist. It’s nothing, it is as if it does not
exist
 When you contract a 2nd marriage, and it has all the elements of a valid marriage, then that is
valid and you cannot be liable for bigamy
 But later on in the case of Gomez vs. Lipana and Consgra vs. GSIS, the SC said there is a NEED for a
judicial declaration before you can contract a 2nd marriage.
 But then, it was abandoned later on in the case of Odayap vs Amante in 1977 and Tolentino vs. Paraz,
where the SC returned to the Mendoza and Aragon case. NO need for JD.
 But later on in 1986, in Sempio-Dy, says it is needed and on the same year, in the case of Yap, there
is no need as well.
 Then came Article 40 which says there is a need for JD of nullity of marriage.
o IOW there were instances in the past where a person who is married but his marriage void was not
considered a bigamy case when he contracted a 2nd marriage. That is if he contracted the 2 nd marriage during
the time that the court said there is no need for JD.
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 If your marriage is void, like in the absence of a marriage license, and then you contracted a 2 nd
marriage, in 1970, before GSIS case, the status of your 2 nd marriage is valid because it is not yet required
that there should be JD.
 But if you got married after 1970 but before 1983, the Lipana case controls, where you need to have a
JD.
 But if you got married after 1983- up to August 19, 1986, when the Wiegel vs. Sempio-Dy case was
decided, there is no bigamy.
o Depending when you contracted the 2nd marriage and assuming your 2nd marriage is void.
o So if asked, you contracted a 2nd marriage, are you liable for bigamy?
 IT DEPENDS when you got married. If you got married during the time that there is no need for JD,
then you are saved from bigamy.
o But this matter NOW has already been settled by Article 40 of the FC which provides that you MUST
HAVE your first marriage DECLARED VOID before you can contract a 2 nd marriage, otherwise you are liable
for bigamy.
 But TN of the ONLY EXCEPTION: The case of MORIGO.
 Because in the case of Morigo the ground for nullity is absence of marriage ceremony. If
there was no marriage ceremony it is as if there was no marriage at all and therefore Morigo was
saved from Bigamy.
 But if the ground for nullity is other then absence of marriage ceremony, like absence of a marriage
license, lack of authority by the solemnizing officer, lack of consent, then there must be a declaration to
that effect.
Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive
years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391
of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present
must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)
- Under art 40, it is said that the only way you can contract a second marriage is for you to legally dissolve your
first marriage.
o There’s one exception to that, and this is the matter of presumptive death.
- If your spouse has been absent for more than 4 years and you have no communication with him anymore, you
have the right to presume your spouse as presumptively dead.
o EXCEPTION: If the disappearance of your spouse was under great dange rof death under the
circumstances enumerated in art 391 of NCC, you need not wait for 4 years. 2 years is enough for you to file a
petition to declare your spouse presumptively dead.
- What are the instances under art 391 where the disappearance is under great danger of death?
Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known
for four years. (n)
o 1. If your spouse disappears during a flight or in a vessel during the trip.
 Must disappear.
 Page | 15

 Like nawala sa Bermuda triangle. Wa gyud kit.i.

 It is different if the plane crashed. You are presumed dead immediately when it is declared to be
without survivor.
 Or when the boat sunk, you don’t apply this exception here because there is a presumption that she
died immediately if it is declared that there is no survivor.
o 2. When your spouse is a soldier, for example, and your spouse was declared missing in action during
war and on going military operations.
 Like against he Abu Sayaff or NPA.
 If there were reports that the he was taken by the NPA or Abu Sayaff, gi putlan na ug liog, you can
presume him dead after 2 years, you don’t have to wait for 4 years.
- Take note that judicial declaration of presumptive death is found only in the FC. It is not found in the NCC.
- Judicial declaration of presumptive death is required by the FC only for purposes of remarriage only. If the
purpose is not to marry again, there is no need for a declaration of presumptive death.
o If you look at NCC, it says there, when a person disappears for 7 years, he is already presumed by law
to be dead. And if disappearance is under great danger under the circumstances mentioned in art 391, 4
years is enough.
 So in NCC, 7 years and 4 years
o In fact, NCC provides that for purposes of opening up the estate of the person who disappeared, 10
years is needed, not 7 years.
 If you disappear, after 7 years you are already presumed dead by law except for purposes of
opening up your estate for succession purposes. Wait for 10 years.
 But if the person who disappears is over 75 years of age, 5 years is enough to open his estate.
o These are found in the NCC.
 So under the NCC, if a person disappears for more than 7years or 4 years as the case may be, he is
already presumed by law to be dead. And therefore, his spouse can already remarry without a need of
judicial declaration of presumptive death.
 Judicial declaration of presumptive death is not required by NCC. It is required only by the FC which
took effect in August 3, 1988.
 That is why in the case of: Case: Angelita Valdez vs Republic
 This explains to us the difference between the provisions of NCC and the provision f the FC
on the matter.
 The husband of Angelita disappeared. She waited for him to return. No word about her
husband. After 10 years, she decided to marry again. This happened before 1988, where there was
yet no FC. When her husband appeared, after deciding to marry, it was still under the Civil Code.
Later on, her second marriage was questioned. They say the second marriage is not valid because she
did not file a petition to declare the absent husband presumptively dead first before you married
again. That is found in Article 41 and 42 of the FC.
 SC said NO. The marriage occurred before the FC. And remember the basic rule that the
validity of the marriage is determined by the law prevailing at the time of the marriage, not by the
present law.
o Although the FC requires that if your spouse disappears and you contract a second marriage
and you must have to file a petition to declare your spouse presumptively dead, that is true only
for those marriages after Aug 3, 1988 for marriages after such date.
 Thus if the disappearance of the husband and the subsequent marriage of the wife 10 years
after occurs before the effectivity of FC, the marriage is valid. The validity of the subsequent
marriage is determined by the law prevailing at the time of the marriage.
o The FC, particularly art 41 cannot be applied retroactively. Proof of well founded belief is not
required.
 Page | 16

 Because in relation to the case of: Case: Gregorio Velasco

o SC said that if you declare your spouse presumptively dead, your petition must be anchored
on well founded belief.
 And here in the case of Angelita Valdez, it was claimed by the petitioner that there was no
proof on the part of Angelita Valdez that she tried her best to locate her husband , that the
presumption that her husband was already dead was anchored not anchored on a well founded
belief.
 SC said, that is not needed. There is no need for Angelita Valdez to prove that her husband
must have already been dead. Because in the first place, that was not required when she decided to
remarry again, there was yet no FC.
 For the purposes of the civil marriage law, it is not necessary to have the former spouse
judicially declared an absentee. The declaration of absence made in accordance with the provisions of
the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the
administration of the estate of the absentee. For the celebration of civil marriage, however, the law only
requires that the former spouse has been absent for seven consecutive years at the time of the second
marriage, that the spouse present does not know his or her former spouse to be living, that such former
spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration
of the marriage.
 To retroactively apply the provisions of the Family Code requiring petitioner to exhibit "well-
founded belief" will, ultimately, result in the invalidation of her second marriage, which was valid at the
time it was celebrated. Such a situation would be untenable and would go against the objectives that
the Family Code wishes to achieve.
 In sum, we hold that the Petition must be dismissed since no decree on the presumption of
Sofio’s death can be granted under the Civil Code, the same presumption having arisen by operation of
law. However, we declare that petitioner was capacitated to marry Virgilio at the time their marriage
was celebrated in 1985 and, therefore, the said marriage is legal and valid.
 Case: Gregorio Honasco
 SC said that when you file a declaration of presumptive death of your spouse, your petition
must be anchored on well founded belief.
 What is well founded belief?
o SC said that it must be anchored on sufficient evidence that would convince the court that
you have tried your best to locate your husband but it proved futile and to no avail.
- So, I repeat, for judicial declaration of presumptive death is required only for purposes of remarriage. If the
purpose is not to remarry, there is no need for you to have your spouse declared presumptively dead.
o If your husband disappears now under the FC, and you have no plans of marrying again, you just
want to settle the estate of your husband, you can already open the estate. Presume your husband dead
because 10 years have already lapsed, you can already open the estate of your husband and distribute the
estate to your children, you can have a settlement of the estate.
 Why?
 Because under the law, your husband is already presumed dead after 7 years from
disappearance. But for purposes of opening the estate, 10 years.
o For all other purposes, except to remarry, there is no need for declaration of presumptive death.
 The reason according to SC is that because it is the law itself that presumes him to be dead and why
should the court make another judicial declaration. That is only required for purpose of remarriage
because Article 41 says so.
 If there was no Article 41, then there is no need for such declaration.
 If you look at Article 41, it follows Article 40. This is in line with the Philosophy of Article 40
not to put the law into your hands. You have to put the first marriage declared void first. Like in
Article 41, you respect the court, have the court to declare your husband presumptively dead.
 Page | 17

o IOW filing a petition to declare your spouse presumptively dead is necessary in order to make your
second marriage valid. Otherwise, your 2nd marriage will be declared void for non-compliance with Article 41.
- Recent Cases of the SC:
o Case: Tan Ko
 This is more procedural.
 A petition to declare your spouse presumptively dead is a petition that falls under summary judicial
proceedings in Family Law (last chapter found in the Family Code). Petitions involving validity of the
marriage falls falls under judicial proceedings in the Family Law.
 And the FC provides that if it summary judicial proceedings, the decision of the court is
immediately executory and therefore not appealable.
 In this case, when the court declared the husband presumptively dead, the OSG disagreed. According
to the OSG, there was no sufficient basis for the court in declaring presumptive death. The petitioner was
not able to establish the well founded belief that the husband was already dead. So OSG appealed the
decision of RTC to CA. Then to SC.
 SC said that the course of action is wrong. You cannot appeal the decision of the RTC declaring a
person presumptively dead because that falls under summary judicial proceedings where the decision is
immediately final and executory.
 So does it mean that you have no remedy from the decision of TC?
o SC said the remedy is CERTIORARI under rule 65. You allege that the RTC committed
grave abuse of discretion amounting to lack or in excess of jurisdiction when it ruled the grant of
petition when it ruled to grant the petition.
o And if your certiorari under rule 65 is still denied, by CA, then your remedy is to go to SC for
certiorari under rule 45.
o Case: SSS vs Vda de Vailon
 The court declared the wife presumptively dead. The husband filed a petition in court to declare his
wife presumptively dead. Actually they have been separated de facto for so many year. And the husband
wanted to marry again. The court granted the petition, and declared the wife presumptively dead. Later
on, the husband contracted a 2nd marriage. But when he died, the first wife reappeared to claim the SSS
benefits. According to the first wife, my husband knew all along that she was alive. So when he filed a
petition to declare her presumptively dead, he as acting in bad faith because he knew that the first wife
was very much alive. Therefore, she told the SSS that the judicial declaration by the husband was not
valid because the husband was trying to fool the court. So, between the her and the 2 nd wife, she has a
better right over the benefit.
 SSS agreed with the first wife. SSS said that the judicial declaration of presumptive death by the court
is not valid because the husband is fully aware that she is alive.
 The matter raised in SC was can SSS overrule the RTC?
 SC said no. Who are they to overrule the RTC. SSS is acting like it is superior to the judiciary.
 When the court declares a spouse presumptively dead, the presumption will stay until it is
negated by the reappearance of the absent spouse. There is a procedure provided for in art 42 which
says when reappear, you tell the judge that you are very much alive and you execute an affidavit of
reappearance.
o It is the execution of affidavit of reappearance that will dissolve the second marriage. That is
the only way that you can kill the judicial declaration of presumptive death, you can render it
inutile.
 In this case, the first wife never filed an affidavit of reappearance. And therefore, the marriage
between the husband and the second wife remains valid and subsisting. SSS cannot disregard the judicial
declaration of presumptive death made by the court.
 Take note: read these cases if you have time. Dean has a feeling that many of these recent decisions
will come out in our bar exams because it is already multiple choice.
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- So when the court declares a spouse presumptively dead, the present spouse may now contract a second
marriage.
o What is the status of the second marriage if it turns out the spouse who was presumed dead is
still alive?
 The second marriage will be considered BIGAMOUS BUT VALID.
 This is the only valid bigamous marriage. When you talk of the bigamous marriage, the first
thing that comes to your mind is a void marriage. But Article 41 speaks of a bigamous yet valid
marriage.
 Bigamous in a sense that your first wife is still alive and your marriage to your first wife has
not been legally dissolved by the court, and yet you contracted a second marriage. But the law
considers your second marriage as valid because there is already a judicial declaration of
presumptive death of the first wife.
Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the
previous marriage or declaring it void  ab initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to
the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. (n)
- How do you resolve this?
o The law provides that the reappearing spouse must have to execute an AFFIDAVIT OF
REAPPEARANCE to be submitted to the Office of the Local Civil Service Registrar of the place where the
present spouse and his second husband resides.
o The submission of the affidavit or reappearance is the operative act that dissolves the second
marriage.
 So the second marriage is dissolved and therefore the wife now will have to return to her first
husband.
 So the first marriage is preferred over the second marriage.
- What happens if the reappearing husband after finding that his wife is already happily married to her second
husband, the first husband will not disturb them anymore and I will find myself a 2 nd wife.
o Q: If the husband contracts another marriage, is the second marriage valid?
 NO. In fact he can be charged for bigamy.
o What about the marriage of his first wife which he did not disturb?
 The marriage will continue to be valid because he did not execute the affidavit of reappearance. It is
the execution of the affidavit that dissolves the second marriage.
- Who can execute the affidavit of reappearance?
o The law provides that the affidavit of reappearance shall be executed by:
 (a) the reappearing spouse OR
 (b) any interested party.
o What do you mean by any interested parties? Who are these persons?
 1. Their Children of the first husband and the wife OR
 2. parents of the reappearing spouse
 3. parents of present spouse
 4. Even the 2nd husband / 2nd spouse
 They can be considered as an interested parites.
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 Actual Case of Dean: There was a Filipino who married an American. They were able to acquire
properties in their marriage and all of the properties were under the name of the wife. The American
came to dean because he wanted to annul the marriage.
 The fact was when they met, the wife said she was previously married but said she can have
the marriage declared presumptively dead because they have been separated for 10 years. But the
husband is still alive and living with another woman.
 Dean: There is no need for you to file your marriage void. Dean advices the client that he
executes an affidavit of reappearance of the first husband. Tell the civil register that the first husband
is still very much alive.
o Another lawyer suggests Article 36 but Dean advices that the easier way out is Article 42.
Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the
following effects:
(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent
spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad
faith, such donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in
any insurance policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession. (n)
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.  (n)
- What happens if the second marriage is dissolved because of the reappearance of the previous spouse?
o Art 43 enumerates to us the effect of the termination of the second marriage by the reappearance of
the absent spouse.
 1. Children of second marriage continue to be legitimate
 Even if the marriage of their parents have already been dissolved by the reappearance of the
first husband.
 2. Conjugal partnership or absolute community, as the case may be, will be dissolved
 And the SPOUSE IN BAD FAITH will not be entitled to a share in net profit.
o Spouse in bad faith, who is this person? A spouse in bad faith is the spouse who contracted
the 2nd marriage knowing fully well that the first spouse is still alive.
o So example: the husband disappeared and the wife contracted a 2 nd marriage but before she
contracted a 2nd marriage, she filed a petition to declare her husband presumptively dead. But
she was aware that the husband is not yet dead. So she is that spouse in bad faith in that 2 nd
marriage.
o If his 2nd husband does not know about it, then the 2nd husband is the spouse in good faith.
o What happens if both the wife and the 2 nd husband are aware that the 1 st husband is still
alive?
nd
 In that case, if both of them are in bad faith, then the 2 marriage is VOID AB INITIO.
 That is very clear under Article 44.
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 Now, what is forfeited by the spouse in bad faith is only the NET PROFIT of the partnership.
Not the entire share or share in the capital.
o So if during the 2nd marriage, they were able to acquire properties, they have conjugal
partnership properties, upon the dissolution of the 2 nd marriage and it is proven that the wife is
in bad faith, she knew very well that the husband was very much alive when she contracted the
2nd marriage, as in the case of the American mentioned, that spouse in bad faith will not be given
a share in the net profit of the conjugal partnership.
o NET PROFIT is the difference between the value of the property at the time it was acquired
by the conjugal partnership compared to the value of the property at the time of the dissolution
of marriage
 For example, during the marriage, they bought a parcel of land for 1M, therefore,
part of the conjugal partnership. When the marriage gets dissolved because of the
reappearance, that land is already worth 3M now.
 The difference of 2M now is considered as profit of the conjugal partnership. The
wife will not be given a single centavo out of that 2M.
 The wife will be given her share in the capital of 1M which was used to buy the
property. SO, they will share, 500k each but as to the profit, she does not get a share because
she is a the spouse in bad faith.
 The share of the wife or spouse in bad faith will go to: (priority)
 a. children of the second marriage
 b. children of the first marriage
 c. innocent spouse
o If both are aware, second marriage is void ab initio (art 44)
 3. Donation propter nuptias in favor of spouse in bad faith is revoked by operation of law.
 Supposed before the 2nd marriage, the 2nd husband who is in good faith donated a parcel of
land to the wife. If the marriage is dissolved and proven the wife is in bad faith the donation is
REVOKED BY OPERATION OF LAW.
o Even if the husband did not say that he wants to get the property back because it is
automatically revoked.
 4. Revocation of designation of spouse in bad faith as beneficiary.
 If innocent spouse has designated the guilty spouse as beneficiary in his insurance policy,
designation is also revoked, even if mentioned to be irrevocable.
o This is the only irrevocable that could be revoked because the law says so.
 5. The spouse in bad faith is disqualified to inherit from the innocent spouse.
 If either spouse of the subsequent marriage acted in bad faith, then the marriage is void.
VOIDABLE MARRIAGE
- Let’s go to another kind of defective marriage, the voidable marriages.
o They are enumerated in art 45.
- One of the distinction between void and voidable marriages is the kind of action that you will file.
 And when the marriage is void, the title of the case should be DECLARATION OF NULLITY OF
MARRIAGE ON THE GROUND OF_________.
 When the marriage is voidable, the title of the case is ANNULMENT OF MARIAGE.
o Many lawyers and even judges will use the word Annulment even on a void marriage. This is wrong.
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over
but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person
 Page | 21

having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one,
such party freely cohabited with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the
other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of
the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be
incurable. (85a)
Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding
Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral
turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than
her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage;
or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of
the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of marriage. (86a)
- Annulment of marriage, that is Article 45. It refers to the voidable marriages.
- What are the voidable or annulable marriages? There are 6 kinds enumerated in art 45:
o TAKE NOTE: All of these ground to annul the marriage must be existing already at the time of the
marriage.
 Not after.
o 1. Lack of parental consent
 For parties between age 18-21, if there is no parental consent, the marriage may be annulled.
 Who can annul the marriage?
 The party who did not give her or his consent may annul the marriage.
 The parents who did not give their consent
o When can the parents annul the marriage?
 When we discuss Article 45, we related it with Article 47, which is about
prescription to be clear.
 If it is the parents who did not give their consent to the marriage, the parents
should file it before the child reaches the age of 21.
 When their child has already reached the age of 21, their action has already
prescribed, they cannot already file the case.
 When the child reaches 21, does it mean that the marriage cannot be annulled
anymore?
 Page | 22

o No. the party who did not secure the parental consent may annul the
marriage.
 That party is given 5 years from reaching the age of 21 to annul the
marriage.
o 2. If a party is insane, the marriage can be annulled.
 Who can annul the marriage?
 a. sane spouse
 b. parents of the insane spouse
 c. insane spouse provided in lucid interval
 This kind of marriage can be filed annulled during the lifetime of parties.
o 3. Consent is vitiated by fraud or deceit
 Remember that not all kinds of fraud can invalidate the marriage. Art 46 enumerates 4 types of fraud
that could be used as a ground to annul marriage.
 What are the 4 kinds of fraud?
o See Article 46.
 (1) Non-disclosure of a previous conviction of a crime involving moral turpitude;
 For example the husband did not divulge with his wife that he was already
convicted before of the crime of murder or rape or other crimes involving moral
turpitude. That can be a ground to annul the marriage.
 Concealment of previous conviction.
 (2) Concealment by the wife of the fact that at the time of the marriage, she is
already pregnant and the author is not husband;
 This is the most serious ground.
o Why? This is very serious because there is great danger of the wife
introducing a spurious child into the family of his husband.
o This is actually a form of human smuggling committed by the wife.
(hahahaha)
 Law here says concealment by the wife not apply to the husband who conceals the
fact that at the time of marriage she has another GF who was already pregnant.
o Why? Because there is no danger of introducing a spurious child into the
family unlike if it is the wife who will conceal the pregnancy.
 Remember the word used is CONCEALMENT. Meaning she tried to hid it from her
husband.
o Case: Bukat vs Bukat
 The woman was already several months pregnant at the time of the
marriage. 3 months after the marriage, she delivered the baby. The husband
said that the baby could not be his because she delivered the baby only 3-4
months after. So the man asked for annulment of marriage on the grounds
of fraud, concealment of pregnancy.
 The court dismissed the case. Because it the child was born after 3
months, then at the time of the marriage, she is already 6 months pregnant.
The woman cannot hide that fact anymore. You cannot claim ignorance, that
you did not know your wife was pregnant.
o Case: Aquino vs de Liso
 The court believed the man because the wife is fat or plump. It is still
possible for the wife to conceal her pregnancy.
 Page | 23

o In both cases, the court distinguished the condition of the wife as to WON
there is concealment of pregnancy.
 (3) Concealment of sexually transmissible disease, regardless of its nature, existing
at the time of the marriage; or
 Even if the STD can be easily cured by doses of antibiotics because the doctors are
saying that it can now be easily cured. Even if it is curable, if you conceal that from your
wife at the time of the marriage, that is a ground of annulment because that falls under
fraud.
 (4) Concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of the marriage.
o All of these, all of the 4 types of fraud have a common denominator: concealment or non
disclosure.
 If the other party is aware of that, then there is no concealment, there is no fraud and that
will be used as a ground to annul the marriage.
 No other kinds of misrepresentation or deceit can be used to invalidate the marriage except
the 4 grounds enumerated above.
o So if the wife concealed to her husband to be that she is still a virgin, but it turns out that she
is just like a virgin, you cannot annul the marriage on this ground.
o If the husband made it seem that he was a lawyer when he was not, that is not a ground to
annul the marriage.
 Who can annul the marriage on the ground of fraud? Party who was defrauded.
o What is the prescriptive period? 5 years from the discovery of the fraud.
o 4. When consent to a party is vitiated by force, intimidation or undue influence.
 When the party to a marriage was forced to say “I do” because of force, intimidation or
undue influence, the marriage can be annulled.
 Who can annul the marriage?
 Party whose consent was vitiated.
 What is the prescriptive period?
 5 years from the time the force, intimidation or undue influence ceases.
o 5. When a party is incapable of physically consummating the marriage
 Physically incapable of consummating the marriage actually refers to IMPOTENCY.
 If the husband cannot anymore do it, then the marriage can be annulled.
 But herethere should also be a form of concealment here because if there is no concealment,
there is no ground to annul the marriage.
 Impotency of the husband can be a ground if such impotency has been existing at the time of
the marriage, and was concealed by the husband from the wife. The wife discovered it only after the
marriage.
o No concealment, then no ground to annul the marriage.
o Ex: 18 year old very beautiful woman marrying a 95 year old millionaire. After the marriage,
the wife now claims that the husband is impotent and files an annulment. The court will NOT
grant this because you married him. 95 years old na gyud na! We do not make a mockery of the
marriage.
 If the impotency occurs after the marriage, and was not existing at the time of the marriage,
that could not be a ground to annul the marriage.
o Ex: husband had an accident and became impotent, the wife cannot ask for an annulment of
marriage because the impotency is after the marriage, not before.
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 Also, remember IMPOTENCY is different from STERILITY.

o In STERILITY, the husband is capable of carnal knowledge but he is not capable of producing
a child. Sterility is not a ground for annulment. It is impotency that is a ground for annulment.
 If the ground is impotency, what is the prescriptive period to annul?
 5 years from celebration of marriage.
 POTENCY IS ALWAYS PRESUMED BY LAW.
 The presumption is that a man is always potent at the time of marriage.
o However, that presumption may be rebutted if the wife remains a virgin after 3 years from
marriage.
 This is called the Doctrine of Triennial Cohabitation.
 It says that if the wife remains a virgin after 3 years, the husband is presumed to
be impotent. It destroys the presumption of potency.
o 6. Party is inflicted with sexually transmissible disease, both serious and incurable
 It must be both serious and incurable like AIDS.
 As distinguished from art 46, paragraph 3.
 In 46: it must be concealed, so there is fraud.
 In 45: concealment is not an element. Even if it was not concealed if the husband is suffering
from a STD that is both serious and incurable, that is already a ground for annulment of marriage.
o But if it is NOT serious and incurable, it can only be a ground if it was concealed. Meaning it
was already there at the time of the marriage and the husband concealed it.
o Again, the key words is CONCEALMENT: If the husband did not know at the time of the
marriage that he has an STD.
 Ex: In a stag party, the friends gave the groom a woman for a 1 night stand, for a fee.
And the groom was contaminated but the groom did not know about it. So on the first night of
their wedding, the groom transmitted the disease to the wife. The wife discovered it a few
days after the marriage.
 There is no ground to annul the marriage because there was no concealment by the
husband of the STD.
 But if that STD is very serious and incurable, there is no need for concealment. That is
a ground for annulment of marriage. That is where the 6ht ground will come in.
 On the ground of STD, what is the prescriptive period?
 5 years from celebration of marriage.
o Definitely within that 5 years you could discover already.
PROCEDURE
Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods
indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her
consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having
legal charge of the minor, at any time before such party has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's
insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the
death of either party, or by the insane spouse during a lucid interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of
the fraud;
 Page | 25

(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the
force, intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the
marriage. (87a)
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or
confession of judgment. (88a)
- Lets go to the procedure in the declaration of nullity and annulment of marriage?
o 1. Where do you file the case for nullity of marriage and annulment of marriage?
 You file it with the Family Courts.
o 2. Once you file it, the Family Court will issue summons.
 And furnish the defendant a copy of summons.
o 3. So there will be service of summons.
o 4. The defendant is required to Answer.
 If there is no answer, the court cannot declare the defendant in default.
 Case: Ancheta vs Ancheta
o SC castigated the judge for declaring the defendant in default for failure to answer the
complaint.
o It is an error for the court to declare the defendant in default.
o There is no declaration of default in annulment of marriage, declaration of nullity of
marriage and legal separation.
 Instead, what will the court do if there is no answer?
 4A. The court will order the prosecuting fiscal in his sala to conduct his own investigation
to determine WON there is collusion between the parties and the prosecuting fiscal.
 4B. And the prosecuting fiscal will submit a report to the court that there is no collusion
between the parties. NO COLLUSION REPORT.
o What if there is non submission of the no-collusion report filed by the fiscal? Will it affect the
validity of the proceedings?
 We have the case of Tuazon vs. CA:
 SC said that This is a mandatory requirement that must be complied with.
 We have the case of Tuazon vs. CA:
 SC said that even if the fiscal did not submit a No Collusion Report, it will not affect
the validity of the proceeding if the defendant answered and opposes the complaint
because here, there is a no holds bar proceeding, and therefore obviously, there is no
collusion.
 Because here, the wife filed a case on the ground of psychological incapacity. The
husband countered, and filed his answer. So there was a full-blown no-hold-barred
proceeding between the husband and the wife. The fiscal forgot to submit a report.
 SC said that it is okay that there is no report of the fiscal because it’s very obvious
that there is no collusion.
 But if the defendant did not answer, it is NECESSARY that the fiscal will make his
own investigation to determine if there is collusion and submit a report to the court.
o That is a mandatory requirement that must be complied with.
 Page | 26

 And therefore the GENERAL RULE is that if there is no report from the fiscal
pertaining to the absence of collusion between the parties, the entire proceedings will be
tainted with infirmities and therefore, proceedings will be nullified if there is no report from
the fiscal on the collusion.
 However, in the case of Tuazon vs. Tuazon, the SC laid down the EXCEPTION that if
the defendant filed his answer and actively participated in the proceedings, where there is a
no-hold barred proceedings, the defendant proves that there was no PI on his part or that the
grounds relied upon did not exist. Then the absence of the collusion report by the fiscal is not
fatal. Then the proceedings will still be considered as valid.
o 5. During the pendency of the case, the court will award or will issue support order for the children.
o 6. No judgment shall be based on stipulation of facts or confession judgment.
 You have in remedial law and civil procedure that if the answer does not tender any issue or OW
admits the material allegations in the pleading, the other party may ask for judgment in the pleading.
 This is not allowed in annulment.
 If the defendant in annulment cases, will admit all the material allegations in the complaint,
the court should instead suspect the parties to have collusion.
GOVERNING RULES
- The procedure of the Annulment and Nullity of marriage is not governed by the new rules, the SC en banc
resolution which took effect March 15, 2003.
- The rule is, the decree of annulment and the nullity of marriage under art 45 and art 40 shall include the
dissolution of the conjugal partnership and the absolute community of property regime as they are considered to
be the necessary consequences of the annulment and the declaration of nullity of marriage.
Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply
in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40
and 45.
The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of
the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes,
unless such matters had been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of
the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with
the provisions of Articles 102 and 129.
- The effect of art 43 paragraphs 2, 3, 4 and 5 shall apply here.
o Meaning, the effects shall only apply to annulment of marriage under art 45 or declaration of nullity
of marriage under art 40.
o In all other kinds of void marriages, there shall be no dissolution of conjugal partnership because this
kind of marriage is not governed by conjugal partnership or absolute community.
 This is very important.
 When the marriage is void, GENERAL RULE, there is no conjugal partnership or absolute
community to speak of.
 Why?
o Because the husband and wife in that void marriage shall be governed by the rules of co-
ownership.
 And there are two kinds of co-ownership:
 1. art 147
 2. art 148
 Page | 27

o The fact remains that if the marriage is void, do not talk about dissolution of the conjugal
partnership. There is no such thing because the parties are not governed by conjugal partnership
or the absolute community. Rather, they are governed by co-ownership.
o Article 36 is still governed by co-ownership.
 EXCEPTION: The only void marriage that is governed by this rule under art 43 paragraphs 2, 3, 4 and
5 which speaks of the dissolution of the conjugal partnership is the void marriage under art 40. TAKE
NOTE, just 1.
 And the other instance where the effects of art 43 will apply is in the case of a voidable
marriage under art 45.
o What is again Article 43?
 Art 43 refers to the effects of the dissolution of the subsequent marriage by reason
of the reappearance of the absent spouse. It is actually referring to the declaration of the
presumptive death, where the spouse is judicially declared as presumptively dead and it turns
out that that spouse is still alive.
 What is the effect of the reappearance?
 The effects are enumerated in art 43, Par 2: the spouse in bad faith will not get a
share in the net profits of the conjugal partnership. IOW the conjugal partnership or the
absolute community will have to be dissolved.
 By the express reference of art 50, the effects of art 43 par 2, 3, 4, and 5 shall also apply to
apply to marriages annulled in art 45 and void marriages under art 40 - This is where the first
marriage is void, and you contractedca subsequent marriage without having it declared void, you
contracted a second marriage. That is a void bigamous marriage under Article 40.
 What about the other void marriages?
 These void marriages are void because of:
o a. psychological incapacity – Article 36-147
o b. incestuous –Article 37-148
o c. against public policy – Article 38-148
o d. failure to comply with requirements – Article 35-147
 What governs the property relatin of the husband and the wife in these kinds of marriages?
o Co-ownership under Article 147 or 148.
- ANOTHER EFFECTS IF MARRIAGE IS ANNULED UNDER 45 and DECLARED NULL UNDER ART 40:
o 1. The conjugal partnership or absolute community will have to be liquidated.
 Read Article 50 carefully. It mentions only 2 articles.
 Creditors are notified.
o 2. Partition and distribution of properties
o 3. Provide for custody of children
o 4. Delivery of the presumptive legitime to children.
 Unless such matter is adjudicated in previous proceedings.
Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date
of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the
parties, by mutual agreement judicially approved, had already provided for such matters.
The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional
rights of the children accruing upon the death of either of both of the parents; but the value of the properties
 Page | 28

already received under the decree of annulment or absolute nullity shall be considered as advances on their
legitime.(n)
- What is this presumptive legitime?
o This is a gray area. There are many civilists debating about this.
o What is the presumptive legitime given to the common children?
 In the subject succession, we have the term LEGITIME.
 It refers to the portion of the estate of the person that is reserved for the compulsory heirs.
o If you are a married man, there is always a portion of your estate reserved for your children
when you die.
 In Article 50, it says, the children should be given their presumptive legitime.
o PRESUMPTIVE because the husband and the wife are not yet dead. They were annulled but
are still alive. But the children will be given their legitime.
 For example, in the liquidation of their property, the husband is supposed to get 2M
each, assuming the conjugal property is 4M. The share of the husband is subjected to a
legitime. Assuming the husband died on that day, their common children receives their ½
legitime.
 So ½ of the 2M of the husband should be set aside and given to the children by way
of presumptive legitime. Likewise with the wife. Presume they are dead and that is the
presumptive legitime of their children.
 IOW practically ½ of what the husband and the wife will receive will go to the
children. This is without prejudice to the actual hereditary right later on when the
parents would die.
 IOW when the parents separate, the children will get advance inheritance as
presumptive legitime.
o Now, If the parents will die despite finding other spouses, the children will
inherit as a legitimate child from both your parents. This is what it means that
this is without prejudice when your parents finally die.
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. (n)
Art. 53. Either of the former spouses may marry again after compliance with the requirements of the
immediately preceding Article; otherwise, the subsequent marriage shall be null and void.
- The rule provides under Article 40, there should be liquidation of the conjugal partnership, partition of the
conjugal assets, distribution of the presumptive legitime to the children.
o All of these must be registered by you in the Office of the Registry of Properties in the Register
of Deeds and Local Civil Registrar.
o The decision annulling your marriage and declaring the marriage null and void of the court must also
be registered in the Office of the Civil Registrar and the Registry of Properties.
- Failure of the parties to comply with the requirement of registration will prevent them to marry again.
o Because if the will remarry without complying with the requirement of registration, the second
marriage will be considered null and void.
 This is the void marriage under Article 53. You remember one mentioned in Article 35, the last
enumeration is the last marriage under Article 53 which is void because of non-compliance of the
requirement of registration.
o So either of the spouses may marry again after complying with the requirements.
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Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under
Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be legitimate. 
- There are instances where void marriage may produce legitimate children.
o They are the children conceived and born under the following conditions:
 1. Children born before the annulment of a voidable marriage.
 A voidable marriage under art 45 is considered valid until annulled. And because it is
considered valid, the children born out of it are called legitimate.
 2. Void marriage under art 36 – psychological incapacity
 Generally, when the marriage is void, the children are illegitimate.
o But there are 2 kinds of void marriage that produce a legitimate child: under Article 36 and
article 53.
 When the marriage is void due to psychological incapacity, the child born out of that
marriage is legitimate because the law says so.
 3. Born of subsequent void marriage under art 53 – non compliance of registration requirements.

TITLE II - LEGAL SEPARATION

RELATIVE DIVORCE
- Legal separation is OW known as divorce, only that it is not considered absolute. It is a RELATIVE DIVORCE.
o This is the kind of divorce where the husband and the wife are not allowed to marry again.
 Because in legal separation, the spouses are separated only in bed and in board. The conjugal
partnership is dissolved, the custody of the children will be passed upon, and they are free to live
separately from each other.
 BUT They cannot marry again because in the eyes of the law, they are still married.
o IOW the marriage is not really dissolved. It is only the right to live together that is dissolved, as well
as their property relation.
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a
child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to
engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)
- In the Civil Code of the Philippines, there were only 2 grounds for legal separation:
o 1. adultery on the part of the wife and concubinage on the part of the husband
o 2. attempt on the life of one spouse to the other spouse.
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- 10 GROUDS IN NEW FC
o But there are 10 new grounds in new FC. We patterned this from the divorce law we had during the
war introduced to us by the Japanese.
 The Japanese were even more liberal because they expanded the ground for legal separation.
After the war, when the Americans returned and we got our independence, we went back to our 2
grounds.
 1. Repeated physical violence or grossly abusive conduct
 The law says repeated physical violence, meaning it must be committed several times.
 Need not be physical violence because it also mentions of grossly abusive conduct.
 Directing against:
o (a) Against spouse,
 the petitioner for legal separation.
o (b) Or common child or
o (c) Or even against the child of the petitioner in a previous marriage or with another man.
 The husband frequently hits his step son (anak sa pagkadaga sa iya wife). That is
ground to ask for legal separation .
 2. Physical violence or moral pressure to compel the petitioner to change religious or political
affiliation.
 Husband forces you to change to Inglesia Kristo.
 Or you are a die hard GMA and forced to transfer to Noynoy.
 3. Corruption or inducement to engage in prostitution or connivance in such corruption or
inducement.
 Forcing your wife or child to become a prostitute for money that is a ground for legal
separation.
 Against wife or child
 Attempt is enough
 4. Final judgment of imprisonment of more than 6 years.
 Even if pardoned
 If the husband example, during the marriage, and was convicted of a crime for more than 6
years, no probation, your wife can ask for LS.
 5. drug addiction and habitual alcoholism
 6. homosexuality or lesbianism
 These are also grounds for annulment of marriage and declaration of nullity of marriage
under psychological incapacity.
o When do you use this ground for the three cases?
 If the homosexuality, lesbianism, drug addiction and habitual alcoholism was
already existing at the time of marriage, but it was concealed by a party from another, that is a
ground for ANNULMENT OF MARRIAGE.
 Because the concealment of these grounds constitute fraud.
 If these grounds did not exist at the time of the marriage but occur only at the time
of the marriage, they can only be used as a ground for LEGAL SEPARATION.
 Ex: before the marriage, the husband does not drink but during the marriage,
because of the nagger wife, the husband became an alcoholic. This is not a ground to
annul the marriage because that defect was not present during the marriage. This is a
ground for legal separation.
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o These grounds can also be used as a ground for declaration of nullity on the ground of
psychological incapacity if this is existing before the marriage, is serious and incurable, and all
elements are present, and you could establish it. That could be used as well under Article 36.
 7. Contracting by the respondent of a subsequent bigamous marriage
 Whether in Philippines or abroad.
o A wife who filed for divorce abroad while the husband is in the Philippines, and she
contracts marriage abroad, the marriage is bigamous, and that is a ground for legal separation.
 8. sexual infidelity or perversion
 You notice that the 1st ground in the old NCC were not reproduced and instead, they were
incorporated in par 8, because that is the generic term for that.
o Instead of saying adultery or concubinage, it has been changed to sexual infidelity or
perversion.
 The reason is because the women members fought hard for equality in the eyes of law. There
is big difference between adultery and concubinage.
o ADULTERY is a crime committed by a wife who has sexual intercourse with another man not
her husband.
 Automatic.
o CONCUBINAGE is committed by a married man who had sex with another woman, but the
sex must be under scandalous circumstances; the man must have to live with that woman.
 This is very difficult to prove. If a married man has sex with a prostitute, that is not
concubinage kay wala man ni gi live in. Bisan taga adlaw pa. But if the wife will have sex with
the call boy, that is already adultery.
 This was done so because it was made by the Congressmen and most of them are
womanizers.
 Now, equal, SEXUAL INFIDELITY, meaning a married man who will have sex with a
prostitute for a one night stand is already guilty. And that will already be a ground for LS.
o Di lang gani ang sexual infidelity, included already perversion. If the husband is a sexual
pervert, that is already a ground for LS.
 Sexual perversion means that the demand for sex of the husband is out of this world.
– saddista, those who have sex with animals, these are sexual perversions.
 9. Attempt against the life
 This is also found in the old law.
 10. abandonment w/o justifiable cause for more than 1 year.
Art. 56. The petition for legal separation shall be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense or act complained of;
(3) Where there is connivance between the parties in the commission of the offense or act constituting the
ground for legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
- What are the defenses for the action of legal separation?
o An action for legal separation can be defeated by the following defenses:
 1. condonation
 2. consent
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 3. connivance
 4. recrimination/mutual guilt
 5. collusion
 6. prescription
- 1. CONDONATION
o Means The act committed by the spouse has been forgiven by the other spouse. It is given after the
fact.
 Example. If the spouse was caught committing sexual infidelity, and the wife said that she forgave
him but don’t do it again. Condonation here occurs. The wife could no longer file a legal separation case.
 If the wife files a LS case and the husband can already prove that he has been forgiven by the
wife for that act, then that is a ground for the dismissal of the LS case.
o Condonation of a single act does not mean condonation of other subsequent acts. You are o nly
condoned for that particular act.
- 2. CONSENT
o It is given before the act.
o The difference between condonation and consent is that, consent is given before the act while
condonation is after the act.
 Ex: Okay ra nako sweetheart if mangabit ka ug GRO ayaw lang bayot – That is consent given before
the commission of the act of sexual infidelity.
- 3. CONNIVANCE
o When another party connived with the other for the downfall of the other spouse.
 Example. The husband connived with another man to have a ground for legal separation against the
wife. The man for example suspected that every time he is out of town, the wife will play around. The man
wanted to catch the wife, so he hired someone, a detective, to entice his wife and take pictures of the wife
and her infidelity.
 If this happens and you can establish this in court, that is ground to deny the legal separation
of the husband because the husband connived in the downfall of his wife.
- 4. RECRIMINATION/MUTUAL GUILT
o Both have grounds for legal separation.
 Example. The husband filed a legal separation case against the wife claiming that she is committing
infidelity and the wife also claims and was also able to prove that the he was also committing infidelity.
 Both of them are equality guilt. The court will dismiss the legal separation case.
- 5. COLLUSION
o The spouses agreed to file a case against the person, and the other will not deny the allegation.
 Like when the husband says he will not answer in a LS case to make sure that the petition will be
granted.
- 6. PRESCRIPTION
o What is the prescriptive period in an action for legal separation?
 5 years from the time of the occurrence of the cause.
 After 5 years, possibly meaning you have already forgiven your husband.
ART 57 – PRESCRIPTIVE PERIOD
Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the
cause. (102)
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- Can the court deny legal separation on the ground of prescription even if the party did not ask for it? can the
court dismiss the legal separation case motu proprio without being raised by the defendant?
o YES.
o Case: Brown vs Yanbao
 SC said that the court can take judicial notice of prescription. If prescription is apparent from the
allegations in the complaint of legal separation, the court can dismiss it motu proprio. Thus, even if
prescription is not interposed as a defense but it becomes manifest after the trial, the court may still
dismiss the complaint motu proprio.
ART 58 – SIX MONTHS COOLING OFF PERIOD
Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the
filing of the petition. (103)
- 6 MONTH COOLING OFF PERIOD
o A unique peculiar feature of legal separation that is not found in annulment and declaration of nullity
of marriage, is the 6 MONTHS COOLING OFF PERIOD.
 No case for legal separation shall commence or shall be tried by the court without waiting for a 6
month cooling off period.
 It is a unique feature found in a legal separation case.
o What is the reason for this?
 Since legal separation does not really dissolve the marriage, the policy of the state is really to try its
best to reconcile the differences of the parties.
 So in legal separation cases, the court should not act on it immediately to give the parties sufficient
time to heal the differences between them.
 According to the SC in one case, it is to allow the smouldering amber of passion and emotion to
subside.
 Once the case is already filed in court and ready for trial, the court will set it for recess for 6 months.
o What is meant on the six months cooling off period is only the trial on the merits. The court may still
act on incidental motions like motion for support pindente lite or incidents pertaining to the custody of
children.
 These can be acted upon by the court. Especially support. Like if the wife asks support for her and the
children against the husband.
o Case: Pasite vs Cariaga
 SC ruled that the six month cooling off period is mandatory. It is a mandatory requirement.
 The failure to observe is a ground to set aside the decision granting the legal separation. However
what is prevented from being heard during the 6 months period is only the hearing of the case on the
merits. It does not involve the hearing of the incidents such as the custody of the minor children, support
pindente lite and alimony. Also the court may entertain action for injunction.
ART 59 – EFFORTS TO RECONCILE
Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n)
ART 60 – NO DECREE BASED ON STIPULTAION OF FACTS AND CONFESSION OF JUDGMENT
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent
collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a)
- Another feature of legal separation is that no decree of legal separation will be issued by the court without the
court trying its best to reconcile the differences of the parties.
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o The court must have to take steps towards the reconciliation of the spouses. And it is only after it has
been fully satisfied that they cannot be settled amicably that the court will try the case.
- Likewise, the court cannot render judgment on the basis of confession of judgment.
o If a petition for LS is filed based on the following grounds and the respondent will say all of that is
correct, in ordinary civil action , the court will already proceed to decide on the case wihtou conducting a
hearing because a judgment on the basis of a confession can be had.
o But there is no such thing as confession of judgment in LS, annulment and declaration of nullity of
marriage.
o However in the case of: Ocampo vs Florencio
 SC ruled that even if the wife has admitted adultery, a ground for LS. And that the wife admits. They
say that there had been collusion, therefore the judgment of the court is based on the judgment on the
pleading.
 SC said that the court can still render judgment if there are evidences presented by the husband to
prove adultery other than the admission of the wife.
 If you dismiss the LS case just because the wide admitted, there is collusion, it is very easy to defeat
LS. The other party will just admit right away. So admission by the wife of adultery is not a ground to
dismiss the case of LS if the husband can prove the existence of adultery through other evidences other
than the admission of the wife.
ART 61 – EFFECT OF FILING PETITION
Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from
each other.
The court, in the absence of a written agreement between the spouses, shall designate either of them or a third
person to administer the absolute community or conjugal partnership property. The administrator appointed
by the court shall have the same powers and duties as those of a guardian under the Rules of Court.
- What is the effect of Legal Separation? EFFECTS OF FILING PETITION:
o 1. LIVE SEPARATELY
 Even before the grant of legal separation, the moment the petition is filed in court, parties are
allowed to live separately.
o 2. ADMINISTRATION OF PROPERTY
 In the absence of agreement between the spouses, the administration of the absolute community or
the conjugal partnership of property shall be decided by the court.
Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to
the support of the spouses and the custody and support of the common children. (105a)
Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending
spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal
partnership, which shall be forfeited in accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of
Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by
operation of law. (106a)
- What is the effect of legal separation?
o Once it is granted by the court, the effects are:
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 1. parties are free to live separately from each other

 2. absolute community or conjugal partnership is dissolved and partitioned
 PVDD guilty spouse is not entitled to the share of net profit.
o This is imilar to art 43– par 2, one of the effects in the reappearance of spouse declared
presumptively dead.
 So the effects of Article 43, will also apply to legal separation cases.
 3. Custody of minor children to be awarded to the innocent spouse
 4. Offending spouse is not anymore entitled to inherit from the innocent spouse through intestate
succession.
ART 61 – RIGHTS AFTER FINALITY OF THE DECREE
Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made
by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any
insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where the properties are located. Alienations, liens and
encumbrances registered in good faith before the recording of the complaint for revocation in the registries of
property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall
take effect upon written notification thereof to the insured.
The action to revoke the donation under this Article must be brought within five years from the time the decree
of legal separation become final. (107a)
- After the finality of the decree of LS:
 1. The innocent spouse may revoke the designation of donations
 2. innocent spouse may revoke designation of guilty spouse as irrevocable beneficiary
o These are the effects in art 43 par 2, 3, 4 and 5.
ART 65 to 67 – EFFECTS OF RECONCILIATION
Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them
shall be filed with the court in the same proceeding for legal separation. (n)
Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of
the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former
property regime.
The court's order containing the foregoing shall be recorded in the proper civil registries. (108a)
Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be
executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing to each.
The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for
legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall,
in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper
registries of properties.
The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not
notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim. (195a, 108a) 
 Page | 36

- In legal separation, the husband and the wife are separated only in bed and in board. The marriage is still
subsisting. Is it is very possible that the parties may reconcile their differences.
- What happens if the parties reconcile? IN Article 65-67.
o A. AS TO THE CASE
 1. WHILE CASE IS PENDING
 The case will be dismissed.
o WHAT SHOULD THE PARTIES DO?
 Parties should execute a joint affidavit, submit it to the court stating the fact that
they have already reconciled their differences and that they want to live together again.
 Upon the submission of the affidavit should set aside the case. And if there is already
a decision, the court will also set aside the decision and allow the part ies to live together
again.
 2. IF THE COURT HAS ALREADY DECIDED THE CASE
 The court will set aside the decision
o B. AS TO THEIR PROPERTIES
 They are allowed to REVIVE the previous property regime. IN fact, this is encouraged by our law.
 OPTIONS:
o 1. revive previous property regime,
 a. the court will require them to state the properties that will be brought back
 b. creditors will be duly notified to protect the creditors from teh effect of
reconciliation.
o 2. adopt other kind of property regime,
 The FC mentioned of the revival of the former property regime (PR).
 If the husband and wife, after they reconcile, decided to adopt another PR are they
allowed to do that?
o Ex: at the time of the marriage between A and B, they were governed by
Absolute Community. They were LS, partitioned and recorded. When they
reconciled, they wanted separation of property.
o Can they do that?
 If you look at the FC, the answer is NO because the FC mentions only of the
revival of the previous PR.
 BUT the new rules on legal separation promulgated in the new rules of legal
separation by the SC, Sec 23e and sec 24 of Administrative Matter 02-11-12, March 15,
2003 allows the spouses to adopt a PR different from that which they had prior to LS.
o This new rule has created a conflict between the rules promulgated by SC
and the FC. How do we resolve?
 The FC is a substantive law. The rules and procedures in legal separation
cases is a procedural rule promulgated by the SC.
 The substantive law, FC will prevail. Moreover, if you read art 88 in relation
to art 107 of the FC, it says there that the property regime that will govern
the husband and the wife shall be agreed upon by the parties before the
marriage. And once it is agreed, it can no longer be changed during the
marriage.
 The only property regime that you are allowed to adopt during the
marriage is complete separation of property, but not absolute to conjugal
and vice versa.
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TITLE V :
RIGHTS AND OBLIGATIONS BETWEEN THE HUSBAND AND THE WIFE
ART 68 – LIVE TOGETHER, OBSERVE MUTUAL LOVE RESPECT AND FIDELITY
Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render
mutual help and support. (109a)
- This chapter is important in the lights of the provisions of art 36 – psychological incapacity a s ground for
declaration of nullity.
o The definition of psychological incapacity is the failure to comply with the essential marital
obligations.
- What are the essential marital obligations? Wherein failure of the spouse to comply would make him
psychologically incapacitated?
o IN the chapter, especially Article 68 and 69.
 1. to live together under 1 roof.
 2. to observe mutual love, respect and fidelity
 3. to render mutual help and support
o These obligations mentioned in art 68 are the very obligations that we consider as essential marital
obligation.
- 1. OBLIGATION TO LIVE TOGETHER
o What happens if the spouse refuses to live together with the husband? Can she be compelled by law
to live with the husband?
 NO.
 Case: Arroyo vs Arroyo
 SC said that there is no law that can compel the wife to live with the husband if the wife does
not want to. With more reason if the wife has a valid reason for not living together with the husband.
 We cannot compel the wife is she does not want to live with the husband.
 What is the remedy of the husband?
 a. Refusal to provide support.
 b. demand for damages.
o Case: Entenchavez vs Escano
 If the wife refuses to live with her husband without justifiable reason, the husband
may demand for damages from the wife.
 If the wife deprives the husband of his right to live with the wife under 1 roof, that
could be a basis for damages.
o Case: Chimingchoi
 If the husband refuses to have sex with the wife, an action for damages may be
awarded by the court in favor of the wife.
ART 69 – FIXING OF FAMILY DOMICILE
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there are other
valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not
compatible with the solidarity of the family. (110a)
- The fixing of the family domicile is already the right of both the husband and wife. It is no longer the
prerogative of the husband.
ART 70 – JOINT SUPPORT
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Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and
other conjugal obligations shall be paid from the community property and, in the absence thereof, from the
income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such
obligations shall be satisfied from the separate properties. (111a)
- The husband and the wife have joint responsibility to support the family and each other, under the FC, it is no
longer the obligation of the husband to support the wife. Wife must also support the husband.
o So do not be surprised if the husband will file a case for support against the wife because that is
allowed in the FC.
o Dean: There was actual case in Mandaue wherein the husband was asking for support because the
wife was working in Saudi. He was asking for support because he had some kind of disability so he was not
working. That is allowed in the FC.
Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such
management shall be paid in accordance with the provisions of Article 70. (115a)
- The management of the household is no longer the sole prerogative of the wife. It is now the right of both
husband and wife.
ART 72 – OBLIGATION NOT TO BRING DANGER, DISHONOR OR INJURY
Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to
bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for
relief. (116a)
- Another obligation of the husband and the wife is not to do acts that would bring danger, dishonor or injury
to the other or the family.
- Dean’s actual Case (though it did not reach the SC):
o There was a husband who was a compulsive gambler. He already mortgaged all his properties. His
creditors have started calling their house with threats. The wife was the one earning more and was selling
their properties left and right. The husband is doing acts that would bring danger, dishonour and injury to the
wife and his family.
o If the husband cannot stop himself, from these acts that would bring danger, dishonour or injury to
the family, then he is a psychologically incapacitated person. He cannot perform his essential marital
obligation to protect his family. And if he cannot stop himself because he is a compulsive gambler then he is
psychologically incapacitated.
o The judge agreed with dean and luckily the OSG did not anymore question and raise it to the CA and
SC.
ART 73 – EXERCISE OF PROFESSION OR OTHER ACTIVITIES
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the
consent of the other. The latter may object only on valid, serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the
objection, the resulting obligation shall be enforced against the separate property of the spouse who has not
obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in good faith.  (117a) 
- Any essential marital obligations from art 68-73, if the spouse cannot perform it or cannot do it because of
psychological reason, his mind tells not to, then that is psychological incapacity and a ground to nullify the
marriage.
TITLE IV:
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
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Art. 74. The property relationship between husband and wife shall be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)
- The property relation of the husband and the wife shall be governed: (ORDER)
o 1. Primarily by the marriage settlement.
 Executed by them before the marriage.
o 2. If no marriage settlement, provisions of the FC
o 3. local customs
ART 75 – PROPERTY REGIMES IN MARRIAGE SETTLEMENT
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 a
marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as
established in this Code shall govern. (119a)
- MARRIAGE SETTLEMENT
o It is more popularly known as a PRE-NUPTUAL AGREEMENT.
 It is a contract entered into by two persons about to get married as to the kind of property regime
that will govern them during the marriage.
- What are these property regimes that the husband and wife may agree in their marriage settlement? There
are only 3 mentioned in the FC:
o 1. absolute community of property
o 2. conjugal partnership of gains
o 3. complete separation of property
o 4. any other regimes not contrary to the law, morals, good customs and public policy.
 Any combination of the three. You can combine the 3.
 You can say, except this ring donated by my grandfather because it has a sentimental value.
Then the wife would say not to include the necklace as well.
- ABSOLUTE COMMUNITY OF PROPERTY – DEFAULT REGIME
o If there is no marriage settlement or if there is one but is void, the property regime that will
automatically govern is the absolute community of property regime.
o This is different from NCC, where the default regime, if there is no prenuptial agreement or marriage
settlement, then it is the conjugal partnership of gains.
- REQUISITES OF VALID MARRIAGE SETTLEMENT / ELEMENTS OF A PRE-NUPTIAL AGREEMENT:
o 1. executed before celebration of marriage
 No marriage settlement after the marriage. Thus called pre-nuptial.
o 2. in writing
o 3. signed by the parties
o 4. registered in the office of the Local Civil Registrar of the place where the parties enter into
marriage.
 The registration is not an essential requirement to the validity of the marriage settlement.
Because if it is signed by the parties, then it will bind the parties. It is binding between the 2 of them.
 But in order to bind 3rd persons, it is necessary that it be registered.IOW, the registration of the
prenuptial agreement is only required to bind third persons.
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Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121)
- Can the marriage settlement signed b the parties, executed before the celebration of the marriage be modified
or amended?
o YES.
 It must be made before the celebration of marriage subject to the provisions of:
 1. art 66 – legal separation
 2. art 67 – revival of property regime after reconciliation
 3. art 128 - h/w who abandoned the family
 4. art 135 – valid grounds for separation
 5. art 136 – by agreement
- So when you have a marriage settlement, that marriage settlement can only be modified before the
celebration of marriage. IOW whatever property regime they have agreed in their marriage settlement, that
cannot be changed however to another type of regime.
o Example: If the husband and wife first had absolute community as their property regime, can the
husband and wife later on change their property regime to conjugal partnership?
 NO.
o If they had conjugal partnership in the beginning, can they change it to absolute community?
 NO.
o EXCEPTIONS: The only instances where a change in property regime is allowed during the marriage
are:
 Take note, Any change of property is always with the approval of the court.
 1. ARTS 66 AND 67 – RECONCILIATION AFTER LEGAL SEPARATION
 And the exception is in art 66 and 67 which is about the reconciliation of the parties who had
legal separation, where under the new rules may even agree to use a different property regime.
 If there is a legal separation, the property relation of the husband and the wife shall also be
dissolved. That’s one of the effects.
 But if later on, the husband and the wife would reconcile, they can revive the old property
regime or use other regime as allowed by new rules on legal separation.
 This is an instance wherein a change in property during the marriage is allowed.
 2. ARTS 135 AND 136 – JUDICIAL SEPARATION DURING THE MARRIAGE
 Or under arts 135 and 136 which is about judicial separation of property during the
marriage which could either be for a valid ground or for voluntary agreement between husband and
wife.
o This refers to judicial separation of marriage during the marriage. There are two ways of
separating the property during the marriage:
 (a) It can be under 135, separation based on valid grounds, or
 (b) 136, based on voluntary agreement between the parties.
 IOW even if the spouses are governed by the absolute community or conjugal
partnership of gains at the time of the marriage pursuant to the marriage settlement, later on
during the marriage they may abolish it and go to separation of property regime.
 SO your Absolute Community may now be changed to complete separation of
property.
 So if you are asked, can you change the property regime during the marriage?
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 YES. But only to complete separation of property, either from absolute community or
conjugal partnership of gains.
o From AC/CPG to separation of property ONLY
o From CP to separation of property? Yes.
o From AC to CP? No.
o From CP to Ac? NO.
 Why?
 Because the law is clear that the absolute community regime as well as the conjugal
partnership of gains shall commence at the precise moment of the celebration of
marriage. So it cannot be that absolute community and conjugal partnership of gains will
start operate during the marriage.
 Any change of the property regime of the marriage must be with the approval of the court. No change
of the property regime DURING THE MARRIAGE will take place without the interference or approval of
the court.
ART 77 – REQUISITES FOR MODIFICATION
Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and
executed before the celebration of the marriage. They shall not prejudice third persons unless they are
registered in the local civil registry where the marriage contract is recorded as well as in the proper registries
of properties.(122a)
- Marriage settlement or any modification thereof shall be:
o 1. in writing
o 2. signed by parties
o 3. executed before the celebration of marriage
o 4. not prejudice 3rd persons
 Unless registered in the office of the local civil registry where marriage contract is recorded.
ART 78 – EXECUTED BY A MINOR
Art. 78. A minor who according to law may contract marriage may also execute his or her marriage settlements,
but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made
parties to the agreement, subject to the provisions of Title IX of this Code. (120a)
- There is no more minor who can contract marriage now.
o This refers to the old law.
o They are what we call MINOR CAPACITATED TO MARRY.
 They could actually enter into a marriage settlement but they have to be assisted by their parents or
guardians.
 But in this provision, the parents or guardian or the minor must be parties to agreement.
- Under RA 6809, the age of majority was already lowered from 21, to 18. It is also the marriageable age, so
therefore, there is no minor capacitated to marry now.
o Because if you are a minor, that means you are below, so there is no way that a person below 18 can
contract marriage.
ART 79 – EXECUTED BY PERSON SENTENCED TO CIVIL INTERDICTION OR SUBJECT TO DISABILITY
Art. 79. For the validity of any marriage settlement executed by a person upon whom a sentence of civil
interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the
guardian appointed by a competent court to be made a party thereto. (123a)
- APPLY TO:
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o 1. persons sentenced with civil interdiction

o 2. persons subject to any other disability
- REQUIREMENT
o Guardian appointed by court will be a party to the MS.
ART 80 – PHILIPPINE LAWS WILL APPLY
Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses
shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their
residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and
executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property
situated in a foreign country whose laws require different formalities for its extrinsic validity. (124a)
- Marriage settlement will be governed by the law prevailing at the time of the celebration of the marriage and
where the marriage is celebrated.
ART 81 – EFFECT IF THE MARRIAGE DID NOT TAKE PLACE
Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding articles in
consideration of a future marriage, including donations between the prospective spouses made therein, shall be
rendered void if the marriage does not take place. However, stipulations that do not depend upon the
celebration of the marriages shall be valid. (125a) 
- If the marriage did not take place, then whatever is stipulated shall also be void.
o EXPT: However, those stipulations that do not depend on the celebration of the marriage shall be
valid.
o What are those stipulations?
 For example.
 In the marriage settlement, there is an admission by the man that he is the father of the
woman’s child and promised to provide support. But the wedding did not push through.
o So the marriage settlement will also not be valid.
o But the provision pertaining to acknowledgement and promise to support the child will
remain valid. It is not included in the setting aside of the marriage settlement because that is not
dependent upon the celebration of the marriage.
July 16, 2011
CHAPTER 2 : DONATIONS BY REASON OF MARRIAGE
ART 82 – REQUISITES/ELEMENTS
Art. 82. Donations by reason of marriage are those which are made before its celebration, in consideration of
the same, and in favor of one or both of the future spouses.(126)
ART 83 – GOVERNING LAWS

Art. 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of
the Civil Code, insofar as they are not modified by the following articles. (127a)
- ART 82 – REQUISITES/ ESSENTIAL ELEMENTS
 1. made before the marriage
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 2. made in consideration of marriage

 3. made in favor of either or both spouses.
o These are the 3 essential requisites of donation propter nuptias.
o If I donated a parcel of land to the parents of the bride because I am very happy since I am marrying
their daughter and they allowed their daughter to get married to my son.
 Is this a DPN?
 No.
 Because it was given to the parents of the bride. Even if it was given by reason of the
marriage, since it was not given to the wife or either spouse, then it is not a DPN.
o Examples of DPN are the wedding gifts given to the couple provided the gifts were given before the
celebration of the marriage. The wedding was on Sunday, but you gave it Saturday, that is DPN.
ART 84 – LIMIT ON DONATION FOR EACH OTHER; DONATION OF FUTURE PROPERTY
Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot
donate to each other in their marriage settlements more than one-fifth of their present property. Any excess
shall be considered void.
Donations of future property shall be governed by the provisions on testamentary succession and the formalities
of wills. (130a)
ART 85 – DONATIONS SUBJECT TO ENCUMBRANCES
Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In case of
foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured,
the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said
obligation, the donee shall be entitled to the excess. (131a)
- ART 84 – LIMITATION ON AMOUNT OF DONATION
o Donation in the marriage settlement cannot exceed more than 1/5 of the property if they are regime
other than absolute community of property regime.
 There is a prohibition to the amount of donation.
 Example. If I am getting married, I can donate before our marriage some of my properties, but not all.
The law says I can donate not more than 1.5 of my property to my wife.
 This prohibition will only apply if : REQUISITES:
o 1. PROHIBITION IS 1/5 OF THE PRESENT PROPERTY OF THE SPOUSE
o 2. DONATION IS CONTAINED IN THE MARRIAGE SETTLEMENT.
o 3. PARTIES AGREED ON PROPERTY REGIME OTHER THAN THE ABSOLUTE COMMUNITY OR
EITHER:
 A. CONJUGAL PARTNERSHIP OF GAINS
 B. COMPLETE SEPARATION OF PROPERTIES
- According to the SC in 1 case, this will not apply if the donation is done in a deed of donation not in the
marriage settlement. The limitation would only apply if the donation is contained in the marriage settlement. IOW
there is a marriage settlement and incorporated in it is the donation.
o What is the reason of the limitation of the 1/5 donation?
 The reason why you cannot donate more than 1/5 of your present property to your future spouse if
the donation is contained in the marriage settlement is because a marriage settlement is a product of
negotiation. And if you negotiate, there is a danger of undue influence, or intimidation. The MS is a
contract and in the contract, you discuss. So to prevent undue influence or coercion, one spouse is
prohibited from donating more then 1/5 of his present property in the marriage settlement.
 LIMITATION NOT APPLICABLE:
 Page | 44

 1. DONATION IS IN SEPARATE DOCUMENT

o This prohibition will not apply if the donation is not found in a marriage settlement but in a
separate document such as a deed of donation.
 2. PROPERTY REGIME IS ABSOLUTE COMMUNITY
o Furthermore, this will not apply if the future husband and wife have agreed n their marriage
settlement that they will be governed by the absolute community.
o REASON:
 Because when there is absolute community, everything you owned before the
marriage will become common property. So if governed by AC, you can donate all, 100%. But
if you are governed by the conjugal partnership or complete separation, the limitation comes
in.
- And the most important thing is that the property regime agreed upon in the marriage settlement must be a
property regime other than the absolute community. IOW what we have agrees is the conjugal partnership or the
complete separation of property regime.
ART 86 – WHEN DONATIONS MAY BE REVOKED
Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage
settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on
donations in general. (132a)
- What happens to your DPN, can it be revoked?
o Enumerated in ART 86 – GROUNDS FOR REVOCATION:
 1. marriage not celebrated or judicially declared void ab initio.
 2. marriage without the consent of the parents or guardian. as required by law;
 3. marriage is annulled, and the donee acted in bad faith
 4. legal separation, the donee being the guilty spouse
 5. resolutory condition and the condition is complied with;
 6. donee has committed an act of ingratitude
- Take note, Article 43, ISSUE ON THE INCONSISTENCY BETWEEN ART 43 PAR 3 AND
o Art 43 refers to the effect is if the absentee spouse reappears. The husband for example is presumed
presumptively dead. And the wife contracted a second marriage. Then the husband reappears. The second
marriage will be dissolved.
 The law favors the first marriage.
 What is the effect of the reappearance of the absent spouse on marriage of the wife with second
husband?
 Children will be considered legitime children, share of the net profit will be forfeited.
 Par 3 of art 43 says that if the innocent spouse had donated properties to the guilty spouse the
donation is revoked by operation of law. Art 50 provides that the effects enumerated in art 43 shall also
apply to marriages annulled in art 45, voidable marriages or to void marriage under art 40 – bigamous
marriage. That is found in Article 50.
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 Now, if you look at Art 86 it says that if the marriage is annulled and the donation is made in
bad faith, a donation by reason of marriage MAY be revoked by the donor in the following casesxxx
o MAY BE REVOKED, meaning that is optional, not mandatory.
 But if you compare that to art 43, par 3, it says that the donation is by operation of law.
 Is there no conflict here?
 There is a conflict as regards annulment of marriage under art 45 on voidable marriages
and void marriage under art 40 – bigamous marriage.
o Supposed the donor is the innocent spouse and the donee is the guilty spouse, is the
donation automatically revoked by operation of law as stated in art 43 par 3? Or is the revocation
a matter of right under art 86? Which one will prevail?
o My answer is that ART 86 WILL PREVAIL because of the basic principle of statutory
construction: if there are two conflicting provisions in the same law, the latest provision shall
prevail. Art 86 is latest. So it will prevail.
 IOW the revocation of the donation is not by operation of law. It may be revoked by
the donor at his option.
ART 87 – DONATION BETWEEN HUSBAND AND WIFE DURING MARRIAGE
Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the
marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any
family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid
marriage. (133a) 

- Another one of a DPN is one that the husband made to the wife before the marriage.
- DONATION DURING MARRIAGE IS PROHIBITED
o Donation between husband and wife during marriage is strictly prohibited. Husband and wife cannot
donate to each other.
 Reason?
 (1) To prevent the stronger spouse from influencing the weaker spouse.
 (2) to prevent the circumvention of the prohibition of the law regarding the change of
property regime during the marriage.
o EXCEPTION – MODERATE GIFTS ON OCCASION OF FAMILY REJOICING
 This prohibition is subject to the exception that if the donation is a moderate gift given on occasion of
family rejoicing, then that is allowed.
 What is moderate depends on the financial standing of the person.
 If you are Henry Sy, you can donate a brand new BMW car to your wife every birthday.
- This prohibition cannot donate to each other during the marriage shall also extend to those who are living
together without the benefit of marriage.
o In the old law, there was already that provision, husband and wife cannot donate to each other.
o Case: Matabuena vs Servantes
 SC said that is should also cover because the evil sought to be avoided by the law which is to prevent
the weaker spouse from being influenced or coerced by the stronger spouse is also present in a live in
relationship, in fact there is more reason to prohibit them.
 SC said that live-in relationship is covered by the prohibition. So a common law husband and
wife cannot also donate to each other properties during that co-habitation.
o Case: Ag;lapay vs Palang
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 SC said that even if the property was acquired during the cohabitation by virtue of the deed of sale, if
it is proven that the money came from the man and not from the woman, then it will be treated as a
donation. And that is covered by the prohibition.
 Because what happened here is that a DOM abandoned his wife and lived with another 19 year old
woman. He gave her house and lot and placed it in the name of the woman. When the man died, the
property questioned by the heirs, and they were able to prove that the property was acquired during
their cohabitation. And they proved that at the time, she had no job and no income. Also the seller
testified that the DOM gave the money.
 The kabit said that the property was not covered by the provision because it was not a
donation. It was not given by the DOM to the kabit. It was bought from somebody else.
 SC said that even if the document evidencing the conveyance is a deed of absolute sale, it is obvious
that the money came from the man and it is tantamount to a donation to the kabit, which is prohibited in
the light of Matabuena vs Servantes.
- WHO MAY QUESTION THE DONATION
o Who can question the void donation?
 SC said that only the persons who are prejudiced by the donation can question it.
 These are the compulsory heirs of the donor, like the children and the wife.
o Because if the donation is void, then it will increase theestate to be divided by compulsory
heirs.
o Case: Harding vs Commercial Union Insurance
 No person not prejudiced is allowed to question the donation.
 The husband gave a brand new car to his wife as a birthday gift. The wife had it insured with
Commercial Union Assurance COmpmany. When the wife claimed for the insurance because of an
accident, Commercial Union will not pay because the allege that the car was a void donation, because it
was donated by the husband to the wife and therefore she has no insurable interest.
 So it was now the insurance company who questioned the validity of the donation since under the
law donation between husband and wife is void.
 SC that the Insurance company does not have the personality to question the validity of the donation.
Only the persons prejudiced by the donation may question the donation, which are the heirs.
 Besides, the dealing of the car by the husband to the wife is not necessarily covered in the
prohibition because it might be covered under moderate gifts given by the husband on occasion of
family rejoicing. For all we know, maybe he is a multi-millionaire.
ABSOLUTE COMMUNITY OF PROPERTY
- This simply means that the property of the husband and wife will become common once they get married.
o All the properties by the husband and the wife, before and after marriage will be part of absolute
community.
o If conjugal partnership, it is in the middle, some are common, some are exclusive.
GENERAL PROVISIONS
ART 88 – WHEN COMMENCE
Art. 88. The absolute community of property between spouses shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at
any other time shall be void. (145a)
- GR in the AC of property regime is that: The absolute community of property regime shall commence at the
precise moment of the celebration of marriage.
o When will it commence?
 Moment of the celebration of the marriage.
o Precise moment when is that?
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 From the moment you manifest to the solemnizing officer that you take your partner as your spouse
– ‘I do’ – this is the beginning of AC to govern both of you.
o We all know that when there is no property regime, absolute community will govern.
ART 89 – WAIVER OF RIGHTS, SHARES AND EFFECTS
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. (146a)
- This is one of the features of absolute community.
- GR: not allowed to waive your rights, interest, shares or effect in the absolute community during the
marriage.
o EXPT:
 1. When there is judicial separation of property during the marriage.
 2. after death of the spouse who waives
o It means that if we enter into marriage, we co-own the properties. During the marriage, you cannot
say that you waive your right to shares or interest in favor to another, be your wife or any other person.
 You cannot say that you waive your ½ share of the AC to your wife, to your parents or to another
person.
 REASON
o a. your share to the community property is INCHOATE
 It is not yet determinable
o b. donation to the other spouse is not allowed
o You can however waive your share in the absolute community
 but only to take effect after death, like in your last will and testament.
 Anyway, when you die, there is no more marriage, so the prohibition will not apply.
- The only instance where the right may be waived during the marriage is when it is made through judicial
separation of property that occurs during the marriage.
o This allowed under 135 – with valid grounds and 136 – through agreement, of the FC.
 Once there is judicial separation of property, once it is approved by the court, then there is no more
absolute community to speak of nor conjugal partnership of gains. The shares will now be determined.
 Once the share is determined, the spouse may now say that he waived his share in favor of his wife,
children or any other person.
 PVDD that the legitime of the compulsory heirs will not be impaired.
- REQUISITES FOR A VALID WAIVER
o 1. in public document
o 2. recorded in accordance of art 77
 a. registered in office of local civil registrar
 b. registered in the registry of properties
ART 90 – PROVISION OF CO-OWNERSHIP APPLIES SUPPLEMENTARILY
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) 
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- The provision on co-ownership shall govern the spouses in the absolute community of property regime
WHAT CONSTITUTES COMMUNITY PROPERTY
ART 91 – PROPERTY OWNED AT THE TIME OF MARRIAGE
Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall
consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired
thereafter. (197a)
ART 92 – EXCLUSIVE PROPERTIES
Art. 92. The following shall be excluded from the community property:
(1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the
income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part
of the community property;
(2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community
property;
(3) Property acquired before the marriage by either spouse who has legitimate descendants by a former
marriage, and the fruits as well as the income, if any, of such property. (201a)
ART 93 – PRESUMPTION OF COMMUNITY PROPERTY
Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that
it is one of those excluded therefrom.
- PROPERTIES BELONGING TO THE ABSOLUE COMMUNITY
- GR: Everything you owned before the marriage AND Everything you acquire during the marriage. BEFORE
and AFTER.
o EXPT:
 1. Property acquired during marriage by gratuitous title.
 What is gratuitous title?
o When you acquire the property without paying for it. So you acquired it either by:
 a. by inheritance
 b. by donation
 If acquired by deed of sale or deed of donation, that is onerous title.
 2. Property for personal and exclusive use
 EXPT: jewelry.
o Jewelries are for personal use. But by express provision of the law, jewelries form part of the
AC because of the value.
o But ALL OTHER properties for the personal use of the spouse are excluded in the AC.
 Ex: toothbrush of the wife – not included.
 3. Property acquired before marriage by either spouse with legitimate descendants from the prior
marriage as well as the income and fruits thereof.
 Ex: The husband has children from the first wife. All those properties that were acquire by
the husband in the 1st marriage will not be included in the AC of the husband in the 2 nd marriage.
o What about if the wife inherited properties from her parents 1 day before the marriage, what happen
to that property?
 It becomes absolute. Because it was acquired before the marriage.
 And the law did not distinguish. Everything that you own at the time of the marriage becomes
absolute community once the marriage takes place. Irregardless of how you acquired the property.
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 The only exception provided by law are properties acquired by gratuitous title during the marriage.
NOT BEFORE the marriage.
 Note: So it is better to marry when your parents are alive.
 That is the difference between AC and conjugal. Because in conjugal partnership, those that you own
at the time of the marriage would remain as your exclusive property. Only those that are acquired during
the marriage are common or are conjugal.
 If your parents donated to you during the marriage, that is not included in the AC.
CHARGES AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY
ART 94 – LIABILITIES OF ABSOLUTE COMMUNITY
Art. 94. The absolute community of property shall be liable for:
(1) The support of the spouses, their common children, and legitimate children of either spouse; however, the
support of illegitimate children shall be governed by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the
benefit of the community, or by both spouses, or by one spouse with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the
family may have been benefited;
(4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property;
(5) All taxes and expenses for mere preservation made during marriage upon the separate property of either
spouse used by the family;
(6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other
activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of their common legitimate children for
the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-
improvement;
(9) Ante-nuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support
of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-
delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which
shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the
community; and
(10) Expenses of litigation between the spouses unless the suit is found to be groundless.
If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph
(9), the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a, 162a,
163a, 202a-205a) 
ART 95 – LOSSES IN GAMES OF CHANCE
Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other
kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged
to the community but any winnings therefrom shall form part of the community property. (164a) 
ART 94 – LIABILITIES OF ABSOLUTE COMMUNITY
- What are the obligations of the spouses that are chargeable to the absolute community?
o 1. support of spouses, common children, and legitimate children of either spouse.
o 2. debts and obligations contracted during the marriage by the designated administrator
o 3. debts and obligations contracted without the consent of the other spouse benefited the family.
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o 4. taxes, liens, charges and expenses, including major or minor repairs, upon the community
property.
o 5. taxes and expenses for mere preservation made DURING THE MARRIAGE upon the exclusive
property of either spouse used by the family.
 This contemplates of a situation where the spouse owns a property as his exclusive property but
used by the family.
 Ex: During the marriage, the parents donated a house and lot to the girl. This is an exclusive property
of the girl but used by the family.
 The AC must pay the taxes.
 For repairs, law says, the AC will only answer ONLY FOR MERE PRESERVATION, or minor
repairs.
o If the house is burned that it needs for reconstruction, not just a repair, this is chargeable to
exclusive property.
o If the AC will have to shoulder the expenses of rebuilding the house, that is another story. We
will apply another provision there, it depends on the value of the house compared to the value of
the land.
o 6. Expenses to enable either spouse to commence or complete a professional or vocational course, or
other activity for self-improvement
o 7. Antenuptial debts
 AD are debts incurred by the husband or the wife before the marriage.
 In so far as they have redounded to the benefit of the family, then the AC will answer for this.
 Ex: the husband bought appliances before the marriage on installment basis. So these what
they used during their wedding though placed under the name of the husband.
o The AC should pay for it because it redounded to the benefit of the family. It is just fair that
the Ac will pay for it.
 If AD did not redound to the benefit of the family, the AC is not liable.
 HOWEVER, if spouse concerned has no sufficient exclusive property to pay for the obligation,
and the absolute community is solvent, the absolute community will pay for it.
o PVDD: it will be considered as advances by the spouse to the absolute community.
 8. In fact, there are 3 types of obligations which normally should be charged to the spouse
concerned. But the AC may be asked to pay for it and considered as advances:
 (1) antenuptial debts which did not redound to the benefit of the family.
 (2) support of illegitimate children of either spouse
 (3) liabilities incurred by either spouse by reason of a crime or a quasi-delict
 Ex: the husband spends for the education of the illegitimate child. That should be
paid by the husband alone. It will be unfair to the wife if the AC will pay.
o If the spouse’s Exclusive property is insufficient, he can use the AC property,
but payment is considered as advances to be deducted from the share of the
debtor-spouse upon liquidation of the community
o So if the husband uses his income to pay for the tutition, income is AC, that
will be considered as an advance to his share.
o 9. donation or promise to common legitimate children for sive purpose of commencing or completing
a professional or vocational course or other activity for self-improvement
o 10. expenses of litigation between the spouses
 Unless the suit is found to be groundless.
SECTION 4: OWNERSHIP, ADMINISTRATIVE, ENJOYMENT AND DISPOSITION OF THE COMMUNITY PROPERTY
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ART 96 – JOINT ADMINISTRATION AND ENJOYMENT

Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In
case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper
remedy, which must be availed of within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the
common properties, the other spouse may assume sole powers of administration. These powers do not include
disposition or encumbrance without authority of the court or the written consent of the other spouse. In the
absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors. (206a)
ART 97 – DISPOSAL BY WILL OF INTEREST
Art. 97. Either spouse may dispose by will of his or her interest in the community property.  (n)
ART 98 – PROHIBITION OF DONATION; EXCEPTION
Art. 98. Neither spouse may donate any community property without the consent of the other. However, either
spouse may, without the consent of the other, make moderate donations from the community property for
charity or on occasions of family rejoicing or family distress. (n) 
- JOINT ADMINISTRATION AND ENJOYMENT
o If the husband and the wife are governed by absolute community regime, they are co-owners of the
property. And therefore, they shall jointly manage the absolute community properties.
 They are co-administrators or co-managers. Husband and wife are joint administrators of the AC
property regime.
 That is why no disposition of the property is allowed without the consent of the other spouse.
IN CASE OF DIAGREEMENT
- In the management of the absolute community, it is possible that disagreement will occur.
o So the law provides that in case there is such agreement, the decision of the husband will prevail.
o But the wife has a recourse. Within 5 years, she may question the decision of the husband in court.
- If one of the spouses is unable to jointly administer or manage the property, the other spouse shall become
the sole administrator of the property.
o As sole administrator, it must not include the power to sell the property because selling is no longer
an act of administration, it is already an act of ownership. So it requires the consent of the other spouse.
o Case: Uy vs CA, Nov 29, 2000
 In case one spouse is incapacitated or OW unable to jointly administer the common properties, the
other spouse may assume sole power of administration.\
 But what is the meaning of unable to participate in administration? Does it mean that the other
spouse is in the comatose stage or in ICU?
 SC said that UNABLE TO JOINTLY ADMINISTER means that:
 a. the other spouse is absent
 b. he abandoned the other spouse OR
 c. there is a de facto separation of the husband and wife
o Ex: the wife left the husband and her whereabouts are not known. The present spouse may
act as sole administrator.
 SC said that it does not involve a situation where the spouse is in the ICU or in a comatose
stage. Because if that were the case, the proper procedure was for the spouse to file a petition for
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judicial guardianship, place the dying spouse under guardianship pursuant to rule 93 of the rules of
court.
- When only 1 spouse is the sole administrator, to sell any of the AC property, he must get the consent of
the other spouse.
o How can he get the consent of the other spouse since he/she already abandoned him?
 The administrator spouse must file a petition to the court for the approval of the sale.
 The administrator will explain to the court that the other spouse is not around and unable to
locate her and needs to sell for support of the children.
 Without the approval of the court, the sale is void.
- SALE OF ABSOLUTE COMMUNITY PROPERTY WITHOUT THE CONSENT OF THE OTHER SPOUSE – VOID
o EFFECT: VOID
o So the rule is that, sale or alienation of an absolute community property by one spouse without the
consent of the other spouse is void.
 The is different from the old law where the sale is merely voidable, where the non consenting spouse
is given 10 years to question it.
 Under art 173 of the NCC, a sale of the common property without the consent of the other spouse is
merely voidable, not void. The non consenting spouse has a period of 10 years to annul the sale OW the
action prescribes.
o Take note because the CUT OFF DATE is AUG 3, 1988.
 Case: Bideranda vs Bideranda
 A. SALE BEFORE EFFECTIVITY OF FC
o SC clarified that if the sale was done by the husband without the consent of the wife before
Aug 3 1988, the sale is not void but only voidable, where the wife has 10 years to question it.
 B. SALE AFTER EFFECTIVITY OF FC
o But if the sale was done after the effectivity of the FC, it is void ab initio. It cannot be
ratified. And it may be questioned anytime because an action to declare the contract void is
imprescriptible.
o EXCEPTION: BUYER IN GOOD FAITH
o Case: PNB vs CA
 Sc said that the action to annul the contract of sale executed by the husband without the consent of
the wife will not prescribe because the sale is void and imprescriptible.
 However, if the buyer is in good faith, the wife could no longer annul the sale. The principle of buyer
in good faith will still come in.
 The title was owned by the husband before the marriage. The title was in his name and it says there –
single. But when he got married, they were governed by the absolute community. The land, titled in the
name of the husband, became part of the absolute community. Later on the husband sold it without the
wife’s consent.
 Later on the wife questioned the sale saying that that is an AC property.
 The defense of the buyer was he did not know because when he looked at the title it says
“single.” But if the buyer knows that the seller is married, then he is not a buyer in good faith.
DISSOLUTION OF ABSOLUTE COMMUNITY REGIME
ART 99 – GROUNDS FOR TERMINATION
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
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(3) When the marriage is annulled or declared void; or

(4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a)
- ART 99 – GROUNDS FOR DISSOLUTION
o When is the absolute community considered dissolved?
 1. Death of either party
 2. decree of legal separation
 3. marriage is annulled or declared void
 4. judicial separation during marriage
 a. art 134 – under valid cause
 b. art 135 – by mutual agreement
ART 100 – DE FACTO SEPARATION
Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute community
except that:
(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the
right to be supported;
(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization
shall be obtained in a summary proceeding;
(3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be
given judicial authority to administer or encumber any specific separate property of the other spouse and use
the fruits or proceeds thereof to satisfy the latter's share. (178a)
- What about if there is no legal separation but only a de facto separation?
o Art 100 provides for its effects:
 1. The abandoning spouse is not entitled to support.
 2. if consent is required for transaction, present spouse may ask court for judicial authorization.
 Ex. If the present spouse needs to sell the absolute community property, he can ask for
judicial authorization.
 3. in the absence of sufficient community property, the separate property shall be solidarily liable for
the support of the family.
o So if biyaan ka sa imo asawa, you can use the property sa imo asawa to help in the support
of the family.
 In fact, if both of you have incurred obligations and your absolute community is not
sufficient to pay for it, your exclusive property will be solidarily liable to the debtors.
o Solidary – the creditor can get the balance either from the property of the husband alone or
from the wife alone.
ART 101 – ABANDONMENT AND FAILURE TO COMPLY WITH OBLIGATION
Art. 101. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for
authority to be the sole administrator of the absolute community, subject to such precautionary conditions as
the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property
relations.
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A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without
intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed
within the same period to give any information as to his or her whereabouts shall be prima facie presumed to
have no intention of returning to the conjugal dwelling. (178a) 
- In case of abandonment and failure to comply with the obligations, what are the rights of the aggrieved
spouse?
o 1. ask for receivership of the property of the abandoning spouse
o 2. ask for the judicial separation of property
o 3. ask for the appointment as sole administrator of absolute community
o 4. ask for the appointment as sole administrator of exclusive property of the abandoning spouse
LIQUIDATION OF THE ABSOLUTE COMMUNITY ASSETS AND LIABILITIES
ART 102 – PROCEDURE
Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the properties of the absolute community and the
exclusive properties of each spouse.
(2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of
said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in
accordance with the provisions of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be
divided equally between husband and wife, unless a different proportion or division was agreed upon in the
marriage settlements, or unless there has been a voluntary waiver of such share provided in this Code. For
purpose of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2),
the said profits shall be the increase in value between the market value of the community property at the time of
the celebration of the marriage and the market value at the time of its dissolution.
(5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with
Article 51.
(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the
lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court
has decided otherwise. In case there in no such majority, the court shall decide, taking into consideration the
best interests of said children. (n)
- When the absolute community is dissolved, because of the death of the spouse or because the marriage is
declared void or annulled, what will take place next is the liquidation of the assets and liabilities.
o When you dissolve the AC, you have to liquidate and settle the obligations.
- What are the procedures in the liquidation?
o 1. Conduct an inventory of all the properties.
 And determine the exclusive properties of each spouse.
 Prepare 3 list:
 Common Property
 Exclusive property of the husband
 Exclusive property of the wife.
o 2. Determine what are the obligations, who are the creditors and how much. Then pay obligation of
absolute community funds or property.
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 What ever remains is considered to be the net assets of the AC which shall be divided by the
husband and the wife unless otherwise agreed upon.
 Meaning, it is possible that you signed a prenuptial agreement and there you have agreed
that if the marriage is dissolved, the sharing will be 60-40.
 In the absence of that agreement, 50-50.
o 3. Before you give out, distribute presumptive legitime to children
 In accordance with art 50.
o 4. Conjugal dwelling is adjudicated to spouse with custody of most of the children
ART 103 – TERMINATION BY DEATH
Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property
either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of
the six months period, no liquidation is made, any disposition or encumbrance involving the community
property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage without compliance with the foregoing
requirements, a mandatory regime of complete separation of property shall govern the property relations of the
subsequent marriage.  (n)
ART 104 –MARRIAGES ARE CONTRACTED SIMULTANEOUSLY
Art. 104. Whenever the liquidation of the community properties of two or more marriages contracted by the
same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and
income of each community shall be determined upon such proof as may be considered according to the rules of
evidence. In case of doubt as to which community the existing properties belong, the same shall be divided
between the different communities in proportion to the capital and duration of each. (189a) 
- In case the termination of the marriage is caused by the death of one spouse, the liquidation shall be
done in the settlement of the estate of the spouse.
o There is no need for you to file a petition for the liquidation of the absolute community.
o The law provides that the surviving spouse must have to settle the estate of the deceased spouse
within one year from his death.
o And in the settlement of the estate, you include the liquidation of the absolute community.
 REASON
 Because you cannot determine the estate of the deceased spouse if you cannot determine his
share in the absolute community.
- What is the effect if the surviving spouse did not settle the estate of the deceased spouse, hence not liquidate
the absolute community regime?
o The surviving spouse, if he or she remarries, will automatically be governed by the regime of
complete separation of property.
 That is mandatory.
 Ex: If the wife, after her husband dies, remarries again. And she and her new husband made
a marriage settlement saying that ehy will be governed by the conjugal partnership.
o Will they be governed by the marriage settlement?
 No.
 The marriage settlement is not valid because of the mandatory requirement of the
law.
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 If you do not settle the estate of your dead husband within 1 year, your subsequent
marriage will be governed by regime of complete separation of property.

July 23, 2011

CONJUGAL PARTNERSHIP OF GAINS

- This is the default regime in the NCC, before the FC.

ART 105 – WHEN APPLY CONJUGAL PARTNERHSIP OF GAINS
Art. 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership
gains shall govern their property relations during marriage, the provisions in this Chapter shall be of
supplementary application.
The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between
spouses before the effectivity of this
Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as
provided in Article 256. (n)

- WHEN THERE IS USE OF CONJUGAL PARTNERHSIP OF GAINS AS PROPERTY REGIME

o 1. agreed upon by the husband and the wife in the marriage settlement
 If there is no marriage settlement
o 2. married before the effectivity of FC, and there was no marriage settlement
 Because under the CC those who where married before the FV they are governed by the CC, and the
CC says that if there is no marriage settlement the CPG will govern
 Those married before Aug 3, 1988 and they have no marriage settlement then this is the property
property regime that will govern
- CONTINUE TO GOVERN
o Accdg to the NCC, Those who were married before the family code took effect and were governed by
the CPG, they will contimue to be governed by the Chapter of CPG in the FC
ART 106 – PROPERTIES IN CONJUGAL PARTNERSHIP
Art. 106. Under the regime of conjugal partnership of gains, the husband and
wife place in a common fund the proceeds, products, fruits and income from
their separate properties and those acquired by either or both spouses
through their efforts or by chance, and, upon dissolution of the marriage or
of the partnership, the net gains or benefits obtained by either or both
spouses shall be divided equally between them, unless otherwise agreed in
the marriage settlements. (142a)
WHAT COMPRISES CONJUGAL PARTNERSHIP
GR: only the properties acquired during the marriage
through the effort and industry of either or both spouse as
well as the income or fruits of the exclusive properties that
accrues during the marriage, will comprise the conjugal
partnership.
- KINDS OF CONJUGAL PARTNERSHIP OF PROPETIES IN THE FC
- In the FC, there are two kinds of conjugal partnership properties.
- What are the properties belonging to the conjugal partnership?
o 1. properties acquired during the marriage by either spouse through labor and industry
 E.g. salary of the husband or wife that accrues during the marriage
 If husband is into business, then the income of the husband
o 2. fruits of the exclusive properties of either spouse that accrued during the marriage
 Example.
 If the wife owns 10 door apartment, each for 10k per unit per month, for 100k per month for
all. Then she got married.
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o The 10 door apartment will remain exclusive property of the wife,

o but the rental accruing from these apartments after the marriage becomes conjugal.
ART 107 – WHEN COMMENCE AND NO WAIVER OF RIGHTS
Art. 107. The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains. (n)

Art. 88. The absolute community of property between spouses shall commence at the precise moment that the
marriage is celebrated. Any
stipulation, express or implied, for the commencement of the community regime at any other time shall be void.
(145a)

Art. 89. No waiver of rights, shares and effects of the absolute community of
property during the marriage can be made except in case of judicial
separation of property.
When the waiver takes place upon a judicial separation of property, or after
the marriage has been dissolved or annulled, the same shall appear in a
public instrument and shall be recorded as provided in Article 77. The
creditors of the spouse who made such waiver may petition the court to
rescind the waiver to the extent of the amount sufficient to cover the
amount of their credits. (146a)

- WHEN COMMENCE – CELEBRATION OF MARRIAGE

o Just like the absolute community, the conjugal partnership of gains shall commence only upon the
precise moment of celebration of marriage; that is if there is marriage settlement. Not from the time they
executed the marriage settlement.
- GR: NO WAIVER OF RIGHTS
o Also, just like the absolute community, neither spouse can waive their rights, interest, shares and
effects in the conjugal partnership,
o except in case of judicial separation of properties during the marriage which must be approved by
the court.

- EXCLUSIVE PROPERTIES
- 1. properties brought into the marriage as his own
o -refers to the properties owned by the spouse before the marriage
- 2. properties acquired during the marriage by gratuitous title
o How do you acquire properties gratuitously?
 by donation or by inheritance during the marriage
- 3. acquired during the marriage by right of redemption, barter or exchange with property belonging
to only one of the spouse
o -this presupposes that the property was owned by the husband before the marriage. But that
property was already mortgaged or sold under pacto de retro before the marriage. And it was redeemed or
brought back during the marriage.
o -example. Before the marriage, the wife owned a property which she mortgaged to the bank. During
the marriage the loan obligation becomes due and the wife will have to pay the loan inorder to release the
mortgage. If the property was already foreclosed by the bank and she wasn’t to exercise her right of
redemption, the property that was redeemed by the wife will remain as exclusive property even if the money
she used is a conjugal money.
 The effect of using the conjugal money is that the wife is indebted to the conjugal partnership. Which
she must have to pay back later on upon liquidation of the CPG.
- 4. property purchased with exclusive property
o -this is a peculiar provision because this is only found in the conjugal partnership, not found in the
absolute community.
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o In the CPG, If the wife buys a property using her own money, that property is exclusive not conjugal.
Because she used her own money
o But that rule will not apply in ACP because in the ACP it is specified what the properties are included
and what are not included. And this particular paragraph is not included in the ACP.
 Meaning, in the absolute community, for example, if is someone donates to you money during
marriage, the money is exclusive to you. But when you use the money to buy a brand new car, the car
ceased to be exclusive but community property because it was acquired through onerous title – sale.
Irregardles where you got the money.
o But in conjugal partnership, there is a specific provision that says that if the property is acquired
during the marriage onerously, but the money used is an exclusive property, that would remain exclusive
property.
ART 110 - OWNERSHIP, MANAGEMENT, ENJOYMENT AND ADMINISTRATION OF EXCLUSIVE PROPERTIES
Art. 110. The spouses retain the ownership, possession, administration and enjoyment of their exclusive
properties.
Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other
by means of a public instrument, which shall be recorded in the registry of property of the place the property is
located. (137a, 168a, 169a)
- As regards the ownership, enjoyment and administration of exclusive property, when the property is an
exclusive property of the husband or wife, then he alone owns the property. The ownership, management,
enjoyment of these exclusive properties shall belong to the spouse concerned.
ART 111 - EXCLUSIVE PROPERTY IN LITIGATION
Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property,
without the consent of the other spouse, and appear alone in court to litigate with regard to the same. (n)
- That is why if the property is involved in a litigation, only the spouse who owns the property will have to
litigate. The other spouse need not be impleaded.
- GR: NEED NOT IMPLEAD OTHER SPOUSE – RECOVERY OF POSSESSION
o Illustration:
 The wife owns apartment units before the marriage. After marriage, they remain her exclusive
property. The wife filed an ejectment case against a tenant to recover the property. Is there a need for the
wife to implead her husband as a plaintiff?
 NO.
 She need not implead him if she wants to recover an exclusive property of hers.
- EXCEPTION – RENTALS IN ARREARS/FRUITS OF EXCLUSIVE PROPERTY
o If aside from recovering her property, she also demanded for the payment of rentals in arrears which
are fruits of exclusive properties. If those rentals accrued when she is already married.
o Therefore, she must implead her husband.
ART 113 - PROPERTY DONATED DURING MARRIAGE
Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall
pertain to the donee-spouses as his or her own exclusive property, and in the absence of designation, share and share
alike, without prejudice to the right of accretion when proper. (150a)
- Property donated by will during the marriage is an exclusive property.
- But this is without prejudice to the right of accretion.
- WITHOUT PREJUDICE TO RIGHT OF ACCRETION
o Meaning, during the marriage, a relative donated a land to the husband and wife. 2 hectares. What is
the status of the donated land? Conjugal or exclusive?
o The fact that it was donated to the husband and the wife does not make it conjugal because it was
acquired by them by gratuitous title and therefore, exclusive.
 In what proportion?
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 It depends upon the donor. If the donor specified the extent of the donation to either party,
then it should be followed. OW if the deed of donation is silent, it should be divided equally.
- What do you mean RIGHT OF ACCRETION?
o If the husband refused to accept the donation, the share of the husband who refused to accept will go
to the wife. And the whole donated property will be her exclusive property by right of accretion.

ART 115 - RETIREMENT BENEFITS, PENSIONS, ANNUITIES, GRATUITIES, USUFRUCTS AND SIMILAR BENEFITS
Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by
the rules on gratuitous or onerous acquisitions as may be proper in each case. (n)
- STATUS DEPENDS ON MODE OF ACQUISITION
o Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits acquired during
the marriage, are they conjugal or exclusive?
 It depends on how these benefits were acquired, and the nature of the benefits.
 If these were acquired gratuitously, then these are exclusive.
 But if these were acquired onerously, then it is part of the conjugal partnership.
- HOW TO KNOW IF ONEROUS OR GRATUITOUS
o How do you know that those received is onerous or gratuitous?
o If the husband contributed a certain amount for his retirement benefits during the time it is working,
that is onerous, therefore conjugal.
o But if the money was given by the company gratuitously to the husband, it is gratuitous, therefore
exclusive.
ART 116 – 117 – CONJUGAL PROPERTIES
- Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made,
contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved.
(160a)
- Art. 117. The following are conjugal partnership properties:
- (1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the
acquisition be for the partnership, or for only one of the spouses;
- (2) Those obtained from the labor, industry, work or profession of either or both of the spouses;
- (3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as
well as the net fruits from the exclusive
- property of each spouse;
- (4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the
property where the treasure is found;
- (5) Those acquired through occupation such as fishing or hunting;
- (6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the
marriage by either spouse; and
- (7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom
shall be borne exclusively by the loserspouse. (153a, 154a, 155, 159)
- CONJUGAL PROPERTIES
o 1. acquired by onerous title during marriage
o 2. obtained from the labor, industry, work or profession
o 3. fruits, natural, industrial, or civil, due or received during the marriage
o 4. share in the hidden treasure
o 5. acquired through occupation (ex. fishing or hunting)
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o 6. livestock existing upon the dissolution of the partnership in excess of the number of each kind
brought to the marriage
o 7. acquired by chance(ex. winnings from gambling or betting)
 losses shall be borne exclusively by the loser-spouse
 Id pilde exclusive, if daug ka conjugal.
 That is actually a penalty.

ART 118 – RULE ON OWNERSHIP BOUGHT ON INSTALLMENTS

Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly
from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the
conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by
the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the
partnership. (n)

ART 119 – RULE ON CREDIT PAYABE ON INSTALLMENT

Art. 119. Whenever an amount or credit payable within a period of time belongs to one of the spouses, the sums
which may be collected during the marriage in partial payments or by installments on the principal shall be the
exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong
to the conjugal partnership. (156a, 157a)

ART 120 – RULE ON IMPROVEMENTS ON EXCLUSIVE PROPERTY

Art. 120. The ownership of improvements, whether for utility or adornment, made on the separate property of
the spouses at the expense of the
partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or
to the original owner-spouse, subject to the following rules:
When the cost of the improvement made by the conjugal partnership and any resulting increase in value are
more than the value of the property at the time of the improvement, the entire property of one of the spouses
shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-
spouse at the time of the improvement; otherwise, said property shall be retained in ownership by the
ownerspouse, likewise subject to reimbursement of the cost of the improvement.
In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made
at the time of the liquidation of the conjugal partnership. (158a)

- RULES TO DETERMINE IF PROPERTY ACQUIRED DURING MARRIAGE IS CONJUGAL OR NOT

o GR: Property acquired during marriage is presumed conjugal.
o The following are the rules to determine if it is conjugal if it is acquired during marriage:
 1. property bought on installments, paid partly from exclusive and partly from conjugal funds
 How would you know if it is conjugal or not?
 Example. Before the marriage, the husband bought property by installments. Before full
payment, he got married. After marriage, he used conjugal money (his salary). Is the property
exclusive or conjugal?
 The answer is found in Art 117. It depends on when the property was transferred.
o If the ownership was transferred at the time the husband started paying the installments
before the marriage, the property is exclusive.
o But if the ownership was transferred only upon the payment of the last installment, and at
the time the husband was already married, then it was conjugal.
 Some contracts would state, ownership will transfer only upon payment of the last
installment. The time you paid the last installment, ownership is transferred. Then the
property is conjugal.
 If the property is transferred immediately, then it is exclusive
o 2. credit payable on installment
 -Exclusive property, as to principal. Conjugal property as to interest.
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 Example. Before the marriage, you lent money to a friend of yours payable on installments.
o Are those payments paid during marriage conjugal?
 NO.
 Because they are your money even before the marriage. However, the interest that accrued
during the marriage is conjugal.
o 3. improvements introduced on the exclusive property
 the more valuable property at the time of the construction of the improvement prevails, it is treated
as the principal
 Example. Before the marriage, the wife is an owner of a land. It is her exclusive property.
During the marriage, they decided to build a house using conjugal money. Who owns the house and
lot now?
o There is a rule in the old law that accessory follows the principal. In this case, the house is
the accessory. So the owner of the land should be following the land.
o But this is an exception. The improvement may either become conjugal or exclusive
depending on the value of the house and the value of the land.
 Ifthe land is more valuable than the house, then the house becomes an exclusive property
of the house.
 Q: indistinct A: it should be at the time of the construction of the house.
 If
the house is more expensive than the land, then the land will be absorbed by the owner of
the house. It is conjugal.
 -the ownership is transferred only upon the dissolution or liquidation of the
conjugal partnership, where the person who owns it reimburses the other
 -Example. If the house and lot becomes exclusive property of the wife because her
land is more valuable tan the house, then the wife will have to reimburse the conjugal
partnership for the value of the house.
 -Example. If the land becomes conjugal because the value of the house is more than
the land, then the wife will be reimbursed for the value of the land.
 -These will take place upon the dissolution of the conjugal partnership.
o 4. award of damages by the court
 What about those acquired during the marriage through award of damages by the court? Is that
conjugal?
 Case:Tan Ang vs Zulueta
o A wife filed a damage suit against American airline company for being discriminated upon.
The court granted her damages.
o SC said that it is conjugal because the basis the plane ticket that she bought and the money
used to buy the ticket is conjugal.
 -Case: Lilios vs Manila Railroad Comany
 SC said, the award for damages is not conjugal.
 A young married woman was injured in a vehicular accident which resulted to a scar in her
beautiful case.
 She was awarded for damages to the physical injuries she sustained.
 The damages awarded is not conjugal but exclusive property of the wife.

o PRESUMPTION OF CONJUGALITY
 Properties acquired during marriage is always presumed conjugal property.
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 That presumption will apply if you can prove first that the property was acquired during the
marriage.
 The fact that the property is placed in the name of one of the spouse is not sufficient to prove
conjugality.
o BURDEN OF PROOF
 Therefore, whoever claims that it is not conjugal has the burden of proof that the property is his
exclusive property.

CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP

ART 121 – LIABILITIES OF CONJUGAL PARTNERSHIP
Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the legitimate children of either spouse; however,
the support of illegitimate children shall be governed by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the
benefit of the conjugal partnership
of gains, or by both spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the
family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership
property;
(5) All taxes and expenses for mere preservation made during the marriage upon the separate property of
either spouse;
(6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for
self-improvement;
(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of their common legitimate children
for the exclusive purpose of commencing or
completing a professional or vocational course or other activity for selfimprovement; and
(9) Expenses of litigation between the spouses unless the suit is found to groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable
for the unpaid balance with their separate properties. (161a)
ART 122 – PERSONAL DEBTS
Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage
shall not be charged to the conjugal properties partnership except insofar as they redounded to the benefit of
the family.
Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.
However, the payment of personal debts contracted by either spouse before the marriage, that of fines and
indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be
enforced against the partnership assets after the responsibilities enumerated in the preceding Article have
been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but
at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the
purpose above-mentioned. (163a)
ART 123 – GAMES OF CHANCE AND BETTING
Art. 123. Whatever may be lost during the marriage in any game of chance or in betting, sweepstakes, or any
other kind of gambling whether permitted or prohibited by law, shall be borne by the loser and shall not be
charged to the conjugal partnership but any winnings therefrom shall form part of the conjugal partnership
property. (164a)

- CHARGES AND OBLIGATIONS UPON THE CONJUGAL PARTNERSHIP

o SAME AS IN ABSOLUTE COMMINITY
 This is the same as art 94. We have already discussed the last time what are those obligations that
are chargeable to the absolute community under art 94.
o -EXCEPTION: ART 122
 But there is only 1 difference, and that is art 122, in relation to art 121.
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o -OBLIGATIONS NOT CHARGEABLE AGAINST ABSOLTE COMMUNITY

 If you still recall, in the absolute community of property regime, there are three obligations that are
not normally chargeable in the absolute community. And these are:
 1. ante nuptial debts incurred by the spouse
 2. civil liability arising from the crime committed
 3. support of illegitimate child
- -EFFECT IF EXCLUSIVE PROPERTY IS NOT SUFFICIENT
- These will be chargeable to the exclusive. However, if you do not have sufficient money, the absolute
community will answer for these. But these should be treated as advances to the absolute community.
- -APPLICATION TO CONJUGAL PARTNERSHIP
o Is that also true for the conjugal partnership?
 Partly yes. Partly no.
o If you have no exclusive money, the conjugal partnership will answer for these liabilities, BUT only
when all other liabilities of the conjugal properties have already been paid.
o Therefore, we give preference to the first 8 liabilities. And only if the conjugal partnership has still
sufficient money to pay off these obligations, that it will pay for it.
o But again, the spouse will have to reimburse the conjugal partnership. So it will be deducted from
your share later.
o This will be treated as advances.
- DIFFERENCE:
o So the only difference between the absolute community and the conjugal partnership insofar as the
ante nuptial debts of either spouse which did not redound to the benefit of the family, support of the
illegitimate children, and civil liability from crimes, is that
 in absolute community, you do not have to pay for the liabilities first.
 But in the conjugal partnership, you have to pay for the obligations first.

- DEBTS INCURRED BY A SPOUSE DURING THE MARRIAGE – GENERALLY CHARGEABLE AGAINST EXCLUSIVE
PROPERTY
- Debts incurred by a spouse during the marriage can also be charged against the conjugal partnership only if
it redounded to the benefit of the family.
o Case: Ayala Investment Development Corp vs CA
 The husband was an executive of the big company. The company borrowed money from the bank. He
signed a continuing guaranty agreement that if the company gets bankrupt, the officers can be held liable.
 The bank attached the conjugal property of the spouses. The wife objected.
 Can the conjugal property be made to answer for the loan of the husband?
 The rule here is, YES, the conjugal partnership can be made to answer for the loan, only if it
redounded for the benefit of the family.
 But according to SC, the loan did not redound to the benefit of the family. This was the loan of the
company.
 Therefore, conjugal partnership is not liable for it.
o -Case:
 The wife’s civil liability arising from the crime of slander cannot be charged against the conjugal
partnership.
 However, if you do not have exclusive property of your own, the conjugal partnership may pay for it
but it will be considered as advances in the conjugal partnership.
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- -DEBTS INCURRED BY BOTH SPOUSES DURING THE MARRIAGE

o A. CHARGED TO CONUGAL PARTNERSHIP (PRIMARILY LIABILITY)
 Conjugal partnership is liable for all obligations contracted by the husband and the wife. Thus when
the said obligation is due, the conjugal partnership will be answerable for it and not the husband and the
wife individually as independent debtors.
 Such that the concept of joint or solidary liability as between the husband and the wife does not arise
if the conjugal partnership is capable of paying the obligation.
o B. SOLIDARY LIABILITY OF SPOUSES WHEN CONJUGAL PROPERTY IS NOT SUFFICIENT
 There is a rule that husband and wife are solidarily liable for the loan contracted for the family
during the marriage; this rule will only apply only if there is no more conjugal property.
 Ex. If during the marriage the spouses obtained a debt which they use for their business or to send
their children to school, obviously that is a conjugal indebtedness.
 If no sufficient conjugal money to pay for that, then the H and the W can be held solidarily
liable.

ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY

ART 124 – JOINT ADMINISTRATION AND ENJOYMENT
Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly.
In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for
proper remedy, which must be availed of within five years from the date of the contract implementing such
decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the
conjugal properties, the other spouse may assume sole powers of administration. These powers do not
include disposition or encumbrance without authority of the court or the written consent of the other spouse.
In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the
court before the offer is withdrawn by either or both offerors. (165a)

ART 125 – DONATION OF CONJUGAL PROPERTY

Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other.
However, either spouse may, without the consent of the other, make moderate donations from the conjugal
partnership property for charity or on occasions of family rejoicing or family distress. (174a)

- RULES FOR ADMINISTRATION, ENJOYMENT OF CONJUGAL PROPERTY

o As regards administration of the conjugal partnership, the rule on art 96 and 98 will also apply. They
are about the ownership, use and enjoyment of absolute property.
o In the case of conjugal partnership, what are the rules? (Art 96)
o 1. husband and wife are the joint administrators, managers and owners of the conjugal partnership
o 2. in case of disagreement, the decision of the husband will prevail
 -but the wife has a remedy: she can go to court and question the decision of the husband within 5
years
 -it is only the court who can reverse the decision of the husband
o 3. if one of the spouse is incapacitated to jointly manage, the other spouse will act as a sole
administrator
 “INCAPACITATED TO JOINTLY MANAGE”
 -Case: Uy vs CA
o It simply means that the other spouse is absent, he cannot be found or that they are
separated de facto.
o But it does not include when one spouse is in a comatose stage, or in ICU. You do not apply
automatic sole administration.
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o What the present spouse should do is to file a PETITION FOR GUARDINGSHIP under rule 94
of rules of court.
o 4. sale of conjugal property should be with consent and knowledge of both
 -if it is without knowledge and consent of the other spouse,
 the sale is void.
 Under the old law, it is only voidable
 -if it s with knowledge but without consent of the other spouse,
 the sale is voidable.
 -Case: Lilia Abel
o If the sale is with the knowledge but without the approval of the wife, thereby resulting to
disagreement, such sale is annulable at the instance of the wife within 5 years from the date of
contract, because the sale is voidable.
o So what we will apply therefore is the first paragraph of art 96 in the case of absolute
community, not the 2nd par.
 -what is prohibited by law is not only sale but also lease and encumbrance. They law says, “any
disposition”
 -Case: Milaga Roxas vs CA
o The husband leased a conjugal property without the knowledge and consent of the wife.
o The SC sided with the wife’s objection. The lease contract is not valid.
 -if the husband mortgaged the property without knowledge and consent of the wife, that is also void.
 Can it be ratified?
o No. because a void contract cannot be ratified.

o -Case: Antonio vs CA
 This illustrates to us the nature of the void transaction entered into by the husband. When the
husband sells a conjugal property without the knowledge and consent of a wife, the sale is void. In
this case, the h and the w were separated de facto.
 When she knew about it, she confronted the buyer. The buyer filed a criminal case against her for
trespass to dwelling and oral defamation. They settled amicably where the wife acknowledged that the
property is theirs.
 But later she filed a case to nullify the sale. The buyer says she is already estopped when she signed
the compromise agreement acknowledging the e buyer’s ownership to the property.
 SC said that the compromise agreement is not considered a ratification of the void sale because a void
sale cannot be ratified.
DISSOLUTION OF THE CONJUGAL PARTNERSHIP
ART 126 – GROUNDS FOR TERMINATION
Art. 126. The conjugal partnership terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage under
Articles 134 to 138 (175a)

ART 127 – EFFECTS OF THE SEPARATION ON THE CONJUGAL PARTNERSHIP REGIME

Art. 127. The separation in fact between husband and wife shall not affect the
regime of conjugal partnership, except that:
(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the
right to be supported;
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(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization
shall be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be
solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceeding,
be given judicial authority to administer or encumber any specific separate property of the other spouse and use
the fruits or proceeds thereof to satisfy the latter's share. (178a)

ART 128- ABANDONMENT OR FAILURE TO COMPLY WITH OBLIGATIONS

Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligation to the
family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for
authority to be the sole administrator of the conjugal partnership property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property
relations.
A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention
of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the
same period to give any information as to his or her whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling. (167a, 191a)

- GROUNDS FOR THE DISSOLUTION OF THE CPG

o We have the same provisions as that found in the absolute community.
o How is the conjugal partnership dissolved?
o There are also 4 grounds similar to the art 99 in absolute community:
 1. death
 2. legal separation
 3. annulment of marriage, declaration of nullity of marriage
 4. judicial separation of property
- EFFECT OF DE FACTO SEPARATION
o What is the effect of a separation in fact between the husband and the wife?
 De facto separation of the husband and the wife does not affect the existence of the conjugal
partnership; the same as absolute community.
- EFFECT ON SPOUSE WHO LEFT THE CONJUGAL DWELLING
o The effect of that however is that the spouse who left the conjugal dwelling will not anymore be
entitled to support. And THE COURT(?) May ask receiver ship or separation of property.
- RIGHT OF ABANDONED SPOUSE (ART 101)
o He ask for receivership and judicial separation of property, or be appointed as the sole administrator
of conjugal partnership.

ART 129 – PROCEUDURE FOR DISSOLUTION

- Art. 129. Upon the dissolution of the conjugal partnership regime, the
- following procedure shall apply:
- (1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the
exclusive properties of each spouse.
- (2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse
shall be credited to the conjugal partnership as an asset thereof.
- (3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for
the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership.
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- (4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of
insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties,
in accordance with the provisions of paragraph (2) of Article 121.
- (5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.
- (6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for
the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from
the conjugal funds, if any.
- (7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided
equally between husband and wife, unless a different proportion or division was agreed upon in the marriage
settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code.
- (8) The presumptive legitimes of the common children shall be delivered upon the partition in accordance with
Article 51.
- (9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless
otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has
decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best
interests of said children. (181a, 182a, 183a, 184a, 185a)
- RULES ON LIQUIDATION OF CONJUGAL PARTNERSHIP
- The rules on art 102 on absolute community will apply.
o 1. inventory of property
o 2. determine creditors of conjugal partnership, and pay them
o 3. divide the remainder between husband and wife equally
 -unless there is an agreement to the contrary in the marriage settlement

ART 130 – DEATH OF SPOUSE

Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the
same proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership
property either judicially or extrajudicially within six months from the death of the deceased spouse. If upon the lapse
of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership
property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a
mandatory regime of complete separation of property shall govern the property relations of the subsequent
marriage. (n)

- RULES ON TERMINATION OF MARRIAGE

- The rules in art 103 on absolute community applies.
o if the husband dies
 -is there a need for the wife to file in court for the liquidation of the partnership?
 NO.
o if the marriage is dissolved by the death of one party,
 the conjugal partnership should be dissolved and liquidated together with the settlement of the
estate.
 You need not file for application of liquidation of conjugal partnership.
 the surviving spouse needs to file only JUDICIAL OR EXTRAJUDICIAL settlement of the estate of the
deceased husband.
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 It is there in the settlement of the deceased husband where the liquidation of the conjugal
partnership will take place.
 because when you settle the estate of the spouse, you determine the properties belonging to
his estate, and in the process, you determine the share in the conjugal partnership.
 the surviving spouse is given 1 YEAR FROM THE date of the DEATH OF THE DECEASED HUSBAND to
liquidate the conjugal partnership and settle the estate of the husband
- -EFFECT OF FAILURE OF COMPLIANCE:
o -if she later on decides to marry, the MANDATORY regime that will govern her subsequent marriage
is COMPLETE SEPARATION OF PROPERTY REGIME.
 -any agreement OW will be void.

ART 131 – 2 OR MORE MARRIAGES CONTRACTED SIMULTANEOUSLY

Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more marriages contracted by
the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and
income of each partnership shall be determined upon such proof as may be considered according to the rules of
evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between
the different partnerships in proportion to the capital and duration of each. (189a)
ART 132 – RULES ON ADMINISTRATION OF THE ESTATE
Art. 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal
and sale of property of the conjugal partnership, and other matters which are not expressly determined in this
Chapter. (187a)

ART 133 – DELIVERY OF PROPERTY

Art. 133. From the common mass of property support shall be given to the surviving spouse and to the children
during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall
be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (188a)

CHAPTER 5. SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY

ONE SPOUSE DURING THE MARRIAGE
- GR: the regime of separation of property can only be applied if it is contained in a marriage settlement.
- 2 INSTANCES OF SEPARATION OF PROPERTY REGIME
o 1. Property regime Agreed upon in the marriage settlement
o 2. When you have a judicial separation of property during the marriage
 -so even if you started with absolute community or conjugal partnership of gains, you can dissolve
both during the marriage.
 After dissolution, the effect is that you are governed by absolute community regime.

ART 134
Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property
between spouses during the marriage shall not take place except by judicial order. Such judicial separation of
property may either be voluntary or for sufficient cause. (190a)

- 2 WAYS OF JUDICIAL SEPARATION OF PROPERTIES

o 1. based on a valid ground
o 2. by voluntary agreement
 In either case, consent or approval of the court is required.
 Example. At the time of the marriage, you are governed by absolute community, because
there was no marriage settlement. But during the marriage you realized that absolute community is
not good for you. So you decided to separate your properties. Can you do that?
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 You can do that under Art 136 – by voluntary agreement.

o But can you do that even if your wife will not agree? Yes.
 you can file alone provided any of the grounds in 135 is present.
- RULES JUDICIAL SEPARATION OF PROPERTY DURING THE MARRIAGE
- 1. can be done either for a valid cause or without valid cause, by agreement
- 2. can be done only with approval of the court
o If we talk about JUDICIAL SEPARATION OF PROPERTY during the marriage, The other title for this is
DISSOLUTION OF ABSOLUTE COMMUNITY OR DISSOLUTION OF CONJUGAL PARTNERSHIP
 Same ra ug effect, if you dissolve the ACP or the CPG, it will lead to the separation of property during
the marriage
 This can be done either under Art 135 or Art 136

ART 135 – VALID GROUND FOR SEPARATION OF PROPERTY

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially declared an absentee;
(3) That loss of parental authority of the spouse of petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to
the family as provided for in Article 101;
(5) That the spouse granted the power of administration in the marriage settlements has abused that power;
and
(6) That at the time of the petition, the spouses have been separated in fact for at least one year and
reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or
absent spouse shall be enough basis for the grant of the decree of judicial separation of property. (191a)

- 135 – GROUNDS FOR JUDICIAL SEPARATION OF PROPERTY

o 1. sentenced to a penalty which carries civil interdiction
 -normally applies to crimes with more than 20 years of imprisonment, reclusion temporal (12yrs and
1day to 20years)
 -CIVIL INTERDICTION is a accessory penalty where you are deprived of certain rights such as:
 a. enter into contracts
 b. exercise of parental authority over children
 c. manage of property
o 2. When you spouse have been judicially declared an absentee
o 3. loss of parental authority has been decreed by the court
 TN that the first three grounds always involves JUDICIAL INTERVENTION
 If the ground is anchored on the first three, all you need to attach to the petition is a copy of the
decision of the court that
 You husband has been convicted of a crime with civil interdiction, or
 That he is judicially declared an absentee, or
 Loss of parental authority has been decreed by the court
o 4. abandonment or failure to comply with obligations to the family under article 101
o 5. abuse of power in the grant of power of administration in the marriage settlements
o 6. spouses have been separated in fact for at least one year and reconciliation is highly improbable,
at the time of the petition
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ART 136 – VOLUTARY AGREEMENT OF SEPARATION OF PROPERTY

Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the
absolute community or the conjugal partnership of gains, and for the separation of their common properties.
All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors
of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to
protect the creditors and other persons with pecuniary interest. (191a)
- ART 136 – VOLUNTARY SEPARATION OF PROPERTY
o There are no grounds required, even if the grounds in Art 135 are not present.
o This time it is with consent of both spouse and both spouses filed for the application.
 In art 135, one spouse files the petition because the other one does not want to
o In 136, the parties will have to execute an agreement that they will dissolve the partnership and they
will divide the property. They will be the one to decide who owns the property. But again, You need to submit
it to the court for approval.
o The spouses will file a joint petition to the court for the approval of the court.
- WHEN VOLUNTARY SEPARATION OF PROPERTYY TAKES EFFECT – FROM THE TIME COURT APPROVES THE
AGREEMENT
o Case: Tuda vs CA
 Agreement takes effect from the time of the judicial order decreeing the separation of
properties, and not from the signing of the agreement.

ART 137 – EFFECTS OF SEPARATION OF PROPERTY

Art. 137. Once the separation of property has been decreed, the absolute community or the conjugal
partnership of gains shall be liquidated in conformity with this Code.
During the pendency of the proceedings for separation of property, the absolute community or the conjugal
partnership shall pay for the support of the spouses and their children. (192a)

- EFFECTS IF SEPARATION OF PROPERTY IS APPROVED BY THE COURT

o 1. absolute community of property regime or the conjugal partnership deemed dissolved
o 2. support of the children and spouse during the pendency of the proceedings shall be taken from the
absolute community or conjugal partnership
o 3. decree of separation must be recorded in the proper registry

ART 138 – APPLICATION OF COMPLETE SEPARATION OF PROPERTY AFTER DISSOLUTION

Art. 138. After dissolution of the absolute community or of the conjugal partnership, the provisions on
complete separation of property shall apply.
(191a)

ART 139 – REQUISITE FOR REGISTRATION

Art. 139. The petition for separation of property and the final judgment granting the same shall be recorded in
the proper local civil registries and registries of property. (193a)

ART 140 – NOT PREJUDICE RIGHTS OF CREDITOR

Art. 140. The separation of property shall not prejudice the rights previously acquired by creditors. (194a)

ART 141 – APPLICATION TO REVIVE FORMER PROPERTY REGIME

Art. 141. The spouses may, in the same proceedings where separation of property was decreed, file a motion in
court for a decree reviving the property regime that existed between them before the separation of property in
any of the following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the power of administration in the marriage
settlements will not again abuse that power, authorizes the resumption of said administration;
(4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life
with the other;
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(5) When parental authority is judicially restored to the spouse previously deprived thereof;
(6) When the spouses who have separated in fact for at least one year, reconcile and resume common life; or
(7) When after voluntary dissolution of the absolute community of property or conjugal partnership has been
judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime.
No voluntary separation of property may thereafter be granted.
The revival of the former property regime shall be governed by Article 67. (195a)

o Once the court approves the judicial separation of the property, Can the husband and wife change
their mind and go back to the former property regime?
 YES. This is called the REVIVAL OF THE FORMER PROPERTY REGIME.
o The parties may file a petition for the revival of property regime.
o When can the parties return to the old regime?
 1. if the separation of properties was based on art 135 – valid grounds, and the valid grounds ceases
to exist
 2. if the separation of properties was under 136 – mutual agreement, they can always go back
 -PVDD, they can only avail separation of properties voluntarily only once.
 -but if there is a valid ground, you may avail of the separation of property again.
 -IOW separation of property by voluntary agreement may only be availed once.
 But separation of property based on valid grounds may be availed as many times.

ART 142 – ADMINISTRATION OF PROPERTY

Art. 142. The administration of all classes of exclusive property of either spouse may be transferred by the court
to the other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in hiding as an
accused in a criminal case.
If the other spouse is not qualified by reason of incompetence, conflict of
interest, or any other just cause, the court shall appoint a suitable person to
be the administrator. (n)

- GROUNDS TO TRANSFER ADMINISTRATION OF THE EXLCUSIVE PROPERTY OF ANOTHER SPOUSE

o The administration of the exclusive property of the wife can be transferred to the husband and vice
versa, when any of the following will occur:
o 1. spouse becomes the guardian of the other
o 2. spouse is judicially declared an absentee
o 3. spouse is sentenced to a penalty with civil interdiction
o 4. spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case

CHAPTER 6. REGIME OF SEPARATION OF PROPERTY

- WHEN COMMENCE
- The regime of complete separation of property shall only commence:
o 1. from the time of celebration of marriage if there is a marriage settlement

ART 143 – FROM MARRIAGE SETTLEMENT

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Art. 143. Should the future spouses agree in the marriage settlements that their property relations during
marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be
suppletory. (212a)

ART 144 – PROPERTIES AFFECTED

Art. 144. Separation of property may refer to present or future property or both. It may be total or partial. In the
latter case, the property not agreed upon as separate shall pertain to the absolute community. (213a)

ART 145 – ADMINISTRATION AND ENJOYMENT OF PROPERTIES

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without
need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or
industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate
property. (214a)

- When the husband and the wife is governed by the regime of separation of property, they shall all administer,
use and enjoy their respective exclusive property to the exclusion of the other.
- One need not get the consent of the other.
- Even if the wife entrusted the administration of her paraphernal properties to the husband, it does not mean
that the wife needs to get his consent if she decides to sell the property.
- If she does that, it means that she is terminating her husband as administrator without the latters consent.

ART 146 – FAMILY EXPENSES

Art. 146. Both spouses shall bear the family expenses in proportion to their
income, or, in case of insufficiency or default thereof, to the current market
value of their separate properties.
The liabilities of the spouses to creditors for family expenses shall, however,
be solidary. (215a)

- If the husband and the wife are governed by complete separation of property regime, that means there is no
common property between the two of them.
o Where will we get the money to support the children and the family?
 Both spouses shall bear the family expenses
 in proportion to their income.
 If there is no income, in proportion to the values of their exclusive properties.
- LIABILITIES TO CREDITORS OF THE FAMILY
o However, the liability of the spouse for the creditors of the family shall be solidary.
o Meaning the creditors may demand from either spouse for the whole amount.
 The wife can be compelled to pay for the whole obligation but the wife can demand reimbursement
from the husband for his share.

CHAPTER 7. PROPERTY REGIMES OF UNION WITHOUT MARRIAGE

ART 147 – NO LEGAL IMPEDIMENT
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 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.
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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. (144a)
ART 148 – PROPERTIES OWNED IN COMMON; FORFEITURE
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 coownership
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 the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are
in both faith. (144a)

- APPLICATION OF CO-OWNERSHIP
o What is the property regime that will govern between the man and a woman who have been living
together without benefit of marriage or that there is marriage but the marriage is void?
o The rules is that, when the marriage is void, there is no conjugal partnership or absolute community
regime to speak of.
o The three property regimes we have discussed do not apply of there is no marriage or even if there is
marriage but the marriage is void.
o The property regime that will apply is CO-OWNERSHIP.
- KINDS OF CO OWNERSHIP
- There are two kinds of co-ownership under the FC:
o 1. art 147 REFERS ONLY TO THE FF INSTANCES
 a. living together without the benefit of marriage where they have no legal impediment to marry each
other
 b. void marriage not based on legal impediment
o 2. art 148 REFERS TO
 a. void marriage with legal impediment to marry each other
 b. no marriage at all – had a prior legal marriage
- ART 147 refers to a relationship where a man and a woman where living together as husband and wife
without the benefit of marriage, although they have no legal impediment to marry each other.
- Also, art 147 will apply to a void marriage, PVDD the nullity of that marriage is not based on a legal
impediment, but because of some other ground.
- ART 148 refers to living together under a void marriage and the parties have legal impediment to marry each
other, or there was no marriage at all.
- CO OWNERSHIP: ART 147 VS ART 148
o 147: the co-ownership is full ownership, equal jud sila, share and share alike.
 -everything they have acquired during cohabitation shall be owned by them equally
 -even if the other spouse have not contributed to it
 -it is enough that there is contribution on the household and the maintenance of the children
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 Ex. A and b live together as h&w although they have to legal impediment to marry each
other, the man is a very successful business, the woman plays the role of the housewife. During the
marriage, they were able to acquire a lot of properties, all beacuase of the man.
o They are to be governed by co-ownership under Art 147. Tunga jud sila.
o This also applies to void marriages that is not based on legal impediment.
o 148: there shall only be co-ownership on actual contribution
 If you donot have any contribution, then you cannot have a share.
 Example. A DOM abandoned his wife and met a GRO. If the DOM dies, the GRO will not get
anything, because she did not contribute anything.
 All will be given to the legal family because the properties is considered as part of his
conjugal properties of legal wife.
 What is the essence of Art. 148, this is to punish the ‘kabit’
 Case:
o There was DOM with a 19-year-old kabit. He bought her a house and declared it in her name.
then the man died. The legal wife and the children wanted to get the property. The argued that
the title of the property is in her name.
o SC said that It is very clear that the woman does not have means to buy the property. She
was only 19 and a student then. The former owner of the property testified that it was the DOM
who bought the house and lot.
o Therefore it will be considered a donation from the DOM to the woman. However, such
donation is prohibited. Those living together without the benefit of marriage cannot donate to
eachother.

- VOID MARRIAGES NOT BASED ON LEGAL IMPEDIMENT (FOR ART 147)

o 1. defective marriage license
o 2. person who solemnized marriage is unauthorized
o 3. psychological incapacity
- VOID MARRIAGES BASED ON LEGAL IMPDEDIMENT (FOR 148)
o 1. minority
 -legal impediment: lack of legal capacity
o 2. incestuous marriage
o 3. marriage against public policy
o 4. bigamous marriage

- CONJUGAL PARTHNETSHIP
o There are two kinds of defective marriage where conjugal partnership will govern and not co-
ownership. Not all void marriage will result to co-ownership.
o Case: Valdez vs RTC 260 SCRA 221

THE FAMILY AS AN INSTITUTION

ART 149 – FAMILY
Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes
and protects. Consequently, family relations are governed by law and no custom, practice or agreement
destructive of the family shall be recognized or given effect. (216a, 218a)

- In the constitution the State is mandate to provide protection to the family.

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- The State shall protect the family and strengthen the famly as a basic social institution.

ART 150 – FAMILY RELATIONS

Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or halfblood. (217a)

- When we talk of family, we refer only to the following relationship:

o 1. Between husband and wife
o 2. Between parents and children
o 3. Among brothers and sisters
 whether of the full or half blood
- IOW your uncles and aunties and first degree cousins, although they are related to you up to the fourth civil
degree, are not part of your family.

ART 151 – SUIT BETWEEN MEMBERS OF THE FAMILY

Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified
complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed.
If it is shown that no such efforts were in fact made, the same case must be dismissed.
This rules shall not apply to cases which may not be the subject of compromise under the Civil Code. (222a)

- Why is it important for us to know who comprises our family?

 Because there is a provision in art 151 that no suit between members of the family will proper unless
proof earnest effort to compromise is alleged in the complaint.
o IOW, if you file a case against a member of you family, there must be an allegation that you exerted
earnest effort to settle the matter amicably.
o If you still recall in the rules of court, this is one of the grounds of the dismissal of the complaint –
failure to comply with the condition precedent to the filing of the case is a ground for the dismissal of the case
– sec 1 rule 16 of rules of court.
-CONDITION PRECEDENTS
- The condition precedents are:
o 1. exhaustion of administrative remedies
 a. going through barangay conciliation proceedings
o 2. allege that you have exerted earnest effort to settle the case amicably

- WHEN NOT APPLY

o This rule will not apply if the case is not compromisable.
- GR: suit between members of family, there must be allegation that they exerted efforts to settle the matter
amicably
- EXPT:
o 1. case is not compromisable (law does not allow compromise in these cases)
 a. annulment of marriage
 b. declaration of nullity of marriage
 c. legal separation
 d. future support of the children
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o 2. suit involves third persons

 Case: Honteveros vs RTC
 A suit was filed the plaintiff against her own sister but she impleaded her sister’s husband
which is her brother in law, considered to be a third person, not a member of the family.
 The allegation that before the case was file the plaintiff exerted earnest efforts may be
dispensed with
 Case: Magbalita vs Gonong
 SC reiterated that even if you file a case against your own brother, but you implead other
persons as defendants not members of your family, there is no need for you anymore to make the
allegation in your complaint.
o 3. defendant is not really a member of the family
 -Case: Kayod vs Kayod
 2 brothers were co-owners of the title of land, but the title was placed only in the name of
the elder brother.
 When the older brother died, the younger brother wanted to recover the land from the
estate of the older brother. He sued the heirs, who are his sister in law and his nephews and nieces.
 They argued that the younger brother did not allege in his complaint that he exerted efforts
to settle the case amicably, therefore the case should be dismissed.
 The court said no, this is not dismissable because the defendants of this case are not family.
o 4. certification from barangay for conciliation
 Case: Maretinez vs Martinez
 SC said that even if you did not allege in your complaint that you exerted effort to settle the
case amicably, but if the mother was first referred to the barangay for conciliation, and there is a
certification from the barangay that both parties appeared before him, but they were not settled, the
certification of the barangay is already enough to prove that the plaintiff really exerted effort to settle
the matter amicably.
 This is already considered substantial compliance of the law.
- ‘SUIT’
o It does not encompass a petition for the settlement of the estate because such case is not
controversial of adversarial in character.
o -Case: Pilar Vda de Manalo vs CA
 SC clarified that the term suit here means adversarial or controversial suit. It does not cover a non
adversarial suit as in the case of settlement of the estate of the deceased person.

THE FAMILY HOME

ART 152 – FAMILY HOME
Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family,
is the dwelling house where they and their family reside, and the land on which it is situated. (223a)

- FAMILY HOME
o Refers to the house and the lot where the family resides.
- REQUISITES TO BE CONSIDERED FAMILY HOME
- To be considered by as a family home, the house AND lot where the family reside must be owned by:
o a. either or both spouses
o b. unmarried head of the family
o -so if the house is owned by the spouses but the land is merely rented from someone else, the house
is not classified as a family home.
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- IMPORTANCE OF KNOWING IT IS A FAMILY HOME – PRIVILEGES

o It is because a family home enjoys certain privileges or exemptions from forced sale attachment or
execution.
o A family home is exempt from:
 a. execution
 b. forced sale
 c. attachment
- -CHARACTER OF PERMANENCY
o Because one of the essential feature of the family home is the character of permanency.
ART 153 – WHEN CONSTITUTED
Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the
family home continues to be such and is exempt from execution, forced sale or
attachment except as hereinafter provided and to the extent of the value
allowed by law. (223a)

WHEN CONSTITUTED
- When is a family home deemed constituted as a family home?
- From the moment the family resides therein.
o -OLD RULE
 This is different from the old rules in the civil code, where it should be constituted either judicially or
extra judicially by the owners.
 JUDICIAL CONSTITUTION means that the husband and the wife files a petition in court,
asking the court to consider their house and lot as a family home.
 EXTRAJUDICIAL CONSTITUTION means they will execute a joint affidavit, submit it to the
Register of Deeds and ask it to annotate it at the back of their title, so that their title to the house and
land will be considered a family home under the old law
o In the new law FC there is no need for a judicial or extrajudicial constitution.

- WHO MAY CONSTITUTE FAMILY HOME

- Who can create or constitute a family home?
- The family home is constituted by:
o 1. the husband and wife
o 2. an unmarried head of the family
 -meaning single but the members of the family are living with him and dependent on him for support
- These persons are called PRIMARY BENEFICIARY OF A FAMILY HOME.

ART 154 – BENEFICIARIES OF A FAMILY HOME

Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of a family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and who depend upon the head of the family for legal support.
(226a)

- There are two kinds of beneficiaries of a family home:

o 1. primary beneficiaries
o 2. secondary beneficiaries
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- 1. PRIMARY BENEFICIARIES
o These are the owners, who may be:
o a. the husband and wife
o b. unmarried head of the family
- 2. SECONDARY BENEFICIARIES
o a. children of the husband and wife
o b. parents, brothers or sisters of the owner of the family home
o PVDD that these people are:
o 1. living with them and
o 2. dependent entirely for support from them

- FAMILY HOMES BUILT BEFORE AUG 3, 1988

- -STATUS AFTER FC IF NOT JUDICIALLY OR EXTRAJUDICIALLY CONSTITUTED BEFORE FC
o As I have mentioned, a family home must be constituted judicially or extrajudicially under the old
law. but under the new law, there is no need because a family home is deemed constituted from the moment
the family resides therein.
o What happens to those family homes or residences before Aug 3, 1988, which were not constituted
judicially or extrajudicially? Will they be considered as family home? Can they be attached, levied on
execution or be a subject of forced sale?
o But under the new FC, those houses are already considered a family home.
o FC provides that those houses that were built before the effectivity of the FC and were not
constituted as a family home under the NCC, either judicially or extrajudicially will be considered a family
home in the FC.
- WHEN HOME ARE CONSIDERED FAMILY HOME – ONLY UPON EFFECTEIVITY OF FC
- When are these homes considered family home? At the time they were built or at the time of effectivity of FC?
o -Case: Modegillo vs Breva
 SC discussed the concept of family home. SC also declared that FC took effect on Aug 3, 1988, not Aug
4.
 This was a case of the husband was driving the family car and accidentally killed a child. Since he
could not pay, the parents started to levy on execution the house where he and his family resides.
 The accident happened and decision came out before Aug 3, 1988, but the execution of the judgment
was done after Aug 3, 1988. And when the sheriff implemented the execution. The father says that even if
the house was not constituted as a family home, the house is already considered a family home because
FC is given a retroactive effect and considers the houses built before Aug 3 as one.
 SC said that the house become a family home only upon the effectivity of FC, Aug 3, 1988

ART 155 – EXEMPT FROM EXECUTION; EXCEPTIONS

Art. 155. The family home shall be exempt from execution, forced sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered
service or furnished material for the construction of the building. (243a)
OBLIGATIONS NOT COVERED BY THE EXEMPTIONS
- If you read the FVC it enumerates the obligations not covered by the exemptions in execution, forced sale and
attachments:
o 1. non payment of taxes
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o 2. obligations incurred before the constitution of family home

o 3. obligation secured by a mortgage on the family home
 -before or after constitution
o 4. debts and obligations to people who supplied labor or material for the construction of the family
home.
- The second exemption there is the obligation incurred before the constitution of the family home.
- the case of Modegillo vs Breva, falls under the second exemption because it happened before Aug 3, 1988.

- REQUISITE OF ACTUAL OCCUPANCY TO BE EXEMPT

o Another rule that you must remember is that the family home to be exempt, the owner must reside
therein.
o What is required is actual and not constructive occupancy.
o -Case: Manako vs CA
 SC said that the occupation of the family home must be actual. If only the overseers or maids are
living therein, as the owners are in US, it is not a family home. Therefore it is not exempted from
execution or forced sale.
- RIGHT OF EXEMPTION IS PERSONAL PRIVILEGE
o The right of exemption is a personal privilege granted to the debtor, and should be claimed and
proved by him before the public auction.
o Failure of the debtor to prove that the house is a family home bars him from invoking the
exemption.
- WHEN CAN YOU INVOKE EXEMPTION
o GR: INVOKE TIMELY TO BE CONSIDERED FAMILY HOME
 -Case: Bersola
 You have to invoke timely that your house is a family home and it is exempted from the
execution or forced sale.
o IF DISREGARDED BY COURT – CONSIDERED FAMILY HOME
 -Case: Jose vs Santos
 However when it is invoked timely but the court disregarded it the auction sale is null
and void.
 IOW it is a family home.

ART 156 – WHAT MAY BE CONSTITUTED AS FAMILY HOME

Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership,
or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an
unmarried head of a family on his or her own property.
Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by
the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a)

ART 157 – VALUE OF FAMILY HOME

Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of the
three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts
as may hereafter be fixed by law.
In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the
constitution of a family home shall be the basis of evaluation.
For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual
income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a)
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- LIMIT FOR THE VALUE OF FAMILY HOME

o The value of the family home must not exceed its ceiling.
o OW the creditor may petition the court to attach the excess.
 What is the value?
 If located in urban areas: 300k
 If located in rural areas: 200k

ART 158 – SALE, ALIENATION, DONATION, ASSIGNMENT AND ENCUMBRANCE

Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners
thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the
beneficiaries of legal age. In case of conflict, the court shall decide. (235a)

- REQUISITE FOR SALE OF FAMILY HOME – WRITTEN CONSENT OF THE BENEFICIARIES

o The law provides that the family home cannot be sold by its owners without the written consent of
the beneficiaries of the family home, the majority of the beneficiaries who are of legal age.
o And who are the beneficiaries referred to here?
 The secondary beneficiaries.

ART 159 – EFFECT OF DEATH

Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the
family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the
property or constituted the family home. (238a)

- EFFECT OF DEATH OF OWNER

o The family home shall continue to be a family home despite the death of its owner, for a period of
10 years, for as long as there is still a minor beneficiary living therein.
o Case: Patricio vs Dario
 The lola who is the owner of the family home has 5 children.
 4 are living separately, and one, her son lives with her. The son is employed. And he is married to an
employed woman.
 And they had children. When the lola died, the other siblings wanted their share, but the son objected
because there is still a minor beneficiary in the house. Hence it is still a family home. Are grandchildren
considered beneficiaries of the family home here? Can the house be sold?
 The house cannot be sold.
 Grandchildren who are living with the parents and grandparents at the latter’s house are not
considered beneficiaries of the family home.
 Thus upon the death of the grandmother, the family home may be partitioned by the legal heirs.
 They are not considered beneficiaries of the family home of the grandmother as they are not
dependent for support from the latter.

ART 160 – EXECUTION SALE

Art. 160. When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum
amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the
sale of the property under execution.
The court shall so order if it finds that the actual value of the family home exceeds the maximum amount
allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in
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Article 157 and results from subsequent voluntary improvements introduced by the person or persons
constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same
rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be
applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs.
The excess, if any, shall be delivered to the judgment debtor. (247a, 248a)

ART 161 – ONLY ONE FAMILY HOME

Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may
constitute, or be the beneficiary of, only one family home. (n)

- ONLY ONE FAMILY HOME

o A person can only have one family home or a beneficiary of one family home.
o If a person has plenty of houses in different places, only one may be considered his family home, and
that is the one where he habitually resides.
- FAMILY HOME BUILT BEFORE EFFECTIVITY OF FC
o Case: Modequello vs Breva
 Houses built before the effectivity of FC are automatically considered family home upon the
effectivity of FC.
 We have already discussed this.

ART 162 – EXISTING FAMILY RESIDENCES

Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are
applicable. (n)

-
TITLE VI. PATERNITY AND FILIATION
- It refers to the relationship of parents and children.
- PATERNITY refers to the status of the father in relation to his child.
- FILIATION means the status of the child in relation to his father

Chapter 1. Legitimate Children

ART 163 – FILIATION OF CHILDREN
Art. 163. The filiation of children may be by nature or by adoption. Natural
filiation may be legitimate or illegitimate. (n)
- KINDS OF FILIATIONS
- The filiation may be:
o 1. By nature
o 2. By adoption
 By nature means you are a biological child of the parents.
 The other is artificial and that is by adoption.
- NATURAL FILIATION
- Natural filiation may either be
o a. legitimate or
o b. illegitimate
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- -KINDS:
o a. Legitime
o b. Illegitimate
o c. Legitimated children
- -LEGITIMATE CHILDREN are those born during lawful wedlock.
- -ILLEGITIMATE CHILDREN are those born outside lawful wedlock.
- -LEGITIMATED CHILDREN are born outside marriage but later on legitimated by the subsequent marriage of
his parents

ART 164 – LEGITIMATE CHILDREN

Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a
donor or both are likewise legitimate children of the husband and his wife, provided, that both of them
authorized or ratified such insemination in a written instrument executed and signed by them before the birth of
the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.
(55a, 258a)

- ARTIFICIAL INSEMINATION
o There is a new kind of legitimate child in the FC. And these are the children born out of artificial
insemination.
o This is not in the civil code.
o WHO?
 Who are children born out of artificial insemination?
 These are children born out of a process of artificial insemination where a sperm of the
husband is injected in the uterine cavity of the wife and the child was allowed to develop.
 IOW this was a child that was not a product of sexual intercourse.
o HOW?
 No sexual intercourse was involved. The sperm of the husband is harvested and placed in a
disk with a solution. It will be placed in the injected and injected in the uterine cavity of the wife. It is
allowed to develop the natural way.
o KINDS
 There are two ways of doing it:
 a. Homologous
 b. Heterologous
o HOMOLOGOUS if the sperm used is that of the husband.
o HETEROLOGOUS if the sperm of a donor.
o CONDITION FOR LEGITIMACY
 There are certain conditions for artificial insemination to produce a legitimate child:
 1. both the husband and the wife must have agreed
 If it was done by the wife without the knowledge of the husband, what will be the status of
the child?
o The child will be illegitimate.
 But if the husband learned about it and ratified it, then
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o the child will become their legitimate child.

 What happens if the wife has a donor without the consent of the husband, can the wife be
charged of bigamy?
o Majority opinion is that there is no bigamy because if you look at the RPC, it says sexual
intercourse. Here there is no sexual intercourse
 2. authorized in writing
 3. the written instrument must be on writing and registered in the office of the local civil registrar

- IN-VERTO FERTILIZATION/SURROGACY
o There is another way of doing it called in0vetro fertilization
o -HOW?
 The wife, using the semen of the husband was injected into another woman hired by them as a
surrogate mother.
o -U.S. CASE:
 There is one case in UIS where after delivering the child, the surrogate refused to release the child.
Court rules in favor of the real parents.
 The surrogate mother is merely a carrier of the child. It is not her own blood, but of the husband and
the wife

ART 165 – ILLEGITIMATE CHILDREN

Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this
Code. (n)

ART 166 – HOW LEGITIMACY MAY BE IMPUGNED

Art. 166. Legitimacy of a child may be impugned only on the following grounds:
(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120
days of the 300 days which immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse with his wife;
(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was
not possible; or
(c) serious illness of the husband, which absolutely prevented sexual intercourse;
(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the
husband, except in the instance provided in the second paragraph of Article 164; or
(3) That in case of children conceived through artificial insemination, the written authorization or ratification of
either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a)

- WHO MAY IMPUGN LEGITIMACY OF CHILD

- -APPLY ONLY WHEN WIFE DELIVERS THE CHILD
- The rule under art 166 and 167 applies only if the wife delivers a child.
- If the wife delivers a child, who can question the legitimacy of the child?
- GR: It is only the husband.
- EXPT: But if the husband dies, before the prescriptive period sets in, the heirs may impugn the legitimacy of
the child.
- -WIFE CANNOT IMPUGN THE LEGITIMACY OF THE WIFE
o The wife cannot even impugn the legitimacy of the child. And even if the wife will declare to the
whole world after the child was delivered that the child was not of her husband, does it make the child
illegitimate?
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 NO. The mother cannot make the child illegitimate by her pronouncement that the child was not of
the husband.
o This is to protect the child.
o If the child is born during the marriage, the child is always considered illegitimate.
- GROUNDS TO IMPUGN THE LEGITIMACY OF THE CHILD
o 1. physically impossible for husband to have sexual intercourse with his wife within the first 120
days of the 300 days which immediately preceding the birth of the child
 The physical impossibility must be due to any of these
 a. physical incapacity
 b. living separately
 c. serious illness (absolutely prevented)
o PERIOD: 120 DAYS OF 300 DAYS IMMEDIATELY PRECEDING THE BIRTH
 From the birth of the child, you count 300 days backwards. Of the 1sr 120 days of the 10 months,
there was no sex.
 300 days = 10 months, is the longest period for the child to stay in the womb of the mother.
 Because the law presumes that the child must have been conceived within the first 120 days of the
300 days immediately preceding the birth of the child.
 So if there was no sexual contact within the period, then the child could not be of the husband.
 And the husband can invoke this ground only if the 3 grounds were present living separately
 Ex. When the husband is in Saudi Arabia during the first 120days of the 300 days which immediately
preceding the birth of the child
o SERIOUS ILLNESS OF HUSBAND WHICH ABSOLUTELY PROHIBITED HIS FROM SEX
 Case: Andal vs Makaraig
 SC clarified that serious illness here is one that prevents the husband from having sex
absolutely.
 In this case, the husband was suffering from advance stage of tuberculosis. He was already
bed ridden. The heirs impugned the legitimacy of the child.
 SC said that the child is legitimate.
 When the doctor testified in court, he said that he can still perform, in fact they are proven to
be more sexually aggressive because of the medicine they take.
 For as long as there is a chance of the husband having sex with the wife, we should always
resolve the status of the wife in favor of legitimacy.
o 2. proved for biological or other scientific reasons the child could not have been that of the husband
 BIOLOGICAL REASONS:
 Example. Caucasian couple, the wife gave birth to a black child, and there was none in their
blood line.
 SCIENTIFIC REASONS
 The best scientific method to prove filiation is DNA.
 SC acknowledged that DNA is 99.9% accurate in determining filiation.
o 3. artificial insemination: written authorization or ratification of either parent was obtained through
mistake, fraud, violence, intimidation, or undue influence
 Ex. Giilad ang bana sa wife that it will be his spem that they will use, instead, they use the sperm of
another man
 The husband can impugn the legitimacy
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- SC RULES ON IMPUGNING THE LEGITIMACY OF THE CHILD

o 1. Only the husband can impugn the legitimacy of the child, the wife cannot
 EXCEPTION: The wife can impugn the legitimacy of the child if she claims that she did not deliver the
child
 -Case: Chuia Keng Giap
o A Chinese wealthy couple had a maid who bore a child. The maid placed as the parents of the
child, the Chinese couple.
o The lawyer said that a wife cannot question the legitimacy of the child.
o SC said that art 166 will only apply if she is really the one who bore the child.
o 2. The fact that the husband had undergone vasectomy is not enough proof to rebut the
presumption of legitimacy.
 Because it is still possible that the sperm can rechannel itself and effect fertilization.
o 3. Compelling the alleged father of the child to submit to DNA testing does not violate his
constitutional right against self incrimination as the right APPLIES ONLY TO TESTIMONIAL
 Case: Arnel Agustin
 Bf and Gf. The man supported the woman and the child. But later he stopped supporting the
child. The woman filed a case for support but the man denied the child is not his.
 SC said, no there is no violation of the right against self incrimination If the court can even
compel the accused in the rape case to submit himself to DNA testing, how much more for a civil case.
 Compelling the accused in a rape case is not violative of the right against self incrimination
because it can only be invoked in testimonial compulsion, not physical examination.
 Case: Herera vs Alade
 However the court clarified and said, in assessing the probative value of DNA evidence, we
consider the following data:
o a. How the samples were collected
o b. How they were handled
o c. Possibility of contamination
o d. Procedures followed in analyzing the samples
o e. Whether the proper standards and procedures were followed
o f. Qualifications of the analyst
 When there is already DNA testing and the result is submitted to the court, the court must
have to conduct a hearing and be convinced that the performance of the test is done in accordance
with the law.
 Case: Estate of Ong vs Diaz
 Here there was already a pending case (for recognition) where the father denied his filiation,
but before its resolution, the father died.
 SC said that if the allege father of the child denies filiation, the court may order DNA father
even if the father already died.
 The death of the alleged biological father does not ipso facto negate the application of DNA
testing for as long as there exists appropriate biological samples for DNA.
o 4. status and filiation of a child is not subject to compromise
 -Case: Jose Rivero vs CA
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 The status and filiation of the child, can never be compromised. When a case is filed to
recover a share in the estate of his father, the administrator of the estate of the deceased cannot
enter into a compromise agreement recognizing the child as an illegitimate child.
 At the time of the death of the husband, he left 100m to 3 children, the eldest was the
daughter, and the next 2 were sons who were both mentally insane. A child came up to get a share of
the estate and presented proof in court that he was acknowledged as an illegitimate child.
 While the case is pending in court, the daughter entered into a compromise agreement by
giving them 5m.
 The brother of the deceased filed a petition in court that he be appointed as the guardian of
the two insane sons. He questioned the compromise agreement entered into.
 The alleged son claims that he has already been acknowledged by virtue of the compromise
agreement.
 SC said, the eldest daughter who acted as the representative of the 2 brothers has no
authority under the law to enter into a compromise agreement because filiation is something that
cannot be the subject of compromise agreement.
 The person who claims to be a son of the deceased must prove it in court. The status of a
child as an illegitimate child cannot be a subject of a compromise agreement.
 Case:Uy vs Muchua
 A compromise agreement signed by an IC and his alleged father to settle the case for
recognition filed by the former against the latter whereby the child agreed to receive from the alleged
father 2m, in consideration for the child’s declaration that there is no blood relation between her and
the respondent is null and void as it is against the law and public policy.
 The said compromise agreement cannot serve as res judicata to bar the filing of the said
case.
 The status of the child must be proven in court and not be a subject of a compromise
agreement.
o 5. child born during lawful marriage is considered to be legitimate
 -Case: Gerardo Conception vs CA
 The rule is that if the child is born during the lawful marriage, the child is considered a
legitimate child of the mother and her lawful husband even if in reality, the father is somebody else.
 The marriage of a woman to a man during the existence of the marriage to her husband is
null and void for being bigamous.
 The woman is married but they were already separated de facto.
 She married again, to Gerardo Concepcion. The name of the child was even Gerardo
Conception Jr. But they separated again.
 Gerardo Sr. wanted to have custody of the child and went up to SC. But his petition was
denied.
 SC said, when the child was born, the mother of the child was still lawfully married of her
first husband, and the child is considered the legitimate child of the first husband, not of Gerardo
Conception, since the first marriage was not dissolved.
 Remember, only the husband can impugn the legitimacy of the child. And in this case, the
first husband didn’t question the child’s legitimacy.
 Case: Dizon vs De Jesus
 A woman was married but separated from her husband. She found another married man,
and they had 2 daughters. Later on the married man died. Before his death, he made a last will and
testament where he acknowledged his two as his ICs.
 It was questioned by the legal wife and the children of the man.
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 SC said, when these two daughters were born to their mother, who was still married to the
lawful husband and their, the two daughters were considered the LCs of the legal husband of the
mother. They could not therefore be the ICs of the deceased.
o if you want to become an IC, you tell the husband of your mother to impugn your legitimacy.
If he will not file, that means he acknowledges you as his own child.

ART 167
Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy
or may have been sentenced as an adulteress. (256a)

- the rule is that if the child is born in a lawful marriage of his mother and her husband, the child is always
considered to be the legitimate child of his mother and her husband even in reality his father is another man.
o herardo v CA
 the woman is married but she did not live anymore with her husband. There was no annulment of
marriage or declaration of nullity. Separated defacto lang. she married again, this time with Gerardo
Conception. During the marriage they begot a son and named it Gerardo Conception Jr. later on they
separated. Gerardo wanted to support the child but “give me visitorial rights”.
 SC: his petition was denied. The child is considered to be the legitimate child of the mother and the
first husband.
 Remember the rule that it is only the husband who can impugn the legitimacy of the child. In this case
the first husband did not impugn the legitimacy of the child.
 But he can impugn the legitimacy of the child.
o Dizon case
 A married woman lived together with a married man. they begot 2 daughters. Before his death, in his
last will and testament, he acknowledged his children.
 SC: the children cannot be considered the legitimate son of the deceased. If the lawful husband will
not impugn the legitimacy of the children then they continue to be the legitimate children of the husband
and the wife.
ART 168 – SUBSEQUENT MARRIAGE BY MOTHER WITHIN 200 DAYS AFTER TERMINATION OF PRIOR
MARRIAGE
Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days
after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is
considered to have been conceived during the former marriage, provided it be born within three hundred days
after the termination of the former marriage;
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three hundred days
after the termination of the former marriage. (259a)

ART 169 – CHILD BORN AFTER 300 DAYS AFTER TERMINATION OF MARRIAGE
Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the
marriage shall be proved by whoever
alleges such legitimacy or illegitimacy. (261a)

- There is prohibition of the wife from remarrying within 300 days from death of husband. This is to prevent
doubtful paternity and filiation.
- But just in case, the wife remarries within first 300 days and gets pregnant, how will we know whose child it
is?
o If the child is born within 180 days from the second marriage, the child is presumed to be that of
the first husband. PVDD that the child is born within 300 days from the death of first husband.
o If the child is born after 180 days from second marriage, the child is presumed to be that of the
second husband.
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ART 170 – PRESCRIPTION

Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge
of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside
in
the city or municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph
or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if
abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period
shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said
birth, whichever is earlier. (263a)
- Who can question the legitimacy of the child?
o A. BY THE HUSBAND
 The prescriptive period for bringing an action to impugn the legitimacy of the child is:
 1. 1 year -if the husband is living in the same city or municipality where the child is born
 2. 2 years -if the husband is living in a different city or municipality but within Philippines
 3. 3 years -if the husband is living outside the Philippines
 RECKONING PERIOD
o The years are counted from the birth of the child or the fact of registration from the birth
of the child.
o If the birth of the child has been concealed, or was unknown to his husband or heirs, the
period shall be counted from discovery of the birth of the child or the fact or registration of
said birth, which ever is earlier.
o The reckoning of the period is not from the discovery that the child is not his.
- B. IMPUGNED BY THE HEIRS OF THE HUSBAND
- The heirs of the husband can file an action impugning the legitimacy of the child, when can they file the case?
o 1. if the husband should die before the expiration of the period fixed for bringing the action
 Example. The wife delivers a baby today. The husband was living within Cebu City. The husband has
only 1 year to impugn the legitimacy of the child.
 But if the husband died after 1 year, the heirs cannot impugn the legitimacy of the child. Because
even if the husband is alive, the period has already prescribed.
o 2. if the husband should die after the filing of the complaint without having desisted therefrom
o 3. if the child was born after the death of the husband.
-
- NO COLLATERAL ATTACK ON LEGITIMACY
o -ACTION FOR RECONVEYANCE filed BY THE NIECE
 In an action for reconveyance filed by the niece to recover the property from the aunt, respondent
cannot question the legitimacy of the niece as she is not the father of the child.
 Legitimacy cannot be collaterally attacked, but only directly attacked by the husband of the niece’s
mother.
o -ACTION FOR PARTITION
 The filiation of the child should be attacked directly, not collaterally. Likewise, impugning the
legitimacy of the child cannot be made in an action for partition as this is only a collateral attack.
o -Case: Javiera vs Catutal
 It is the legitimate daughter who questioned. She was able to present evidence that the child was not
that of her parents.
 Action filed by the legitimate child to cancel the birth certificate of their housemate’s child, who
claimed to be her sister and therefore a legitimate child of her parents is not violative of the
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abovementioned rule specially that the LC was able to prove that the housemate’s child was not given
birth by her mother. And that the birth certificate of the child was a forgery.
 (similar as Chong Geng Giap, but now it is the daughter who questions)

ART 171 – WHEN HEIRS MAY IMPUGN FILIATION

Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the
preceding article only in the following cases:
(1) If the husband should died before the expiration of the period fixed for bringing his action;
(2) If he should die after the filing of the complaint without having desisted therefrom; or
(3) If the child was born after the death of the husband. (262a)

PROOF OF FILIATION
ART 172 - HOW TO ESTABLISH
Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by
the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a)

- PROOF OF FILIATION
- How do you prove legitimate filiations?
- There are two ways of proving illegitimate filiations:
o 1. primary evidence
o 2. secondary evidence
- PRIMARY EVIDENCE:
o a. record of birth in civil register
o b. admission of legitimate filiation in a public document or a private hand written document and
signed by the parent concerned
- SECONDARY EVIDENCE:
o a. open and continuous possession of a status of a legitimate child
o b. any other means allowed by the rules of court.
- -BIRTH CERTIFICATE
o This is the best evidence to establish filiation.
o But for a birth certificate to be considered sufficient proof of filiation, there must be evidence of
participation of the alleged father of the child in the making of the document.
o IOW if your birth certificate is signed by the father, then that is a strong evidence.
- -PUBLIC DOCUMENT
o This is one notarized by a lawyer.
o Ex. If eh father has acknowledged you in his application for work in the government and that is
notarized, that is a very good evidence.
- -PRIVATE HANDWRITTEN INSTRUMENT
o The second primary evidence is a private handwritten document duly signed by the father.
o Example. Love letter given to the mother acknowledging the child. It must be in his own hand writing
and signed by him to admissible as evidence.
- -AUTOBIOGRAPHY COROBORATED WITH OTHER EVIDENCE
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o -Case: San Juan vs Garcia

 To be admissible, SC said that an unsigned autobiography where the putative father acknowledged
paternity of the child may be considered sufficient proof of filiation if special circumstances exist to
establish that the child is his.
 SC said that if an autobiography of a person can be used as an evidence of filiation, even if it is not
signed by the father.
 SC made a qualification that even if it was not signed by the father where the private handwritten
document is accompanied by other relevant and competent evidence, it suffices the claim of filiation
therein be shown to have been made and handwritten b the acknowledging parent as it is merely
corroborative of such other evidence.
 IOW an autobiography that was not signed by the father is not good proof of filiation if it is was the
only evidence. But if the evidence is corroborated by other evidence, it is admissible proof of filiation.
- -filiation may also be proved by ANY OTHER MEANS ALLOWED BY THE RULES OF COURT

ART 173 – ACTION TO CLAIM FOR LEGITIMACY, TRANSMITTED TO HEIRS

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be
transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute the action.

- WHO MAY BRING ACTION TO CLAIM LEGITIMATE FILITAION; PRESCRIPTIVE PERIOD

o A. CHILD; WITHIN LIFETIME OF CHILD
 As distinguished from illegitimate filiation, the child can bring that anytime within his or her lifetime.
o B. HEIRS OF THE CHILD; 5 YEARS FROM DEATH
 If the child dies or be in a state of insanity during, the heirs of the child may bring the action. The
heirs have five years from the death of the child within which to institute the action.

ART 174 – RIGHTS OF LEGITIMATE CHILDREN

Art. 174. Legitimate children shall have the right:
(1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on
Surnames;
(2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in
conformity with the provisions of this Code on Support; and
(3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code. (264a)

- 1. bear the surnames of the father

- 2. receive support
- 3. entitled to the legitimate

ILLEGITIMATE CHILDREN
ART 175 – HOW TO ESTABLISH FILIATION
Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence
as legitimate children.
The action must be brought within the same period specified in Article 173, except when the action is based on
the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged
parent. (289a)

- PROOF TO ESTABLISH ILLEGITIMATE FILIATION

- The evidence is to establish illegitimate filiation under art 172 with the same evidences to prove legitimate
filiations.
o 1. primary evidence:
 a. record of birth in civil register
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 b. admission of legitimate filiation in a public document or a private hand written document and
signed by the parent concerned
o 2. secondary evidence:
 a. open and continuous possession of a status of an illegitimate child
 b. any other means allowed by the rules of court.
- WHEN MAY ESTABLISH
o The difference between legitimate and illegitimate filiation is that
 a legitimate child can prove his legitimate filiation anytime during his lifetime.
 But an illegitimate child can prove his illegitimate filiation only during the lifetime of his father.

o A. BEFORE DEATH OF FATHER – IF EVIDENCE IS SECONDARY

 He cannot prove his illegitimate filiation when the father is already dead; that is if the only evidence
he has are secondary evidence.
 So even if the father has been paying the tuition every year, that proof cannot be used after his death.
o B. WITHIN LIFETIME OF CHILD – IF EVIDENCE IS PRIMARY
 But if he has the primary evidence, he can always prove his illegitimate filiation, even after the
death of his father, because that is tantamount already to voluntary recognition.
 Example. There is a final judgment of the court declaring you to be an illegitimate child of the father,
or there is admission in a public document or a private handwritten document.
 If you have these documents, it is tantamount to being acknowledged by the father voluntarily during
his lifetime.
- NOTE: you cannot make a child illegitimate by your own admission
o So if the child is considered a legitimate child of the mother and his husband, you being the real
father, cannot recognize the child as your illegitimate child
o If the lawful husband will impugn the legitimacy of the child, the real father can recognize the child
- VESTED RIGHT OF IC BORN BEFORE FC TO PROVE AFTER DEATH
o Case: Bernabe vs Alejo
 This distinguishes the FC and NCC.
 In NCC, IC whose putative father dies upon minority has 4 years upon reaching the age of majority to
file his action to prove his illegitimate filiations, notwithstanding the kind of evidence he has. This is a
vested right which cannot be removed by the new law.
 In FC, IC who only has secondary evidences to prove illegitimate filiations has to file a case against
father before his death.
 So if the child is born before Aug 3, 1988, he is governed by NCC. If after, he is governed by FC.
 In this case, Fiscal Bernabe of Quezon City had an affair with his secretary. The child claimed for his
share.
 SC said that because the child was born before FC, he is governed by NCC. He may prove after the
death of his father if his father dies during the minority of the child.
 FC cannot be given retroactive if it will affect vested rights.

ART 176 – RIGHTS OF ILLEGITIMATE CHILDREN

Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and
shall be entitled to support in
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conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this
modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a)

- 1. USE OF SURNAME OF MOTHER

o Case: Moses Guild vs CA
 In the FC, an IC may only carry the surname of the mother, even if you are acknowledged by the
father.
o THIS HAS ALREADY BEEN REPEALED BY RA 9255
o The IC may now use the surname of the father.
- 2. UNDER PARENTAL AUTHORITY OF MOTHER
- 3. SUPPORT
- 4. ½ OF LEGITIME OF ILLEGITIMATE CHILD

LEGITIMATED CHILDREN
ART 177 – WHO ARE LEGITIMATED CHILDREN
Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of
the former, were not disqualified by any impediment to marry each other may be legitimated. (269a)

ART 178 - LEGITIMATION

Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a
viodable marriage shall not affect the legitimation. (270a)

ART 179 – RIGHTS OF LEGITIMATED CHILDREN

Art. 179. Legitimated children shall enjoy the same rights as legitimate children. (272a)

ART 180 – RETROACTIVE EFFECT OF LEGITIMATION

Art. 180. The effects of legitimation shall retroact to the time of the child's birth. (273a)

ART 181 – LEGITIMATION OF CHILDREN WHO DIED BEFORE MARRIAGE

Art. 181. The legitimation of children who died before the celebration of the marriage shall benefit their
descendants. (274)

ART 182 – WHO MAY IMPUGN LEGITIMATION; PRESCRIPTION

Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights, within five years from
the time their cause of action accrues. (275a)