Civil. Civil Law (Vol I) - Justice Jose Vitug PDF

TABLE OF CONTENTS
INTRODUCTORY CHAPTER
Civil Law and Common Law Distinguished ......................... 1

Civil Code of the Philippines .................................................. 2
The Family Code of the Philippines ...................................... 3
THE CIVIL CODE OF THE PHILIPPINES

PRELIMINARY TITLE
Chapter 1 — EFFECT AND APPLICATION

OF LAWS
Article 1 .................................................................................... 4
Article 2 .................................................................................... 4
Article 3 .................................................................................... 4
Article 4 .................................................................................... 4
Article 5 .................................................................................... 4
Article 6 .................................................................................... 4
Article 7 .................................................................................... 4
Article 8 .................................................................................... 5
Article 9 .................................................................................... 5
Article 10 ................................................................................ 5
Article 11 ................................................................................ 5
Article 12 ................................................................................ 5
Article 13 ................................................................................ 5
Article 14 ................................................................................ 5
Article 15 ................................................................................ 5
Article 16 ................................................................................ 5
Article 17 ................................................................................ 6
Article 18 ................................................................................ 6
Chapter 2 — HUMAN RELATIONS
Article 19 ................................................................................ 28
Article 20 ................................................................................ 28
Article 21 ................................................................................ 28
Article 22 ................................................................................ 28
Article 23 ................................................................................ 29
iii
Article 24 ................................................................................ 29
Article 25 ................................................................................ 29
Article 26 ................................................................................ 29
Article 27 ................................................................................ 29
Article 28 ................................................................................ 30
Article 29 ................................................................................ 30
Article 30 ................................................................................ 30
Article 31 ................................................................................ 30
Article 32 ................................................................................ 30
Article 33 ................................................................................ 32
Article 34 ................................................................................ 32
Article 35 ................................................................................ 32
Article 36 ................................................................................ 33
BOOK I
PERSONS
TITLE I — CIVIL PERSONALITY
Chapter 1 — GENERAL PROVISIONS
Article 37 ................................................................................ 52
Article 38 ................................................................................ 52
Article 39 ................................................................................ 52
Chapter 2 — NATURAL PERSONS
Article 40 ................................................................................ 53
Article 41 ................................................................................ 53
Article 42 ................................................................................ 53
Article 43 ................................................................................ 53
Chapter 3 — JURIDICAL PERSONS
Article 44 ................................................................................ 53
Article 45 ................................................................................ 54
Article 46 ................................................................................ 54
Article 47 ................................................................................ 54
TITLE II — CITIZENSHIP AND DOMICILE
Article 48 ................................................................................ 61
Article 49 ................................................................................ 61
Article 50 ................................................................................ 61
Article 51 ................................................................................ 61
iv
TITLE III — MARRIAGE
Chapter 1 — REQUISITES OF MARRIAGE
Article 52 ................................................................................ 65
Article 53 ................................................................................ 65
Article 54 ................................................................................ 65
Article 55 ................................................................................ 65
Article 56 ................................................................................ 66
Article 57 ................................................................................ 66
Article 58 ................................................................................ 67
Article 59 ................................................................................ 67
Article 60 ................................................................................ 68
Article 61 ................................................................................ 69
Article 62 ................................................................................ 69
Article 63 ................................................................................ 70
Article 64 ................................................................................ 70
Article 65 ................................................................................ 70
Article 66 ................................................................................ 70
Article 67 ................................................................................ 71
Article 68 ................................................................................ 71
Article 69 ................................................................................ 71
Article 70 ................................................................................ 71
Article 71 ................................................................................ 72
Chapter 2 — MARRIAGES OF EXCEPTIONAL

CHARACTER
Article 72 ................................................................................ 78
Article 73 ................................................................................ 78
Article 74 ................................................................................ 78
Article 75 ................................................................................ 79
Article 76 ................................................................................ 79
Article 77 ................................................................................ 79
Article 78 ................................................................................ 79
Article 79 ................................................................................ 80
Chapter 3 — VOID AND VOIDABLE

MARRIAGES
Article 80 ................................................................................ 82
Article 81 ................................................................................ 83
Article 82 ................................................................................ 83
Article 83 ................................................................................ 83
Article 84 ................................................................................ 84
Article 85 ................................................................................ 84
Article 86 ................................................................................ 85
Article 87 ................................................................................ 85
Article 88 ................................................................................ 86
v
Article 89 ................................................................................ 86
Article 90 ................................................................................ 86
Article 91 ................................................................................ 86
Chapter 4 — AUTHORITY TO SOLEMNIZE

MARRIAGES
Article 92 ................................................................................ 97
Article 93 ................................................................................ 97
Article 94 ................................................................................ 97
Article 95 ................................................................................ 98
Article 96 ................................................................................ 98
TITLE IV — LEGAL SEPARATION
Article 97 ................................................................................ 99
Article 98 ................................................................................ 99
Article 99 ................................................................................ 99
Article 100 ................................................................................ 99
Article 101 ................................................................................ 100
Article 102 ................................................................................ 100
Article 103 ................................................................................ 100
Article 104 ................................................................................ 100
Article 105 ................................................................................ 100
Article 106 ................................................................................ 101
Article 107 ................................................................................ 101
Article 108 ................................................................................ 101
TITLE V — RIGHTS AND OBLIGATIONS

BETWEEN HUSBAND AND WIFE
Article 109 ................................................................................ 106

Article 110 ................................................................................ 106
Article 111 ................................................................................ 106
Article 112 ................................................................................ 106
Article 113 ................................................................................ 106
Article 114 ................................................................................ 107
Article 115 ................................................................................ 107
Article 116 ................................................................................ 107
Article 117 ................................................................................ 108
TITLE VI — PROPERTY RELATIONS

Article 118 ................................................................................ 112

Article 119 ................................................................................ 112
Article 120 ................................................................................ 112
vi
Article 121 ................................................................................ 113
Article 122 ................................................................................ 113
Article 123 ................................................................................ 113
Article 124 ................................................................................ 113
Article 125 ................................................................................ 113
Chapter 2 — DONATIONS BY REASON

OF MARRIAGE
Article 126 ................................................................................ 115

Article 127 ................................................................................ 115
Article 128 ................................................................................ 115
Article 129 ................................................................................ 116
Article 130 ................................................................................ 116
Article 131 ................................................................................ 116
Article 132 ................................................................................ 116
Article 133 ................................................................................ 116
Article 134 ................................................................................ 117
Chapter 3 — PARAPHERNAL PROPERTY
Article 135 ................................................................................ 118

Article 136 ................................................................................ 119
Article 137 ................................................................................ 119
Article 138 ................................................................................ 119
Article 139 ................................................................................ 119
Article 140 ................................................................................ 119
Article 141 ................................................................................ 119
Chapter 4 — CONJUGAL PARTNERSHIP

OF GAINS
Section 1 — General Provisions
Article 142 ................................................................................ 120

Article 143 ................................................................................ 120
Article 144 ................................................................................ 120
Article 145 ................................................................................ 120
Article 146 ................................................................................ 120
Article 147 ................................................................................ 121
Section 2 — Exclusive Property

of Each Spouse
Article 148 ................................................................................ 121

Article 149 ................................................................................ 121
Article 150 ................................................................................ 121
Article 151 ................................................................................ 121
vii
Article 152 ................................................................................ 121
Section 3 — Conjugal Partnership Property
Article 153 ................................................................................ 122

Article 154 ................................................................................ 122
Article 155 ................................................................................ 122
Article 156 ................................................................................ 122
Article 157 ................................................................................ 122
Article 158 ................................................................................ 123
Article 159 ................................................................................ 123
Article 160 ................................................................................ 123
Section 4 — Charges Upon and Obligations

of the Conjugal Partnership
Article 161 ................................................................................ 130

Article 162 ................................................................................ 130
Article 163 ................................................................................ 130
Article 164 ................................................................................ 131
Section 5 — Administration of the Conjugal

Partnership
Article 165 ................................................................................ 133

Article 166 ................................................................................ 133
Article 167 ................................................................................ 133
Article 168 ................................................................................ 134
Article 169 ................................................................................ 134
Article 170 ................................................................................ 134
Article 171 ................................................................................ 134
Article 172 ................................................................................ 134
Article 173 ................................................................................ 134
Article 174 ................................................................................ 134
Section 6 — Dissolution of the Conjugal

Partnership
Article 175 ................................................................................ 137

Article 176 ................................................................................ 137
Article 177 ................................................................................ 137
Article 178 ................................................................................ 137
Section 7 — Liquidation of the Conjugal

Partnership
Article 179 ................................................................................ 138

Article 180 ................................................................................ 138
viii
Article 181 ................................................................................ 138
Article 182 ................................................................................ 138
Article 183 ................................................................................ 138
Article 184 ................................................................................ 139
Article 185 ................................................................................ 139
Article 186 ................................................................................ 139
Article 187 ................................................................................ 139
Article 188 ................................................................................ 139
Article 189 ................................................................................ 139
Chapter 5 — SEPARATION OF PROPERTY

OF THE SPOUSES AND ADMINISTRATION
OF PROPERTY BY THE WIFE DURING
THE MARRIAGE
Article 190 ................................................................................ 141

Article 191 ................................................................................ 142
Article 192 ................................................................................ 142
Article 193 ................................................................................ 143
Article 194 ................................................................................ 143
Article 195 ................................................................................ 143
Article 196 ................................................................................ 144
Article 197 ................................................................................ 144
Chapter 6 — SYSTEM OF ABSOLUTE

COMMUNITY
Article 198 ................................................................................ 145

Article 199 ................................................................................ 145
Article 200 ................................................................................ 146
Article 201 ................................................................................ 146
Article 202 ................................................................................ 146
Article 203 ................................................................................ 146
Article 204 ................................................................................ 146
Article 205 ................................................................................ 146
Article 206 ................................................................................ 147
Article 207 ................................................................................ 147
Article 208 ................................................................................ 147
Article 209 ................................................................................ 147
Article 210 ................................................................................ 147
Article 211 ................................................................................ 147
Chapter 7 — SYSTEM OF COMPLETE

SEPARATION OF PROPERTY
Article 212 ................................................................................ 149

Article 213 ................................................................................ 149
Article 214 ................................................................................ 149
ix
Article 215 ................................................................................ 149
TITLE VII — THE FAMILY
Chapter 1 — THE FAMILY AS AN

INSTITUTION
Article 216 ................................................................................ 151

Article 217 ................................................................................ 151
Article 218 ................................................................................ 151
Article 219 ................................................................................ 151
Article 220 ................................................................................ 151
Article 221 ................................................................................ 152
Article 222 ................................................................................ 152
Chapter 2 — THE FAMILY HOME

Article 223 ................................................................................ 155

Article 224 ................................................................................ 155
Section 2 — Judicial Constitution of the

Family Home
Article 225 ................................................................................ 155

Article 226 ................................................................................ 155
Article 227 ................................................................................ 156
Article 228 ................................................................................ 156
Article 229 ................................................................................ 156
Article 230 ................................................................................ 156
Article 231 ................................................................................ 156
Article 232 ................................................................................ 156
Article 233 ................................................................................ 157
Article 234 ................................................................................ 157
Article 235 ................................................................................ 157
Article 236 ................................................................................ 157
Article 237 ................................................................................ 157
Article 238 ................................................................................ 158
Article 239 ................................................................................ 158
Section 3 — Extrajudicial Creation

of the Family Home
Article 240 ................................................................................ 158

Article 241 ................................................................................ 158
Article 242 ................................................................................ 158
Article 243 ................................................................................ 158
Article 244 ................................................................................ 159
x
Article 245 ................................................................................ 159
Article 246 ................................................................................ 159
Article 247 ................................................................................ 159
Article 248 ................................................................................ 159
Article 249 ................................................................................ 159
Article 250 ................................................................................ 160
Article 251 ................................................................................ 160
Chapter 3 — THE FAMILY COUNCIL
Article 252 ................................................................................ 163

Article 253 ................................................................................ 163
Article 254 ................................................................................ 163
TITLE VIII — PATERNITY AND FILIATION
Chapter 1 — LEGITIMATE CHILDREN
Article 255 ................................................................................ 164

Article 256 ................................................................................ 165
Article 257 ................................................................................ 165
Article 258 ................................................................................ 165
Article 259 ................................................................................ 165
Article 260 ................................................................................ 166
Article 261 ................................................................................ 166
Article 262 ................................................................................ 166
Article 263 ................................................................................ 167
Article 264 ................................................................................ 167
Chapter 2 — PROOF OF FILIATION

OF LEGITIMATE CHILDREN
Article 265 ................................................................................ 170

Article 266 ................................................................................ 170
Article 267 ................................................................................ 170
Article 268 ................................................................................ 171
Chapter 3 — LEGITIMATED CHILDREN
Article 269 ................................................................................ 172

Article 270 ................................................................................ 172
Article 271 ................................................................................ 172
Article 272 ................................................................................ 172
Article 273 ................................................................................ 172
Article 274 ................................................................................ 172
Article 275 ................................................................................ 172
xi
Chapter 4 — ILLEGITIMATE CHILDREN
Section 1 — Recognition of Natural Children
Article 276 ................................................................................ 175

Article 277 ................................................................................ 175
Article 278 ................................................................................ 175
Article 279 ................................................................................ 175
Article 280 ................................................................................ 175
Article 281 ................................................................................ 175
Article 282 ................................................................................ 176
Article 283 ................................................................................ 176
Article 284 ................................................................................ 176
Article 285 ................................................................................ 176
Article 286 ................................................................................ 177
Section 2 — Other Illegitimate Children
Article 287 ................................................................................ 177

Article 288 ................................................................................ 177
Article 289 ................................................................................ 177
TITLE IX — SUPPORT
Article 290 ................................................................................ 186

Article 291 ................................................................................ 186
Article 292 ................................................................................ 187
Article 293 ................................................................................ 187
Article 294 ................................................................................ 187
Article 295 ................................................................................ 187
Article 296 ................................................................................ 188
Article 297 ................................................................................ 188
Article 298 ................................................................................ 188
Article 299 ................................................................................ 188
Article 300 ................................................................................ 188
Article 301 ................................................................................ 188
Article 302 ................................................................................ 189
Article 303 ................................................................................ 189
Article 304 ................................................................................ 189
TITLE X — FUNERALS
Article 305 ................................................................................ 194

Article 306 ................................................................................ 194
Article 307 ................................................................................ 194
Article 308 ................................................................................ 194
Article 309 ................................................................................ 194
Article 310 ................................................................................ 194
xii
TITLE XI — PARENTAL AUTHORITY
Article 311 ................................................................................ 196

Article 312 ................................................................................ 196
Article 313 ................................................................................ 196
Article 314 ................................................................................ 197
Article 315 ................................................................................ 197
Chapter 2 — EFFECT OF PARENTAL

AUTHORITY UPON THE PERSONS
OF THE CHILDREN
Article 316 ................................................................................ 197

Article 317 ................................................................................ 197
Article 318 ................................................................................ 197
Article 319 ................................................................................ 197

AUTHORITY ON THE PROPERTY
OF THE CHILDREN
Article 320 ................................................................................ 198

Article 321 ................................................................................ 198
Article 322 ................................................................................ 198
Article 323 ................................................................................ 198
Article 324 ................................................................................ 198
Article 325 ................................................................................ 198
Article 326 ................................................................................ 199
Chapter 4 — EXTINGUISHMENT OF
PARENTAL AUTHORITY
Article 327 ................................................................................ 199

Article 328 ................................................................................ 199
Article 329 ................................................................................ 199
Article 330 ................................................................................ 199
Article 331 ................................................................................ 200
Article 332 ................................................................................ 200
Article 333 ................................................................................ 200
Chapter 5 — ADOPTION
Article 334 ................................................................................ 203

Article 335 ................................................................................ 203
Article 336 ................................................................................ 204
Article 337 ................................................................................ 204
xiii
Article 338 ................................................................................ 204
Article 339 ................................................................................ 204
Article 340 ................................................................................ 204
Article 341 ................................................................................ 204
Article 342 ................................................................................ 205
Article 343 ................................................................................ 205
Article 344 ................................................................................ 205
Article 345 ................................................................................ 205
Article 346 ................................................................................ 205
Article 347 ................................................................................ 205
Article 348 ................................................................................ 205
Chapter 6 — SUBSTITUTE PARENTAL

AUTHORITY
Article 349 ................................................................................ 212

Article 350 ................................................................................ 212
Article 351 ................................................................................ 212
Article 352 ................................................................................ 212
Article 353 ................................................................................ 212
Article 354 ................................................................................ 212
Article 355 ................................................................................ 213
TITLE XII — CARE AND EDUCATION

OF CHILDREN
Article 356 ................................................................................ 214

Article 357 ................................................................................ 214
Article 358 ................................................................................ 214
Article 359 ................................................................................ 215
Article 360 ................................................................................ 215
Article 361 ................................................................................ 215
Article 362 ................................................................................ 215
Article 363 ................................................................................ 216
TITLE XIII — USE OF SURNAMES
Article 364 ................................................................................ 218

Article 365 ................................................................................ 218
Article 366 ................................................................................ 218
Article 367 ................................................................................ 218
Article 368 ................................................................................ 218
Article 369 ................................................................................ 216
Article 370 ................................................................................ 218
Article 371 ................................................................................ 218
Article 372 ................................................................................ 219
Article 373 ................................................................................ 219
Article 374 ................................................................................ 219
Article 375 ................................................................................ 219
xiv
Article 376 ................................................................................ 219
Article 377 ................................................................................ 219
Article 378 ................................................................................ 219
Article 379 ................................................................................ 219
Article 380 ................................................................................ 219
TITLE XIV — ABSENCE
Chapter 1 — PROVISIONAL MEASURES IN

CASE OF ABSENCE
Article 381 ................................................................................ 224

Article 382 ................................................................................ 224
Article 383 ................................................................................ 224
Chapter 2 — DECLARATION OF ABSENCE
Article 384 ................................................................................ 224

Article 385 ................................................................................ 225
Article 386 ................................................................................ 225
Chapter 3 — ADMINISTRATION OF THE

PROPERTY OF THE ABSENTEE
Article 387 ................................................................................ 225

Article 388 ................................................................................ 225
Article 389 ................................................................................ 225
Chapter 4 — PRESUMPTION OF DEATH
Article 390 ................................................................................ 226

Article 391 ................................................................................ 226
Article 392 ................................................................................ 226
Chapter 5 — EFFECT OF ABSENCE UPON

THE CONTINGENT RIGHTS OF THE
ABSENTEE
Article 393 ................................................................................ 226

Article 394 ................................................................................ 227
Article 395 ................................................................................ 227
Article 396 ................................................................................ 227
TITLE XV — EMANCIPATION AND AGE

OF MAJORITY
Chapter 1 — EMANCIPATION
Article 397 ................................................................................ 231
xv
Article 398 ................................................................................ 231
Article 399 ................................................................................ 231
Article 400 ................................................................................ 231
Article 401 ................................................................................ 231
Chapter 2 — AGE OF MAJORITY
Article 402 ................................................................................ 232

Article 403 ................................................................................ 232
Article 404 ................................................................................ 232
Article 405 ................................................................................ 232
Article 406 ................................................................................ 232
TITLE XVI — CIVIL REGISTER
Article 407 ................................................................................ 233

Article 408 ................................................................................ 233
Article 409 ................................................................................ 233
Article 410 ................................................................................ 233
Article 411 ................................................................................ 233
Article 412 ................................................................................ 234
Article 413 ................................................................................ 234
THE FAMILY CODE OF THE

PHILIPPINES
TITLE I — MARRIAGE
Chapter 1 — REQUISITES OF MARRIAGE
Article 1 ................................................................................ 239

Article 2 ................................................................................ 241
Article 3 ................................................................................ 241
Article 4 ................................................................................ 241
Article 5 ................................................................................ 243
Article 6 ................................................................................ 244
Article 7 ................................................................................ 244
Article 8 ................................................................................ 245
Article 9 ................................................................................ 247
Article 10 ................................................................................ 247
Article 11 ................................................................................ 247
Article 12 ................................................................................ 248
Article 13 ................................................................................ 249
Article 14 ................................................................................ 250
Article 15 ................................................................................ 250
Article 16 ................................................................................ 251
Article 17 ................................................................................ 252
Article 18 ................................................................................ 253
Article 19 ................................................................................ 253
xvi
Article 20 ................................................................................ 253
Article 21 ................................................................................ 253
Article 22 ................................................................................ 254
Article 23 ................................................................................ 254
Article 24 ................................................................................ 255
Article 25 ................................................................................ 255
Article 26 ................................................................................ 256
Chapter 2 — MARRIAGES EXEMPT FROM

LICENSE REQUIREMENT
Article 27 ................................................................................ 258

Article 28 ................................................................................ 258
Article 29 ................................................................................ 258
Article 30 ................................................................................ 259
Article 31 ................................................................................ 259
Article 32 ................................................................................ 259
Article 33 ................................................................................ 259
Article 34 ................................................................................ 259
Chapter 3 — VOID AND VOIDABLE

MARRIAGES
Article 35 ................................................................................ 261

Article 36 ................................................................................ 261
Article 37 ................................................................................ 261
Article 38 ................................................................................ 262
Article 39 ................................................................................ 267
Article 40 ................................................................................ 267
Article 41 ................................................................................ 275
Article 42 ................................................................................ 275
Article 43 ................................................................................ 275
Article 44 ................................................................................ 276
Article 45 ................................................................................ 278
Article 46 ................................................................................ 279
Article 47 ................................................................................ 282
Article 48 ................................................................................ 283
Article 49 ................................................................................ 283
Article 50 ................................................................................ 284
Article 51 ................................................................................ 284
Article 52 ................................................................................ 285
Article 53 ................................................................................ 285
Article 54 ................................................................................ 285
TITLE II — LEGAL SEPARATION
Article 55 ................................................................................ 288

Article 56 ................................................................................ 290
Article 57 ................................................................................ 291
xvii
Article 58 ................................................................................ 291
Article 59 ................................................................................ 291
Article 60 ................................................................................ 291
Article 61 ................................................................................ 292
Article 62 ................................................................................ 292
Article 63 ................................................................................ 293
Article 64 ................................................................................ 293
Article 65 ................................................................................ 295
Article 66 ................................................................................ 295
Article 67 ................................................................................ 296
TITLE III — RIGHTS AND OBLIGATIONS

Article 68 ................................................................................ 298
Article 69 ................................................................................ 298
Article 70 ................................................................................ 298
Article 71 ................................................................................ 298
Article 72 ................................................................................ 299
Article 73 ................................................................................ 299
TITLE IV — PROPERTY RELATIONS


Article 74 ................................................................................ 302
Article 75 ................................................................................ 302
Article 76 ................................................................................ 302
Article 77 ................................................................................ 303
Article 78 ................................................................................ 303
Article 79 ................................................................................ 303
Article 80 ................................................................................ 303
Article 81 ................................................................................ 303
Chapter 2 — DONATIONS BY REASON

OF MARRIAGE
Article 82 ................................................................................ 307
Article 83 ................................................................................ 307
Article 84 ................................................................................ 307
Article 85 ................................................................................ 307
Article 86 ................................................................................ 308
Article 87 ................................................................................ 310
Chapter 3 — SYSTEM OF ABSOLUTE COMMUNITY
Article 88 ................................................................................ 311
xviii
Article 89 ................................................................................ 311
Article 90 ................................................................................ 311
Section 2 — What Constitutes Community

Property
Article 91 ................................................................................ 313
Article 92 ................................................................................ 313
Article 93 ................................................................................ 313

of the Absolute Community
Article 94 ................................................................................ 314
Article 95 ................................................................................ 316
Section 4 — Ownership, Administration,

Enjoyment and Disposition of the
Community Property
Article 96 ................................................................................ 318
Article 97 ................................................................................ 318
Article 98 ................................................................................ 318
Section 5 — Dissolution of Absolute

Community Regime
Article 99 ................................................................................ 320
Article 100 ................................................................................ 320
Article 101 ................................................................................ 321
Section 6 — Liquidation of the Absolute

Community Assets and Liabilities
Article 102 ................................................................................ 322

Article 103 ................................................................................ 323
Article 104 ................................................................................ 324
Chapter 4 — CONJUGAL PARTNERSHIP

OF GAINS
Article 105 ................................................................................ 327

Article 106 ................................................................................ 327
Article 107 ................................................................................ 327
Article 108 ................................................................................ 327
Section 2 — Exclusive Property of Each Spouse
Article 109 ................................................................................ 329
xix
Article 110 ................................................................................ 329
Article 111 ................................................................................ 330
Article 112 ................................................................................ 330
Article 113 ................................................................................ 330
Article 114 ................................................................................ 330
Article 115 ................................................................................ 330
Section 3 — Conjugal Partnership

Property
Article 116 ................................................................................ 331

Article 117 ................................................................................ 331
Article 118 ................................................................................ 332
Article 119 ................................................................................ 332
Article 120 ................................................................................ 332

Article 121 ................................................................................ 338

Article 122 ................................................................................ 339
Article 123 ................................................................................ 340

Partnership Property
Article 124 ................................................................................ 343

Article 125 ................................................................................ 343
Section 6 — Dissolution of Conjugal

Partnership Regime
Article 126 ................................................................................ 347

Article 127 ................................................................................ 347
Article 128 ................................................................................ 348

Partnership Assets and Liabilities
Article 129 ................................................................................ 349

Article 130 ................................................................................ 350
Article 131 ................................................................................ 351
Article 132 ................................................................................ 351
Article 133 ................................................................................ 351
xx
Chapter 5 — SEPARATION OF PROPERTY
OF THE SPOUSES AND ADMINISTRATION
OF COMMON PROPERTY BY ONE SPOUSE
DURING THE MARRIAGE
Article 134 ................................................................................ 353

Article 135 ................................................................................ 353
Article 136 ................................................................................ 354
Article 137 ................................................................................ 354
Article 138 ................................................................................ 354
Article 139 ................................................................................ 354
Article 140 ................................................................................ 354
Article 141 ................................................................................ 355
Article 142 ................................................................................ 355
Chapter 6 — REGIME OF SEPARATION

OF PROPERTY
Article 143 ................................................................................ 357

Article 144 ................................................................................ 357
Article 145 ................................................................................ 357
Article 146 ................................................................................ 358
Chapter 7 — PROPERTY REGIME OF

UNIONS WITHOUT MARRIAGE
Article 147 ................................................................................ 359

Article 148 ................................................................................ 359
TITLE V — THE FAMILY
Chapter 1 — THE FAMILY AS AN

INSTITUTION
Article 149 ................................................................................ 364

Article 150 ................................................................................ 364
Article 151 ................................................................................ 364
Chapter 2 — THE FAMILY HOME
Article 152 ................................................................................ 367

Article 153 ................................................................................ 367
Article 154 ................................................................................ 367
Article 155 ................................................................................ 368
Article 156 ................................................................................ 368
Article 157 ................................................................................ 368
Article 158 ................................................................................ 369
Article 159 ................................................................................ 369
xxi
Article 160 ................................................................................ 369
Article 161 ................................................................................ 369
Article 162 ................................................................................ 370
TITLE VI — PATERNITY AND FILIATION
Chapter 1 — LEGITIMATE CHILDREN
Article 163 ................................................................................ 374

Article 164 ................................................................................ 374
Article 165 ................................................................................ 374
Article 166 ................................................................................ 374
Article 167 ................................................................................ 375
Article 168 ................................................................................ 375
Article 169 ................................................................................ 375
Article 170 ................................................................................ 375
Article 171 ................................................................................ 376
Chapter 2 — PROOF OF FILIATION
Article 172 ................................................................................ 383

Article 173 ................................................................................ 384
Article 174 ................................................................................ 386
Chapter 3 — ILLEGITIMATE CHILDREN
Article 175 ................................................................................ 386

Article 176 ................................................................................ 387
Chapter 4 — LEGITIMATED CHILDREN
Article 177 ................................................................................ 397

Article 178 ................................................................................ 397
Article 179 ................................................................................ 398
Article 180 ................................................................................ 398
Article 181 ................................................................................ 398
Article 182 ................................................................................ 398
TITLE VII — ADOPTION
Article 183 ................................................................................ 399

Article 184 ................................................................................ 400
Article 185 ................................................................................ 400
Article 186 ................................................................................ 400
Article 187 ................................................................................ 401
Article 188 ................................................................................ 401
Article 189 ................................................................................ 404
Article 190 ................................................................................ 405
xxii
Article 191 ................................................................................ 409
Article 192 ................................................................................ 409
Article 193 ................................................................................ 409
TITLE VIII — SUPPORT
Article 194 ................................................................................ 418

Article 195 ................................................................................ 418
Article 196 ................................................................................ 419
Article 197 ................................................................................ 419
Article 198 ................................................................................ 419
Article 199 ................................................................................ 419
Article 200 ................................................................................ 420
Article 201 ................................................................................ 421
Article 202 ................................................................................ 421
Article 203 ................................................................................ 421
Article 204 ................................................................................ 422
Article 205 ................................................................................ 422
Article 206 ................................................................................ 422
Article 207 ................................................................................ 422
Article 208 ................................................................................ 422
TITLE IX — PARENTAL AUTHORITY
Article 209 ................................................................................ 425

Article 210 ................................................................................ 425
Article 211 ................................................................................ 425
Article 212 ................................................................................ 425
Article 213 ................................................................................ 425
Article 214 ................................................................................ 426
Article 215 ................................................................................ 426
Chapter 2 — SUBSTITUTE AND SPECIAL

PARENTAL AUTHORITY
Article 216 ................................................................................ 429

Article 217 ................................................................................ 429
Article 218 ................................................................................ 429
Article 219 ................................................................................ 430

AUTHORITY UPON THE PERSONS
OF THE CHILDREN
Article 220 ................................................................................ 436

Article 221 ................................................................................ 437
xxiii
Article 222 ................................................................................ 437
Article 223 ................................................................................ 437
Article 224 ................................................................................ 438

AUTHORITY UPON THE PROPERTY
OF THE CHILDREN
Article 225 ................................................................................ 439

Article 226 ................................................................................ 440
Article 227 ................................................................................ 440
Chapter 5 — SUSPENSION OR
TERMINATION OF PARENTAL AUTHORITY
Article 228 ................................................................................ 441

Article 229 ................................................................................ 442
Article 230 ................................................................................ 442
Article 231 ................................................................................ 442
Article 232 ................................................................................ 443
Article 233 ................................................................................ 443
TITLE X — EMANCIPATION AND AGE

OF MAJORITY
Article 234 ................................................................................ 444

Article 235 ................................................................................ 444
Article 236 ................................................................................ 444
Article 237 ................................................................................ 444
TITLE XI — SUMMARY JUDICIAL

PROCEEDINGS IN THE FAMILY LAW
Chapter 1 — SCOPE OF APPLICATION
Article 238 ................................................................................ 449
Chapter 2 — SEPARATION IN FACT

Article 239 ................................................................................ 450

Article 240 ................................................................................ 450
Article 241 ................................................................................ 450
Article 242 ................................................................................ 450
Article 243 ................................................................................ 450
Article 244 ................................................................................ 451
xxiv
Article 245 ................................................................................ 451
Article 246 ................................................................................ 451
Article 247 ................................................................................ 451
Article 248 ................................................................................ 451
Chapter 3 — INCIDENTS INVOLVING

PARENTAL AUTHORITY
Article 249 ................................................................................ 452

Article 250 ................................................................................ 453
Article 251 ................................................................................ 453
Article 252 ................................................................................ 453
Chapter 4 — OTHER MATTERS SUBJECT TO

SUMMARY PROCEEDINGS
Article 253 ................................................................................ 453
TITLE XII — FINAL PROVISIONS
Article 254 ................................................................................ 456

Article 255 ................................................................................ 456
Article 256 ................................................................................ 456
Article 257 ................................................................................ 456
APPENDICES
APPENDIX A — REPUBLIC ACT NO. 8171

An Act Providing for the Repatriation of
Filipino Women who have Lost their
Philippine Citizenship by Marriage to
Aliens and of Natural-Born Filipinos
Section 1 ................................................................................ 463

Section 2 ................................................................................ 463
Section 3 ................................................................................ 463
Section 4 ................................................................................ 463
xxv
APPENDIX B — REPUBLIC ACT NO. 9048
An Act Authorizing the City of Municipal
Civil Registrar or the Consul General to
Correct a Clerical or Typographical Error in
an Entry and/or Change of First Name or
Nickname in the Civil Register without Need
of a Judicial Order, Amending for this Purpose
Articles 376 and 412 of the Civil Code
of the Philippines
Section 1. Authority to Correct Clerical or Typographical

Error and Change of First Name or Nickname .......... 464
Section 2. Definition of Terms ................................................ 464
Section 3. Who may file the Petition and Where ................. 465
Section 4. Grounds for Change of First Name
or Nickname .................................................................... 465
Section 5. Form and Contents of the Petition ...................... 466
Section 6. Duties of the City or Municipal Civil
Registrar or the Consul General .................................. 466
Section 7. Duties and Powers of the Civil
Registrar General ........................................................... 466
Section 8. Payment of Fees ..................................................... 467
Section 9. Penalty Clause ....................................................... 467
Section 10. Implementing Rules and Regulations ................ 467
Section 11. Retroactivity Clause ............................................ 468
Section 12. Separability Clause .............................................. 468
Section 13. Repealing Clause ................................................. 468
Section 14. Effectivity Clause ................................................. 468
APPENDIX C — REPUBLIC ACT NO. 8552

(DOMESTIC ADOPTION ACT OF 1995)
An Act Establishing the Rules and Policies
on the Domestic Adoption of Filipino
Children and for Other Purposes
ARTICLE I — GENERAL PROVISIONS
Section 1. Short title ................................................................ 469

Section 2. Declaration of Policies ........................................... 469
ARTICLE II — PRE-ADOPTION SERVICES
Section 4. Counselling Services .............................................. 471

Section 5. Location of Unknown Parent(s) ............................ 472
Section 6. Support Services .................................................... 472
xxvi
ARTICLE III — ELIGIBILITY
Section 7. Who may adopt ...................................................... 472

Section 8. Who may be adopted ............................................. 473
Section 9. Whose consent is necessary to the adoption ...... 473
ARTICLE IV — PROCEDURE
Section 10. Hurried decisions ................................................. 474

Section 11. Case study ............................................................. 474
Section 12. Supervised trial custody ...................................... 474
Section 13. Degree of adoption ............................................... 475
Section 14. Civil Registry Record ........................................... 475
Section 15. Confidential Nature of Proceedings
and Records ..................................................................... 475
ARTICLE V — EFFECTS OF ADOPTION
Section 16. Parental Authority ............................................... 475

Section 17. Legitimacy ............................................................ 475
Section 18. Succession ............................................................. 476
ARTICLE VI — RESCISSION OF ADOPTION
Section 19. Grounds for Rescission of Adoption ................... 476

Section 20. Effects of Rescission ............................................ 476
ARTICLE VII — VIOLATIONS AND

PENALTIES
Section 21. Violations and Penalties ...................................... 476

Section 22. Rectification of simulated births ........................ 478
ARTICLE VIII — FINAL PROVISIONS
Section 23. Adoption resources and referral office ............... 478

Section 24. Implementing rules and regulations .................. 478
Section 25. Appropriations ...................................................... 478
Section 26. Repealing clause .................................................. 478
Section 27. Separability clause ............................................... 479
Section 28. Effectivity clause .................................................. 479
xxvii
APPENDIX D — REPUBLIC ACT NO. 8043
(INTER-COUNTRY ADOPTION ACT OF 1995)
An Act Establishing the Rules to Govern
Inter-Country Adoption of Filipino
Children, and for Other Purposes
ARTICLE I — GENERAL PROVISIONS
Section 1. Short title ................................................................ 480

Section 2. Declaration of Policy .............................................. 480
ARTICLE II — THE INTER-COUNTRY

ADOPTION BOARD
Section 4. The Inter-country Adoption Board ....................... 481

Section 5. Composition of the Board ...................................... 482
Section 6. Powers and Functions of the Board ..................... 482
ARTICLE III — PROCEDURE
Section 7. Inter-country Adoption as the Last Resort ......... 483

Section 8. Who may be adopted ............................................. 483
Section 9. Who may adopt ...................................................... 483
Section 10. Where to file application ..................................... 484
Section 11. Family Selection/Matching .................................. 485
Section 12. Pre-adoptive Placement Costs ............................ 485
Section 13. Fees, Charges and Assessments ......................... 485
Section 14. Supervision of Trial Custody .............................. 485
Section 15. Executive Agreement ........................................... 486
ARTICLE IV — PENALTIES
Section 16. Penalties ............................................................... 486

Section 17. Public Officers as Offenders ............................... 487
ARTICLE V — FINAL PROVISIONS
Section 18. Implementing Rules and Regulations ................ 487

Section 19. Appropriations ...................................................... 487
Section 20. Separability clause ............................................... 487
Section 21. Repealing clause .................................................. 487
Section 22. Effectivity clause .................................................. 487
xxviii
APPENDIX E — PRESIDENTIAL DECREE
NO. 1083 (MUSLIM CODE)
A Decree to Ordain and Promulgate a Code
Recognizing the System of Filipino Muslim
Laws, Codifying Muslim Personal Laws,
and Providing for Its Administration
and for Other Purposes
BOOK ONE — GENERAL PROVISIONS
TITLE I — TITLE AND PURPOSES OF CODE
Article 1. Title .......................................................................... 489

Article 2. Purposes of Code ..................................................... 489
TITLE II — CONSTRUCTION OF CODE

AND DEFINITION OF TERMS
Article 3. Conflict of provisions .............................................. 489

Article 4. Construction and interpretation ........................... 489
Article 5. Proof of Muslim law and ‘ada’ ............................... 490
Article 6. Conflict in Islamic schools of law .......................... 490
Article 7. Definition of terms .................................................. 490
BOOK TWO — PERSONS AND FAMILY

RELATIONS
TITLE I — CIVIL PERSONALITY

(SHAKSHIYAH MADANIYA)
Article 8. Legal capacity .......................................................... 490

Article 9. Restrictions on capacity ......................................... 491
Article 10. Personality, how acquired .................................... 491
Article 11. Extinction of personality ...................................... 491
Article 12. Simultaneous death .............................................. 491
TITLE II — MARRIAGE AND DIVORCE
Chapter 1 — APPLICABILITY CLAUSE
Article 13. Application ............................................................. 491
Chapter 2 — MARRIAGE (NIKAH)
Section 1 — Requisites of Marriage
Article 14. Nature .................................................................... 492
xxix
Article 15. Essential requisites .............................................. 492
Article 16. Capacity to contract marriage ............................. 492
Article 17. Marriage ceremony ............................................... 492
Article 18. Authority to solemnize marriage ......................... 493
Article 19. Place of solemnization .......................................... 493
Article 20. Specification of dower ........................................... 493
Article 21. Payment of dower ................................................. 493
Article 22. Breach of contract ................................................. 493
Section 2 — Prohibited Marriages
Article 23. Bases of prohibition .............................................. 493

Article 24. Prohibition by consanguinity
(tahrim-bin-nasab) ......................................................... 494
Article 25. Prohibition by affinity
(tahrim-bil-musahara) ................................................... 494
Article 26. Prohibition due to fosterage
(tahrim-bir-rada’a) .......................................................... 494
Section 3 — Subsequent Marriages
Article 27. By a husband ......................................................... 494

Article 28. By widow ................................................................ 494
Article 29. By divorce .............................................................. 494
Article 30. Marriage after three talaq ................................... 495
Section 4 — Batil and Fasid Marriages
Article 31. Batil marriages ..................................................... 495

Article 32. Fasid marriages .................................................... 495
Article 33. Validation by irregular marriages ....................... 495
Section 5 — Rights and Obligations Between

Spouses
Article 34. Mutual rights and obligations ............................. 496

Article 35. Rights and obligations of the husband ............... 496
Article 36. Rights and obligations of the wife ...................... 496
Section 6 — Property Relations Between

Spouses
Article 37. How governed ........................................................ 497

Article 38. Regime of property regulations ........................... 497
Article 39. Stipulations in the marriage settlements .......... 497
Article 40. Ante-nuptial property ........................................... 497
Article 41. Exclusive property of each spouse ...................... 497
Article 42. Ownership and administration ........................... 498
xxx
Article 43. Household property .............................................. 498
Article 44. Right to sue and be sued ..................................... 498
Chapter 3 — DIVORCE (TALAQ)
Section 1 — Nature and Form
Article 45. Definition and Forms ........................................... 498

Article 46. Divorce by Talaq ................................................... 499
Article 47. Divorce by ila ........................................................ 499
Article 48. Divorce by zihar .................................................... 499
Article 49. Divorce by li’an ..................................................... 499
Article 50. Divorce by khul’ .................................................... 499
Article 51. Divorce by Tafwid ................................................. 499
Article 52. Divorce by faskh ................................................... 500
Article 53. Faskh on the ground of unusual cruelty ............ 500
Article 54. Effects of irrevocable talaq or faskh ................... 500
Article 55. Effects of other kinds of divorce .......................... 501
Section 2 — ‘Idda
Article 56. ‘Idda defined .......................................................... 501

Article 57. Period ..................................................................... 501
TITLE III — PATERNITY AND FILIATION
Article 58. Legitimacy, how established ................................ 501

Article 59. Legitimate children .............................................. 501
Article 60. Children of subsequent marriage ........................ 502
Article 61. Pregnancy after dissolution ................................. 502
Article 62. Rights of legitimate child ..................................... 502
Article 63. Acknowledgment by father .................................. 502
Article 64. Adoption ................................................................. 502
TITLE IV — SUPPORT (NAFAQA)
Article 65. Support defined ..................................................... 502

Article 66. Amount ................................................................... 502
Article 67. Support for wife and infant ................................. 503
Article 68. Support between ascendants
and descendants ............................................................. 503
Article 69. Payment ................................................................. 503
Article 70. Extinguishment of support .................................. 503
TITLE V — PARENTAL AUTHORITY
Chapter 1 — NATURE AND EFFECTS
Article 71. Who exercises ........................................................ 503
xxxi
Article 72. Duty to parents ..................................................... 504
Article 73. Duty to children .................................................... 504
Article 74. Effects upon person of children ........................... 504
Article 75. Effects upon property of children ........................ 504
Article 76. Parental authority non-transferable ................... 504
Article 77. Extinguishment of parental authority ................ 504
Chapter 2 — CUSTODY AND GUARDIANSHIP
Article 78. Care and custody .................................................. 505

Article 79. Guardian for marriage (wali) .............................. 505
Article 80. Guardian of minor’s property .............................. 505
TITLE VI — CIVIL REGISTRY
Chapter 1 — REGISTRY OF MARRIAGE,

DIVORCE AND CONVERSIONS
Article 81. District Registrar .................................................. 505

Article 82. Duties of District Registrar ................................. 506
Article 83. Duties of Circuit Registrar .................................. 506
Article 84. Cancellation or correction of entry ..................... 506
Article 85. Registration of revocation of divorce .................. 506
Article 86. Legal effects of Registration ................................ 506
Article 87. Applicability of other civil registry law .............. 507
Chapter 2 — OTHER ACTS AFFECTING

CIVIL STATUS
Article 88. Where registered ................................................... 507
BOOK THREE — SUCCESSION
TITLE I — GENERAL PROVISIONS
Article 89. Succession defined ................................................ 507

Article 90. Successional rights, when vested ........................ 507
Article 91. Requisites of succession ....................................... 507
Article 92. Inheritance (Mirath) ............................................. 507
Article 93. Disqualifications to succession ............................ 507
Article 94. Succession from acknowledging person .............. 508
Article 95. Succession by illegitimate child .......................... 508
Article 96. Succession between divorced persons ................. 508
Article 97. Succession by conceived child .............................. 508
Article 98. Succession by absentee ......................................... 508
Article 99. Order of succession ............................................... 508
Article 100. Modes of succession ............................................ 509
xxxii
TITLE II — TESTAMENTARY SUCCESSION
Chapter 1 — WILLS
Article 101. Will defined ......................................................... 509

Article 102. Formalities ........................................................... 509
Article 103. Proof of will ......................................................... 509
Article 104. Testamentary warf .............................................. 509
Article 105. Capacity to make a will ..................................... 509
Article 106. Disposable third .................................................. 509
Article 107. Bequest by operation of law .............................. 510
Article 108. Revocation of will ................................................ 510
Article 109. Partial invalidity of will ..................................... 510
TITLE III — LEGAL SUCCESSION
Chapter 1 — SHARERS
Article 110. Who are sharers .................................................. 510

Article 111. Share of surviving husband ............................... 510
Article 112. Share of surviving wife ...................................... 510
Article 113. Share of surviving father ................................... 510
Article 114. Share of surviving mother ................................. 511
Article 115. Share of paternal grandfather ........................... 511
Article 116. Share of paternal grandmother ......................... 511
Article 117. Share of surviving daughter .............................. 511
Article 118. Share of son’s daughter ...................................... 511
Article 119. Share of full sister .............................................. 511
Article 120. Share of consanguine sister ............................... 511
Article 121. Share of uterine brother or sister ..................... 511
Article 122. Participation of full brother ............................... 512
Article 123. Exclusion among heirs ....................................... 512
Chapter 2 — RESIDUARY HEIRS
Article 124. Residuaries .......................................................... 512

Article 125. Residuaries in their own right .......................... 512
Article 126. Residuaries in another’s right ........................... 513
Article 127. Residuaries together with another ................... 513
Article 128. Preference among residuaries ........................... 513
Article 129. Reduction of shares ............................................ 513
Article 130. Reversion of residue ........................................... 513
Chapter 3 — DISTANT KINDRED

(DHAW-UL-ARHAM)
Article 131. Relatives Included .............................................. 513

Article 132. Extent and distribution of shares ..................... 514
xxxiii
TITLE IV — SETTLEMENT AND PARTITION
OF ESTATE
Article 133. Administration .................................................... 514

Article 134. Governing school of law ..................................... 514
Article 135. Order of preference of claims ............................ 514
Article 136. Liability of heirs .................................................. 514
BOOK FOUR — ADJUDICATION AND

SETTLEMENT OF DISPUTES AND
RENDITION OF LEGAL OPINIONS
TITLE I — THE SHARI’A COURTS
Article 137. Creation ............................................................... 515
Chapter 1 — SHARI’A DISTRICT COURTS
Article 138. Shari’a judicial districts ..................................... 515

Article 139. Appointment of judges ........................................ 515
Article 140. Qualifications ...................................................... 515
Article 141. Tenure .................................................................. 515
Article 142. Compensation ...................................................... 516
Article 143. Original jurisdiction ........................................... 516
Article 144. Appellate jurisdiction ......................................... 516
Article 145. Finality of decisions ............................................ 517
Article 146. Clerks and other subordinate employees ......... 517
Article 147. Permanent stations; offices ................................ 517
Article 148. Special procedure ................................................ 517
Article 149. Applicability of other laws ................................. 517
Chapter 2 — SHARI’A CIRCUIT COURTS
Article 150. Where establish ................................................... 517

Article 151. Appointment of judges ........................................ 518
Article 153. Tenure .................................................................. 518
Article 155. Jurisdiction .......................................................... 518
Article 156. Clerks and other subordinate employees ......... 519
Article 157. Place of sessions; stations .................................. 519
Article 158. Special Procedure ................................................ 519
Article 159. Applicability of other laws ................................. 519
TITLE II — THE AGAMA ARBITRATION

COUNCIL
Article 160. Constitution ......................................................... 519
xxxiv
Article 161. Divorce by talaq and tafwid ............................... 519
Article 162. Subsequent marriages ........................................ 520
Article 163. Offenses against customary law ........................ 520
TITLE III — JURISCONSULT IN ISLAMIC

LAW
Article 164. Creation of office and appointment ................... 520

Article 166. Functions ............................................................. 520
Article 168. Office personnel .................................................. 521
BOOK FIVE — MISCELLANEOUS AND

TRANSITORY PROVISIONS
TITLE I — MUSLIM HOLIDAYS
Article 169. Official Muslim Holidays ................................... 521

Article 170. Provinces and cities where
officially observed ........................................................... 521
Article 171. Dates of observance ............................................ 521
Article 172. Observance of Muslim employees ..................... 521
TITLE II — COMMUNAL PROPERTY
Article 173. What constitute ................................................... 522

Article 174. Administration or disposition ............................ 522
TITLE III — CUSTOMARY CONTRACTS
Article 175. How construed ..................................................... 522
TITLE IV –– CONVERSIONS
Article 176. Effect of registration of conversion

to Islam ........................................................................... 522
Article 177. Regulation on conversion ................................... 523
Article 178. Effect of conversion to Islam
on marriage ..................................................................... 523
Article 179. Effect of change of religion ................................ 523
TITLE V — PENAL PROVISIONS
Chapter 1 — RULE ON BIGAMY
Article 180. Law applicable .................................................... 523
xxxv
Chapter 2 — SPECIFIC OFFENSES
Article 181. Illegal solemnization of marriage ..................... 523

Article 182. Marriage before expiration of Idda ................... 523
Article 183. Offenses relative to subsequent marriage,
divorce, and revocation of divorce ................................ 523
Article 184. Failure to report for registration ...................... 524
Article 185. Neglect of duty of registrars .............................. 524
TITLE VI — TRANSITORY AND FINAL

PROVISIONS
Article 186. Effect of Code on past acts ................................ 524

Article 187. Applicability clause ............................................. 524
Article 188. Separability clause ............................................. 524
Article 189. Repealing clause ................................................. 524
Article 190. Effectivity ............................................................ 524
APPENDIX F — A.M. No. 02-11-10-SC

Rule on Declaration of Absolute Nullity
of Void Marriages and Annulment
of Voidable Marriages
Section 1. Scope ...................................................................... 525

Section 2. Petition for declaration of absolute nullity
of void marriages ............................................................ 525
Section 3. Petition for annulment of voidable marriages ... 525
Section 4. Venue ...................................................................... 526
Section 5. Contents and form of petition ............................. 526
Section 6. Summons ............................................................... 527
Section 7. Motion to dismiss .................................................. 527
Section 8. Answer ................................................................... 527
Section 9. Investigation report of public prosecutor ........... 528
Section 10. Social worker ........................................................ 528
Section 11. Pre-Trial ................................................................ 528
Section 12. Contents of pre-trial brief ................................... 529
Section 13. Effect of failure to appear at the pre-trial ........ 529
Section 14. Pre-trial conference .............................................. 529
Section 15. Pre-trial order ...................................................... 530
Section 16. Prohibited compromise ........................................ 530
Section 17. Trial ....................................................................... 530
Section 18. Memoranda ........................................................... 531
Section 19. Decision ................................................................. 531
Section 20. Appeal .................................................................... 532
Section 21. Liquidation, partition and distribution,
custody, support of common children and
delivery of their presumptive legitimes ....................... 532
xxxvi
Section 22. Issuance of Decree of Declaration
of Absolute Nullity or Annulment of Marriage ........... 532
Section 23. Registration and publication of the decree;
decree as best evidence .................................................. 532
Section 24. Effect of death of a party; duty of
the Family Court or Appellate Court ........................... 533
Section 25. Effectivity .............................................................. 533
APPENDIX G — A.M. No. 02-11-11-SC

Rule on Legal Separation
Section 1. Scope ...................................................................... 534

Section 2. Petition .................................................................. 534
Section 3. Summons ............................................................... 535
Section 4. Motion to Dismiss ................................................. 536
Section 5. Answer ................................................................... 536
Section 6. Investigation Report of Public Prosecutor ......... 536
Section 7. Social Worker ........................................................ 536
Section 8. Pre-Trial ................................................................. 536
Section 9. Contents of pre-trial brief .................................... 537
Section 10. Effect of failure to appear at the pre-trial ........ 537
Section 11. Pre-Trial conference ............................................. 538
Section 12. Pre-Trial order ...................................................... 538
Section 13. Prohibited compromise ........................................ 538
Section 14. Trial ....................................................................... 539
Section 15. Memoranda ........................................................... 539
Section 16. Decision ................................................................. 539
Section 17. Appeal .................................................................... 540
Section 18. Liquidation, partition and distribution,
custody, and support of minor children ....................... 540
Section 19. Issuance of Decree of Legal Separation ............. 541
Section 20. Registration and publication
of the Decree of Legal Separation;
decree as best evidence .................................................. 541
Section 21. Effect of death of a party; duty of the Family
Court or Appellate Court ............................................... 541
Section 22. Petition for revocation of donations ................... 541
Section 23. Decree of Reconciliation ...................................... 542
Section 24. Revival of property regime
or adoption of another ................................................... 542
Section 25. Effectivity .............................................................. 543
xxxvii
APPENDIX H — A.M. No. 02-11-12-SC
Rule on Provisional Orders
Section 1. When Issued ........................................................... 544

Section 2. Spousal Support ..................................................... 544
Section 3. Child Support ......................................................... 545
Section 4. Child Custody ......................................................... 545
Section 5. Visitation Rights .................................................... 546
Section 6. Hold Departure Order ........................................... 546
Section 7. Order of Protection ................................................ 547
Section 8. Administration of Common Property ................... 547
Section 9. Effectivity ................................................................ 547
xxxviii
CIVIL LAW
By
JOSE C. VITUG, LL.B., LL.M., M.N.S.A.

Senior Professor, Philippine Judicial Academy
Formerly an Associate Justice of the Supreme Court
of the Philippines
Volume I
Second Edition
2006
Published & Distributed by
856 Nicanor Reyes, Sr. St.

Tel. Nos. 736-05-67 • 735-13-64
1977 C.M. Recto Avenue
Tel. Nos. 735-55-27 • 735-55-34
Manila, Philippines
i
www.rexinteractive.com
Philippine Copyright, 2006
by
JOSE C. VITUG
ISBN 978-971-23-4553-1
No portion of this book may be copied or

reproduced in books, pamphlets, outlines or
notes, whether printed, mimeographed, type-
written, copied in different electronic devices or
in any other form, for distribution or sale, with-
out the written permission of the author except
brief passages in books, articles, reviews, legal
papers, and judicial or other official proceedings
with proper citation.
Any copy of this book without the corres-

ponding number and the signature of the author
on this page either proceeds from an illegitimate
source or is in possession of one who has no
authority to dispose of the same.
ALL RIGHTS RESERVED

BY THE AUTHOR
No. ____________
ISBN 978-971-23-4553-1
Printed by
84 P. Florentino St., Quezon City

Tel. Nos. 712-41-08ii• 712-41-01
1
CIVIL LAW
INTRODUCTORY CHAPTER
In its generic sense, civil law is understood to be

that branch of law governing the relationship of persons
in respect of their personal and private interests. Civil
law in the Philippine setting is closely identified with the
Civil Code of the Philippines. Thus viewed, civil law may
be defined as being that part of private law governing
human and family relations; private property, ownership
and its incidents; and contractual and non-contractual
private obligations.
Civil Law and Common Law Distinguished

In theory at least, sharp distinctions may be said to
exist between the Civil Law and Common Law systems.
Civil law is often referred to as statutory law and common
law as judge-made law. In point of fact, however, written
laws have been known to exist in England and in the
countries where the law of England is widely adopted
even well before the start of codifications in most of
continental Europe. Much of the Anglo-American law is,
in reality, contained in statutes or in codes.
Again, there is, supposedly, greater adherence by
common law courts than civil law courts to judicial
precedents that so evolve as law until the legislature
deems it fit to change the norms set by the courts.
Whereas, in civil law, courts officially are free to adjudge
each legal issue regardless of how other courts have
therefore resolved the application of the law; in practice,
however, the role of stare decisis has discernibly been the
1
2 CIVIL LAW
The Civil Code of the Philippines
same in both systems. Common law courts, on the one

hand, have often deviated from an otherwise strict
observance of judicial precedents by a rather expedient
justification that “no two cases are alike,’’ and civil courts,
on the other hand, have shown an inclination towards a
respect for precedents for doctrinal consistence and
stability.
The real distinction, in actuality, seems to lie on how
the systems would initially react or respond to a changing
milieu. In common law countries, the traditional
responsibility has for the most part been with the judges;
in civil law countries, the task is primarily reposed on the
lawmakers. Contemporary practices, however, indicate a
trend towards centralizing that function to professional
groups that may, indeed, see the gradual assimilation in
time of both systems.
The Philippine legal system is a mixture of civil law
and common law. The strong influence of civil law brought
about by the four centuries of Spanish domination is still
reflected in the strict adherence to statute law. So, also,
however, the extensive infusion of common law into the
system has resulted in the recognition of common law
powers to judges and a statutory mandate that their
decisions form part of the law of the land (Article 8, Civil
Code). Common law has thus been the expression, after
the implantation of American sovereignty in the Islands,
that Philippine courts are not only courts of law but also
courts of equity (U.S. vs. Tamparong, 31 Phil. 321; Rustia
vs. Franco, 41 Phil. 280; Asian vs. Jalandoni, 45 Phil.
296; Alonzo vs. Padua, 150 SCRA 259).
Civil Code of the Philippines

The Civil Code of the Philippines, which took effect
on 30 August 1950 (Lara vs. del Rosario, 94 Phil. 778),
was mostly patterned after and primarily based on the
Civil Code of Spain, made effective in the country on 08
December 1889 (Mijares vs. Neri, 3 Phil. 195), which, in
turn, was in many parts the Code Napoleon.
INTRODUCTORY CHAPTER 3
The Civil Code covers a preliminary title (Effect and

Application of Laws and Human Relations) and four books,
i.e., Book I — Persons; Book II — Property, Ownership,
and its Modifications; Book III — Different Modes of
Acquiring Ownership and Book IV — Obligations and
Contracts, including titles on Extra-Contractual
Obligations (basically, quasi-contracts and quasi-delict),
Damages and Concurrence and Preference of Credits.
The Family Code of the Philippines

The Family Code of the Philippines (Executive Order
No. 209, issued on 6 July 1987, as amended by Executive
Order No. 227 of 17 July 1987), made effective on 3 August
1988, has introduced significant changes on the 1950
Civil Code provisions governing marriages, the personal
and property relations of the spouses, paternity and
filiation, adoption and, in general, the rights and duties
appurtenant to family relations.
4 CIVIL LAW
THE CIVIL CODE OF THE PHILIPPINES
PRELIMINARY TITLE
Chapter 1
Effect and Application of Laws
Article 1. This Act shall be known as the “Civil

Code of the Philippines.” (n)
Art. 2. Laws shall take effect after fifteen days
following the completion of their publication either in
the Official Gazette, or in a newspaper of general
circulation in the Philippines unless it is otherwise
provided. (As amended by E.O. 200)
Art. 3. Ignorance of the law excuses no one from
compliance therewith. (2)
Art. 4. Laws shall have no retroactive effect, unless
the contrary is provided. (3)
Art. 5. Acts executed against the provisions of
mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity. (4a)
Art. 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or
good customs or prejudicial to a third person with a
right recognized by law. (4a)
Art. 7. Laws are repealed only by subsequent ones,
and their violation or non-observance shall not be
excused by disuse, or custom or practice to the
contrary.
When the courts declare a law to be inconsistent
with the Constitution, the former shall be void and the
latter shall govern.
4
Arts. 8-16 PRELIMINARY TITLE 5
Administrative or executive acts, orders and regu-

lations shall be valid only when they are not contrary
to the laws or the Constitution. (5a)
Art. 8. Judicial decisions applying or interpreting
the laws or the Constitution shall form a part of the
legal system of the Philippines. (n)
Art. 9. No judge or court shall decline to render
judgment by reason of the silence, obscurity or insuffi-
ciency of the laws. (6)
Art. 10. In case of doubt in the interpretation or
application of laws, it is presumed that the lawmaking
body intended right and justice to prevail. (n)
Art. 11. Customs which are contrary to law, public
order, or public policy shall not be countenanced. (n)
Art. 12. A custom must be proved as a fact, ac-
cording to the rules of evidence. (n)
Art. 13. When the laws speak of years, months, days
or nights, it shall be understood that years are of three
hundred sixty-five days each; months, of thirty days;
days, of twenty-four hours; and nights, from sunset to
sunrise.
If months are designated by their name, they shall
be computed by the number of days which they re-
spectively have.
In computing a period, the first day shall be ex-
cluded, and the last day included. (7a)
Art. 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn in
Philippine territory, subject to the principles of public
international law and to treaty stipulations. (8a)
Art. 15. Laws relating to family rights and duties,
or to the status, condition and legal capacity of per-
sons are binding upon citizens of the Philippines, even
though living abroad. (9a)
Art. 16. Real property as well as personal property
is subject to the law of the country where it is situated.
However, intestate and testamentary successions,
both with respect to the order of succession and to the
6 CIVIL LAW Arts. 1-18
amount of successional rights and to the intrinsic va-

lidity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of
the property and regardless of the country wherein
said property may be found. (10a)
Art. 17. The forms and solemnities of contracts,
wills, and other public instruments shall be governed
by the laws of the country in which they are executed.
When the acts referred to are executed before the
diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities estab-
lished by Philippine laws shall be observed in their
execution.
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a
foreign country. (11a)
Art. 18. In matters which are governed by the Code
of Commerce and special laws, their deficiency shall
be supplied by the provisions of this Code. (16a)
1. Sources and Application of Laws

The sources of laws, in the following order of prepon-
derant application, include: (a) the Constitution of the
Philippines; (b) statutory enactments; (c) administrative
or executive acts, orders and regulations; (d) judicial de-
cisions; and (e) customs when proven and not contrary to
law, public order or public policy (see Arts. 2-12, Civil
Code; see also Chartered Bank Employees Association vs.
Ople, 138 SCRA 273; Floresca vs. Philex Mining Corpora-
tion, 136 SCRA 141).
In the Philippines, while specific rules on how to
resolve conflicts between a treaty law and an act of
Congress, whether made prior or subsequent to its
execution, have yet to be succinctly defined, the estab-
lished pattern, however, would show a leaning towards

the dualist model. The Constitution exemplified by its
incorporation clause. (Article II, Section 2), as well as
statutes such as those found in some provisions of the
Civil Code and of the Revised Penal Code, would exhibit
a remarkable textual commitment towards “internalizing’’
international law. The Supreme Court itself has recog-
nized that “the principle of international law’’ are deemed
part of the law of the land as a condition and as a conse-
quence of our admission in the society of nations.
The principle being that treaties create rights and
duties only for those who are parties thereto – pacta tertiis
nec nocre nec prodesse possunt – it is considered necessary
to transform a treaty into a national law in order to make
it binding upon affected state organs, like the courts, and
private individuals who could, otherwise, be seen as non-
parties. The US-RP Extradition Treaty in particular
undoubtedly affects not only state organs but also private
individuals as well. It is said that, in treaties of this nature,
it should behoove the state to undertake or adopt the
necessary steps to make the treaty binding upon said
subjects either by incorporation or transformation. Article
2, Section 2, of the 1987 Philippine Constitution provides
for an adherence to general principles of international law
as part of the law of the land. One of these principles is
the basic rule of pacta sunt servanda or the performance
in good faith of a state’s treaty obligations. Pacta sunt
servanda is the foundation of all coventional international
law, for without it, the superstructure of treaties, both
bilateral and multilateral, which comprise a great part of
international law, could well be inconsequential. Existing
legislation contrary to the provisions of the treaty becomes
invalid, but legislation is necessary to put the treaty into
effect. The constitutional requirement that the treaty be
concurred in by no less than two-thirds of all members of
the Senate (Article 21, Article VII) is, for legal intent and
purposes, an equivalent to the required transformation
of treaty law into municipal law.
In preserving harmony between treaty law and

municipal law, it is submitted – 1) That treaty law has
the effect of amending, or even repealing an inconsistent
municipal statute, a later enactment being controlling, 2)
but that an inconsistent municipal statute subsequently
passed cannot modify treaty law, without the concurrence
of the other state party thereto, following the generally
accepted principle of pacta sunt servanda. As so observed
by Fenwick: Legislation passed, or administrative action
taken subsequent to the adoption of the treaty and in
violation of its provisions is invalid, but this should be
declared so by the appropriate agency of national
government. In like manner, in doubtful cases where the
national legislation or administrative ruling is open to
different interpretations, the courts of the state will give
the benefit of the doubt to the provisions of the treaty.
A treaty nevertheless, cannot override the Consti-
tution: in case of conflict, the Constitution must prevail.
When a controversy calls for a determination of the validity
of a treaty in the light of the Constitution, there is no
question but that the Constitution is given primary
consideration. The deference to the interpretation of the
national law by competent organs of a state, was exhibited
by the Permanent Court of International Justice in the
case of Serbian Loans where it held that the construction
given by the Highest Court of France on French law should
be followed. When a state, through its government,
concludes a treaty with another state, the government of
the latter has no reason and is not entitled to question
the constitutionality of the act of the former. But this rule
does not prevent the government of a state, after having
concluded a treaty with another state, from declaring the
treaty null and and void because it is made in violation of
its constitution.
Doctrine of Stare Decisis

The “doctrine of stare decisis,’’ ordained in Article 8
of the Civil Code, expresses that judicial decisions apply-
ing or interpreting the law shall form part of the legal

system of the Philippines. The rule follows the settled
legal maxim — “legis interpretado legis vim obtinet’’ —
that the interpretation placed upon the written law by a
competent court has the force of law. The interpretation
or construction placed by the courts establishes the con-
temporaneous legislative intent of the law. The latter as
so interpreted and construed would thus constitute a part
of that law as of the date the statute is enacted. It is only
when a prior ruling of this Court finds itself later over-
ruled, and a different view is adopted, that the new doc-
trine may have to be applied prospectively in favor of
parties who have relied on the old doctrine and have
acted in good faith in accordance therewith under the
familiar rule of “lex prospicit, non respicit.’’ (PESCA vs.
PESCA, G.R. No. 136921, 17 April 2001, 356 SCRA 588).
General Principles of Law; Role of Equity — Under
the 1889 Civil Code, courts have been mandated to apply,
in the absence of statutes and customs, the general prin-
ciples of law (Art. 6, Civil Code of 1889; Chu Jan vs.
Bernas, 34 Phil. 631). The omission or deletion of that
specific provision in the new code must not be deemed as
reversing that rule. General principles of law after all are
deduced from positive law (and in this sense, become
mere applications of positive law) or by natural law and
right.
Equity is broadly defined as being justice according
to natural law and right. Article 10 of the Civil Code
expresses that “in case of doubt in the interpretation or
application of laws, it is presumed that the lawmaking
body intended right and justice to prevail” (see also Art.
V, Sec. 2, Constitution; Floresca vs. Philex Mining Corpo-
ration, supra.). Aptly then, the real office of equity is to
correct the deficiency of, and to supplement, positive law
growing, as it so does, out of necessity; for the courts may
not “decline to render judgment by reason of the silence,
obscurity, or insufficiency of the laws” (Art. 9, Civil Code).
The courts will not apply equity if equity would not serve
the ends of justice. Neither can equity be invoked absent

a legal duty such as when there is but a mere moral
obligation that deserves no more than commiseration or
sympathy (Rural Bank of Parañaque vs. Remolado, 135
SCRA 409).
Supreme Court decisions, however, suggest a grow-
ing inclination in the application of equity. A quick glimpse
on some illustrative cases may be in point.
The Case
Republic vs. Court of Appeals (G.R. 79732, 8 Novem-
ber 1993) — The strict view considers a legislative enact-
ment which is declared unconstitutional as being, for all
legal intents and purposes, a total nullity, and it is deemed
as if it had never existed. It is not always the case, how-
ever, that a law is constitutionally faulty per se. Thus, it
may well be valid in its general import but invalid in its
application to certain factual situations. To exemplify, an
otherwise valid law may be held unconstitutional only
insofar as it is allowed to operate retrospectively such as,
in pertinent cases, when it vitiates contractually vested
rights. To that extent, its retroactive application may be
so declared invalid as impairing the obligations of con-
tracts.
A judicial declaration of invalidity, it is also true,
may not necessarily obliterate all the effects and conse-
quences of a void act occurring prior to such a declara-
tion. Thus, in the decisions on the moratorium laws, the
courts have been constrained to recognize the interim
effects of said laws prior to their declaration of
unconstitutionality, but there they have likewise been
unable to ignore strong considerations of equity and fair
play. So also, even as a practical matter, a situation that
may aptly be described as fait accompli the Supreme
Court added, may no longer be open for further inquiry,
let alone to be unsettled by a subsequent declaration of
nullity of a governing statute.
Observation
Indeed, the trend is no different in Common Law.
The Case
Carbonell vs. Court of Appeals (69 SCRA 99) — As a
matter of equity, a possessor in bad faith is entitled to
remove useful expenditures made by him, such as for the
construction of a bungalow, underground drainage and
walled fence, if the lawful possessor, on whose land the
construction and installation are made, fails to refund
the expenses therefor, applying by analogy the provisions
of Article 549 of the Civil Code on luxury expenditures.
Observation
The ruling appears to have ignored Article 449 of the
Code which explicitly states that he “who builds, plants,
or sows in bad faith on the land of another, loses what is
built, planted or sown without right to indemnity” (see
De Guzman vs. Rivera, 4 Phil. 620; Roman Catholic
Church vs. Ilocos Sur, 10 Phil. 1; Felices vs. Iriola, 103
Phil. 125). In the case of luxury or ornamental (not useful)
improvements, a right of removal is granted to the
possessor in bad faith (Art. 549, Civil Code).
The Case
New Pacific Timber and Supply Co. vs. Señeris (101
SCRA 686) — The object of certifying a check as regards
the parties is to enable the holder to use it as money.
When the holder procures the check to be certified, such
certification operates as an assignment of funds to the
creditor conformably with the proviso in Section 63 of the
Central Bank Act to the effect that a check cleared and
credited to the account of the creditor shall be equivalent
to delivery in cash. Thus, there is no justification in the
creditor’s refusing payment by a certified check (tendered
by the judgment debtor) and in the lower court’s proceed-
ing with its levy on execution.
Observation
It would seem that Section 63, aforecited, merely
refers to a situation where the payor and the payee both
have accounts with the certifying bank that could permit
an effectual transfer of funds (see also Sec. 188, Negotiable
Instruments Law). In any other situation, Article 1249 of
the Civil Code, in relation to Republic Act 529, as amended,
would permit the discharge of a money obligation only by
payment in legal tender, or in check or other mercantile
documents, if accepted by the creditor, upon their being
cashed or when through the fault of the creditor they are
impaired (Cuaycong vs. Rius, 47 O.G. 6125). Subsequent
decisions do reiterate that checks, whether cashier or
ordinary, are not legal tender (see Roman Catholic Church
vs. Court of Appeals, G.R. No. 72110, 16 November 1990;
Fortunato vs. Court of Appeals, 196 SCRA 769).
In Leticia Co. vs. Philippine National Bank (114
SCRA 842), the Court upheld a tender of a redemption
price in a manager’s check, on the ground that the
objection to the payment by check was waived when in its
letter of rejection, the creditor bank did not invoke the
objection. But the Supreme Court went beyond this
justification saying that “this Court had already
sanctioned redemption by check” citing Javellana vs.
Mirasol (40 Phil. 761) without adverting that, in Mirasol,
the same Court (op. cit., at p. 770) expressly conceded
that “it should go without saying that if he had seen it fit
to do so, the officer could have required payment to be
made in lawful money.”
The Case
Overseas Bank vs. Court of Appeals (105 SCRA 49) —
It is utterly unfair to require a bank not allowed to oper-
ate by the Central Bank to pay stipulated interest on
money deposited with it. Judicial notice may be taken of
the fact that what enables a bank to pay such interest is
its ability to generate funds from its authorized operations.
As a matter of equity, the situation can be denominated

as force majeure.
Observation
Fortuitous event, by itself, is not to be normally or
lightly taken as a mode of extinguishing an obligation
but it may trigger off or cause a valid mode that ordinarily
can excuse the obligor from an existing obligation. Thus,
in an obligation to give, if the thing is lost, or in an obliga-
tion to do, if the act or service becomes impossible or so
extremely difficult as to be beyond the contemplation of
the parties, due to a fortuitous event, the obligor’s
obligation may be extinguished. In the cited case, the
obligation is one to pay the stipulated interest, and the
object (money) of the obligation being generic, loss as a
mode of extinguishing an obligation would be inapplicable
under the principle genus nunquam perit (see Arts. 1262,
1263, 1266, 1267, 1173, 1174 of the Civil Code). In rather
strong language, the Supreme Court in LTB vs. Manabat
(58 SCRA 650) has declared that unforeseen difficulties
are not grounds for reneging upon a contract.
The Case
Hermanos vs. Saldana (55 SCRA 342) — In two
separate contracts for the sale of two lots in a subdivision
to the same buyer, who defaulted in both contracts but
where the total payment could cover one lot, the seller
was ordered to execute one absolute deed of sale to cover
one lot.
Observation
Contracts have the force of law between the con-
tracting parties, and they are bound not only to the
fulfillment of what might have been stipulated but also
to its consequences (Arts. 1159, 1315, Civil Code). A fail-
ure of due compliance by a party to a contract renders
him liable for causes attributable to him; upon the other
hand, if the non-fulfillment is brought about by circum-

stances beyond his control, then he may not be held re-
sponsible therefor (see Arts. 1170-1174, Civil Code). Cer-
tainly, courts may not substitute their own judgment for
that of the parties, and neither may the courts modify the
agreement of said parties without thereby violating,
among other principles, the rule on consensuality of con-
tracts.
The Case
Caram vs. Laureta (103 SCRA 7) — In a double sale
of the same registered land, the Supreme Court declared
one as valid and the other as void (as a matter of practical
justice and convenience) despite the absence of such dec-
laration of complete nullity by either Article 1409 or Arti-
cle 1544 of the Civil Code, in order, the Court said, to
define once and for all the rights of all parties concerned
and to cut off all rights under the contract declared void.
Observation
What then would be the remedy of the vendee under
the void contract? If it were not declared void, the buyer
of the defective sale would have had ample legal remedies
against the seller. Some of the statutory provisions that
could be invoked by said buyer include Article 1191 on
resolution of contracts, articles 1545 and 1553-1556 on
implied warranties in sales, and articles 1916-1917 on
agency, of the Civil Code. But why should these legal
remedies be “cut-off”?
The Case
J.M. Tuason vs. Court of Appeals (94 SCRA 413) —
One who purchases real property with knowledge of de-
fect or lack of title of the vendor or of facts that should
have put him to inquiry is not in good faith; and not being
so, the vendee is not entitled to warranty against eviction
nor to damages.
Observation
Mere knowledge by the vendee of the defect of title of
the vendor (who need not even have title at the time of
perfection of the contract) does not render the vendor’s
implied warranties to become ineffectual. Even a waiver
of eviction does not totally exempt the vendor from liabil-
ity and he would still have to account for the value of the
thing at the time of eviction (Art. 1554, Civil Code). It is
only a waiver with knowledge of the risk of eviction and
assumption of its consequences (intencionada, as distin-
guished from consciente) that may altogether exempt the
vendee from liability (Art. 1554, ibid.).
Equity Follows the Law

Early decisions of the Supreme Court closely ad-
hered to the “equity follows the law” maxim (Severino vs.
Severino, 44 Phil. 343; Labayan vs. Talisay Silay Milling
Co., 52 Phil. 445). The correct rule seems to be that where
conflict situations are well defined and capable of being
resolved by the application of legal principles, the latter
must not be permitted to be overridden by, or unsettled,
in equity. It is in this context that Article 10 of the Civil
Code should be understood when it expresses that “in
case of doubt in the interpretation and application of
laws, it is to be presumed that the lawmaking body in-
tended right and justice to prevail.” Doubt in this article
does not mean every uncertainty that may arise upon a
first reading of a legal provision; rather, it is to be under-
stood as an uncertainty that persists after thorough con-
sideration not only of one principle but also of all the
statutory rules and provisions taken together as parts of
an organic system, and a doubt that remains after ex-
haustive resort to all accepted precepts of statutory con-
struction and after careful inquiry into the legislative
policy that the applicable laws seek to subserve. Hence,
equitable principles must remain subordinate to positive
law (Teodoro vs. Court of Appeals, G.R. No. 46955, 27
February 1989), and should not be allowed to subvert it,
nor do they give to the Courts authority to make it possi-

ble for them to do so (see Am. Jur. 2d 645; Arsenal vs.
Intermediate Appellate Court, 143 SCRA 40). Equity
cannot supplant but may only supplement the law (see
Aguila vs. Court of First Instance, 160 SCRA 352).
It is the sworn duty of the judge to apply the law
without fear or favor — never to tamper with it according
to the judge’s personal inclination (Llamado vs. Court of
Appeals, G.R. No. 84850, 29 June 1989; Go vs. Anti-
Chinese League, 84 Phil. 468), for the courts are duty
bound to interpret and apply laws regardless of whether
or not they are wise and salutary (Quinto vs. Lacson, 97
Phil. 290). But where there is a doubt on the proper
application of the law, “that which saves rather than
destroys is to be preferred” (Borromeo vs. Court of Ap-
peals, 47 SCRA 65), and practical and substantial justice
subordinates sophisticated tidisicalitus (Sarabia vs.
Secretary of Agriculture, 103 Phil. 151; Potenciano vs.
Court of Appeals, 104 Phil. 156).
In what may be considered a landmark pronounce-
ment is the following statement of the Supreme Court,
speaking through Justice Isagani Cruz, in Alonzo vs.
Padua, 150 SCRA 259, thus —
“The question is sometimes asked, in serious
inquiry or in curious conjecture, whether we are a
court of law or a court of justice. Do we apply the law
even if it is unjust or do we administer justice even
against the law? Thus queried, we do not equivocate.
The answer is that we do neither because we are a
court both of law and of justice. We apply the law
with justice for that is our mission and purpose in
the scheme of our Republic.
xxx
“More than twenty years ago, Justinian defined
justice “as the constant and perpetual wish to render
every one his due.” That wish continues to motivate
this Court when it assesses the facts and the law in
every case brought to it for decision. Justice is al-

ways an essential ingredient of its decisions. Thus
when the facts warrant, we interpret the law in a
way that will render justice, presuming that it was
the intention of the lawmaker, to begin with, that
the law be dispensed with justice. So we have done
in this case.”
The ruling is reiterated in Pangan vs. Court of
Appeals (166 SCRA 375). In another case (Agcaoili vs.
Government Service Insurance System, 165 SCRA 1), the
Court has said that it may, in the exercise of equity
jurisdiction, adjust the rights of the parties in accordance
with the circumstances obtaining upon the rendition of
the judgment when the standing of the parties have so
changed by the long pendency of their dispute that renders
it inequitous to adhere to the rights and obligations of
the parties accruing at the time of their generation.
2. Binding Effects of Laws

A) In General — Laws take effect after fifteen days
following the completion of their publication in the Official
Gazette and apply prospectively thereafter (Development
Bank of the Philippines vs. Court of Appeals, 116 SCRA
636), unless such laws provide the contrary (Arts. 2 and
4, Civil Code; Puzon vs. Abellera, 169 SCRA 789).
In Tañada vs. Tuvera (136 SCRA 27), the petitioners
sought a writ of mandamus to compel respondent offi-
cials to publish and/or cause the publication in the Offi-
cial Gazette of various presidential decrees, letters of
instruction, general orders, proclamations, and other types
of presidential issuance. The respondents contended that
publication in the Official Gazette was not a sine qua non
requirement for the effectivity of laws where the laws
themselves provide for their own effectivity dates. They
submitted that, since the presidential issuance in ques-
tion had contained special provisions as to the date they
were to take effect, publication in the Official Gazette
was not indispensable for their effectivity. They cited

Article 2 of the Civil Code to the effect that: “Laws shall
take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is other-
wise provided, x x x.” The Supreme Court ruled:
“The interpretation given by respondents is in
accord with this Court’s construction of said article.
In a long line of decisions, this Court has ruled that
publication in the Official Gazette is necessary in
those cases where the legislation itself does not pro-
vide for its effectivity date — for then the date of
publication is material for determining its date of
effectivity, which is the fifteenth day following its
publication — but not when the law itself provides
for the date when it goes into effect.’’
“Respondents’ argument, however, is logically
correct only insofar as it equates the effectivity of
laws with the fact of publication. Considered in the
light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2
does not preclude the requirement of publication in
the Official Gazette, even if the law itself provides
for the date of its effectivity.”
In its resolution on the motion for a reconsideration
(Tañada vs. Tavera, 146 SCRA 446), however, the Su-
preme Court ruled:
“We hold therefore that all statutes, including
those of local application and private laws, shall be
published as a condition for their effectivity, which
shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.
“Covered by this rule are presidential decrees
and executive orders promulgated by the President
in the exercise of legislative powers whenever the
same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. Admi-
nistrative rules and regulations must also be pub-

lished if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.
“Interpretative regulations and those merely
internal in nature, notwithstanding that it applies
to only a portion of the national territory and di-
rectly affects only the inhabitants of that place. All
presidential decrees must be published, including
even, say, those naming a public place after a favored
individual or exempting him from certain prohibi-
tions or requirements. The circulars issued by the
Monetary Board must be published if they are meant
not merely to interpret but to “fill in the details” of
the Central Bank Act which that body is supposed to
enforce.
“However, no publication is required of the in-
structions issued by, say, the Minister of Social Wel-
fare on the case studies to be made in the petitions
for adoption or the rules laid down by the head of a
government agency on the assignments or workload
of his personnel or the wearing of office uniforms.
Parenthetically, municipal ordinances are not cov-
ered by this rule but by the Local Government Code.
“We agree that the publication must be in full
x x x (and) the mere mention of the number of the
presidential decree, the title of such decree, its
whereabouts (e.g., “with Secretary Tuvera”), the sup-
posed date of effectivity, and in a mere supplement
of the Official Gazette cannot satisfy the publication
requirement. This is not even substantial compli-
ance. This was the manner, incidentally, in which
the General Appropriations Act for FY 1975, a presi-
dential decree undeniably of general applicability
and interest, was “published” by the Marcos adminis-
tration. The evident purpose was to withhold rather
than disclose information on this vital law.
xxx
“WHEREFORE, it is hereby declared that all

laws as above defined shall immediately upon their
approval, or as soon thereafter as possible, be pub-
lished in full in the Official Gazette, to become effec-
tive only after fifteen days from their publication, or
on another date specified by the legislature, in ac-
cordance with Article 2 of the Civil Code.”
Executive Order No. 200, dated 18 June 1987, pro-

vides for the publication of laws either in the Official
Gazette or in a newspaper of general circulation in the
Philippines as being a requirement for their effectivity;
thus —
“SECTION 1. Laws shall take effect after fif-
teen days following the completion of their publica-
tion either in the Official Gazette or in a newspaper
of general circulation in the Philippines, unless it is
otherwise provided.
SECTION 2. Article 2 of the Republic Act No.
386, otherwise known as the “Civil Code of the Philip-
pines”, and all other laws inconsistent with this
Executive Order are hereby repealed or modified
accordingly.”
Unpublished Ministry Rules and Regulations, said
the Court in Joint Ministry of Health and Ministry of
Labor vs. Court of Appeals (196 SCRA 263), are inopera-
tive (but see previous case of Manila Resource Develop-
ment Corporation vs. National Labor Relations Commis-
sion, G.R. No. 80586, 03 May 1989). There is no law,
however, requiring the publication of Supreme Court de-
cisions before they can be binding. Neither is such publi-
cation required in the case of customs administrative
orders to Bureau of Customs employees (De Roy vs. Court
of Appeals, 157 SCRA 757; Yaokasin vs. Commissioner of
Customs, G.R. No. 84111, 22 December 1989).
Retroactivity would be unconstitutional if it amounts
to an impairment of contract or an ex post facto law or bill
of attainder (Art. III, Constitution). Remedial law, being

one that neither creates nor curtails vested rights but
merely prescribes the procedure and method of enforce-
ment or the redress of such rights, are not covered by the
general rule against the retrospective operation of stat-
utes (Castro vs. Sagales, 94 Phil. 208; Bustos vs. Lucero,
81 Phil. 640).
Ignorance of the law does not excuse non-compliance
with the law of the land (Art. 3, Civil Code), whether civil
or penal and whether substantive or remedial (People vs.
Balbar, 21 SCRA 1119). This policy is founded not only on
expediency and public policy but also on necessity (see
Zulueta vs. Zulueta, 1 Phil. 256); otherwise, a convenient
shelter from the punitive effects of a disregard of the law
would be made easily available. But an honest mistake
upon doubtful or difficult questions of law may at times
serve as basis for good faith (see Kasilag vs. Rodriguez,
69 Phil. 217).
The Civil Code is suppletory to the unrepealed por-
tions of the Code of Commerce and special laws (Art. 18,
Civil Code). The Civil Code, being a law of general appli-
cation, can be suppletory to special laws and certainly
not preclusive of those that govern commercial transac-
tions. Indeed, in its generic sense, civil law can rightly be
said to encompass commercial law. Jus civile, in ancient
Rome, was merely used to distinguish it from just gen-
tium or the law common to all the nations within the
empire and, at some time later, only in contrast to inter-
national law. In more recent times, civil law is so referred
to as private law in distinction from public law and crimi-
nal law. Today, it may not be totally inaccurate to con-
sider commercial law, among some other special laws, as
being a branch of civil law.
Prohibitive laws concerning persons, their acts or
property, and laws which have for their object public or-
der, public policy and good customs, are not rendered
nugatory by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign

country (Art. 17, 3rd par., Civil Code). Hence, while an
alien’s capacity to act may be determined by the law of
his country, a disqualification to act under Philippine
law, being prohibitory in nature, shall apply even to such
alien. Acts executed against the provisions of mandatory
or prohibitory laws are void, not merely voidable, except
when the law itself authorizes the validity thereof (Art. 5,
Civil Code).
Rights may be waived, unless the waiver is contrary
to law, public order, public policy, morals or good customs,
or prejudicial to a third person with a right recognized by
law (Art. 6, Civil Code; Gatchalian vs. Delim, 203 SCRA
126).
B) Conflict of Laws — In a possible conflict of laws

situation, the Code groups laws into various categories
and establishes the applicable rules therefor.
(1) Penal laws and laws of public security and
safety. — The territoriality rule governs, and it
renders obligatory and applicable such laws upon all
those who live or sojourn in the Philippines or who
are within its territorial jurisdiction subject, how-
ever, to the principles of public international law
and to treaty stipulations (Art. 14, Civil Code; Perkins
vs. Dizon, 69 Phil. 186).
(2) Laws relating to family rights and duties,
or to the status, condition and legal capacity of per-
sons. — The nationality rule applies, and it renders
such laws binding upon citizens of the Philippines
regardless of their residence (Art. 15, Civil Code;
Tenchavez vs. Escano, 15 SCRA 355). Reciprocally,
an alien is governed on these matters by the law of
his country (Recto vs. Harden, 100 Phil. 407). The
domiciliary theory (law of domicile) supplants the
nationality theory in the cases involving stateless
persons (Koh vs. Court of Appeals, 70 SCRA 298).
Renvoi Doctrine — Where the conflict rules of the

forum refer to a foreign law, and the latter refers it back
to the internal law, the latter (law of the forum) shall
apply. This rule has been adopted in the Philippines (Aznar
vs. Garcia, 7 SCRA 95). The doctrine would be pertinent
if a person is a national of one country but is domiciled in
another. Thus, a resident alien under the Philippine na-
tionality rule should be governed by the law of his own
country, but if under the latter law the domiciliary theory
prevails, then the laws of the Philippines where such
alien is a resident of shall apply. If the foreign law refers
to a third country, the laws of the said country shall
govern; this situation is a variety of the renvoi doctrine,
and it is a times referred to as the transmission theory.
Doctrine of Processual Presumption — The foreign
law, whenever applicable, should be proved by the propo-
nent thereof; otherwise, such law shall be presumed to be
exactly the same as the law of the forum (Collector vs.
Fisher, 1 SCRA 93; Board Commissioners vs. De la Rosa,
197 SCRA 858).
(3) Laws on property. — The principle of lex rei
sitae generally applies; hence, real property, as well
as personal property, is subject to the law of the
country where it is situated. In respect, however, to
testamentary and intestate succession both as re-
gards the order of succession, the amount of succes-
sional rights and intrinsic validity of last wills and
testament, as well as capacity to succeed, the na-
tional law of the person whose succession is under
consideration shall regulate such succession regard-
less of the nature of the property or the place wherein
said property is found (Arts. 16 and 1039, Civil Code;
Philippine Commercial and Industrial Bank vs.
Escolin, 56 SCRA 266). A provision in an alien’s will
that successional rights to his estate shall be gov-
erned by the Philippine law has been held to be void
(see Bellis vs. Bellis, 20 SCRA 358).
The ancient maxim mobilia sequuntur personam

yields to the “established fact of legal ownership, actual
presence and control” over the property (see Wells Fargo
Bank & Union Trust Co. vs. Collector, 70 Phil. 325).
(4) Laws on forms and solemnities. — The rule
of lex loci celebrationis generally governs forms and
solemnities of contracts, wills and other public in-
struments. When, however, said acts are executed
before Philippine diplomatic or consular officials in
a foreign country, the forms and solemnities estab-
lished by the Philippine laws shall be observed (Art.
17, Civil Code; German & Co. vs. Donaldson, Sim &
Co., 1 Phil. 63). Also, a stipulation by the parties to a
contract providing for a different rule may be valid,
such stipulation not essentially being, or to the ex-
tent that it is not, contrary to law, morals, good cus-
toms, public order and public policy.
Article 17 of the Civil Code refers only to forms and
solemnities; hence, on the performance of a contract, for
instance, the lex loci solutionis (law of consummation)
will instead apply.
Gaining some popularity is the ecclectic theory that
would dissect the juridical act or a series of juridical acts
and thenceforth apply the lex situs principle to each of
the elements thereof.
The governing law, illustrated. — To illustrate the
foregoing rules, John, an American, while sojourning in
the Philippines married Marsha, a Philippine citizen. A
few hours after the wedding ceremony, the couple de-
parted for the United States where they took residence. A
few years later, John and Marsha were divorced upon the
latter’s petition. John and Marsha, shortly thereafter,
each married their respective new-found loves. Marsha
and her new American husband Peter took residence in
the Philippines. Marsha retained her Philippine citizen-
ship until she died in the Philippines, leaving substantial
property in the Philippines and abroad. She had no sur-
viving relatives except Peter and/or John.
From a strictly legal standpoint, the governing or

applicable law might be summarized, as follows.
(1) Formalities of marriage. — The laws of the
country where the marriages are celebrated govern.
(2) Validity of the divorce. — Philippine law
applies insofar as Marsha is concerned and U.S. law
as regards John (see Pilapil vs. Judge Somera, G.R.
No. 8016, 30 June 1989). Since Philippine law does
not allow divorce, in its contemplation Marsha has
remained married to John, but John has ceased to
be married to Marsha. Marsha’s marriage to Peter is
considered void under Philippine law but valid un-
der U.S. law. The second paragraph of Article 26 of
Family Code is inapplicable to Marsha since she her-
self has sought the divorce (see Article 26, Family
Code, as amended by E.O. No. 277).
In the case of a mixed marriage (between a Filipino
citizen and a foreigner), the second paragraph (introduced
by E.O. No. 227, dated 17 July 1987) of Article 26 of the
Family Code states that if such marriage is validly cele-
brated and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating said spouse to remarry,
the Filipino spouse shall likewise have capacity to marry.
Evidently, this amendatory provision is intended to avoid
the absurdity of the Filipino still being married to an
alien who, under the latter’s law, is no longer married to
the Filipino spouse. Significantly, the amendment has
been confined to a case where the alien, not the Filipino,
spouse has sought the divorce.
(3) Crime of bigamy. — Being penal in nature,
a charge for bigamy under the Revised Penal Code
cannot be initiated since Marsha’s second marriage
took place outside the Philippines.
(4) Crime of adultery. — Subject to available
defenses and the rules on private crimes, Marsha
could be subject to a possible charge of adultery by
her openly “living with” Peter in the Philippines.
(5) Successional rights. — The matter of suc-

cessional rights over the estate of Marsha shall be
determined under Philippine law. John, not Peter, is
technically the legal heir subject to his capacity to
succeed as determined by the law of his country.
In resolving the foregoing or like issues, however,
one must not totally lose sight of what could, in fact, be
apposite legal principles. Thus, in the above problem, one
or both of the spouses who may have been guilty or
responsible for seeking and obtaining the divorce, may
not later be permitted to take a position opposed to their
earlier action or representations. This principle could have
well been the rationale of the Supreme Court decision in
Alice Reyes Van Dorn vs. Hon. Manuel Romillo and Rich-
ard Upton (139 SCRA 139).
In Van Dorn, the petitioner, a Filipino citizen, mar-
ried the private respondent, a citizen of the United States,
in Hong Kong in 1972. Thereafter, they established resi-
dence in the Philippines. The parties were divorced in
Nevada in 1982. In 1983, respondent filed a suit against
the petitioner in the Regional Trial Court of Pasay, stat-
ing that petitioner’s business in Ermita was conjugal prop-
erty of the parties. Respondent asked for an accounting
and that he be declared with right to manage the conju-
gal property. The petitioner moved to dismiss, which was
denied. The petitioner went to the Supreme Court, which
then ruled:
“The Nevada District Court, which decreed the
divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial
of the case. It also obtained jurisdiction over private
respondent who, giving his address as No. 381 Bush
St., San Francisco, California, authorized his attor-
neys in the divorce case, Karp & Grade, Ltd., to
agree to the divorce on the ground of incompatibility
in the understanding that there were neither com-
munity property nor community obligations. x x x
“x x x In this case, the divorce in Nevada re-

leased private respondent from the marriage from
the standards of American law, under which divorce
dissolves the marriage. x x x
“Thus, pursuant to his national law, private re-
spondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as
petitioner’s husband entitled to exercise control over
conjugal assets.”
Enforcement of Foreign Judgments

Generally, in the absence of a special compact, no
sovereign is bound to give effect within its dominion to a
judgment rendered by a tribunal of another country; how-
ever, the rules of comity, utility and convenience of nations
have established a usage among civilized states by which
final judgments of foreign courts of competent jurisdic-
tion are reciprocally respected and rendered efficacious
under certain conditions that may vary in different
countries. In this jurisdiction, a valid judgment rendered
by a foreign tribunal may be recognized insofar as the
immediate parties and the underlying cause of action are
concerned so long as it is convincingly shown that there
has been an opportunity for a full and fair hearing before
a court of competent jurisdiction; that trial upon regular
proceedings has been conducted, following due citation or
voluntary appearance of the defendant and under a sys-
tem of jurisprudence likely to secure an impartial admin-
istration of justice; and that there is nothing to indicate
either a prejudice in court and in the system of laws
under which it is sitting or fraud in procuring the judg-
ment. A foreign judgment is presumed to be valid and
binding in the country from which it comes, until a con-
trary showing, on the basis of a presumption of regular-
ity of proceedings and the giving of due notice in the
foreign forum.
There is a principle of international comity that a
court of another jurisdiction should refrain, as a matter
of propriety and fairness, from so assuming the power of

passing judgment on the correctness of the application of
law and the evaluation of the facts of the judgment is-
sued by another tribunal.
Fraud, to hinder the enforcement within this juris-
diction of a foreign judgment, must be extrinsic, i.e., fraud
based on facts not controverted or resolved in the case
where judgment is rendered, or that which would go to
the jurisdiction of the court or would deprive the party
against whom judgment is rendered a chance to defend
the action to which he has a meritorious case or defense.
In fine, intrinsic fraud, that is, fraud which goes to the
very existence of the cause of action — such as fraud in
obtaining the consent to a contract — is deemed already
adjudged, and it, therefore, cannot militate against the
recognition or enforcement of the foreign judgment.
Courts do not function to relieve a party from the
effects of an unwise or unfavorable contract freely en-
tered into (Philippine Aluminum Wheels, Inc. vs. Fasgi
Enterprises, Inc., G.R. No. 137378, 12 October 2000, 342
SCRA 722).
Chapter 2
Human Relations (n)
Art. 19. Every person must, in the exercise of his

rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty
and good faith.
Art. 20. Every person who, contrary to law, wil-
fully or negligently causes damage to another, shall
indemnify the latter for the same.
Art. 21. Any person who wilfully causes loss or
injury to another in a manner that is contrary to mor-
als, good customs or public policy shall compensate
the latter for the damages.
Art. 22. Every person who through an act of per-
formance by another, or any other means, acquires or
comes into possession of something at the expense of

the latter without just or legal ground, shall return the
same to him.
Art. 23. Even when an act or event causing dam-
age to another’s property was not due to the fault or
negligence of the defendant, the latter shall be liable
for indemnity if through the act or event he was ben-
efited.
Art. 24. In all contractual, property or other rela-
tions, when one of the parties is at a disadvantage on
account of his moral dependence, ignorance, indigence,
mental weakness, tender age or other handicap, the
courts must be vigilant for his protection.
Art. 25. Thoughtless extravagance in expenses for
pleasure or display during a period of acute public
want or emergency may be stopped by order of the
courts at the instance of any government or private
charitable institution.
Art. 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors
and other persons. The following and similar acts,
though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention
and other relief:
(1) Prying into the privacy of another’s resi-
dence;
(2) Meddling with or disturbing the private life
or family relations of another;
(3) Intriguing to cause another to be alienated
from his friends;
(4) Vexing or humiliating another on account of
his religious beliefs, lowly station in life, place of birth,
physical defect, or other personal condition.
Art. 27. Any person suffering material or moral
loss because a public servant or employee refuses or
neglects, without just cause, to perform his official duty
may file an action for damages and other relief against
the latter, without prejudice to any disciplinary adminis-

trative action that may be taken.
Art. 28. Unfair competition in agricultural, commer-
cial or industrial enterprises or in labor through the
use of force, intimidation, deceit, machination or any
other unjust, oppressive or highhanded method shall
give rise to a right of action by the person who thereby
suffers damage.
Art. 29. When the accused in a criminal prosecu-
tion is acquitted on the ground that his guilt has not
been proved beyond reasonable doubt, a civil action for
damages for the same act or omission may be insti-
tuted. Such action requires only a preponderance of
evidence. Upon motion of the defendant, the court may
require the plaintiff to file a bond to answer for damages
in case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is
based upon reasonable doubt, the court shall so de-
clare. In the absence of any declaration to that effect,
it may be inferred from the text of the decision whether
or not the acquittal is due to that ground.
Art. 30. When a separate civil action is brought to
demand civil liability arising from a criminal offense,
and no criminal proceedings are instituted during the
pendency of the civil case, a preponderance of evidence
shall likewise be sufficient to prove the act complained
of.
Art. 31. When the civil action is based on an obliga-
tion arising from the act or omission complained of as a
felony, such civil action may proceed independently of
the criminal proceedings and regardless of the result of
the latter.
Art. 32. Any public officer or employee, or any
private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs
any of the following rights and liberties of another per-
son shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
Art. 32 PRELIMINARY TITLE 31
(3) Freedom to write for the press or to maintain

a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property with-
out due process of law;
(7) The right to a just compensation when pri-
vate property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one’s person, house,
papers, and effects against unreasonable searches and
seizures;
(10) The liberty of abode and of changing the
same;
(11) The privacy of communication and corres-
pondence;
(12) The right to become a member of associa-
tions or societies for purposes not contrary to law;
(13) The right to take part in a peaceable assem-
bly to petition the Government for redress of griev-
ances;
(14) The right to be free from involuntary servi-
tude in any form;
(15) The right of the accused against excessive
bail;
(16) The right of the accused to be heard by him-
self and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy
and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attend-
ance of witnesses in his behalf;
(17) Freedom from being compelled to be a wit-
ness against one’s self, or from being forced to confess
guilt, or from being induced by a promise of immunity
or reward to make such confession, except when the
person confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and

unusual punishment, unless the same is imposed or
inflicted in accordance with a statute which has not
been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether
or not the defendant’s act or omission constitutes a
criminal offense, the aggrieved party has a right to com-
mence an entirely separate and distinct civil action for
damages, and for other relief. Such civil action shall
proceed independently of any criminal prosecution (if
the latter be instituted) and may be proved by a prepon-
derance of evidence.
The indemnity shall include moral damages. Ex-
emplary damages may also be adjudicated.
The responsibility herein set forth is not demand-
able from a judge unless his act or omission consti-
tutes a violation of the Penal Code or other penal stat-
ute.
Art. 33. In cases of defamation, fraud, and physi-
cal injuries, a civil action for damages, entirely sepa-
rate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall
proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence.
Art. 34. When a member of a city or municipal
police force refuses or fails to render aid or protection
to any person in case of danger to life or property,
such peace officer shall be primarily liable for dam-
ages, and the city or municipality shall be subsidiarily
responsible therefor. The civil action herein recognized
shall be independent of any criminal proceedings, and
a preponderance of evidence shall suffice to support
such action.
Art. 35. When a person, claiming to be injured by a
criminal offense, charges another with the same, for
which no independent civil action is granted in this Code
or any special law, but the justice of the peace finds no
reasonable grounds to believe that a crime has been

committed, or the prosecuting attorney refuses or fails
to institute criminal proceedings, the complainant may
bring a civil action for damages against the alleged of-
fender. Such civil action may be supported by a prepon-
derance of evidence. Upon the defendant’s motion, the
court may require the plaintiff to file a bond to indem-
nify the defendant in case the complaint should be found
to be malicious.
If during the pendency of the civil action, an infor-
mation should be presented by the prosecuting attor-
ney, the civil action shall be suspended until the termi-
nation of the criminal proceedings.
Art. 36. Prejudicial questions, which must be de-
cided before any criminal prosecution may be insti-
tuted or may proceed, shall be governed by rules of
court which the Supreme Court shall promulgate and
which shall not be in conflict with the provisions of
this Code.
1. The Golden Rule in Law

The cardinal law on human conduct has been ex-
pressed in Article 19 of the Civil Code, thusly: “Every
person must, in the exercise of his rights and in the per-
formance of his duties, act with justice, give everyone his
due, and observe honesty and good faith.” This mandate
has also made its mark in the 1973 (but was somehow
lost in the 1987) Constitution in these words:
“Sec. 2. The rights of the individual impose upon
him the correlative duty to exercise them responsi-
bly and with due regard for the rights of others.”
(Art. V)
The elements of abuse of right under Article 19 are:
(1) the existence of a legal right or duty, (2) which is
exercised in bad faith, and (3) for the sole intent of preju-
dicing or injuring another (ABS-CBN Broadcasting Corp.
vs. Court of Appeals, 102 SCAD 459, 301 SCRA 572).
While this article, in essence, may have been intended as
a mere declaration of principle (Velayo vs. Shell Com-

pany, Ltd., 100 Phil. 186), accepted rules, nevertheless,
have been derived therefrom:
a. Where a person exercises his rights or perform
his duties, observing the above legal mandate, but still
causes damage to another —
(1) if the actor benefits thereby, possible lia-
bility, but not beyond such benefit and damage,
might ensue on the basis of equity in the absence of
any specific provision of law expressly governing the
case (see discussion on Equity as a source of law,
supra.).
(2) if the actor does not benefit thereby, no
liability is created and the case comes within the
purview of the old maxim damnum absque injuria.
b. Where a person exercises his rights but does so
arbitrarily or unjustly or so performs his duties in a man-
ner that is not in keeping with honesty and good faith, he
opens himself to liability (see Sanchez vs. Rigos, 45 SCRA
368; Philippine National Bank vs. Court of Appeals, 83
SCRA 237). The principle is expressed in what may be
termed as the “abuse of right rule” or suum jus summa
injuria; to exemplify, while it is recognized that generally
the principal may terminate an agency, the agent may,
however, recover damages if the termination has been
done whimsically (see Llorente vs. Sandiganbayan, 202
SCRA 309).
The act of a creditor in refusing payment in
installments and consequently filing a collection case
against the debtor cannot be considered violative of the
principles embodied in Article 19 and Article 21 of the
Civil Code, where it is shown that the refusal has not
been prompted by bad faith but by the need to preserve
the creditor’s cash position in order for it to pay for its
own obligations (Barons Marketing Corporation vs. Court
of Appeals, 91 SCAD 509, 286 SCRA 96).
2. Rule on Unjust Enrichment

Normally, the liability of a person for damages is
created by his failure, fault or negligence. The principle
of unjust enrichment is an exception, where only two con-
ditions would generally need to concur in order that the
rule could apply, viz.: (a) that a person is benefited with-
out a valid basis or justification, and (b) that such benefit
is derived at another’s expense or damage (see Arts. 22,
23, and 2142, Civil Code). There is no unjust enrichment
where a person receiving the benefit has a legal right or
entitlement thereto (Pascual vs. Court of Industrial Re-
lations, 88 SCRA 645) or where there is no causal rela-
tion between the one’s enrichment and the other’s impov-
erishment. The rules on unjust enrichment can apply
equally well to the government (Republic vs. Court of
Appeals, 31 May 1978).
3. Liability for Fault or Negligence

The provisions of articles 20 and 21 of the Civil Code
illustrate possible liability of persons because of fault or
negligence (see Manila Gas Corp. vs. Court of Appeals,
100 SCRA 60; Globe Mackay Cable and Radio Corpora-
tion vs. Court of Appeals, 176 SCRA 778).
There is no requirement under Article 20 that the
act must be directed at a specific person, but it suffices
that a person suffers damage as a consequence of a wrong-
ful act of another in order that indemnity could be de-
manded from the wrongdoer (PETROPHIL Corp. vs. Court
of Appeals, G.R. No. 122796, 10 December 2001).
Article 21 can serve as a legal basis for the recovery
of damages against a person guilty of fault or negligence
absent an explicit provision of law or contractual stipula-
tion on the matter. In a corporation, the by-laws, not
Article 21 of the Civil Code, govern the relations of the
members among themselves (Tavera vs. Phil. Tuberculo-
sis Society, 12 SCRA 243).
Article 21 of the Code, it should be observed, con-

templates a conscious act to cause harm. Thus, even if we
are to assume that the provision could properly relate to
a breach of contract, its application can be warranted
only when the defendant’s disregard of his contractual
obligation is so deliberate as to approximate a degree of
misconduct certainly no less worse than fraud or bad
faith. Most importantly, Article 21 is a mere declaration
of a general principle in human relations that clearly
must, in any case, give way to the specific provision of
Article 2220 of the Civil Code authorizing the grant of
moral damages in culpa contractual solely when the
breach is due to fraud or bad faith (Far East Bank and
Trust Company vs. Court of Appeals, Luis A. Luna and
Clarita S. Luna, G.R. No. 108164, 23 February 1995, 241
SCRA 671).
In Manila Electric Co. vs. Court of Appeals (157 SCRA
243), however, the Supreme Court has held the possibil-
ity of a breach of contract as one that might amount to an
independent tort and as allowing the application of Arti-
cle 21 of the Code. There, Meralco, without giving a 48-
hour notice, disconnected its lines to private respondents’
house on the ground that respondents were in arrears.
The respondents filed an action for moral damages which
the court granted. The decision was affirmed by the Court
of Appeals. The petitioners went to the Supreme Court,
contending that failure to give notice might have been a
breach of duty or breach of contract but it did not consti-
tute bad faith so as to justify the award of moral and
exemplary damages. The Court held that the petitioner’s
act in disconnecting respondents’ gas service without prior
notice constituted breach of contract amounting to an
independent tort. The pre-maturity of the action was held
indicative of an intent to cause additional mental and
moral suffering to private respondent and a “clear” viola-
tion of Article 21 of the Civil Code.
Intentional torts, like those envisioned in articles
21, 26, 28 and 32, can give rise to a cause of action for
damages but, following the principles on tort liability, the

claimant must be able to establish that he has suffered
personal damages or injury as a direct consequence of the
wrongful conduct of the defendant.
Civil actions referred to in Article 26 are based on
tort liability under common law and require the plaintiff
to establish that he has suffered personal damage or in-
jury as a direct consequence of the defendant’s wrongful
conduct. It must be shown that the act complained of is
vexatious or defamatory of, and as it pertains to, the
claimant, thereby humiliating or besmirching the latter’s
dignity and honor. Defined in simple terms, vexation is
an act of annoyance or irritation that causes distress or
agitation (Black’s Law Dictionary, 6th Ed., p. 1565). Early
American cases have refused all remedy for mental in-
jury, such as one caused by vexation, because of the diffi-
culty of proof or of measurement of damages (Prosser and
Keeton on Torts, 5th Ed., p. 55). In comparatively recent
times, however, the infliction of mental distress as a ba-
sis for an independent tort action has been recognized. It
is said that “one who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional dis-
tress to another is subject to liability for such emotional
distress’’ (Restatement [Second] of Torts, p. 46). Never-
theless, it has also been often held that petty insult or
indignity lacks, from its very nature, any convincing as-
surance that the asserted emotional or mental distress is
genuine, or that if genuine it is serious (Prosser and
Keeton, supra., p. 59). Accordingly, it is generally declared
that there can be no recovery for insults (Slocum vs. Food
Fair Stores of Florida, Inc., Fla. 1958, 100 So. 2d 396),
indignities or threats (Tafts vs. Taft, 1867, 40 Vt. 229)
which are considered to amount to nothing more than
mere annoyances or hurt (Wallace vs. Shoreham Hotel
Corp., Mun. App. D.C. 1946, 49 A2d 81). At all events, it
would be essential to prove that personal damage is di-
rectly suffered by the plaintiff on account of the wrongful
act of the defendant.
A kindred concept, albeit of greater degree of perver-

sity, defamation, broadly defined, is an attack on the
reputation of another, the unprivileged publication of false
statements which naturally and proximately result in
injury to another. It is that which tends to diminish the
esteem, respect, goodwill or confidence in which a person
is held, or to excite adverse, derogatory or unpleasant
feelings or opinions against him (Black’s Law Dictionary,
6th Ed., p. 417). Defamation is an invasion of a “rela-
tional interest’’ since it involves the opinion which others
in the community may have, or tend to have, of the plain-
tiff (Prosser and Keeton, supra., p. 771). The Revised Pe-
nal Code itself provides an instructive definition of libel
as being a form of defamation expressed in writing, print,
pictures, or signs (see Art. 355, Revised Penal Code), to
wit: “A libel is a public and malicious imputation of a
crime, or vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is
dead’’ (Art. 353, Revised Penal Code).
In order that defamatory words can be actionable
in court, it is essential that they are personal to the
party maligned, an ascertained or ascertainable individual
(Borjal vs. Court of Appeals, 301 SCRA 1; Corpus vs.
Cuaderno, Sr., 16 SCRA 807; Kunkle vs. Cablenews Ameri-
can, 42 Phil. 757). It is only then that plaintiff ’s emotions
and/or reputation can be said to have been injured; thus,
the plaintiff, to recover, must show that he or she is the
person to whom the statements are directed (50 Am Jur
2d [1995], p. 674). Declarations made about a large class
of people cannot be interpreted to advert to an identified
or identifiable individual. Absent circumstances specifi-
cally pointing or alluding to a particular member of a
class, no member of such class has a right of action with-
out at all impairing the equally demanding right of free
speech and expression, as well as of the press, under the
bill of rights (Sec. 4, Art. III, 1987 Constitution).
If an article, for instance, states that “judges in the

Philippines are corrupt,’’ such a general condemnation
cannot reasonably be interpreted to be pointing to each
judge or to a certain judge in the Philippines. Thus, no
particular magistrate can claim to have been disgraced
or to have sustained an impaired reputation because of
that article. If, on the other hand, the article proclaims
that “judges in Metro Manila are corrupt,’’ such state-
ment of derogatory conduct now refers to a relatively
narrow group that might yet warrant its looking into in
an appropriate suit. And if the article accuses the “Jus-
tices of the Supreme Court’’ of corruption, then there is a
specific derogatory statement about a definite number of
no more than fifteen persons.
Jurisprudence would appear to suggest that in cases
permitting recovery, the group generally has 25 or fewer
members (Restatement [Second] of Torts §564A comment
b [1977]). When statements concern groups with larger
composition, the individual members of that group would
be hardput to show that the statements are “of and con-
cerning them’’ (50 Am Jur 2d, [1995], p. 675). Although
no precise limits can be set as to the size of a group or
class that would be sufficiently small, increasing size, at
some point, would be seen to dilute the harm to individu-
als and any resulting injury would fall beneath the thresh-
old for a viable lawsuit (Neil J. Rosini, The Practical
Guide to Libel, citing Brady vs. Ottaway Newspapers,
Inc., 84 A.D. 2d 229). This principle is said to embrace
two important public policies: 1) where the group referred
to is large, the courts presume that no reasonable reader
would take the statements as so literally applying to
each individual member; and 2) the limitation on liability
would satisfactorily safeguard freedom of speech and ex-
pression, as well as of press, effecting a sound compro-
mise between the conflicting fundamental interests in-
volved in libel cases (50 Am Jur 2d, [1995], p. 675).
Thus, no recovery was allowed where the remarks
complained of had been made about correspondence
schools, one school suing (189 F. 86, as cited by Ella

Cooper Thomas in The Law of Libel and Slander [New
York, 1973], p. 21); or where there was imputation of
criminality to a union, one member suing (131 N.Y.S.
680, as cited in The Law of Libel and Slander, supra.); or
where an attack was made on Catholic clergymen, one
clergyman suing (81 N.E. 459, as cited in The Law of
Libel and Slander, supra.).
In Newsweek, Inc. vs. Intermediate Appellate Court
(142 SCRA 171), the Supreme Court dismissed a class
suit for scurrilous remarks filed by four incorporated as-
sociations of sugar planters in Negros Occidental in be-
half of all sugar planters in that province, against
Newsweek, Inc., on the ground, among other things, that
the plaintiffs were not sufficiently ascribed to in the arti-
cle published by the defendant. And so also it was in an
older case (Uy Tioco vs. Yang Shu Wen, 32 Phil. 624),
where the Court ratiocinated that an article directed at a
class or group of persons in broad language would not be
actionable by individuals composing the class or group
unless the statements were sweeping but, even then, it
would be highly probable, said the Court, that no action
could lie “where the body is composed of so large a number
of persons that common sense would tell those to whom
the publication was made that there was room for per-
sons connected with the body to pursue an upright and
law abiding course and that it would be unreasonable
and absurd to condemn all because of the actions of a
part.’’
The possible liabilities of public officials in their per-
sonal capacity are expressed in articles 27, 32, 34, and
2189 of the Code. Under Article 27, the duty must be
particularly owing to the plaintiff (43 Am. Jur. 84). Good
faith, under Article 32, may not be a defense against
recovery of damages for a violation thereof (Lim, et al. vs.
Ponce de Leon, 66 SCRA 299). When two or more persons
are responsible for the transgression, directly or indi-
rectly, their liability is similar to that of joint tortfeasers
(see Aberca vs. Ver, 160 SCRA 590). The last paragraph of
Article 32 would make a judge liable only if his acts in
violation of said article would constitute a violation of a
penal law. The liability under Article 2189 has been held
to arise only if the public officials acted with malice and
in bad faith, or beyond his authority or jurisdiction. Cul-
pable neglect, inefficiency and gross indifference have
been held insufficient to warrant that personal liability
(Dumlao vs. Court of Appeals, 114 SCRA 247).
The doctrine of immunity that shields public offi-
cials from personal liability for their official acts has its
exceptions. A public officer by virtue of his office alone is
not immune from damages in his personal capacity aris-
ing from illegal acts done in bad faith. A different rule
would sanction the use of public office as a tool of oppres-
sion (Tabuena vs. Court of Appeals, 3 SCRA 413, cited in
Rama vs. Court of Appeals, 148 SCRA 496). A public
officer who commits a tort or other wrongful act, done in
excess or beyond the scope of his duty, is not protected by
his office and is personally liable therefor like any pri-
vate individual (Palma vs. Graciano, 99 Phil. 72; Carreon
vs. Province of Pampanga, 99 Phil. 808). This principle of
personal liability has been applied to cases where a pub-
lic officer removes or discharges an employee wrongfully
on the rationale that when a public officer does so, he
would be deemed to be acting without any official mantle
of authority (Stiles vs. Lowell, 233 Mass. 174, 123 NE
615, 4 ALR 1365, cited in 63 Am. Jur. 2d. 770, cited in
Correa vs. Court of First Instance of Bulacan, 92 SCRA
312). An abolition of office, said the Supreme Court in one
case, neither means removal nor separation, and is not
thus covered by the constitutional clause on security of
tenure, but it carries a caveat that the abolition is done in
good faith (Ginson vs. Municipality of Murcia, 158 SCRA
1). The principle of immunity from suit cannot be in-
voked when the public official acts with malice or in bad
faith or beyond the scope of his authority or jurisdiction
(Shauf vs. Court of Appeals, G.R. No. 90314, 27 Novem-
ber 1990; see also Farolan vs. Solmac Mktg. Corp., 195
SCRA 168).
4. Independent Civil Actions

An early established rule under our law is that an
act or omission, extra-contractual in nature, causing dam-
age to another, there being fault or negligence can create
two separate civil liabilities on the part of the offender,
i.e., civil liability ex delicto and civil liability ex quasi
delicto. Either one of these two possible liabilities may be
sought to be enforced against the offender subject, how-
ever, to the caveat under Article 2177 of the Civil Code
that the offended party cannot “recover damages twice
for the same act or omission’’ or under both causes. Out-
side of this proscription, the two civil liabilities are dis-
tinct and independent of each other; thus, and conversely
against the rule on double recovery, the failure of recov-
ery in one will not necessarily preclude recovery in the
other.
Procedurally, the Revised Rules of Criminal Proce-
dure, while reiterating that a civil action under the Civil
Code may be brought separately from the criminal ac-
tion, provides, nevertheless, that the right to bring it
must be reserved. Rule 111 reads in full:
“Section 1. Institution of criminal and civil ac-
tions. — When a criminal action is instituted, the
civil action for the recovery of civil action for the
recovery of civil liability is impliedly instituted with
the criminal action, unless the offended party waives
the civil action, reserves his right to institute it sepa-
rately, or institutes the civil action prior to the crimi-
nal action.
“Such civil action includes recovery of indem-
nity under the Revised Penal Code, and damages
under Articles 32, 33, 34 and 2176 of the Civil Code
of the Philippines arising from the same act or omis-
sion of the accused.
“A waiver of any of the civil actions extinguishes

the others. The institution of, or the reservation of
the right to file, any of said civil actions separately
waives the others.
“The reservation of the right to institute the
separate civil actions shall be made before the pros-
ecution starts to present its evidence and under cir-
cumstances affording the offended party a reason-
able opportunity to make such reservation.
“In no case may the offended party recover dam-
ages twice for the same act or omission of the ac-
cused.
“When the offended party seeks to enforce civil
liability against the accused by way of moral; nomi-
nal, temperate or exemplary damages, the filing fees
for such civil action as provided in these Rules shall
constitute a first lien on the judgment except in an
award for actual damages.
“In cases wherein the amount of damages, other
than actual, is alleged in the complaint or informa-
tion, the corresponding filing fees shall be paid by
the offended party upon the filing thereof in court
for trial.
“Sec. 2. Institution of separate civil action. —
Except in the cases provided for in Section 3 hereof,
after the criminal action has been commenced, the
civil action which has been reserved cannot be insti-
tuted until final judgment has been rendered in the
criminal action.
“(a) Whenever the offended party shall have
instituted the civil action as provided for in the first
paragraph of Section 1 hereof before the filing of the
criminal action and the criminal action is subse-
quently commenced, the pending civil action shall
be suspended, in whatever stage before final judg-
ment it may be found, until final judgment in the
criminal action has been rendered. However, if no

final judgment has been rendered by the trial court
in the civil action, the same may be consolidated
with the criminal action upon application with the
court trying the criminal action. If the application is
granted, the evidence presented and admitted in the
civil action shall be deemed automatically reproduced
in the criminal action, without prejudice to the ad-
mission of additional evidence that any party may
wish to present. In case of consolidation, both the
criminal and the civil actions shall be tried and de-
cided jointly.
“(b) Extinction of the penal action does not carry
with it extinction of the civil, unless the extinction
proceeds from a declaration in a final judgment that
the fact from which the civil might arise did not
exist.
“Sec. 3. When civil action may proceed inde-
pendently. — In the cases provided for in articles 32,
33, 34, and 2176 of the Civil Code of the Philippines,
the independent civil action which has been reserved
may be brought by the offended party, shall proceed
independently of the criminal action, and shall re-
quire only a preponderance of evidence.’’
In the relatively recent case of San Ildefonso Lines,
Inc. vs. Court of Appeals, et al., the Supreme Court has
ruled that, notwithstanding the independent nature of
civil actions falling under Articles 32, 33, 34 and 2176 of
the Civil Code, the right to institute the action must still
have to be reserved. In the stern words of the Court: The
“past pronouncements that view the reservation require-
ment as an unauthorized amendment to substantive law,
i.e., the Civil Code, should no longer be controlling.’’ Es-
sentially, San Ildefonso merely fortifies the procedural
rule that unless a reservation is made, the court trying
the criminal case would not be precluded from taking
cognizance of the civil aspect of the litigation and that,
upon the other hand, the other court in the civil case
might, motu proprio or at the instance of a party, hold in

abeyance the consideration thereof pending the outcome
of the criminal case. In Maniago vs. Court of Appeals, the
Court has said that the requirement of reservation is not
incompatible with the distinct and separate character of
independent civil actions. Indeed, there is no incongru-
ence between allowing the trial of civil actions to proceed
independently of the criminal prosecution and mandat-
ing that, before so proceeding, a reservation to do so should
first be made.
In fine —
a. The civil action is deemed instituted to-
gether with the criminal case unless the offended
party waives action, reserves the right to institute
it separately, or institutes it prior to the criminal
action (Sec. 1, Rule 111, Revised Rules of Criminal Pro-
cedure; see also Art. 100, Revised Penal Code).
The reservation should be made at the institution of
the criminal case (Abellana vs. Morave, 87 SCRA 106) or
later but before the prosecution starts its presentation of
evidence and under circumstances affording the offended
party a reasonable opportunity to make such reservation
(Rules 111, Revised Rules of Criminal Procedure). No such
reservation is allowed in a criminal action for violation of
B.P. Blg. 22 (Bouncing Checks Law); the criminal action
shall be deemed to include the corresponding civil action.
In independent civil actions; not being dependent on the
criminal case, the reservation would be required, not for
preserving the cause of action but in order to allow the
civil case to proceed separately from the criminal action
in the interest of good order and procedure. (see Reyes vs.
Sempio-Diy, 141 SCRA 208; Jarantilla vs. Court of Ap-
peals, 171 SCRA 429; Castillo vs. Court of Appeals, 176
SCRA 591). The reservation or waiver refers only to the
civil action for the recovery of the civil liability arising
from the offense charged but not the recovery of civil
liability under articles 32, 33, 34 and 2176 of the Civil
Code arising from the same act or omission which may be
prosecuted separately even without a reservation (DMPI

Employees Credit Cooperative, Inc. vs. Judge Velez, G.R.
No. 129282, 29 November 2001).
When, however, no criminal proceedings are insti-
tuted, a separate civil action may be brought to demand
the civil liability, and a preponderance of evidence is suf-
ficient to warrant a favorable judgment therefor (Art. 30,
Civil Code). The same rule applies if the information is
dismissed upon motion of the fiscal (see Calauag vs. In-
termediate Appellate Court, 194 SCRA 514). Independent
civil actions already filed may still be consolidated in the
criminal case before final judgment is rendered in the lat-
ter case (Cojuangco vs. Court of Appeals, 203 SCRA 619).
b. The pendency of the criminal case sus-
pends the civil action until final judgment is en-
tered in the criminal case, except —
(1) In independent civil actions, such as those:
(a) not arising from the act or omission complained
of as a felony (e.g., culpa contractual under Art. 31,
intentional torts under Articles 32 and 34 and culpa
acquiliana under Article 2176 of the Civil Code); (b)
where the injured party is granted a right to file an
action independent of and separate from the crimi-
nal action (Art. 33, Civil Code); and
(2) In the case of prejudicial questions, which
must be decided before any criminal prosecution may
be instituted or may proceed (Art. 36, Civil Code)
where the civil case may proceed apart from, and
regardless of the outcome of, the criminal case.
c. An acquittal in the criminal case may bar

any further separate civil action, except —
(1) In independent civil actions, unless the com-
plainant, not having reserved a separate action, has
actively participated and intervened in the criminal
case (Mendoza vs. Arrieta, 91 SCRA 113; see also
Diong Bi Chu vs. Court of Appeals, 192 SCRA 554).
Such active participation and intervention can only

be deemed to be an unequivocal election by the complain-
ant to sue under ex delicto rather than on another cause
of action (arising from the same act or omission com-
plained of as ex delicto). If, however, the acquittal is predi-
cated on the ground that guilt has not been proven be-
yond reasonable doubt, and not upon a finding that the
“fact from which the civil (action) might arise did not
exist,” an action for damages can still be instituted (Art.
29, Civil Code; see also Art. 31, Civil Code; Sec. 2, Rules
111, Revised Rules of Criminal Procedure; Gula vs.
Dianala, 132 SCRA 245).
An old rule was that an acquittal in the criminal
case would render inappropriate any civil award by the
criminal court (People vs. Javellana, 108 SCRA 601). In
the case, however, of Roy Padilla vs. Court of Appeals
(129 SCRA 558), the Supreme Court held otherwise.
There, the petitioners, municipal mayor and policemen of
Jose Panganiban, Camarines Norte, were charged in a
criminal case after they allegedly forced open a market
stall, demolished it, and carted away the articles found
therein. After trial, the court found the accused guilty of
grave coercion. The Court of Appeals, however, acquitted
them on reasonable doubt but sentenced them to pay
damages. The petitioners went to the Supreme Court,
contending that where the civil liability included in the
criminal action was that arising from the criminal act, an
acquittal should negate an award of damages. Said the
court:
“The petitioners were acquitted because these
acts were denominated coercion when they properly
constituted some other offense such as threat or
malicious mischief.” x x x
“More recently, we held that the acquittal of the
defendant in the criminal case would not consti-
tute an obstacle to the filing of a civil case based on
the same acts which led to the criminal prosecution.”
xxx
“There appears to be no sound reasons to re-

quire a separate civil action to still be filed consider-
ing that the facts to be proved in the civil case have
already been established in the criminal proceed-
ings where the accused was acquitted.” (This ruling
was reiterated in People vs. Maniego, 148 SCRA 30).
Where the complainant reserves his right to proceed
with the aspect of civil liability independently from the
criminal case, or files a separate civil action prior to the
institution of the criminal case (in these instances, the
complainant is not permitted to actively participate or
intervene in the criminal case), and he predicates his
claim not on crime but on a different cause of action such
as quasi-delict or ex-contractu, the claim will not be barred
by the acquittal of the accused (Lanuzo vs. Sy and
Mendoza, 100 SCRA 205; People vs. Castaneda, 122 SCRA
870). A civil action based on breach of obligation is sepa-
rate and distinct from any criminal liability for “misuse
and/or misappropriation of goods or proceeds realized from
the sale of goods, documents or instruments released un-
der trust receipts,’’ punishable under Section 13 of the
Trust Receipts Law (P.D. 115) in relation to Article 315 of
the Revised Penal Code, and may thus proceed inde-
pendently of the criminal proceedings (Lorenzo Sarmiento,
Jr. vs. Court of Appeals, G.R. No. 122502, 27 December
2002).
(2) In dependent civil actions, where the
acquittal is premised on a failure of proof beyond
reasonable doubt (see Art. 29, Civil Code).
Where acquittal is based on the fact that the crime
did not exist or that the offender did not commit the
crime, and not on mere quantum of proof, a civil action
based on such ex delicto of which the accused is already
acquitted would be improper (Sec. 2, Rule 111, Revised
Rules of Criminal Procedure; People vs. Javellana, 108
SCRA 601). The records in the criminal case are admissi-
ble in evidence in the civil suit; in fact, the court in the
latter case may take judicial notice thereof (Marcia vs.

Court of Appeals, 120 SCRA 193).
Prejudicial Question
A pre-judicial question, in the context of its use in
the Civil Code, is an issue raised in a criminal case the
final resolution of which in another case by another tri-
bunal, which has the jurisdiction to try and decide that
issue, would be determinative of the outcome of the crimi-
nal case (see Librado vs. Coscolluela, 116 SCRA 303;
Jimenez vs. Averia, 22 SCRA 1380). The elements of a
prejudicial question, consistently with Section 7, Rule
111 of the Revised Rules of Criminal Procedure, are — (a)
the previously instituted civil action involves an issue
similar or intimately related to the issue raised in the
subsequent criminal action, and (b) the resolution of such
issue determines whether or not the criminal action may
proceed. The provision is taken from the ruling of the
Supreme Court in Prado vs. People (133 SCRA 602) that
for “a civil action to be considered prejudicial to a crimi-
nal case as to cause the suspension of the criminal pro-
ceedings until the final resolution of the civil, the follow-
ing requisites must be present: (1) the civil case involves
facts intimately related to those upon which the criminal
prosecution would be based; (2) in the resolution of the
issue or issues raised in the civil action, the guilt or
innocence of the accused would necessarily be determined;
and (3) jurisdiction to try said question must be lodged in
another tribunal.”
Hence, in a criminal case for bigamy, an action for
annulment of the second marriage allegedly because of
force or intimidation employed on (not by) the accused
may be pre-judicial on the latter’s guilt or innocence
(Zapanta vs. Montesa, 4 SCRA 510; see Umali vs. Court
of Appeals, 186 SCRA 680; Donato v. Luna, 160 SCRA
441). The pendency, however, of annulment proceedings
of the first marriage will not constitute a prejudicial
question even where the supposed innocent party thereto
50 CIVIL LAW
is the accused since the latter should not be permitted to

judge for himself, let alone assume, that the first mar-
riage would be annulled. Neither may the guilty party in
an annullable marriage plead its being a prejudicial ques-
tion (People vs. Aragon, 94 Phil. 357).
Should the prejudicial question rule apply if the first
marriage is void ab initio and a civil case petitioning for
such declaration is pending? Article 36 of the Code would
be inapplicable since the complete nullity of the marriage
may be raised as a defense in the criminal case for bigamy
without necessitating any final resolution in the civil
case. If acquittal is adjudged, the final result in the civil
case would hardly pose any problem, and if, upon the
other hand, a judgment of conviction is rendered and the
court in the civil case declares the first marriage a
complete nullity (which should be entitled to greater
respect on the question of a person’s civil status than that
of the criminal court), a new trial can be in order. Strangely
enough, in Mercado vs. Tan (G.R. No. 137170, 01 August
2000, 131 SCAD 128), the Court has enunciated that it is
only a judicially decreed prior void marriage which can
constitute a defense against a criminal charge for bigamy
(see discussion on Art. 40 of the Family Code).
While no prejudicial question under Article 36 arises
where one is a civil case and the other is an administra-
tive proceeding (see Ocampo vs. Buenaventura, 55 SCRA
267), it has been ruled, however, that where it would be
impossible for ordinary courts to resolve an issue (for
damages) without first determining a basic issue (legal-
ity of the election of labor union officials) within the ex-
clusive jurisdiction of administrative bodies, the hearing
in court should be suspended until the final determina-
tion of the prejudicial question is made (Guevara vs.
Gopengco, 67 SCRA 236). But in La Chemise Lacoste vs.
Fernandez and Lermandas (129 SCRA 373), the Supreme
Court held that the proceedings pending before the Pat-
ent Office involving IPC No. 1658 do not partake of the
nature of a prejudicial question which must first be defi-

nitely resolved.
While technically, there is no prejudicial question to
really speak of when the cases are civil and administra-
tive, it would be prudent for the court to await the final
determination of the administrative case if it would be
consequential to the proper resolution of the civil case
(see Quiambao vs. Osorio, 158 SCRA 674). In cases in-
volving specialized disputes, the courts, under the doc-
trine of primate jurisdiction, will not determine a contro-
versy involving a question which is within the jurisdic-
tion of an administrative tribunal to consider and resolve
(see Saavedra vs. Securities and Exchange Commission,
159 SCRA 57).
The rationale behind the principle of prejudicial ques-
tion is to avoid two conflicting decision (Beltran vs. Peo-
ple, 334 SCRA 106; Spouses Yulienco vs. Court of Ap-
peals, G.R. No. 141365, 27 November 2002) on the same
subject matter.
52 CIVIL LAW
BOOK I
PERSONS
TITLE I. CIVIL PERSONALITY
Chapter 1
General Provisions
Art. 37. Juridical capacity, which is the fitness to

be the subject of legal relations, is inherent in every
natural person and is lost only through death. Capacity
to act, which is the power to do acts with legal effect,
is acquired and may be lost. (n)
Art. 38. Minority, insanity or imbecility, the state
of being a deaf-mute, prodigality and civil interdiction
are mere restrictions on capacity to act, and do not
exempt the incapacitated person from certain
obligations, as when the latter arise from his acts or
from property relations, such as easements. (32a)
Art. 39. The following circumstances, among
others, modify or limit capacity to act: age, insanity,
imbecility, the state of being a deaf-mute, penalty,
prodigality, family relations, alienage, absence,
insolvency and trusteeship. The consequences of these
circumstances are governed in this Code, other codes,
the Rules of Court, and in special laws. Capacity to act
is not limited on account of religious belief or political
opinion.
A married woman, twenty-one years of age or over,
is qualified for all acts of civil life, except in cases
specified by law. (n)
52
Arts. 40-44 PERSONS 53
Title I. Civil Personality
Chapter 2
Natural Persons
Art. 40. Birth determines personality; but the con-

ceived child shall be considered born for all purposes
that are favorable to it, provided it be born later with
the conditions specified in the following article. (29a)
Art. 41. For civil purposes, the foetus is consid-
ered born if it is alive at the time it is completely deliv-
ered from the mother’s womb. However, if the foetus
had an intra-uterine life of less than seven months, it
is not deemed born if it dies within twenty-four hours
after its complete delivery from the maternal womb.
(30a)
Art. 42. Civil personality is extinguished by death.
The effect of death upon the rights and obliga-
tions of the deceased is determined by law, by con-
tract and by will. (32a)
Art. 43. If there is a doubt, as between two or
more persons who are called to succeed each other,
as to which of them died first, whoever alleges the
death of one prior to the other, shall prove the same;
in the absence of proof, it is presumed that they died
at the same time and there shall be no transmission of
rights from one to the other. (33)
Chapter 3
Juridical Persons
Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities
for public interest or purposes, created by law; their
personality begins as soon as they have been consti-
tuted according to law;
(3) Corporations, partnerships and associations
for private interest or purpose to which the law grants
a juridical personality, separate and distinct from that
of each shareholder, partner or member. (35a)
Art. 45. Juridical persons mentioned in Nos. 1 and

2 of the preceding article are governed by the laws
creating or recognizing them.
Private corporations are regulated by laws of
general application on the subject.
Partnerships and associations for private interest
or purpose are governed by the provisions of this Code
concerning partnerships. (36 and 37a)
Art. 46. Juridical persons may acquire and possess
property of all kinds, as well as incur obligations and
bring civil or criminal actions, in conformity with the
laws and regulations of their organization. (38a)
Art. 47. Upon the dissolution of corporations,
institutions and other entities for public interest or
purpose mentioned in No. 2 of Article 44, their property
and other assets shall be disposed of in pursuance of
law or the charter creating them. If nothing has been
specified on this point, the property and other assets
shall be applied to similar purposes for the benefit of
the region, province, city or municipality which during
the existence of the institution derived the principal
benefits from the same. (39a)
A person is a being, natural or juridical, capable of

having rights and obligations. The term “civil personality”
denotes the person’s capacity (juridical capacity and
capacity to act) for civil life.
The State values the dignity of every human person
and guarantees full respect for human rights (Art. II,
Sec. 11, 1987 Constitution).
1. Juridical Capacity
Juridical capacity (referred to at times as juridical
personality or simply as “personality”) is the fitness to be
the subject of legal relations (Art. 37, Civil Code). Juridical
capacity is inherent in every natural person, and it is lost
only through death (Arts. 37 and 42, Civil Code). Certain
rights inhere in or flow from personality (referred to as
rights of personality) enjoyed by natural persons to main-

tain the integrity of his physical, intellectual, and moral
attributes.
Natural Persons
Birth determines personality; a foetus is considered
born if it is alive at the time it is completely delivered
from the mother’s womb. Under the Civil Code, life at
birth is an absolute condition for vesting personality. Thus,
in Geluz vs. Court of Appeals (112 Phil. 696; 2 SCRA 801):
“Since an action for pecuniary damages on
account of personal injury or death pertains primarily
to the one injured, it is easy to see that if no action
for such damages could be instituted on behalf of the
unborn child on account of the injuries it received,
no such right of action could derivatively accrue to
its parents or heirs. In fact, even if a cause of action
did accrue on behalf of the unborn child, the same
was extinguished by its prenatal death, since no
transmission to anyone can take place from one that
lacked juridical personality (or juridical capacity, as
distinguished from capacity to act). It is no answer
to invoke the provisional personality of a conceived
child (conceptus pro nato habetur) under Article 40
of the Civil Code, because that same article expressly
limits such provisional personality by imposing the
condition that the child should be subsequently born
alive: ‘provided it be born later with the conditions
specified in the following article.’ In the present case,
there is no dispute that the child was dead when
separated from its mother’s womb.
The prevailing American jurisprudence is to the
same effect; and it is generally held that recovery
cannot be had for the death of an unborn child
(Stafford vs. Roadway Transity Co., 70 F. Supp. 555;
Dietrich vs. Northampton, 52 Am. Rep. 242; and
numerous cases collated in the editorial note, 10 ALR,
[2d] 639).
This is not to say that the parents are not enti-

tled to collect any damages at all. But such damages
must be those inflicted directly upon them, as distin-
guished from the injury or violation of the rights of
the deceased, his right to life and physical integrity.
Because the parents can not expect either help, sup-
port or services from an unborn child, they would
normally be limited to moral damages for the illegal
arrest of the normal development of the spes hominis
that was the foetus, i.e., on account of distress and
anguish attendant to its loss, and the disappoint-
ment of their parental expectations (Art. 2217, Civil
Code), as well as to exemplary damages, if the cir-
cumstances should warrant them (Art. 2230). But in
the case before us, both the trial Court and the Court
of Appeals have not found any basis for an award of
moral damages, evidently because the appellee’s in-
difference to the previous abortions of his wife, also
caused by the appellant herein, clearly indicates that
he was unconcerned with the frustration of his pa-
rental hopes and affections. The lower court expressly
found, and the majority opinion of the Court of Ap-
peals did not contradict it, that the appellee was
aware of the second abortion; and the probabilites
are that he was likewise aware of the first. Yet de-
spite the suspicious repetition of the event, he ap-
peared to have taken no steps to investigate or pin-
point the causes thereof, and secure the punishment
of the responsible practitioner. Even after learning
of the third abortion, the appellee does not seem to
have taken interest in the administrative and crimi-
nal cases against the appellant. His only concern
appears to have been directed at obtaining from the
doctor a large money payment, since he sued for
P50,000.00 damages and P3,000.00 as attorney’s fees,
an ‘indemnity’ claim that, under the circumstances
of record, was clearly exaggerated.”
A new provision of the 1987 Constitution to the effect

that the State “shall equally protect the life of the mother
and the life of the unborn from conception” (Art. II, Sec.
12, 1987 Constitution) should compel a statutory and
jurisprudential re-examination of the strictissimi juris
rule pronounced in Geluz.
Provisional Personality
The Civil Code presently states that a conceived child
shall be considered born for all purposes that are favorable
to it, provided that it be born alive or, if the foetus had an
intra-uterine life of less than seven months, that it must
live for twenty-four hours after its complete delivery from
the maternal womb (Arts. 40-41, Civil Code). If the foetus
dies within that period, irrespective of the cause whether
natural, accidental or intentional, however unfortunate,
it shall not be deemed to have attained legal personality
(see Geluz vs. Court of Appeals, 2 SCRA 801).
Juridical Persons
In the case of juridical persons, juridical capacity is
granted by law only upon their constitution or legal
recognition. The Civil Code declares to be juridical persons
the State and its political subdivisions; other corporations,
institutions and entities for public interest or purpose,
created by law, whose personality begins as soon as they
have been constituted according to law; and corporations,
partnerships and associations for private interest or
purpose to which the law grants a juridical personality,
separate and distinct from that of each shareholder,
partner or member (Art. 44, Civil Code). Private
corporations are granted juridical personality upon the
issuance of the Certificate of Registration of the Articles
of Incorporation (Sec. 19, Corporation Code). Partnerships,
on the other hand, begin to have a personality separate
and distinct from that of each of the partners from the
time an agreement of partnership is reached by its
members (see Art. 1768, Civil Code).
It has been said that the estate of a deceased person
is impressed with quasi-personality that enables it to
acquire juridical capacity (see Limjuco vs. Estate of Fla-

grante, 45 O.G. [9th Supp.] 397; see also Arts. 46-47, Civil
Code).
2. Capacity to Act
Capacity to act is the power to do acts with legal
effects; it is acquired and it may be lost (Art. 37, Civil
Code). In natural persons, capacity to act is normally
enjoyed upon the attainment of majority age (18 years);
exceptionally, prior to the enactment of Republic Act No.
6809 which reduced the age of majority from 21 years to
18 years, capacity to act was also granted to minors
through emancipation by marriage and voluntary
concession (Arts. 234-236, Family Code; see also Arts.
397-406, Civil Code). Once emancipated, the person may
enter into juridical relations and sue or be sued without
need of parental intervention (see Baliwag Transit, Inc.
vs. Court of Appeals, 169 SCRA 849). Circumstances that
may restrict capacity to act, besides minority, include
insanity or imbecility, the state of being a deaf-mute,
prodigality and civil interdiction. These circumstances,
including minority, are mere restrictions on capacity to
act and do not necessarily exempt the incapacitated
persons from certain obligations such as those arising
from his acts or from property relations (Arts. 38, 39 and
1399, Civil Code). Thus, a minor may be estopped by his
misrepresentation (Mercado vs. Espiritu, 37 Phil. 215).
Where necessaries are sold and delivered to a minor or
incapacitated, he must pay a reasonable price therefor
(Art. 1489, Civil Code). An infant may be held liable for
his tortious conduct, a rule that is preferable than to let
the guiltless victim suffer the loss for the wrongful act
(see Magtibay vs. Tiangco, 74 Phil. 576).
Capacity to act is not limited on account of religious
belief or political opinion (Art. 39, Civil Code).
Under the Theory of General Capacities, which is
applicable to natural persons, one has the ability to do all
things with legal effects except only in those specific cir-

cumstances where the capacity to act is restrained. In
the case of juridical persons, the applicable rule is the
Theory of Special Capacities which limits the power of
such persons only to those that are expressly conferred
upon them or those which can be implied therefrom or
are incidental thereto.
Effects of Incapacity
The lack of capacity to act should not be confused
with lack of authority, such as by an agent who acts
beyond the scope or in excess of the authority granted by
the principal, or with disqualification that prohibits
persons (who may have both capacity as well as authority)
from acting or contracting on certain specified transactions
such as the prohibition of spouses to donate (Art. 133,
Civil Code) or to sell to each other (Art. 1490, Civil Code).
Generally, incapacity would result in a voidable act
(see Art 1390, Civil Code), except in a contract where
both parties are incapacitated which renders the
agreement unenforceable (Art. 1403, Civil Code); lack of
authority would normally render the act unenforceable
(Art. 1403, Civil Code) or occasionally void such as when
the party with which the actor has transacted is aware of
the latter’s lack of authority (Art. 1898, Civil Code) or
when the contract is a sale of a piece of land or any
interest therein (Art. 1874, Civil Code). Disqualifications,
being prohibitory in nature, would render the act or
contract executed by a disqualified person void unless
the law itself declares otherwise (see Arts. 5 and 1409,
Civil Code; Yuchengco vs. Velayo, 115 SCRA 307).
3. Cessation of Civil Personality

Civil personality is extinguished by death in the case
of the natural person and by termination of its existence
in the case of juridical persons.
Presumption of Survivorship
The Civil Code does not contain a presumption of
survivorship; the Code, instead, provides that if there is a
doubt, as between two or more natural persons who are
called to succeed each other, as to who between or among
them died first, whoever alleges the death of one prior to
the other shall prove the same. In the absence of proof, it
is presumed that they have died at the same time and
there shall be no transmission of rights from one to the
other (Art. 43, Civil Code). In respect to questions outside
of successional rights, the Revised Rules of Court sanctions
presumptions based on possibilities of relative strength,
such as age and sex, in death due to calamities (see Rule
131, Sec. 5[jj], Rules of Court).
61
TITLE II. CITIZENSHIP AND DOMICILE
Art. 48. The following are citizens of the Philip-

pines:
(1) Those who were citizens of the Philippines
at the time of the adoption of the Constitution of the
Philippines;
(2) Those born in the Philippines of foreign
parents who, before the adoption of said Constitution,
had been elected to public office in the Philippines;
(3) Those whose fathers are citizens of the
Philippines;
(4) Those whose mothers are citizens of the
Philippines and, upon reaching the age of majority,
elect Philippine citizenship;
(5) Those who are naturalized in accordance with
law. (n)
Art. 49. Naturalization and the loss and reacquisition
of citizenship of the Philippines are governed by special
laws. (n)
Art. 50. For the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural
persons is the place of their habitual residence. (40a)
Art. 51. When the law creating or recognizing them,
or any other provision does not fix the domicile of
juridical persons, the same shall be understood to be
the place where their legal representation is established
or where they exercise their principal functions. (41a)
The provisions of Article 48 of the Civil Code on

citizenship are now to be deemed modified by the following
provisions of Article IV of the 1987 Constitution, viz.:
61
“Sec. 1. The following are citizens of the Philip-

pines:
(1) Those who are citizens of the Philippines
at the time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citi-
zens of the Philippines;
(3) Those born before January 17, 1973, of Fili-
pino mothers, who elect Philippine citizenship upon
reaching the age of majority; and
(4) Those who are naturalized in accordance
with law.
Sec. 2. Natural-born citizens are those who are
citizens of the Philippines from birth without having
to perform any act to acquire or perfect their Philip-
pine citizenship. Those who elect Philippine citizen-
ship in accordance with paragraph (3), Section 1
hereof shall be deemed natural-born citizens.
Sec. 3. Philippine citizenship may be lost or
reacquired in the manner provided by law.
Sec. 4. Citizens of the Philippines who marry
aliens shall retain their citizenship, unless by their
act or omission they are deemed, under the law, to
have renounced it.
Sec. 5. Dual allegiance of citizens is inimical to
the national interest and shall be dealt with by law.”
Citizenship is a treasured right conferred on those
whom the state believes are deserving of the privilege. It
is a precious heritage, as well as an inestimable acquisi-
tion that cannot be taken lightly by anyone — either by
those who enjoy it or by those who dispute it (Maria
Jeanette C. Tecson, et al. vs. Commission on Elections,
et al., G.R. No. 161434; Zoilp Antonio Velez vs. Ronald
Kelley Poe, G.R. No. 161634; Victorino X. Fornier vs.
Comelec, et al., G.R. No. 161824; 03 March 2004).
Title II. Citizenship and Domicile
The Philippines has continued to adopt the jus san-

guinis rule. The principle of jus soli has never been ex-
tended to the Philippines (Sia Reyes vs. Deportation Board,
122 SCRA 478, overturning the statement earlier made
in the case of Roa vs. Collector of Customs, 3 Phil. 313,
and affirming the subsequent case of Tan Chiong vs. Sec-
retary of Labor, 79 Phil. 240).
An application for a foreign passport is a renuncia-
tion of Philippine citizenship (see Yu vs. Defensor-San-
tiago, 169 SCRA 364; Labo, Jr. vs. Commission on Elec-
tions, 176 SCRA 1).
A woman married to a citizen of the Philippines, and
who might herself be lawfully naturalized, shall be deemed
a citizen of the Philippines (Section 15, C.A. 473, as
amended), and no judicial action is warranted to estab-
lish such status (Burca vs. Republic, 51 SCRA 248; but
see Rule 108, Revised Rules of Court). Administrative
proceedings, such as by petition with the immigration
authorities for the cancellation of the wife’s Certificate of
Alien Registration, may be initiated to confirm admi-
nistratively that citizenship (Burca vs. Republic, supra).
Judicial recourse would then be available in case of an
adverse action by the Immigration Commission (Yung vs.
Republic, 159 SCRA 593). The naturalization of the hus-
band has also been held to have the effect of making the
wife herself a citizen (Po Siok Pin vs. Vivo, 62 SCRA 363),
provided she, too, has the qualifications and none of the
disqualification to be a naturalized Filipino.
Minor children born in the Philippines of persons
naturalized shall also be considered Philippine citizens.
Foreign-born minor children, if dwelling in the Philip-
pines at the time of the naturalization of the parent,
shall automatically become Philippine citizens. Foreign-
born minor children, who at the time of the naturaliza-
tion of the parent are not in the Philippines, shall be
deemed Philippine citizens only during their minority
unless they begin to reside permanently in the Philip-
pines when still minors in which case they shall continue

to be Philippine citizens even after becoming of age (Sec-
tion 15, C.A. 473, as amended; see also Ang vs. Galang,
67 SCRA 358). Alien children who are adopted by Philip-
pine citizens, or by those who become naturalized citi-
zens, do not themselves become Philippine citizens since
citizenship is specifically conferred by law and our laws
on adoption do not confer that status.
Domicile
The domicile of natural persons, for the exercise of
civil rights and the fulfillment of civil obligations, is the
place of their habitual residence (Art. 50, Civil Code).
Domicile means the permanent home, and it connotes
the place to which, whenever absent for business or
pleasure no matter how long, a person intends to return
(Ong Huan Tin vs. Republic, 19 SCRA 966). The term
legal residence and domicile are often used inter-
changeably although “residence” has a broader connota-
tion that may mean permanent (domicile), official (place
where one’s official duties may require him to stay) or
temporary (the place where he sojourns during a consider-
able length of time).
In the case of juridical persons, their domicile is the
place fixed in the law creating or recognizing them; in its
absence, their domicile is understood to be the place where
their legal representation is established or where they
exercise their principal functions (Art. 51, Civil Code). In
the case of private corporations, their domicile is the
place where their principal office is located (see Clavecilla
Radio System vs. Antillon, 19 SCRA 379). The domicile of
partnerships is their place of business (see McDonald vs.
National City Bank of New York, 99 Phil. 156).
65
TITLE III. MARRIAGE
Chapter 1
Requisites of Marriage
Author’s note: The provisions of the Civil Code

in this title have been repealed by the Family Code
(incorporated in this work, with annotations, as an
Addendum to Book I hereof) which took effect on 3
August 1988.
Art. 52. Marriage is not a mere contract but an

inviolable social institution. Its nature, consequences
and incidents are governed by law and not subject to
stipulation, except that the marriage settlements may to
a certain extent fix the property relations during the
marriage. (n)
Art. 53. No marriage shall be solemnized unless
all these requisites are complied with:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) Authority of the person performing the
marriage; and
(4) A marriage license, except in a marriage of
exceptional character. (Sec.1a, Art. 3613).
Art. 54. Any male of the age of sixteen years or
upwards, and any female of the age of fourteen years or
upwards, not under any of the impediments mentioned
in Articles 80 to 84, may contract marriage. (2)
Art. 55. No particular form for the ceremony of
marriage is required, but the parties with legal capacity
to contract marriage must declare, in the presence of
65
the person solemnizing the marriage and of two wit-

nesses of legal age, that they take each other as hus-
band and wife. This declaration shall be set forth in an
instrument in triplicate, signed by signature or mark
by the contracting parties and said two witnesses and
attested by the person solemnizing the marriage.
In case of a marriage on the point of death, when
the dying party, being physically unable, cannot sign
the instrument by signature or mark, it shall be
sufficient for one of the witnesses to the marriage to
sign in his name, which fact shall be attested by the
minister solemnizing the marriage. (3)
Art. 56. Marriage may be solemnized by:
(1) The Chief Justice and Associate Justices of
the Supreme Court;
(2) The Presiding Justice and the Justices of the
Court of Appeals;
(3) Judges of the Court of First Instance;
(4) Mayors of cities and municipalities;
(5) Municipal judges and justices of the peace;
(6) Priests, rabbis, ministers of the gospel of any
denomination, church, religion or sect, duly registered,
as provided in Article 92; and
(7) Ship captains, airplane chiefs, military com-
manders, and consuls and vice-consuls in special cases
provided in Articles 74 and 75. (4a)
Art. 57. The marriage shall be solemnized publicly
in the office of the judge in open court or of the mayor,
or in the church, chapel or temple, as the case may be,
and not elsewhere, except in cases of marriages
contracted on the point of death or in remote places in
accordance with Article 72 of this Code, or in case of
marriage referred to in Article 76 or when one of the
parents or the guardian of the female or the latter herself
if over eighteen years of age request it in writing, in
which cases the marriage may be solemnized at a house
or place designated by said parent or guardian of the
Title III. Marriage
female or by the latter herself in a sworn statement to

that effect. (5a)
Art. 58. Save marriages of an exceptional character
authorized in Chapter 2 of this Title, but not those under
Article 75, no marriage shall be solemnized without a
license first being issued by the local civil registrar of
the municipality where either contracting party
habitually resides. (7a)
Art. 59. The local civil registrar shall issue the
proper license if each of the contracting parties swears
separately before him or before any public official
authorized to administer oaths, to an application in
writing setting forth that such party has the necessary
qualifications for contracting marriage. The applicants,
their parents or guardians shall not be required to
exhibit their residence certificates in any formality in
connection with the securing of the marriage license.
Such application shall insofar as possible contain the
following data:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age, date of birth;
(4) Civil status (single, widow or widower, or
divorced);
(5) If divorced, how and when the previous
marriage was dissolved;
(6) Present residence;
(7) Degree of relationship of the contracting
parties;
(8) Full name of the father;
(9) Residence of the father;
(10) Full name of the mother;
(11) Residence of the mother;
(12) Full name and residence of the guardian or
person having charge, in case the contracting party
has neither father nor mother and is under the age of
68 CIVIL LAW Art. 60
twenty years if a male, or eighteen years if a female.

(7a)
Art. 60. The local civil registrar, upon receiving
such application, shall require the exhibition of the
original baptismal or birth certificates of the contracting
parties or copies of such documents duly attested by
the persons having custody of the originals. These
certificates or certified copies of the documents
required by this article need not be sworn to and shall
be exempt from the documentary stamp tax. The
signature and official title of the person issuing the
certificate shall be sufficient proof of its authenticity.
If either of the contracting parties is unable to
produce his baptismal or birth certificate or a certified
copy of either because of the destruction or loss of the
original, or if it is shown by an affidavit of such party
or of any other person that such baptismal or birth
certificate has not yet been received though the same
has been requested of the person having custody
thereof at least fifteen days prior to the date of the
application, such party may furnish in lieu thereof his
residence certificate for the current year or any previous
years, to show the age stated in his application or, in
the absence thereof, an instrument drawn up and sworn
to before the local civil registrar concerned or any
public official authorized to solemnize marriage. Such
instrument shall contain the sworn declaration of two
witnesses, of lawful age, of either sex, setting forth the
full name, profession, and residence of such contracting
party and of his or her parents, if known, and the place
and date of birth of such party. The nearest of kin of
the contracting parties shall be preferred as witnesses,
and in their default, persons well known in the province
or the locality for their honesty and good repute.
The exhibition of baptismal or birth certificates
shall not be required if the parents of the contracting
parties appear personally before the local civil registrar
concerned and swear to the correctness of the lawful
age of said parties, as stated in the application, or
when the local civil registrar shall, by merely looking
Title III. Marriage
at the applicants upon their personally appearing be-

fore him, be convinced that either or both of them have
the required age. (8a)
Art. 61. In case either of the contracting parties is
a widowed or divorced person, the same shall be
required to furnish, instead of the baptismal or birth
certificate required in the last preceding article, the
death certificate of the deceased spouse or the decree
of the divorce court, as the case may be. In case the
death certificate cannot be found, the party shall make
an affidavit setting forth this circumstance and his or
her actual status and the name and the date of the
death of the deceased spouse.
In case either or both of the contracting parties,
being neither widowed nor divorced, are less than
twenty years of age as regards the male and less
eighteen years as regards the female, they shall, in
addition to the requirements of the preceding articles,
exhibit to the local civil registrar, the consent to their
marriage, of their father, mother or guardian, or persons
having legal charge of them, in the order mentioned.
Such consent shall be in writing, under oath taken with
the appearance of the interested parties before the
proper local civil registrar or in the form of an affidavit
made in the presence of two witnesses and attested
before any official authorized by law to administer
oaths. (9a)
Art. 62. Males above twenty but under twenty-five
years of age, or females above eighteen but under
twenty-three years of age, shall be obliged to ask their
parents or guardian for advice upon the intended
marriage. If they do not obtain such advice, or if it be
unfavorable, the marriage shall take place till after three
months following the completion of the publication of
the application for marriage license. A sworn statement
by the contracting parties to the effect that such advice
has been sought, together with the written advice given,
if any, shall accompany the application for marriage
license. Should the parents or guardian refuse to give
any advice, this fact shall be stated in the sworn
declaration. (n)
Art. 63. The local civil registrar shall post during

ten consecutive days at the main door of the building
where he has his office a notice, the location of which
shall not be changed once it has been placed, setting
forth the full names and domiciles of the applicants for
a marriage license and other information given in the
application. This notice shall request all persons having
knowledge of any impediment to the marriage to advise
the local civil registrar thereof. The license shall be
issued after the completion of the publication, unless
the local civil registrar receives information upon any
alleged impediment to the marriage. (10a)
Art. 64. Upon being advised of any alleged
impediment to the marriage, the local registrar shall
forthwith make an investigation, examining persons
under oath. If he is convinced that there is an
impediment to the marriage, it shall be his duty to
withhold the marriage license, unless he is otherwise
ordered by a competent court. (n)
Art. 65. The local civil registrar shall demand the
previous payment of fees required by law or regulations
for each license issued. No other sum shall be collected,
in the nature of a fee or tax of any kind, for the issuance
of a marriage license. Marriage licenses shall be issued
free of charge to indigent parties, when both male and
female do not each own assessed real property in
excess of five hundred pesos, a fact certified to, without
cost, by the provincial treasurer, or in the absence
thereof, by a statement duly sworn to by the contracting
parties before the local civil registrar. The license shall
be valid in any part of the Philippines; but it shall be
good for no more than one hundred and twenty days
from the date on which it is issued and shall be deemed
cancelled at the expiration of said period if the
interested parties have not made use of it. (11a)
Art. 66. When either or both of the contracting
parties are citizens or subjects of a foreign country, it
shall be necessary, before a marriage license can be
obtained, to provide themselves with a certificate of
legal capacity to contract marriage, to be issued by
their respective diplomatic or consular officials. (13a)
Title III. Marriage
Art. 67. The marriage certificate in which the con-

tracting parties shall state that they take each other as
husband and wife, shall also contain:
(1) The full names and domiciles of the contract-
ing parties;
(2) The age of each;
(3) A statement that the proper marriage license
has been issued according to law and that the
contracting parties have the consent of their parents
in case the male is under twenty or the female under
eighteen years of age; and
(4) A statement that the guardian or parent has
been informed of the marriage, if the male is between
the ages of twenty and twenty-five years, and the female
between eighteen and twenty-three years of age. (15a)
Art. 68. It shall be the duty of the person solemnizing
the marriage to furnish to either of the contracting parties
one of the three copies of the marriages contract referred
to in Article 55, and to send another copy of the document
not later than fifteen days after the marriage took place
to the local civil registrar concerned, whose duty it shall
be to issue the proper receipt to any person sending a
marriage contract solemnized by him, including
marriages of an exceptional character. The official, priest,
or minister solemnizing the marriages shall retain the
third copy of the marriage contract, the marriage license
and the affidavit of the interested party regarding the
solemnization of the marriage in a place other than those
mentioned in Article 57 if there be any such affidavit, in
the files that he must keep. (16a)
Art. 69. It shall be the duty of the local civil
registrar to prepare the documents required by this
Title, and to administer oaths to all interested parties
without any charge in both cases.
The documents and affidavits filed in connection
with applications for marriage licenses shall be exempt
from the documentary stamp tax. (17a)
Art. 70. The local civil registrar concerned shall
enter all applications for marriage licenses filed with
him in a register book strictly in the order in which the

same shall be received. He shall enter in said register
the names of the applicants, the date on which the
marriage license was issued, and such other data as
may be necessary. (18a)
Art. 71. All marriages performed outside the
Philippines in accordance with the laws in force in the
country where they were performed, and valid there as
such, shall also be valid in this country, except bigamous,
polygamous, or incestuous marriages as determined by
Philippine law. (19a)
Concept of Marriage
The Civil Code defines marriage not as a mere
contract but as an inviolable social institution whose
nature, consequences and incidents are governed by law
and not subject to stipulation, except that the marriage
settlements may fix to a certain extent the property
relations during the marriage (Art. 52, Civil Code).
Marriage is the basis of human society and a relation
that is imbued with public interest. Every intendment of
the law leans towards legalizing matrimony (Alavado vs.
City Government of Tacloban, 139 SCRA 230).
In Calimlim-Canullas vs. Fortun (129 SCRA 675),
Mercedes Calimlim-Canullas and Fernando Canullas
were married in 1962. The couple built a house on the
land owned by Fernando’s father. After the father’s death,
Fernando Canullas inherited the land. In 1978, Fernando
abandoned his family and lived with Corazon Daguines.
In 1980, he sold the house and lot to Corazon who
thereafter filed a complaint against Mercedes for Quieting
of Title. One issue raised before the Supreme Court was
whether the sale of the house and lot to Corazon was
valid. The Court ruled:
“x x x We find that the Contract of Sale was null
and void for being contrary to morals and public
policy. The sale was made by a husband in favor of a
Title III. Marriage
concubine after he had abandoned his family and

left the conjugal home where his wife and children
lived and from whence they derived their support.
That sale was subversive of the stability of the family,
a basic social institution which public policy cherishes
and protects.”
Requisites of Marriage
A valid marriage requires compliance with the
following requisites:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) Authority of the person performing the mar-
riage; and
(4) A marriage license, except in certain marriages
of exceptional character (Art. 53, Civil Code).
Legal Capacity
Any male of the age of sixteen years or upwards and
any female of the age of fourteen years or upwards, not
otherwise disqualified by law, may enter into a contract
of marriage (Art. 54, Civil Code). In case either or both of
the contracting parties, being neither widowed nor
divorced, are less than twenty years of age as regards the
male and less than eighteen years as regards the female,
the written and sworn consent to their marriage of their
father, mother or guardian, or persons having legal charge
of them, in the order mentioned, is required (Art. 61,
Civil Code). The marriage, in the absence of such consent,
may be annulled by the party whose parent or guardian
did not give consent within four years after attaining the
age of twenty or eighteen years, as the case may be, or by
the parent or guardian or person having legal charge at
any time before such party has reached the age, respec-
tively, of twenty or eighteen years (Art. 85 and Art. 87,

Civil Code). The right to annul the marriage is lost if
after attaining the ages of twenty or eighteen years, as
the case may be, the party to the marriage entitled to
bring the action should have freely cohabited with the
other and both lived together as husband and wife (Art.
85, Civil Code).
There is a conflict of views on whether or not the
voidable marriage is convalidated by parental consent
being given after the marriage. The better view appears
to be that the convalidation thereof or of any other voidable
contract (not void contracts which are not convalidated)
is legally feasible only under and within the means
explicitly expressly sanctioned by law. In the case of
voidable marriages, the only methods of convalidation
expressed by law are by prescription and by cohabitation
(see Art. 85 and Art. 87, Civil Code).
Males above twenty but under twenty-five years of
age, or females above eighteen but below twenty-three
years of age shall be obliged to ask their parents or
guardians for advice upon the intended marriage. If they
do not obtain such advice, or if it be unfavorable, the
marriage shall not take place until after three months
following the completion of the publication of the
application for marriage license (Art. 62, Civil Code). The
failure to obtain such advice shall not, however, invalidate
the marriage.
The law recognizes only two cases of absolute
disqualifications, viz.: (a) those below the age of consent
to a marriage, i.e., males below sixteen and females below
fourteen years of age (Art. 54 and Art. 80, Civil Code);
and (b) those who are guilty of having killed his or her
spouse (Art. 80, Civil Code). Relative disqualifications,
such as those due to civil and natural relationship of the
parties, may likewise negate the validity of a marriage
(see Arts. 80-82, Civil Code, infra.).
Title III. Marriage
Consent of Parties
Like any other contract, consent of the contracting
parties should be free from vices of consent; unlike,
however, in ordinary contracts, the vices of consent in
marriage are more stringent than in such other contracts.
The attendance of violence, intimidation, fraud or the
state of being of unsound mind may vitiate consent that
can render the contract voidable (Arts. 85- 86, Civil Code).
A breach of promise to marry is neither enforceable
nor, by itself, otherwise actionable, except that to the
extent one has acted in a manner that is contrary to
morals, good customs or policy, in which case, the person
upon whom it is exercised may be compensated for the
damage that may have been sustained (see Art. 19 and
Art. 21, Civil Code; Hermosisima vs. Court of Appeals,
et al., 109 Phil. 629).
Authority of Solemnizing Officer

A marriage may be solemnized by:
(1) The Chief Justice and Associate Justices of the
Supreme Court;
(2) The Presiding Justice and the Justices of the
Court of Appeals;
(3) Judges of the Courts of First Instance;
(4) Mayors of cities and municipalities (including
“acting mayors” or vice-mayors acting as mayors [People
vs. Bustamante, 105 Phil. 64]).
(5) Municipal judges and Justices of the Peace;
(6) Priests, rabbis, ministers of the gospel of any
denomination, church, religion or sect, duly registered,
as provided in Article 92; and
(7) Ship captains, airplane chiefs, military com-
manders, and consuls and vice-consuls in special cases
provided in articles 74 and 75 (Art. 56, Civil Code).
Accordingly, the President of the Philippines may

not solemnize a marriage except possibly during war when
he, as the Commander-in-Chief of the Armed Forces of
the Philippines and in the absence of a chaplain, celebrates
a marriage in articulo mortis (see Art. 74, Civil Code).
Similarly, the Presiding Justice and Associate Justices of
the Sandiganbayan, not being specifically authorized by
law, may not solemnize a marriage.
The lack of authority of the solemnizing officer
renders the contract void ab initio (Art. 80, Civil Code).
No particular form for the ceremony is required; it is
enough that the parties declare, in the presence of the
person solemnizing the marriage and of two witnesses of
legal age, that they take each other as husband and wife
(Art. 55, Civil Code). The law does not thus appear to
authorize a party’s representation by proxy.
Marriage License
A marriage license is a prerequisite to the marriage.
The license is issued by the local civil registrar of the
municipality where either contracting party habitually
resides upon an application in writing of the contracting
parties and the registrar’s being satisfied that no legal
impediment to such marriage exists (Arts. 58-60, Civil
Code; see also P.D. No. 965, requiring applicants for
marriage license to receive instructions on family planning
and responsible parenthood).
A marriage license is valid in any part of the Philip-
pines, but it shall be good for not more than 120 days
from the date it is issued, and it shall be deemed cancelled
by the expiration of said period if the interested parties
have not made use of it (Art. 65, Civil Code).
When either or both of the contracting parties are
citizens or subjects of a foreign country, it shall be neces-
sary before a marriage license can be obtained to provide
themselves with a certificate of legal capacity to contract
Title III. Marriage
marriage, to be issued by their respective diplomatic or

consular officials (Art. 66, Civil Code).
A marriage without a validly issued license having
first been obtained is void ab initio (see Art. 80, Civil
Code); but the issuance of a marriage license in violation
of Article 84 of the Civil Code (prohibiting its issuance to
a widow until after 300 days following the death of the
husband), while subjecting her to a possible penal liability,
does not invalidate the marriage (see People vs. Rosal, 49
Phil. 509).
Foreign Marriages
Article 71 of the Civil Code provides:
“All marriages performed outside the Philip-
pines in accordance with the laws in force in the
country where they were performed, and valid there
as such, shall also be valid in this country, except
bigamous, polygamous, or incestuous marriages as
determined by Philippine law.”
Although quasi-incestuous marriages under Article
82 of the Code were not excepted along with bigamous
and incestuous marriages, the third paragraph of Article
17 of the same Code — providing that “prohibitive laws
concerning persons, their acts or property and those which
have for their object public order, public policy and good
customs shall not be rendered ineffective by laws or judg-
ments promulgated, or by determinations or conventions
agreed upon, in a foreign country” — may still render
such marriages of extremely doubtful validity.
Presumption of Marriage
A man and a woman deporting themselves as
husband and wife are prima facie presumed to have
entered into a lawful contract of marriage (Rule 131, Sec.
5[bb], Revised Rules of Court; Vda. De Labuca vs.
Workmen’s Compensation Commission, 77 SCRA 331;
Alavado vs. City Government of Tacloban, supra.), but

other attendant circumstances to the contrary may offset
that presumption (see Fernandez vs. Puatu, et al., 102
Phil. 363).
Chapter 2
Marriages of Exceptional Character
Art. 72. In case either of the contracting parties is

on the point of death or the female has her habitual
residence at a place more than fifteen kilometers distant
from the municipal building and there is no commu-
nication by railroad or by provincial or local highways
between the former and the latter, the marriage may be
solemnized without necessity of a marriage license;
but in such cases the official, priest, or minister
solemnizing it shall state in an affidavit made before
the local civil registrar or any person authorized by
law to administer oaths that the marriage was performed
in articulo mortis or at a place more than fifteen
kilometers distant from the municipal building
concerned, in which latter case he shall give the name
of the barrio where the marriage was solemnized. The
person who solemnized the marriage shall also state,
in either case, that he took the necessary steps to
ascertain the ages and relationship of the contracting
parties and that there was in his opinion no legal
impediment to the marriage at the time that it was
solemnized. (20)
Art. 73. The original of the affidavit required in the
last preceding article, together with a copy of the
marriage contract, shall be sent by the person
solemnizing the marriage to the local civil registrar of
the municipality where it was performed within the
period of thirty days after the performance of the
marriage. The local civil registrar shall, however, before,
filing of the papers, require the payment into the
municipal treasury of the legal fees required in Article
65. (21)
Art. 74. A marriage in articulo mortis may also be
solemnized by the captain of a ship or chief of an air-
Title III. Marriage
plane during a voyage, or by the commanding officer

of a military unit, in the absence of a chaplain, during
war. The duties mentioned in the two preceding articles
shall be complied with by the ship captain, airplane
chief or commanding officer. (n)
Art. 75. Marriages between Filipino citizens abroad
may be solemnized by consuls and vice-consuls of the
Republic of the Philippines. The duties of the local
civil registrar and of a judge or justice of the peace or
mayor with regard to the celebration of marriage shall
be performed by such consuls and vice-consuls. (n)
Art. 76. No marriage license shall be necessary
when a man and a woman who have attained the age
of majority and who, being unmarried, have lived
together as husband and wife for at least five years,
desire to marry each other. The contracting parties shall
state the foregoing facts in an affidavit before any
person authorized by law to administer oaths. The
official, priest or minister who solemnized the marriage
shall also state in an affidavit that he took steps to
ascertain the ages and other qualifications of the
contracting parties and that he found no legal
impediment to the marriage. (n)
Art. 77. In case two persons married in accordance
with law desire to ratify their union in conformity with
the regulations, rites, or practices of any church, sect,
or religion, it shall no longer be necessary to comply
with the requirements of Chapter 1 of this Title and
any ratification so made shall merely be considered as
a purely religious ceremony. (23)
Art. 78. Marriages between Mohammedans or
pagans who live in the non-Christian provinces may
be performed in accordance with their customs, rites
or practices. No marriage license or formal requisites
shall be necessary. Nor shall the persons solemnizing
these marriages be obliged to comply with Article 92.
However, twenty years after the approval of this
Code all marriages performed between Mohammedans
or pagans shall be solemnized in accordance with the
provisions of this Code. But the President of the
Philippines, upon recommendation of the Secretary of

the Interior, may at any time before the expiration of
said period, by proclamation, make any of said
provisions applicable to the Mohammedan and non-
Christian inhabitants of any of the non-Christian
provinces. (25a)
Art. 79. Mixed marriages between a Christian male
and a Mohammedan or pagan female shall be governed
by the general provisions of this Title and not by those
of the last preceding article, but mixed marriages
between a Mohammedan or pagan male and a Christian
female may be performed under the provisions of the
last preceding article if so desired by the contracting
parties, subject, however, in the latter case to the
provisions of the second paragraph of said article. (26)
Marriages of Exceptional Character

Marriages of exceptional character, which can dis-
pense with the marriage license or such formal requisites
for its issuance as the birth or baptismal certificate,
posting of notice or publication, or which can deviate to
some extent from the strict adherence to the legal require-
ments of marriage, are the following:
(a) In case either of the contracting parties is
on the point of death or the female has her habitual
residence at a place more than fifteen kilometers
distant from the municipal building and there is no
communication by railroad or by provincial or local
highways between the former and the latter, the
marriage may be solemnized without necessity of a
marriage license; but in such cases the official, priest,
or minister solemnizing shall state in an affidavit
made before the local civil registrar or any person
authorized by law to administer oaths that the
marriage was performed in articulo mortis or at a
place more than fifteen kilometers distant from the
municipal building concerned, in which latter case
he shall give the name of the barrio where the
Title III. Marriage
marriage was solemnized. The person who solem-

nized the marriage shall also state, in either case,
that he took the necessary step to ascertain the ages
and relationship of the contracting parties and that
there was in his opinion no legal impediment to the
marriage at the time it was solemnized (Art. 72,
Civil Code).
The original of the requisite affidavit, together
with a copy of the marriage contract, shall be sent by
the person solemnizing the marriage to the local
civil registrar of the municipality where it was
performed within a period of thirty days after the
performance of the marriage (Art. 73, Civil Code).
(b) A marriage in articulo mortis may also be
solemnized by the captain of a ship or chief of an
airplane during a voyage, or by the commanding
officer of a military unit, in the absence of a chaplain,
during war. The duties mentioned in the preceding
paragraph shall be complied with by the ship captain,
airplane chief or commanding officer (Art. 74, Civil
Code).
(c) Marriages between Filipino citizens abroad
may be solemnized by consuls and vice-consuls of
the Republic of the Philippines. The duties of the
local civil registrar and of a judge or justice of the
peace or mayor with regard to the celebration of
marriage shall be performed by such consuls and
vice-consuls (Art. 75, Civil Code).
(d) No marriage license shall be necessary
when a man and a woman, who have attained the
age of majority and who, being unmarried, have lived
together as husband and wife for at least five years,
desire to marry each other. The contracting parties
shall state the foregoing facts in an affidavit before
any person authorized by law to administer oaths.
The official, priest or minister who solemnized the
marriage shall also state in an affidavit that he has
taken steps to ascertain the ages and other quali-

fications of the contracting parties and that he has
found no legal impediment to the marriage (Art. 76,
Civil Code).
(e) In case two persons married in accordance
with law desire to ratify their union in conformity
with the regulations, rites, or practices of any church,
sect, or religion, it shall no longer be necessary to
comply with the requirements of a valid marriage,
and any ratification so made shall merely be
considered as a purely religious ceremony (Art. 77,
Civil Code).
(f) Marriages between Muslims, or wherein
only the male party is a Muslim and the marriage is
solemnized in accordance with the Muslim law or
Code of Muslim Personal Laws of the Philippines,
shall be governed by said Code. In case, however, of
a marriage between a Muslim and a non-Muslim not
solemnized in accordance with the Muslim law or
Muslim Code, the Civil Code of the Philippines will
apply (Sec. 13, Code of Muslim Personal Laws of the
Philippines).
Chapter 3
Void and Voidable Marriages
Art. 80. The following marriages shall be void from

the beginning:
(1) Those contracted under the ages of sixteen
and fourteen years by the male and female respectively,
even with the consent of the parents;
(2) Those solemnized by any person not legally
authorized to perform marriages;
(3) Those solemnized without a marriage license,
save marriages of exceptional character;
(4) Bigamous or polygamous marriages not
falling under Article 83, number 2;
Title III. Marriage
(5) Incestuous marriages mentioned in Article 81;

(6) Those where one or both contracting parties
have been found guilty of the killing of the spouse of
either of them;
(7) Those between stepbrothers and stepsisters
and other marriages specified in Article 82. (n)
Art. 81. Marriages between the following are
incestuous and void from their performance, whether
the relationship between the parties be legitimate or
illegitimate:
(1) Between ascendants and descendants of any
degree;
(2) Between brothers and sisters, whether of the
full or half blood;
(3) Between collateral relatives by blood within
the fourth civil degree; (28a)
Art. 82. The following marriages shall also be void
from the beginning:
(1) Between stepfathers and stepdaughters, and
stepmothers and stepsons;
(2) Between the adopting father or mother and
the adopted, between the latter and the surviving
spouse of the former, and between the former and the
surviving spouse of the latter;
(3) Between the legitimate children of the adopter
and the adopted. (28a)
Art. 83. Any marriage subsequently contracted by
any person during the lifetime of the first spouse of
such person with any person other than such first
spouse shall be illegal and void from its performance,
unless:
(1) The first marriage was annulled or dissolved;
or
(2) The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or if the absentee, though he has

been absent for less than seven years, is generally
considered as dead and believed to be so by the spouse
present at the time of contracting such subsequent
marriage, or if the absentee is presumed dead accord-
ing to Articles 390 and 391. The marriage so contracted
shall be valid in any of the three cases until declared
null and void by a competent court. (29a)
Art. 84. No marriage license shall be issued to a
widow till after three hundred days following the death
of her husband, unless in the meantime she has given
birth to a child. (n)
Art. 85. 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 between the ages of
sixteen and twenty years, if male, or between the ages
of fourteen and eighteen years, if female, and the
marriage was solemnized without the consent of the
parent, guardian or person having authority over the
party, unless after attaining the ages of twenty or
eighteen years, as the case may be, such party freely
cohabited with the other and both lived together as
husband and wife;
(2) In a subsequent marriage under Article 83,
number 2, that the former husband or wife believed to
be dead was in fact living and the marriage with such
former husband or wife was then in force;
(3) That either party was of unsound mind,
unless such party, after coming to reason, freely
cohabited with the other as husband or wife;
(4) 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 her husband or his wife, as
the case may be;
by force or intimidation, unless the violence or threat
having disappeared, such party afterwards freely
Title III. Marriage
cohabited with the other as her husband or his wife, as

the case may be;
(6) That either party was, at the time of marriage,
physically incapable of entering into the married state,
and such incapacity continues, and appears to be
incurable. (30a)
Art. 86. Any of the following circumstances shall
constitute fraud referred to in number 4 of the preceding
article:
(1) Misrepresentation as to the identity of one of
the contracting parties;
(2) Non-disclosure of the previous conviction of
the other party of a crime involving moral turpitude,
and the penalty imposed was imprisonment for two
years or more;
(3) Concealment by the wife of the fact that at
the time of the marriage, she was pregnant by a man
other than her husband.
No other misrepresentation or deceit as to
character, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment
of marriage. (n)
Art. 87. The action for annulment of marriage must
be commenced by the parties and within the periods
as follows:
(1) For causes mentioned in number 1 of Article
85, by the party whose parent or guardian did not give
his or her consent, within four years after attaining the
age of twenty or eighteen years, as the case may be;
or by the parent or guardian or person having legal
charge, at any time before such party has arrived at
the age of twenty or eighteen years;
85, by the spouse who has been absent, during his or
her lifetime; or by either spouse of the subsequent
marriage during the lifetime of the other;
85, by the sane spouse, who had no knowledge of the
other’s insanity; or by any relative or guardian of the

party of unsound mind, at any time before the death of
either party;
(4) For causes mentioned in number 4, by the
injured party, within four years after the discovery of
the fraud;
injured party, within four years from the time the force
or intimidation ceased;
injured party, within eight years after the marriage. (31a)
Art. 88. No judgment annulling a marriage shall
be promulgated upon a stipulation of facts or by
confession of judgment.
In case of non-appearance of the defendant, the
provisions of Article 101, paragraph 2, shall be observed.
(n)
Art. 89. Children conceived or born of marriages
which are void from the beginning shall have the same
status, rights and obligations as acknowledged natural
children, and are called natural children by legal fiction.
Children conceived of voidable marriages before
the decree of annulment shall be considered as
legitimate; and children conceived thereafter shall have
the same status, rights and obligations as acknow-
ledged natural children, and are also called natural
children by legal fiction. (n)
Art. 90. When a marriage is annulled, the court
shall award the custody of the children as it may deem
best, and make provision for their education and
support. Attorney’s fees and expenses incurred in the
litigation shall be charged to the conjugal partnership
property, unless the action fails. (33a)
Art. 91. Damages may be awarded in the following
cases when the marriage is judicially annulled or
declared void from the beginning:
(1) If there has been fraud, force or intimidation
in obtaining the consent of one of the contracting parties;
Title III. Marriage
(2) If either party was, at the time of the mar-

riage, physically incapable of entering into the married
state, and the other party was unaware thereof;
(3) If the person solemnizing the marriage was
not legally authorized to perform marriages, and that
fact was known to one of the contracting parties, but
he or she concealed it from the other;
(4) If a bigamous or polygamous marriage was
celebrated, and the impediment was concealed from
the plaintiff by the party disqualified;
(5) If in an incestuous marriage, or a marriage
between a stepbrother and stepsister or other marriage
prohibited by Article 82, the relationship was known to
only one of the contracting parties but was not
disclosed to the other;
(6) If one party was insane and the other was
aware thereof at the time of the marriage. (n)
Defective Marriages
The defective marriages under the Code are either
void or voidable.
A. Void Marriages
Under Article 80 of the Civil Code, the following
marriages have been declared void from the beginning:
(1) Those contracted by the male and the
female below the ages of sixteen and fourteen years,
respectively, even with the consent of the parents;
(2) Those solemnized by a person who is not
legally authorized to perform marriages;
(3) Those solemnized without a marriage
license, except in certain marriages of exceptional
character;
(4) Bigamous or polygamous marriages not
falling under Article 83, number 2, of the Code;
(5) Incestuous marriages mentioned in Article

81 of the same Code;
(6) Those where one or both contracting parties
have been found guilty of the killing of the spouse of
either of them; and
(7) Those between stepbrothers and stepsisters
and other quasi-incestuous marriages specified in
Article 82 of the Code.
Prohibited marriages between blood relatives are
incestuous and void from their performance, whether the
relationship between the parties be legitimate or illegi-
timate. These void marriages include those between —
(1) Ascendants and descendants of any degree;
(2) Brothers and sisters, whether of the full or
half-blood; and
(3) Collateral relatives by blood within the
fourth civil degree (see Art. 81, Civil Code).
Commonly referred to as being quasi-incestuous,
certain marriages are also declared void due to civil
relationship, thusly:
(1) Between stepfathers and stepdaughters,
and stepmothers and stepsons;
(2) Between stepbrothers and stepsisters;
(3) Between the adopting father or mother and
the adopted, between the latter and the surviving
spouse of the former, and between the former and
the surviving spouse of the latter; and
(4) Between the legitimate children of the
adopter and the adopted (see Art. 80, in relation to
Art. 82, Civil Code).
In respect of bigamous marriages, the Code holds to
be illegal and void from its inception any marriage
subsequently contracted by any person during the lifetime
of the first spouse, unless —
Title III. Marriage
(1) The first marriage is first annulled or dis-

solved; or
(2) The first spouse has been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or if the absentee, though he
has been absent for less than seven years, is generally
considered as dead and believed to be so by the spouse
present at the time of contracting such subsequent
marriage, or if the absentee is presumed dead
according to Article 390 and Article 391 of the Code.
The marriage so contracted shall be valid in any of
these instances until declared null and void by a
competent court (see Art. 83, Civil Code).
Void marriages are inexistent from the very
beginning and no judicial decree is required to establish
their nullity (Odayat vs. Amante, 77 SCRA 338; see also
People vs. Aragon, 100 Phil. 1033). It has been held that a
subsequent marriage of one of the spouses of the void
marriage is itself void if it were contracted before a judicial
declaration of nullity of the prior marriage (Wiegel vs.
Judge Sempio-Dy, 143 SCRA 499). This pronouncement
was subsequently abandoned in Yap vs. Court of Appeals
(145 SCRA 229). Such void marriages, however, are not
totally without legal effects; hence, children of void
marriages are deemed to be natural children by legal
fiction (Art. 89, Civil Code), and the property relationship
of the spouses may, to a certain extent, be governed by
the rules on co-ownership (Art. 144, Civil Code, infra.),
but not if the parties thereto suffer from any legal
impediment to marry (Juaniza vs. Jose, 89 SCRA 306;
Maxey vs. Court of Appeals, 129 SCRA 187).
B. Voidable Marriages
A voidable marriage is valid until it is judicially
annulled. Such a marriage may be annulled for any cause
existing at the time of the marriage, to wit:
(1) That the party in whose behalf it is sought

to have the marriage annulled was between the ages
of sixteen and twenty years, if male, or between the
ages of fourteen and eighteen years, if female, and
the marriage was solemnized without the consent of
the parent, guardian or person having authority over
the party, unless after attaining the ages of twenty
or eighteen years, as the case may be, such party
freely cohabited with the other and both lived
together as husband and wife;
(2) In a subsequent marriage under Article 83,
number 2 of the Code, that the former husband or
wife believed to be dead was in fact living and the
marriage with such former husband or wife was still
then in force;
(3) That either party was of unsound mind,
unless such party, after coming to reason, freely
(4) 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 her husband or
his wife, as the case may be;
(5) That the consent of either party was
obtained by force or intimidation, unless the violence
or threat having disappeared, such party afterwards
freely cohabited with the other as her husband or
his wife, as the case may be; and
(6) That either party was, at the time the
marriage is celebrated, physically incapable of enter-
ing into the married state, and such incapacity
continues and appears to be incurable (see Art. 85,
Civil Code).
Voidable Subsequent Marriage

In order that the subsequent marriage referred to in
paragraph (2) of Article 83 (supra.) may be considered
Title III. Marriage
valid, the spouse present (not the absentee spouse) con-

tracting the later marriage must have done so in good
faith. The good faith or bad faith of the other contracting
party to the subsequent marriage is not really that
consequential (Lapuz vs. Eufemio, 43 SCRA 177). A
judicial declaration of absence of the absentee spouse,
however, has been held not to be necessary (Jones vs.
Hortiguela, 64 Phil. 179).
Article 83 of the Civil Code requires either spouse
that there be no news that the absentee is still alive, or
the absentee is generally considered dead and believed to
be so by the spouse present, or is presumed dead under
Article 390 and Article 391 of the Civil Code. It is
noteworthy that in imposing a stricter standard, Article
41 of the Family Code prescribes a well-founded belief
that the absentee is already dead before declaration of
presumptive death can be granted (Republic vs. Nolasco,
220 SCRA 20).
Under the status quo rule, the second voidable
marriage, prior to its annulment, should be respected
more than the first marriage, the disturbance to the
circumstances of the parties being brought about not by
the celebration of the subsequent marriage but by the
appearance of the absentee spouse. It would be superficial
to hold that the first marriage should have preference
over the second marriage, even before the latter is
annulled, merely on the basis that, as against a voidable
marriage, a valid marriage has greater strength than the
other.
Insanity
Insanity, as a vice of consent in marriage, should
exist at the time of marriage. To be of “unsound mind,”
there must be a manifestation, in language or conduct, of
disease or defect of the brain, or more or less permanently
diseased or disordered condition of the mentality,
functional or organic, and characterized by perversion,
inhibition, or disordered function of the sensory or of the

intellective faculties, or by impaired or disordered volition
(Engle vs. Doe, 47 Phil. 753; see also Menciano vs. Neri
San Jose, 89 Phil. 63).
Impotency
Impotency indicates a physical incapability of
entering into the marriage state, as distinguished from
sterility which is (not a ground for annulling a marriage)
merely an inability to procreate (Menciano vs. San Jose,
89 Phil. 63).
Force and Intimidation

Force and intimidation, as vices of consent in
marriage, have not been defined; it would be fair to assume
that the codal definition of said terms under Article 1335
of the Civil Code (infra.) could be controlling.
Fraud
Fraud is confined to the following instances:
(1) misrepresentation as to the identity of one
of the contracting parties;
(2) non-disclosure of the previous conviction of
the other party of a crime involving moral turpitude,
and the penalty imposed was imprisonment for two
years or more; and
(3) concealment by the wife of the fact that at
other than her husband (Art. 86, Civil Code).
No other misrepresentation or deceit as to character,
rank, fortune or chastity would constitute such fraud as
could give grounds for action for the annulment of
marriage (Ibid.).
The enumeration of the circumstances of fraud under
Article 86 of the Code are exclusive (Anaya vs. Palaroan,
Title III. Marriage
36 SCRA 97) and restrictive. For instance, one could

hardly seek for an annulment on the ground of con-
cealment of pregnancy where the woman at the time of
the marriage was in an advanced state of family way
(Buccat vs. Buccat, 72 Phil. 19; Aquino vs. Delizo, 109
Phil. 21).
Statute of Limitations
The action for annulment must be commenced within
the periods fixed by the Code. Thus —
85, by the party whose parent or guardian did not
give his or her consent, within four years after
attaining the age of twenty or eighteen years, as the
case may be; or by the parent or guardian or person
having legal charge, at any time before such party
has arrived at the age of twenty or eighteen years;
(2) For causes mentioned in number 2 of
Article 85, by the spouse who has been absent, during
his or her lifetime; or by either spouse of the
subsequent marriage during the lifetime of the other;
85, by the sane spouse, who had no knowledge of the
other’s insanity; or by any relative or guardian of
the party of unsound mind, at any time before the
death of either party;
injured party, within four years after the discovery
of the fraud;
injured party, within four years from the time the
force or intimidation ceased;
injured party, within eight years after marriage (Art.
87, Civil Code).
No judgment annulling a marriage shall be promulgated

upon a stipulation of facts or by confession of judgment
(Art. 88, Civil Code). In case of non-appearance of the
defendant, the Court shall order the prosecuting attorney
to inquire whether or not a collusion between the parties
exists; if there is none, the prosecuting attorney shall
intervene for the State in order to take care that the
evidence for the plaintiff is not fabricated (Art. 88 in
relation to Art. 101, Civil Code). A confession of judgment,
however, may not necessarily result in the denial of an
annulment as long as proof satisfactory to establish the
grounds for annulment of the marriage are independently
offered in evidence.
Effects of Voidable Marriages

a. On the children. — Children conceived or born
of voidable marriages before the decree of annulment are
considered legitimate; children conceived thereafter shall
have the same status, rights and obligations as
acknowledged natural children or natural children by
legal fiction (Art. 89, Civil Code).
The legislative intent of the pertinent provisions of
the Civil Code on children in the book on persons and
family relations is meant to enhance the child’s interest
and welfare. This intent finds exemplification in Article
89 of the Civil Code by explicitly providing that natural
children by legal fiction (among them those conceived or
born of void marriages because the parents suffer from
an impediment to marry) shall have the same status,
rights and obligations as acknowledged natural children.
If then under Article 269, in relation to Article 270, of the
Civil Code, acknowledged natural children are given the
right to be legitimated by the subsequent marriage of the
parents, the law, with all due respect to the opinion of the
Court in De Santos vs. Angeles (210 SCRA 211), must, by
virtue of Article 89 aforesaid, likewise extend unqualifiedly
to natural children by legal fiction. It might be pointed
Title III. Marriage
out, not a single provision of the Code limits or circums-

cribes the scope and application of Article 89. The law
should then be construed as to attain congruity, rather
than a division, among its several provisions. The rule is
expressed in the maxim interpretare et concordare legibus
est optimus interpretendi upon the theory that the
legislature is presumed not to have enacted conflicting
provisions of law but that, on the contrary, it must have
meant to give them such parity and consequence as a
uniform jurisprudential system.
Any conflict of view, however, is a thing of the past,
for the Family Code, which became effective on 03 August
1988, has deleted any reference to natural children by
legal fiction. The Family Code presently categorizes
children of void marriages into two kinds — the
legitimates which include those conceived or born of void
marriages under Article 36 and Article 52 of the Family
Code before the judicial declaration of nullity of such void
marriages and the illegitimates or children conceived or
born of all other void marriages (but evidently
maintaining, for legitimation purposes, the distinction
between those whose parents, at the time of conception,
were not disqualified to marry and those whose parents
were disqualified).
When the marriage is annulled, the Court shall
award the custody of the children as it may be to the
latter’s best interest and the Court shall make provision
for their education and support (Art. 90 Civil Code; see
Unson III vs. Navarro, 101 SCRA 183; Luna vs.
Intermediate Appellate Court, 137 SCRA 7).
b. On Support. — During the proceedings for
annulment, the spouses and children shall be supported
from the conjugal partnership property but after the final
judgment of annulment, unlike the rule in legal separation
where the marriage tie is preserved, the obligation of
mutual support between spouses ceases (Art. 292, Civil
Code). The Court shall always make provision for the
education and support of the children (Art. 90, Civil Code).
c. On Property Relationship. — The conjugal part-

nership of gains or the absolute community of property,
as the case may be, shall be dissolved upon the decree of
annulment (Art. 175 and Art. 208, Civil Code). The spouse
who has acted in bad faith or gave cause for annulment
(or legal separation) shall forfeit his or her share of the
conjugal partnership profits (Art. 177, Civil Code).
d. On Damages. — Damages may be awarded
when:
(1) there has been fraud, force or intimidation
in obtaining the consent of one of the contracting
parties;
(2) either party was, at the time of the
marriage, physically incapable of entering into the
married state, and the other party was unaware
thereof;
(3) the person solemnizing the marriage was
not legally authorized to perform marriages, and that
fact was known to one of the contracting parties, but
he or she concealed it from the other;
(4) a bigamous or polygamous marriage was celeb-
rated, and the impediment was concealed from the
plaintiff by the party disqualified;
(5) in an incestuous marriage, or a marriage
between a stepbrother and a stepsister or other
marriage prohibited by Article 82, the relationship
was known to only one of the contracting parties but
was not disclosed to the other; or
(6) one party was insane and the other was
aware thereof at the time of the marriage (see Art.
91, Civil Code).
The above cases are also made applicable to court
judgments declaring a marriage void from the beginning
(see Art. 91, Civil Code).
Title III. Marriage
Chapter 4
Authority to Solemnize Marriages
Art. 92. Every priest, or minister, or rabbi author-

ized by his denomination, church, sect, or religion to
solemnize marriage shall send to the proper government
office a sworn statement setting forth his full name and
domicile, and that he is authorized by his denomination,
church, sect, or religion to solemnize marriage, attaching
to said statement a certified copy of his appointment.
The director of the proper government office, upon
receiving such sworn statement containing the infor-
mation required, and being satisfied that the
denomination, church, sect, or religion of the applicant
operates in the Philippines, shall record the name of
such priest or minister in a suitable register and issue
to him an authorization to solemnize marriage. Said
priest or minister or rabbi shall be obliged to exhibit his
authorization to the contracting parties, to their parents,
grandparents, guardians, or persons in charge
demanding the same. No priest or minister not having
the required authorization may solemnize marriage. (34a)
Art. 93. Freedom of religion shall be observed by
public officials in the issuance of authorization to
solemnize marriages. Consequently, no public official
shall attempt to inquire into the truth or validity of any
religious doctrine held by the applicant or by his
church. (n)
Art. 94. The public official in charge of registrations
of priests and ministers shall cancel the authorization
issued to a bishop, head, priest, rabbi, pastor or
minister of the gospel of any denomination, church,
sect, or religion, on his own initiative or at the request
of any interested party, upon showing that the church,
sect or religion whose minister have been authorized
to solemnize marriage is no longer in operation. The
cancellation of the authorization granted to a priest,
pastor, or minister shall likewise be ordered upon the
request of the bishop, head, or lawful authorities of the
denomination, church, sect or religion to which he
belongs. (35a)
Art. 95. The public official in charge of registration

of priests and ministers, with the approval of the proper
head of Department, is hereby authorized to prepare
the necessary forms and to promulgate regulations for
the purpose of enforcing the provisions of this Title.
Said official may also by regulations fix and collect
fees for the authorization of priests and ministers to
solemnize marriages. (36a)
Art. 96. The existing laws which punish acts or
omissions concerning the marriage license,
solemnization of marriage, authority to solemnize
marriages, and other acts or omissions relative to the
celebration of marriage shall remain and continue to be
in force. (n)
The above administrative provisions are intended to

safeguard the due solemnization of marriages by those to
whom the law has given its authorization.
99
TITLE IV. LEGAL SEPARATION
Author’s note: The provisions of the Civil

Code in this title have been repealed by the
Family Code (incorporated in this work, with
annotations, as an Addendum to Book I hereof)
which took effect on 3 August 1988.
Art. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for
concubinage on the part of the husband as defined in
the Penal Code; or
(2) An attempt by one spouse against the life of
the other. (n)
Art. 98. In every case the court must take steps,
before granting the legal separation, toward the
reconciliation of the spouses, and must be fully
satisfied that such reconciliation is highly improbable.
(n)
Art. 99. No person shall be entitled to a legal
separation who has not resided in the Philippines for
one year prior to the filing of the petition, unless the
cause for the legal separation has taken place within
the territory of this Republic. (Sec. 2a, Act No. 2710)
Art. 100. The legal separation may be claimed only
by the innocent spouse, provided there has been no
condonation of or consent to the adultery or con-
cubinage. Where both spouses are offenders, a legal
separation cannot be claimed by either of them.
Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition. (Sec. 3a, Act
No. 2710)
99
Art. 101. No decree of legal separation shall be

promulgated upon a stipulation of facts or by
confession of judgment.
In case of non-appearance of the defendant, the
court shall order the prosecuting attorney to inquire
whether or not a collusion between the parties exists.
If there is no collusion, the prosecuting attorney shall
evidence for the plaintiff is not fabricated. (n)
Art. 102. An action for legal separation cannot be
filed except within one year from and after the date on
which the plaintiff became cognizant of the cause and
within five years from and after the date when such
cause occurred. (Sec. 4a, Act No. 2710)
Art. 103. An action for legal separation shall in no
case be tried before six months shall have elapsed
since the filing of the petition. (Sec. 5a, Act No. 2710)
Art. 104. After the filing of the petition for legal
separation, the spouses shall be entitled to live
separately from each other and manage their respective
property.
The husband shall continue to manage the
conjugal partnership property but if the court deem it
proper, it may appoint another to manage said property,
in which case the administrator shall have the same
rights and duties as a guardian and shall not be allowed
to dispose of the income or of the capital except in
accordance with the orders of the court. (Sec. 6, Act
No. 2710)
Art. 105. During the pendency of legal separation
proceedings the court shall make provision for the care
of the minor children in accordance with the circums-
tances and may order the conjugal partnership property
or the income therefrom to be set aside for their
support; and in default thereof said minor children shall
be cared for in conformity with the provisions of this
Code; but the Court shall abstain from making any
order in this respect in case the parents have by mutual
agreement, made provision for the care of said minor
Title IV. Legal Separation
children and these are, in the judgment of the court,

well cared for. (Sec. 7a, Act No. 2710)
Art. 106. The decree of legal separation shall have
the following effects:
(1) The spouses shall be entitled to live sepa-
rately from each other, but the marriage bonds shall
not be severed;
(2) The conjugal partnership of gains or the
absolute conjugal community of property shall be
dissolved and liquidated, but the offending spouse shall
have no right to any share of the profits earned by the
partnership or community, without prejudice to the
provisions of Article 176;
(3) The custody of the minor children shall be
awarded to the innocent spouse, unless otherwise
directed by the court in the interest of said minors, for
whom said court may appoint a guardian;
(4) The offending spouses 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 one
shall be revoked by operation of law. (n)
Art. 107. The innocent spouse, after decree of legal
separation has been granted, may revoke the donations
by reason of marriage made by him or by her to the
offending spouse. Alienations and mortgages made
before the notation of the complaint for revocation in
the Registry of Property shall be valid.
This action lapses after four years following the
date the decree became final. (n)
Art. 108. Reconciliation stops the proceedings for
legal separation and rescinds the decree of legal
separation already rendered.
The revival of the conjugal partnership of gains
or of the absolute conjugal community of property shall
be governed by Article 195. (Sec. 10a, Act No. 2710)
Legal separation or relative divorce (a mensa et thoro)

entitles the spouses to live separately from each other
but, unlike absolute divorce (a vinculo matrimonii), the

marriage bond is not severed (Art. 106, Civil Code; see
also Tenchavez vs. Escaño, 15 SCRA 355). Legal separation
must be decreed by a court; an extrajudicial separation
agreement has been held to be illegal and immoral and
thus void ab initio (Panganiban vs. Borromeo, 58 Phil.
367). This rule is not to say that the spouses may be
compelled, either by legal or court mandate, to live
together against their will (Arroyo vs. Vasquez de Arroyo ,
42 Phil. 54). In case, however, a spouse should without
legal reason refuse to live with the other, the aggrieved
party may be entitled to recover damages (Tenchavez vs.
Escaño, supra.).
1. Grounds and Defenses

A petition for legal separation may be filed only on
two grounds —
(1) For adultery on the part of the wife and for
concubinage on the part of the husband as defined in
the Penal Code; or
(2) An attempt by one spouse against the life
of the other (Art. 97, Civil Code).
The grounds for legal separation need not occur
within the Philippines but where such causes have taken
place outside the territory of the Republic, the petitioner
must have resided in the Philippines for at least one year
prior to the filing of the petition (Art. 99, Civil Code). This
rule would appear to modify, and is to be considered as an
exception to the requirement found in, Article 102 of the
Code, providing that an action for legal separation cannot
be filed except within one year from and after the date on
which the plaintiff became cognizant of the cause (Art.
102, Civil Code).
Any of the following circumstances may constitute a
defense against a petition for legal separation:
(a) condonation of or consent to the adultery or
concubinage;
(b) recrimination, or when both spouses are offend-

ers; and
(c) collusion between the parties to obtain legal
separation (see Art. 100, Civil Code).
2. Procedure
The procedure, briefly, for legal separation may be
stated thusly:
(a) Filing of a petition for legal separation with the
court of competent jurisdiction by the innocent party. — If
the ground for legal separation has occurred outside the
Philippines, the complainant must have resided in the
Philippines for at least one year prior to the filing of the
petition; this residence requirement does not apply if the
cause for the legal separation has taken place within the
country (Art. 99, Civil Code).
An action for legal separation should be filed within
one year from and after the date on which the complainant
became cognizant of the cause and within five years from
and after the date when such cause had occurred (Art.
102, Civil Code).
(b) Responsive pleading, if the petition is opposed,
is filed. — In case of non-appearance of the defendant,
the court shall order the prosecuting attorney to inquire
whether or not a collusion between the parties exist. If
there is no collusion, the prosecuting attorney shall
evidence for the plaintiff is not fabricated (Art. 101, Civil
Code).
(c) Hearing. — The case shall in no case be tried
within six (6) months from the filing of the petition (Art.
103, Civil Code) in order to afford the parties a “cooling-
off period.”
(d) Decision. — A decision, either granting or deny-
ing a decree for legal separation, is rendered.
3. Effects
a. During the proceedings for legal separation. —
(1) After filing of the petition, the spouses shall
be entitled to live separately from each other;
(2) Each of the spouses shall manage their
respective property, but the husband shall continue
to manage the conjugal partnership property, unless
the court deems it proper to appoint an administrator
who shall have the same rights and duties as a
guardian but shall not be allowed to dispose of the
income or of the capital except in accordance with
the orders of the court (Art. 104, Civil Code).
(3) The court shall make provision for the care
of the minor children in accordance with the circums-
tances, and it may order the conjugal partnership
property or the income therefrom to be set aside for
their support; in default thereof, said minor children
shall be cared for in conformity with the provisions
of the Code but the court shall abstain from making
any order in this respect in case the parents have, by
mutual agreement, made provision for the care of
said minor children and these are, in the judgment
of the court, well cared for (Art. 105, Civil Code).
b. After the decree of legal separation. —
(1) The spouses shall be entitled to live
separately from each other, but the marriage bonds
shall not be severed;
(2) The conjugal partnership of gains or the
absolute conjugal community of property shall be
dissolved and liquidated; the offending spouse shall
have no right to any share of the profits earned by
the partnership or community, without prejudice to
the provisions of Article 176 (infra.);
awarded to the innocent spouse, unless otherwise
directed by the court in the interest of said minors,

for whom said court may appoint a guardian;
(4) The offending spouse shall be disqualified
from inheriting from the innocent spouse by intes-
tate succession; provisions in favor of the offending
spouse made in the will of the innocent spouse shall
be revoked by operation of law (Art. 106, Civil Code).
(5) The innocent spouse may revoke the dona-
tions by reason of marriage made by him or by her to
the offending spouse, but this action lapses four years
after the date the decree becomes final (Art. 107,
Civil Code).
c. Reconciliation. — Reconciliation stops the pro-
ceedings for legal separation and rescinds a decree of
legal separation already rendered. The conjugal partner-
ship of gains shall be revived in accordance with Article
195 (infra.) of the Code (Art. 108, Civil Code).
106 CIVIL LAW
TITLE V. RIGHTS AND OBLIGATIONS


Art. 109. The husband and wife are obliged to live

together, observe mutual respect and fidelity, and
render mutual help and support. (56a)
Art. 110. The husband shall fix the residence of
the family. But the court may exempt the wife from
living with the husband if he should live abroad unless
in the service of the Republic. (58a)
Art. 111. The husband is responsible for the support
of the wife and the rest of the family. These expenses
shall be met first from the conjugal property, then from
the husband’s capital, and lastly from the wife’s
paraphernal property. In case there is a separation of
property, by stipulation in the marriage settlements, the
husband and wife shall contribute proportionately to
the family expenses. (n)
Art. 112. The husband is the administrator of the
conjugal property, unless there is a stipulation in the
marriage settlements conferring the administration
upon the wife. She may also administer the conjugal
partnership in other cases specified in this Code. (n)
Art. 113. The husband must be joined in all suits
by or against the wife, except:
(1) When they are judicially separated;
106
Title V. Rights and Obligations Between Husband and Wife
(2) If they have in fact been separated for at least

one year;
(3) When there is a separation of property agreed
upon in the marriage settlements;
(4) If the administration of all the property in the
marriage has been transferred to her, in accordance
with Articles 196 and 197;
(5) When the litigation is between the husband
and the wife;
(6) If the suit concerns her paraphernal property;
(7) When the action is upon the civil liability
arising from a criminal offense;
(8) If the litigation is incidental to the profession,
occupation or business in which she is engaged;
(9) In any civil action referred to in Articles 25 to
35; and
(10) In an action upon a quasi-delict.
In the cases mentioned in Nos. 7 to 10, the
husband must be joined as a party defendant if the
third paragraph of Article 163 is applicable. (n)
Art. 114. The wife cannot, without the husband’s
consent, acquire any property by gratuitous title, except
from her ascendants, descendants, parents-in-law, and
collateral relatives within the fourth degree. (n)
Art. 115. The wife manages the affairs of the
household. She may purchase things necessary for
the support of the family, and the conjugal partnership
shall be bound thereby. She may borrow money for
this purpose, if the husband fails to deliver the proper
sum. The purchase of jewelry and precious objects is
voidable, unless the transaction has been expressly or
tacitly approved by the husband, or unless the price
paid is from her paraphernal property. (62a)
Art. 116. When one of the spouses neglects his or
her duties to the conjugal union or brings danger,
dishonor or material injury upon the other, the injured
party may apply to the court for relief.
The court may counsel the offender to comply

with his or her duties, and take such measures as may
be proper. (n)
Art. 117. The wife may exercise any profession or
occupation or engage in business. However, the
husband may object, provided:
(1) His income is sufficient for the family, accord-
ing to its social standing; and
(2) His opposition is founded on serious and
valid grounds.
In case of disagreement on this question, the
parents and grandparents as well as the family council,
if any, shall be consulted. If no agreement is still arrived
at, the court will decide whatever may be proper and in
the best interest of the family. (n)
The husband and wife are obliged to live together,

observe mutual respect and fidelity, and render mutual
help and support (Art. 109, Civil Code). Economic
sanctions, such as award of damages, may be sought by
an aggrieved spouse (see Tenchavez vs. Escao, 15 SCRA
355). When a spouse neglects his or her duties to the
conjugal union or brings danger, dishonor or material
injury upon the other, the injured party may apply to the
court for relief, and the court may counsel the offender
accordingly or take such measures as may be proper (Art.
106, Civil Code). Consortium by the spouses, however,
may not be forced upon the spouses by legal or court
mandate (Cuaderno vs. Cuaderno, 12 SCRA 505; Lacson
vs. Lacson, 24 SCRA 837).
The Husband
a. The husband shall fix the residence of the family,
but the court may exempt the wife from living with him if
he should live abroad unless in the service of the Republic
(Art. 109, Civil Code), or if he maltreats the wife (Arroyo
vs. Arroyo, 42 Phil. 54), demands immoral practices (Goitia
vs. Campos Rueda, 35 Phil. 252), or commits repeated

acts of infidelity (Villanueva vs. Villanueva, 54 Phil. 92).
b. The husband is mainly responsible for the
support of the wife and the rest of the family. These
expenses shall be met first from the conjugal property,
then from the husband’s capital, and lastly, from the wife’s
paraphernal property. In case there is a separation of
property, by stipulation in the marriage settlements, the
husband and wife shall contribute proportionately to the
family expenses (Art. 111, Civil Code).
c. The husband is the administrator of the conjugal
property, unless by a stipulation in the marriage
settlement or other cases provided by law (infra.), the
administration thereof is conferred upon the wife (Art.
112; see also Arts. 196-197, Civil Code). If he incurs debt
in the legitimate pursuit of his career or profession or
suffers losses in a legitimate business, the conjugal
partnership should be made to equally bear the
indebtedness and losses (G-Tractors, Inc. vs. Court of
Appeals, 135 SCRA 192).
Special Provisions Regarding the Wife

a. The husband should be joined in all suits by or
against the wife, except:
(1) When they are judicially separated;
(2) If they have, in fact, been separated for at
least one year;
(3) When there is a separation of property
agreed upon in the marriage settlements;
(4) If the administration of all the property in
the marriage has been transferred to her, in
accordance with articles 196 and 197;
(5) When the litigation is between the husband
and the wife;
(6) If the suit concerns her paraphernal prop-

erty;
(7) When the action is upon the civil liability
arising from a criminal offense;
(8) If the litigation is incidental to the
profession, occupation or business in which she is
engaged;
(9) In any civil action referred to in articles 25
to 35; and
(10) In an action upon a quasi-delict.
In the cases mentioned in No. 7 to No. 10, the husband
must be joined as a party defendant if the judgment would
be enforceable against the conjugal partnership assets
(Art. 113, in relation to Art. 163, Civil Code). In a suit
against the husband to enforce an obligation either
pertaining to him alone or one chargeable against the
conjugal partnership, no law or rule appears to require
the defendant husband to be joined by his wife (G-Tractors,
Inc. vs. Court of Appeals, supra.).
b. The wife cannot, without the husband’s consent,
acquire any property by gratuitous title, except from the
ascendants, descendants, parents-in-law, and collateral
relatives within the fourth degree (Art. 114, Civil Code);
otherwise, the donation is voidable (see Bautista vs.
Montilla, L-6569, 18 April 1956; La Urbana vs. Villasor,
59 Phil. 644, stating that concurrence could be presumed).
c. The wife manages the affairs of the household.
She may purchase things necessary for the support of the
family, and the conjugal partnership shall be bound
thereby. She may borrow money for this purpose if the
husband fails to deliver the proper sum. The purchase of
jewelry and precious objects is voidable, unless the
transaction has been expressly or tacitly approved by the
husband or unless the price paid is from her paraphernal
property (Art. 115, Civil Code; see La Urbana vs. Villasor,
supra.).
d. The wife may exercise any profession or occupa-

tion or engage in business; the husband, however, may
object if his income is sufficient for the family, according
to its social standing, and his opposition is founded on
serious and valid grounds. In case of disagreement on
this question, the parents and grandparents as well as
the family council, if any, shall be consulted. If no agree-
ment is still arrived at, the court shall decide whatever
may be proper and in the best interest of the family (Art.
117, Civil Code).
112 CIVIL LAW
TITLE VI. PROPERTY RELATIONS


Chapter 1
General Provisions
Art. 118. The property relations between husband

and wife shall be governed in the following order:
(1) By contract executed before the marriage;
(2) By the provisions of this Code; and
(3) By custom. (1315a)
Art. 119. The future spouses may in the marriage
settlements agree upon absolute or relative commu-
nity of property, or upon complete separation of prop-
erty, or upon any other regime. In the absence of mar-
riage settlements, or when the same are void, the sys-
tem of relative community or conjugal partnership of
gains as established in this Code, shall govern the
property relations between husband and wife. (n)
Art. 120. A minor who according to law may con-
tract marriage, may also execute his or her marriage
settlements; but they shall be valid only if the persons
designated by law to give consent to the marriage of the
minor take part in the ante-nuptial agreement. In the
absence of the parents or of a guardian, the consent to
112
Title VI. Property Relations Between Husband and Wife
the marriage settlements will be given by the family

council. (1318a)
Art. 121. In order that any modification in the mar-
riage settlements may be valid, it must be made before
the celebration of the marriage, subject to the provi-
sions of Art. 191. (1319a)
Art. 122. The marriage settlements and any modi-
fication thereof shall be governed by the Statute of
Frauds, and executed before the celebration of the
marriage. They shall not prejudice third persons unless
they are recorded in the Registry of Property. (1321a)
Art. 123. For the validity of marriage settlements
executed by any person upon whom a sentence of civil
interdiction has been pronounced, the presence and
participation of the guardian shall be indispensable,
who for this purpose shall be designated by a
competent court, in accordance with the provisions of
the Rules of Court. (1323a)
Art. 124. If the marriage is between a citizen of the
Philippines and a foreigner, whether celebrated in the
Philippines or abroad, the following rules shall prevail:
(1) If the husband is a citizen of the Philippines
while the wife is a foreigner, the provisions of this
Code shall govern their property relations;
(2) If the husband is a foreigner and the wife is
a citizen of the Philippines, the laws of the husband’s
country shall be followed, without prejudice to the pro-
visions of this Code with regard to immovable prop-
erty. (1325a)
Art. 125. Everything stipulated in the settlements
or contracts referred to in the preceding articles in
consideration of a future marriage shall be rendered
void and without effect whatever, if the marriage should
not take place. However, those stipulations that do not
depend upon the celebration of the marriage shall be
valid. (1326a)
The property relations between the husband and the

wife are governed, in the following order, by —
(1) A marriage settlement or contract executed be-

fore the marriage;
(2) The provisions of the Civil Code on conjugal
partnership of gains; and
(3) Custom (Art. 118, Civil Code).
Where the husband is a foreigner and the wife is a
citizen of the Philippines, the laws of the husband’s
country shall be followed without prejudice to the
provisions of the Civil Code with regard to immovable
property (Art. 124, Civil Code). This proviso on immovable
property relates to laws on property conformably with
Article 16 of the Code (supra.); it does not necessarily
mean, for instance, that the provisions on conjugal
partnership (in the absence of property settlements)
should only apply in respect of real property located in
the Philippines.
Marriage Settlements
The spouses may agree upon the property regime
that they may wish to govern during the marriage. The
marriage settlements may provide for, but may not be
limited to, an absolute or relative community, or upon a
complete separation, of property. In the absence of such
ante-nuptial agreement, the provisions of the Civil Code
on relative community or conjugal partnership of gains
shall govern their property relationship (Art. 119, Civil
Code). A community of property regime, whether absolute
or relative, remains in effect until the marriage is dissolved
or a judicial separation of property is decreed by the
courts (Art. 121 and Art. 191, Civil Code).
In order to be valid, marriage settlements, or any
modification or change thereof, must be executed before
the celebration of the marriage. Marriage settlements
executed during the marriage are void (Quintana vs.
Lerma, 24 Phil. 285). The form of the marriage settlements
is governed by the Statute of Frauds (to be in writing),
but in order to affect third person (insofar as real prop-

erty is concerned), the marriage settlements must be in a
public instrument (Art. 1358, Civil Code) and recorded in
the Registry of Property (Art. 122, Civil Code).
In the case of minors, the marriage settlements shall
be valid only if the persons designated by law to give
consent to the marriage take part in the ante-nuptial
agreement; in their absence, the consent may be given by
the family council (see Art. 120, Civil Code).
Effect of Non-Celebration of Marriage

The non-celebration of the marriage shall have the
following effects on the property relation —
(1) The property regime is rendered null and void
(Art. 125, Civil Code);
(2) Donations propter nuptias are rendered revoc-
able (Art. 132, Civil Code);
(3) Other provisions in the marriage settlements
that do not depend upon the celebration of the marriage
shall continue to be binding (Art. 125, Civil Code).
Chapter 2
Donations by Reason of Marriage
Art. 126. Donations by reasons 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. (1327)
Art. 127. These donations are governed by the
rules on ordinary donations established in Title III of
Book III, except as to their form which shall be regulated
by the Statute of Frauds; and insofar as they are not
modified by the following articles. (1328a)
Art. 128. Minors may make and receive donations
in their ante-nuptial contract, provided they are
authorized by the persons who are to give their consent

to the marriage of said minors. (1329a)
Art. 129. Express acceptance is not necessary for
the validity of these donations. (1330)
Art. 130. The future spouses may give each other
in their marriage settlements as much as one-fifth of
their present property, and with respect to their future
property, only in the event of death, to the extent laid
down by the provisions of this Code referring to
testamentary succession. (1331a)
Art. 131. The donor by reason of marriage shall
release the property donated from mortgages and all
other encumbrances upon the same, with the exception
of easements, unless in the marriage settlements or in
the contracts the contrary has been stipulated. (1332a)
Art. 132. A donation by reason of marriage is not
revocable, save in the following cases:
(1) If it is conditional and the condition is not
complied with;
(2) If the marriage is not celebrated;
(3) When the marriage takes place without the
consent of the parents or guardian, as required by law;
(4) When the marriage is annulled, and the donee
acted in bad faith;
(5) Upon legal separation, the donee being the
guilty spouse;
(6) When the donee has committed an act of
ingratitude as specified by the provisions of this Code
on donations in general. (1333a)
Art. 133. Every donation between the spouses
during the marriage shall be void. This prohibition does
not apply when the donation takes effect after the death
of the donor.
Neither does this prohibition apply to moderate
gifts which the spouses may give each other on the
occasion of any family rejoicing. (1334a)
Art. 134. Donations during the marriage by one of

the spouses to the children whom the other spouse
had by another marriage, or to persons of whom the
other spouse is a presumptive heir at the time of the
donation are voidable, at the instance of the donor’s
heirs after his death. (1335a)
Donations by Reasons of Marriage

Donations propter nuptias are made before the
celebration of marriage, in consideration of the same,
and in favor of one or both of the prospective spouses
(Art. 126, Civil Code). Such donations are governed by
the Statute of Frauds (Art. 127, Civil Code, overruling
previous cases such as Camagay vs. Laguera, 7 Phil. 397
and Velasquez vs. Biala, 18 Phil. 231). For greater efficacy
or in order to prejudice third persons, a donation involving
real property must be in a public instrument (Art. 1358,
Civil Code).
The future spouses may give to each other in their
marriage settlement up to one-fifth (1/5) of their present
property and, with respect to future property, only in the
event of death, to the extent that they are not inofficious
(Art. 130, Civil Code; Mayor vs. Millan, 103 Phil. 132).
Minors may make and receive donations in the ante-
nuptial contract upon the authority of the persons who
are required to give their consent to the marriage (Art.
128, Civil Code). Express acceptance is not necessary for
the validity of these donations (Art. 129, Civil Code).
Revocation of Donations Propter Nuptias

A donation propter nuptias may be revoked only upon
the following grounds:
(1) If it is conditional, and the condition is not
complied with;
(2) If the marriage is not celebrated;

acted in bad faith;
(5) When legal separation is decreed, the donee
being the guilty spouse;
ingratitude as so specified by the provisions of the Code
(infra.) on donations in general (Art. 132, Civil Code).
Donations During Marriage

Except for moderate gifts which may be given on the
occasion of any family rejoicing, the spouses may not
donate to each other during marriage; any such prohibited
donation shall be void (Art. 133, Civil Code; Aznar vs.
Sucilla, 102 Phil. 902). This rule does not include a
spouse’s being a beneficiary of an insurance contract over
the life of the other (Gercio vs. Sunlife Assurance Co. of
Canada, 48 Phil. 53).
Likewise prohibited are donations during marriage
by one of the spouses to the children whom the other
spouse had by another marriage or to persons of whom
the other spouse is a presumptive heir at the time of the
donation. These donations, if made, are voidable at the
instance of the donor’s heirs after his death (see Art. 134,
Civil Code).
The prohibition against donations between spouses
apply to common-law relationships, the intendment and
spirit of the law being equally applicable and pertinent to
such cases (Matabuena vs. Cervantes, 38 SCRA 284).
Chapter 3
Paraphernal Property
Art. 135. All property brought by the wife to the

marriage, as well as all property she acquires during
the marriage, in accordance with Article 148, is
paraphernal. (1381a)
Art. 136. The wife retains the ownership of the

paraphernal property. (1382)
Art. 137. The wife shall have the administration of
the paraphernal property, unless she delivers the same
to the husband by means of a public instrument
empowering him to administer it.
In this case, the public instrument shall be
recorded in the Registry of Property. As for the
movables, the husband shall give adequate security.
(1384a)
Art. 138. The fruits of the paraphernal property
form part of the assets of the conjugal partnership,
and shall be subject to the payment of the expenses of
the marriage.
The property itself shall also be subject to the
daily expenses of the family, if the property of the
conjugal partnership and the husband’s capital are not
sufficient therefor. (1385a)
Art. 139. The personal obligations of the husband
can not be enforced against the fruits of the paraphernal
property, unless it be proved that they redounded to
the benefit of the family. (1386)
Art. 140. A married woman of age may mortgage,
encumber, alienate or otherwise dispose of her para-
phernal property, without the permission of the hus-
band, and appear alone in court to litigate with regard
to the same. (n)
Art. 141. The alienation of any paraphernal
property administered by the husband gives a right to
the wife to require the constitution of a mortgage or
any other security for the amount of the price which
the husband may have received. (1390a)
The Paraphernal Property

The paraphernal property refers to the exclusive
property of the wife over which she retains ownership
and exercises dominion and administration. She can
dispose of the property in the manner she pleases, subject
to the daily expenses of the family when either the conju-

gal property or the husband’s capital is insufficient to
respond thereto. The fruits of the separate property of
the spouses form part of the conjugal property.
Systems of Property Relations

Basically, the regimes of property relations
specifically treated by the Civil Code include the conjugal
partnership of gains, the system of absolute community,
and the system of complete separation of property.
Chapter 4
Conjugal Partnership of Gains
Art. 142. By means of the conjugal partnership of

gains the husband and wife place in a common fund
the fruits of their separate property and the income
from their work or industry, and divide equally, upon
the dissolution of the marriage or of the partnership,
the net gains or benefits obtained indiscriminately by
either spouse during the marriage. (1392a)
Art. 143. All property of the conjugal partnership
of gains is owned in common by the husband and
wife. (n)
Art. 144. When a man and a woman live together
as husband and wife, but they are not married, or their
marriage is void from the beginning, the property
acquired by either or both of them through their work
or industry or their wages and salaries shall be
governed by the rules on co-ownership. (n)
Art. 145. The conjugal partnership shall commence
precisely on the date of the celebration of the marriage.
Any stipulation to the contrary shall be void. (1393)
Art. 146. Waiver of the gains or of the effects of
this partnership during marriage cannot be made except
in case of judicial separation.
When the waiver takes place by reason of separa-

tion, or after the marriage has been dissolved or an-
nulled, the same shall appear in a public instrument,
and the creditors shall have the right which Article
1052 grants them. (1394a)
Art. 147. The conjugal partnership shall be
governed by the rules on the contract of partnership in
all that is not in conflict with what is expressly
determined in this Chapter. (1395)
Art. 148. The following shall be the exclusive

property of each spouse:
(1) That which is brought to the marriage as his
or her own;
(2) That which each acquires, during the
marriage, by lucrative title;
(3) That which is acquired by right of redemption
or by exchange with other property belonging to only
one of the spouses;
(4) That which is purchased with exclusive
money of the wife or of the husband. (1396)
Art. 149. Whoever gives or promises capital to the
husband shall not be subject to warranty against
eviction, except in case of fraud. (1397)
Art. 150. Property donated or left by will to the
spouses, jointly and with designation of determinate
shares, shall pertain to the wife as paraphernal property,
and to the husband as capital, in the proportion
specified by the donor or testator, and in the absence
of designation, share and share alike, without prejudice
to what is provided in Article 753. (1398a)
Art. 151. If the donations are onerous, the amount
of the charges shall be deducted from the paraphernal
property or from the husband’s capital, whenever they
have been borne by the conjugal partnership. (1399a)
Art. 152. If some credit payable in a certain number
of years, or a life pension, should pertain to one of the
spouses, the provisions of Articles 156 and 157 shall

be observed to determine what constitutes the
paraphernal property and what forms the capital of the
husband. (1400a)
Art. 153. The following are conjugal partnership

property:
(1) That which is 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) That which is obtained by the industry, or
work, or as salary of the spouses, or of either of them;
(3) The fruits, rents or interests received or due
during the marriage, coming from the common property
or from the exclusive property of each spouse. (1401)
Art. 154. That share of the hidden treasure which
the law awards to the finder or the proprietor belongs
to the conjugal partnership. (n)
Art. 155. Things acquired by occupation, such as
fishing and hunting, pertain to the conjugal partnership
of gains. (n)
Art. 156. Whenever an amount or credit payable
in a certain number of years belongs to one of the
spouses, the sums which may be collected by
installments due during the marriage shall not pertain
to the conjugal partnership, but shall be considered
capital of the husband or of the wife, as the credit may
belong to one or the other spouse. (1402)
Art. 157. The right to an annuity, whether perpetual
or for life, and the right of usufruct, belonging to one
of the spouses shall form a part of his or her separate
property, but the fruits, pensions and interest due
during the marriage shall belong to the partnership.
The usufruct which the spouses have over the
property of their children, though of another marriage,
shall be included in this provision. (1403a)
Art. 158. Improvements, whether for utility or

adornment, made on the separate property of the
spouses through advancements from the partnership
or through the industry of either the husband or the
wife, belong to the conjugal partnership.
Buildings constructed, at the expense of the
partnership, during the marriage on land belonging to
one of the spouses, also pertain to the partnership,
but the value of the land shall be reimbursed to the
spouse who owns the same. (1404a)
Art. 159. Whenever the paraphernal property or
the husband’s capital consists, in whole or in part, of
livestock existing upon the dissolution of the
partnership, the number of animals exceeding that
brought to the marriage shall be deemed to be of the
conjugal partnership. (1405a)
Art. 160. All property of the marriage is presumed
to belong to the conjugal partnership, unless it be
proved that it pertains exclusively to the husband or to
the wife. (1407)
Conjugal Partnership of Gains Regime

Article 142 of the Civil Code states that by means of
the conjugal partnership of gains the husband and wife
place in a common fund the fruits of their separate prop-
erty and the income from their work or industry, and
divide equally, upon the dissolution of the marriage or of
the partnership, the net gains or benefits obtained
indiscriminately by either spouse during the marriage.
All such property shall be considered owned in
common by the husband and the wife (Art. 143, Civil
Code), and until the partnership is dissolved, the rights
of the spouses have been described as inchoate (Madrigal
vs. Rafferty, 38 Phil. 414) or as a mere expectancy (Jose
vs. Jose, 41 Phil. 713).
Unless valid marriage settlements are entered into
before the marriage, setting forth a different property
regime, the property relations between husband and wife
shall be governed by the system of relative community or

conjugal partnership of gains (Art. 119, Civil Code) which
shall commence precisely on the date the marriage is
celebrated (Art. 145, Civil Code). Any waiver of the gains
or effects of the partnership during marriage cannot be
made except in case of judicial separation or unless the
marriage itself is dissolved or annulled. The waiver must
be in a public instrument and is valid to the extent that
creditors are not prejudiced (Art. 146, in relation to Art.
1052, Civil Code).
In determining whether a piece of property is conjugal
or separate, a number of criteria might be used as a rule
of thumb.
Property Acquired Before the Marriage

The property is separate property either as capital
of the husband or as paraphernal property of the wife
(Art. 135 and Art. 148, Civil Code).
Pre-Title Acquired Prior to Marriage but Full Title is Vested

During Marriage
This property is exclusive, and if conjugal funds are
used in obtaining full title, the partnership shall be
reimbursed. Accordingly, where a contract of sale on
installments is entered into before the marriage by one of
the spouses and installment payments are continued
during the marriage at which time title in fee simple is
vested, the property shall be considered exclusive of the
husband or paraphernal of the wife, as the case may be,
but if conjugal funds are used in the installment payments,
such amounts shall be reimbursed to the partnership
(see Art. 148, in relation to Art. 153, Civil Code; see Ona
vs. Regala, 58 Phil. 881; Lorenzo vs. Nicolas, 91 Phil.
686).
In Delizo vs. Delizo (69 SCRA 216), the Supreme
Court, on grounds of equity and justice, considered a
homestead acquired (perfected) during the second
marriage, but applied for and initial compliances done

during the first marriage, as being conjugal property of
both marriages.
Property Acquired During the Marriage

Any property acquired during the marriage shall be
presumed conjugal (Art. 160, Civil Code; Talag vs.
Tankengco, 92 Phil. 1066) even if the spouses live
separately (Flores vs. Escudero, 92 Phil. 786) but there
must be proof that it was acquired during marriage (see
Jocson vs. Court of Appeals, 170 SCRA 333). More
specifically, the conjugal property consists of —
(1) That which is 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) That which is obtained by the industry, or
work, or as salary of the spouses, or of either of them
such as bonuses and pensions (see Mendoza vs. Dizon,
77 Phil. 533);
(3) The fruits, rents or interests received or
due during the marriage, coming from the common
property or from the exclusive property of each spouse
(Art. 153, Civil Code; see Vitug vs. Montemayor, 93
Phil. 939; Rosales vs. Echauz, 55 Phil. 527; Lesaca
vs. Lesaca, 91 Phil. 135).
In respect of other property —
(1) Property acquired by lucrative title (Osorio
vs. Posadas, 56 Phil. 748; Torela vs. Torela, 93 SCRA
391); or by right of redemption or by exchange with
other property belonging to only one of the spouses
(Rosete vs. Provincial Sheriff, 95 Phil. 560); or
purchased with exclusive money of the wife or of the
husband (Mirasol vs. Lim, 59 Phil. 701) are exclusive
(see also Art. 148, Arts. 150-152, Arts. 156-157, Civil
Code).
(2) Depreciable property acquired partly utili-

zing exclusive property and partly conjugal funds is
conjugal but reimbursement is due to the spouse
whose exclusive property was partly used (Abella de
Diaz vs. Erlanger & Galinger, 59 Phil. 326). If the
property is non-depreciable in character, the property
should be partly conjugal and partly separate in
proportion to what had been used in acquiring such
property (Castillo vs. Pasco, 11 SCRA 102).
(3) Damages recovered by the spouses may
either be separate or conjugal depending on the
nature thereof. Actual damages (damnum emergens)
are either exclusive or conjugal depending on who or
which suffered such damages. Damages in the nature
of unrealized earnings or profits (lucrum cessans)
are conjugal. Moral damages are generally to be
considered exclusive (Lilius vs. MRR, 62 Phil. 56).
In the exceptional case, however, of Zulueta vs. Pan
American (49 SCRA 1), the Supreme Court consid-
ered the moral damages recovered by the spouses as
a result of the unjustifiable cancellation of their
confirmed reservations in Pan-American Airways
during their trip abroad as conjugal since the award
was collectively adjudged in favor of the spouses
premised on a breach of contract and conjugal funds
were used in paying for the plane tickets.
(4) Winnings in gambling are conjugal (see Art.
142, Civil Code), although the contrary view has
been expressed that because losses in gambling are
borne by the loser and are not chargeable to the
conjugal partnership (Art. 164, Civil Code), the a
contrario rule should make the winnings exclusive
property of the spouse concerned.
(5) Shares in hidden treasures due either to
the finder or to the owner of the property where
found, and things acquired by occupation, are
conjugal (Arts. 154-155, Civil Code).
(6) Proceeds of life insurance are either con-

jugal or exclusive, or proportionate, depending on
the funds used to pay the premiums (see Bank of P.I.
vs. Posadas, 56 Phil. 215).
(7) The construction of a building on the
separate property of the spouses renders the land
conjugal property.
Article 158 states that improvements, whether for
utility or adornment, made on the separate property of
the spouses through advancements from the partnership
or through the industry of either the husband or the wife,
belong to the conjugal partnership, and that buildings
constructed at the expense of the partnership, during the
marriage on land belonging to one of the spouses, also
pertain to the partnership, but the value of the land shall
be reimbursed to the spouse who owns the same. The
court decisions on Article 158 have not all been that
consistent. In the case of Vda. de Padilla vs. Paterno (96
Phil. 884), the Supreme Court has ruled that the
conversion of the land from exclusive to conjugal property
is subject to the suspensive condition that its value shall
be reimbursed at the time of the liquidation of the conjugal
partnership. Under this view, the loss of the building
before such liquidation will not permit the conversion to
take place (see also Coingco vs. Flores, 84 Phil. 284). In
Maramba vs. Lozano (20 SCRA 474), the Supreme Court
has held that prior to the liquidation and payment of the
lot, “the conjugal partnership may use the land and
building, but it does, not as owner but as usufructuary”
since the ownership of the land is unchanged (no
conversion) until the value thereof is paid which “can
only be demanded in the liquidation of the partnership.”
In Caltex vs. Felias (108 Phil. 873), the Supreme Court
has also said that the building must have been constructed
at the time when one of the spouses is the owner of the
land and not when it is acquired after such construction.
In Calimlim-Canullas vs. Judge Fortun and Daguines
(129 SCRA 675), where the land was inherited by the
husband after the building was already constructed

thereon, the Supreme Court held as follows:
“We hold that pursuant to the foregoing provi-
sions (Art. 158, Civil Code), both the land and the
building belong to the conjugal partnership but the
conjugal partnership is indebted to the husband for
the value of the land. The spouse owning the land
becomes a creditor of the conjugal partnership for
the value of the lot, which value would be reimbursed
at the liquidation of the conjugal partnership.”
This later pronouncement appears to be in keeping
not only with the spirit and intendment, but also with
the literal meaning, of Article 158. By operation of law
and the actual occupancy of the property (equivalent to
delivery by the consenting spouse), which are both
recognized modes of acquiring ownership (Art. 712, Civil
Code), the land becomes conjugal upon the concurrence of
the two conditions set by law, i.e., the construction of the
building at the expense of the partnership and the
ownership of the land by one of the spouses. The obligation
to reimburse its value (determined as of such time)
forthwith arises and, until paid, the previous owner-spouse
becomes a creditor of the partnership. It is submitted,
however, that payment could be made even during the
marriage, and that it would be inequitable, and without
sufficient legal basis, to require the deferment thereof
until the liquidation of the partnership.
In Common-Law Relationships
The law establishes a special and limited co-
ownership between a common-law husband and a
common-law wife. Unlike that of the conjugal partnership
of gains, the fruits of separate property of the common-
law spouses remain exclusive and the co-ownership is
confined merely to the income derived from their work or
industry. Article 144 of the Civil Code provides:
“When a man and a woman live together as
husband and wife, but they are not married, or their
marriage is void from the beginning, the property

acquired by either or both of them through their
work or industry or their wages and salaries shall be
governed by the rules on co-ownership.”
The co-ownership results in the equal participation

of the common-law spouses in the covered property.
In Margaret Maxey vs. Court of Appeals (129 SCRA
187), the Supreme Court has held:
“Prior to the effectivity of the present Civil Code

on August 30, 1950, the formation of an informal
civil partnership between a man and wife not legally
married and their corresponding right to an equal
share in properties acquired through their joint
efforts and industry during cohabitation was
recognized through decision of the court. x x x
“With the enactment of the new Civil Code,
Article 144 codified the law established through
judicial precedents but with the modification that
the property governed by the rules on co-ownership
may be acquired by either or both of them through
their work or industry. Even if it is only the man who
works, the property acquired during the man and
wife relationship belongs through a fifty-fifty shar-
ing to the two of them.”
This rule established under Article 144 is inapplica-

ble if either or both the common-law spouses suffer from
an impediment to marry (Juaniza vs. Jose, 89 SCRA
306). In cases where such impediment exists, equity would
dictate that property acquired by the common-law spouses
through joint endeavor should be allocated to each of
them in proportion to the extent of their respective efforts.
The informal civil partnership between the spouses
terminate upon their separation (Comporedondo vs. Cruz-
Aznar, 102 Phil. 1055).

Art. 161. The conjugal partnership shall be liable
for:
(1) All debts and obligations contracted by the
husband for the benefit of the conjugal partnership,
and those contracted by the wife, also for the same
purpose, in the cases where she may legally bind the
partnership;
(2) Arrears or income due, during the marriage,
from obligations which constitute a charge upon
property of either spouse or of the partnership;
(3) Minor repairs or for mere preservation made
during the marriage upon the separate property of either
the husband or the wife; major repairs shall not be
charged to the partnership;
(4) Major or minor repairs upon the conjugal
partnership property;
(5) The maintenance of the family and the
education of the children of both husband and wife,
and of legitimate children of one of the spouses;
(6) Expenses to permit the spouses to complete
a professional, vocational or other course. (1408a)
Art. 162. The value of what is donated or prom-
ised to the common children by the husband, only for
securing their future or the finishing of a career, or by
both spouses through a common agreement shall also
be charged to the conjugal partnership, when they have
not stipulated that it is to be satisfied from the property
of one of them, in whole or in part. (1409)
Art. 163. The payment of debts contracted by the
husband or the wife before the marriage shall not be
charged to the conjugal partnership.
Neither shall the fines and pecuniary indemnities
imposed upon them be charged to the partnership.
However, the payment of debts contracted by the
husband or the wife before the marriage, and that of
fines and indemnities imposed upon them, may be en-

forced against the partnership assets after the respon-
sibilities enumerated in Article 161 have been covered,
if the spouse who is bound should have no exclusive
property or if it should be insufficient; but at the time
of the liquidation of the partnership such spouse shall
be charged for what has been paid for the purposes
above-mentioned. (1410)
Art. 164. Whatever may be lost during the marriage
in any kind of gambling, betting or game, whether
permitted or prohibited by law, shall be borne by the
loser, and shall not be charged to the conjugal
partnership. (1411a)
In general, the conjugal partnership property is liable

for —
(1) All debts and obligations contracted by the
husband for the benefit of the conjugal partnership, and
those contracted by the wife, also for the same purpose,
in the cases where she may legally bind the partnership,
such as for the daily expenses of the family (Art. 115,
Civil Code), for moderate donations (Art. 174), when the
husband consents to the incurrence of the debt or
obligation (Art. 172, Civil Code), or when she is the
administratrix of the conjugal partnership (Arts. 167-
168, Civil Code);
(2) Arrears or income due during the marriage, from
obligations which constitute a charge upon property of
either spouse or of the partnership;
(3) Minor repairs or for mere preservation made
during the marriage upon the separate property of either
the husband or the wife; major repairs shall not be charged
to the partnership;
(4) Major or minor repairs upon the conjugal part-
nership property;
(5) The maintenance of the family and the education
of the children of both husband and wife, and of legitimate
children of one of the spouses;
(6) Expenses to permit the spouses to complete a

professional, vocational or other course (see Art. 161, Civil
Code);
(7) The value of what is donated or promised to the
common children by the husband, only for securing their
future or the finishing of a career, or by both spouses
through a common agreement when they have not
stipulated that it is to be satisfied from the property of
one of them, in whole or in part (Art. 162, Civil Code); and
(8) Daily expenses of the family; if the property of
the conjugal partnership and the husband’s capital are
not sufficient therefore then the paraphernal of the wife
may be made to respond thereto (Art. 138, Civil Code).
With the exception of moderate donations for charity,
neither husband nor wife can donate any property of the
conjugal partnership without the consent of the other
(Art. 174, Civil Code), but the spouse may dispose by will
of his or her half of the conjugal partnership (Art. 170,
Civil Code).
The payment of debts contracted by either spouse
before the marriage, or fines and pecuniary indemnities
imposed upon them, shall not be charged to the conjugal
partnership. If, however, the spouse liable therefore has
no sufficient exclusive property, said obligations may be
enforced against the partnership assets after the
responsibilities enumerated in Article 161, supra., would
have been covered, but at the time of the liquidation of
the partnership, the spouse shall be charged for such
payment (Art. 163, Civil Code).
The personal obligations of the husband cannot be
enforced against the fruits of the paraphernal, unless it
is proved that the obligations redounded to the benefit of
the family (Art. 139; Fidelity & Surety Co. vs. Ansaldo, 66
Phil. 566; Laperal vs. Katigbak, 104 Phil. 999). Ordinarily,
it is presumed that, as administrator of the conjugal
partnership, the indebtedness he incurs or the losses he
sustains in the exercise of his profession or calling or in
the pursuit of legitimate business are for the benefit of

the family and must thus be borne by the partnership,
unless he deliberately acted to the prejudice of the family
(see G. Tractors, Inc. vs. Court of Appeals, supra.; Cobb-
Perez vs. Lantin, 25 SCRA 637).
Other liabilities for which the conjugal partnership
of gains may be held to respond include attorney’s fees
and expenses for litigation in suits for legal separation or
annulment of marriage, unless the action fails (Art. 293,
Civil Code), as well as the construction of a tombstone or
mausoleum and other funeral expenses if the deceased is
one of the spouses (Art. 310, Civil Code).
The liability of conjugal partnership, being a single
entity, may not be considered as the joint and several
obligation of the spouses (Gelano vs. Court of Appeals,
103 SCRA 90).

Partnership
Art. 165. The husband is the administrator of the

conjugal partnership. (1412a)
Art. 166. Unless the wife has been declared a non
compos mentis or a spendthrift, or is under civil inter-
diction or is confined in a leprosarium, the husband
cannot alienate or encumber any real property of the
conjugal partnership without the wife’s consent. If she
refuses unreasonably to give her consent, the court
may compel her to grant the same.
This article shall not apply to property acquired
by the conjugal partnerships before the effective date
of this Code. (1413a)
Art. 167. In case of abuse of powers of adminis-
tration of the conjugal partnership property by the
husband, the courts, on petition of the wife, may provide
for a receivership, or administration by the wife, or
separation of property. (n)
Art. 168. The wife may, by express authority of

the husband embodied in a public instrument, admi-
nister the conjugal partnership property. (n)
Art. 169. The wife may also by express authority
of the husband appearing in a public instrument,
administer the latter’s estate. (n)
Art. 170. The husband or the wife may dispose by
will of his or her half of the conjugal partnership profits.
(1414a)
Art. 171. The husband may dispose of the conjugal
partnership property for the purposes specified in
Articles 161 and 162. (1415a)
Art. 172. The wife cannot bind the conjugal
partnership without the husband’s consent, except in
cases provided by law. (1416a)
Art. 173. The wife may, during the marriage, and
within ten years from the transaction questioned, ask
the courts for the annulment of any contract of the
husband entered into without her consent, when such
consent is required, or any act or contract of the husband
which tends to defraud her or impair her interest in the
conjugal partnership property. Should the wife fail to
exercise this right, she or her heirs, after the dissolution
of the marriage, may demand the value of property
fraudulently alienated by the husband. (n)
Art. 174. With the exception of moderate dona-
tions for charity, neither husband nor wife can donate
any property of the conjugal partnership without the
consent of the other. (n)
The husband is the administrator of the conjugal

partnership of gains (Art. 165, Civil Code), but each of
the spouses retains respective control over their exclusive
property; and neither of the other spouse may bind such
separate property (Cafure vs. Morales, 25 Phil. 342; Bank
of P.I. vs. De Coster, 49 Phil. 574; Laperal vs. Katigbak, 90
Phil. 770) unless authorized by the owner-spouse (see
Art. 137, Civil Code; Philippine Sugar Estates Develop-
ment vs. Poizat, 48 Phil. 536).
The husband cannot alienate or encumber any con-

jugal real property (acquired by the partnership after the
effective date of the Civil Code) without the wife’s con-
sent, express or implied (Art. 166, Civil Code; Bautista
vs. Lovina, 98 Phil. 1006); otherwise, said the Supreme
Court in Garcia vs. Court of Appeals (130 SCRA 433), the
disposition is void (although it would be preferable to
consider it merely voidable (see Art. 173, infra.) except in
the sale of land or interest therein which could be void
under Art. 1874; see also Manotok Realty vs. Court of
Appeals, 149 SCRA 372). If she refuses unreasonably to
give such consent, the court may compel her to grant the
same. The consent of the wife is not required if she has
been declared a non compos mentis or a spendthrift or is
under civil interdiction or is confined in a leprosarium
(Art. 166, Civil Code), or if the conveyance is for the
purpose of discharging any of the obligations of the
conjugal partnership under articles 161 and 162 (supra.,
in relation to Art. 171; Tinitigan vs. Tinitigan, 100 SCRA
619).
In cases where the wife’s consent is required and
such consent is not obtained, or, generally, when any act
or contract by the husband tends to defraud her to impair
her interest, the wife may, during marriage, and within
10 years from the questioned transaction, seek its
annulment (see Roxas vs. Court of Appeals, 198 SCRA
541). If she fails to do so, she or her heirs, after the
dissolution of the marriage, may demand the value of the
property fraudulently alienated (Art. 173, Civil Code).
Without the husband’s consent, which can be implied
(Bautista vs. Lovina, 98 Phil. 1006), the wife cannot bind
the conjugal partnership except in cases provided by law
(Art. 172, Civil Code). In Felipe vs. Aldon (100 SCRA
628), the Supreme Court, holding that the term “invalid”
used by the then Intermediate Appellate Court was
imprecise, declared voidable the unauthorized conveyance
of conjugal real property by the wife. It would seem,
however, that the issue being one of want of authority on
the part of the wife, the view that the contract is unen-
forceable appears to be the more accurate description of
the agreement (see Art. 1403, Civil Code) unless the sale
involves land or any interest therein that renders the
contract void (Art. 1874, Civil Code).
In the following cases the wife may bind the conju-
gal partnership:
(1) When the husband consents (Art. 172, Civil
Code);
(2) For daily expenses of the family (Art. 115, Civil
Code);
(3) Moderate donations for charity (Art. 174, Civil
Code); and
(4) When the wife is the administratrix of the
conjugal partnership of gains. The administration of the
conjugal partnership of gains may be vested in the wife
under the marriage settlement (Art. 190, Civil Code), or
by express authority of the husband embodied in a public
instrument (Art. 168, Civil Code), or by a court order
(Art. 196, Civil Code).
Upon petition of the wife, the administration of all
classes of property in the marriage may be transferred to
her by the courts —
(1) When she becomes the guardian of her husband;
(2) When she asks for the declaration of his absence;
(3) In case of civil interdiction of the husband;
(4) If the husband should become a fugitive from
justice or be in hiding as a defendant in a criminal case;
(5) If, being absolutely unable to administer, he
should have failed to provide for administration (Art. 196,
Civil Code); or
(6) If the husband abandons the wife without just
cause for at least one year (Art. 178).
In the last two cases, the conferment of adminis-

tration by the courts may be held subject to such limita-
tions as may be deemed advisable (Art. 196, in relation to
When such administration is transferred to the wife,
the latter shall have the same powers and responsibilities
which the husband has when he is the administrator
Section 6 — Dissolution of the Conjugal

Partnership
Art. 175. The conjugal partnership of gains termi-
nates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled;
(4) In case of judicial separation of property
under Article 191. (1417a)
Art. 176. In case of legal separation, the guilty
spouse shall forfeit his or her share of the conjugal
partnership profits, which shall be awarded to the
children of both, and the children of the guilty spouse
had by a prior marriage. However, if the conjugal part-
nership property came mostly or entirely from the work
or industry, or from the wages and salaries, or from the
fruits of the separate property of the guilty spouse, this
forfeiture shall not apply.
In case there are no children, the innocent spouse
shall be entitled to all the net profits. (n)
Art. 177. In case of annulment of the marriage, the
spouse who acted in bad faith or grave cause for
annulment shall forfeit his or her share of the conjugal
partnership profits. The provisions of the preceding
article shall govern. (n)
Art. 178. The separation in fact between husband
and wife without judicial approval, shall not affect the
conjugal partnership, except that:
(1) The spouse who leaves the conjugal home

or refuses to live therein, without just cause, shall not
have a 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 necessary;
(3) If the husband has abandoned the wife
without just cause for at least one year, she may petition
the court for a receivership, or administration by her of
the conjugal partnership property, or separation of
property. (n)

Partnership
Art. 179. Upon the dissolution of the conjugal
partnership, an inventory shall be formed, but such
inventory shall not be necessary:
(1) If after the dissolution of the partnership, one
of the spouses should have renounced its effects and
consequences in due time; or
(2) When separation of property has preceded
the dissolution of the partnership. (1418a)
Art. 180. The bed and bedding which the spouses
ordinarily use shall not be included in the inventory.
These effects, as well as the clothing for their ordinary
use, shall be delivered to the surviving spouse. (1420)
Art. 181. The inventory having been completed,
the paraphernal property shall first be paid. Then, the
debts and charges against the conjugal partnership
shall be paid. (1422a)
Art. 182. The debts, charges and obligations of
the conjugal partnership having been paid, the capital
of the husband shall be liquidated and paid to the
amount of the property inventoried. (1423a)
Art. 183. The deductions from the inventoried
property having been made as provided in the two
preceding articles, the remainder of said property shall
constitute the credit of the conjugal partnership. (1424)
Art. 184. The loss or deterioration of the mova-

bles belonging to either spouse, although through a
fortuitous event, shall be paid from the conjugal
partnership of gains, should there be any.
Those suffered by real property shall not be
reimbursable in any case, except those on paraphernal
property administered by the husband, when the losses
were due to his fault. He shall pay for the same. (1425a)
Art. 185. The net remainder of the conjugal
partnership of gains shall be divided equally between
the husband and the wife or their respective heirs,
unless a different basis of division was agreed upon in
the marriage settlements. (1426a)
Art. 186. The mourning apparel of the widow shall
be paid for out of the estate of the deceased husband.
(1427a)
Art. 187. With regard to the formation of the
inventory, rules for appraisal and sale of property of
the conjugal partnership, and other matters which are
not expressly determined in the present Chapter, the
Rules of Court on the administration of estates of
deceased persons shall be observed. (1428a)
Art. 188. 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. (1430)
Art. 189. Whenever the liquidation of the partnership
of two or more marriages contracted by the same person
should be carried out at the same time, in order to
determine the capital of each partnership all kinds of
proof in the absence of inventories shall be admitted;
and in case of doubt, the partnership property shall be
divided between the different partnerships in proportion
to the duration of each and to the property belonging to
the respective spouses. (1431)
The conjugal partnership of gains terminates:

(3) When the marriage is annulled; or
(4) In case of judicial separation of property (Art.
175, in relation to Arts. 144-145, and Art. 191, Civil Code).
A partition without judicial approval is void (Luna vs.
Linatoc, 74 Phil. 15; Art. 190, Civil Code).
In case of legal separation, the guilty spouse, and in
the case of annulment of marriage, the spouse who acted
in bad faith or gave cause for annulment shall forfeit his
or her share of the conjugal partnership profits, which
shall be awarded to the children of both spouses and the
children of the offending spouse had by a prior marriage;
Provided, however, That if the conjugal partnership
property had come mostly or entirely from the work or
industry, or from wages, and salaries, or from the fruits
of the separate property of such spouse, the forfeiture
will not apply (Arts. 176-177, Civil Code). If both spouses
have been offenders, the pari delicto rule would apply
(Ricafuente vs. Ventura [C.A.], 53 O.G. 6117).
The separation in fact between the spouses without
judicial approval does not affect the conjugal partnership,
except that —
(1) the spouse who leaves the conjugal home or
refuses to live therein without just cause shall lose the
right of support;
(2) when the consent of one spouse to any trans-
action of the other is required by law, judicial authorization
shall be necessary;
(3) if the husband has abandoned the wife without
just cause for at least one year, she may petition the court
for a receivership or administration by her of the conjugal
partnership property, or separation of property (Art. 178,
Civil Code).
Art. 190 PERSONS 141
Upon the dissolution of the conjugal partnership,

the property shall be inventoried, liquidated and distri-
buted in the following order:
(1) Payment of the paraphernal property;
(2) Payment of debt, charges and obligations of the
conjugal partnership;
(3) Payment of the capital of the husband;
(4) Reimbursement of the loss or deterioration of
movables belonging to either spouse.
The net remainder shall be divided equally between
the husband and the wife, or their respective heirs, unless
a different basis of division had been agreed upon in the
marriage settlements. When the paraphernal property is
administered by the husband, any loss or deterioration
due to his fault shall be paid for by him (see Arts. 179-
187, Civil Code).
If the property is insufficient to pay for all the debts
of the partnership, the spouses are jointly, not solidarily,
liable (National Bank vs. Quintos, 46 Phil. 370).
Whenever the liquidation of the partnership of two
or more marriages contracted by the same person should
be carried out at the same time, all kinds of proof, in the
absence of inventories, shall be admitted in order to
determine the capital of each partnership. In case of doubt,
the partnership property shall be divided between the
partnership in proportion to the duration of each and to
the property belonging to the respective spouse (Art. 189,
Civil Code; see Dolar vs. Roman Catholic Bishop of Jaro,
68 Phil. 727).
Chapter 5
Separation of Property of the Spouses
and Administration of Property by the Wife
During the Marriage
Art. 190. In the absence of an express declaration

in the marriage settlements, the separation of property
between spouses during the marriage shall not take

place save in virtue of a judicial order. (1432a)
Art. 191. The husband or the wife may ask for the
separation of property, and it shall be decreed when
the spouse of the petitioner has been sentenced to a
penalty which carries with it civil interdiction, or has
been declared absent, or when legal separation has
been granted.
In case of abuse of powers of administration of
the conjugal partnership property by the husband, or
in case of abandonment by the husband, separation of
property may also be ordered by the court, according
to the provisions of Articles 167 and 178, No. 3.
In all these cases, it is sufficient to present the
final judgment which has been entered against the
guilty or absent spouse. (1433a)
The husband and the wife may agree upon the
dissolution of the conjugal partnership during the
marriage, subject to judicial approval. All the creditors
of the husband and of the wife, as well as of the conjugal
partnership, shall be notified of any petition for judicial
approval of the voluntary dissolution of the conjugal
partnership, so that any such creditors may appear at
the hearing to safeguard his interests. Upon approval of
the petition for dissolution of the conjugal partnership,
the court shall take such measures as may protect the
creditors and other third persons.
After dissolution of the conjugal partnership, the
provisions of Articles 214 and 215 shall apply. The
provisions of this Code concerning the effect of
partition stated in Articles 498 to 501 shall be applicable.
(1433a)
Art. 192. Once the separation of property has been
ordered, the conjugal partnership shall be dissolved,
and its liquidation shall be made in conformity with what
has been established by this Code.
However, without prejudice to the provisions of
Article 292, the husband and the wife shall be reciprocally
liable for their support during the separation, and for
the support and education of their children; all in pro-

portion to their respective property.
The share of the spouse who is under civil inter-
diction or absent shall be administered in accordance
with the Rules of Court. (1434a)
Art. 193. The complaint for separation and the final
judgment declaring the same, shall be noted and
recorded in the proper registers of property, if the
judgment should refer to immovable property. (1437)
Art. 194. The separation of property shall not
prejudice the rights previously acquired by creditors.
(1438)
Art. 195. The separation of property ceases:
(1) Upon reconciliation of the spouses, in case
of legal separation;
(2) When the civil interdiction terminates;
(3) When the absent spouse appears;
(4) When the court, at the instance of the wife,
authorizes the husband to resume the administration
of the conjugal partnership, the court being satisfied
that the husband will not again abuse his powers as
an administrator;
(5) When the husband, who has abandoned the
wife, rejoins her.
In the above cases, the property relations between
the spouses shall be governed by the same rules as
before the separation, without prejudice to the acts
and contracts legally executed during the separation.
The spouses shall state, in a public document, all
the property which they return to the marriage and
which shall constitute the separate property of each.
This public document shall be recorded in the
Registry of Property.
In the cases referred to in this article, all the
property brought in shall be deemed to be newly
contributed, even though all or some may be the same
which existed before the liquidation effected by reason

of the separation. (1439a)
Art. 196. With the conjugal partnership subsist-
ing, the administration of all classes of property in the
marriage may be transferred by the courts to the wife:
(1) When she becomes the guardian of her
husband;
(2) When she asks for the declaration of his
absence;
(3) In case of civil interdiction of the husband.
The courts may also confer the administration to
the wife, with such limitations as they may deem
advisable, if the husband should become a fugitive
from justice or be in hiding as a defendant in a criminal
case, or if, being absolutely unable to administer, he
should have failed to provide for administration. (1441a)
Art. 197. The wife to whom the administration of
all the property of the marriage is transferred shall
have, with respect to said property, the same powers
and responsibility which the husband has when he is
the administrator, but always subject to the provisions
of the last paragraph of the preceding article. (1442a)
The husband or the wife may ask for the separation

of property, which shall be decreed, when the other spouse
has been sentenced to a penalty which carries with it
civil interdiction, or has been declared absent (in a
separate proceeding [Peyer vs. Martinez, 88 Phil. 72]), or
by the wife in case of abuse of powers of administration
by the husband of the conjugal partnership (Garcia vs.
Manzano, 103 Phil. 798). The spouse may themselves
agree upon the dissolution of the partnership during the
marriage subject to judicial approval which shall provide
for such measures as may be necessary to protect the
creditors and other third persons (Art. 191, Civil Code).
Without such court approval, the partition of the conjugal
estate would be void (see Art. 190, Civil Code; Luna vs.
Linatoc, 74 Phil. 15).
During the separation, the husband and the wife

shall be reciprocally liable for support, as well as for the
support and education of the children, in proportion to
their respective property. The separation shall not
prejudice the rights previously acquired by creditors (Arts.
193-194, Civil Code).
The separation of property ceases: (1) upon the
reconciliation of the spouses, in case of legal separation;
(2) when the civil interdiction terminates; (3) when the
absent spouse appears; (4) when the court, at the instance
of the wife, authorizes the husband to resume the
administration of the conjugal partnership, the court being
satisfied that the husband will not again abuse his powers
as an administrator; and (5) when the husband, who has
abandoned the wife, rejoins her. In the foregoing cases,
all the property brought in shall be deemed to be newly
contributed, even though all or some may be the same
which existed before the liquidation effected by reason of
the separation (Art. 195, Civil Code).
Suppletory Law to Conjugal Partnership of Gains

In matters not provided for in all the foregoing rules
governing the conjugal partnership, the law on the
contract of partnership, if not inconsistent, will apply
Chapter 6
System of Absolute Community
Art. 198. In case the future spouses agree in the

marriage settlements that the system of absolute
community shall govern their property relations during
marriage, the following provisions shall be of
supplementary application.
Art. 199. In the absence of stipulation to the
contrary, the community shall consist of all present
and future property of the spouses not excepted by
law.
Art. 200. Neither spouse may renounce any inher-

itance without the consent of the other. In case of con-
flict, the court shall decide the question, after consult-
ing the family council, if there is any.
Art. 201. The following shall be excluded from the
community:
(1) Property acquired by gratuitous title by either
spouse, when it is provided by the donor or testator
that it shall not become a part of the community;
(2) Property inherited by either husband or wife
through the death of a child by a former marriage,
there being brothers or sisters of the full blood of the
deceased child;
(3) A portion of the property of either spouse
equivalent to the presumptive legitime of the children
by a former marriage;
(4) Personal belongings of either spouse.
However, all the fruits and income of the foregoing
classes of property shall be included in the community.
Art. 202. Ante-nuptial debts of either spouse shall
not be paid from the community, unless the same have
redounded to the benefit of the family.
Art. 203. Debts contracted by both spouses or by
one of them with the consent of the other shall be paid
from the community. If the common property is
insufficient to cover common debts, the same may be
enforced against the separate property of the spouses,
who shall be equally liable.
Art. 204. Debts contracted by either spouse without
the consent of the other shall be chargeable against
the community to the extent that the family may have
been benefited thereby.
Art. 205. Indemnities that must be paid by either
spouse on account of a crime or of a quasi-delict shall
be paid from the common assets, without any obligation
to make reimbursement.
Art. 206. The ownership, administration, posses-

sion and enjoyment of the common property belong to
both spouses jointly. In case of disagreement, the courts
shall settle the difficulty.
Art. 207. Neither spouse may alienate or encum-
ber any common property without the consent of the
other. In case of unjustifiable refusal by the other
spouse, the courts may grant the necessary consent.
Art. 208. The absolute community of property shall
be dissolved on any of the grounds specified in Article
175.
Art. 209. When there is a separation in fact between
husband and wife, without judicial approval, the
provisions of Article 178 shall apply.
Art. 210. Upon the dissolution and liquidation of
the community, the net assets shall be divided equally
between the husband and the wife or their heirs. In
case of legal separation or annulment of marriage, the
provisions of Articles 176 and 177 shall apply to the
net profits acquired during the marriage.
Art. 211. Liquidation of the absolute community
shall be governed by the Rules of Court on the adminis-
tration of the estate of deceased persons.
System of Absolute Community

The future spouses may agree on a system of absolute
community in a marriage settlement (Art. 198, Civil Code)
and, unless otherwise stipulated, the community shall
consist of all present and future property (Art. 199, Civil
Code), except —
(1) Property acquired by gratuitous title by either
spouse, when it is provided by the donor or testator that
it shall not become a part of the community;
(2) Property inherited by either husband or wife
through the death of a child by a former marriage, there
being brothers or sisters of the full blood of the deceased
child;
(3) A portion of the property of either spouse equiva-

lent to the presumptive legitime of the children by a
former marriage; and
(4) Personal belongings of either spouse.
The fruits and income of the above excluded property,
however, shall be included in the community (Art. 201,
Civil Code).
The following rules are suppletory to the system of
community of property —
(1) Neither spouse may renounce any inheritance
without the consent of the other (Art. 200, Civil Code).
(2) Ante-nuptial debts of either spouse shall not be
paid from the community, unless the same have redounded
to the benefit of the family (Art. 202, Civil Code).
(3) Debts contracted by both spouses or by one of
them with the consent of the other shall be paid from the
community, and if the common property is insufficient,
the debts may be enforced against the separate property
of the spouses in equal portions (Art. 203, Civil Code).
(4) Debts contracted by either spouse without the
consent of the other shall be chargeable against the
community only to the extent that the family may have
been benefited (Art. 204, Civil Code).
(5) Indemnities required to be paid by either spouse
on account of a crime or of a quasi-delict shall be paid
from the community without obligation to make
reimbursements (Art. 205, Civil Code).
(6) The ownership, administration, possession and
enjoyment of the common property belong to the spouses
jointly but in case of disagreement, the courts shall settle
the question (Art. 206, Civil Code).
(7) Neither spouse may alienate or encumber any
common property without the consent of the other but in
case of unjustifiable refusal to give that consent, the courts
may grant relief (Art. 207, Civil Code).
(8) The community shall be dissolved for the same

grounds that would dissolve the conjugal partnership of
gains (Art. 208, in relation to Art. 175, Civil Code); when
the husband and wife are separated in fact, the provisions
on conjugal partnership of gains shall likewise be
applicable (Art. 209, in relation to Art. 178, Civil Code).
(9) Upon the dissolution and liquidation of the
community, the net assets shall be divided equally between
the spouses or among their heirs. In case of legal separa-
tion or annulment of marriage, the forfeiture provisions
in the conjugal partnership of gains in respect of net
profits shall likewise apply (Art. 210, in relation to Arts.
Chapter 7
System of Complete Separation of Property (n)
Art. 212. Should the future spouses agree in the

marriage settlements that their property relations during
marriage shall be based upon the system of complete
separation of property, the following provisions shall
supplement the marriage settlements.
Art. 213. Separation of property may refer to
present or both. It may be total or partial. In the latter
case, the property not agreed upon as separate shall
pertain to the conjugal partnership of gains.
Art. 214. Each spouse shall own, dispose of,
possess, administer and enjoy his or her own separate
estate, without the consent of the other. All earnings
from any profession, business or industry shall likewise
belong to each spouse.
Art. 215. Each spouse shall proportionately bear
the family expenses.
System of Complete Separation of Property

The future spouses may agree on a system of com-
plete separation of property in the marriage settlement.
Such separation may refer to present or future property

or both. In case of partial separation of property, that
which is not agreed upon to be separate shall pertain to
and be governed by the conjugal partnership of gains
(Arts. 212-213, Civil Code).
Each spouse shall own, dispose of, possess, administer
and enjoy his or her own separate estate without the
consent of the other and both shall proportionately bear
the family expenses (Arts. 214-215, Civil Code).
Governing Rule on Mixed Marriages

If the marriage is between a citizen of the Philippines
and a foreigner, whether celebrated in the Philippines or
abroad, the following rules shall prevail:
(1) If the husband is a citizen of the Philippines
while the wife is a foreigner, the foregoing rules on
property relations of the spouses shall govern;
(2) If the husband is a foreigner and the wife is a
citizen of the Philippines, the laws of the husband’s coun-
try shall be followed, without prejudice to the provisions
of the Civil Code with regard to immovable property (Art.
124, in relation to Art. 16, par. 2, Civil Code). As stated
elsewhere before, the proviso on immovable property re-
lates to laws on property (in consonance with Art. 16 of
the Code); hence, said proviso should not be understood
as conveying, for instance, that the provisions on conju-
gal partnership of gains (in the absence of property set-
tlements) should necessarily apply in respect of real prop-
erty located in the Philippines despite a specific govern-
ing law of the country of the husband’s nationality.
151
TITLE VII. THE FAMILY
Chapter 1
The Family as an Institution
Author’s notes: The provisions of the Civil

Art. 216. The family is a basic social institution

which public policy cherishes and protects.
Art. 217. Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their des-
cendants;
(4) Among brothers and sisters.
Art. 218. The law governs family relations. No
custom, practice or agreement which is destructive of
the family shall be recognized or given any effect.
Art. 219. Mutual aid, both moral and material, shall
be rendered among members of the same family.
Judicial and administrative officials shall foster this
mutual assistance.
Art. 220. In case of doubt, all presumptions favor
the solidarity of the family. Thus, every intendment of
law or facts leans toward the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of
children, the community of property during marriage,
151
the authority of parents over their children, and the

validity of defense for any member of the family in
case of unlawful aggression.
Art. 221. The following shall be void and of no
effect:
(1) Any contract for personal separation between
husband and wife;
(2) Every extrajudicial agreement, during
marriage, for the dissolution of the conjugal partnership
of gains or of the absolute community of property
between husband and wife;
(3) Every collusion to obtain a decree of legal
separation, or of annulment of marriage;
(4) Any simulated alienation of property with
intent to deprive the compulsory heirs of their legitime.
Art. 222. No suit shall be filed or maintained
between members of the same family unless it should
appear that earnest efforts toward a compromise have
been made, but that the same have failed, subject to
the limitations in Article 2035.
The Family as an Institution

The family is a basic social institution which public
policy cherishes and protects (Art. 216, Civil Code). No
custom, practice or agreement which is destructive of the
family shall be recognized or given any effect (Art. 218,
Civil Code). In case of doubt, all presumptions favor the
solidarity of the family. Accordingly, the intendment of
the law leans towards the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of
the children, the community of property during marriage,
the authority of parents over their children, and the
validity of defense for any member of the family in case of
unlawful aggression (Arts. 218-220, Civil Code). A man
and a woman living together shall be presumed married
(Sison vs. Amblada, 30 Phil. 118).
Title VII. The Family
The Constitution provides:

In Article II thereof —
“Sec. 12. The State recognizes the sanctity of
family life and shall protect and strengthen the family
as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of
the unborn from conception. The natural and primary
right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral
character shall receive the support of the Govern-
ment.”
In Article XV thereof —
“Sec. 1. The State recognizes the Filipino family
as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its
total development.
“Sec. 2. Marriage, as an inviolable social insti-
tution, is the foundation of the family and shall be
protected by the State.
“Sec. 3. The State shall defend:
(1) The right of spouses to found a family
in accordance with their religious convictions
and the demands of responsible parenthood;
(2) The right of children to assistance,
including proper care and nutrition, and special
protection from all forms of neglect, abuse,
cruelty, exploitation, and other conditions preju-
dicial to their development;
(3) The right of the family to a family
living wage and income; and
(4) The right of families or family associa-
tions to participate in the planning and
implementation of policies and programs that
affect them.
“Sec. 4. The family has the duty to care for its

elderly members but the State may also do so through
just programs of social security.”
The family relations include those: (1) between
husband and wife; (2) between parent and child; (3) among
other ascendants and their descendants; (4) among
brothers and sisters. The law governs these family rela-
tions and among them mutual aid, both moral and
material, shall be rendered (Arts. 217-219, Civil Code).
In keeping with public policy, the law considers to be
void and of no effect the following:
(1) Any contract for personal separation
between husband and wife;
(2) Every extrajudicial agreement, during
marriage, for the dissolution of the conjugal
partnership of gains or of the absolute community of
property between husband and wife;
(3) Every collusion to obtain a decree of legal
separation, or of annulment of marriage;
(4) Any simulated alienation of property with
intent to deprive the compulsory heirs of their
legitimes (Art. 221, Civil Code).
The law likewise mandates that no suit shall be filed
or maintained by and among members of the family unless
earnest efforts toward a compromise have been made,
but that the same have failed (Art. 222, Civil Code, subject
to the limitations in Art. 2035 [infra.]). This requirement
is jurisdictional but is inapplicable if one or some of the
parties are strangers (Magbaleta vs. Gonong, 76 Phil.
511). Every effort toward a compromise should be made
before a litigation is allowed to breed hate and passion in
the family. It is generally known that lawsuits between
close relatives generate deeper bitterness than those
involving strangers (Vda. De Manalo vs. Court of Appeals,
G.R. No. 129242, 16 January 2001). Article 222 finds
application only to ordinary civil actions (ibid.). A brother-
in-law is not a member of the family of his wife and is
outside the coverage of Article 222 of the Civil Code re-

quiring efforts to bring about a compromise before the
commencement of a litigation (Esquivias vs. Court of
Appeals, 82 SCAD 927, 272 SCRA 803). The phrase
“between members of the same family” should be
construed in the light of Article 217 of the Civil Code
under which “family relations” include only those: (a)
between husband and wife, (b) between parent and child,
(c) among other ascendants and their descendants, and
(d) among brothers and sisters (ibid.).
Chapter 2
The Family Home
Art. 223. The family home is the dwelling house
where a person and his family reside, and the land on
which it is situated. If constituted as herein provided,
the family home shall be exempt from execution, forced
sale or attachment, except as provided in Articles 232
and 243.
Art. 224. The family home may be established
judicially or extrajudicially.
Section 2 — Judicial Constitution

of the Family Home
Art. 225. The family home may be constituted by

a verified petition to the Court of First Instance by the
owner of the property, and by approval thereof by the
court.
Art. 226. The following shall be the beneficiaries
of the family home:
(1) The person establishing the same;
(2) His or her spouse;
(3) His or her parents, ascendants, descendants,
brothers and sisters, whether the relationship be legiti-
mate or otherwise, who are living in the family home
and who depend upon him for support.
Art. 227. The family home may also be set up by an

unmarried person who is the head of a family or
household.
Art. 228. If the petitioner is married, the family
home may be selected from the conjugal partnership
or community property, or from the separate property
of the husband, or, with the consent of the wife, from
her paraphernal property.
Art. 229. The petition shall contain the following
particulars:
(1) Description of the property;
(2) An estimate of its actual value;
(3) A statement that the petitioner is actually
residing in the premises;
(4) The encumbrances thereon;
(5) The names and addresses of all the creditors
of the petitioner and of all mortgagees and other
persons who have an interest in the property;
(6) The names of the other beneficiaries specified
in Article 226.
Art. 230. Creditors, mortgagees and all other
persons who have an interest in the estate shall be
notified of the petition, and given an opportunity to
present their objections thereto. The petition shall, more-
over, be published once a week for three consecutive
weeks in a newspaper of general circulation.
Art. 231. If the court finds that the actual value of
the proposed family home does not exceed twenty
thousand pesos, or thirty thousand pesos in chartered
cities, and that no third person is prejudiced, the
petition shall be approved. Should any creditor whose
claim is unsecured, oppose the establishment of the
family home, the court shall grant the petition if the
debtor gives sufficient security for the debt.
Art. 232. The family home, after its creation by
virtue of judicial approval, shall be exempt from execu-
tion, forced sale, or attachment, except:
(1) For nonpayment of taxes; or
(2) In satisfaction of a judgment on a debt se-

cured by a mortgage constituted on the immovable
before or after the establishment of the family home.
In case of insolvency of the person constituting
the family home, the property shall not be considered
one of the assets to be taken possession of by the
assignee for the benefit of creditors.
Art. 233. The order of the court approving the
establishment of the family home shall be recorded in
the Registry of Property.
Art. 234. When there is danger that a person
obliged to give support may lose his or her fortune
because of grave mismanagement or on account of
riotous living, his or her spouse, if any, and a majority
of those entitled to be supported by him or by her may
petition the Court of First Instance for the creation of
the family home.
Art. 235. The family home may be sold, alienated or
encumbered by the person who has constituted the
same, with the consent of his or her spouse, and with
the approval of the court. However, the family home
shall under no circumstances be donated as long as
there are beneficiaries. In case of sale, the price or such
portion thereof as may be determined by the court shall
be used in acquiring property which shall be formed
into a new family home. Any sum of money obtained
through an encumbrance on the family home shall be
used in the interest of the beneficiaries. The court shall
take measures to implement the last two provisions.
Art. 236. The family home may be dissolved upon
the petition of the person who has constituted the same,
with the written consent of his or her spouse and of at
least one half of all the other beneficiaries who are
eighteen years of age or over. The court may grant the
petition if it is satisfactorily shown that the best interest
of the family requires the dissolution of the family home.
Art. 237. In case of legal separation or annulment
of marriage, the family home shall be dissolved, and
the property shall cease to be exempt from execution,
forced sale or attachment.
Art. 238. Upon the death of the person who has

set up the family home, the same shall continue, unless
he desired otherwise in his will. The heirs cannot ask
for its partition during the first ten years following the
death of the person constituting the same, unless the
court finds powerful reasons therefor.
Art. 239. The family home shall not be subject to
payment of the debts of the deceased, unless in his will
the contrary is stated. However, the claims mentioned
in Article 232 shall not be adversely affected by the
death of the person who has established the family home.
Section 3 — Extrajudicial Creation

of the Family Home
Art. 240. The family home may be extrajudicially
constituted by recording in the Registry of Property a
public instrument wherein a person declares that he
thereby establishes a family home out of a dwelling
place with the land on which it is situated.
Art. 241. The declaration setting up the family
home shall be under oath and shall contain:
(1) A statement that the claimant is the owner
of, and is actually residing in the premises;
(2) A description of the property;
(3) An estimate of its actual value; and
(4) The names of the claimant’s spouse and the
other beneficiaries mentioned in Article 226.
Art. 242. The recording in the Registry of Property
of the declaration referred to in the two preceding
articles is the operative act which creates the family
home.
Art. 243. The family home extrajudicially formed
shall be exempt from execution, forced sale or attach-
ment, except:
(1) For nonpayment of taxes;
(2) For debts incurred before the declaration was
recorded in the Registry of Property;
(3) For debts secured by mortgages on the

premises before or after such record of the declaration;
(4) For debts due to laborers, mechanics, archi-
tects, builders, materialmen and others who have ren-
dered service or furnished material for the construc-
tion of the building.
Art. 244. The provisions of Articles 226 to 228 and
235 to 238 are likewise applicable to family homes extra-
judicially established.
Art. 245. Upon the death of the person who has
extrajudicially constituted the family home, the property
shall not be liable for his debts other than those
mentioned in Article 243. However, he may provide in
his will that the family home shall be subject to payment
of debts not specified in Article 243.
Art. 246. No declaration for the extrajudicial
establishment of the family home shall be recorded in
the Registry of Property if the estimated actual value
of the building and the land exceeds the amount stated
in Article 231.
Art. 247. When a creditor whose claim is not
mentioned in Article 243 obtains a judgment in his favor,
and he has reasonable grounds to believe that the
family home of the judgment debtor is worth more than
the amount mentioned in Article 231, he may apply to
the Court of First Instance for an order directing the
sale of the property under execution.
Art. 248. The hearing on the petition, appraisal of
the value of the family home, the sale under execution
and other matters relative to the proceedings shall be
governed by such provisions in the Rules of Court as
the Supreme Court shall promulgate on the subject,
provided they are not inconsistent with this Code.
Art. 249. At the sale under execution referred to in
the two preceding articles, no bid shall be considered
unless it exceeds the amount specified in Article 231.
The proceeds of the sale shall be applied in the
following order:
(1) To the amount mentioned in Article 231;
(2) To the judgment and the costs.

The excess, if any, belongs to the person consti-
tuting the family home.
Art. 250. The amount mentioned in Article 231 thus
received by the person who has established the family
home, or as much thereof as the court may determine,
shall be invested in the constitution of a new family
home. The court shall take measures to enforce this
provision.
Art. 251. In case of insolvency of the person
creating the family home, the claims specified in Article
243 may be satisfied notwithstanding the insolvency
proceedings.
If the assignee has reasonable grounds to believe
that the actual value of the family home exceeds the
amount fixed in Article 231, he may take action under
the provisions of Articles 247, 248 and 249.
The Family Home

The family home is the dwelling house, not inclusive
of the movables therein, where a person and his family
resides, and the land on which it is situated. The family
home may be established judicially or extrajudicially (Arts.
The family home may be constituted by the owner of
the property; if married, the family home may be selected
from the conjugal partnership or community property or
from paraphernal property with the consent of the wife.
The family home may be set up by an unmarried person
who is the head of a family or household. It may also be
constituted by the other spouse and a majority of those
entitled to be supported by a person when there is a
danger that the latter may lose his or her fortune because
of mismanagement or on account of riotous living (see
Arts. 225, 227, 228, 234, Civil Code).
The judicial constitution of a family home is done by
a verified petition with the Regional Trial Court and its
approval thereof (Art. 225, Civil Code). Creditors, mort-

gagees, and all other persons who have an interest in the
property shall be notified of the petition and given an
opportunity to present their objections. The petition shall,
moreover, be published once a week for three consecutive
weeks in a newspaper of general circulation (Art. 230,
Civil Code).
The family home is constituted extrajudicially by
the recording in the Registry of Property of a public
instrument wherein a person declares that he thereby
establishes a family home (Art. 240, Civil Code).
The actual value of the family home must not exceed
twenty thousand pesos (P20,000), or thirty thousand pesos
(P30,000) in chartered cities (Art. 231, Civil Code).
Once duly constituted, a family home shall be exempt
from execution, forced sale or attachment (Art. 223, Civil
Code) except —
a) In the case of judicially constituted family home:
(i) For non-payment of taxes; or
(ii) In satisfaction of a judgment on a debt
secured by a mortgage constituted on the property
before or after the establishment of a family home
b) In the case of extrajudicially constituted family
home:
(i) For non-payment of taxes;
(ii) For debts incurred before the declaration
was recorded in the Registry of Property;
(iii) For debts secured by mortgages on the
premises before or after such recording; and
(iv) For debts due to laborers, mechanics, ar-
chitects, builders, materialmen and others who have
rendered service or materials for the construction of
the building (Art. 243, Civil Code).
The family home shall inure to the benefit of: (a) the
person establishing the same; (b) his or her spouse; and
(c) his or her parents, ascendants, descendants, brothers
and sisters, whether the relationship be legitimate or
otherwise, who are living in the family home and who
depend upon him for support (Art. 226, Civil Code). The
family home may not be sold, alienated or encumbered
without the consent of the other spouse and the approval
of the court. In case of sale, the price of such portion
thereof as the court may determine shall be used in
acquiring and constituting a family home. Any sum
obtained through an encumbrance may only be used in
the interest of the beneficiaries. Under no circumstances
may the family home be donated as long as there are
beneficiaries. (Art. 235, Civil Code).
Dissolution of the Family Home

The family home may be dissolved in the following
cases:
(1) Upon petition of the person who has constituted
the same with the written consent of the other spouse
and of at least one-half of all the other beneficiaries who
are 18 years of age or over; the court may grant the
petition if it is satisfied that such dissolution would be for
the best interest of the family (Art. 236, Civil Code);
(2) In case of legal separation or annulment of the
marriage (Art. 237, Civil Code);
(3) Upon the death of the person who has set up
the family home if it is so desired in his will; otherwise,
the heirs cannot ask for its partition during the first 10
years following the death of the person unless the court
finds powerful reasons therefor (Art. 238, Civil Code);
(4) In the case of extrajudicially (not judicially) con-
stituted family home, if a creditor whose claim is not
mentioned in Article 243 (supra.) obtains a judgment in
his favor and he has reasonable grounds to believe that
the family home of the judgment debtor is worth more

than P20,000, or P30,000 in chartered cities at the time
of the constitution thereof, the court may direct the sale
of the property, the proceeds of which shall be applied in
the following order —
(a) To the amount mentioned in Article 231
(supra.);
(b) To the judgment and the costs, the excess,
if any, belonging to the persons constituting the
family home (Art. 249, Civil Code).
Chapter 3
The Family Council (n)
Art. 252. The Court of First Instance may, upon

application of any member of the family, a relative, or a
friend, appoint a family council, whose duty it shall be
to advise the court, the spouses, the parents, the guar-
dians and the family on important family questions.
Art. 253. The family council shall be composed of
five members, who shall be relatives of the parties
concerned. But the court may appoint one or two
friends of the family.
Art. 254. The family council shall elect its
chairman, and shall meet at the call of the latter or
upon order of the court.
The Family Council

The family council may be appointed by a Regional
Trial Court, upon application of any member of the fam-
ily, a relative, or friend, which shall have the duty of
advising the court, the spouses, the parents, guardians
and the family on important family questions. It shall be
composed of five members who shall be relatives of the
parties concerned but the court may appoint one or two
friends of the family (Arts. 252-253, Civil Code).
164 CIVIL LAW
TITLE VIII. PATERNITY AND FILIATION

Paternity is the civil status of a father with regard to

the child, while filiation is the civil status of a child with
regard to his parents. Children may either be legitimate,
legitimated, adopted, natural or spurious. Legitimate
children are those born of parents who are lawfully
married. Legitimated children are those who are born
natural children of, and acknowledged by, parents who
subsequently marry. Adopted children are those who by
legal and judicial process have so been decreed as adopted
by the courts. Natural children are those born outside
wedlock of parents who at the time of the conception of
the former were not disqualified by any impediment to
marry. Spurious children are children of parents who
were unmarried but who could not have married because
of an impediment at the time of the conception or birth of
the child.
Chapter 1
Legitimate Children
Art. 255. Children born after one hundred and

eighty days following the celebration of the marriage,
and before three hundred days following its dissolution
or the separation of the spouses shall be presumed to
be legitimate.
164
Title VIII. Paternity and Filiation
Against this presumption no evidence shall be

admitted other than that of the physical impossibility
of the husband’s having access to his wife within the
first one hundred and twenty days of the three hundred
which preceded the birth of the child.
This physical impossibility may be caused:
(1) By the impotence of the husband;
(2) By the fact that the husband and wife were
living separately, in such a way that access was not
possible;
(3) By the serious illness of the husband. (108a)
Art. 256. The child shall be presumed legitimate,
although the mother may have declared against its
legitimacy or may have been sentenced as an
adulteress. (109)
Art. 257. Should the wife commit adultery at or
about the time of the conception of the child, but there
was no physical impossibility of access between her
and her husband as set forth in Article 255, the child is
prima facie presumed to be illegitimate if it appears
highly improbable, for ethnic reasons, that the child is
that of the husband. For the purposes of this article,
the wife’s adultery need not be proved in a criminal
case. (n)
Art. 258. A child born within one hundred eighty
days following the celebration of the marriage is prima
facie presumed to be legitimate. Such a child is
conclusively presumed to be legitimate in any of these
cases:
(1) If the husband, before the marriage, knew of
the pregnancy of the wife;
(2) If he consented, being present, to the putting
of his surname on the record of birth of the child;
(3) If he expressly or tacitly recognized the child
as his own. (110a)
Art. 259. If the marriage is dissolved by the death
of the husband, and the mother contracted another
marriage within three hundred days following such

death, these rules shall govern:
(1) A child born before one hundred eighty days
after the solemnization of the subsequent marriage is
disputably presumed to have been conceived during
the former marriage, provided it be born within three
hundred days after the death of the former husband;
(2) A child born after one hundred eighty days
following the celebration of the subsequent marriage is
prima facie presumed to have been conceived during
such marriage, even though it be born within the three
hundred days after the death of the former husband. (n)
Art. 260. If after a judgment annulling a marriage,
the former wife should believe herself to be pregnant
by the former husband, she shall, within thirty days
from the time she became aware of her pregnancy,
notify the former husband or his heirs of that fact. He
or his heirs may ask the court to take measures to
prevent a simulation of birth.
The same obligation shall devolve upon a widow
who believes herself to have been left pregnant by the
deceased husband, or upon the wife who believes
herself to be pregnant by her husband from whom she
has been legally separated. (n)
Art. 261. There is no presumption of legitimacy or
illegitimacy of a child born after three hundred days
following the dissolution of the marriage or the
separation of the spouses. Whoever alleges the
legitimacy or the illegitimacy of such child must prove
his allegation. (n)
Art. 262. The heirs of the husband may impugn
the legitimacy of the child only in the following cases:
(1) If the husband should die before the expira-
tion of the period fixed for bringing his action;
(2) If he should die after the filing of the com-
plaint, without having desisted from the same;
(3) If the child was born after the death of the
husband. (112)
Art. 263. The action to impugn the legitimacy of the

child shall be brought within one year from the recording
of the birth in the Civil Register, if the husband should
be in the same place, or in a proper case, any of his
heirs.
If he or his heirs are absent, the period shall be
eighteen months if they should reside in the Philippines;
and two years if abroad. If the birth of the child has
been concealed, the term shall be counted from the
discovery of the fraud. (113a)
Art. 264. Legitimate children shall have the right:
(1) To bear the surnames of the father and of
the mother;
(2) To receive support from them, from their
ascendants, and in a proper case, from their brothers
and sisters, in conformity with Article 291;
(3) To the legitime and other successional rights
which this Code recognizes in their favor. (114)
Legitimate Children
The law, unlike the Family Code, does not declare,
but merely establishes presumptions of, legitimacy (or
illegitimacy), thus —
a. A child born within 180 days following the
celebration of the marriage is prima facie presumed to be
legitimate. Such a child is conclusively presumed to be
legitimate —
(1) If the husband, before the marriage, knew
of the pregnancy of the wife;
(2) If he consented, being present, to the
putting of his surname on the record of birth;
(3) If he expressly recognizes the child as his
own (Art. 258; Civil Code).
b. A child born after 180 days following the
celebration of the marriage, and before 300 days follow-
ing its dissolution or the separation of the spouses is
quasi-conclusively presumed to be legitimate. Against this

presumption no evidence shall be admitted other than
that of the physical impossibility of the husband’s having
access to his wife within the first 120 days (period of
conception) of the 300 days which preceded the birth of
the child (Macadangdang vs. Court of Appeals, 100 SCRA
73). This physical impossibility may be caused:
(1) By the impotence (not sterility) of the
husband;
(2) By the fact of the husband and wife living
separately in such a way that access was not possible;
(3) By the serious illness of the husband (Art.
255, Civil Code; see Lumain vs. Paraguya, 150 SCRA
279). It has once been held that the mere fact that
the husband is suffering from tuberculosis and that
the wife has committed adultery during the period
of conception would not be enough to rebut the quasi-
conclusive presumption (Andal vs. Macaraeg, 89 Phil.
165).
The above presumptions of legitimacy shall apply
legitimacy or may have been sentenced as an adulteress
c. Should the wife commit adultery (which need
not be proved in a criminal case) at or about the time of
the conception of the child (within 120 days of the 300
days preceding the birth of the child) but there has been
no physical impossibility of access between her and her
husband, the child shall be prima facie presumed to be
illegitimate if it appears highly improbable for ethnic
reasons that the child is that of the husband (Art. 257,
Civil Code). The lack of physical resemblance (physiog-
nomy) is not enough to apply the presumption of illegiti-
macy (Chun Chong vs. Collector, 38 Phil. 815), but racial
dissimilarity coupled with the wife’s adultery could be
sufficient (Lee vs. Collector, 58 Phil. 147).
d. If the marriage is dissolved by the death of the
husband (or annulment of the marriage) and the mother
contracts another marriage within 300 days following

such death, the following rules shall govern:
(1) A child born before 180 days after the sol-
emnization of the subsequent marriage but within
300 days after the death of the former husband [or
annulment of the marriage] is disputably presumed
to have been conceived during the former marriage;
(2) A child born after 180 days following the
celebration of the subsequent marriage is prima facie
presumed to have been conceived during such
marriage, even though it be born within 300 days
following the death of the former husband [or the
annulment of the marriage] (see Art. 259, Civil Code).
If after the death of the husband or a judgment
annulling a marriage, the widow or the former wife should
believe herself to be pregnant by the deceased or former
husband, she shall within 30 days from the time she
became aware of her pregnancy notify the heirs of the
deceased husband or the former husband, as the case
maybe, of that fact (Art. 260, Civil Code).
There is no presumption of legitimacy or illegitimacy
of a child born after 300 days following the dissolution of
the marriage or the separation of the spouses (Art. 261,
Civil Code).
Action to Impugn Legitimacy

The husband may impugn the legitimacy of the child
by an action within one year from the recording of the
birth if the husband should be in the same place; if he is
absent, then the period shall be 18 months if he resides in
the Philippines and 2 years if abroad. If the birth of the
child has been concealed, the periods shall be counted
from the discovery of the fraud (Art. 263, Civil Code).
Article 263 of the Civil Code refers to an action to impugn
the legitimacy of a child, to assert and prove that a per-
son is not a man’s child by his wife. It does not contem-
plate a situation where a child is allegedly not a child at
all of a particular couple (Labagala vs. Santiago, G.R.

No. 132305, 04 December 2001).
The heirs of the husband may impugn the legiti-
macy of the child only in the following cases:
(1) If the husband should die before the expiration
of the period fixed for bringing the action;
(2) If he should die after the filing of the complaint,
without having desisted therefrom; or
(3) If the child is born after the death of the husband
Rights of Legitimate (and Legitimated) Children

Legitimate children shall have the right:
(1) To bear the surnames of the father and of the
mother;
(2) To receive support from them, from their
ascendants, and, in a proper case, from their brothers
and sisters, in conformity with Article 291;
(3) To the legitime and other successional rights
which this Code recognizes in their favor (Art. 264, Civil
Code).
Chapter 2
Proof of Filiation of Legitimate Children
Art. 265. The filiation of legitimate children is proved

by the record of birth appearing in the Civil Register, or
by an authentic document or a final judgment. (115)
Art. 266. In the absence of the titles indicated in the
preceding article, the filiation shall be proved by the
continuous possession of status of a legitimate child.
(116)
Art. 267. In the absence of a record of birth, authen-
tic document, final judgment or possession of status,
legitimate filiation may be proved by any other means
allowed by the Rules of Court and special laws. (117a)
Art. 268. The action to claim his legitimacy may

be brought by the child during all his lifetime, and
shall be transmitted to his heirs if he should die during
his 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.
The action already commenced by the child is
transmitted upon his death to the heirs, if the
proceeding has not yet lapsed. (118)
Proof of Filiation of Legitimate Children

The filiation of legitimate children is established or
proved —
(1) By the record of the birth appearing in the civil
register;
(2) By an authentic document;
(3) By a final judgment;
(4) By the continuous possession of status of a
legitimate child; and
(5) By any other means allowed by the Rules of
Court and special laws (Arts. 265-267, Civil Code; People
vs. Giberson, 111 SCRA 532).
Any of the first three enumerated cases itself
constitutes an acknowledgment; the last two cases are
merely grounds to compel recognition.
The action to claim his legitimacy, such as in the
instances stated in cases (4) and (5) above, may be brought
by the child during all his lifetime and shall be transmitted
to his heirs if he should die during his minority or in a
state of insanity, in which cases the latter shall have a
period of 5 years within which to institute the action. An
action already commenced by the child is transmitted, if
still pending upon his or her death, to the heirs (Art. 268,
Civil Code).
Chapter 3
Legitimated Children
Art. 269. Only natural children can be legitimated.

Children born outside wedlock of parents who, at the
time of the conception of the former, were not
disqualified by any impediment to marry each other,
are natural. (119a)
Art. 270. Legitimation shall take place by the
subsequent marriage between the parents. (120a)
Art. 271. Only natural children who have been
recognized by the parents before or after the celebration
of the marriage, or have been declared natural children
by final judgment, may be considered legitimated by
subsequent marriage.
If a natural child is recognized or judicially
declared as natural, such recognition or declaration
shall extend to his or her brothers or sisters of the full
blood: Provided, That the consent of the latter shall be
implied if they do not impugn the recognition within
four years from the time of such recognition, or in
case they are minors, within four years following the
attainment of majority. (121a)
Art. 272. Children who are legitimated by
subsequent marriage shall enjoy the same rights as
legitimate children. (122)
Art. 273. Legitimation shall take effect from the
time of the child’s birth. (123a)
Art. 274. The legitimation of children who died
before the celebration of the marriage shall benefit their
descendants. (124)
Art. 275. Legitimation may be impugned by those
who are prejudiced in their rights, when it takes place
in favor of those who do not have the legal condition
of natural children or when the requisites laid down in
this Chapter are not complied with. (128a)
Legitimated Children
Only natural children can be legitimated. Natural
children are those born outside wedlock of parents who,
at the time of conception of the former, were not dis-
qualified by an impediment to marry each other (Art.
269, Civil Code). Legitimation takes place by the
subsequent marriage between said parents (Art. 270, Civil
Code).
In order that such legitimation can take place, the
natural children must have been recognized by both
parents, or have been declared natural children by final
judgment, before or after the celebration of the marriage.
If a natural child is recognized, or judicially declared as
natural, such recognition or declaration is extended to
his or her brothers or sisters of the full blood. The consent
of the latter shall be implied if they do not impugn the
recognition during 4 years from the time of such
recognition or, in case they are minors, within 4 years
following their attainment of the age of majority (Art.
271, Civil Code). When legitimation occurs, its effects
shall retroact to the child’s birth (Art. 273, Civil Code).
Legitimated children shall enjoy the same rights as
legitimate children (Art. 272, Civil Code), including those
who die before the celebration of the marriage, which
benefits shall inure to their descendants (Art. 274, Civil
Code).
The provisions of Article 269 and Article 271 of the
Civil Code, in a literal sense, appear to limit legitimation
in favor of acknowledged natural children or those who
by law have been declared natural children by final judg-
ment. Considering, however, that natural children by le-
gal fiction (such as those born of void marriages because
the parents suffer from an impediment to marry) are
expressly given the same status, rights and obligations
as acknowledged natural children (Art. 89, Civil Code),
and because all doubts should be resolved in favor of the
child, it is submitted that the rules on legitimation should
likewise extend to such children.
Illustrative instances — A child is conceived by the

common-law wife (“CLW”) of H while the latter is still
married to W. A month before the child is born, H marries
his common-law wife following the untimely death of W.
Under such factual setting, the child would be conclusively
presumed to be a legitimate child of the second marriage
under the provisions of Article 258 of the Civil Code
(supra.) since the child is born within 180 days from the
marriage of H and CLW and H having been aware of the
pregnancy of CLW at the time of marriage. If H instead
married CLW after the birth of the child, the latter would
be a spurious child and not being natural, he cannot be
legitimated by the subsequent marriage of his parents. A
natural child under Article 269 of the Civil Code is one
conceived at a time when the parents are not suffering
from an impediment to marry. If, however, the child is
born say on the 200th day following the death of W and
shortly after such death H marries CLW, the child, it is
submitted, can be legitimated by the subsequent marriage
of H and CLW considering that the last 20 days of the
120-day period of conception fall at a time when H has
already become a widower and thus free to marry CLW.
The child can then be said to have possibly been conceived
when there would have no longer been an impediment to
marry. In fine, that interpretation or application of the
law which would favor the child must be held to control.
It is noteworthy that Article 271 speaks really of
recognition, not status, of the child. Accordingly, the bene-
fit of legal acknowledgment extended to full blood broth-
ers and sisters of an acknowledged natural child, it is
believed, does not extend so far as to necessarily consider
the former as candidates for legitimation if they them-
selves are not natural. To illustrate, the children of H and
CLW born during the lifetime of W are not legitimated by
the acknowledgment of their full-blood brothers and sis-
ters who may be conceived after the death of W and who
being thus natural children, are legitimated by the sub-
sequent marriage of their parents H and CLW.
Legitimated children enjoy the same rights as legiti-

mate children (Art. 272, Civil Code), i.e., to bear the sur-
names of the parents, to receive support in accordance
with Article 291, and to the legitime and other successional
rights as legitimate children.
Chapter 4
Illegitimate Children
Section 1 — Recognition of Natural Children
Art. 276. A natural child may be recognized by the

father and mother jointly, or by only one of them. (129)
Art. 277. In case the recognition is made by only
one of the parents, it shall be presumed that the child
is natural, if the parent recognizing it had legal capacity
to contract marriage at the time of the conception. (130)
Art. 278. Recognition shall be made in the record
of birth, a will, a statement before a court of record, or
in any authentic writing. (131a)
Art. 279. A minor who may not contract marriage
without parental consent cannot acknowledge a natural
child, unless the parent or guardian approves the
acknowledgment, or unless the recognition is made in
a will. (n)
Art. 280. When the father or the mother makes the
recognition separately, he or she shall not reveal the
name of the persons with whom he or she had the
child; neither shall he or she state any circumstance
whereby the other parent may be identified. (132a)
Art. 281. A child who is of age cannot be recog-
nized without his consent.
When the recognition of a minor does not take
place in a record of birth or in a will, judicial approval
shall be necessary.
A minor can in any case impugn the recognition
within four years following the attainment of his major-
ity. (133a)
Art. 282. A recognized natural child has the right:

(1) To bear the surname of the parent recogniz-
ing him;
(2) To receive support from such parent, in con-
formity with Article 291;
(3) To receive, in a proper case, the hereditary
portion which is determined in this Code. (134)
Art. 283. In any of the following cases, the father
is obliged to recognize the child as his natural child:
(1) In cases of rape, abduction or seduction,
when the period of the offense coincides more or less
with that of the conception;
(2) When the child is in continuous possession
of status of a child of the alleged father by the direct
acts of the latter or of his family;
(3) When the child was conceived during the time
when the mother cohabited with the supposed father;
(4) When the child has in his favor any evidence
or proof that the defendant is his father. (n)
Art. 284. The mother is obliged to recognize her
natural child:
(1) In any of the case referred to in the preceding
article, as between the child and the mother;
(2) When the birth and the identity of the child
are clearly proved. (136a)
Art. 285. The action for the recognition of natural
children may be brought only during the lifetime of the
presumed parents, except in the following cases:
(1) If the father or mother died during the
minority of the child, in which case the latter may file
the action before the expiration of four years from the
attainment of his majority;
(2) If after the death of the father or of the mother
a document should appear of which nothing had been
heard and in which either or both parents recognize
the child.
In this case, the action must be commenced within

four years from the finding of the document. (137a)
Art. 286. The recognition made in favor of a child
who does not possess all the conditions stated in
Article 269, or in which the requirements of the law
have not been fulfilled, may be impugned by those
who are prejudiced by such recognition. (137)
Section 2 — Other Illegitimate Children
Art. 287. Illegitimate children other than natural in

accordance with Article 269 and other than natural
children by legal fiction are entitled to support and such
successional rights as are granted in this Code. (n)
Art. 288. Minor children mentioned in the preceding
article are under the parental authority of the mother.
(n)
Art. 289. Investigation of the paternity or maternity
of children mentioned in the two preceding articles is
permitted under the circumstance specified in Articles
283 and 284. (n)
Illegitimate Children
Illegitimate children (or those born outside wedlock
of the parents), other than natural children by legal fic-
tion, do not have rights with regard to their parents un-
less they are acknowledged or recognized (Irene Reyes vs.
Court of Appeals, 135 SCRA 439; the 1958 decision in
Zuzuarregui vs. Zuzuarregui [103 Phil. 346] has since
been overturned; see Divinagracia vs. Rovira, 72 SCRA
307). The father and the mother jointly, or only one of
them, may recognize a natural child or a spurious child
(Art. 276, Civil Code). In case only one parent should
recognize the child, the latter is presumed to be natural if
the recognizing parent had legal capacity to contract mar-
riage at the time of conception (Art. 227, Civil Code).
The acknowledgment or recognition of illegitimate
children may be (a) voluntary, (b) legal, or (c) compulsory.
Voluntary recognition must be express and it may be

made in the record of birth, a will, a statement before a
court of record, or in any authentic writing (Art. 278,
Civil Code; Sy-Quia vs. Court of Appeals and Sy-Quia,
125 SCRA 835; Colorado vs. Court of Appeals, 135 SCRA
47). These are in themselves voluntary recognition and
no further court action is required (See Divinagracia vs.
Bellosillo, 143 SCRA 356). A mere baptismal certificate is
insufficient (Vidaurrazaga vs. Court of Appeals, 48 O.G.
No. 7, p. 2643) but it may constitute a piece of evidence in
an appropriate case to prove paternity (but see Reyes vs.
Court of Appeals, supra.). A will must be executed in
accordance with the formalities prescribed in
testamentary succession (see Arts. 804-810, Civil Code;
Ongayo vs. Omila, 56 Phil. 720), but if the testator’s
signature is genuine, it could qualify as an authentic
writing. A statement, whether as a sworn testimony or
declaration in a pleading before a court of record,
recognizing an illegitimate child, must be a relevant issue
in the case at bar; a mere statement incidentally revealing
paternity will not suffice (see Javelona vs. Monteclaro, 74
Phil. 393; Donado vs. Donado, 55 Phil. 861), but might
constitute evidence in an action to compel recognition. An
authentic writing may be public or private as long as it
can be established as one made by the acknowledging
parent (see Madridejo vs. De Leon, 55 Phil. 1; De Jesus
vs. Sy-Quia, 58 Phil. 866; Varela vs. Villanueva, 95 Phil.
248; Pareja vs. Pareja, 103 Phil. 324).
The doctrine of incidental recognition, which would
allow recognition as having taken place where the putative
parent had made an incidental, rather than a direct,
remark on the child’s filiation, has been held to apply
under the provisions of the Spanish Civil Code (Art. 131
vs. Art. 135 thereof) in cases of voluntary recognition ex-
pressed in a public document.
Voluntary acknowledgment is also subject to the fol-
lowing rules:
(1) A minor who may not contract marriage with-

out parental consent cannot acknowledge a natural child,
unless the parent or guardian approves the acknowledg-
ment, or unless the recognition is made in a will (Art. 279,
Civil Code);
(2) When the father or the mother makes the
recognition separately, he or she shall not reveal the name
of the person with whom he or she had the child; neither
shall he or she state any circumstance whereby the other
parent may be identified (Art. 280, Civil Code); and
(3) A child who is of age cannot be recognized
without his consent.
When the recognition of a minor does not take place
in a record of birth or in a will, judicial approval shall be
necessary. Judicial approval has likewise been held
unnecessary when the purpose of the acknowledgment is
to legitimate a natural child (Obispo vs. Obispo, 99 Phil.
960) or when it is made in a statement before a court of
record (Garcia vs. Pongan, 89 Phil. 797). A minor can in
any case impugn the recognition within four years
following the attainment of his majority (Art. 281, Civil
Code).
In Banas vs. Banas (134 SCRA 260), the Supreme
Court held that no provision of law is necessary to
authorize a parent who has recognized an illegitimate
child from rectifying that act as and when circumstances
would justify it.
The absence of judicial approval does not render the
acknowledgment void, but merely voidable, and it may
thus be substituted by the child’s consent, express or
implied, upon his reaching majority age. Such consent is
made manifest, for instance, by the child’s accepting that
status and seeking participation as an heir to the parent’s
estate (see Guarina vs. Guarina, 109 Phil. 1111).
Legal acknowledgment takes place in favor of full
blood brothers and sisters of an illegitimate child who is
recognized or judicially declared as natural (see Art. 271,

supra.).
Compulsory acknowledgment may be demanded of
the parents by an illegitimate child. In any of the following
cases, the father is obliged to recognize the child as his
natural child:
(1) In case of rape, abduction or seduction, when
the period of the offense coincides more or less with that
of the conception;
(2) When the child is in continuous possession of
status of a child of the alleged father by the direct acts of
the latter or of his family;
(3) When the child was conceived during the time
when the mother cohabited with the supposed father;
(4) When the child has in his favor any evidence or
proof that the defendant is his father (Art. 283, Civil
Code).
On the question of admissibility and conclusiveness
of the result of blood grouping tests to prove non-pater-
nity, the Supreme Court, in Janice Marie Jao vs. Court of
Appeals (152 SCRA 359), has held:
In this jurisdiction, the result of blood tests,
among other evidence, to affirm paternity was dealt
with in Co Tao vs. Court of Appeals, an action for
declaration of filiation, support and damages. In said
case, the NBI expert’s report of the blood tests stated
that “from their blood groups and types, the
defendant Co Tao is a possible father of the child.”
From this statement, the defendant contended that
the child must have been the child of another man.
The Court noted: “For obvious reason, the NBI ex-
pert cannot give assurance that the appellant was
the father of the child; he can only give his opinion
that he is a ‘possible father.’ This possibility, coupled
with the other facts and circumstances brought out
during the trial, tends to definitely establish that

appellant Co Tao is the father of the child Manuel.”
Where the issue is admissibility and conclusive-
ness of blood grouping tests to disprove paternity,
rulings have been much more definite in their
conclusions. For the past three decades, the use of
blood typing in cases of disputed parentage has
already become an important legal procedure. There
is now almost universal scientific agreement that
blood grouping tests are conclusive as to non-
paternity, although inconclusive as to paternity —
that is, the fact that the blood type of the child is a
possible product of the mother and alleged father
does not conclusively prove that the child is born by
such parents; but, if the blood type of the child is not
the possible blood type when the blood of the mother
and that of the alleged father are cross-matched,
then the child cannot possibly be that of the alleged
father.
In jurisdiction like the United States, the ad-
missibility of blood test results to prove non-pater-
nity has already been passed upon in several cases.
In Gilpin vs. Gilpin, the positive results of blood
tests excluding paternity, in a case in which it was
shown that proper safeguards were drawn around
the testing procedures, were recognized as final on
the question of paternity. In Cuneo vs. Cuneo evi-
dence of non-paternity consisting of the result of
blood grouping tests was admitted despite a finding
that the alleged father had cohabited with the mother
within the period of gestation. The Court said that
the competent medical testimony was overwhelming
in favor of the plaintiff, and to reject such testimony
would be tantamount to rejecting scientific fact.
Courts, it was stated, should apply the results of
science when competently obtained in aid of
situations presented, since to reject such result was
to deny progress. This ruling was also echoed in
Clark vs. Rysedorph, a filiation proceeding where an

uncontradicted blood grouping test evidence, exclud-
ing paternity, was held conclusive. Legislation ex-
pressly recognizing the use of blood tests is also in
force in several states. Tolentino, affirms this rule
on blood tests as proof of non-paternity, thus —
“Medical science has shown that there are
four types of blood in man which can be
transmitted through heredity. Although the
presence of the same type of blood in two persons
does not indicate that one was begotten by the
other, yet the fact that they are of different types
will indicate the impossibility of one being the
child of the other. Hence, when the supposed
father and the alleged child are not in the same
blood group, they cannot be father and child by
consanguinity. The Courts of Europe today
regard a blood test conclusion as an unanswer-
able and indisputable proof of non-paternity.’’
Moreover,
“The cohabitation between the mother and
the supposed father cannot be a ground for com-
pulsory recognition if such cohabitation could
not have produced the conception of the child.
This would be the case, for instance, if the coha-
bitation took place outside of the period of
conception of the child. Likewise, if it can be
proved by blood tests that the child and the
supposed father belong to different blood groups,
the cohabitation by itself cannot be a ground for
recognition.’’
A baptismal certificate, a statement in the marriage
contract of the bride’s alleged father, school records or
photographs, by themselves, have not been considered as
reliable proof of recognition (see Reyes vs. Court of Appeals,
135 SCRA 439).
The mother is obliged to recognize her natural child:
(1) in any of the cases referred to in Article 283 of the
Code, as between the child and the mother; (2) when the
birth and the identity of the child are clearly proved (Art.
284, Civil Code).
The action for the recognition of natural children
may be brought only during the lifetime of the presumed
parents, except in the following cases:
(1) If the father or mother died during the minority
of the child, in which case the latter may file the action
before the expiration of four years from the attainment of
his majority;
(2) If after the death of the father or of the mother,
a document should appear of which nothing had been
heard and in which either or both parents recognize the
child. In this case, the action must be commenced within
four years from the finding of the document (Art. 285,
Civil Code).
Unlike an action to claim legitimacy which lasts
during the lifetime of the child (Art. 268, Civil Code) and
may exceptionally pass to the heirs of the child (such as
when the latter dies a minor or during a state of insanity),
an action to claim acknowledgment, however, may be
brought only during the lifetime of the presumed par-
ents, subject to the exceptions under Article 285 (supra.),
and in no event does that right pass to the heirs of the
child (Conde vs. Abaya, 13 Phil. 249; Banas vs. Banas,
134 SCRA 260; Clemeña vs. Clemeña, 24 SCRA 720). The
requirement that the action be filed during the lifetime of
the alleged parent is to prevent illegitimate children, on
account of strong temptations to large estates left by
dead persons, to claim part of the property without giving
the alleged parent personal opportunity to be heard
(Cenido vs. Apacionado, 115 SCAD 798, 318 SCRA 688).
In compulsory recognition, as distinguished from the
voluntary and legal acknowledgments, it may be essential,
unless the presumed parents would ultimately agree to
make the recognition under the provisions of Article 278
of the Civil Code, for the institution of an action to com-

pel such recognition or acknowledgment (see Paulino vs.
Paulino, 3 SCRA 730; Cruz Vda. De Sy-Quia vs. Sy-Quia,
125 SCRA 835). In Tongoy vs. Court of Appeals (123 SCRA
9), however, the Supreme Court has held that while the
continued possession of the status of a natural child by
the clan of the presumed parents is not per se sufficient
acknowledgment, from a liberal view, upon the other hand,
the child should not be compelled to still file an action for
acknowledgment (but see Noble vs. Noble, 18 SCRA 1104).
In Jovita Quismundo, et al. vs. Workmen’s
Compensation Commission and Atlantic Gulf and Pacific
Company of Manila, Inc. (132 SCRA 590), the facts would
reveal that after the death of Francisco Venta, the minors
Paciencia and Virginia Venta, through their mother, Jovita
Quismundo, filed with the Workmen’s Compensation
Commission a claim for death benefits. They alleged that
the deceased was their natural father. The Workmen’s
Compensation Commission denied the claim on the ground
that although the minors were dependent on the deceased,
they failed to show that they had been acknowledged by
him as his illegitimate children. Citing Article 278 of the
Civil Code, the Commission held that the deceased had
not recognized the claimants, absent recognition in a
record of birth, in a will, a statement before a court of
record, or in any authentic document. The minors went
to the Supreme Court, relying on Article 283, which says
in effect that when the child is in continuous possession
of status of a child of the alleged father by the direct acts
of the latter or his family, the father is obliged to recognize
the child as his natural child. The Court ruled:
“The reliance of the petitioners on Article 283 of
the Civil Code is misplaced. The provision contem-
plates compulsory recognition as distinguished from
voluntary recognition provided in Article 278. The
possession of status of a child does not in itself
constitute an acknowledgment; it is only a ground for
a child to compel recognition by his assumed parent.

The provision provides the grounds for compulsory
recognition in an action which may be brought by
the child. Neither the proceedings before the
Commission nor in this Court can be regarded as the
appropriate action to compel recognition.”
The rules on the acknowledgment of natural children
have been held to apply equally well to children who are
non-natural (Divinagracia vs. Rovira, 72 SCRA 307;
Paulino vs. Paulino, 113 Phil. 697).
Rights of Illegitimate Children

Recognized illegitimate children, including natural
children by legal fiction, have the following rights:
(1) To bear the surname of the parent recognizing a
natural child; a natural child by legal fiction shall princi-
pally employ the surname of the father, but a recognized
illegitimate child who is not natural shall bear the sur-
name of the mother;
(2) To receive support from such parents;
(3) To receive, in proper cases, the hereditary
portion as determined under the law on succession (Art.
282, in relation to Arts. 336-368, Civil Code).
186 CIVIL LAW
TITLE IX. SUPPORT

Art. 290. Support is everything that is indispen-

sable for sustenance, dwelling, clothing and medical
attendance, according to the social position of the
family.
Support also includes the education of the person
entitled to be supported until he completes his
education or training for some profession, trade or
vocation, even beyond the age of majority. (142a)
Art. 291. The following are obliged to support each
other to the whole extent set forth in the preceding
article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and acknowledged natural children
and the legitimate and illegitimate descendants of the
latter;
(4) Parents and natural children by legal fiction
latter;
(5) Parents and illegitimate children who are not
natural.
Brothers and sisters owe their legitimate and
natural brothers and sisters, although they are only of
the half-blood, the necessaries for life, when by a
186
Title IX. Support
physical or mental defect, or any other causes not im-

putable to the recipients, the latter cannot secure their
subsistence. This assistance includes, in a proper case,
expenses necessary for elementary education and for
professional or vocational training. (143a)
Art. 292. During the proceedings for legal separa-
tion, or for annulment of marriage, the spouses and
children shall be supported from the conjugal partner-
ship property. After the final judgment of legal separa-
tion, or of annulment of marriage, the obligation of
mutual support between the spouses ceases. However,
in case of legal separation, the court may order that
the guilty spouse shall give support to the innocent
one, the judgment specifying the terms of such order.
(n)
Art. 293. In an action for legal separation or an-
nulment of marriage, attorney’s fees and expenses for
litigation shall be charged to the conjugal partnership
property, unless the action fails. (n)
Art. 294. The claim for support, when proper and
two or more persons are obliged to give it, shall be
made in the following order:
(1) From the spouse;
(2) From the descendants of the nearest degree;
(3) From the ascendants, also of the nearest de-
gree;
(4) From the brothers and sisters.
Among descendants and ascendants the order in
which they are called to the intestate succession of
the person who has a right to claim support shall be
observed. (144)
Art. 295. When the obligation to give support falls
upon two or more person, the payment of the same
shall be divided between them in proportion to the
resources of each.
However, in case of urgent need and by special
circumstances, the judge may order only one of them
to furnish the support provisionally without prejudice
to his right to claim from the other obligors the share

due from them.
When two or more recipients at the same time
claim support from one and the same person legally
obliged to give it, and the latter should not have
sufficient means to satisfy all, the order established in
the preceding article shall be followed, unless the
concurrent obligees should be the spouse and a child
subject to parental authority, in which case the latter
shall be preferred. (145)
Art. 296. The amount of support, in the cases
referred to in the five numbers of Article 291, shall be
in proportion to the resources or means of the giver
and to the necessities of the recipient. (146a)
Art. 297. Support in cases referred to in the
preceding article shall be reduced or increased
proportionately, according to the reduction or increase
of the needs of the recipient and the resources of the
person obliged to furnish the same. (147)
Art. 298. The obligation to give support shall be
demandable from the time the person who has a right
to receive the same needs it for maintenance, but it
shall not be paid except from the date it is extrajudi-
cially demanded.
Payment shall be made monthly in advance, and
when the recipient dies, his heirs shall not be obliged
to return what he has received in advance. (148a)
Art. 299. The person obliged to give support may,
at his option, fulfill his obligation either by paying the
allowance fixed, or by receiving and maintaining in his
house the person who has a right to receive support.
The latter alternative cannot be availed of in case there
is a moral or legal obstacle thereto. (149a)
Art. 300. The obligation to furnish support ceases
upon the death of the obligor, even if he may be bound
to give it in compliance with a final judgment. (150)
Art. 301. The right to receive support cannot be
renounced; nor can it be transmitted to a third person.
Title IX. Support
Neither can it be compensated with what the recipient

owes the obligor.
However, support in arrears may be compensated
and renounced, and the right to demand the same may
be transmitted by onerous or gratuitous title. (151)
Art. 302. Neither the right to receive legal support
nor any money or property obtained as such support
or any pension or gratuity from the government is
subject to attachment or execution. (n)
Art. 303. The obligation to give support shall also
cease:
(1) Upon the death of the recipient;
(2) When the resources of the obligor have been
reduced to the point where he cannot give the support
without neglecting his own needs and those of his
family;
(3) When the recipient may engage in a trade,
profession, or industry, or has obtained work, or has
improved his fortune in such a way that he no longer
needs the allowance for his subsistence;
(4) When the recipient, be he a forced heir or
not, has committed some act which gives rise to
disinheritance;
(5) When the recipient is a descendant, brother
or sister of the obligor and the need for support is
caused by his or her bad conduct or by the lack of
application to work, so long as this cause subsists.
(152a)
Art. 304. The foregoing provisions shall be
applicable to other cases where, in virtue of this Code
or of any other law, by will, or by stipulation there is a
right to receive support, save what is stipulated, ordered
by the testator or provided by law for the special case.
(153a)
Support is understood to be either “civil” or “natural.”

Civil support includes everything that is indispensable
for sustenance, dwelling, clothing and medical attend-
ance, according to the social position of the family. The

term includes the education of the person entitled to be
supported until he completes his education or training
for some profession, trade or vocation, even beyond the
age of majority (see Art. 290, Civil Code).
The obligation of support is owing from and in favor
of —
(1) the spouses;
(2) legitimate ascendants and descendants;
(3) parents and acknowledged natural children and
the legitimate or illegitimate descendants of the latter;
(4) parents and natural children by legal fiction
latter;
(5) parents and illegitimate children who are not
natural (the descendants of the latter are not mentioned
in the law).
Natural support is confined to basic necessities.
Brothers and sisters owe their legitimate and natural
brothers and sisters, although they are only of the half-
blood, the necessaries for life, when by a physical or mental
defect, or any other cause not imputable to the recipients,
the latter cannot secure their subsistence. This assist-
ance includes, in a proper case, expenses necessary for
elementary education and for professional or vocational
training (see Art. 291, Civil Code; see also Arts. 2164 and
2166 thereof).
The amount of support shall be in proportion to their
resources or means of the giver and to the necessities of
the recipient (Art. 296, Civil Code). The amount may be
reduced or increased proportionately according to the
reduction or increase of such resources and needs (Art.
297, Civil Code).
The right to receive support cannot be renounced;
nor can it be transmitted to a third person. Neither can it
Title IX. Support
be compensated with what the recipient owes the obligor.

Support in arrears, however, may be compensated and
renounced, and the right to demand the same may be
transmitted by onerous or gratuitous title (see Art. 301,
Civil Code).
Neither the right to receive legal support nor any
money or property obtained as such support or any pension
or gratuity from the government is subject to attachment
or execution (Art. 302, Civil Code).
A judgment for support is enforceable by a writ of
execution despite the lapse of the five-year period (Sec. 6,
Rule 39 of the Rules of Court) since such a judgment does
not become dormant. Similarly, where support should be
terminated or suspended, a mere motion therefor is
enough to warrant such an order of termination or
suspension (Canonizado vs. Benitez, 127 SCRA 610).
1. Concurrent Obligors and Obligees

The claim for support, when proper and two or more
persons are obliged to give it, shall be made in the follow-
ing order:
(1) From the spouse;
(2) From the descendants of the nearest degree;
(3) From the ascendants, also of the nearest degree;
(4) From the brothers and sisters.
Among descendants and ascendants the order in
which they are called to the intestate succession of the
person who has a right to claim support shall be observed
When the obligation to give support falls upon two
or more persons, the payment of the same shall be divided
between them in proportion to the resources of each. In
case, however, of urgent need and by special circums-
tances, the judge may order only one of them to furnish
the support provisionally, without prejudice to his right

to claim from the other obligors the share due from them.
When two or more recipients claim at the same time
support from one and the same person legally obliged to
give it, and the latter should not have sufficient means to
satisfy all, the order established in Article 294 (supra.)
shall be followed, unless the concurrent obligees should
be the spouse and a child subject to parental authority, in
which case the latter shall be preferred (Art. 295, Civil
Code).
Support During Legal Separation or Annulment of

Marriage
Support includes litigation expenses incurred by the
wife to defend herself against unjust prosecution (Peyer
vs. Reyes, 77 Phil. 366), but conviction for adultery of the
wife is a valid defense against an action for support
(Magoma vs. Macadaeg, 90 Phil. 508).
The spouses and children shall be supported from
the conjugal partnership property during the proceed-
ings for legal separation or for annulment of marriage.
After the final judgment of legal separation, or of annul-
ment of marriage, the obligation of mutual support be-
tween the spouses ceases. In case of legal separation,
however, the court may order that the guilty spouse shall
give support to the innocent one, the judgment specifying
the terms of such order (Art. 292, Civil Code).
2. Cessation of Obligation to Give Support

The obligation to give support shall also cease: (1)
upon the death of the recipient; (2) when the resources of
the obligor have been reduced to the point where he can-
not give support without neglecting his own needs and
those of his family; (3) when the recipient may engage in
a trade, profession, or industry, or has obtained work, or
has improved his fortune in such a way that he no longer
needs the allowance for his subsistence; (4) when the
Title IX. Support
recipient, be he a forced heir or not, has committed some

act which gives rise to disinheritance; or (5) when the
recipient is a descendant, brother or sister of the obligor
and the need for support is caused by his or her bad
conduct or by the lack of application to work, so long as
this cause subsists (Art. 303, Civil Code).
194 CIVIL LAW
TITLE X. FUNERALS (N)
Art. 305. The duty and the right to make arrange-

ments for the funeral or a relative shall be in accordance
with the order established for support, under Article
294. In case of descendants of the same degree, or of
brothers and sisters, the oldest shall be preferred. In
case of ascendants, the paternal shall have a better
right.
Art. 306. Every funeral shall be in keeping with
the social position of the deceased.
Art. 307. The funeral shall be in accordance with
the expressed wishes of the deceased. In the absence
of such expression, his religious beliefs or affiliation
shall determine the funeral rites. In case of doubt, the
form of the funeral shall be decided upon by the per-
son obliged to make arrangements for the same, after
consulting the other members of the family.
Art. 308. No human remains shall be retained, in-
terred, disposed of or exhumed without the consent of
the persons mentioned in Articles 294 and 305.
Art. 309. Any person who shows disrespect to the
dead, or wrongfully interferes with a funeral shall be
liable to the family of the deceased for damages, mate-
rial and moral.
Art. 310. The construction of a tombstone or
mausoleum shall be deemed a part of the funeral
expenses, and shall be chargeable to the conjugal
partnership property, if the deceased is one of the
spouses.
The expressed wishes of the deceased regarding his

funeral shall be respected. However, in the absence of
194
Title X. Funerals
such expression, his religious beliefs and affiliations shall

determine the funeral rites. Should there be doubt, the
form of the funeral shall be decided upon by the person
obliged to make arrangements for the same, after
consulting the other members of the family (Art. 307,
Civil Code).
196 CIVIL LAW
TITLE XI. PARENTAL AUTHORITY

annotations, as an Addendum to Book I hereof).
Chapter 1
General Provisions
Art. 311. The father and mother jointly exercise

parental authority over their legitimate children who
are not emancipated. In case of disagreement, the
father’s decision shall prevail, unless there is a judicial
order to the contrary.
Children are obliged to obey their parents so long
as they are under parental power, and to observe
respect and reverence toward them always.
Recognized natural and adopted children who are
under the age of majority are under the parental
authority of the father or mother recognizing or
adopting them, and are under the same obligation
stated in the preceding paragraph.
Natural children by legal fiction are under the joint
authority of the father and mother, as provided in the
first paragraph of this article. (154a)
Art. 312. Grandparents shall be consulted by all
members of the family on all important family questions.
(n)
Art. 313. Parental authority cannot be renounced
or transferred, except in cases of guardianship or adop-
tion approved by the courts, or emancipation by con-
cession. (n)
196
Title XI. Parental Authority
The courts may, in cases specified by law, de-

prive parents of their authority. (n)
Art. 314. A foundling shall be under the parental
authority of the person or institution that has reared
the same. (n)
Art. 315. No descendant can be compelled, in a
criminal case, to testify against his parents and
ascendants. (n)
Chapter 2
Effect of Parental Authority Upon the Persons
of the Children
Art. 316. The father and the mother have, with

respect to their unemancipated children:
(1) The duty to support them, to have them in
their company, educate and instruct them in keeping
with their means, and to represent them in all actions
which may redound to their benefit;
(2) The power to correct them and to punish
them moderately. (155)
Art. 317. The courts may appoint a guardian of
the child’s property, or a guardian ad litem when the
best interest of the child so requires. (n)
Art. 318. Upon cause being shown by the parents,
the local mayor may aid them in the exercise of their
authority over the child. If the child is to be kept in a
children’s home or similar institution for not more than
one month, an order of the justice of the peace or
municipal judge shall be necessary, after due hearing,
where the child shall be heard. For his purpose, the
court may appoint a guardian ad litem. (156a)
Art. 319. The father and the mother shall satisfy
the support for the detained child; but they shall not
have any intervention in the regime of the institution
where the child is detained. They may lift the detention
when they deem it opportune, with the approval of the
court. (158a)
Chapter 3
Effect of Parental Authority on the Property
of the Children
Art. 320. The father, or in his absence the mother,

is the legal administrator of the property pertaining to
the child under parental authority. If the property is
worth more than two thousand pesos, the father or
mother shall give a bond subject to the approval of the
Court of First Instance. (159a)
Art. 321. The property which the unemancipated
child has acquired or may acquire with his work or
industry, or by any lucrative title, belongs to the child
in ownership, and in usufruct to the father or mother
under whom he is under parental authority and in
whose company he lives; but if the child, with the
parent’s consent, should live independently from them,
he shall be considered as emancipated for all purposes
relative to said property, and he shall have over it
dominion, usufruct and administration. (160)
Art. 322. A child who earns money or acquires
property with his own work or industry shall be entitled
to a reasonable allowance from his earnings, in addition
to the expenses made by the parents for his support
and education. (n)
Art. 323. The fruits and interest of the child’s prop-
erty referred to in Article 321 shall be applied first to
the expenses for the support and education of the child.
After they have been fully met, the debts of the con-
jugal partnership which have redounded to the benefit
of the family may be paid from said fruits and interest.
(n)
Art. 324. Whatever the child may acquire with the
capital or property of the parents belongs to the latter
in ownership and in usufruct. But if the parents should
expressly grant him all or part of the profits that he
may obtain, such profits shall not be charged against
his legitime. (161)
Art. 325. The property or income donated, be-
queathed or devised to the unemancipated child for
the expenses of his education and instruction shall

pertain to him in ownership and usufruct; but the fa-
ther or mother shall administer the same; if in the do-
nation or testamentary provision the contrary has not
been stated. (162)
Art. 326. When the property of the child is worth
more than two thousand pesos, the father or mother
shall be considered a guardian of the child’s property,
subject to the duties and obligations of guardians under
the Rules of Court. (n)
Chapter 4
Extinguishment of Parental Authority
Art. 327. Parental authority terminates:

(1) Upon the death of the parents of the child;
(2) Upon emancipation;
(3) Upon adoption of the child;
(4) Upon the appointment of a general guardian.
(167a)
Art. 328. The mother who contracts a subsequent
marriage loses the parental authority over her children,
unless the deceased husband, father of the latter, has
expressly provided in his will that his widow might
marry again, and has ordered that in such case she
should keep and exercise parental authority over their
children.
The court may also appoint a guardian of the
child’s property in case the father should contract a
subsequent marriage. (168a)
Art. 329. When the mother of an illegitimate child
marries a man other than its father, the court may
appoint a guardian for the child. (n)
Art. 330. The father and in a proper case the
mother, shall lose authority over their children:
(1) When by final judgment in a criminal case
the penalty of deprivation of said authority is imposed
upon him or her;
(2) When by a final judgment in legal separation

proceedings such loss of authority is declared. (169a)
Art. 331. Parental authority is suspended by the
incapacity or absence of the father, or in a proper case
of the mother, judicially declared, and also by civil
interdiction. (170)
Art. 332. The courts may deprive the parents of
their authority or suspend the exercise of the same if
they should treat their children with excessive harshness
or should give them corrupting orders, counsels, or
examples, or should make them beg or abandon them.
In these cases, the courts may also deprive the parents,
in whole or in part, of the usufruct over the child’s
property, or adopt such measures as they may deem
advisable in the interest of the child. (171a)
Art. 333. If the widowed mother who has contracted
a subsequent marriage should again become a widow,
she shall recover from this moment her parental au-
thority over all her unemancipated children. (172)
Parental authority is both a natural and legally

conferred right, as well as a duty, of parents over their
children. The father and the mother jointly exercise just
and reasonable parental authority over their legitimate
children and natural children by legal fiction who are not
emancipated. The father’s decision shall prevail in case
of disagreement, unless there is a judicial order to the
contrary (Art. 311, Civil Code, as amended by P.D. No.
603). Recognized natural and adopted minor children are
under the parental authority of the father or the mother
recognizing or adopting them (ibid.). Minor illegitimate
children, who are non-natural, are under the parental
authority of the mother (Art. 288, Civil Code). A foundling
is under the parental authority of the person or institution
that has reared such foundling (Art. 314, Civil Code).
Being itself a duty, parental authority cannot be renounced
or transferred, except when allowed by law such as in
cases of guardianship or adoption approved by the courts,
or emancipation by concession. The courts may, in cases
specified by law, deprive parents of their authority (Art.

313, Civil Code).
Parental authority is exercised upon the person of
the children and on their property, thus:
(1) Upon the person of the children
The father and the mother, with respect to their
unemancipated children, have —
(a) The duty to support them, to have them in
their company, to educate and instruct them in
keeping with their means, and to represent them in
all actions which may redound to their benefit; and
(b) The power to correct them and to punish
them moderately (Art. 316, Civil Code).
(2) Over the property of the children
The father, or in his absence, the mother, is the legal
administrator of the property pertaining to the child under
parental authority. If the property is worth more than
two thousand pesos, the father or mother shall give a
bond subject to the approval of the Regional Trial Court
As a measure of protecting the natural feelings that
descendants have for their ascendants, the law provides
that no descendant can be compelled to testify against
his parents and ascendants in a criminal case (see Art.
315, Civil Code).
Adventicios Ordinarios
The property which the unemancipated child has
acquired or may acquire with his work or industry, or by
any lucrative title, belongs to the child in ownership, and
in usufruct to the father or mother under whom he is
under parental authority and in whose company he lives;
but if the child, with parent’s consent, should live inde-
pendently from them, he shall be considered as emanci-
pated for all purposes relative to said property, and he
shall have dominion, usufruct and administration over it

A child who earns money or acquires property with
his own work or industry shall be entitled to a reasonable
allowance from his earnings, in addition to the expenses
made by the parents for his support and education (Art.
322, Civil Code).
The fruits and interest of the child’s property referred
to in Article 321 shall be applied first to the expenses for
the support and education of the child. After they have
been fully met, the debts of the conjugal partnership which
have redounded to the benefit of the family may be paid
from said fruits and interest (Art. 323, Civil Code).
Profecticios
Whatever the child may acquire with the capital or
property of the parents belongs to the latter in ownership
and in usufruct, but if the latter should expressly grant
him all or part of the profits that he may obtain, such
profits shall not be charged against his legitime (Art.
324, Civil Code).
Adventicios Extraordinarios
The property or income donated, bequeathed or
devised to the unemancipated child for the expenses of
his education and instruction shall pertain to him in own-
ership and usufruct; but the father or mother shall ad-
minister the same if in the donation or testamentary
provision the contrary has not been stated (Art. 325, Civil
Code).
Extinguishment of Parental Authority

Parental authority terminates: (1) upon the death of
the parents; (2) upon emancipation; (3) upon adoption of
the child; or (4) upon the appointment of a general guard-
ian (Art. 327, Civil Code).
The father, and in a proper case the mother, shall

also lose authority over their children: (1) when the
penalty of deprivation of said authority is imposed upon
him or her by virtue of a final judgment in a criminal
case; or (2) when such loss of authority is declared by a
final judgment in legal separation proceedings (Art. 330,
Civil Code).
The mother or father who contracts a subsequent
marriage does not lose the parental authority over their
children unless the court for valid grounds appoints a
guardian (Art. 328, Civil Code, as amended by P.D. No.
603).
Suspension of Parental Authority

Parental authority is suspended by the incapacity or
absence of the father, or in a proper case of the mother,
judicially declared, and also by civil interdiction (Art.
331, Civil Code).
Chapter 5
Adoption
Art. 334. Every person of age, who is in full

possession of his civil rights, may adopt. (173a)
Art. 335. The following cannot adopt:
(1) Those who have legitimate, legitimated, ac-
knowledged natural children, or natural children by le-
gal fiction;
(2) The guardian, with respect to the ward, be-
fore the final approval of his accounts;
(3) A married person, without the consent of the
other spouse;
(4) Non-resident aliens;
(5) Resident aliens with whose government the
Republic of the Philippines has broken diplomatic rela-
tions;
(6) Any person who has been convicted of a

crime involving moral turpitude, when the penalty
imposed was six months’ imprisonment or more. (174a)
Art. 336. The husband and wife may jointly adopt.
Parental authority shall, in such case, be exercised as
if the child were their own by nature. (n)
Art. 337. Any person, even if of age, may be
adopted, provided the adopter is sixteen years older.
(173a)
Art. 338. The following may be adopted:
(1) The natural child, by the natural father or
mother;
(2) Other illegitimate children, by the father or
mother;
(3) A step-child, by the step-father or step-
mother. (n)
Art. 339. The following cannot be adopted:
(1) A married person, without the written con-
sent of the other spouse;
(2) An alien with whose government the Repub-
lic of the Philippines has broken diplomatic relations;
(3) A person who has already been adopted. (n)
Art. 340. The written consent of the following to
the adoption shall be necessary:
(1) The person to be adopted, if fourteen years
of age or over;
(2) The parents, guardian or person in charge of
the person to be adopted. (n)
Art. 341. The adoption shall:
(1) Give to the adopted person the same rights
and duties as if he were a legitimate child of the
adopter;
(2) Dissolve the authority vested in the parents
by nature;
(3) Make the adopted person a legal heir of the

adopter;
(4) Entitle the adopted person to use the
adopter’s surname. (n)
Art. 342. The adopter shall not be a legal heir of
the adopted person, whose parents by nature shall
inherit from him. (177a)
Art. 343. If the adopter is survived by legitimate
parents or ascendants and by an adopted person, the
latter shall not have more successional rights than an
acknowledged natural child. (n)
Art. 344. The adopter may donate property, by an
act inter vivos or by will, to the adopted person, who
shall acquire ownership thereof. (n)
Art. 345. The proceedings for adoption shall be
governed by the Rules of Court insofar as they are not
in conflict with this Code. (n)
Art. 346. The adoption shall be recorded in the
local civil register. (179a)
Art. 347. A minor or other incapacitated person
may, through a guardian ad litem, ask for rescission of
the adoption on the same grounds that cause the loss
of parental authority. (n)
Art. 348. The adopter may petition the court for
revocation of the adoption in any of these cases:
(1) If the adopted person has attempted against
the life of the adopter;
(2) When the adopted minor has abandoned the
home of the adopter for more than three years;
(3) When by other acts the adopted person has
definitely repudiated the adoption. (n)
The provisions of the Civil Code on adoption from

Article 334 up to Article 348, inclusive, have been repealed
and replaced by Chapter 1, Section B, of the Child and
Youth Welfare Code (Presidential Decree No. 603) which
took effect on 10 December 1974. (Note: All said provi-
sions were, in turn, repealed by the Family Code; see

Addendum to Book I hereof).
Who May Adopt

Any person of age and in full possession of his civil
rights may adopt so long as he is in a position to support
and care for his legitimate, legitimated, acknowledged
natural children, or natural children by legal fiction, or
other illegitimate children, in keeping with the means,
both material and otherwise, of the family (Art. 27, P.D.
603).
An alien not permanently residing in the Philippines
who seeks to adopt within the country must reside in the
Philippines for at least one year immediately preceding
the filing of the petition for adoption, must reside in the
Philippines for the duration of the trial custody period,
and must comply with such rules and regulations that
have been or may be issued by the Council for the Welfare
of Children. However, the residence and trial custody
period may be reduced or dispensed with at the discretion
of the court if the applicant/applicants and the child are
related by blood or affinity (Sec. 27, P.D. 603, as amended
by Executive Order No. 91, 17 December 1986).
The husband and the wife may jointly adopt. In such
case, parental authority shall be exercised as if the child
were their own by nature (Art. 29, P.D. 603). If one of the
spouses is an alien, both spouses shall jointly adopt;
otherwise, the adoption shall not be allowed (as amended
by E.O. 91, 17 December 1986).
The following persons may not adopt:
(1) A married person without the written consent
of the spouse;
(2) The guardian with respect to the ward prior to
final approval of his accounts;
(3) Any person who has been convicted of a crime
involving moral turpitude;
(4) An alien who is disqualified to adopt according

to the laws of his own country or one with whose govern-
ment the Republic of the Philippines has broken diplo-
matic relations (Art. 28, P.D. 603).
(5) An alien whose government or place of residence
abroad has no agency that can provide competent
professional evaluation (homestudy) of the adoptive family
and postplacement services to the child and the family
(Art. 28, P.D. 603, as amended by Executive Order No. 91,
17 December 1986).
The prospective adopter need not be a resident of
the Philippines (see Nieto vs. Magat, 136 SCRA 533).
Who May be Adopted

As a rule, anyone who is fifteen years younger than
the adopter (Art. 27, P.D. 603) may be adopted. The
following may not, however, be adopted:
(1) A married person, without the written consent
of the spouse;
(2) An alien with whose government the Republic
of the Philippines has broken diplomatic relations;
(3) A person who has already been adopted unless
the adoption has been previously revoked or rescinded
(Art. 30, P.D. 603).
The written consent of the following to the adoption
shall be necessary:
(1) The person to be adopted, if fourteen years of
age or over;
(2) The natural parents of the child or his legal
guardian after receiving counseling and appropriate social
services from the Department of Social Services and
Development or from a duly licensed child placement
agency;
(3) The Department of Social Services and Develop-
ment or any duly licensed child-placement agency under

whose care and legal custody the child may be;
(4) The natural children, fourteen years and above,
of the adopting parents (Art. 31, P.D. 603, as amended by
E.O. 91, 17 December 1986).
No petition for adoption shall be granted unless the
Department of Social Services and Development has made
a case study of the child to be adopted, his natural parents
as well as the prospective adopting parents, and has
submitted its report and recommendations on the matter
to the court hearing such petition. The Department of
Social Services and Development shall intervene on be-
half of the child if it finds, after such case study, that the
petition should be denied. (Art. 33, P.D. 603, as amended
by E.O. 91, 17 December 1986).
No petition for adoption shall be finally granted un-
less and until the adopting parents are given by the court
a supervised trial custody period of at least six months to
assess their adjustment and emotional readiness for the
legal union. During the period of trial custody, parental
authority shall be vested in the adopting parents. The
court may, upon its own motion or on motion of the peti-
tioner, reduce or dispense with the trial custody period if
it finds that it is to the best interest of the child. In such
case, the court shall state its reasons for reducing or
dispensing with the said period. An alien not permanently
residing in the Philippines but desires to adopt a Filipino
child shall complete the supervised trial custody period
to ensure the child’s adjustment to a new family life and
culture, save in those cases provided for in Article 27 of
the law (supra., Art. 35, P.D. 603, as amended by E.O. 91,
17 December 1986; see Nieto vs. Magat, supra.).
Decree of Adoption
If the court is satisfied that the petitioner in adop-
tion proceedings is qualified to maintain, care for, and
educate the child, that the trial custody period has been
completed, and that the best interests of the child will be

promoted by the adoption, a decree of adoption shall be
entered, which shall be effective as of the date the origi-
nal petition was filed. The decree shall state the name by
which the child is thenceforth to be known (Art. 36, P.D.
603).
Effects of Adoption
(1) Give to the adopted person the same rights and
duties as if he were a legitimate child of the adopter, but
the adopted does not acquire Philippine citizenship by
virtue of such adoption;
(2) Dissolve the authority vested in the natural par-
ent or parents, except where the adopter is the spouse of
the surviving natural parent;
(3) Entitle the adopted person to use the adopter’s
surname; and
(4) Make the adopted person a legal heir of the
adopter; Provided, however, That if the adopter is survived
by his legitimate parents or ascendants and by an adopted
person, the latter shall not have more successional rights
than an acknowledged natural child.
The adopter shall not be a legal heir of the adopted
person, whose parents by nature shall inherit from him,
except that if the latter are both dead, the adopting parent
or parents take the place of the natural parents in the
line of succession, whether testate or intestate (Art. 39,
P.D. No. 603).
Evidently, the adopted child does not, in the main,
lose his rights and obligations as regards his natural
relations.
Reversion Adoptiva
Any property received gratuitously by the adopted
from the adopter shall revert to the adopter should the
former predecease the latter without legitimate issue

unless the adopted has, during his lifetime, alienated
such property. In case, however, the adopted leaves no
property other than that received from the adopter, and
he is survived by illegitimate issue or a spouse, such
illegitimate issue collectively or the spouse shall receive
one-fourth of such property; if the adopted is survived by
illegitimate issue and a spouse, then the former collec-
tively shall receive one-fourth and latter also one-fourth,
the rest in any case reverting to the adopter, observing
in the case of the illegitimate issue the proportion pro-
vided for in Article 895 of the Civil Code (Art. 39, P.D. No.
603).
Clearly, the spirit and intendment of the law is to
provide, upon the death of the adopted, his surviving
illegitimate children with no less than one-fourth (1/4),
and the surviving spouse with another one-fourth (1/4),
of the value of the donated property. Accordingly, if pro-
perty, other than the donated property, left by the adopted,
is less in value than those shares, so much as may be
required to fill up the difference should be deducted from
the property to be reverted. Certainly, it is hardly con-
ceivable that no property at all, however insignificant in
value, would be left by the decedent that will otherwise
disenfranchise his said heirs.
The rules on reversion adoptiva do not apply to
extrajudicial adoption, the Supreme Court holding that
when the law is unequivocal, there is no room for con-
struction so as to include the alleged contemplation,
intendment and spirit of the law (Banawa vs. Mirano, 97
SCRA 517).
Rescission and Revocation of Adoption

(a) The adopted person or the Department of Social
Services and Development or any duly licensed child place-
ment agency, if the adopted is still a minor or otherwise
incapacitated, may ask for the rescission of the adoption
on the same grounds that cause the loss of parental au-

thority under the Civil Code (Art. 40, P.D. No. 603);
(b) The adopter may also petition the court for the
revocation of the adoption in any of the following cases:
(1) If the adopted person has attempted against
the life of the adopter and/or his spouse;
(2) When the adopted minor has abandoned
the home of the adopter for more than three years
and efforts have been exhausted to locate the minor
within the stated period;
(3) When by other acts the adopted person has
definitely repudiated the adoption (Art. 41, P.D. No.
603).
Effects of Rescission or Revocation

When the adopted minor has not reached the age of
majority at the time of the revocation or rescission, the
court in the same proceeding shall determine whether he
should be returned to the parental authority of his natu-
ral parents or remitted to the Department of Social Serv-
ices and Development or any duly licensed child place-
ment agency or whether a guardian over his person and
property should be appointed.
Where the adopted child has reached the age of ma-
jority, the revocation or rescission, if and when granted
by the court, shall release him from all obligations to his
adopting parents and shall extinguish all his rights
against them, but if said adopted person is so physically
or mentally handicapped as to need a guardian over his
person or property, or both, the court may appoint a guard-
ian.
In all cases of revocation or rescission, the adopted
shall lose the right to continue using the adopter’s sur-
name, and the court shall order the amendment of the
records in the Civil Register in accordance with its deci-
sion (Art. 42, P.D. No. 603).
Chapter 6
Substitute Parental Authority
Art. 349. The following persons shall exercise sub-

stitute parental authority:
(1) Guardians;
(2) Teachers and professors;
(3) Heads of children’s homes, orphanages, and
similar institutions;
(4) Directors of trade establishments, with re-
gard to apprentices;
(5) Grandparents;
(6) The oldest brother or sister.
Art. 350. The persons named in the preceding ar-
ticle shall exercise reasonable supervision over the
conduct of the child.
Art. 351. A general guardian or a guardian over
the person shall have the same authority over the
ward’s person as the parents. With regard to the child’s
property, the Rules of Court on guardianship shall gov-
ern.
Art. 352. The relations between teacher and pupil,
professor and student, are fixed by government
regulations and those of each school or institution.
In no case shall corporal punishment be counte-
nanced. The teacher or professor shall cultivate the
best potentialities of the heart and mind of the pupil or
student.
Art. 353. Apprentices shall be treated humanely.
No corporal punishment against the apprentice shall
be permitted.
Art. 354. Grandparents and in their default the
oldest brother or sister shall exercise parental author-
ity in case of death or absence of the child’s parents. If
the parents are living, or if the child is under guardian-
ship, the grandparents may give advice and counsel to
the child, to the parents or to the guardian.
Art. 355. Substitute parental authority shall be

exercised by the grandparents in the following order:
(1) Paternal grandparents;
(2) Maternal grandparents.
Substitute Parental Authority

The following persons shall exercise substitute pa-
rental authority:
(1) guardians;
(2) teachers and professors;
(3) heads of children’s homes, orphanages, and
similar institutions;
(4) directors of trade establishments, with regard
to apprentices;
(5) grandparents;
(6) the oldest brother or sister (Art. 349, Civil Code).
The relations between teacher and pupil, professor
and student, are fixed by government regulations and
those of each school or institution. The teacher or professor
shall cultivate the best potentialities of the heart and
mind of the pupil or student. In no case shall corporal
punishment be countenanced (Art. 352, Civil Code). Unlike
that, therefore, of the parental authority exercised by the
parents, where moderate corporal punishment may be
administered to the child, such punishment is not sanc-
tioned in substitute parental authority.
214 CIVIL LAW
TITLE XII. CARE AND EDUCATION

OF CHILDREN
Author’s note: Some provisions of the Civil

Code on this title have been merely modified by
the Family Code (incorporated in this work, with
annotations, as an Addendum to Book I hereof).
Art. 356. Every child:

(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by
the parents or guardian;
(4) Has a right to live in an atmosphere conducive
to his physical, moral and intellectual development.
Art. 357. Every child shall:
(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and
persons holding substitute parental authority;
(3) Exert his utmost for his education and
training;
(4) Cooperate with the family in all matters that
make for the good of the same.
Art. 358. Every parent and every person holding
substitute parental authority shall see to it that the
rights of the child are respected and his duties com-
plied with, and shall particularly, by precept and exam-
ple, imbue the child with highmindedness, love of coun-
try, veneration for the national heroes, fidelity to de-
214
Title XII. Care and Education of Children
mocracy as a way of life, and attachment to the ideal

of permanent world peace.
Art. 359. The government promotes the full growth
of the faculties of every child. For this purpose, the
government will establish, whenever possible:
(1) Schools in every barrio, municipality and city
where optional religious instruction shall be taught as
part of the curriculum at the option of the parent or
guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.
Art. 360. The Council for the Protection of Chil-
dren shall look after the welfare of children in the
municipality. It shall, among other functions:
(1) Foster the education of every child in the
municipality;
(2) Encourage the cultivation of the duties of
parents;
(3) Protect and assist abandoned or mistreated
children, and orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening and maintenance of
playgrounds;
(7) Coordinate the activities of organizations
devoted to the welfare of children, and secure their
cooperation.
Art. 361. Juvenile courts will be established, as
far as practicable, in every chartered city or large
municipality.
Art. 362. Whenever a child is found delinquent by
any court, the father, mother, or guardian may in a
proper case be judicially admonished.
Art. 363. In all questions on the care, custody,

education and property of children, the latter’s welfare
shall be paramount. No mother shall be separated from
her child under seven years of age, unless the court
finds compelling reasons for such measure.
The Constitution provides:
“Sec. 13. The State recognizes the vital role of

the youth in nation-building and shall promote and
protect their physical, moral, spiritual, intellectual
and social well-being. It shall inculcate in the youth
patriotism and nationalism, and encourage their in-
volvement in public and civil affairs.” (Art. II, Cons-
titution)
The law obligates both the parent and the child in
the proper upbringing and education of the latter towards
his full growth (see Arts. 356-363, Civil Code; Arts. 209
and 220, Family Code; Art. II, Sec. 4, and Art. XV, Sec. 8,
Constitution). In all questions on the care, custody,
education and property of the child, the latter’s welfare
shall be paramount (Art. 363, Civil Code; Luna vs.
International Appellate Court, 137 SCRA 7), but the court
should consider the choice of the child over seven years of
age (see Art. 213, Family Code). In Unson vs. Araneta
(101 SCRA 183), the Supreme Court had said: “The sole
and foremost consideration in controversies regarding
child custody is the physical, education, social and moral
welfare of the child. Premises considered, the child, an
eight-year old girl and who is thus in her formative and
most impressionable stage in her life, should be freed
from the unwholesome and immoral situation of a mother
who openly lives with her brother-in-law.”
No mother shall be separated from her child under
seven years of age, unless the court finds compelling rea-
sons for such measure (Art. 363, Civil Code, as amended
by Art. 213, Family Code). At this tender age, a child is
yet unable to discern between what may be morally right
Title XII. Care and Education of Children
or wrong; hence, “compelling reasons” should refer to

physical rather than moral well-being. The rule is neces-
sary in order to avoid the tragedy and deep sorrow of a
mother who otherwise would see her baby torn away
from her (Hontiveros vs. International Appellate Court,
132 SCRA 745).
218 CIVIL LAW
TITLE XIII. USE OF SURNAMES (N)
Art. 364. Legitimate and legitimated children shall

principally use the surname of the father.
Art. 365. An adopted child shall bear the surname
of the adopter.
Art. 366. A natural child acknowledged by both
parents shall principally use the surname of the father.
If recognized by only one of the parents, a natural child
shall employ the surname of the recognizing parent.
Art. 367. Natural children by legal fiction shall
principally employ the surname of the father.
Art. 368. Illegitimate children referred to in Article
287 shall bear the surname of the mother.
Art. 369. Children conceived before the decree
annulling a voidable marriage shall principally use the
surname of the father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add
her husband’s surname, or
(2) Her maiden first name and her husband’s
surname, or
(3) Her husband’s full name, but prefixing a word
indicating that she is his wife, such as “Mrs.”
Art. 371. In case of annulment of marriage, and
the wife is the guilty party, she shall resume her maiden
name and surname. If she is the innocent spouse, she
may resume her maiden name and surname. However,
she may choose to continue employing her former
husband’s surname, unless:
(1) The court decrees otherwise, or
218
Title XIII. Use of Surnames
(2) She or the former husband is married again

to another person.
Art. 372. When legal separation has been granted,
the wife shall continue using her name and surname
employed before the legal separation.
Art. 373. A widow may use the deceased husband’s
surname as though he were still living, in accordance
with Article 370.
Art. 374. In case of identity of names and surnames,
the younger person shall be obliged to use such
additional name or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames
between ascendants and descendants, the word
“Junior” can be used only by a son. Grandsons and
other direct male descendants shall either:
(1) Add a middle name or the mother’s surname,
or
(2) Add the Roman numerals, II, III, and so on.
Art. 376. No person can change his name or
surname without judicial authority.
Art. 377. Usurpation of a name and surname may
be the subject of an action for damages and other
relief.
Art. 378. The unauthorized or unlawful use of
another person’s surname gives a right of action to the
latter.
Art. 379. The employment of pen names or stage
names is permitted, provided it is done in good faith
and there is no injury to third persons. Pen names and
stage names cannot be usurped.
Art. 380. Except as provided in the preceding article,
no person shall use different names and surnames.
Of children
Legitimate and legitimated children shall principally
use the surname of the father (Art. 364, Civil Code; see
also Art. 174, Family Code; Padilla vs. Republic, 113 SCRA
789). An adopted child shall bear the surname of the
adopter (Art. 365, Civil Code; see Art. 189, Family Code).
Under the Civil Code, a natural child acknowledged
by both parents should principally use the surname of
the father. If recognized by only one of the parents, a
natural child should employ the surname of the
recognizing parent (Art. 366, Civil Code). Natural children
by legal fiction would principally employ the surname of
the father (Art. 367, Civil Code). Illegitimate children,
who were not natural, would bear the surname of the
mother (Art. 368, Civil Code; Batbatan vs. Civil Register,
118 SCRA 745). The Family Code now provides that
illegitimate children without distinction shall use the
surname of the mother (Art. 176, Family Code). This is
the rule regardless of whether the father admits or denies
paternity (Mossesgeld vs. Court of Appeals, 101 SCAD
928, 300 SCRA 464).
Children conceived before the decree annulling a
voidable marriage shall principally use the surname of
the father (Art. 369, Civil Code).
Of Married Women
The accepted rule is that a person may only use his
own name and surname. One exception involves a married
woman. When a woman marries, the law mandates, in
brief outline, thusly —
A. During the existence of the marriage, she may choose
to use any of the following names:
(1) Her maiden first name and surname and add
her husband’s surname, or
(2) Her maiden first name and husband’s surname,
or
(3) Her husband’s full name but must prefix a word
indicating that she is his wife (Art. 370, Civil
Code).
It is mandatory that the husband’s surname

should, in any of the above, be somehow used.
Interestingly, in one of the deliberations of the
Civil Code Revision Committee at the U.P. Law
Center (participated in by Justice Jose B.L. Reyes,
Justice Ricardo C. Puno, Justice Eduardo Caguioa,
Justice Alicia Sempio-Diy, Atty. Ofelia Calcetes-
Santos, Dean Fortunato Gupit and Dean Jose C.
Vitug), a proposal to allow a married woman to use
her maiden name and surname (after noting the
provision of Sec. 13, Art. II, of the Constitution
expressing the “fundamental equality before the law
of women and men”) was turned down by the
Committee.
In case of legal separation, the wife must
continue using her name and surname employed
before the decree of legal separation (Art. 372, Civil
Code). This provision is mandatory, i.e., she may not
at will revert to her maiden name and surname
(Laperal vs. Republic, 6 SCRA 357).
B. In the event of annulment of marriage
(1) If the wife is adjudged to be the guilty party, she
must resume her maiden name and surname,
but
(2) If the wife is the innocent party —
(i) She may resume her maiden name and
surname, or
(ii) She may choose to continue using her
husband’s surname unless —
(a) The court decrees otherwise, or
(b) She or he remarries (Art. 371, Civil
Code).
C. In case of death of the husband
The widow may use her husband’s surname as
though he were still living (Art. 373, Civil Code), or
resume her maiden name and surname (pursuant to

the general rule).
D. In case of divorce
The rule has been held to be akin to item C
(death of husband), i.e., she may use her husband’s
surname (Tolentino vs. Court of Appeals, 162 SCRA
66) or resume her maiden name and surname
(general rule). It would seem preferable, however, to
have this situation governed instead by the rules on
annulment where one could distinguish between a
case where the wife gives cause for divorce (annul-
ment) and the instance when she is the innocent
party.
E. In case of declaration of nullity of marriage
No marriage having, or being deemed to have,
technically existed, the general rule, i.e., that she
may only use her own name and surname, should
apply, but if she has, in fact theretofore used the
husband’s surname, she obviously should cease from
such use upon finality of the decree of nullity.
On the issue of whether or not a woman who has
been legally divorced from her husband may be enjoined
by the latter’s present wife from using the surname of the
husband, the Court, in Tolentino vs. Court of Appeals
(162 SCRA 66), has said:
“(The) Philippine law is understandably silent,
we have no provisions for divorce in our laws and
consequently, the use of surnames by a divorced wife
is not provided for.
xxx
“It is significant to note that Senator Tolentino
himself in his commentary on Art. 370 of the Civil
Code states that “the wife cannot claim an exclusive
right to use the husband’s surname. She cannot be
prevented from using it; but neither can she restrain
others from using it.” (Tolentino, Civil Code, 1974,

ed., p. 881)
“Art. 371 is not applicable to the case at bar
because Art. 371 speaks of annulment while the case
before us refers to absolute divorce where there is a
severance of valid marriage ties. The effect of divorce
is more, akin to the death of the spouse where the
deceased woman continues to be referred to as the
Mrs. of her husband even if the latter has remarried
rather than to annulment since in the latter, it is as
if there has been no marriage at all.”
No person shall change his name or surname without
judicial authority (Art. 376, Civil Code) and only for
justifiable reasons. A “petition to resume the use of maiden
name” is not covered by the rules on change of name. The
change of name contemplated by the law, and which
requires judicial authority, is that which pertains to the
true and real name of a person as given to him and so
recorded in the civil register. Thus, when the marriage
ties or vinculum no longer exists as in the case of death of
the husband (or divorce as authorized by the Muslim
Code), the widow or divorcee need not seek judicial
confirmation of the change in her civil status in order to
revert to her maiden name, and the use of her former
husband’s name becomes optional and not obligatory
(Yasin vs. Judge, Shari’a District Court, 59 SCAD 191,
241 SCRA 606).
Any usurpation of a name and surname may be the
subject of an action for damages and other relief (Arts.
377-378, Civil Code). The use, however, of pen names or
stage names is permitted, provided it is done in good
faith and there is no injury to third persons and, when so
employed, pen names and stage names cannot be usurped
224 CIVIL LAW
TITLE XIV. ABSENCE
Chapter 1
Provisional Measures In Case of Absence
Art. 381. When a person disappears from his

domicile, his whereabouts being unknown, and without
leaving an agent to administer his property, the judge,
at the instance of an interested party, a relative, or a
friend, may appoint a person to represent him in all
that may be necessary.
This same rule shall be observed when under
similar circumstances the power conferred by the
absentee has expired. (181a)
Art. 382. The appointment referred to in the preced-
ing article having been made, the judge shall take the
necessary measures to safeguard the rights and
interests of the absentee and shall specify the powers,
obligations and remuneration of his representative,
regulating them, according to the circumstances, by
the rules concerning guardians. (182)
Art. 383. In the appointment of a representative,
the spouse present shall be preferred when there is no
legal separation.
If the absentee left no spouse, or if the spouse
present is a minor, any competent person may be
appointed by the court. (183a)
Chapter 2
Declaration of Absence
Art. 384. Two years having elapsed without any

news about the absentee or since the receipt of the
last news, and five years in case the absentee has left
224
Title XIV. Absence
a person in charge of the administration of his prop-

erty, his absence may be declared. (184)
Art. 385. The following may ask for the declara-
tion of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present
an authentic copy of the same;
(3) The relatives who may succeed by the law of
intestacy;
(4) Those who may have over the property of
the absentee some right subordinated to the condition
of his death. (185)
Art. 386. The judicial declaration of absence shall
not take effect until six months after its publication in
a newspaper of general circulation. (186a)
Chapter 3
Administration of the Property of the Absentee
Art. 387. An administrator of the absentee’s
property shall be appointed in accordance with Article
383. (187a)
Art. 388. The wife who is appointed as an
administratrix of the husband’s property cannot alienate
or encumber the husband’s property, or that of the
conjugal partnership, without judicial authority. (188a)
Art. 389. The administration shall cease in any of
the following cases:
(1) When the absentee appears personally or by
means of an agent;
(2) When the death of the absentee is proved
and his testate or intestate heirs appear;
(3) When a third person appears, showing by a
proper document that he has acquired the absentee’s
property by purchase or other title.
In these cases, the administrator shall cease in the
performance of his office, and the property shall be at
the disposal of those who may have a right thereto.

(190)
Chapter 4
Presumption of Death
Art. 390. After an absence of seven years, it being
unknown whether or not the absentee still lives, he
shall be presumed dead for all purposes, except for
those of succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of seventy-
five years, absence of five years shall be sufficient in
order that his succession may be opened. (n)
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 the other circumstances and his existence has
not been known for four years. (n)
Art. 392. If the absentee appears, or without
appearing his existence is proved, he shall recover his
property in the condition in which it may be found, and
the price of any property that may have been alienated
or the property acquired therewith; but he cannot claim
either fruits or rents. (194)
Chapter 5
Effect of Absence Upon the Contingent Rights
of the Absentee
Art. 393. Whoever claims a right pertaining to a
person whose existence is not recognized must prove
Title XIV. Absence
that he was living at the time his existence was neces-

sary in order to acquire said right. (195)
Art. 394. Without prejudice to the provisions of
the preceding article, upon the opening of a succession
to which an absentee is called, his share shall accrue
to his co-heirs, unless he has heirs, assigns, or a
representative. They shall all, as the case may be, make
an inventory of the property. (196a)
Art. 395. The provisions of the preceding article
are understood to be without prejudice to the action of
petition for inheritance or other rights which are vested
in the absentee, his representatives or successors in
interest. These rights shall not be extinguished save
by lapse of time fixed for prescription. In the record
that is made in the Registry of the real estate which
accrues to the co-heirs, the circumstance of its being
subject to the provisions of this article shall be stated.
(197)
Art. 396. Those who may have entered upon the
inheritance shall appropriate the fruits received in good
faith so long as the absentee does not appear, or while
his representatives or successors in interest do not
bring the proper actions. (198)
Absence may either be provisional, declared or

presumptive death.
There is provisional absence when a person
disappears from his domicile, his whereabouts being
unknown, and without leaving an agent to administer
his property or when the power conferred to an agent by
the absentee has expired (Arts. 381-383, Civil Code).
Two years having elapsed without any news about
the absentee or since the receipt of the last news about
the absentee, and five years in case the absentee has left
a person in charge of the administration of his property, a
declaration of absence may be asked by: (1) the spouse
present; (2) the heirs instituted in a will, who may present
an authentic copy of the same; (3) the relatives who may
succeed by the law of intestacy; or (4) those who may
have over the property of the absentee some right subor-

dinated to the condition of his death (Arts. 384-385, Civil
Code).
In Reyes vs. Alejandro (141 SCRA 65), the petitioner
filed a petition in 1969 for the declaration of absence of
her husband, alleging that he had been absent from their
conjugal dwelling since 1962 and since then had not been
heard from and that his whereabouts were unknown.
The petition alleged that the husband had left no will,
not any property in his name nor any debts, and that no
property was acquired by the couple during the marriage.
The petition invoked Rule 107 of the Rules of Court and
Article 384 of the Civil Code. After hearing, the court
dismissed the petition on the ground that since the
husband had left no property, there was no need to declare
him judicially an absentee. The petitioner went to the
Supreme Court, which ruled:
“The need to have a person judicially declared
an absentee is when he has properties which have to
be taken care of or administered by a representative
appointed by the Court (Article 384, Civil Code); the
spouse of the absentee is asking for separation of
property (Article 191, Civil Code); or his wife is asking
the Court that the administration of all classes of
property in the marriage be transferred to her (Article
196, Civil Code). The petition to declare the husband
an absentee and the petition to place the management
of the conjugal properties in the hands of the wife
may be combined and adjudicated in the same
proceedings (Peyer vs. Martinez, 88 Phil. 72, 80).”
Upon such declaration, an administrator shall be
appointed giving preference to the spouse present where
there is no legal separation (Art. 387, in relation to Art.
383, Civil Code), but the administration shall cease: (1)
when the absentee appears personally or by means of an
agent; or (2) when the death of the absentee is proved,
and his testate or intestate heirs appear; or (3) when a
Title XIV. Absence
third person appears, showing by a proper document that

he has acquired the absentee’s property by purchase or
other title. In the foregoing cases, the administrator shall
cease in the performance of his office, and the property
shall be at the disposal of those who may have a right
thereto (Art. 389, Civil Code).
After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of
succession. The absentee shall not be presumed dead for
the purpose of opening his succession until after an
absence of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be suffi-
cient in order that his succession may be opened (Art.
390, Civil Code).
When, however, the absentee should have
disappeared under any of the following instances (qualified
presumptive death), the absentee 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 (Art. 391, Civil Code).
In ordinary presumptive death (Art. 390, Civil Code,
supra.), the absentee shall be presumed to have died
upon the expiry of the period stated. In qualified
presumptive death, however, the absentee shall, after
the four-year period has elapsed, be presumed to have
died upon his disappearance. The presumed time of death
obviously would be relevant on the successional rights of
both the absentee himself and his heirs (see Arts. 393-
394, Civil Code, and the Law on Succession, infra.).
Eastern Shipping Lines, Inc. vs. Lucera (124 SCRA
425) has ruled that the presumption of death under Article
391 of the Civil Code must yield to the rule on
preponderance of evidence. Accordingly, where there is
an ample evidence to show that a vessel has encountered
bad weather, that the master of said vessel has sent radio
messages notifying the shipowner of the emergency and
asking for assistance, and thereafter the vessel could not
be found despite diligent search, the men on board who
have disappeared with the vessel must be held to have
died during the incident without having to await the
four-year period under the law.
If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the
condition in which it may be found and the price of any
property that may have been alienated or the property
acquired therewith; but he cannot claim either fruits or
rents meanwhile accruing (Art. 392, Civil Code). Those
who may have entered upon the inheritance shall
appropriate the fruits received in good faith so long as
the absentee does not appear, or while his representatives
or successors-in-interest do not bring the proper actions
231
TITLE XV. EMANCIPATION AND AGE

OF MAJORITY
Chapter 1
Emancipation
Art. 397. Emancipation takes place:

(1) By the marriage of the minor;
(2) By the attainment of majority;
(3) By the concession of the father or of the
mother who exercises parental authority. (314)
Art. 398. Emancipation treated of in no. 3 of the
preceding article shall be effected in a public instrument
which shall be recorded in the Civil Register, and unless
so recorded, it shall take no effect against third persons.
(316a)
Art. 399. Emancipation by marriage or by voluntary
concession shall terminate parental authority over the
child’s person. It shall enable the minor to administer
his property as though he were of age, but he cannot
borrow money or alienate or encumber real property
without the consent of his father or mother, or guardian.
He can sue and be sued in court only with the
assistance of his father, mother or guardian. (317a)
Art. 400. In order that emancipation by concession
of the father or of the mother may take place, it is
required that the minor be eighteen years of age, and
that he give his consent thereto. (318)
Art. 401. Emancipation is final and irrevocable.
(319a)
231
Chapter 2
Age of Majority
Art. 402. Majority commences upon the attainment
of the age of twenty-one years.
The person who has reached majority is qualified
for all acts of civil life, save the exceptions established
by this Code in special cases. (320a)
Art. 403. Notwithstanding the provisions of the
preceding article, a daughter above twenty-one but below
twenty-three years of age cannot leave the parental home
without the consent of the father or mother in whose
company she lives, except to become a wife, or when
she exercises a profession or calling, or when the father
or mother has contracted a subsequent marriage. (321a)
Art. 404. An orphan who is minor may, at the
instance of any relative or other person, obtain
emancipation by concession upon an order of the Court
of First Instance. (322a)
Art. 405. For the concession and approval referred
to in the preceding article, it is necessary:
(1) That the minor be eighteen years of age;
(2) That he consent thereto; and
(3) That the concession be deemed convenient
for the minor.
The concession shall be recorded in the Civil
Register. (323a)
Art. 406. The provisions of Article 399 are applicable
to an orphan who has been emancipated according to
Article 404. The court will give the necessary approval
with respect to the contracts mentioned in Article 399.
In litigations, a guardian ad litem for the minor shall be
appointed by the court. (324a)
The foregoing provisions have been superseded by

the Family Code, and the latter by Republic Act No. 6809.
As it now stands, emancipation takes place only by the
attainment of the age of majority of eighteen years from
which there is no exception.
233
TITLE XVI. CIVIL REGISTER
Art. 407. Acts, events and judicial decrees concern-

ing the civil status of persons shall be recorded in the
civil register. (325a)
Art. 408. The following shall be entered in the civil
register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary emancipation
of a minor; and (16) changes of name. (326a)
Art. 409. In cases of legal separation, adoption,
naturalization and other judicial orders mentioned in
the preceding article, it shall be the duty of the clerk of
the court which issued the decree to ascertain whether
the same has been registered, and if this has not been
done, to send a copy of said decree to the civil registry
of the city of municipality where the court is functioning.
(n)
Art. 410. The books making up the civil register
and all documents relating thereto shall be considered
public documents and shall be prima facie evidence of
the facts therein contained. (n)
Art. 411. Every civil registrar shall be civilly
responsible for any unauthorized alteration made in any
civil register, to any person suffering damage thereby.
However, the civil registrar may exempt himself from
such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful altera-
tion. (n)
233
Art. 412. No entry in a civil register shall be

changed or corrected, without a judicial order. (n)
Art. 413. All other matters pertaining to the
registration of civil status shall be governed by special
laws. (n)
All acts, events and judicial decrees concerning the

civil status of persons shall be recorded in the Civil
Register (Art. 407, Civil Code). No entry in a City Register
shall be changed or corrected without judicial order (Art.
412, Civil Code). Since the case of Ty Kong Tin vs. Republic
(94 Phil. 321), it has been a consistent ruling that
substitutions or alterations such as those affecting the
status and citizenship of a person in the civil register
records cannot be ordered by the court unless such matters
are first threshed out in an appropriate actions wherein
all parties who may be affected by the entries are notified
or represented. The judicial proceedings under Article
412 of the Civil Code, implemented by Rule 108 of the
Rules of Court, had been held to only justify an order to
correct innocuous or clerical errors such as misspellings
and the like, errors which are visible to the eyes or obvious
to the understanding (Republic vs. Bartolome, 138 SCRA
442; Vda. de Castro vs. Republic, 134 SCRA 12). A clerical
error is one that could be apparent on the face of the
record and capable of being corrected by mere reference
to such record (Barretto vs. Civil Register, 74 SCRA 257).
A petition for correction or alteration of entries in the
civil register could not possibly be allowed if the purpose
of the proceeding is to establish filiation by the simple
expedient of changing the entries in the record of birth in
the civil registry (Republic vs. Bartolome, 138 SCRA 442).
The Supreme Court would appear to have deviated
from the rule in the case of Republic vs. Macli-ing (135
SCRA 367). The entries sought to be corrected in this
case were the name of respondents’ father, which the
respondents wanted to change from Esteban Sy to Sy
Piao on the claim that Esteban was only a nickname, and
Title XVI. Civil Register
the name “Joe Sy” appearing in the birth record of one of

the respondents to “Jose Sy.” The court granted the peti-
tion after a full-blown hearing. The government appealed,
contending that Rule 108 of the Rules of Court on which
the respondents anchored their petition was applicable
only to clerical or innocuous errors or to corrections that
were not controversial and could be supported by indubi-
table evidence. The Court ruled:
“It is true that the change from Esteban Sy to
Sy Piao would necessarily affect the identity of the
father. In that sense, it can be said to be substantial.
However, we find indubitable evidence to support
the correction prayed for. In the Alien Certificate of
Registration of the father (Exhibit ‘C’), his name
appears as ‘Sy Piao.’ The same is true in his
Immigrant Certificate of Residence (Exhibit ‘C-3’). x
x x The school records of Oscar Sy both in high school
and at St. Louis University in Baguio, recorded the
name of his father as ‘Sy Piao’ x x x.
“In the case of Ty Kong Tin vs. Republic, 94
Phil. 321 (1954), as well as subsequent cases
predicated thereon, we forbade only the entering of
material corrections in the record of birth by virtue
of a judgment in a summary action. The proceedings
below, although filed under Rule 108 of the Rules of
Court, were not summary. x x x”
If the subject matter of a petition is not for the
correction of clerical errors of a harmless and innocuous
nature, but one which is substantial and controverted,
like a case involving nationality or citizenship, which is
substantial and controverted, affirmative action cannot
be granted in a proceeding summary in nature. The Court
adheres to the principle that even substantial errors in a
civil registry may be corrected and the true facts
established provided the parties aggrieved by the error
avail themselves of the appropriate adversary proceed-
ing (Republic vs. Valencia, G.R. No. L-32181, 5 March
1986; see Republic vs. Belmonte, 158 SCRA 173). The

civil registrar and all persons, who have or claim any
interest which would be affected by the cancellation or
correction of an entry being sought, should be made par-
ties to the proceeding. The civil registrar is an indispen-
sable party to the said proceeding without which no final
determination of the case can be made (Republic vs.
Belmonte, supra.).
The rules have been substantially modified with the
enactment of Republic Act No. 9048, which authorizes
the city or municipal civil registrar or the consul general
to correct a clerical or typographical error in an entry
and/or change a first name or nickname in the civil register
without need of a judicial order (see Sec. 1, R.A. No.
9048). Clerical or typographical error pertains to a mistake
carried out in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name
or misspelled birth or the like, which is visible to the eyes
or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or
records. No correction, however, must involve the change
of nationality, age, status, or sex of the petitioner (Sec.
2[3], ibid.). First name is a name or nickname given to a
person which may consist of one or more names in addition
to the middle and last names (Sec. 2[6], ibid.).
Any person having direct and personal interest in
the correction of a clerical or typographical error in an
entry and/or change of first name or nickname in the civil
register may file, in person, a verified petition with the
local civil registry office of the city or municipality where
the record being sought to be corrected or changed is
kept. In case the petitioner has already migrated to
another place in the country, and it would not be practical
for such party, in terms of transportation expenses, time
and effort to appear in person before the local civil regis-
trar keeping the documents to be corrected or changed,
the petition may be filed, in person, with the local civil
Title XVI. Civil Register
registrar of the place where the interested party is pres-

ently residing or domiciled. The two (2) local civil regis-
trars concerned will then communicate to facilitate the
processing of the petition. Citizens of the Philippines who
are presently residing or domiciled in foreign countries
may file their petition, in person, with the nearest Philip-
pine Consulates (Sec. 3, ibid.).
All petitions for the correction of clerical or typo-
graphical errors and/or change of first names or nick-
names may be allowed: (1) when the petitioner finds the
first name or nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or pronounce; (2)
when the new first name or nickname has been habitually
and continuously used by the petitioner and he has been
publicly known by that first name or nickname in the
community; or (3) when the change will avoid confusion
(Sec. 4, ibid.).
The petition shall be in the form of an affidavit,
subscribed and sworn to before any person authorized by
law to administer oaths. The affidavit shall set forth facts
necessary to establish the merits of the petition and shall
show affirmatively that the petitioner is incompetent to
testify to the matters stated. The petitioner shall state
the particular erroneous entry or entries which are sought
to be corrected and/or the change sought to be made. The
petition shall be supported with: (1) a certified true
machine copy of the certificate or of the page of the registry
book containing the entry or entries sought to be corrected
or changed; (2) at least two public or private documents
showing the correct entry or entries upon which the
correction or change shall be based; and (3) other
document which the petitioner or the city or municipal
civil registrar, or the consul general may consider relevant
and necessary for the approval of the petition (Sec. 5,
ibid.).
In case of change of first name or nickname, the
petition shall be published at least once a week for two
(2) consecutive weeks in a newspaper of general circu-
lation. Furthermore, the petitioner shall submit a certi-

fication from the appropriate law enforcement agencies
that he has no pending case or no criminal record. The
petition and its supporting papers shall be filed in three
(3) copies: the first copy to be distributed to the concerned
city or municipal civil registrar, or the consul general; the
second copy to the Office of the Civil Registrar General;
and the third copy to the petitioner (ibid.).
The extrajudicial corrections or change in the entries
in the civil register is not preclusive of judicial remedies
that may still be applied for by an interested party.
239
THE FAMILY CODE

OF THE PHILIPPINES
(Executive Order No. 209, July 6, 1987, as amended by

Executive Order No. 227, July 17, 1987)
TITLE I. MARRIAGE
Chapter 1 — Requisites of Marriage
Concept of Marriage
Article 1. Marriage is a special contract of

permanent union between a man and a woman entered
into in accordance with law for the establishment of
conjugal and family life. It is the foundation of the family
and an inviolable social institution whose nature,
consequences, and incidents are governed by law and
not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by this Code. (52a)
Marriage remains to be recognized as being an

inviolable social institution that must be cherished and
protected (Sec. 2, Art. XV, 1987 Constitution). Marriage
is not just an adventure but it is a lifetime commitment
so enshrined and in the Family Code as special contract
of permanent union between a man and a woman. The
Constitution is no less emphatic, viz:
“Section 1. The State recognizes the Filipino
family as the foundation of the nation. Accordingly,
239
it shall strengthen its solidarity and actively pro-

mote its total development.
“Section 2. Marriage, as an inviolable social in-
stitution, is the foundation of the family and shall be
protected by the State.’’ (Article XV, 1987 Constitu-
tion). Marriage is the basis of human society and a
relation that is imbued with public interest. Thus,
every intendment of the law leans toward legalizing
matrimony (Alavado vs. City Government of
Tacloban, 139 SCRA 230) and helping it to endure.
Absolute divorce is not recognized by the Family
Code, although the concept of the Canon Law on
void marriages has been adopted to a certain degree
by the Code. Except for allowing the spouses to fix
their property relation, marriage is purely governed
by law.Marriage is the basis of human society and a
relation that is imbued with public interest. Thus,
every intendment of the law leans toward legalizing
matrimony (Alavado vs. City Government of
Tacloban, 139 SCRA 230) and helping it to endure.
Absolute divorce is not recognized by the Family
Code, although the concept of the Canon Law on
void marriages has been adopted to a certain degree
by the Code. Except for allowing the spouses to fix
their property relation, marriage is purely governed
by law.
In Calimlim-Canullas vs. Fortun (129 SCRA 675),

where the spouses Mercedes Calimlim-Canullas and
Fernando Canullas, married in 1962, built a house on the
land owned by Fernando’s father and after his father’s
death, Fernando (who inherited the land) sold the house
and lot to his concubine, the Supreme Court held:
“x x x We find that the contract of sale was null

and void for being contrary to morals and public
policy. The sale was made by a husband in favor of a
concubine after he had abandoned his family and
left the conjugal home where his wife and children
Title I. Marriage
lived and from whence they derived their support.

That sale was subversive of the stability of the fam-
ily, a basic social institution which public policy cher-
ishes and protects.”
Art. 2. No marriage shall be valid, unless these

essential requisites are present:
(1) Legal capacity of the contracting parties who
must be a male and a female; and
(2) Consent freely given in the presence of the
solemnizing officer. (53a)
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with
the appearance of the contracting parties before the
solemnizing officer and their personal declaration that
they take each other as husband and wife in the pres-
ence of not less than two witnesses of legal age. (53a,
55a)
Art. 4. The absence of any of the essential or for-
mal requisites shall render the marriage void ab initio,
except as stated in Article 35(2).
A defect in any of the essential requisites shall
render the marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not
affect the validity of the marriage but the party or par-
ties responsible for the irregularity shall be civilly, crimi-
nally and administratively liable. (n)
The requisites for the validity of a marriage are clas-

sified by the Code into essential (legal capacity of the
contracting parties and their consent freely given in the
presence of the solemnizing officer) and formal (authority
of the solemnizing officer, marriage license, and a mar-
riage ceremony wherein the parties personally declare

their agreement to marry before the solemnizing officer
and in the presence of at least two witnesses). The ab-
sence of any of the essential and formal requisites renders
the marriage void ab initio. While the authority of the
solemnizing officer is a formal requisite the absence of
which renders the marriage void ab initio under Article
4, the marriage, however, can still be considered valid if
the parties or either of them has relied in good faith on
the legal authority of the solemnizing officer (under Article
35, paragraph 2 of the Code).
A defect in the essential requisites, such as the at-
tendance of vices of consent, renders the marriage void-
able but an irregularity in the formal requisites, such as
an irregularity in the issuance of the marriage license,
shall not affect the validity of the marriage, although the
parties responsible therefor may be held civilly, criminally,
or administratively liable. (Art. 4, Family Code).
Doubts, to be sure, may arise on the meaning of
absence, on the one hand, and of a defect or irregularity,
on the other hand. Would a marriage, for instance, which
is celebrated not in the presence of qualified witnesses
render the marriage valid, voidable or void? Undoubtedly,
there is an imperfection in the celebration of the marriage.
While the essential requisites of a valid marriage (Art. 2,
Family Code) does not specifically mention the need for
witnesses, the formal requisites (Art. 3, Family Code),
however, require a personal declaration by the prospec-
tive spouses that they so take each other as husband and
wife “in the presence of not less than two witnesses of
legal age.” In this and similar instances, it may be well to
consider as primordial the essence of the legal
requirements, the failure of which would result in the
absence thereof. Where the failure, however, is merely in
the due observance of, or in the manner of compliance
with, the requirements prescribed by the law, the same
should only be considered as either a defect or irregular-
ity, as the case may be. Viewed in this light, the marriage
Art. 5 PERSONS 243
Title I. Marriage
in the above problem should be considered valid since the

imperfection is but an irregularity in the formal requi-
sites under the third paragraph of Article 3, the essence
in that legal requirement being really the personal decla-
ration of the parties of their agreement to marry.
Art. 5. Any male or female of the age of eighteen

years or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract mar-
riage. (54a)
The law recognizes only one case of absolute dis-

qualification, i.e., those who are below the age of legal
capacity (18 years) to a marriage. Relative disquali-
fications, such as those due to the civil or natural rela-
tion-ship of the parties, may likewise negate the validity
of a marriage (see Arts. 37 and 38, Family Code, infra).
The Family Code has established in marriage a uni-
form age of legal capacity of eighteen years and age of
consent of twenty-one years for both the male and the
female. This rule has not been changed by Republic Act
No. 6809 reducing the majority age from twenty-one to
eighteen years.
A marriage contracted by any party below 18 years
of age even with the consent of the parents or guardians
is void ab initio under Article 35 of the Code. Parental
consent is required of a party who marries between the
ages of 18 and 21 (Republic Act No. 6809); without that
parental consent, the marriage is voidable (Art. 45, Fam-
ily Code).
Consent Freely Given

Like any other contract, consent of the contracting
parties should be free from any vice of consent; unlike,
however, in ordinary contracts, the vices of consent in
marriage are generally more stringent than in other con-
tracts. The attendance of violence, intimidation, fraud,
undue influence or the state of being of unsound mind
may vitiate consent that can render the contract voidable

(Arts. 45 and 46, Family Code).
A breach of promise to marry is not enforceable nor,
by itself, otherwise actionable, except that to the extent
that one has acted in a manner that is contrary to mor-
als, good customs or public policy, the person upon whom
it is exercised may be compensated for the damage sus-
tained (see Arts. 19 and 21, Civil Code; Hermosisima vs.
Court of Appeals, et al., 109 Phil. 629).
Art. 6. No prescribed form or religious rite for the

solemnization of the marriage is required. It shall be
necessary, however, for the contracting parties to ap-
pear personally before the solemnizing officer and de-
clare in the presence of not less than two witnesses of
legal age that they take each other as husband and
wife. This declaration shall be contained in the mar-
riage certificate which shall be signed by the contract-
ing parties and their witnesses and attested by the
solemnizing officer.
In case of a marriage in articulo mortis, when the
party at the point of death is unable to sign the mar-
riage certificate, it shall be sufficient for one of the
witnesses to the marriage to write the name of said
party, which fact shall be attested by the solemnizing
officer. (55a)
The law does not prescribe any particular form for

the ceremony; it is enough that the parties declare, in the
presence of the person solemnizing the marriage and of
two witnesses of legal age, that they take each as hus-
band and wife. A party to the marriage may not thus be
represented by a proxy, but an informality in conducting
the marriage ceremony does not adversely affect the va-
lidity of the marriage.
Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within
the court’s jurisdiction;
Title I. Marriage
(2) Any priest, rabbi, imam, or minister of any

church or religious sect duly authorized by his church
or religious sect and registered with the civil registrar
general, acting within the limits of the written authority
granted him by his church or religious sect and pro-
vided that at least one of the contracting parties be-
longs to the solemnizing officer’s church or religious
sect;
(3) Any ship captain and airplane chief only in
the cases mentioned in Article 31;
(4) Any military commander of a unit to which a
chaplain is assigned, in the absence of the latter, dur-
ing a military operation, likewise only in the cases men-
tioned in Article 32; or
(5) Any consul-general, consul or vice-consul in
the case provided in Article 10. (56a)
Art. 8. The marriage shall be solemnized publicly
in the chambers of the judge or in open court, in the
church, chapel or temple, or in the office of the consul-
general, consul or vice-consul, as the case may be, and
not elsewhere, except in cases of marriage contracted
at the point of death or in remote places in accordance
with Article 29 of this Code, or where both of the parties
request the solemnizing officer in writing in which case
the marriage may be solemnized at a house or place
designated by them in a sworn statement to that effect.
(57a)
Unlike the Civil Code of 1950, the judges of the Court

of Tax Appeals and justices of the Sandiganbayan may
now solemnize marriages. The authority, however, of
mayors and ambassadors to solemnize marriages has been
removed by the Family Code, although that of the city
and municipal mayors has been reinstated by the Local
Government Code of 1991 (see Secs. 444 and 455, Local
Government Code). A priest, rabbi, imam, or minister of
any church or religious sect may solemnize marriages,
provided he is authorized and acts within the limits of the
written authority granted him by his church or sect and
such authority is registered with the Office of the Civil
Registrar General, and provided further that one of the

contracting parties belongs to such solemnizing officer’s
church or religious sect (Art. 7, par. 2, Family Code). The
parties must state their religion in their marriage contract
(Art. 22, par. 2, Family Code). A marriage between a
Filipino citizen and a non-national cannot be celebrated
by a consul. In the event such a marriage is performed
nonetheless, it would appear to be more of a case of
irregularity, than an absence of a formal requisite, that
would not thus adversely affect the validity of the marriage
(see Arts. 4, 7, 10 and 35, Family Code).
The lack of authority of the solemnizing officer would
render the contract void ab initio (Art. 4, Family Code)
but where the parties to the marriage, or either of them,
believed in good faith that the solemnizing had that
authority, the marriage would still be valid (Art. 35,
Family Code).
The question might be posed as to whether or not
the belief in good faith of the parties or either party
relative to the authority of the solemnizing officer covers
both mistake of fact and mistake of law. For instance,
would an honest belief on the part of either or both con-
tracting parties that a notary public can celebrate a mar-
riage (a mistake of law) make such marriage solemnized
by the notary public valid, or should the mistake refer
solely to one of fact such as a case where a person solem-
nizing the marriage has represented himself to the con-
tracting parties as a priest who can solemnize marriage
but who is not so authorized? The law has not made any
distinction and neither should we. What is more impor-
tant is that the belief in good faith of one or both con-
tracting parties is satisfactorily established and each case
must be judged by its own merits. Thus, a well educated
person may find it much more difficult to prove his or her
good faith in any of such marriages than what it might
take for an illiterate contracting party to do. So, also,
good faith perhaps can easier be anchored on a mistake of
fact than it can on a mistake of law. The phrase “parties
Title I. Marriage
believing in good faith” evidently pronounces a state of

mind personal to the parties; hence, there is hardly room
for the otherwise rigid application of the legal mandate
that ignorance of the law does not excuse its non-compli-
ance (Art. 3, Civil Code) or of the rule (in possession) that
only doubtful or difficult questions of law may be the
basis of good faith (Art. 527, Civil Code).
Art. 9. A marriage license shall be issued by the

local civil registrar of the city or municipality where
either contracting party habitually resides, except in
marriages where no license is required in accordance
with Chapter 2 of this Title. (58a)
Art. 10. Marriages between Filipino citizens abroad
may be solemnized by a consul-general, consul or vice-
consul of the Republic of the Philippines. The issuance
of the marriage license and the duties of the local civil
registrar and the solemnizing officer with regard to the
celebration of marriage shall be performed by said
consular official. (75a)
Art. 11. Where a marriage license is required, each
of the contracting parties shall file separately a sworn
application for such license with the proper local civil
registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil Status;
(5) If previously married, how, when and where
the previous marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting
parties;
(8) Full name, residence and citizenship of the
father;
mother; and

guardian or person having charge, in case the con-
tracting party has neither father nor mother and is un-
der the age of twenty-one years.
The applicants, their parents or guardians shall
not be required to exhibit their residence certificates
in any formality in connection with the securing of the
marriage license. (59a)
Art. 12. The local civil registrar, upon receiving
such applications, shall require the presentation of the
original birth certificates or, in default thereof, the bap-
tismal certificates of the contracting parties or copies
of such documents duly attested by the person having
custody of the originals. These certificates or certified
copies of the documents required by this Article need
not be sworn to and shall be exempt from the docu-
mentary stamp tax. The signature and official title of
the person issuing the certificate shall be sufficient
proof of its authenticity.
If either of the contracting parties is unable to
produce his birth or baptismal certificate or a certified
copy of either because of the destruction or less of the
original, or if it is shown by an affidavit of such party
or of any other person that such birth or baptismal
certificate has not yet been received though the same
has been required of the person having custody thereof
at least fifteen days prior to the date of the application,
such party may furnish in lieu thereof his current resi-
dence certificate or an instrument drawn up and sworn
to before the local civil registrar concerned or any pub-
lic official authorized to administer oaths. Such instru-
ment shall contain the sworn declaration of two wit-
nesses of lawful age, setting forth the full name, resi-
dence and citizenship of such contracting party and of
his or her parents, if known, and the place and date of
birth of such party. The nearest of kin of the contract-
ing parties shall be preferred as witnesses, or, in their
default, persons of good reputation in the province or
the locality.
The presentation of the birth or baptismal certifi-
cate shall not be required if the parents of the con-
Title I. Marriage
tracting parties appear personally before the local civil

registrar concerned and swear to the correction of the
lawful age of said parties, as stated in the application,
or when the local civil registrar shall, by merely look-
ing at the applicants upon their personally appearing
before him, be convinced that either or both of them
have the required age. (60a)
Art. 13. In case either of the contracting parties
has been previously married, the applicant shall be
required to furnish, instead of the birth or baptismal
certificate required in the last preceding article, the
death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree
of annulment or declaration of nullity of his or her
previous marriage. In case the death certificate cannot
be secured, the party shall make an affidavit setting
forth this circumstance and his or her actual civil sta-
tus and the name and date of death of the deceased
spouse. (61a)
A marriage license is a formal prerequisite to the

marriage. The license is issued by the local civil registrar
of the city or municipality where either contracting party
habitually resides upon an application in writing of the
contracting parties and the registrar’s being satisfied that
no legal impediment to such marriage exists.
A marriage license is valid in any part of the Philip-
pines, but it shall be good for not more than 120 days
from the date it is issued, and it shall be deemed can-
celled by the expiration of said period if the interested
parties have not made use of it (Art. 20, Family Code).
When either or both of the contracting parties are
citizens or subjects of a foreign country, it shall be neces-
sary, before a marriage license can be obtained, to pro-
vide themselves with a certificate of legal capacity to
contract marriage, to be issued by their respective diplo-
matic or consular officials (Art. 21, Family Code).
A marriage without a validly issued license having
first been obtained is void ab initio (see Art. 35, Family
Code), but an irregularity in its issuance does not affect

the validity of the marriage (Art. 4, Family Code).
In order to help ensure a successful marriage, an-
other requisite for the issuance of a marriage license has
been added by the Family Code, namely, a certificate
from a priest or minister or an accredited marriage
counselor that the contracting party at least 18 but below
25 years of age has undergone marriage counseling (Art.
16, Family Code). If there is no such certificate, the issu-
ance of the license shall be suspended for three (3) months
after complete publication of the application for license
(similar to the lack of parental advice).
In an apparent attempt to put a man and a woman
in equal standing in marriage, the provision of the Civil
Code (Art. 84) prohibiting the issuance of a marriage
license to widow under 300 days following the death of
her husband, unless in the meantime she has given birth
to a child, has been eliminated.
Art. 14. In case either or both of the contracting

parties, not having been emancipated by a previous
marriage, are between the ages of eighteen and twenty-
one, they shall, in addition to requirements of the prece-
ding articles, exhibit to the local civil registrar, the con-
sent to their marriage of their father, mother, surviving
parent or guardian, or persons having legal charge of
them, in the order mentioned. Such consent shall be
manifested in writing by the interested party, who
personally appears before the proper local civil
registrar, or in the form of an affidavit made in the
presence of two witnesses and attested before any of-
ficial authorized by law to administer oaths. The per-
sonal manifestation shall be recorded in both applica-
tions for marriage license, and the affidavit, if one is
executed instead, shall be attached to said applica-
tions. (61a)
Art. 15. Any contracting party between the ages
of twenty-one and twenty-five shall be obliged to ask
their parents or guardian for advice upon the intended
Art. 16 PERSONS 251
Title I. Marriage
marriage. If they do not obtain such advice, or if it be

unfavorable, the marriage license shall not be issued
till after three months following the completion of the
publication of the application therefor. A sworn state-
ment by the contracting parties to the effect that such
advice has been sought, together with the written ad-
vice given, if any, shall be attached to the application
for marriage license. Should the parents or guardian
refuse to give any advice, this fact shall be stated in
the sworn statement. (62a)
Art. 16. In the cases where parental consent or
parental advice is needed, the party or parties con-
cerned shall, in addition to the requirements of the
preceding articles, attach a certificate issued by a priest,
imam or minister authorized to solemnize marriage un-
der Article 7 of this Code or a marriage counselor duly
accredited by the proper government agency to the
effect that the contracting parties have undergone mar-
riage counseling. Failure to attach said certificate of
marriage counseling shall suspend the issuance of the
marriage license for a period of three months from the
completion of the publication of the application. Issu-
ance of the marriage license within the prohibited pe-
riod shall subject the issuing officer to administrative
sanctions but shall not affect the validity of the mar-
riage.
Should only one of the contracting parties need
parental consent or parental advice, the other party
must be present at the counseling referred to in the
preceding paragraph. (n)
Any male or female of the age of 18 years or up-

wards, not otherwise disqualified by law, may enter into
a contract of marriage. In case either or both of the con-
tracting parties, not being emancipated by a precious
marriage (which assumes that consent had theretofore
been given to the prior marriage), are less than 21 years
of age, the consent to their marriage of the father, mother
or guardian, or persons having legal charge of them, in
the order mentioned, is required. The marriage, in the
absence of such consent, is voidable and it may be an-

nulled by the party whose parent or guardian did not
give consent within 5 years after attaining the age of 21,
or by the parent or guardian or person having legal charge
at any time before such party has reached the age of 21
years (Art. 45, in relation to Art. 47, Family Code). The
right to annul the marriage is lost if after attaining the
age of 21 years, the party to the marriage entitled to
bring the action should have freely cohabited with the
other and both lived together as husband and wife (Art.
45, Family Code) or if the action to annul would have
meanwhile prescribed (see Art. 47, infra, Family Code).
The Family Code has not quite resolved the conflict
of views on whether or not the voidable marriage is
convalidated by parental consent being given after the
marriage. The better view appears to be that the
convalidation thereof or for that matter of any other
voidable contract (not void contracts which are not
generally convalidated) is legally feasible only under and
within the means expressly sanctioned by law. In the
case of voidable marriages, the only methods of
convalidation expressed by law are by prescription and
by cohabitation (see Arts. 45 and 47, Family Code).
A party above 21 but under 25 years of age is obliged
to ask the parent or guardian for advice upon the intended
marriage. If such advice is not obtained, or if it be
unfavorable, the marriage shall not take place until after
three months following the completion of the publication
of the application for marriage license (Art. 15, Family
Code). The failure to obtain such advice shall not, however,
invalidate the marriage.
Art. 17. The local civil registrar shall prepare a

notice which shall contain the full names and
residences of the applicants for a marriage license and
other data given in the applications. The notice shall
be posted for ten consecutive days on a bulletin board
outside the office of the local civil registrar located in
a conspicuous place within the building and accessi-
Title I. Marriage
ble to the general public. This notice shall request all

persons having knowledge of any impediment to the
marriage to advice the local civil registrar thereof. The
marriage license shall be issued after the completion
of the period of publication. (63a)
Art. 18. In case of any impediment known to the
local civil registrar or brought to his attention, he shall
note down the particulars thereof and his findings
thereon in the application for a marriage license, but
shall nonetheless issue said license after the comple-
tion of the period of publication, unless ordered other-
wise by a competent court at his own instance or that of
any interested party. No filing fee shall be charged for
the petition nor a corresponding bond required for the
issuance of the order. (64a)
Art. 19. The local civil registrar shall require the
payment of the fees prescribed by law or regulations
before the issuance of the marriage license. No other
sum shall be collected in the nature of a fee or tax of
any kind for the issuance of said license. It shall, how-
ever, be issued free of charge to indigent parties, that
is, those who have no visible means of income or
whose income is insufficient for their subsistence, a
fact established by their affidavit, or by their oath be-
fore the local civil registrar. (65a)
Art. 20. The license shall be valid in any part of
the Philippines for a period of one hundred twenty days
from the date of issue, and shall be deemed automa-
tically cancelled at the expiration of said period if the
contracting parties have not made use of it. The expiry
date shall be stamped in bold characters on the face of
every license issued. (65a)
Art. 21. When either or both of the contracting
parties are citizens of a foreign country, it shall be
necessary for them before a marriage license can be
obtained, to submit a certificate of legal capacity to
contract marriage, issued by their respective diplomatic
or consular officials.
Stateless persons or refugees from other coun-
tries shall, in lieu of the certificate of legal capacity
herein required, submit an affidavit stating the circum-

stances showing such capacity to contract marriage.
(66a)
Art. 22. The marriage certificate, in which the par-
ties shall declare that they take each other as husband
and wife, shall also state:
(1) The full name, sex and age of each con-
tracting party;
(2) Their citizenship, religion and habitual resi-
dence;
(3) The date and precise time of the celebration
of the marriage;
(4) That the proper marriage license has been
issued according to law, except in marriages provided
for in Chapter 2 of this Title;
(5) That either or both of the contracting parties
have secured the parental consent in appropriate cases;
(6) That either or both of the contracting parties
have complied with the legal requirement regarding
parental advice in appropriate cases; and
(7) That the parties have entered into a marriage
settlement, if any, attaching a copy thereof. (67a)
Art. 23. It shall be the duty of the person solemn-
izing the marriage to furnish either of the contracting
parties the original of the marriage certificate referred
to in Article 6 and to send the duplicate and triplicate
copies of the certificate not later than fifteen days after
the marriage, to the local civil registrar of the place
where the marriage was solemnized. Proper receipts
shall be issued by the local civil registrar to the solem-
nizing officer transmitting copies of the marriage cer-
tificate. The solemnizing officer shall retain in his file
the quadruplicate copy of the marriage certificate, the
original of the marriage license and, in proper cases,
the affidavit of the contracting party regarding the sol-
emnization of the marriage in a place other than those
mentioned in Article 8. (68a)
Title I. Marriage
Art. 24. It shall be the duty of the local civil regis-

trar to prepare the documents required by this Title, and
to administer oaths to all interested parties without any
charge in both cases. The documents and affidavits
filed in connection with applications for marriage li-
censes shall be exempt from documentary stamp tax.
(n)
Art. 25. The local civil registrar concerned shall
enter all applications for marriage licenses filed with
him in a registry book strictly in the order in which the
same are received. He shall record in said book the
names of the applicants, the date on which the mar-
riage license was issued, and such other data as may
be necessary. (n)
The failure of compliance with the foregoing admin-

istrative and other requirements of the law should not
adversely affect the validity of the marriage itself (see
Art. 4, Family Code), except in cases where certain other
provisions could instead specifically govern such as the
fatal effect of an expired license on the marriage (see Art.
20, in relation to Arts. 3 and 35, Family Code).
In the case of “stateless” persons (see Art. 21, second
paragraph, Family Code), the domiciliary theory or the
law of domicile (see Koh vs. Court of Appeals, 70 SCRA
298), it is believed, may still apply since, unlike refugees
from a foreign country, stateless persons are without na-
tionality.
Presumption of Marriage
A man and a woman deporting themselves as hus-
band and wife are prima facie presumed to have entered
into a lawful contract of marriage (Rule 131, Sec. 3, Re-
vised Rules of Court; Rivera vs. Intermediate Appellate
Court, 182 SCRA 322; Vda. de Labuca vs. Workmen’s Com-
pensation Commission, 77 SCRA 31; Alavado vs. City
Government of Tacloban, 139 SCRA 230), but other attend-
ant circumstances to the contrary may offset that pre-
sumption (see Fernandez vs. Puatu, et al., 102 Phil. 363).
Foreign Marriages and Divorce Decrees

Art. 26. All marriages solemnized outside the Phil-
ippines in accordance with the laws in force in the coun-
try where they were solemnized, and valid there as such,
shall also be valid in this country, except those prohib-
ited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereaf-
ter validly obtained abroad by the alien spouse capaci-
tating him or her to remarry, the Filipino spouse shall
likewise have capacity to remarry under Philippine law.
(As amended by E.O. No. 227, dated July 17, 1987)
The provisions of Article 26 of the Family Code do

not apply to a marriage between persons who are both
non-nationals; instead, under the nationality theory, their
marriage shall be fully governed by the laws of their own
country (see Art. 15, Civil Code), and the exclusionary
clause in the first paragraph of the article will not apply
to the marriage.
Where one or both parties to the marriage are citi-
zens of the Philippines, the foreign marriage is valid in
this country if solemnized in accordance with the laws of
the country of celebration. Such marriage, however, is
not recognized (at least as regards the Filipino spouse)
when the marriage is —
(a) contracted by a national who is below 18 years
of age;
(b) bigamous or polygamous (except as provided for
in Article 41);
(c) contracted through mistake of one party as to
the identity of the other;
(d) contracted following the annulment or declara-
tion of nullity of a previous marriage but before the parti-
tion of the property of the spouses, the delivery of the
presumptive legitimes of the children and the proper re-
cording thereof;
Art. 26 PERSONS 257
Title I. Marriage
(e) contracted by any party who, at the time of the

celebration, was psychologically incapacitated to comply
with the essential marital obligations of the marriage;
(f) incestuous; and
(g) void for reasons of public policy (due to the rela-
tionship of the parties; see Art. 26, in relation to Arts. 35-
38, Family Code).
In the case of a mixed marriage (between a Filipino
citizen and a foreigner), the second paragraph (introduced
by E.O. No. 227, dated 17 July 1987) provides that if such
marriage is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating
said spouse to remarry, the Filipino spouse shall then
likewise have capacity to marry. The law, however, does
not require the Filipino spouse to oppose the divorce.
Evidently, this amendatory provisions is intended to avoid
the absurdity of the Filipino still being married to an
alien spouse who, under the latter’s law, is no longer
married to the Filipino spouse. Unfortunately, the amend-
ment is confined to the spouse’s capacity to remarry and
does not explicitly ordain, albeit not unlikely intended,
the dissolution of the marriage tie itself that would have
likewise settled definitely other possible personal, prop-
erty, and successional right issues between them. The
doctrines laid down under the Civil Code regime might
then yet apply when the Filipino spouse remains unmar-
ried and ignores the divorce.
The law is not clear as to whether or not the second
paragraph of Article 26 would also apply to a marriage
contracted by Filipino spouses, one of whom during such
marriage acquires alien citizenship and who thereafter
validly obtains abroad a divorce capacitating him or her
to remarry. If the intention, as it might so appear (consid-
ering that it is more of an exception than of the general
rule), were to limit the provision to marriages where one
of the spouses thereto is a non-national at the time of the
celebration of the marriage, the paragraph should have
perhaps read, “where a marriage is validly celebrated

between a Filipino citizen and a foreigner x x x.” As the
provision stands, however, there is some ambiguity on
the legislative intent as to whether the clause “validly
celebrated” qualifies merely the marriage itself or like-
wise the parties thereto. Considering the basic intendment
of the law, it would seem preferable to hold the clause as
having been made in reference to the marriage more than
to the parties thereto.
Also left unresolved by the Family Code is a foreign
marriage valid in the country of celebration between a
Filipino citizen who is disqualified under Philippine Law
to marry and an alien who is not similarly disqualified
(such as where the spouses, although of different nation-
alities, are first degree cousins). The marriage could give
rise to another possible situation where the alien this
time could be married to a Filipino who, under Philippine
law, is not married to the former.
Chapter 2 — Marriages Exempt from License

Requirement
Art. 27. In case either or both of the contracting

parties are at the point of death, the marriage may be
solemnized without the necessity of a marriage license
and shall remain valid even if the ailing party subse-
quently survives. (72a)
Art. 28. If the residence of either party is so lo-
cated that there is no means of transportation to en-
able such party to appear personally before the local
civil registrar, the marriage may be solemnized without
the necessity of a marriage license. (72a)
Art. 29. In the cases provided for in the two pre-
ceding articles, the solemnizing officer shall state in
an affidavit executed before the local civil registrar or
any other person legally authorized to administer oaths
that the marriage was performed in articulo mortis or
that the residence of either party, specifying the barrio
or barangay, is so located that there is no means of
Title I. Marriage
transportation to enable such party to appear person-

ally before the local civil registrar and that the officer
took the necessary steps to ascertain the ages and
relationship of the contracting parties and the absence
of a legal impediment to the marriage. (72a)
Art. 30. The original of the affidavit required in the
last preceding article, together with a legible copy of the
marriage contract, shall be sent by the person solem-
nizing the marriage to the local civil registrar of the mu-
nicipality where it was performed within the period of
thirty days after the performance of the marriage. (73a)
Art. 31. A marriage in articulo mortis between pas-
senger or crew members may also be solemnized by a
ship captain or by an airplane pilot not only while the
ship is at sea or the plane is in flight, but also during
stopovers at ports of call. (74a)
Art. 32. A military commander of a unit, who is a
commissioned officer, shall likewise have authority to
solemnize marriages in articulo mortis between per-
sons within the zone of military operation, whether
members of the armed forces or civilians. (74a)
Art. 33. Marriages among Muslims or among mem-
bers of the ethnic cultural communities may be per-
formed validly without the necessity of a marriage li-
cense, provided they are solemnized in accordance with
their customs, rites or practices. (78a)
Art. 34. No license shall be necessary for the mar-
riage of a man and woman who have lived together as
husband and wife for at least five years and without
any legal impediment to marry each other. The con-
tracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to ad-
minister oaths. The solemnizing officer shall also state
under oath that he ascertained the qualifications of the
contracting parties and found no legal impediment to
the marriage. (76a)
The marriages referred to in the above provisions of

the Family Code do not require a marriage license; in
fine, these marriages may be grouped into: (a) marriages
in articulo mortis; (b) marriages between parties where

both or either resides in a remote place inaccessible to
transportation; (c) marriages between parties who are
members of the ethnic cultural communities; and (d) mar-
riages between common-law spouses who have lived to-
gether as husband and wife for at least five years and
without any legal impediment to marry each other. Al-
though the sentence structure of the law appears to indi-
cate that the absence of legal impediment refers to the
life of cohabitation, the presumption of validity and regu-
larity of marriage, among other things, could override
this interpretation in favor of simply requiring the freedom
from legal impediment at the time the marriage is
celebrated which would be when the question becomes of
real consequence.
For the provision on legal ratification of marital co-
habitation to apply, the following conditions must concur:
(1) the man and woman must have been living together
as husband and wife for at least five years before the
marriage; (2) the parties must have no legal impediment
to marry each other; (3) the fact of absence of legal im-
pediment between the parties must be present at the
time of marriage; (4) the parties must execute an affida-
vit stating that they have lived together for at least five
years; and (5) the solemnizing officer must execute a
sworn statement that he has ascertained the qualifica-
tions of the parties and that he has found no legal im-
pediment to their marriage (Manzano vs. Judge Sanchez,
A.M. No. MTJ-00-1329, 08 March 2001).
The five-year common-law period expressed in Arti-
cle 34 of the Family Code would have been a period of
legal union, characterized by exclusivity and continuity,
were it not for the absence of marriage. This 5-year pe-
riod shall be the years immediately before the day of the
marriage; otherwise, if that continuous 5-year cohabi-
tation were computed without any distinction on whether
or not the parties are capacitated to marry each other
during the entire five years, then the law would be sanc-
Title I. Marriage
tioning immorality and common law relationships and

placing them on the same footing with those who live
faithfully with their lawful spouses. Thus, the subsist-
ence of a first marriage, although there is actual sever-
ance of the filial companionship between the spouses,
does not make the cohabitation by either spouse with any
third party as being one of “husband and wife” relation-
ship (Ninal vs. Bayadog, 123 SCAD 58, 328 SCRA 122).
Chapter 3 — Void and Voidable Marriages

the beginning:
(1) Those contracted by any party below eight-
een years of age even with the consent of parents or
guardians;
(2) Those solemnized by any person not legally
authorized to perform marriages unless such marriages
were contracted with either or both parties believing in
good faith that the solemnizing officer had the legal
authority to do so;
(3) Those solemnized without a license, except
those covered by the preceding Chapter;
(4) Those bigamous or polygamous marriages
not falling under Article 41;
(5) Those contracted through mistake of one
contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void
under Article 53.
Art. 36. A marriage contracted by any party who, at
the time of the celebration, was psychologically inca-
pacitated to comply with the essential marital obliga-
tions of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemniza-
tion. (As amended by E.O. 227)
Art. 37. Marriages between the following are inces-
tuous and void from the beginning, whether the rela-
tionship between the parties be legitimate or illegiti-

mate:
(1) Between ascendants and descendants of any
degree; and
(2) Between brothers and sisters, whether of the
full or half-blood. (81a)
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 adopt-
ing 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 adop-
ter; and
(9) Between parties where one, with the inten-
tion to marry the other, killed that other person’s spouse
or his or her own spouse. (82a)
Void marriages under the Family Code may be

grouped into: (a) those where there is an absence of the
essential and formal requisites of marriage (under Arts.
2 and 3 of the Code); (b) bigamous and polygamous mar-
riages; (c) those where a party to the marriage is psycho-
logically incapacitated to marry at the time of its celebra-
tion; (d) incestuous marriages; (e) those contracted
through mistake as to the identity (physical and not as
regards character, rank or fortune) of the other party;
and (f) those declared void because of public policy. Also
declared void by the Code are subsequent marriages
Title I. Marriage
where, in the case of absentee spouses under Article 41,

both spouses of the subsequent marriage have acted in
bad faith (Art. 44, Family Code) and where, in the case of
an annulment or of absolute nullity of a marriage, the
spouses marry before the petition and distribution of the
property (of the spouses of the prior marriage) as well as
the delivery of the presumptive legitimes of the children
and the recording thereof in the civil registry (Art. 53, in
relation to Art. 52, Family Code).
Among the changes (from the Civil Code of 1950)
introduced by the Family Code are new proscriptions
such as marriages: (a) between parents-in-law and chil-
dren-in-law; and (b) between the adopted children of the
same adopter. Upon the other hand, marriages between
step-brothers and step-sisters (not step-parents and step-
children) are now permitted. A significant innovation is
the inclusion, among the void marriages, of one that is
contracted by a party “who, at the time of the celebration,
was psychologically incapacitated to comply with the es-
sential marital obligations of marriage x x x even if such
incapacity becomes manifest only after its solemnization.”
Children conceived of such void marriage (due to psycho-
logical incapacity) prior to the judicial declaration of nul-
lity are deemed legitimate (Art. 54, Family Code). Thus,
“psychological incapacity” does not necessarily envision
an inability of the spouse to have sexual relation with the
other.
The phrase “psychological incapacity” has not been
defined by the Code itself. In a literal sense, it can refer
to any mental (not physical) incapacity that renders a
party incapable of assuming and discharging the basic
marital covenants. Surely, however, the intendment of
the law must have been to confine the meaning of the
term to the most serious cases of personality disorders
clearly demonstrative of an utter failure of, and hopeless
situation of, marriage. The degree, extent, and other con-
ditions of that incapacity must thus be fully examined
and properly evaluated in each case. The term “psycho-
logical incapacity” has been taken from the Code of Canon

Law; accordingly, the jurisprudence prevailing thereun-
der at the time of its adoption by the Code, although not
controlling, can have strong influence in the application
and interpretation of the codal provision.
Psychological incapacity refers to a serious psycho-
logical illness, a grave and permanent malady to the point
of depriving one of the awareness of the duties and
responsibilities of the matrimonial bond about to be
assumed. These marital obligations are those provided
under articles 68 to 71, 220, 221 and 225 of the Family
Code (Marcos vs. Marcos, 343 SCRA 755). Article 36 of
the Family Code cannot be taken and construed
independently of, but must stand in conjunction with,
existing precepts in our law on marriage. Thus corre-
lated, “psychological incapacity” should refer to no less
than a mental incapacity that causes a party to be truly
incognitive of the basic marital covenants that
concomitantly must be assumed and discharged by the
parties to the marriage (Santos vs. Court of Appeals, 58
SCAD 17, 240 SCRA 20). The Court, in Republic vs.
Molina (268 SCRA 198), handed down guidelines in the
interpretation and application of Article 36, to wit: (1)
The burden of proof to show the nullity of the marriage
belongs to the plaintiff; (2) the root cause of the
psychological incapacity must be: (a) medically or clinically
identified; (b) alleged in the complaint; (c) sufficiently
proven by experts; and (d) clearly explained in the deci-
sion; (3) the incapacity must be proven to be existing at
the time of the celebration of the marriage; (4) such inca-
pacity must also be shown to be medically or clinically
permanent or incurable; (5) such illness must be grave
enough to bring about the disability of the party to as-
sume the essential obligations of marriage; (6) the essen-
tial marital obligations must be those embraced by Arti-
cles 68 up to 71 of the Family Code as regards husband
and wife as well Articles 220, 221 and 225 of the same
Code in regard to parents and their children; (7) interpre-
Title I. Marriage
tations given by the National Appellate Matrimonial Tri-

bunal of the Catholic Church in the Philippines, while
not controlling or decisive, should be given great respect
by our courts; and (8) the trial court must order the pros-
ecuting attorney or fiscal and the Solicitor General to
appear as counsel for the state (see also Art. 48, Family
Code). The ruling is meant to give some guidelines; not
all, however, must be understood as being immutable
requirements.
There is no requirement that the spouse sought to
be declared psychologically incapacitated should be ex-
amined by a physician or a psychologist as a condition
sine qua non for such declaration (Marcos vs. Marcos, 136
SCAD 713, 343 SCRA 755). Habitual alcoholism, sexual
infidelity or perversion, and abandonment do not by them-
selves constitute grounds for a finding of psychological
incapacity within the contemplation of the Family Code.
It must be shown that these acts are manifestations of a
disordered personality which make the party completely
unable to discharge the essential obligations of the mari-
tal state (Lucita Hernandez vs. Court of Appeals, 116
SCAD 815, 320 SCRA 76). Mere showing of “irreconcil-
able difference” and conflicting personalities is not reflec-
tive of psychological incapacity (Republic vs. Court of Ap-
peals, 268 SCRA 198). In Pesca vs. Pesca (G.R. No. 136921,
17 April 2001, 147 SCAD 544), the Court has said that
emotional immaturity and irresponsibility cannot be
equated with psychological incapacity. But the prolonged
refusal of a spouse to have sexual intercourse with his or
her spouse can be considered a sign of psychological inca-
pacity (Chi Ming Tsoi vs. Court of Appeals, 78 SCAD 57,
266 SCRA 324).
Effect on Children
Children conceived or born of void marriages are
illegitimate; children, however, of void marriages under:
(a) Article 36 (due to psychological incapacity) and (b)
Article 53, in relation to Article 52 (due to failure of parti-
tion, delivery of presumptive legitimes of children and

recording thereof following the annulment or declaration
of nullity of a prior marriage) conceived or born before
the judicial declaration of nullity of such void marriages
are deemed legitimate (Art. 54, Family Code). It is note-
worthy that this exceptional grant of legitimate status to
children of void marriages does not apply to those of void
marriages under Article 44 (subsequent marriage by a
spouse present where both contracting parties thereto
acted in bad faith).
The law is not explicit as regards children, or the
legal effects in general, of a subsequent marriage entered
into by a spouse of a prior void marriage before the latter
is judicially declared an absolute nullity. Article 40 of the
Family Code merely provides that the “absolute nullity of
a previous marriage may be invoked for purposes of re-
marriage on the basis solely of a final judgment declaring
such previous marriage void.” The status, however, of the
subsequent marriage is not itself defined, although Arti-
cle 52, in relation to Article 53, would give the impression
that the subsequent marriage is to be deemed void. Arti-
cle 54, in relation to Article 53, that gives legitimate
status to children of void marriage, does not apparently
include those of subsequent marriages entered into by a
spouse of a prior void marriage before the latter is de-
clared a nullity and are, therefore, in strictissimi juris to
still be considered illegitimate.
Effect on Property Relations

In a void marriage, the parties during cohabitation
shall be governed in their property relations by the spe-
cial co-ownership rules established in Article 147 and
Article 148, infra, of the Family Code. The property re-
gime between the parties in a marriage nullified under
Article 36 will not thus be governed by Articles 50, 51 and
52, in relation to Articles 102 and 129, of the Family
Code, but by the co-ownership rules under Article 147 or
Title I. Marriage
Article 148 (Valdes vs. RTC, 260 SCRA 221). No specific

provisions are expressed in said code in case the parties
fail to live together as husband and wife. Neither Article
147 nor Article 148 can then find special application.
Art. 39. The action or defense for the declaration

of absolute nullity of a marriage shall not prescribe.
(As amended by E.O. 227, dated July 17, 1987 and R.A.
8533).
Art. 40. The absolute nullity of a previous mar-
riage may be invoked for purposes of remarriage on
the basis solely of a final judgment declaring such
previous marriage void. (n)
Void marriages are inexistent from the very begin-

ning and no judicial decree is required to establish their
nullity (Odayat vs. Amante, 77 SCRA 338; see also People
vs. Aragon, 100 Phil. 1033). For purposes of remarriage,
however, the law requires that the absolute nullity of the
previous marriage may be invoked “on the basis solely of
a final judgment declaring such previous marriage void”
(Art. 40, Family Code). In Cariño vs. Cariño (351 SCRA
127), the Court has expressly declared that for purposes
other than remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. Thus, for other
purposes including, but not limited to, the determination
of heirship, legitimacy or illegitimacy of a child, settle-
ment of estate, dissolution of property regime, or a crimi-
nal case for that matter, the court may pass upon the
validity of marriage even after the death of the parties
thereto, and even in a suit not directly instituted to ques-
tion the validity of said marriage, so long as it is essential
to the determination of the case. Domingo vs. Court of
Appeals (226 SCRA 572) has ruled that the filing of a
case for collection of sum of money anchored on a mar-
riage claimed to be valid does not necessitate a prior and
separate judicial declaration of nullity of marriage. A party
may just present testimonial or documentary evidence
that would prove that the marriage from which his or her
rights flow is in fact valid. Ninal vs. Bayadog (123 SCAD

58, 328 SCRA 499) is instructive:
“The Court may pass upon the validity of mar-

riage even in a suit not directly instituted to ques-
tion the same so long as it is essential to the deter-
mination of the case. This is without prejudice to
any issue that may arise in the case. When such
need arises, a final judgment of declaration of nul-
lity is necessary even if the purpose is other than to
remarry. x x x”
The burden of proof to show the nullity of the mar-

riage rests upon the party who claims it to be. The policy
adopted by the Constitution is to protect and strengthen
the family as the basic autonomous social institution and
marriage as the foundation of the family. Any doubt should
be resolved in favor of the validity of the marriage
(Hernandez vs. Court of Appeals, 320 SCRA 76).
Under the regime of the Civil Code of 1950, the Su-
preme Court, in Wiegel vs. Judge Sempio-Diy (143 SCRA
499), held that a subsequent marriage of one of the spouses
of a prior void marriage is itself (the subsequent mar-
riage) void if it is contracted before a judicial declaration
of nullity of the previous marriage. This pronouncement,
however, was abandoned in a later decision of the court
in Yap vs. Court of Appeals (145 SCRA 229). The Family
Code adopted the Wiegel rule.
The phrase “for purposes of remarriage” is not at all
insignificant. Void marriages, like void contracts, are in-
existent from the very beginning. It is only by way of
exception that the Family Code requires a judicial decla-
ration of nullity of the previous marriage before a subse-
quent marriage is contracted; without such declaration,
the validity and the full legal consequence of the subse-
quent marriage would itself be in similar jeopardy under
Article 53, in relation to Article 52, of the Family Code.
Indeed, the necessity of a judicial declaration of nullity of
Title I. Marriage
a void marriage for the purpose of remarriage should be

held to refer merely to cases where it can be said that a
marriage, at least ostensibly, has taken place. No such
judicial declaration of nullity should still be deemed es-
sential when the “marriage” for instance is between per-
sons of the same sex or when either or both parties had
not at all given consent to the “marriage.” It is reasonable
to assume that Article 40 of the Family Code has been
meant and intended to refer only to marriages declared
void under the provisions of Articles 35, 36, 37, 38 and 53
thereof.
The action or defense for the declaration of absolute
nullity of a marriage, like any other void contract, is
imprescriptible. The previous exception from this rule,
i.e., a marriage contracted before the effectivity of the
Family Code (August 3, 1988) where at the time of its
celebration a party thereto was psychologically incapaci-
tated to comply with the essential marital obligations of
marriage, in which case the action or defense for the
declaration of nullity of the marriage would prescribe 10
years after the effectivity of the Family Code (Art. 39, in
relation to Art. 26, Family Code, as amended by E.O. 227,
17 July 1987), has been deleted by Republic Act No. 8533.
Article 40 of the Family Code requires a prior judi-
cial declaration of nullity of a previous marriage before a
party may remarry. Even when a marriage is patently
void, there would still be a need to have a judicial decla-
ration of such fact before any party may marry again;
otherwise, the subsequent marriage would likewise be
void (Marbella-Bopis vs. Bopis, 336 SCRA 747). Parties
to a marriage should not be permitted to judge for them-
selves its nullity, for the same must be submitted to the
determination of competent courts. The Court has
counseled that he who contracts a second marriage be-
fore the judicial declaration of nullity of the first mar-
riage assumes the risk of being prosecuted for bigamy
(Beltran vs. People, 128 SCAD 242, 344 SCRA 106;
Landicho vs. Relova, 22 SCRA 731). The majority opinion
in Mercado vs. Tan (G.R. No. 137170, August 1, 2000)

makes that risk quite real.
In Mercado vs. Tan (supra.), the Court enunciates
that it is only a judicially decreed prior void marriage
which can constitute a defense against the criminal
charge. The ruling appears to be an expanded construc-
tion of Article 40 of the Family Code to the effect that
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. Unlike
a voidable marriage which legally exists until judicially
annulled (and therefore not a defense in bigamy if the
second marriage were contracted prior to the decree of
annulment), the complete nullity, however, of a previ-
ously contracted marriage, being a total nullity and inex-
istent, should be capable of being independently raised
by way of a defense in a criminal case for bigamy. There
appears to be no incongruence between this rule under
Article 349 of the Revised Penal Code, and each may be
applied within the respective spheres of governance.
In Tenebro vs. Court of Appeals, G.R. No. 150758, 18
February 2004, it would appear that Veronico Tenebro
was charged with bigamy for contracting, while still be-
ing married to Hilda Villareyes, a second marriage with
private complainant Leticia Ancajas. Tenebro argued that
since his second marriage with Ancajas had ultimately
been declared void ab initio on the ground of the latter’s
psychological incapacity, he should be acquitted for the
crime of bigamy. Would the absolute nullity of either the
first or the second marriage, prior to its judicial declara-
tion as being void, constitute a valid defense in a criminal
action for bigamy?
The offense of bigamy is committed when one con-
tracts “a second or subsequent marriage before the former
marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means
of a judgment rendered in the proper proceedings.’’ Bigamy
presupposes a valid prior marriage and a subsequent
Title I. Marriage
marriage, contracted during the subsistence of the prior

union, which would have been binding were it not for its
being bigamous.
Except for a void marriage on account of the psycho-
logical incapacity of a party or both parties to the mar-
riage under Article 36 of the Family Code (as so hereinaf-
ter explained), the answer to the question posed must be
in the affirmative. Void marriages are inexistent from
the very beginning, and no judicial decree is required to
establish their nullity. As early as the case of People vs.
Aragon this Court has underscored the fact that the Re-
vised Penal Code itself does not, unlike the rule then
prevailing in Spain, require the judicial declaration of
nullity of a prior void marriage before it can be raised by
way of a defense in a criminal case for bigamy. Had the
law contemplated otherwise, said the Court, “an express
provision to that effect would or should have been in-
serted in the law, (but that in) its absence, (the courts)
are bound by (the) rule of strict interpretation’’ of penal
statutes. In contrast to a voidable marriage which legally
exists until judicially annulled (and, therefore, not a
defense in a bigamy charge if the second marriage were
contracted prior to the decree of annulment) the complete
nullity, however, of a previously contracted marriage, be-
ing void ab initio and legally inexistent, can outrightly be
a defense in an indictment for bigamy.
It has been held that, by virtue of Article 40 of the
Family Code, a person may be convicted of bigamy al-
though the first marriage is ultimately adjudged void ab
initio if, at the time the second marriage is contracted,
there has as yet been no judicial declaration of nullity of
the prior marriage. There could be strong reservations to
this ruling. Article 40 of the Family Code reads:
“Article 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.’’
It is only “for purposes of remarriage’’ that the law

has expressed that the absolute nullity of the previous
marriage may be invoked “on the basis solely of a final
judgment declaring such previous marriage void.’’ It may
not be amiss to state that under the regime of the Civil
Code of 1950, the Supreme Court, in ‘Wiegel vs. Judge
Sempio-Diy,’ has held that a subsequent marriage of one
of the spouses of a prior void marriage is itself (the subse-
quent marriage) void if it were contracted before a judi-
cial declaration of nullity of the previous marriage. Al-
though this pronouncement has been abandoned in a
later decision of the court in Yap vs. Court of Appeals, the
Family Code, however, has seen it fit to adopt the Wiegel
rule but only for purposes of remarriage which is just to
say that the subsequent marriage shall itself be consid-
ered void. There is no clear indication to conclude that
the Family Code has amended or intended to amend the
Revised Penal Code or to abandon the settled and pre-
vailing jurisprudence on the matter.
A void marriage under Article 36 of the Family Code
is a class by itself. The provision has been taken from
Canon law primarily to reconcile the grounds for nullity
of marriage under civil law with those of church laws.
The “psychological incapacity to comply’’ with the essen-
tial marital obligations of the spouses is completely dis-
tinct from other grounds for nullity which are confined to
the essential or formal requisites of a marriage, such as
lack of legal capacity or disqualification of the contract-
ing parties, want of consent, absence of a marriage license,
or the like.
The effects of a marriage attended by psychological
incapacity of a party or the parties thereto may be said to
have the earmarks of a voidable, more than a void, mar-
riage, remaining to be valid until it is judicially decreed
to be a nullity. Thus, Article 54 of the Family Code con-
siders children conceived or born of such a void marriage
before its judicial declaration of nullity to be legitimate
similar to the rule on a voidable marriage. It is expected,
Title I. Marriage
even as it may be safe to assume, that the spouses’ rights

and obligations, property regime and successional rights
would continue unaffected, as if it were a voidable mar-
riage, unless and until the marriage is judicially declared
void for basically two reasons: First, psychological inca-
pacity, a newly-added ground for the nullity of a mar-
riage under the Family Code, breaches neither the essen-
tial nor the formal requisites of a valid marriages; and
second, unlike the other grounds for nullity of marriage
(i.e., relationship, minority of the parties, lack of license,
mistake in the identity of the parties) which are capable
of relatively easy demonstration, psychological incapac-
ity, however, being a mental state, may not so readily be
as evidence. It would have been logical for the Family
Code to consider such a marriage explicitly voidable rather
than void if it were not for an apparent attempt to make
it closely coincide with the Canon Law rules and nomen-
clature.
Indeed, a void marriage due to psychological inca-
pacity appears to merely differ from a voidable marriage
in that, unlike the latter, it is not convalidated by either
cohabitation or prescription. It might be recalled that
prior to Republic Act No. 8533, further amending the
Family Code, an action or defense of absolute nullity of
marriages falling under Article 36, celebrated before the
effectivity of the Code, could prescribe in ten years fol-
lowing the effectivity of the Family Code. The initial pro-
visions of the ten-year period of prescription seems to
betray a real consciousness by the framers that mar-
riages falling under Article 36 are truly meant to be inex-
istent.
Considerations, both logical and practical, would
point to the fact that a “void’’ marriage due to psychologi-
cal incapacity remains, for all intents and purposes, to be
binding and efficacious until judicially declared other-
wise. Without such marriage having first been declared a
nullity (or otherwise dissolved), a subsequent marriage
could constitute bigamy. Thus, a civil case questioning
the validity of the first marriage would not be a prejudi-

cial issue much in the same way that a civil case assail-
ing a prior “voidable’’ marriage (being valid until annulled)
would not be a prejudicial question to the prosecution of a
criminal offense for bigamy.
In cases where the second marriage is void on grounds
other than the existence of the first marriage, this Court
has declared in a line of cases that no crime of bigamy is
committed. The Court has explained that for a person to
be held guilty of bigamy, it must, even as it needs only, be
shown that the subsequent marriage has all the essential
elements of a valid marriage, were it not for the subsist-
ing first union. Hence, where it is established that the
second marriage has been contracted without the neces-
sary license and thus void, or that the accused is merely
forced to enter into the second (voidable) marriage, no
criminal liability for the crime of bigamy can attach. In
both and like instances, however, the lapse refers to the
elements required for contracting a valid marriage. If,
then, all the requisites for the perfection of the contract
of marriage, freely and voluntarily entered into, are shown
to be extant, the criminal liability for bigamy can
unassailably arise.
Since psychological incapacity, upon the other hand,
does not relate to an infirmity in the elements, either
essential or formal, in contacting a valid marriage, the
declaration of nullity subsequent to the bigamous mar-
riage due to that ground, without more, would be incon-
sequential in a criminal charge for bigamy. The judicial
declaration of nullity of a bigamous marriage on the
ground of psychological incapacity merely nullifies the
effects of the marriage but it does not negate the fact of
perfection of the bigamous marriage. Its subsequent dec-
laration of nullity dissolves the relationship of the spouses
but, being alien to the requisite conditions for the perfec-
tion of the marriage, the judgment of the court is no
defense on the part of the offender who has entered into
it.
Title I. Marriage
Art. 41. A marriage contracted by any person dur-

ing the subsistence of a previous marriage shall be
null and void, unless before the celebration of the sub-
sequent marriage, the prior spouse had been absent
for four consecutive years and the spouse present had
a well-founded belief that the absent spouse was al-
ready 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 ab-
sence 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 pro-
vided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect
of reappearance of the absent spouse. (83a)
Art. 42. The subsequent marriage referred to in
the preceding Article shall be automatically terminated
by the recording of the affidavit of reappearance of the
absent spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances
of reappearance shall be recorded in the civil registry
of the residence of the parties to the subsequent mar-
riage 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 be-
ing judicially determined in case such fact is disputed.
(n)
Art. 43. The termination of the subsequent mar-
riage referred to in the preceding Article shall produce
(1) The children of the subsequent marriage con-
ceived prior to its termination shall be considered le-
gitimate, and their custody and support in case of dis-
pute shall be decided by the court in a proper proceed-
ing;
(2) The absolute community of property or the
conjugal partnership, as the case may be, shall be dis-
solved 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 partner-
ship 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 chil-
dren, 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 design-
ation of the other spouse who acted in bad faith as
beneficiary in any insurance policy, even if such desig-
nation 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 succes-
sion. (n)
Art. 44. If both spouses of the subsequent mar-
riage acted in bad faith, said marriage shall be void ab
initio and all donations by reason of marriage and tes-
tamentary dispositions made by one in favor of the
other are revoked by operation of law. (n)
In order that a subsequent bigamous marriage may

exceptionally be considered valid under the foregoing pro-
visions, the following conditions are required to concur:
viz.: (a) the prior spouse of the contracting party must
have been absent for four consecutive years, or two years
where there has been danger of death under the circum-
stances stated in Article 391 of the Civil Code at the time
of disappearance; (b) the spouse present has a well-
founded belief that the absent spouse is already dead; and
(c) there is a judicial declaration of presumptive death of
the absentee, and for this purpose the spouse present can
institute a summary proceeding in court to ask for that
declaration. Unlike the old rule that did not necessitate a
judicial declaration of absence (see Jones vs. Hortiguela,
64 Phil. 179), the Family Code requires a judicial decla-
Title I. Marriage
ration of presumptive death (Armas vs. Calisterio, 330

SCRA 201). This condition is consistent and in consonance
with the requirement of judicial intervention such as in
other cases of subsequent marriages (see Art. 41, in rela-
tion to Art. 40, Family Code).
The good faith or bad faith of the other contracting
party to the subsequent marriage is not as primordially
consequential as that of the spouse present (see Art. 41,
Family Code; Lapuz vs. Eufemio, 43 SCRA 177) although
where both parties have acted in bad faith, the subse-
quent marriage is, by law, albeit a superfluity, explicitly
declared void (Art. 44, Family Code).
Where both parties have acted in bad faith, not only
is the marriage considered void ab initio but donations
propter nuptias and testamentary dispositions thereto-
fore made are deemed revoked by operation of law. (Art.
44, Family Code). A party who has acted in bad faith is
disqualified to inherit by testate or intestate succession
from the innocent spouse (Art. 43, Family Code).
The subsequent bigamous marriage under Article 41
of the Code remains valid despite the reappearance of the
absentee spouse unless and until such fact of reappear-
ance is made in a sworn statement which must then be
recorded in the civil registry of the residence of the par-
ties to the subsequent marriage, at the instance of any
interested person, with due notice to them. Thenceforth,
the subsequent marriage is “automatically terminated”
unless there is a previous judgment annulling or declar-
ing the first marriage a nullity. The fact of reappearance
of the absentee spouse may, however, be contested judi-
cially (see Art. 42, Family Code). The law does not, in any
event, consider as adversely affected the prior marriage;
under the status quo rule, however, until a valid subse-
quent marriage is terminated, the former, not the latter,
should be respected more than the prior marriage, the
disturbance to the circumstances of the parties being
brought about not by the celebration of the subsequent
marriage but by the reappearance of the absentee spouse.
Effects of termination of Subsequent Marriage

The termination of the subsequent marriage severs
the vinculum juris and produces the following effects:
1. The children of the subsequent marriage
conceived prior to its termination are considered legi-
timate, and their custody and support in case of dis-
pute shall be decided by the court in a proper pro-
ceeding;
2. The absolute community of property or the
conjugal partnership, as the case may be, is dis-
solved 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 part-
nership 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 remain
valid but if the donee contracted the marriage in bad
faith, such donations are deemed revoked by opera-
tion of law;
4. The innocent spouse may revoke the desig-
nation of the other spouse who has acted in bad faith
as a beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
5. The spouse who has contracted the subse-
quent marriage in bad faith shall be disqualified to
inherit from the innocent spouse both by testate and
intestate succession.
The termination of the subsequent marriage would
qualify the single spouse to remarry without having to
seek the declaration of nullity of the subsequent marriage.
Art. 45. The marriage may be annulled for any of

the following causes, existing at the time of the mar-
riage:
Title I. 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, guard-
ian or person having substitute parental authority over
the party, in that order, unless after attaining the age of
twenty-one, such party freely cohabited with the other
and both lived together as husband and wife;
(2) That either party was of unsound mind, un-
less such party, after coming to reason, freely cohab-
ited with the other husband and wife;
by fraud, unless such party afterwards, with full
knowledge of facts constituting the fraud, freely co-
habited with the other as husband and wife;
by force, intimidation or undue influence, unless the
same having disappeared or ceased, such party there-
after 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 sexu-
ally-transmissible disease found to be serious and ap-
pears to be incurable. (85a)
Art. 46. Any of the following circumstances shall
constitute fraud referred to in Number 3 of the prece-
ding 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
other than her husband;
(3) Concealment of a sexually-transmissible dis-
ease, regardless of its nature, existing at the time of
the marriage; or
(4) Concealment of drug addiction, habitual al-

coholism, homosexuality or lesbianism existing at the
time of the marriage.
No other misrepresentation or deceit as to char-
acter, health, rank, fortune or chastity shall constitute
such fraud as will give grounds for action for the an-
nulment of marriage. (86a)
In addition to the grounds for the annulment of mar-

riage expressed by the 1950 Civil Code (absence of paren-
tal consent when required; vices of consent to the mar-
riage such as fraud, force and intimidation; and physical
incapacity of entering into the marriage), the Family Code
has included the fact of affliction by either party with a
sexually-transmitted disease which is serious and incur-
able. Fraud as a ground for annulment has been expanded
to also embrace (besides non-disclosure of previous con-
viction of a crime involving moral turpitude [now regard-
less of the penalty imposed] and concealment by the wife
of pregnancy by another man) the concealment of a sexu-
ally-transmitted disease, regardless of its nature, as well
as the concealment of drug addiction, habitual alcohol-
ism, homosexuality or lesbianism, by either party at the
time of the marriage. The Family Code has deleted, within
the meaning of fraud, misrepresentation as to the iden-
tity of a contracting party; instead, the law now considers
as void a marriage that which is “contracted through
mistake of one contracting party as to the identity (e.g.,
look-alike) of the other” (see Arts. 45 and 446, in relation
to Art. 35, Family Code).
Lack of Parental Consent

Where parental consent is required but not given,
the marriage is voidable. Parental consent obtained after
the marriage does not convalidate the marriage. The only
modes of convalidation recognized by law of voidable
marriages are by prescription and by cohabitation (see
discussions on Art. 14; also Arts. 45 and 47, Family Code).
Title I. Marriage
Marriage and its incidents, other than in allowing the

parties to fix their property regime, are governed by law
and not by the will of the parties or any of them.
Insanity
Insanity, as a vice of consent in marriage, should
exist at the time of marriage. There must be, to be of
“unsound mind,” a manifestation, in language or con-
duct, of disease or defect of the brain, or more or less
permanently diseased or disordered condition of the men-
tality, functional or organic, characterized by perversion,
inhibition, of disordered function of the sensory or of the
intellective faculties, or by impaired or disordered voli-
tion (see Engle vs. Doe, 47 Phil. 753; see also Menciano
vs. Neri San Jose, 89 Phil. 63). If, however, the mental
disorder is of such degree and permanence as to qualify it
to one of “psychological incapacity” within the meaning
of Article 36 of the Code, then the marriage would not
merely be voidable but void ab initio.
Impotency
Impotency indicates a physical incapability of a party
in consummating the marriage with the other as distin-
guished from sterility (not a ground for annulling a mar-
riage) which is merely an inability to procreate (see
Menciano vs. Neri San Jose, 89 Phil. 63).
Force and Intimidation

Force and intimidation, as vices of consent in mar-
riage, have not been defined; accordingly, the codal defi-
nition of said terms under the Civil Code could still be
controlling. There is violence, under the Civil Code con-
cept, when in order to wrest consent, serious or irresist-
ible force is employed. Intimidation exists when one of
the contracting parties is compelled by a reasonable and
well-grounded fear of an imminent and grave evil upon
his person or property, or upon the person or property of
his spouse, descendants or ascendants, to give his con-
sent. In determining the degree of the intimidation, the

age, sex and condition of the person shall be borne in
mind. A threat, however, to enforce one’s claim through
competent authority, if the claim is just or legal, does not
vitiate consent (Art. 1335, Civil Code).
Fraud
The enumeration of the circumstances of fraud un-
der Article 46 are exclusive and restrictive (see Anaya vs.
Palaroan, 36 SCRA 97). It has been held that one can
hardly seek for an annulment on the ground of conceal-
ment of pregnancy where the woman at the time of the
marriage is in an advanced state of family way (Buccat
vs. Buccat, 72 Phil. 19; Aquino vs. Delizo, 109 Phil. 21).
The concealment of a sexually-transmitted disease
constitutes fraud “regardless of its nature.” If such fact is
not concealed, the marriage can still be annulled under
Article 45, paragraph (6), of the Family Code if the sexu-
ally-transmitted disease is found to be serious and ap-
pears to be incurable.
Art. 47. The action for annulment of marriage must

be filed by the following persons and within the peri-
ods indicated herein:
45, by the party whose parent or guardian did not give
his or her consent, within five years after attaining the
age of twenty-one; or by the parent or guardian or
person having legal charge of the minor, at any time
before such party reached the age of twenty-one;
45, by the sane spouse who had no knowledge of the
other’s insanity; or by any relative, guardian or person
having legal charge of the insane, at any time before
the death of either party; or by the insane spouse dur-
ing a lucid interval or after regaining sanity;
45, by the injured party, within five years after the dis-
covery of the fraud;
Title I. Marriage

45, by the injured party, within five years from the time
the force, intimidation or undue influence disappeared
or ceased;
(5) For causes mentioned in numbers 5 and 6 of
Article 45, by the injured party, within five years after
the marriage. (87a)
The Family Code has modified the provisions of the

Civil Code on the prescriptive periods in bringing an ac-
tion for the annulment of voidable marriages. A voidable
marriage has all the effects of a valid marriage until it is
annulled. Unless such marriage is earlier convalidated
by cohabitation in proper cases, an action for annulment
can prosper only if it is commenced within the prescrip-
tive periods prescribed by Article 47 of the Family Code.
Art. 48. In all cases of annulment or declarations

of absolute nullity of marriage, the Court shall order
the prosecuting attorney or fiscal assigned to it to ap-
pear 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 para-
graph, no judgment shall be based upon a stipulation
of facts or confession of judgment. (88a)
Art. 49. During the pendency of the action and in
the absence of adequate provisions in a written agree-
ment between the spouses, the Court shall provide for
the support of the spouses and the custody and sup-
port of their common children. The court shall give
paramount consideration to the moral and material
welfare of said children and their choice of the parent
with whom they wish to remain as provided for in Title
IX. It shall also provide for appropriate visitation rights
of the other parent. (n)
In order to ensure against improperly grounded judg-

ments of annulment or declaration of nullity of marriages,
the law (a) directs the court to require the prosecuting
attorney or fiscal assigned to it to enter his appearance

on behalf of the State and to take steps to prevent possi-
ble collusion between the parties and the fabrication or
suppression of evidence and (b) prohibits judgments based
on stipulation of facts or confession of judgments. The
appearance of a counsel for the State, it may be observed,
is not limited to cases of non-appearance of the defend-
ant. A confession of judgment may not necessarily result
in the denial of an annulment or declaration of nullity as
long as proof satisfactory to establish the grounds for
such decree is independently and properly adduced in
evidence.
The court shall issue orders to provide for support
pendente lite of the spouses and the common children as
well as for the latter’s custody and the parent’s visitation
rights.
Art. 50. The effects provided for in paragraphs (2),

(3), (4) and (5) of Article 43 and in Article 44 shall also
apply in proper cases to marriages which are declared
void ab initio or annulled by final judgment under Arti-
cles 40 and 45.
The final judgment in such cases shall provide
for the liquidation, partition and distribution of the prop-
erties of the spouses, the custody and support of the
common children, and the delivery of their presump-
tive legitimes, unless such matters had been adjudi-
cated in previous judicial proceedings.
All creditors of the spouses as well as of the ab-
solute 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 accord-
ance with the provisions of Articles 102 and 129.
Art. 51. In said partition, the value of the pre-
sumptive 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,
Title I. Marriage
unless the parties, by mutual agreement judicially ap-

proved, had already provided for such matters.
The children or their guardian, or the trustee of
their property, may ask for the enforcement of the judg-
ment.
The delivery of the presumptive legitimes herein
prescribed shall in no way prejudice the ultimate suc-
cessional rights of the children accruing upon the death
of either or both of the parents; but the value of the prop-
erties already received under the decree of annulment
or absolute nullity shall be considered as advances on
their legitime. (n)
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 complying with the requirements of the im-
mediately preceding Article; otherwise, the subsequent
marriage shall be null and void.
Art. 54. Children conceived or born before the
judgment of annulment or absolute nullity of the mar-
riage 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.
The effects of annulment or declaration of nullity of

a marriage are, by and large, the same as those that
follow the termination of a subsequent marriage under
Article 43 (supra.) of the Code.
a. On the Children. — Children conceived or born
of voidable marriages before the decree of annulment are
deemed legitimate; children conceived thereafter are con-
sidered illegitimate (see Art. 54, Family Code).
The court, in its final judgment annulling the mar-
riage, shall provide for the proper custody of the common
children [even during the pendency of the case, the court

must by then already address the question of interim
child custody (Art. 49, Family Code)], and, in so doing, it
shall consider the best interest of the child (see Unson III
vs. Navarro, 101 SCRA 183; Luna vs. Intermediate Ap-
pellate Court, 137 SCRA 7) and give paramount consid-
eration to his moral and material welfare (Art. 49, Fam-
ily Code). The choice of the child over seven years of age
shall be taken into account unless the parent chosen is
unfit but a child of less than seven years shall not be
separated from the mother unless the Court finds com-
pelling reasons to order otherwise (Art. 213, Family Code).
The decree of annulment shall also provide for the
delivery in cash, property or sound securities of the pre-
sumptive legitimes of the common children computed as
of the date of the final judgment, unless the parties, by
mutual agreement judicially approved, have already pro-
vided therefor. The delivery of the presumptive legitime
is without prejudice to the children’s ultimate succes-
sional rights upon the death of either or both parents but
the value of what has thus already been delivered under
the decree of annulment or absolute nullity shall be con-
sidered as advances on the actual legitime.
b. On Support. — During the proceeding for an-
nulment, the court, in the absence of a written agree-
ment between the spouses, shall provide for the support
of the spouses and their children (Art. 49, Family Code),
from the community property principally but after the
final judgment of annulment, unlike in the case of legal
separation where the marriage tie is preserved, the obli-
gation of mutual support between spouses ceases (Art.
198, Family Code). The court shall, however, provide for
the continued support of the common children (Art. 50,
Family Code).
c. On Property Relationship. — The absolute com-
munity of property or the conjugal partnership of gains,
as the case may be, shall be dissolved and liquidated
upon the decree of annulment. The spouse who has con-
Title I. Marriage
tracted the marriage in bad faith shall be made to suffer

thusly: (a) a forfeiture of his or her share of the commu-
nity property or conjugal partnership profits in favor of
the common children, or the children of the guilty spouse
by a previous marriage or the innocent spouse, in that
order; (b) revocation by operation of law of donations to
said guilty spouse by reason of marriage (but see Art. 86,
infra); (c) his or her designation as beneficiary in insur-
ance, although stipulated to be irrevocable in the policy,
may be revoked by the innocent spouse; and (d) dis-
qualification of such guilty spouse from inheriting,
whether by testate or intestate succession, from the inno-
cent spouse (Art. 50, in relation to Art. 43, Family Code).
If both spouses are guilty of bad faith, all donations by
reason of marriage and testamentary dispositions (there-
tofore but not thereafter) made by one in favor of the
other are revoked by operation of law (Art. 50, in relation
to Art. 44, Family Code).
d. On the Marriage Tie. — The marriage tie is
severed upon the finality of a judgment of annulment.
Either of the former spouses, following a decree of
annulment or absolute nullity, may again contract
marriage after complying with the requirements of the
partition and distribution of their property, including the
delivery of the children’s presumptive legitimes and the
recording thereof (to affect third persons) with the appro-
priate civil registries (Art. 53, in relation to Art. 52, Fam-
ily Code). Non-compliance with these requirements
renders the subsequent marriage void ab initio (Art. 53,
Family Code) but children conceived or born of such
marriage are considered legitimate (Art. 54, Family Code).
The Family Code has deleted the provisions of Arti-
cle 91 of the Civil Code that allow the award of damages
in favor of the innocent spouse in certain instances when
a marriage is judicially annulled or declared void. The
apparent intendment of the law is to allow the laws and
principles of general application to instead govern.
288 CIVIL LAW
TITLE II. LEGAL SEPARATION
Art. 55. A petition for legal separation may be filed

on any of the following grounds:
1. Repeated physical violence or grossly abu-
sive conduct directed against the petitioner, a common
child, or a child of the petitioner;
2. Physical violence or moral pressure to com-
pel the petitioner to change religious or political affilia-
tion;
3. Attempt of respondent to corrupt or induce
the petitioner, a common child, or a child of the peti-
tioner, 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. Lesbiniasm or homosexuality of the
respondent;
7. Contracting by the respondent of a subse-
quent bigamous marriage, whether in the Philippines
or abroad;
8. Sexual infidelity or perversion;
9. Attempt by the respondent against the life of
the petitioner; or
10. Abandonment of petitioner by respondent
without justifiable cause for more than one year.
For purposes of this Article, the term “child” shall
include a child by nature or by adoption. (97a)
288
Art. 55 PERSONS 289
Title II. Legal Separation
During the Spanish regime, absolute divorce was

not recognized; the Siete Partidas merely provided for
relative divorce. Later, during the American regime, Act
No. 2710 of the Philippine Legislature authorized abso-
lute divorce solely on the ground of conviction for adul-
tery on the part of the wife or concubinage on the part of
the husband. During the Japanese occupation, Executive
Order No. 141 was promulgated, liberalizing the grounds
for absolute divorce, and it was in force until its repeal by
General Douglas MacArthur upon the liberation of the
Philippines that thereby reinstated Act No. 2710. This
law, in turn, was implicitly repealed by the Civil Code of
the Philippines which only recognized legal separation or
relative divorce under articles 97-108, Title IV, thereof.
The Family Code has retained the Civil Code system of
legal separation but expanded the grounds therefor.
Legal separation or relative divorce (a mensa et thoro)
entitles the spouses to live separately from each other
but, unlike absolute divorce, the marriage bond (a vin-
culo matrimonii) is not severed (Art. 106, Civil Code; see
also Tenchavez vs. Escaño, 15 SCRA 355). Legal separa-
tion must be decreed by a court; an extrajudicial separa-
tion agreement has been held to be illegal and immoral
and thus void ab initio (Panganiban vs. Borromeo, 58
Phil. 367). This is not to say, however, that the spouses
may be compelled, either by legal or court mandate, to
live together against their will (Arroyo vs. Vasquez de
Arroyo, 42 Phil. 54). In case a spouse should without
legal reason refuse to live with the other, the aggrieved
party may be entitled to such appropriate relief such as
recovery of damages (Tenchavez vs. Escaño, 15 SCRA
355) or a denial of support to the guilty party.
Grounds
The Civil Code confined the grounds for legal
separation to only (1) adultery on the part of the wife or
concubinage on the part the husband and (2) an attempt
by one spouse against the life of the other (Art. 97, Civil
Code). The Family Code has introduced additional grounds

and replaced “adultery” and “concubinage” with “sexual
infidelity” on the part of either of the spouses. Drug ad-
diction, habitual alcoholism, lesbianism and homo-sexu-
ality, if existing and concealed at the time the marriage is
contracted would constitute grounds for annulment; but
if such circumstances should occur only during the mar-
riage, the same are merely grounds for legal separation.
Where such circumstances exist at the time of the mar-
riage but not concealed to the other party, the latter may
still seek legal separation, but not annulment, if the
grounds still persist after the marriage.
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 par-
ties in the commission of the offense or act constitut-
ing the ground for legal separation;
(4) Where both parties have given ground for
legal separation;
(5) Where there is collusion between the parties
to obtain the decree of legal separation; or
(6) Where the action is barred by prescription.
(100a)
The defenses against a petition for legal separation

include consent to the commission or condonation of the
offense or act complained of by the aggrieved spouse;
connivance between the spouses in the commission of the
offense or act invoked as the ground for the petition;
collusion on the part of said spouses in order to obtain the
decree of legal separation; prescription caused by the pe-
titioner’s failure to bring the action on time, and recrimi-
nation, i.e., where both parties are offenders.
Art. 57. An action for legal separation shall be

filed within five years from the time of the occurrence
of the cause. (102a)
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)
Art. 59. No legal separation may be decreed unless
the court has taken steps towards the reconciliation of
the spouses and is fully satisfied, despite such efforts,
that reconciliation is highly improbable. (n)
Art. 60. No decree of legal separation shall be
based upon a stipulation of facts or a confession of
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)
The foregoing provisions are substantially the same

as those found in the 1950 Civil Code except that the
prescriptive period for the filing of the petition for legal
separation has been confined to five (5) years from the
time of the occurrence of the cause therefor (Art. 57,
Family Code). Under the Civil Code, the action was
required to be filed within one (1) year from the date the
plaintiff became cognizant of the cause but not beyond
five (5) years from the date the cause occurred (Art. 102,
Civil Code).
The procedure, briefly, for legal separation may be
stated as follows:
(a) Filing of a petition for legal separation with the
court of competent jurisdiction. — The action for legal
separation is filed by the innocent spouse within the pres-
criptive period of five (5) years (Art. 57, Family Code).
(b) Responsive pleading, if the petition is opposed,
is filed. — In case of non-appearance of the defendant, or
where no opposition is made, the court shall require the
prosecuting attorney or fiscal assigned to it to take steps

to prevent collusion between the parties and the
suppression or fabrication of evidence (Art. 60, Family
Code).
(c) Hearing. — The case shall not be tried before
six (6) months shall have elapsed from the time the
petition is filed in order to afford a “cooling-off period.”
The court shall also take steps toward getting the parties
to reconcile (Art. 59, Family Code).
(d) Decision. — A decision, either granting or
denying a decree for legal separation, is rendered. No
decree of legal separation shall be granted. —
(i) Unless the court is fully satisfied that
reconciliation is highly improbable; and
(ii) The evidence, independently of any stipu-
lation of facts or a confession of judgment, amply
supports and justifies that decree (Arts. 59 and 60,
Family Code).
A. During the proceedings for legal separation. —

Art. 61. After the filing of the petition for legal
separation, the spouses shall be entitled to live
separately from each other.
The court, in the absence of a written agreement
between the spouses, shall designate either of them or
a third person to administer the absolute community
or conjugal partnership property. The administrator
appointed by the court shall have the same powers
and duties as those of a guardian under the Rules of
Court. (104a)
Art. 62. During the pendency of the action for le-
gal separation, the provisions of Article 49 shall like-
wise apply to the support of the spouses and the cus-
tody and support of the common children. (105a)
After the filing of the petition for legal separation

and during its pendency, the spouses shall be entitled to
live separately from each other. The parties may provide

in writing for the administration of the absolute com-
munity or conjugal partnership property by either of them
or a third person. In the absence of such agreement, the
court shall appoint an administrator (Art. 61, Family
Code). The court shall also provide for the support and
custody of the children in the same manner as it would
during the pendency of proceedings in an annulment of
marriage under Article 49, in relation to Article 62, of the
Family Code (supra.).
B. After the decree of legal separation. —
Art. 63. The decree of legal separation shall have

(1) The spouses shall be entitled to live sepa-
rately from each other, but the marriage bonds shall
not be severed;
(2) The absolute community or the conjugal part-
nership shall be dissolved and liquidated but the of-
fending 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 ac-
cordance with the provisions of Article 43(2);
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 of-
fending spouse made in the will of the innocent spouse
shall be revoked by operation of law. (106a)
Art. 64. After the finality of the decree of legal
separation, the innocent spouse may revoke the dona-
tions made by him or by her in favor of the offending
spouse, as well as the designation of the latter as a
beneficiary in any insurance policy, even if such desig-
nation 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 revoca-
tion 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 Arti-
cle must be brought within five (5) years from the time
the decree of legal separation has become final. (107a)
The decree of legal separation does not break the

marriage tie; thus, the spouses may not remarry but would
merely be entitled to live separately.
The custody of the minor children is awarded to the
innocent spouse subject, however, to the provisions of
Article 213 of the Family Code that mandates the court
to consider the interest and welfare of the child, espe-
cially the latter’s own choice if over seven years of age
unless the parent chosen is unfit. A child of less than
seven years shall stay with the mother unless the court
finds compelling reasons to order otherwise (Art. 63, in
The property relationship is dissolved and liquidated
in the same manner as it would be dissolved and liqui-
dated upon the termination of marriage under Article 43
of the Code (supra.). The offending spouse is disqualified
from becoming an intestate heir of the innocent spouse,
and testamentary provisions theretofore made in the will
of the latter in favor of the guilty spouse are deemed re-
voked by operation of law. The law appears not to prevent
the innocent spouse from instituting after the decree of
legal separation the offending spouse as a testate heir,
unlike the rule in the declaration of nullity or annulment
of marriage (see Art. 43, in relation to Art. 50, Family
Code).
Donations made prior to the decree of legal separa-
tion made to the offending spouse by the innocent spouse
are revocable by the latter, without prejudice, however, to

supervening rights of third persons which have been reg-
istered in good faith before the recording of the revoca-
tion in the proper registry of property. The action to re-
voke the donations prescribes five years after the finality
of the decree of legal separation. To be sure, a judicial
action to effect the revocation should be filed within the
prescriptive period in the event of an opposition by the
guilty spouse of the act of revocation by the innocent
spouse. The designation by the innocent spouse of the
offending spouse in an insurance policy, although stipu-
lated to be irrevocable, may still be revoked by the former.
The revocation takes effect upon the written notification
thereof to the insured (Arts. 62 and 63, Family Code) and
to the insurer in order to bind the latter.
The court may order that the guilty spouse give sup-
port to the innocent spouse, unlike in the annulment of
marriage (see Art. 198, Family Code) where the marriage
tie is severed.
Art. 65. If the spouses should reconcile, a corre-

sponding joint manifestation under oath duly signed by
them shall be filed with the court in the same proceed-
ing for legal separation. (n)
Art. 66. The reconciliation referred to in the
preceding Article shall have the following conse-
quences:
(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 prop-

erty 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 hear-
ing, the court shall, in its order, take measures to pro-
tect the interest of creditors and such shall be recorded
in the proper registries of property.
The recording of the order in the registries of prop-
erty shall not prejudice any creditor not listed or not
notified, unless the debtor-spouse has sufficient sepa-
rate properties to satisfy the creditor’s claim. (195a,
108a)
The then 1950 Civil Code states that reconciliation

stops the proceedings for, or rescinds a decree of, legal
separation and revives the conjugal partnership of gains
(Art. 108 and Art. 195, Civil Code) which creates
uncertainty, at least to the public, if, in fact, there has
been such reconciliation and, in the affirmative, its efficacy
as to third persons. The Family Code now requires the
spouses to jointly sign a sworn manifestation of their
reconciliation which shall be filed with the court in the
same proceedings for legal separation (Art. 65, Family
Code). The court then orders the legal separation pro-
ceedings terminated or the decree, if already issued, set
aside. The separation of property and any forfeiture shall
subsist unless the spouses agree to revive their former
property regime (Art. 66, Family Code). The agreement
to revive the property regime shall contain, under oath,
the stipulations referred to in Article 67 (supra.) and be
filed with the court with copies to the creditors. The court,
after hearing, shall issue an order conformably with the
agreement but providing for such safeguards as would
protect the interest of creditors. The order of the court
shall be recorded in the proper registries of property which
will not, however, prejudice creditors not notified unless
the spouse-debtor has sufficient separate property to sat-
isfy their claims.
298 CIVIL LAW
TITLE III. RIGHTS AND OBLIGATIONS

Art. 68. The husband and wife are obliged to live

together, observe mutual love, respect and fidelity, and
render mutual help and support. (109a)
The law expresses the fundamental covenants of

marriage which the parties must uphold. The husband
and the wife are obliged to live together, to remain faith-
ful in their love and respect for each other, and to render
mutual help and support.
Art. 69. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall
decide.
The court may exempt one spouse from living with
the other if the latter should live abroad or there are
other valid and compelling reasons for the exemption.
However, such exemption shall not apply if the same
is not compatible with the solidarity of the family. (110a)
Art. 70. The spouses are jointly responsible for
the support of the family. The expenses for such sup-
port and other conjugal obligations shall be paid from
the community property and, in the absence thereof,
from the income or fruits of their separate properties.
In case of insufficiency or absence of said income or
fruits, such obligations shall be satisfied from their
separate properties. (111a)
Art. 71. The management of the household shall
be the right and duty of both spouses. The expenses
298
Title III. Rights and Obligations Between Husband and Wife
for such management shall be paid in accordance with

the provisions of Article 70. (115a)
Art. 72. When one of the spouses neglects his or
her duties to the conjugal union or commits acts which
tend to bring danger, dishonor or injury to the other or
to the family, the aggrieved party may apply to the
court for relief. (116a)
Art. 73. Either spouse may exercise any legitimate
profession, occupation, business or activity without the
consent of the other. The latter may object only on
valid, serious and moral grounds.
In case of disagreement, the court shall decide
whether or not:
(1) The objection is proper, and
(2) Benefit has accrued to the family prior to the
objection or thereafter. If the benefit accrued prior to
the objection, the resulting obligation shall be enforced
against the separate property of the spouse who has
not obtained consent.
The foregoing provisions shall not prejudice the
rights of creditors who acted in good faith. (117a)
In carrying out the constitutional mandate that there

should be “equality before the law of women and men”
(Art. II, Sec. 14, 1987 Constitution), the Family Code pro-
vides that the husband and the wife jointly —
(a) fix the family domicile;
(b) are responsible for the support of the family;
and
(c) manage the household;
and either spouse may exercise any legitimate profes-
sion, occupation, business or activity, without the con-
sent of the other, subject only to the legal provisos ex-
pressed in each of the above cases. In case of disagree-
ment on those matters, the court shall be called upon to

decide the controversy.
In a case particularly involving the family domicile,
the court, under the law, may exempt a spouse from living
with the other if the latter should live abroad or there are
other valid and compelling reasons for the exemption,
unless such exemption “is not compatible with the
solidarity of the family” (Art. 69, second paragraph, Family
Code). Under the regime of the 1950 Civil Code, the court
could exempt the wife from living with the husband (who
then had the authority to fix the family domicile) if he
should live abroad unless in the service of the Republic
(Art. 109, Civil Code); or if he has maltreated the wife
(Arroyo vs. Vasquez de Arroyo, 42 Phil. 54), demanded
immoral practices (Goitia vs. Campos Rueda, 35 Phil.
252), or committed repeated acts of infidelity (Dadivas de
Villanueva vs. Villanueva, 54 Phil. 92). These rules are
not necessarily opposed to, but may, in fact, be illustra-
tive applications of the provisions of the Family Code.
The Family Code did not incorporate the provisions
of Article 113 of the Civil Code requiring the husband to
be joined as a party in suits filed by or against the wife.
The matter is then left for determination in accordance
with the applicable rules of procedure governing proper
parties in interest in court litigations.
There appears to be a clerical error in paragraph (2)
of Article 73, for it would be more logical to assume that it
is when one of the spouses contracted an obligation after
(not “prior to”) the objection of the other spouse that such
obligation should be enforced against the separate prop-
erty of the contracting spouse.
Economic sanctions, such as an award of damages or
denial of support, may be sought by an aggrieved spouse
(see Art. 100, Family Code; Tenchavez vs. Escaño, 15
SCRA 355). Consortium by the spouses, however, may
still not be forced upon by legal or court mandate on
pains of contempt of court or criminal liability (see
Title III. Rights and Obligations Between Husband and Wife
Ramirez-Cuaderno vs. Cuaderno, 12 SCRA 505; Lacson

vs. San Jose-Lacson, 24 SCRA 837). Marital rights in-
cluding coverture and living in conjugal dwelling may
not be enforced by the extraordinary writ of habeas cor-
pus (Lusorio vs. Bildner, 126 SCAD 508, 332 SCRA 169).
302 CIVIL LAW
TITLE IV. PROPERTY RELATIONS

Chapter 1 — General Provisions
Art. 74. The property relations between husband

(1) By marriage settlements executed before the
marriage;
(2) By the provisions of this Code; and
(3) By the local customs. (118)
Marriage is imbued with public interest and of ut-

most concern to society and government; thus, its nature,
consequences and incidents are governed by law rather
than by the will of the parties. The law, however, grants,
albeit with certain constraints, to the prospective spouses
freedom in the choice of their property regime during the
marriage.
Art. 75. The future spouses may, in the marriage

settlements, agree upon the regime of absolute com-
munity, conjugal partnerhip of gains, complete separa-
tion of property, or any other regime. In the absence of
marriage settlement, or when the regime agreed upon
is void, the system of absolute community of property
as established in this Code shall govern. (119a)
Art. 76. In order that any modification in the mar-
riage settlements may be valid, it must be made before
the celebration of the marriage, subject to the provi-
sions of Articles 66, 67, 128, 135 and 136. (121)
302
Title IV. Property Relations Between Husband and Wife
Art. 77. The marriage settlements and any modifi-

cation thereof shall be in writing, signed by the parties
and executed before the celebration of the marriage.
They shall not prejudice third person unless they are
registered in the local civil registry where the marriage
contract is recorded as well as in the proper registries
of property. (122a)
Art. 78. A minor who according to law may con-
tract marriage may also enter into marriage settlements,
but they shall be valid only if the persons designated
in Article 14 to give consent to the marriage are made
parties to the agreement, subject to the provisions of
Title IX of this Code. (120a)
Art. 79. For the validity of any marriage settle-
ments executed by a person upon whom a sentence of
civil interdiction has been pronounced or who is sub-
ject to any other disability, it shall be indispensable for
the guardian appointed by a competent court to be
made a party thereto. (123a)
Art. 80. In the absence of a contrary stipulation in
the 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 con-
tracts affecting property not situated in the Philippines
and executed in the country where the property is lo-
cated; and
(3) With respect to the extrinsic validity of
contracts entered into in the Philippines but affect-
ing property situated in a foreign country whose laws
require different formalities for its extrinsic validity.
(124a)
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 cel-
ebration of the marriage shall be valid. (125a)
The spouses may agree upon the property regime

that they may wish themselves to be governed by in their
property relations during the marriage. The marriage
settlement may provide for, but not limited to, an abso-
lute or relative community, or upon a complete separa-
tion, of property. In the absence of a valid ante-nuptial
agreement, the provisions of the Family Code on the sys-
tem of absolute community of property shall govern their
property relations (Art. 75, Family Code). A community
property regime, whether absolute or relative, remains
in force and effect except upon a decree of legal separa-
tion (Art. 63, Family Code) or until the marriage is dis-
solved or a judicial separation of property is approved by
the courts (Arts. 99 and 126, Family Code).
In order to be valid, a marriage settlement, or any
modification or change thereof, must be executed before
the celebration of the marriage. Marriage settlements
executed during the marriage are void (see Quintana vs.
Lerma, 24 Phil. 285).
Article 78 of the Family Code provides that in the
case of minors, marriage settlements shall be valid only
if the persons designated by law (see Art. 14, Family
Code) to give consent to the marriage are made parties to
the ante-nuptial agreement. It would appear that this
provision no longer holds with the enactment of Republic
Act No. 6809 reducing the age of majority from twenty-
one (21) to eighteen (18) years and terminating parental
authority over the person and property of the child. Arti-
cle 236 of the Code, as thus amended, now reads:
“Art. 236. Emancipation shall terminate paren-
tal authority over the person and property of the
child who shall then be qualified and responsible for
all acts of civil life, save the exceptions established
by existing laws in special cases.
“Contracting marriage shall require parental

consent until the age of twenty-one.
“Nothing in this Code shall be construed to dero-
gate from the duty or responsibility of parents and
guardians for children and wards below twenty-one
years of age mentioned in the second and third para-
graphs of Article 2180 of the Civil Code.”
The exclusionary clauses in the above article do not
include provisions of the Family Code to the contrary
except in the case of “contracting marriage by a party
below twenty-one (21) years of age” which still requires
parental consent.
In the case of a person undergoing the penalty of
civil interdiction or suffering from any other disability
(incapacity), it is indispensable that a court-appointed
guardian be made a party to the agreement (see Art. 79,
Family Code).
The marriage settlement must be in writing and
signed by the parties but in order to affect third persons,
the same should be in a public instrument (insofar as
real property is concerned under Art. 709, in relation to
Art. 1358, of the Civil Code) and recorded in the local civil
registry where the marriage contract is recorded as well
as in the registries of property where real property is
located (see Art. 77, Family Code).
The non-celebration of the marriage shall have the
following effects on the marriage settlement, viz.:
(1) The property regime, donations propter nuptias,
and other stipulation in consideration of the marriage
are rendered void; but
(2) Stipulations that do not depend on the celebra-
tion of marriage shall be valid.
Donations by reason of marriage between the pro-
spective spouses which are not contained in marriage
settlements are only deemed revocable (Art. 86, Family
Code; see discussions, supra., on Arts. 43 and 44, in rela-
tion to Art. 50, Family Code, in case the marriage is

celebrated but subsequently annulled or declared void).
The rules on the property relations between the
spouses above-expressed apply regardless, but subject to
contrary provisions in the marriage settlement, of the
place of the celebration of the marriage or of their resi-
dence, except —
(1) Where both spouses are aliens;
(2) As regards the extrinsic validity of contracts
affecting property not situated in the Philippines and
executed in the country where the property is located;
and
(3) As regards the extrinsic validity of contracts
entered into in the Philippines but affecting property
located in a foreign country the laws of which prescribe
different formalities for their extrinsic validity.
The “contrary stipulation” referred to in Article 80 of
the Family Code can include a foreign law governing the
property relations (property regimes) of the spouses other
than as may be so excepted under the provisions of the
third paragraph of Article 17 of the Civil Code (relating
to prohibitory laws) and to the extent that said parties
are free to provide and cover matters in their marriage
settlement. Article 80 of the Family Code should not,
however, be so construed as to likewise permit the spouses
to freely stipulate away the governing law, such as Book
II of the Civil Code, on property, a matter that cannot be
the proper subject matter of a marriage settlement. Un-
der the “doctrine of processual presumption,” unless oth-
erwise proven, the foreign law shall be deemed to be the
same as the law of the forum.
In the case of mixed marriages, regardless of whether
the foreigner is the husband or the wife, the provisions of
the Family Code on the property relations of the spouses,
excepting the “contrary stipulation” dealt with above, shall
govern the property relations of the spouses.
Chapter 2 — Donations by Reason of Marriage
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. These donations are governed by the rules
on ordinary donations established in Title III of Book III
of the Civil Code, insofar as they are not modified by
the following articles. (127a)
Art. 84. If the future spouses agree upon a regime
other than the absolute community of property, they
cannot donate to each other in their marriage
settlements more than one-fifth of their present
property. Any excess shall be considered void.
Donations of future property shall be governed
by the provisions on testamentary succession and the
formalities of wills. (130a)
Art. 85. Donations by reason of marriage of
property subject to encumbrances shall be valid. In
case of foreclosure of the encumbrance and the
property is sold for less than the total amount of the
obligation secured, the donee shall not be liable for
the deficiency. If the property is sold for more than the
total amount of said obligation, the donee shall be en-
titled to the excess. (131a)
Donations propter nuptias are made in considera-

tion of the marriage in favor of one or both of the prospec-
tive spouses and executed before the marriage (Art. 82,
Family Code).
Donations of present property, on matters not cov-
ered by the foregoing provisions of the Family Code, are
governed by the law on ordinary donations under Book
III, Title III, of the Civil Code. Thus, the formalities of
donations inter vivos prescribed in the Civil Code, other
than when the donation is incorporated in a marriage
settlement, will govern. Unless the parties agree upon a
regime of absolute community, they cannot donate to each
other more than a fifth of their present property. Although

Article 84 of the Family Code states that the spouses may
not do so “in their marriage settlement,” the intendment
appears to be that the prohibition applies even when the
donation propter nuptias is made in an independent
instrument. Any excess of one-fifth of present property
that is donated is void (see Art. 84, Family Code).
Donations of future property, whether incorporated
in a marriage settlement or made in a separate
instrument, are governed by the law on testamentary
succession, both as to intrinsic (specifically the law on
legitimes, i.e., the donation may be reduced to the extent
that it is inofficious) and extrinsic (e.g., formalities) validity
thereof (see Art. 84, Family Code). Being in consideration
of marriage, it is believed that this donation propter
nuptias are not subject to revocation at will by the donor
spouse (Art. 828, Civil Code); Article 86 (infra.) should
instead exclusively govern.
The provision of Article 84 of the Family Code to the
effect that donations of future property shall be governed
by the “formalities of wills” casts doubts on whether such
a donation can be validly documented in a marriage settle-
ment which is not an individual but a joint act of the
spouses (see Arts. 818-819, Civil Code).
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 Arti-
cle 81;
acted in bad faith;
(4) Upon legal separation, the donee being the
guilty spouse;
Art. 86 PERSONS 309
(5) If it is with a resolutory condition and the

condition is complied with; or
ingratitude as specified by the provisions of the Civil
Code on donations in general. (132a)
Where the marriage is not celebrated or is judicially

declared void ab initio, a donation by reason of marriage
between the spouses, if contained in the marriage
settlement, is deemed void but when such a donation is
executed independently of the marriage settlement, the
same is merely considered revocable by the donor. Where
the marriage takes place without parental consent when
required, the donation is revocable even where the mar-
riage is not annulled. In other cases of voidable mar-
riages, it is only when the marriage is annulled and the
donee has acted in bad faith that the donation becomes
revocable. The donation is also revocable in cases of legal
separation (the donee being the guilty spouse) and
ingratitude on the part of the donee.
Article 50 of the Family Code states that the “effects
provided for in paragraphs (2), (3), (4), and (5) of Article
43 and in Article 44 (effects of termination of subsequent
marriage) shall also apply in proper cases to marriages
which are declared void ab initio or annulled by final
judgment under Articles 40 and 45.” Among the effects of
the termination of subsequent marriages is the revoca-
tion by operation of law of donation by reason of marriage
to a donee in bad faith. Article 86 of the Family Code
which merely declares such a donation revocable when
the marriage is annulled and the donee acted in bad
faith, being a later and specific provision on donation
propter nuptias, controls over the general effects expressed
in Article 50, in relation to articles 43 and 44, of the Code.
The donation may be conditional, the compliance
with which, in the case of a suspensive condition, will
prevent the donation from acquiring an obligatory force
or legal efficacy and, in the case of a resolutory condition,
can terminate the rights of the donee unless the terms of

the donation will only make it subject to revocation in
which light, it is believed, Article 86 of the Family Code
should be understood.
Art. 87. Every donation or grant of gratuitous ad-

vantage, direct or indirect, between the spouses dur-
ing the marriage shall be void, except moderate gifts
which the spouses may give each other on the occa-
sion of any family rejoicing. The prohibition shall also
apply to persons living together as husband and wife
without a valid marriage. (133a)
Except for moderate gifts which may be given on the

occasion of any family rejoicing, the spouses may not
donate property to each other during the marriage; any
such prohibited donation is void (Art. 87, Family Code;
Aznar vs. Sucilla, 102 Phil. 902). This rule does not in-
clude a spouse’s being a beneficiary of an insurance con-
tract over the life of the other (Gercio vs. Sun Life Assur-
ance Co. of Canada, 48 Phil. 53).
Likewise prohibited are donations between persons
living together as husband and wife without a valid mar-
riage (Art. 87, Family Code; see also Matabuena vs. Cer-
vantes, 38 SCRA 284).
Under the 1950 Civil Code, donations during mar-
riage by one of the spouses in favor of children whom the
other spouse had by another marriage or to persons of
whom the other spouse is a presumptive heir at the time
of the donation were voidable at the instance of the do-
nor’s heirs after his death (Art. 134, Civil Code). The
deletion of this provision in the Family Code may indi-
cate the possibility that it may now be legally feasible to
do so and to uphold the validity of the donation. The
clause “or grant of gratuitous advantage, direct or indi-
rect,” refers to the spouse of the donor that may only thus
preclude said spouse from having such a direct or indi-
rect benefit.
Chapter 3 — System of Absolute Community

Art. 88. The absolute community of property

between spouses shall commence at the precise
moment that the marriage is celebrated. Any stipula-
tion, express or implied, for the commencement of the
community regime at any other time shall be void.
(145a)
Art. 89. No waiver of rights, interests, shares and
effects of the absolute community of property during
the marriage can be made except in case of judicial
separation of property.
When the waiver takes place upon a judicial sepa-
ration of property, or after the marriage has been dis-
solved or annulled, the same shall appear in a public
instrument and shall be recorded as provided in Article
77. The creditors of the spouse who made such waiver
may petition the court to rescind the waiver to the
extent of the amount sufficient to cover the amount of
their credits. (146a)
Art. 90. The provisions on co-ownership shall
apply to the absolute community of property between
the spouses in all matters not provided for in this Chap-
ter. (n)
The provisions of the Family Code on the absolute

community of property regime apply to marriages
contracted after the effectivity of said Code and not to
those already existing at that time unless the absolute
community system has theretofore been established by
the spouses in their marriage settlement (see Art. 256,
Family Code).
Unless a valid marriage settlement is entered into
before the marriage, setting forth a different property
regime, the property relations between the husband and
the wife shall be governed by the system of absolute com-
munity of property (Art. 75, Family Code). A marriage
settlement which thus simply provides that “the parties
are not adopting the absolute community of property,”

without expressing any other property regime, will not
preclude the application of the system of absolute commu-
nity.
Where a surviving spouse contracts a subsequent
marriage without liquidating, either judicially or
extrajudicially, within one year from the death of the
deceased spouse the absolute community or conjugal
property, a mandatory regime of complete separation of
property shall govern the property relations of the subse-
quent marriage (see Arts. 103 and 130, Family Code).
The system of absolute community is governed pri-
marily by the provisions of the Family Code pertinent to
this property regime and suppletorily by the provisions
of the Civil Code on co-ownership.
The absolute community commences, any stipulation
to the contrary notwithstanding, at the precise moment
that the marriage is celebrated (Art. 88, Family Code),
and it terminates upon the death of either spouse, a decree
of legal separation, an annulment or declaration of nullity
of the marriage or a judicial separation of property (see
Art. 99, Family Code). While the absolute community
subsists, there can be no waiver of rights, interests, shares
and effects of the community. Before the marriage, a
waiver is possible if contained in a marriage settlement
or a donation in consideration of marriage subject to the
limitations therein provided (see Arts. 82 to 86, Family
Code). After the community is dissolved, such waiver may
be made but must appear in a public instrument and
recorded in the local civil registry where the marriage
contract is recorded and in the proper registries of prop-
erty; otherwise, the same shall not prejudice third per-
sons (see Art. 89, in relation to Art. 77, Family Code).
Creditors who may be prejudiced can petition the court to
rescind the waiver to the extent of such prejudice (see
Art. 89, Family Code).
Section 2 — What Constitutes Community

Property
Art. 91. Unless otherwise provided in this Chapter

or in the marriage settlements, the community property
shall consist of all the property owned by the spouses
at the time of the celebration of the marriage or ac-
quired thereafter. (199)
Art. 92. The following shall be excluded from the
community property:
(1) Property acquired during the marriage by gra-
tuitous title by either spouse, and the fruits as well as
the income thereof, if any, unless it is expressly pro-
vided 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; and
(3) Property acquired before the marriage by
either spouse who has legitimate descendants by a
former marriage, and the fruits as well as the income,
if any, of such property. (201a)
Art. 93. Property acquired during the marriage is
presumed to belong to the community, unless it is
proved that it is one of those excluded therefrom. (160a)
The community property, subject to the exceptions

in Article 92 above, comprises both present and future
property (Art. 91, Family Code). It is noteworthy, how-
ever, that, unlike the 1950 Civil Code (Art. 201), the fruits
and income of excluded property are likewise excluded
from the community property (Art. 92, Family Code).
If, as in the case of a spouse who has legitimate
descendants by a former marriage, no part of such spouse’s
property is included in the community, it seems to be
preferable and equitable to apply the conjugal partner-
ship of gains regime to the spouses and to make the
absolute community system only as a regime of choice.
The law presumes to be part of the community prop-

erty that which is acquired during the marriage (Art. 93,
Family Code). Since the absolute community includes
practically all property which the spouses own at the
time of the celebration of marriage (Art. 91, Family Code),
it might have been thought unnecessary to still include
in the presumption property acquired before the marriage
which are still owned by either of the spouses at the time
the marriage is contracted.
The provision in the 1950 Civil Code disallowing
either spouse to renounce any inheritance without the
consent of the other (Art. 200, Civil Code) has not been
adopted by the Family Code considering the exclusion
thereof from the community property.
The spouses retain respective control over their
exclusive property, and neither of the other spouse may
bind such property unless authorized by the owner-spouse
(see Cafure vs. Morales and Morco, 25 Phil. 342; Bank of
the Philippine Islands vs. De Coster, 49 Phil. 574; Laperal
vs. Katigbak, 90 Phil. 770; Philippine Sugar Estates
Development Co. vs. Poizat, 48 Phil. 536, applying the
rules on exclusive property of spouses under the 1950
Civil Code regime). The court, under Article 142 of the
Family Code (infra.), may transfer the administration of
the exclusive property to the other spouse (see also Art.
100, Family Code).

of the Absolute Community
Art. 94. The absolute community of property shall

be liable for:
(1) The support of the spouses, their common
children, and legitimate children of either spouse; how-
ever, the support of illegitimate children shall be gov-
erned by the provisions of this Code on Support;
(2) All debts and obligations contracted during
the marriage by the designated administrator-spouse
Art. 94 PERSONS 315
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, in-
cluding major or minor repairs, upon the community
property;
(5) All taxes and expenses for mere preserva-
tion made during marriage upon the separate property
of either spouse used by the family;
(6) Expenses to enable either spouse to com-
mence 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 spouse 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 pay-
ment 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 para-
graph (9), the spouses shall be solidarily liable for the
unpaid balance with their separate properties. (161a,
162a, 163a, 202a-205a)
Art. 95. Whatever may be lost during the marriage

in any game of chance, betting, sweepstakes, or any
other kind of gambling, whether permitted or prohibited
by law, shall be borne by the loser and shall not be
charged to the community but any winnings therefrom
shall form part of the community property. (164a)
1. On support. — The community is liable for the

support of common children and the legitimate children
of either spouse. The support of legitimate ascendants,
legitimate or illegitimate descendants, as well as legiti-
mate or illegitimate brothers and sisters, is to be sourced
from the separate property of the spouse obligated to give
that support but where there is no such separate prop-
erty, or if the same is insufficient, the absolute commu-
nity shall advance the support, deductible from the share
of the spouse obliged thereto upon the liquidation of the
community property (see Art. 94, in relation to Art. 197,
Family Code).
2. On debts and obligations. — The community is
liable for (a) debts and obligations contracted during the
marriage incurred for the benefit of the community by
the designated administrator-spouse, or by both spouses,
or by one spouse with the consent of the other, or by
either spouse, even without the consent of the other, to
the extent that the family may have benefited, and (b) for
ante-nuptial debts of either spouse insofar as said debts
have redounded to the benefit of the family. Ante-nuptial
debts that have not redounded to the benefit of the fam-
ily, as well as liabilities incurred by either spouse for a
crime or quasi-delict, are chargeable against exclusive
property but if there be none or the same is insufficient,
the community shall advance the payment to be deducted
from the debtor-spouse’s share upon the liquidation of
the community (see Art. 94, Family Code).
It may be noted from the language of paragraphs (2)
and (3) of Article 94 of the Code that it is enough to
consider a contractual debt made by an administrator
spouse as a community obligation if incurred for the ben-

efit of the community; an obligation, however, contracted
by a spouse (not being an administrator), without the
consent of the other, may be a charge upon the commu-
nity only to the extent that the family may have been
(actually) benefited.
3. On taxes, liens, charges and expenses. — All
items of expenses upon the community property are to be
borne by the community. Similarly chargeable are taxes
and preservation expenses on separate property used by
the family; expenses to enable either spouse to take or
complete a professional or vocational course or activities
for self-improvements; and expenses of litigation between
the spouses unless the suit is groundless (Art. 94, Family
Code).
4. Donation to common legitimate children for
education. — The amount or value given to common legiti-
mate children for the exclusive purpose of taking or
completing a professional or vocation course or activities
for self-improvement (Art. 94, Family Code).
In case the community property is insufficient to
cover the foregoing liabilities of the system, the spouses
are held solidarily liable for the unpaid balance with
their separate property. Excepted from this solidary li-
ability are ante-nuptial debts that have not redounded to
the benefit of the family; support other than that due to
the spouses, their common children and legitimate chil-
dren of either spouse; and liabilities of either spouse on
account of a crime or quasi-delict (Art. 94, see also Art.
100 and Art. 102, Family Code).
Article 95 of the Family Code is now explicit (com-
pared to then Art. 142 and Art. 164, of the Civil Code) by
providing that losses in any kind of gambling, including
sweepstakes, whether permitted or prohibited by law,
are borne by the loser exclusively but that winnings
therefrom form part of the community property.
Section 4 — Ownership, Administration, Enjoyment

and Disposition of the Community Property
Art. 96. The administration and enjoyment of the

community property shall belong to both spouses
jointly. In case of disagreement, the husband’s decision
shall prevail, subject to recourse to the court by the
wife for a proper remedy, which must be availed of
within five years from the date of the contract imple-
menting such decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the administration of
the common properties, the other spouse may assume
sole powers of administration. These powers do not
include the powers of disposition or encumbrance
without the authority of the court or the written consent
of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be
void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse
and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn
by either or both offerors. (206a)
Art. 97. Either spouse may dispose by will of his
or her interest in the community property. (n)
Art. 98. Neither spouse may donate any commu-
nity property without the consent of the other. How-
ever, 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)
In general and subject to valid stipulations in their

marriage settlement (see Art. 135[5], Family Code), the
spouses have equal right — in ownership, administra-
tion, enjoyment and disposition — on the community prop-
erty. Each of the spouses may dispose of by will, subject
to the rules on testamentary succession, their respective
interest in the community property and neither may, with-
out the consent of the other, donate any community prop-
erty except for moderate gifts to charity or donations on

occasions of family rejoicing or family distress. In an at-
tempt to resolve an impasse’ in the administration of the
community property the law provides that —
(a) In case of disagreement in the administration
and enjoyment (not covering disposition or encumbrance)
thereof, the husband’s decision shall prevail subject to
recourse to the court by the wife for appropriate remedy
within five years from the date of the contract imple-
menting the same; and
(b) In case of the inability of a spouse in the
administration of the property, the other may assume the
sole administration thereof (without need for court
authorization) but excluding the power of disposition or
encumbrance (see Art. 96, Family Code; see also Arts.
100 and 101, Family Code, authorizing the assumption of
sole administration by a spouse in cases of abandonment
by the other spouse).
The alienation of community property must have
the written consent of the other spouse or the authority
of the court without which the disposition or encumbrance
is void. The transaction, nonetheless, shall be construed
as a continuing offer on the part of both the spouse who
had acted and the third party which may be perfected
upon acceptance by the other spouse or authorization by
the court before the offer is withdrawn by either or both
offerors.
The foregoing rules are neither meant nor intended
to unduly restrict all degrees of freedom for individual
actions by the spouses, for what the law contemplates are
not the insignificant or the inconsequential such as sale
of used and empty containers (de minimis non curat lex)
but those of real or major concerns affecting the commu-
nity property. In these latter cases, where there is a
disagreement between the spouses and where thus the
husband’s decision prevails, the “proper remedy” meant
by the law is that which arises primarily between them.
Thus, where the husband has abused his authority,
recourse may be had under Article 19, et seq., of the Civil

Code. The “disagreement” itself does not constitute per se
a cause for setting aside, for instance, the contract en-
tered into in the implementation of that decision, which
the law, in effect, authorizes when it had provided that
“the husband’s decision shall prevail.” The contract, of
course, may be annulled or rescinded but limited to
grounds that, under the laws of general application, may
render them either as voidable or as rescissible.
Section 5 — Dissolution of Absolute Community

Regime
Art. 99. The absolute community terminates:

(3) When the marriage is annulled or declared
void; or
(4) In case of judicial separation of property dur-
ing the marriage under Articles 134 to 138. (175a)
and wife shall not affect the regime of absolute com-
munity except that:
have the right to be supported;
(2) When the consent of one spouse to any trans-
action of the other is required by law, judicial authori-
zation shall be obtained in a summary proceeding;
(3) In the absence of sufficient community pro-
perty, 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 pro-
ceeding, be given judicial authority to administer or
encumber any specific separate property of the other
spouse and use fruits or proceeds thereof to satisfy
the latter’s share. (178a)
Art. 101. If a spouse without just cause abandons

the other or fails to comply with his or her obligations
to the family, the aggrieved spouse may petition the
court for receivership, for judicial separation of prop-
erty 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 prop-
erty relations.
A spouse is deemed to have abandoned the other
when he or she has left the conjugal dwelling without
any 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)
The enumeration in the law when the absolute com-

munity terminates is exclusive. An extrajudicial parti-
tion, therefore, solely between the parties and without
judicial intervention is void (see Luna, et al. vs. Linatoc,
74 Phil. 15, applying Art. 190 of the 1950 Civil Code, now
Art. 134 of the Family Code). The parties may, however,
petition the court for voluntary dissolution of the prop-
erty regime (see Art. 136, Family Code) which must be
granted unless there are serious and valid grounds for
refusing it.
In case of legal separation or when the marriage is
annulled or declared void, the spouse who gave ground
therefor or the spouse who contracted the marriage in
bad faith, as the case may be, is made to suffer the forfei-
ture of his or her share of the community property in
favor of the common children, or, in their absence, the
children of the guilty spouse by a previous marriage (see
Arts. 50 and 63, in relation to Art. 44, Family Code). If
both parties have been offenders, the pari delicto rule can
apply (see Ricafrente vs. Ventura [CA], 53 O.G. 6117).
The separation in fact between the spouses without

judicial approval does not affect the community regime.
When the consent of one spouse is required in any trans-
action, the other spouse may obtain judicial authorization
in a summary proceeding (Art. 100, Family Code). The
law, in this case, does not discriminate between the spouse
present and absentee spouse and the court would have
ample discretion in deciding what it might consider to be
in the best interest of the family.
Where a spouse leaves the conjugal home or refuses
to live therein without just cause —
a) His or her right of support is lost; and
b) In the absence of community property to support
the family, the spouse present may petition for judicial
authority to administer or encumber (not dispose) any
specific separate property of the absentee spouse and use
the fruits or proceeds thereof to satisfy the latter’s liabil-
ity therefor (see Art. 100, Family Code).
If a spouse, without just cause, abandons the other,
i.e., said spouse leaves the conjugal dwelling without any
intention of returning (which the law prima facie pre-
sumes after a 3-month absence or failure for a like period
to give information on his or her whereabouts) or does
not comply with his or her obligations in the marital,
parental or property relations, the aggrieved spouse may
likewise petition the court for receivership, for judicial
separation of property, or for authority to be the sole
administrator of the absolute community, and the court
may grant the same subject to such safeguards as it may
deem proper to impose (see Art. 101, Family Code).
Section 6 — Liquidation of the Absolute Community

Assets and Liabilities
Art. 102. Upon dissolution of the absolute com-

munity regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separa-
tely 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 sepa-
rate properties in accordance with the provisions of
the second paragraph of Article 94.
(3) Whatever remains of the exclusive proper-
ties of the spouses shall thereafter be delivered to each
of them.
(4) The net remainder of the properties of the
absolute community shall constitute its net assets,
which shall be divided equally between husband and
wife, unless a different proportion or division was
agreed upon in the marriage settlements, or unless
there has been a voluntary waiver of such share as
provided in this Code. For purposes of computing the
net profits subject to forfeiture in accordance with Ar-
ticles 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 accord-
ance 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 is
no such majority, the court shall decide, taking into con-
sideration the best interests of said children. (n)
Art. 103. Upon the termination of the marriage by
death, the community property shall be liquidated in
the same proceeding for the settlement of the estate of
the deceased.
If no judicial settlement proceeding is instituted,

the surviving spouse shall liquidate the community
property either judicially or extrajudicially within one
year from the death of the deceased spouse. If upon
the lapse of the said period, no liquidation is made,
any disposition or encumbrance involving the com-
munity property of the terminated marriage shall be
void.
Should the surviving spouse contract a
subsequent marriage without compliance with the
foregoing requirements, a mandatory regime of
complete separation of property shall govern the
property relations of the subsequent marriage. (n)
Art. 104. Whenever the liquidation of the commu-
nity properties of two or more marriages contracted by
the same person before the effectivity of this Code is
carried out simultaneously, the respective capital, fruits
and income of each community shall be determined
upon such proof as may be considered according to
the rules of evidence. In case of doubt as to which
community the existing properties belong, the same
shall be divided between or among the different com-
munities in proportion to the capital and duration of
each. (189a)
Upon the termination of the absolute community of

property, the assets and liabilities thereof are liquidated
in the same judicial proceedings that decree legal sepa-
ration, annulment or declaration of nullity of marriage,
or judicial separation of property. In the case of death of
either spouse, the liquidation shall be undertaken in the
same proceedings for the settlement of the estate of the
deceased spouse; if none is instituted, the surviving spouse
shall liquidate the community property, either judicially
or extrajudicially, within one year from such death. The
failure in the latter case of the surviving spouse to do so
within said period shall have the following effects:
(a) Any disposition or encumbrance involving the
community property of the terminated marriage shall be
void; and
(b) If the surviving spouse contracts a subsequent

marriage, the property relations thereof shall be
mandatorily governed by the regime of complete separa-
tion of property (see Arts. 102 and 103, in relation to Art.
99, Family Code).
The law is not clear as to whether the one-year pe-
riod merely refers to the commencement of the liquida-
tion process or the completion thereof. The term “liquida-
tion” is commonly understood as the determination and
settlement of liabilities, and, in the context it is used in
this part of the Family Code, the term includes the
apportionment of the community property to those who
may have entitlements thereover. The intendment of the
law appears to be that after the lapse of one year and no
liquidation has been undertaken by the surviving spouse,
the effects mentioned in the preceding paragraph would
result. Once, however, the liquidation is initiated, whether
within or after the one-year period, and so long as it is
being undertaken bona fide and without undue delays,
then the effects of failure should be considered inapplica-
ble or lifted, as the case may be. To say that the liquida-
tion must in every case be undertaken or completed within
one year can arise and create more problems than solu-
tions that may defeat the very objective of the law to
hasten the liquidation process. The payment of the com-
munity liabilities may necessitate the disposition or en-
cumbrance of community property even after the one-
year period; certainly, the law could not have meant to
thus prohibit such disposition of community assets that
strikes at the liquidation process itself were it not either
commenced or completed within the one-year period.
In the liquidation of the community assets and li-
abilities, the following are paid or delivered in the order
hereunder stated:
(a) Debts and obligations are first satisfied. In case
the community property is insufficient, the separate prop-
erty of the spouses may be held solidarily liable thereto
in accordance with the provisions of Article 94 (supra.) of
the Family Code (see also Arts. 97, 100, and 102, Family
Code; the solidary liability of the spouses has abandoned
the Civil Code rule in National Bank vs. Quintos, 46 Phil.
370).
(b) The exclusive property of the spouses, less any
assumed community liability, shall be delivered to each of
them.
(c) The net assets of the community property, if any,
shall be divided equally between the spouses, unless a
different sharing has been agreed upon in the marriage
settlement or there has been valid waiver (see Art. 89, in
relation to Art. 77, Family Code) by any of the spouses,
but subject to the forfeiture of the share of net profits on
the part of a guilty spouse in case the regime is dissolved
because of the termination of a subsequent marriage (Art.
43, Family Code), the annulment or the declaration of
nullity of marriage (Art. 50, in relation to Art. 43, Family
Code); or legal separation (Art. 63, Family Code). The
term “net profits” is defined to mean “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” (Art.
102, Family Code).
(d) In the annulment or declaration of nullity of a
marriage, the presumptive legitimes of the common child-
ren shall also be delivered upon partition pursuant to
Article 51, correlated to Article 59 of the Family Code
(see also Arts. 50 and 52, in relation to Art. 102, Family
Code).
In the partition, the conjugal dwelling and the lot on
which it stands shall be adjudicated, unless otherwise
agreed upon by the parties, to the spouse with whom the
majority of the common children choose to remain, fail-
ing in which the court shall decide the matter, taking into
consideration the best interest of the children. Children
below seven years of age shall be deemed to have chosen
the mother unless the court decides otherwise (Art. 102,
Family Code).
Article 104 of the Family Code (supra.) is substan-

tially a reproduction of Article 189 of the 1950 Civil Code
governing the simultaneous liquidation of community
property of two or more marriages, a distinct possibility
if the marriages take place under the regime of the said
Civil Code (see Art. 83, Civil Code; see also Dolar vs.
Roman Catholic Bishop of Jaro, 68 Phil. 727), as well as
under Article 41 (supra.) of the Family Code.
Chapter 4 — Conjugal Partnership of Gains
Art. 105. In case the future spouses agree in the

marriage settlements that the regime of conjugal
partnership of gains shall govern their property rela-
tions 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 pro-
vided in Article 255. (n)
Art. 106. Under the regime of conjugal partnership
of gains, the husband and wife place in a common fund
the proceed, products, fruits and income from their sepa-
rate properties and those acquired by either or both
spouses through their efforts or by chance, and, upon
dissolution of the marriage or of the partnership, the net
gains or benefits obtained by either or both spouses
shall be divided equally between them, unless otherwise
agreed in the marriage settlements. (142a)
Art. 107. The rules provided in Articles 88 and 89
shall also apply to the conjugal partnership of gains.
(n)
Art. 108. The conjugal partnership shall be gov-
erned by the rules on the contract of partnership in all
that is not in conflict with what is expressly determined
in this Chapter or by the spouses in their marriage set-
tlements. (147a)
The conjugal partnership of gains or relative com-

munity of property under the Family Code, unlike its
predecessor in the Civil Code, is a property relations
regime of the spouses only by choice. Spouses who marry
after the effectivity of the Family Code are governed by
the absolute community of property unless by a marriage
settlement executed prior to the celebration of the
marriage a different property system is adopted by the
parties (Art. 75, Family Code). Where the spouses agree
on the regime of conjugal partnership of gains, the
provisions of the Family Code thereon are suppletory to
that agreement. Where the marriage takes place before
the effectivity of the Family Code and spouses did not
execute a marriage settlement or, if they did, they had
adopted the conjugal partnership of gains under the 1950
Civil Code, this Chapter of the Family Code shall also
apply, without prejudice to vested rights already acquired
under the Civil Code (see Art. 105, Family Code). Unlike
Article 166 of the Civil Code which excluded real prop-
erty acquired before the effectivity thereof from the new
rules it set, the Family Code, however, has not provided
for any similar exclusionary clause.
Like the rules obtaining for the system of absolute
community of property, the conjugal partnership of gains,
when adopted by the prospective spouses, shall commence
from the moment the marriage is celebrated; any
stipulation to the contrary is void (Art. 88, in relation to
Art. 107, Family Code). Similarly, while the conjugal
partnership of gains subsists, there can be no waiver of
rights, interests, shares and effects on the common fund
(Art. 89, in relation to Art. 107, Family Code).
The conjugal property is a common fund which, in
general, includes (a) the net fruits of separate property
and (b) the income from industry of the spouses (see Art.
106 and Art. 117, Family Code) and in which they have
pro-indiviso interest until it is dissolved by the death of
either spouse, the termination of a subsequent marriage,
a decree of annulment or declaration of nullity of the
marriage or a judicial separation of property during the

marriage (see Art. 126, Family Code). Upon the disso-
lution of the property regime, the net gains or benefits
shall be divided equally between them unless otherwise
agreed in a marriage settlement and subject to the
provisions of the Family Code on the forfeiture of the
share of a guilty spouse in cases of the termination of a
subsequent marriage (Art. 43, Family Code), the annul-
ment or declaration of nullity of marriage (Art. 50, in
relation to Art. 43, Family Code), and legal separation
(Art. 63, Family Code).
While the absolute community of property is also
governed in all that is not inconsistent with the provisions
of Family Code thereon, as well as of the spouses’ marriage
settlement, by the rules on co-ownership, the suppletory
rules, however, to conjugal partnership of gains are those
found in the contract of partnership (Art. 108; see also
Art. 109. The following shall be the exclusive prop-

erty of each spouse:
(1) That which is brought to the marriage as his
or her own;
(2) That which each acquires during the marriage
by gratuitous title;
(3) That which is acquired by right of redemp-
tion, by barter or by exchange with property belonging
to only one of the spouses; and
(4) That which is purchased with exclusive
money of the wife or of the husband. (148a)
Art. 110. The spouses retain the ownership, pos-
session, administration and enjoyment of their exclu-
sive 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
where the property is located. (137a, 168a, 169a)
Art. 111. A spouse of age may mortgage, encumber,
alienate or otherwise dispose of his or her exclusive
property, without the consent of the other spouse, and
appear alone in court to litigate with regard to the same.
(n)
Art. 112. The alienation of an exclusive property
of a spouse administered by the other automatically
terminates the administration over such property and
the proceeds of the alienation shall be turned over to
the owner-spouse. (n)
Art. 113. Property donated or left by will to the
spouses, jointly and with designation of determinate
shares, shall pertain to the donee-spouse as his or her
own exclusive property, and in the absence of desig-
nation, share and share alike without prejudice to the
right of accretion when proper. (150a)
Art. 114. If the donations are onerous, the amount
of the charges shall be borne by the exclusive prop-
erty of the donee-spouse, whenever they have been
advanced by the conjugal partnership of gains. (151a)
Art. 115. Retirement benefits, pensions, annuities,
gratuities, usufructs and similar benefits shall be
governed by the rules on gratuitous or onerous
acquisitions as may be proper in each case. (n)
The separate property of each spouse, generally com-

prising that which are brought into the marriage, as well
as acquisitions during the marriage by gratuitous title or
by exchange with their separate property, continue to be
respectively and exclusively theirs in ownership. Although
the fruits derived therefrom commencing from the mar-
riage pertain to the conjugal partnership, the control and
administration of such exclusive property remain with
the owner-spouse, and the latter, without the consent of
the other, may dispose or encumber said property or ap-
pear alone in court to litigate in respect thereof. Unless
authorized, a spouse may not bind the separate property

of the other (Cafure vs. Morales and Morco, 25 Phil. 342;
Bank of the Philippine Islands vs. De Coster, 49 Phil. 574;
Laperal vs. Katigbak, 90 Phil. 770; Philippine Sugar Es-
tates Development Co. vs. Poizat, 48 Phil. 536, applying
The owner-spouse may, however, transfer by means
of a public instrument the administration of the exclusive
property to the other spouse. The instrument shall be
recorded in the registry of property where the property is
located. The authority to administer said property termi-
nates upon the alienation thereof. The court, under the
provisions of Article 142 of the Family Code (infra.), may
transfer the administration of exclusive property to the
other spouse (see also Art. 127, Family Code).
The phrase “spouse of age” in Article 111 should be
interpreted to mean one who has the age of legal capacity
to marry (now 18 years of age) and not necessarily the
age of consent (21 years). This interpretation is consist-
ent with Article 236 of Family Code which considers the
emancipated child “qualified and responsible for all acts
of civil life.” In any event, Republic Act No. 6809, reduc-
ing the majority age from 21 to 18 years, renders the
matter now purely academic.
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 con-
trary 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, loses
therefrom shall be borne exclusively by the loser-
spouse. (153a, 154, 155, 159)
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. 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 princi-
pal shall belong to the conjugal partnership. (156a, 157a)
Art. 120. The ownership of improvements, whether
for utility or adornment, made on the separate prop-
erty 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 origi-

nal 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 owner-
spouse, likewise subject to reimbursement of the cost
of the improvement.
In either case, the ownership of the entire property
shall be vested upon the reimbursement, which shall
be made at the time of the liquidation of the conjugal
partnership. (158a)
The conjugal property is owned in common by the

husband and the wife (Art. 106, Family Code) and, until
the partnership is dissolved, the exclusive and respective
rights of the spouses thereto have been vaguely described
either as inchoate (see Madrigal and Paterno vs. Rafferty
and Concepcion, 38 Phil. 414) or as mere expectancy (Nable
Jose vs. Nable Jose, 41 Phil. 713).
As a rule of thumb, it may be so said that any property
that is acquired, or the title on which is vested, during
the marriage, except for property acquired by gratuitous
title (see Ossorio vs. Posadas, 56 Phil. 748; Torela vs.
Torela, 93 SCRA 391) or in exchange for exclusive property
(Rosete vs. Provincial Sheriff of Zambales, et al., 95 Phil.
560; Mirasol vs. Lim, 59 Phil. 701) of any of the spouses,
belongs to the common fund. Any property acquired or
business established during such marriage, unless the
contrary is proved, is presumed to be conjugal (see Jocson
vs. Court of Appeals, 170 SCRA 333; BA Finance Corpo-
ration vs. Court of Appeals, 161 SCRA 608; Talag vs.
Tankengco, 92 Phil. 1066) even when the spouses live
separately (see Flores, et al. vs. Escudero, et al., 92 Phil.
786) and regardless of the fact that the acquisition ap-
pears to have been made, contracted or registered in the

name of only one or of both spouses (see Art. 116, in
In general, the conjugal property consists of that
which is obtained by the industry or work of either spouse
and the fruits of their common or separate property (see
Mendoza vs. Dizon, 77 Phil. 533; Vitug vs. Montemayor,
93 Phil. 539; Rosales de Echaus vs. Gan, 55 Phil. 527;
Lesaca vs. Lesaca, 91 Phil. 135, applying Art. 142, in
relation to 153, Civil Code) and/or that which is acquired
in exchange therefor (Art. 106, in relation to Art. 116 and
Property acquired by the husband during the exist-
ence of a marriage, although said husband, at the time of
the acquisition, is living with a paramour and has, in fact,
authorized the transfer of the property to the latter’s
name, still belongs to the conjugal partnership (Belcodero
vs. Court of Appeals, 45 SCAD 400, 227 SCRA 303).
In respect of other property, the following rules may
be said to apply —
(a) Where the pre-title to property is acquired prior
to the marriage but full title or ownership is vested during
the marriage and the common fund, partly or fully, is
used therefor, the property is conjugal (Art. 118, Family
Code, reversing the rule in Ona vs. De Gala, 58 Phil. 881;
Lorenzo, et al. vs. Nicolas, et al., 91 Phil. 686; Vda. de
Delizo vs. Delizo, 69 SCRA 216; Castillo, Jr. vs. Pasco, 11
SCRA 102; but adopting the rule on depreciable property
held in Abella de Diaz vs. Erlanger & Galinger, Inc., 59
Phil. 326; see Art. 148; in relation to Art. 153, Civil Code).
Where full title or ownership had already vested before
the marriage, although conjugal funds had been used,
the property remain exclusive. In either of the above
situations, an amount advanced by the partnership or
either or both spouses, as the case may be, shall be
reimbursed by the owner or owners upon liquidation of
the partnership (see Art. 118, Family Code).
(b) Amounts already owing to one of the spouses

before the marriage but maturing or paid during the
marriage belong as exclusive property of said spouse but
interests falling due during such marriage pertain to the
conjugal property (Art. 119, Family Code).
(c) Article 115 of the Family Code provides that
“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.” Regardless of how such benefits are
ascribed to by name, the primordial factor in the
determination of whether it is gratuitous (exclusive prop-
erty) or onerous (common property) is the real cause or
consideration therefor. Thus, remuneratory grants such
as “bonuses” to employees for services rendered or to
excite their zeal and efficiency with consequent benefit to
the employer do not constitute pure beneficience (see Phil-
ippine Long Distance Telephone Co. vs. Jeturian, et al., 97
Phil. 981) and therefore should form part of the conjugal
property to the extent, at least in the case of remuner-
ated past services, that said services have been rendered
after the marriage had been contracted (see Mendoza vs.
Dizon, 77 Phil. 533). The fruits and interests earned dur-
ing the marriage of exclusive property acquired by gra-
tuitous title pertain to the conjugal partnership (Art. 106,
Family Code), unlike the rule established on the absolute
community system (Art. 92, Family Code).
(d) Damages recovered by the spouses may either
be separate or conjugal depending on the nature thereof.
Actual damages (damnum emergens) are either exclusive
or conjugal depending on who or which suffered such
damages. Damages in the nature of unrealized earnings
or profits (lacrum cessans) are conjugal. Moral damages
are generally to be considered exclusive (Lilius and Lilius
vs. Manila Railroad Co., 62 Phil. 56). In the exceptional
case, however, of Zulueta vs. Pan American (48 SCRA 1)
the Supreme Court considered the moral damages recov-
ered by the spouses as a result of the unjustifiable cancel-
lation of their confirmed reservations in Pan-American

Airways during their trip abroad as conjugal since the
award was collectively adjudged in favor of the spouses
premised on a breach of contract and conjugal funds were
used to pay for the plane tickets.
(e) Proceeds of life insurance, absent a qualified
beneficiary, are either conjugal or exclusive, or propor-
tionate, depending on the source of funds used to pay the
premiums (see Bank of the Philippine Islands vs. Posadas,
56 Phil. 215).
(f) Where an improvement, whether for utility or
adornment, is made on an exclusive property, the latter con-
tinues to be separate property unless the value of the impro-
vement, when made, exceeds the value at that time of said
property, subject to reimbursement of the cost of the improve-
ment. If the cost of improvement exceeds the value of the prop-
erty, the latter becomes conjugal similarly subject to reimbur-
sement of the value of the property. The vesting of ownership
in either case is upon reimbursement, which shall be made
at the time of the liquidation of the conjugal partnership
Under the 1950 Civil Code, the rules on improve-
ments made on the separate property of the spouses were
contained in Article 158 thereof —
“Improvements, whether for utility or adorn-
ment, made on the separate property of the spouse
through advancements from the partnership or
through the industry of either the husband or the
wife, belong to the conjugal partnership.
“Building constructed, at the expense of the part-
nership during the marriage on land belonging to
one of the spouses, also pertain to the partnership,
but the value of the land shall be reimbursed to the
spouse who owns the same.”
The Court decisions on Article 158 of the Civil Code
had not all been that consistent. In the case of Vda. de
Padilla vs. Paterno (96 Phil. 884), it was ruled that the
conversion of the land from exclusive to conjugal prop-
erty was subject to the suspensive condition that its value
would be reimbursed at the time of the liquidation of the
conjugal partnership. Under this view, the loss of the
building before such liquidation would not permit the
conversion to take place (see also Coingco vs. Flores, 84
Phil. 284). In Maramba vs. Lozano (20 SCRA 474), the
Supreme Court held that prior to the liquidation and
payment of the lot, “the conjugal partnership may use
the land and building, but it does, not as owner but as
usufructuary” since the ownership of the land is un-
changed (no conversion) until the value thereof is paid
which “can only be demanded in the liquidation of the
partnership.” In Caltex (Phil.), Inc. vs. Felias (108 Phil.
873), the Supreme Court ruled that the building must
have been constructed at the time when one of the spouses
is the owner of the land and not when it was acquired
after such construction. In Calimlim-Canullas vs. Fortun
(129 SCRA 675), where the land was inherited by the
husband after the building was already constructed
thereon, the Supreme Court said —
“We hold that pursuant to the foregoing provi-
sions (Art. 158, Civil Code), both the land and the
building belong to the conjugal partnership but the
conjugal partnership is indebted to the husband for
the value of the land. The spouse owning the land
becomes a creditor of the conjugal partnership for the
value of the lot, which value would be reimbursed at
the liquidation of the conjugal partnership.”
This later pronouncement would appear to be in keep-
ing not only with the spirit and intendment, but also with
the literal meaning, of then Article 158. By operation of
law and the actual occupancy of the property (equivalent
to delivery by the consenting spouse), both recognized
modes of acquiring ownership (Art. 712, Civil Code), the
land would become conjugal upon the concurrence of the
two conditions set by law, i.e., the construction of the
building at the expense of the partnership and the own-

ership of the land by one of the spouses. The obligation to
reimburse its value (determined as of such time) would
forthwith arise and, until paid, the previous owner-spouse
would become a creditor of the partnership. There ap-
peared to be no legal constraint or impediment against
effecting payment even during the marriage.
The new provisions of Article 120 of the Family Code
now specifies the vesting of title upon reimbursement
“which shall be made at the time of the liquidation of the
conjugal partnership.” The law on accession will not thus
apply. Before the vesting of title in either case, there is no
change in the ownership or nature of the property in-
volved, and the respective rules on conjugal and exclu-
sive properties, as the case may be, would apply, subject
only to the limitation that neither property can be freely
disposed of without the consent of both spouses in order
to ensure the full efficacy of the provisions of Article 120
when the time of reimbursement comes.
If the property involved comprises the family home,
then the provisions under Title V, Chapter 2, of the Fam-
ily Code shall likewise govern (see Arts. 152-162, Family
Code, infra.).

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 been 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 com-
mence or complete a professional, vocational, 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; and
(9) Expenses of litigation between the spouses
unless the suit is found to be groundless.
If the conjugal partnership is insufficient to cover
the foregoing liabilities, the spouses shall be solidarily
liable for the unpaid balance with their separate
properties. (161a)
Art. 122. The payment of personal debts contracted
by the husband or the wife before or during the mar-
riage shall not be charged to the conjugal 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 Arti-

cle have been covered, if the spouse who is bound
should have no exclusive property or if it should be
insufficient, but at the time of the liquidation of the
partnership, such spouse shall be charged for what
has been paid for the purposes above-mentioned. (163a)
Art. 123. Whatever may be lost during the mar-
riage in any game of chance, or in betting, sweep-
stakes, or any other kind of gambling whether permit-
ted 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 con-
jugal partnership property. (164a)
The rules on the liability of the conjugal property, in

many respects, are similar to those governing the absolute
community property. Thus —
1. On support. — The conjugal property is liable
for the support of the spouses, their common children and
the legitimate children of either spouse. The support of
illegitimate children, as well as legitimate ascendants,
legitimate or illegitimate descendants, legitimate or ille-
gitimate brothers and sisters, is chargeable against the
separate property of the obligor-spouse but where there
is no such property or if the same is insufficient, the
conjugal property shall advance the support, deductible
from the share of the obligor-spouse upon the liquidation
of the conjugal partnership (Art. 121, in relation to Art.
147, Family Code).
2. On debts and obligations. — The conjugal prop-
erty is liable for (a) debts and obligations contracted dur-
ing the marriage incurred for the benefit of the conjugal
partnership of gains by the designated administrator-
spouse (Development Bank of the Philippines vs. Confes-
sor, G.R. No. 48889, 11 May 1998), or by both spouses or
by one spouse with the consent of the other, or by either
spouse, even without the consent of the other, to the ex-
tent that the family may have been benefited (such benefit
may be presumed when spouse is engaged in business or
the exercise of profession [see G-Tractors, Inc. vs. Court

of Appeals, 25 SCRA 637]), and (b) ante-nuptial debts of
either spouse insofar as the same have redounded to the
benefit of the family (see Fidelity & Surety Co. of the
Phils. vs. Ansaldo, 66 Phil. 566 and Laperal, Jr. vs.
Katigbak, 104 Phil. 999 on Article 139, Civil Code). Per-
sonal debts contracted by either spouse before the mar-
riage, as well as fines and indemnities imposed upon
them, are separate liabilities; however, if the separate
property is insufficient or there is none, the liabilities
may be enforced against the conjugal partnership after
its own liabilities have been covered. The amounts so
charged shall be considered advances against, and be
deductible from, the debtor-spouse’s share upon liquida-
tion of the conjugal property (see Art. 126, Family Code).
Like Article 94, the law did not include personal debts
contracted during the marriage.
On the question of which debts and obligations con-
tracted by one of the spouses fall under the term “for the
benefit of the conjugal partnership” or “those which re-
dound to the benefit of the family” in order to be charge-
able against the conjugal property, the Court, in an at-
tempt to reconcile previous cases, has made a good exem-
plification of the rule in Ayala Investment & Development
Corporation vs. Court of Appeals (91 SCAD 663, 286 SCRA
272): (A) If the husband himself is the principal obligor in
the contract, i.e., he directly receives the money and serv-
ices to be used in or for his own business or his own
profession, that contract falls within the term “x x x obli-
gations for the benefit of the conjugal partnership.” It is
enough that the benefit of the family is apparent at the
time of the signing of the contract. x x x It is immaterial
if, in the end, his business or profession fails or does not
succeed. Simply stated, where the husband contracts ob-
ligations on behalf of the family business, the law pre-
sumes, and rightly so, that such obligation will redound
to the benefit of the conjugal partnership. (B) If the money
or services are given to another person or entity and the
husband has acted only as a surety or guarantor, that

contract cannot by itself be categorized as falling within
the context of “obligations for the benefit of the conjugal
partnership.” No presumption can be inferred that a con-
tract of surety or accommodation entered into by the
husband is “for the benefit of the conjugal partnership;”
proof must be presented to establish that benefit has
redounded to the conjugal partnership.
3. On taxes, liens, charges and expenses. — All
expenses incurred for the conjugal property are borne by
the conjugal partnership. In addition, the partnership is
liable for taxes and expenses for mere preservation on
separate property of either spouse, expenses to enable
either spouse to take or complete a professional, voca-
tional or other activity for self-improvement, and expenses
of litigation between the spouses unless the suit is found
to be groundless (Art. 121, Family Code).
4. Donations to common legitimate children for
education. — The amount or value given to common
legitimate children exclusively for taking or completing a
professional or vocational course or activities for self-
improvement (Art. 121, Family Code).
In the event the conjugal property is not enough to
satisfy the liabilities of the partnership, the spouses shall
be solidarily liable for the unpaid balance with their ex-
clusive property (Art. 121, Family Code; abandoning the
rule on the joint liability of the spouses held in Gelano vs.
Hon. Court of Appeals, 103 SCRA 90). Although not as
explicit as in Article 94 of the Family Code, the solidary
rule should apply only to liabilities of the conjugal
partnership not to those that are separate liabilities of
the spouses although initially enforceable against the con-
jugal property.
Losses in any kind of gambling, whether or not per-
mitted by law, are borne by the loser and not chargeable
against the partnership, but winnings therefrom are con-
jugal (see Art. 123, Family Code).

Partnership Property
Art. 124. The administration and enjoyment of the

conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the husband’s
decision shall prevail, subject to recourse to the court
by the wife for a proper remedy, which must be availed
of within five years from the date of the contract imple-
menting 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 of-
fer 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 authoriza-
tion by the court before the offer is withdrawn by ei-
ther or both offerors. (165a)
Art. 125. Neither spouse may donate any conjugal
partnership property without the consent of the other.
However, either spouse may, without the consent of
the other, make moderate donations from the conjugal
partnership property for charity or on occasions of fam-
ily rejoicing or family distress. (174a)
A sale concluded before the Family Code took effect

would be aptly governed by the then governing provi-
sions of the Civil Code. Thereunder, the husband could
not alienate or encumber any conjugal real property (ac-
quired by the partnership after the effective date of the
Civil Code) without the consent, express or implied, of
the wife (Art. 166, Civil Code; Bautista vs. Lovina, 98
Phil. 1006, 1956); otherwise, said the Supreme Court in
Garcia vs. Court of Appeals (130 SCRA 433, 1984), reiter-
ating Tolentino vs. Cardenas (123 Phil. 517, 1966), the
disposition would be void. Such a contract, absent the

wife’s consent should be considered merely voidable con-
sistently with Article 173 of the Civil Code under which
provision, the wife could, during the marriage and within
10 years from the questioned transaction, seek its annul-
ment (Felipe vs. Heirs of Maximo Aldon, 120 SCRA 628
[1983]; Reyes vs. De Leon, 20 SCRA 369 [1967]; see Roxas
vs. CA, 198 SCRA 541, 1991 which applied Art. 173 to a
lease contract). Failing to do so, she or her heirs, after the
dissolution of the marriage, could demand the value of
the property alienated (Art. 173, Civil Code). It might not
be amiss to say that an unauthorized sale by the husband
of conjugal real property, not being the administrator
thereof, or of the exclusive paraphernal of the wife, not
having obtained her prior consent thereto, could be void
under the provisions of Article 1874 of the Civil Code.
A sale or encumbrance of conjugal (or community)
property concluded after the effectivity of the Family Code
is governed by an entirely different rule that now treats
such a disposition to be void if done without the conjoint
consent of the spouses or, in case of a spouse’s inability,
the authority of the court (see Art. 124, Family Code).
The declaration that the disposition by just one of the
spouses is void settles the apparent conflict in some of
the rulings during the regime of the 1950 Civil Code, in
construing the provisions of said code found in Articles
161, 162, 166, 171 and 173, in relation to Articles 1390,
7403 and 1874, thereof.
The Family Code has abandoned the 1950 Civil Code
rule of having the husband, in the absence of a contrary
statement in a marriage settlement or a public instru-
ment executed by the husband or an order of a court (Arts.
168, 190 and 196, Civil Code), as the statutory adminis-
trator of the conjugal partnership of gains (Art. 165, Civil
Code) that permitted suits to bind the conjugal partner-
ship even where the wife was not named as a party de-
fendant along with the husband (Stasa Incorporated vs.
Court of Appeals, 182 SCRA 879). Article 124 of the Fam-
ily Code, like the rule established in the system of abso-

lute community of property (see Arts. 96-98, Family Code),
instead confers the administration and enjoyment of the
conjugal property on both spouses jointly. The marriage
settlement, however, the provisions of the Family Code
on conjugal partnership of gain being merely suppletory
thereto, may provide for the administration of the prop-
erty by one of the spouses. Unlike an act of alienation or
encumbrance where the consent of both spouses is re-
quired, joint management or administration does not re-
quire that the husband and the wife always act together.
Each spouse may validly exercise full power of manage-
ment alone, subject to the intervention of the court in
proper cases as so provided under Article 124 of the Fam-
ily Code. Thus, the husband alone, it has been ruled,
could file the petition for certiorari and prohibition to
contest the writs of demolition issued against the conju-
gal property (Spouses Danilo and Ursula Solangon vs.
Jose Avelino Salazar, G.R. No. 125944, 29 June 2001, 150
SCAD 706; Docena vs. Judge Lapesura, G.R. No. 140153,
28 March 2001, 146 SCAD 848).
The 1950 Civil Code permitted the transfer of ad-
ministration during the marriage by the husband to the
wife by means of a public instrument (Art. 168, Civil
Code). Since no equivalent provision is found in the Family
Code, any change in the system, which is not embodied in
a marriage settlement, may only be done by a court order
on the grounds and under the circumstances provided by
said Code (e.g., Art. 128, Family Code). A spouse, however,
may assume sole administration without the necessity of
obtaining court authority, in case of inability of the other
spouse (see Art. 124, Family Code). Court authorization
under Article 124 is only resorted to in cases where the
spouse who does not give consent is incapacitated (Thelma
Manalo vs. Norma Camaisa, G.R. No. 147978, 23 Janu-
ary 2002).
In case of disagreement in the joint administration
and enjoyment of the partnership property, the husband’s
decision shall prevail but the wife may avail herself of
the “proper remedy” in court “within five years from the

date of the contract implementing the decision.”
The terms “administration” and “enjoyment” do not
evidently include the disposition or encumbrance of prop-
erty which invariably requires the consent of both spouses
or, in case of a spouse’s inability, the authority of the
court (see Art. 124, 2nd par., Family Code). The decla-
ration that the disposition or encumbrance by just one of
the spouses is void settles the apparent conflict in vari-
ous decisions during the regime of the 1950 Civil Code,
either applying or misapplying its provisions in articles
161, 162, 166, 171 and 173, in relation to articles 1390,
7403 and 1874 thereof (see Bautista vs. Lovina, et al., 98
Phil. 1006; Garcia vs. Court of Appeals, 130 SCRA 433;
Manotok Realty, Inc. vs. Court of Appeals, 149 SCRA 372;
Felipe vs. Aldon, 100 SCRA 628; Tinitigan vs. Tinitigan,
Sr., 100 SCRA 619). An unauthorized sale by the hus-
band of conjugal real property, not being the administra-
tor thereof, or of the exclusive paraphernal of the wife,
not having obtained her prior consent thereto, could be
void under the provisions of Article 1874 of the Civil
Code. A sale or encumbrance of conjugal (or community)
property concluded after the effectivity of the Family Code
is governed by an entirely different rule that now treats
such a disposition to be void if done without the conjoint
consent of the spouses or, in case of a spouse’s inability,
the authority of the court.
In the administration and enjoyment of the partner-
ship property, however, the husband’s decision prevails
over that of the wife unless judicially controverted (heirs
of Christina Ayuste vs. Court of Appeals and Viena
Malabonga, G.R. No. 118784, 02 September 1999, 313
SCRA 493, Concurring Opinion).
In case of inability of one of the spouses in the ad-
ministration of the conjugal property, the other spouse
may assume the sole power of administration. This time,
Article 124 expressly excludes the power of disposition or
encumbrance which must have the authority of the court
or the written consent of the other spouse; otherwise,

such disposition or encumbrance is void. The transac-
tion, however, shall be construed as a continuing offer by
the transacting parties that may be perfected upon ac-
ceptance by the other spouse or upon authorization by
the court before the offer is withdrawn by either or both
the offerors (Art. 124, Family Code).
As expressed earlier on a similar provision govern-
ing the absolute community of property regime, the above
rules do not contemplate minor or insignificant matters
that either of the spouses are better left alone to act or
decide on (de minimis non curat lex).
Neither spouse, under Article 125 thereof, may do-
nate any conjugal property without the consent of the
other, except for moderate gifts for charity or on occa-
sions of family rejoicing or family distress.
Section 6 — Dissolution of Conjugal Partnership

Regime
Art. 126. The conjugal partnership terminates:

(3) When the marriage is annulled or declared
void; or
(4) In case of judicial separation of property dur-
ing the marriage under Articles 134 to 138. (175a)
and wife shall not affect the regime of conjugal part-
nership, except that:
have the right to be supported;
(2) When the consent of one spouse to any trans-
action of the other is required by law, judicial authori-
zation shall be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partner-

ship 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 ad-
minister or encumber any specific separate property
of the other spouse and use the fruits or proceeds
thereof to satisfy the latter’s share. (178a)
Art. 128. If a spouse without just cause abandons
the other or fails to comply with his or her obligations
to the family, the aggrieved spouse may petition the
court for receivership, for judicial separation of prop-
erty, or for authority to be the sole administrator of the
conjugal partnership property, subject to such precau-
tionary conditions as the court may impose.
The obligations of the family mentioned in the
preceding paragraph refer to marital, parental or prop-
erty 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 con-
jugal dwelling for a period of three months or has failed
within the same period to give any information as to his
or her whereabout shall be prima facie presumed to have
no intention of returning to the conjugal dwelling. (167a,
191a)
The conjugal partnership of gains terminates for the

same causes as the dissolution of the absolute commu-
nity of property. The enumeration in the law is exclusive;
accordingly, a partition agreement made by the spouses
of the conjugal property without judicial approval would
be void (see Luna, et al. vs. Linatoc, 74 Phil. 15, applying
Art. 190 of the 1950 Civil Code, now Art. 134, of the
Family Code). The spouses may, however, jointly petition
the court for the voluntary dissolution of the property
(see Art. 136, Family Code).
After the death of one of the spouses, the sale of any
portion of the conjugal property in order to pay outstand-
ing obligations of the partnership must be made in the

manner and with the formalities established by the rules
of procedure for the sale of the property of deceased per-
sons. Where a complaint is thus brought against the sur-
viving spouse for the recovery of an indebtedness charge-
able against the conjugal property, any judgment obtained
thereby is void. The proper action should be in the form of
a claim to be filed in the testate or intestate proceedings
of the deceased spouse (Ventura vs. Militante, 113 SCAD
685, 316 SCRA 226).
The effects of separation de facto between the spouses,
as well as the abandonment without just cause by one of
them, are, except for the regime, the same as those ex-
pressed in the case of the absolute community of property
system (see discussions on Arts. 99-101, Family Code,
supra.).
Section 7 — Liquidation of the Conjugal Partnership

Assets and Liabilities
Art. 129. Upon the dissolution of the conjugal part-

nership regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing sepa-
rately all the properties of the conjugal partnership and
the exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partner-
ship in payment of personal debts and obligations of
either spouse shall be credited to the conjugal partner-
ship as an asset thereof.
(3) Each spouse shall be reimbursed for the use
of his or her exclusive funds in the acquisition of prop-
erty or for the value of his or her exclusive property,
the ownership of which has been vested by law in the
conjugal partnership.
(4) The debts and obligations of the conjugal
partnership shall be paid out of the conjugal assets. In
case of insufficiency of said assets, the 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 proper-
ties of the spouses shall thereafter be delivered to each
of them.
(6) Unless the owner has 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 partner-
ship 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 pro-
vided in this Code.
(8) The presumptive legitimes of the common
children shall be delivered upon partition in accord-
ance with Article 51.
(9) In the partition of the properties, the conju-
gal dwelling and the lot on which it is situated shall,
unless otherwise agreed upon by the parties, be adju-
dicated to the spouse with whom the majority of the
common children choose to remain. Children below
the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case
there is no such majority, the court shall decide, taking
into consideration the best interests of said children.
(181a, 182a, 183a, 184a, 185a)
Art. 130. Upon the termination of the marriage by
death, the conjugal partnership property shall be liqui-
dated 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 part-
nership property either judicially or extrajudicially within
one year from the death of the deceased spouse. If
upon the lapse of the six month period no liquidation
is made, any disposition or encumbrance involving the

conjugal partnership property of the terminated mar-
riage shall be void.
Should the surviving spouse contract a subse-
quent marriage without compliance with the foregoing
requirements, a mandatory regime of complete separa-
tion of property shall govern the property relations of
the subsequent marriage. (n)
Art. 131. Whenever the liquidation of the conjugal
partnership properties of two or more marriage con-
tracted by the same person before the effectivity of this
Code is carried out simultaneously, the respective capi-
tal, fruits and income of each partnership shall be deter-
mined upon such proof as may be considered accord-
ing to the rules of evidence. In case of doubt as to which
partnership the existing properties belong, the same
shall be divided between the different partnerships in
proportion to the capital and duration of each. (189a)
Art. 132. The Rules of Court on the administration
of estates of deceased persons shall be observed in
the appraisal and sale of property of the conjugal part-
nership, and other matters which are not expressly
determined in this Chapter. (187a)
Art. 133. From the common mass of property sup-
port shall be given to the surviving spouse and to the
children during the liquidation of the inventoried prop-
erty 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)
The conjugal assets and liabilities are liquidated in

the same proceedings that decree legal separation, an-
nulment or declaration of nullity of marriage or separa-
tion of property, or a proceeding which settles the estate
of the deceased spouse. In the latter case where no pro-
ceedings for the settlement of the estate of the decedent
are instituted, the liquidation shall be undertaken, ei-
ther judicially or extrajudicially, by the surviving spouse
subject to the same period and sanctions for, or conse-
quences of, failure as in the liquidation of the absolute

community of property (see discussions on Art. 103, Fam-
ily Code, supra.). Pending its liquidation, the conjugal
partnership of gains is converted into an implied ordi-
nary co-ownership among the surviving spouse and the
other heirs of the deceased (Dael vs. Intermediate Appel-
late Court, 171 SCRA 524).
In the liquidation of the conjugal assets and liabili-
ties, the following procedure, in brief, is observed:
(a) Determination of the conjugal and exclusive as-
sets; amounts advanced by the conjugal partnership for
personal obligations of the spouses are credited to the
conjugal partnership and amounts reimbursable to ei-
ther of the spouses are debited against the partnership;
(b) Payments of conjugal partnership obligations
out of the conjugal assets; if such assets are insufficient,
the spouses are liable solidarily (reversing the joint li-
ability rule in National Bank vs. Quintos and Ansaldo,
46 Phil. 370) for any balance with their separate prop-
erty (pursuant to Article 21, Family Code); if the assets
exceed the conjugal obligations, the loss or deterioration
of movables belonging to either spouse used for the ben-
efit of the family and not compensated for from any source
shall be paid from such excess;
(c) Distribution of the net remainder of the conju-
gal property equally between the husband and the wife
unless a different sharing has been provided for in the
marriage settlement (Art. 106, Family Code) or unless
there has been a valid waiver (Art. 107, Family Code) or
forfeiture of such share in cases of the termination of a
subsequent marriage (Art. 43, Family Code), the annul-
ment or declaration of nullity of marriage (Art. 50, Fam-
ily Code) or legal separation (Art. 63, Family Code); and
(d) Delivery of the presumptive legitimes of the com-
mon children in annulment or declaration of nullity of a
marriage in accordance with Article 51, correlated to Ar-
ticle 50, of the Family Code (Art. 129, Family Code).
The conjugal dwelling and the lot is allocated in the

same way that it is done when the absolute community of
property terminates (see Arts. 120 and 102, Family Code).
During the pendency of the liquidation, support shall
be provided the surviving spouse and the children from
the mass of property chargeable from the fruits or income
thereof pertaining to them and the excess from their re-
spective shares (Art. 133; see also Art. 198, Family Code,
infra.).
The liquidation of two conjugal partnerships requires,
absent proof, the total mass to be divided between the
partnerships in proportion to the donation and exclusive
property of the spouses (Dael vs. Intermediate Appellate
Court, 171 SCRA 524, applying the then Art. 189, Civil
Code).
Chapter 5 — Separation of Property of the Spouses

and Administration of Common Property by
One Spouse During the Marriage
Art. 134. In the absence of an express declaration

in the marriage settlements, the separation of property
between spouses during the marriage shall not take
place except by judicial order. Such judicial separation
of property may either be voluntary or for sufficient
cause. (190a)
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 inter-
diction;
(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 aban-
doned 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 admin-

istration 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)
Art. 136. The spouses may jointly file a verified pe-
tition 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. 137. Once the separation of property has been
decreed, the absolute community or the conjugal part-
nership of gains shall be liquidated in conformity with
this Code.
During the pendency of the proceedings for sepa-
ration of property, the absolute community or the con-
jugal partnership shall pay for the support of the
spouses and their children. (192a)
Art. 138. After dissolution of the absolute com-
munity or of the conjugal partnership, the provisions on
complete separation of property shall apply. (191a)
Art. 139. The petition for separation of property
and the initial judgment granting the same shall be
recorded in the proper local civil registries and regis-
tries of property. (193a)
Art. 140. The separation of property shall not preju-
dice the rights previously acquired by creditors. (194)
Art. 141. The spouses may, in the same proceed-

ings where separation of property was decreed, file a
motion in court for a decree reviving the property re-
gime 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 mar-
riage settlements will not again abuse that power, au-
thorizes the resumption of said administration;
(4) When the spouse who has left the conjugal
home without a decree of legal separation resumes
common life with the other;
(5) When parental authority is judicially restored
to the spouse previously deprived thereof;
(6) When the spouses who have been separated
in fact for at least one year, reconcile and resume com-
mon life; or
(7) When after voluntary dissolution of the abso-
lute 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 prop-
erty regime. No voluntary separation of property may
thereafter be granted.
The revival of the former property regime shall be
governed by Article 67. (195a)
Art. 142. The administration of all classes of ex-
clusive 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)
The separation of property during marriage between

the spouses, if not theretofore provided for in a marriage
settlement, may not be made except by judicial approval,
without which the partition would be void (see Luna,
et al. vs. Linatoc, 74 Phil. 15, applying the then Art. 190
of the Civil Code). The judicial separation may either be
— (a) voluntary such as by the joint petition of the spouses,
in which case such measures as may be necessary to
protect creditors and other persons who may have pecu-
niary interest in the common property must be provided
for, or (b) for cause such as any of these enumerated in
Article 135 of the Code (supra.). The support of the spouses
and their children during the pendency of the proceed-
ings for separation of property shall be sourced from the
absolute community or conjugal property (Art. 137, Fam-
ily Code). The decree of separation of property, which
shall be recorded in the local civil registries and regis-
tries of property, shall have the following effects:
1. The absolute community or the conjugal part-
nership of gains shall be liquidated (Art. 137, in relation
to discussion on Arts. 102-104, 129-133, Family Code,
supra.).
2. The property relations of the spouses shall
thenceforth be governed by the provisions on complete
separation of property (see Art. 138, in relation to Arts.
143-146, Family Code, infra.).
3. The previously acquired rights of creditors shall
not be prejudiced (Art. 140, Family Code).
The property regime that existed between the spouses
before the decree of separation of property may be re-
vived upon motion filed by the spouses in the same pro-

ceedings where separation of property was decreed once
the causes for the property separation cease. A voluntary
separation of property, decreed by the court upon the
joint petition of the spouses, may also be set aside and
the previous property regime revived in the same man-
ner as above, but thereafter no voluntary separation of
property may again be granted (Art. 141, Family Code).
The revival of the former regime is governed by the same
rules on revival of the property system of spouses who
reconcile after a decree of legal separation (see Art. 141,
in relation to Art. 67, Family Code).
Article 142 of the Family Code is a new provision
and allows for the transfer by court order of the adminis-
tration by a spouse of the exclusive property of the other
on grounds expressed therein. It is noteworthy that for
just causes, the court may designate another (a “suit-
able”) person, instead of the spouse, to be the administra-
tor (Art. 142, Family Code).
Chapter 6 — Regime of Separation of Property
Art. 143. Should the future spouses agree in the

marriage settlements that their property relations dur-
ing marriage shall be governed by the regime of sepa-
ration of property, the provisions of this Chapter shall
be of suppletory application. (212a)
Art. 144. Separation of property may refer to present
or future property or both. It may be total or partial. In
the latter case, the property not agreed upon as sepa-
rate shall pertain to the absolute community. (213a)
Art. 145. Each spouse shall own, dispose of, pos-
sess, administer and enjoy his or her own separate
estate, without need of the consent of the other. To
each spouse shall belong all earnings from his or her
profession, business or industry and all fruits, natural,
industrial or civil, due or received during the marriage
from his or her separate property. (214a)
Art. 146. Both spouses shall bear the family ex-

penses in proportion to their income, or, in case of
insufficiency or default thereof, to the current market
value of their separate properties.
The liability of the spouses to creditors for family
expenses shall, however, be solidary. (215a)
The spouses may provide in their marriage settle-

ment for a complete separation of property, referring to
either present or future property or both. In case the
agreement does not comprise all property, that which is
left out by the spouses shall pertain to, and be governed
by the rules on, the regime of absolute community. As
regards the separate property, the provisions of the Fam-
ily Code on the regime of separation of property apply
suppletorily to the marriage settlement (Arts. 143 and
144, Family Code).
Subject to such agreement, each spouse has full title
and beneficial interest, as well as control and adminis-
tration, over his or her own separate property, without
intervention by the other; if the agreement of separation
of property covers future property, all income from work
or industry, as well as from separate property, belong to
each spouse earning the same (Art. 145, Family Code).
The family expenses shall be borne by both spouses in
proportion to their income and, in default thereof or where
the income is insufficient, to the current market value of
their separate property. The liability of the spouses to
creditors for such family expenses, however, is solidary
(Art. 146, Family Code, modifying Art. 215 of the Civil
Code).
The law provides for a mandatory regime of com-
plete separation of property should a spouse contract a
subsequent marriage without first complying with the
requirement that the community or conjugal property be
liquidated judicially or extrajudicially within one year
from the death of the deceased spouse (see Arts. 103 and
130, Family Code, supra.).
Chapter 7 — Property Regime of Unions

Without Marriage
Art. 147. When a man and woman who are capaci-

tated to marry each other, live exclusively with each
other as husband and wife without the benefit of mar-
riage or under a void marriage, their wages and sala-
ries 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-own-
ership.
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 partici-
pate in the acquisition by the other party of any prop-
erty 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 of her share in the property acquired
during cohabitation and owned in common, without
the consent of the other, until after the termination of
their cohabitation.
When only one of the parties to a void marriage is
in good faith, the share of the party in bad faith in the
co-ownership shall be forfeited in favor of their com-
mon 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. In cases of cohabitation not falling under
the preceding Article, only the properties acquired by
both of the parties through their actual joint contribu-
tion of money, property, or industry shall be owned by
them in common in proportion to their respective contri-
butions. In the absence of proof to the contrary, their

contributions and corresponding shares are presumed
to be equal. The same rule and presumption shall ap-
ply to joint deposits of money and evidences of credit.
If one of the parties is validly married to another,
his or her share in the co-ownership shall accrue to
the absolute community or conjugal partnership exist-
ing in such valid marriage. If the party who acted in
bad faith is not validly married to another, his or her
share shall be forfeited in the manner provided in the
last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise
apply even if both parties are in bad faith. (144a)
The Family Code continues to recognize a special

kind of co-ownership in the property relations between a
common-law husband and a common-law wife; thus —
(1) When a man and a woman: (a) do not suffer
from any legal impediment to marry each other, (b) live
exclusively with each other as husband and wife, and (c)
do so 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 and industry shall be gov-
erned by the rules on equal co-ownership. Any property
acquired during the union is prima facie presumed to
have been obtained by their joint efforts and thereby also
owned by them in equal shares. A party who did not
participate in the acquisition of the property shall still be
considered as having contributed thereto jointly if said
party’s “efforts consisted in the care and maintenance of
the family household.” (Art. 147, Family Code).
Unlike that of the conjugal partnership of gains, the
fruits of their separate property are not included in the
co-ownership.
Article 147 of the Family Code, in substance and to
the above extent, has clarified and adopted Article 144 of
the Civil Code as applied and as interpreted heretofore

by the Supreme Court (see Maxey vs. Court of Appeals,
129 SCRA 187; Juaniza vs. Jose, 89 SCRA 306; Aznar vs.
Gabriel, 102 Phil. 1055). In addition, the law now ex-
pressly provides that —
(a) Neither party can dispose or encumber by
act inter vivos his or her share in co-ownership prop-
erty, without the consent of the other, during the
period of cohabitation; and
(b) In the case of a void marriage, any party in
bad faith shall forfeit his share in the co-ownership
in favor of their common children; in default thereof
or waiver by any or all of the common children, each
vacant share shall belong to the respective surviving
descendants, or still in default thereof, to the inno-
cent party. The forfeiture shall take place upon the
termination of the cohabitation (Art. 147, Family
Code) or declaration of nullity of the marriage (see
Arts. 43, 50 and 51, Family Code).
(2) When the common-law spouses suffer from legal
impediment to marry or when they do not live exclusively
with each other as husband and wife, only the property
acquired by both of them through their actual joint con-
tribution of money, property or industry shall be owned
in common and in proportion to their respective contribu-
tions. Such contributions and corresponding shares, how-
ever, are prima facie presumed to be equal. The share of
any party who is married to another shall accrue to the
absolute community or conjugal partnership, as the case
may be, if existing under the valid marriage. If the party
who has acted in bad faith is not validly married to an-
other, his or her share shall be forfeited in the manner
expressed under paragraph (1). The rules on forfeiture,
in any of the above cases, will apply even if both parties
have acted in bad faith (Art. 148, Family Code).
The provisions under Article 147 and Article 148 of
the Family Code did not much deviate from the old rules
(Josephine B. Belcodero vs. Court of Appeals, et al., G.R.

No. 89667, 20 October 1993, 227 SCRA 303).
The rules set up to govern the liquidation of either
the absolute community or the conjugal partnership of
gains, the property regimes recognized for valid and void-
able marriages (in the latter case until the contract is
annulled), are irrelevant to the liquidation of the co-own-
ership that exists between common-law spouses. The first
paragraph of Article 50 of the Family Code, applying
paragraphs (2), (3), (4) and (5) of Article 43, relates only,
by its explicit terms, to voidable marriages and, excep-
tionally, to void marriages under Article 40 of the Code,
i.e., the declaration of nullity of a subsequent marriage
contracted by a spouse of a prior void marriage before the
latter is judicially declared void. The latter is a special
rule that somehow recognizes the philosophy and an old
doctrine that void marriages are inexistent from the very
beginning and no judicial decree is necessary to establish
their nullity. In now requiring for purposes of remarriage,
the declaration of nullity by final judgment of the previ-
ously contracted void marriage, the present law aims to
do away with any continuing uncertainty on the status of
the second marriage. It is not then illogical for the provi-
sions of Article 43, in relation to Articles 41 and 42, of the
Family Code, on the effects of the termination of a subse-
quent marriage contracted during the subsistence of a
previous marriage to be made applicable pro hac vice. In
all other cases, it is not to be assumed that the law has
also meant to have coincident property relations, on the
one hand, between spouses in valid and voidable mar-
riage (before annulment) and, on the other, between com-
mon-law spouses or spouses of void marriages, leaving to
ordain, in the latter case, the ordinary rules on co-owner-
ship subject to the provision of Article 147 and Article
148 of the Family Code. It must be stressed, neverthe-
less, even as it may merely state the obvious, that the
provisions of the Family Code on the “family home,’’ i.e.,
the provisions found in Title V, Chapter 2, of the Family
Code, remain in force and effect regardless of the prop-

erty regime of the spouses (Antonio A.S. Valdes vs. Re-
gional Trial Court, Branch 102, Quezon City, and Consuelo
M. Gomez-Valdes, G.R. No. 122749, 31 July 1996, 260
SCRA 221).
In Cariño vs. Cariño, 351 SCRA 127, the first mar-
riage of the deceased soldier was void for lack of license.
His second marriage was likewise void for non-compli-
ance with Article 40. Hence, the Court ruled, the first
marriage should be governed by Article 147; the second,
by Article 148. The result was that all the monetary ben-
efits from the government due the deceased soldier were
awarded to the first marriage.
364 CIVIL LAW
TITLE V. THE FAMILY
Chapter 1 — The Family as an Institution
Art. 149. The family, being the foundation of the

nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations
are governed by law and no custom, practice or
agreement destructive of the family shall be recognized
or given effect. (216a, 218a)
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants;
and
(4) Among brothers and sisters, whether of the
full or half-blood. (217a)
Art. 151. No suit between members of the same
family shall prosper unless it should appear from the
verified complaint or petition that earnest efforts to-
ward a compromise have been made, but that the same
have failed. If it is shown that no such efforts were in
fact made, the case must be dismissed.
This rule shall not apply to cases which may not
be the subject of compromise under the Civil Code.
(222a)
In its declaration of state policies, Article II of the

1987 Constitution itself has expressed thusly:
“Sec. 12. The State recognizes the sanctity of
family life and shall protect and strengthen the fam-
ily as a basic autonomous social institution. It shall
364
Title V. The Family
equally protect the life of the mother and the life of

the unborn from conception. The natural and pri-
mary right and duty of parents in the rearing of the
youth for civil efficiency and the development of moral
character shall receive the support of the Govern-
ment.
Article XV of the same fundamental law has further
provided:
“Sec. 1. The State recognizes the Filipino family
as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its
total development.
“Sec. 2. Marriage, as an inviolable social insti-
tution, is the foundation of the family and shall be
protected by the State.
“Sec. 3. The State shall defend:
(1) The right of spouses to found a family in
accordance with their religious convictions and the
demands of responsible parenthood;
(2) The right of children to assistance, includ-
ing proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty, exploitation,
and other conditions prejudicial to their develop-
ment;
(3) The right of the family to a family living
wage and income; and
(4) The right of families or family associations
to participate in the planning and implementation
of policies and programs that affect them.’’
“Sec. 4. The Family has the duty to care for its
elderly members but the State may also do so through
just programs of social security.’’
Pursuant to the above mandates, the Family Code
states that the family is the foundation of the nation and
a basic social institution that public policy cherishes and

protects. Accordingly, no customs, practice or agreement
which is destructive of the family shall be given any ef-
fect. In case of doubt, all presumptions favor the solidar-
ity of the family; thus, the intendment of the law leans
towards the validity of marriage, the indissolubility of
the marriage bonds, the legitimacy of the children, the
community of property during marriage, the validity of
defense for any member of the family in case of unlawful
aggression, and the presumption of marriage when a man
and woman live together.
No suit between members of the same family shall
prosper unless it should appear from the verified com-
plaint or petition that earnest efforts towards a compro-
mise have been made but the same have failed. The mem-
bers of the family are enumerated in Article 150; thus, a
suit between the husband and his sister-in-law is not
covered by Article 151 (Gayon vs. Gayon, 36 SCRA 104).
Collateral relatives, other than brothers and sisters, are
not included in the term “family relations’’ (Mendez vs.
Eugenia, 60 SCRA 82). It has also been held that a suit
filed by a woman against her sister and the latter’s hus-
band does not require earnest efforts at a compromise
before filing because the sister’s husband is not included
within the term “family relations’’ under Article 150
(Hontiveros vs. Regional Trial Court, 309 SCRA 340).
Interestingly, Article 151 has been ruled not to apply to a
petition for habeas corpus involving the custody of a child
of tender age which deserves immediate resolution to
protect the child’s welfare (Tribiana vs. Tribiana, G.R.
137359, 13 September 2004).
When the law speaks of family relations, it must be
deemed to refer, unless the contrary is there indicated or
the context of the law otherwise clearly conveys, to both
legitimate and illegitimate ties. The child’s illegitimacy
does not in any way affect the order of priority in the ex-
ercise of parental authority. Indeed, Article 176 of the
Family Code states that an illegitimate child shall be
Title V. The Family
under the parental authority of the mother, who conse-

quentially, should also be entitled to the custody of the
child.
In cases of annulment or declaration of nullity of
marriages and legal separation, the court shall take such
measures as would prevent collusions between the par-
ties and the fabrication of evidence (see Arts. 48 and 60,
Family Code). No suit shall be filed or maintained by and
among members of the same family unless earnest ef-
forts toward a compromise have been made, but that the
same have failed (Art. 151, Family Code). The require-
ment of the law is jurisdictional but it is inapplicable
when the subject matter of the suit cannot be compro-
mised (Art. 2035, Civil Code) such as the status of a child
(Baluyut vs. Baluyut, 186 SCRA 506). The inclusion of a
stranger in a case involving family members takes the
case out of the ambit of Article 151 of the Family Code
(Hontiveros vs. RTC Branch 25, Iloilo City, 108 SCAD
262, 309 SCRA 340; see Gonzales vs. Lopez, 160 SCRA
346; Presco vs. Court of Appeals, 192 SCRA 232; Magbaleta
vs. Gonong, 76 Phil. 511).
Chapter 2 — The Family Home
Art. 152. The family home, constituted jointly by

the husband and the wife or by an unmarried head of a
family, is the dwelling house where they and their fam-
ily reside, and the land on which it is situated. (223a)
Art. 153. The family home is deemed constituted
on a house and lot from the time it is occupied as a
family residence. From the time of its constitution and
so long as any of its beneficiaries actually resides
therein, the family home continues to be such and is
exempt from execution, forced sale or attachment ex-
cept as hereinafter provided and to the extent of the
value allowed by law. (223a)
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried per-
son who is the head of a family; and
(2) Their parents, ascendants, descendants,

brothers and sisters, whether the relationship be legiti-
mate or illegitimate who are living in the family home
and who depend upon the head of the family for legal
support. (226a)
Art. 155. The family home shall be exempt from
execution, forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution
of the family home;
(3) For debts secured by mortgages on the
premises before or after such constitution; and
(4) For debts due to laborers, mechanics, archi-
tects, builders, materialmen and others who have ren-
dered service or furnish material for the construction
of the building. (243a)
Art. 156. The family home must be part of the prop-
erties of the absolute community or the conjugal part-
nership, 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 prop-
erty.
Nevertheless, property that is the subject of a con-
ditional sale on installments where ownership is re-
served by the vendor only to guarantee payment of the
purchase price may be constituted as a family home.
(227a, 228a)
Art. 157. The actual value of the family home shall
not exceed, at the time of its constitution, the amount
of three hundred thousand pesos in urban areas, and
two hundred thousand pesos in rural areas, or such
amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes
after the adoption of this Code, the value most favorable
for the constitution of a family home shall be the basis
of evaluation.
For purposes of this Article, urban areas are
deemed to include chartered cities and municipalities
Title V. The Family
whose annual income at least equals that legally re-

quired for chartered cities. All others are deemed to be
rural areas. (231a)
Art. 158. The family home may be sold, alienated,
donated, assigned or encumbered by the owner or own-
ers thereof with the written consent of the person con-
stituting the same, the latter’s spouse, and a majority
of the beneficiaries of legal age. In case of conflict, the
court shall decide. (235a)
Art. 159. The family home shall continue despite
the death of one or both spouses or of the unmarried
head of the family for a period of ten years or for as
long as there is a minor beneficiary, and the heirs can-
not partition the same unless the court finds compel-
ling reasons therefor. This rule shall apply regardless
of whoever owns the property or constituted the family
home. (238a)
Art. 160. When a creditor whose claim is not
among those mentioned in Article 155 obtains a judg-
ment 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 execu-
tion. The court shall so order if it finds that the actual
value of the family home exceeds the maximum amount
allowed by law as of the time of its constitution. If the
increased actual value exceeds the maximum allowed
in Article 157 and results from subsequent voluntary
improvements introduced by the person or persons
constituting the family home, by the owner or owners
of the property, or by any of the beneficiaries, the same
rule and procedure shall apply.
At the execution sale, no bid below the value al-
lowed for a family home shall be considered. The pro-
ceeds shall be applied first to the amount mentioned
in Article 157, and then to the liabilities under the judg-
ment and the costs. The excess, if any, shall be deliv-
ered to the judgment debtor. (247a, 148a)
Art. 161. For purposes of availing of the benefits
of a family home as provided for in this Chapter, a
person may constitute, or be the beneficiary of, only

one family home. (n)
Art. 162. The provisions in this Chapter shall also
govern existing family residences insofar as said pro-
visions are applicable. (n)
The family home is the dwelling house, but not the

movables found therein, and the lot on which it is situ-
ated where the husband and the wife or an unmarried
head of a family and their family reside. Unlike the Civil
Code provisions (Arts. 223-224), which required an extra-
judicial (by registration) or judicial constitution, the Fam-
ily Code deems the family home to be forthwith consti-
tuted once it is occupied as a family residence and while
any of its beneficiaries actually reside therein. The ben-
eficiaries of the family home, beside the spouses or the
head of family, include the ascendants, descendants, broth-
ers and sisters, whether the relationship is legitimate or
illegitimate, living therein and dependent upon the
spouses or the head of family for legal support (Arts. 152-
154, Family Code).
The property must belong to the person constituting
it as family home; in the case of the spouses, the family
home must form part of the community or conjugal prop-
erty or the exclusive property of one of them with his or
her consent. Such property would qualify if it is pur-
chased under a conditional sale on installments (or credit)
where ownership is reserved by the seller pending the
payment of the selling price (Art. 156, Family Code). The
actual value of the property shall not exceed, at the time
of its constitution, the sum of P300,000 in urban areas
(chartered cities and municipalities whose annual income
is at least that legally required for chartered cities) and
of P200,000 in all other areas (Art. 157, Family Code).
The family home is exempt from execution, forced
sale or attachment except for —
(1) Unpaid taxes;
Title V. The Family
(2) Debts incurred prior to its constitution; hence,

family homes constituted for the first time under the
Family Code are not exempt from execution for debts
incurred prior to August 3, 1988 (Modequillo vs. Breva,
185 SCRA 766);
(3) Debts secured by mortgage before or after such
constitution; and
(4) Debts due to laborers, mechanics, architects,
builders, materialmen, and others who have rendered
service or furnished material for the construction of the
dwelling house.
A judgment creditor whose claim does not fall under
any of the above enumeration and who has reasonable
grounds to believe that the family home of the judgment
debtor is worth more than the P200,000 or P300,000 ceil-
ing as of the time of its constitution or by the subsequent
voluntary improvements introduced thereon by the per-
sons constituting the family home or its beneficiaries,
may apply to the court which rendered the judgment for
the sale of the property. If the court finds merit in the
application, it shall order the execution thereof but no
bid below said ceiling shall be considered. In case of sale,
the proceeds shall be applied in the following order —
(a) To the amount stated in Article 157 (supra.);
(b) To the liabilities under the judgment and the
costs; and
(c) To the judgment debtor (Art. 160, Family Code).
For purposes of the availment of benefits of a family
home, a person may constitute, or be the beneficiary of,
only one family home (Art. 161, Family Code).
Dissolution of the Family Home

The family home is dissolved under any of the fol-
lowing circumstances:
(1) When no longer any of the beneficiaries actu-
ally reside therein (see Art. 153, Family Code);
(2) When the court causes the sale thereof upon

application of a judgment creditor under the provisions
of Article 160 of the Family Code (supra.);
(3) Upon the conveyance thereof by the owner or
owners of the property with the written consent of the
person constituting the family home, the latter’s spouse
and a majority of the beneficiaries of legal age; in case of
conflict, the court shall decide (Art. 158, Family Code); or
(4) Ten years after the death of one or both spouses
or of the unmarried head of family or for as long as there
is a minor beneficiary; meantime, the heirs cannot parti-
tion the property unless the court finds compelling rea-
sons therefor. This rule applies regardless of whoever
owns the property or constituted the family home (Art.
159, Family Code).
The 1950 Civil Code also has provided as causes of
dissolution of the family home the annulment of mar-
riage or legal separation and the death of the person who
has set up the family home if so desired in his will (Arts.
237 and 238, Civil Code). Having been deleted in the
Family Code, said grounds may no longer, by themselves,
cause the dissolution of the family home. In the liquida-
tion of the community or conjugal property, the family
home shall be adjudicated in the manner provided for in
Article 120 and Article 129 of the Family Code.
The provisions of the Family Code on the family
home shall also govern family residences already exist-
ing at the time of its adoption to the extent applicable
(see Art. 162, Family Code). All existing family residences
at the time the Family Code took effect are considered
family homes and are prospectively entitled to the ben-
efits accorded by it to a family home (Taneo, Jr. vs. Court
of Appeals, 104 SCAD 264, 304 SCRA 308).
373
TITLE VI. PATERNITY AND FILIATION
Paternity is the civil status of a father (“maternity”

for the mother) with regard to the child, while filiation is
the civil status of a child with regard to his parents. Pa-
ternity and filiation cannot be left to the will or agree-
ment of the parties. Paternity and filiation or the lack
thereof is a relationship that must, in an appropriate man-
ner, be judicially established, and it is for the court, not
by stipulation, to declare its existence or non-existence
(De Asis vs. Court of Appeals, 103 SCAD 422, 303 SCRA
176). The filiation of children is either by nature or by
adoption. Natural filiation may be legitimate (conceived
or born of parents who are lawfully married) or illegitimate
(conceived or born of parents who are not lawfully married).
Adopted children are those who by legal and judicial process
have been decreed as such by the courts.
The distinctions between natural children (those born
outside wedlock of parents who at the time of conception
were not disqualified by any impediment to marry) and
non-natural or spurious children (those born of parents
who were unmarried but who could not have married
because of an impediment at the time of conception or
birth of the child), under the 1950 Civil Code, have been
attempted to be eliminated (see People vs. Rafanan, 182
SCRA 811), except for purposes of legitimation since only
the former, even under the Family Code, may be legiti-
mated (see Art. 177, Family Code).
Affinity is the relation which one acquires with his
or her spouse’s blood relations because of marriage; thus,
the affines of the wife are not those of the husband nor
are the affines of the husband those of the wife. Unlike
relationship by blood, but similar to adoption, the rela-
373
tionship by affinity ceases with the dissolution of the

marriage that produces it, although the law or its context
would at times indifferently indicate otherwise or only by
way of nomenclature.
Chapter 1 — Legitimate Children

Art. 163. The filiation of children may be by nature
or by adoption. Natural filiation may be legitimate or
illegitimate. (n)
Art. 164. Children conceived or born during the
marriage of the parents are legitimate.
Children conceived as a result of artificial insemi-
nation of the wife with 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 au-
thorized or ratified such insemination in a written in-
strument 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. (255a, 258a)
Art. 165. Children conceived and born outside a
valid marriage are illegitimate, unless otherwise pro-
vided in this Code. (n)
Art. 166. The legitimacy of a child may be im-
pugned only on the following grounds:
(1) That it was physically impossible for the hus-
band 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 inter-
course 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
Title VI. Paternity and Filiation
of the husband, except in the instance provided in the

second paragraph of Article 164; or
(3) That in case of children conceived through
artificial insemination, the written authorization or
ratification of either parent was obtained through
mistake, fraud, violence, intimidation, or undue influence.
(255a)
Art. 167. The child shall be considered legitimate
legitimacy or may have been sentenced as an
adulteress. (256a)
Art. 168. If the marriage is terminated and the
mother contracted another marriage within three hun-
dred days after such termination of the former mar-
riage, 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 mar-
riage, even though it be born within the three hundred
days after the termination of the former marriage. (259a)
Art. 169. The legitimacy or illegitimacy of a child
born after three hundred days following the termina-
tion of the marriage shall be proved by whoever al-
leges such legitimacy or illegitimacy. (261a)
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 reg-
ister, if the husband or, in a proper case, any of his
heirs, should reside in the city or municipality where
the birth took place or was recorded.
If the husband or, in his default all of his heirs do
not reside at the place of birth as defined in the first
paragraph or where it was recorded, the period shall be
two years if they should reside in the Philippines; and

three years if abroad. If the birth of the child has been
concealed from or was unknown to the husband or his
heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier. (263a)
Art. 171. The heirs of the husband may impugn
the filiation of the child within the period prescribed in
the preceding article only in the following cases:
(1) If the husband should die before the expira-
tion of the period fixed for bringing his action;
(2) If he should die after the filing of the com-
plaint, without having desisted therefrom; or
(3) If the child was born after the death of the
husband. (262a)
Unlike the 1950 Civil Code which merely provided

for varying degrees of presumptions of legitimacy, i.e.,
disputable, quasi-conclusive and conclusive, the Family
Code recognizes and declares generally as a matter of
fact the status of legitimate children. Thus, “children
conceived or born during marriage of the parents are
legitimate” (Art. 164, Family Code). Nevertheless, the
presumption that children born in wedlock are legiti-
mate still holds. To destroy this presumption of legiti-
macy, the party against whom it operates must adduce
sufficient and credible evidence to the contrary (Tison vs.
Court of Appeals, 85 SCAD 341, 276 SCRA 582). The
presumption of legitimacy of children does not only flow
out from a declaration contained in the statute but is
based on the broad principles of natural justice and the
supposed virtue of the mother (William Liyaim, Jr. vs.
Juanita Tanhoti-Liyao, G.R. No. 138961, 7 March 2002).
Indeed, there is perhaps no presumption of the law
more firmly established and founded on sounder moral-
ity and more convincing reason than the presumption
that children born in wedlock are legitimate. This pre-
sumption indeed becomes conclusive in the absence of
proof that there is physical impossibility of access be-

tween the spouses during the first 120 days of the 300
days which immediately precedes the birth of the child
due to (a) the physical incapacity of the husband to have
sexual intercourse with his wife; (b) the fact that the
husband and wife are living separately in such a way
that sexual intercourse is not possible; or (c) serious ill-
ness of the husband, which absolutely prevents sexual
intercourse. Quite remarkably, upon the expiration of the
periods set forth in Article 170, and in proper cases Arti-
cle 171, of the Family Code (which took effect on 03 Au-
gust 1988), the action to impugn the legitimacy of a child
would no longer be legally feasible and the status con-
ferred by the presumption becomes fixed and unassail-
able.
In the case of De Jesus vs. The Estate of Juan Dizon
(G.R. No. 142877, 02 October 2001), the petitioners
attempted to establish their legitimate filiation to the
late Juan G. Dizon and, in effect, impugn their legitimate
status as being children of Danilo and Carolina De Jesus.
The Court said that the law itself establishes the legiti-
macy of children conceived or born during the marriage
of the parents. The presumption of legitimacy fixes a civil
status for the child born in wedlock, and only the father,
or in exceptional instances the latter’s heirs, can contest
in an appropriate action the legitimacy of a child born to
his wife. Thus, it is only when the legitimacy of a child
has been successfully impugned that the paternity of the
husband can be rejected.
The Family Code has introduced a new provision
that also confers legitimate status to children conceived
by the artificial insemination of the wife with the sperm
not only of the husband but also that of a donor, or of both
the husband and the donor, provided that both the hus-
band and the wife authorized or ratified such insemina-
tion in a written instrument executed and signed by them
before the birth of the child (Art. 164, Family Code). It is
believed, the second paragraph of Article 164 notwith-
standing, that where only the sperm of the husband is

used in the artificial insemination of the wife, the child
conceived thereby should be considered legitimate under
the first paragraph of said article without the need of the
formalities of authority or ratification for such artificial
insemination.
Likewise declared as legitimate children, elsewhere
in the Family Code, are those of certain void marriages
under Article 36 (due to psychological incapacity) con-
ceived or born before the judicial declaration of nullity of
the marriage (Art. 54, Family Code) and Article 53, in
relation to Article 52 (due to failure of partition, delivery
of presumptive legitimes and recording thereof following
the annulment or declaration of nullity of a prior mar-
riage) conceived or born before the judicial declaration of
nullity of such void marriages (Art. 54, Family Code). Not
included in these special declarations of legitimacy, how-
ever, are children of void marriages under Article 44 (sub-
sequent marriage by a spouse present where both con-
tracting parties thereto acted in bad faith).
The Family Code is not explicit as regards children
of a subsequent marriage contracted by a spouse of a
prior void marriage before the latter is judicially declared
as an absolute nullity. The law merely provides that the
“absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void” (Art.
40, Family Code). The status, however, of the subsequent
marriage is not itself defined, although Article 52, in
relation to Article 53, would give the impression that the
marriage is void. Article 54, correlating it with Article 53,
that grants legitimate status to children of certain void
marriage, did not cover those of a subsequent marriage
entered into by a spouse of a prior void marriage before
the latter is judicially declared a nullity, and the children
are thus, in strictissimi juris, to be considered illegiti-
mate under the general provisions of Article 165 of the
Family Code (supra.).
If the marriage is terminated, such as by the death

of the husband or annulment of marriage, and within 300
days thereafter the mother contracts a second marriage
and bear within the same 300-day period a child, the
latter, if born within 180 days from the celebration of the
marriage, is deemed to have been conceived during the
first marriage; otherwise (if born after 180 days from
such celebration), the child shall be considered conceived
of the second marriage. The law, however, states that the
above rule governs “in the absence of proof to the contrary”
(Art. 168, Family Code) that, in effect, made the provision
a mere statement of prima facie presumption in either of
the two cases.
The child shall be considered legitimate in the cases
provided for by law (Arts. 164, 36 and 53, in relation to
Art. 52, Family Code) although the mother may have
declared otherwise or may have been sentenced as an
adulteress (Art. 167, Family Code). The husband, how-
ever, may impugn the legitimacy of the child but only on
specified grounds; to wit:
(1) Physical impossibility on the part of the hus-
band to have sexual intercourse with the wife within the
first 120 days of the 300 days preceding the birth of the
child (period of conception) due to —
(a) Physical incapacity (impotency, not mere
sterility) of the husband to have sexual intercourse;
(b) The fact that the spouses are living sepa-
rately such that sexual intercourse between them is
not possible; or
(c) Serious illness of the husband “absolutely”
preventing sexual intercourse (such as when the
husband suffers from paralysis in that part of the
body). It has been held, applying similar provisions
of the Civil Code, that the fact that the husband is
suffering from tuberculosis and that the wife has
committed adultery during the period of conception
are not enough to impugn a child’s legitimacy (see
Andal vs. Macaraig, 89 Phil. 165; see also De Aparicio

vs. Paraguya, 150 SCRA 279).
(2) Biological or other scientific reasons which es-
tablish that the child could have not been that of the
husband except as provided in Article 164 regarding chil-
dren conceived as a result of artificial insemination of the
wife. Under Article 257 of the 1950 Civil Code, the child
was presumed illegitimate only if the wife committed
adultery at or about the time of its conception and the
child for ethnic reasons could not have been that of the
husband. The lack of physical resemblance, following this
provision (physiognomy), was not considered enough to
apply the presumption of illegitimacy (Chun Chong vs.
Collector, 338 Phil. 815), but racial dissimilarity coupled
with the wife’s adultery was held to be sufficient (Lee
Sing vs. Collector of Customs, 59 Phil. 147). Under the
Family Code, the stress has been shifted to solely scien-
tific reasons. In this connection, blood-grouping tests may
be conclusive as to non-paternity but inconclusive as to
paternity (see Jao vs. Court of Appeals, 152 SCRA 359).
Still to pass judicial recognition in this jurisdiction, but
soon expected, is the application of the human lucosyte
antigen test to paternity disputes.
Parentage will still be resolved using conventional
methods unless we adopt the modern and scientific ways
available. Fortunately, we have now the facility and ex-
pertise in using DNA test for identification and parent-
age testing. The University of the Philippines Natural
Science Research Institute (UP-NSRI) DNA Analysis
Laboratory has now the capability to conduct DNA typ-
ing using Short Tandem Repeat (STR) analysis. The analy-
sis is based on the fact that the DNA of a child/person has
two (2) copies, one copy from the mother and the other
from the father. The DNA from the mother, the alleged
father and child is analyzed to establish parentage. Of
course, being a novel scientific technique, the use of DNA
test as evidence is still open to challenge. Eventually, as
the appropriate case comes, courts should not hesitate to
rule on the admissibility of DNA evidence. The Supreme

Court, in Tijing vs. Court of Appeals (354 SCRA 17), has
counseled that courts should apply the results of science
when completely obtained in aid of situations presented,
since to reject said result is to deny progress. Deoxyri-
bonucleic acid or DNA is the fundamental building block
of a person’s entire genetic makeup. A person’s DNA pro-
file serves as his own ‘DNA print’ that would determine
his genetic identity (Forensic DNA Analysis in Criminal
and Civil cases, Maria Corazon De Ungria, Ph. D). Where
proof of filiation or paternity would be unlikely to satis-
factorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body
cells of the illegitimate child and any physical residue of
the lead dead parent could be resorted to. A positive match
would clear up filiation or paternity. In Tijing vs. Court of
Appeals (354 SCRA 17), the Court has acknowledged the
strong weight of DNA testing —
“Parentage will still be resolved using conven-
tional methods unless we adopt the modern and sci-
entific ways available. Fortunately, we have now the
facility and expertise in using DNA test for identifi-
cation and parentage testing. The University of the
Philippines Natural Science Research Institute (UP-
NSRI) DNA Analysis Laboratory has now the capa-
bility to conduct DNA typing using short tandem
repeat (STR) analysis. The analysis is based on the
fact that the DNA of a child/person has two (2) cop-
ies, one copy from the mother and the other from the
father. The DNA from the mother, the alleged father
and the child are analyzed to establish parentage.
Of course, being a novel scientific technique, the use
of DNA test as evidence is still open to challenge.
Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of
DNA evidence. For it was said that courts should
apply the results of science when completely obtained
in aid of situations presented, since to reject said
results is to deny progress.’’ (Maria Jeanette C.
Tecson, et al. vs. Commission on Elections, et al.,

G.R. No. 161434; Zoilp Antonio Velez vs. Ronald
Kelley Poe, G.R. No. 161634; Victorino X. Fornier vs.
Comelec, et al., G.R. No. 161824; 03 March 2004; see
also In re petition of De Villa for habeas corpus, G.R.
158802, 17 Nov. 2004).
(3) In the case of children conceived through artifi-
cial insemination, the vitiation of the written author-
ization or ratification of either spouse because of mis-
take, fraud, violence, intimidation, or undue influence
(see Art. 166, Family Code).
The action to impugn the legitimacy of the child
must be brought —
(a) If the husband, or any of his heirs in cases
where the right of action is transmitted to them (see
Art. 171, Family Code), resides in the city or munici-
pality where the birth took place or was recorded —
within one year from knowledge of the birth of the
child or its recording in the civil register, whichever
is earlier;
(b) If the husband or, in his default, all of his
heirs do not reside in the city or municipality of birth
or recording — within two years to be reckoned as
above; or
(c) If the husband or, in proper cases, his heirs
reside abroad — within three years to be similarly
reckoned.
In the foregoing cases, if the birth of the child is
concealed from, and unknown to, the husband or the
heirs, as the case may be, the applicable period shall be
counted from the discovery or knowledge of the birth or
the fact of registration of said birth, whichever is earlier
The action to impugn the filiation of the child within
the applicable prescriptive period is transmitted to the
heirs of the husband only in the following cases:
(1) If, before the lapse of the applicable prescrip-

tive period, the husband dies;
(2) If, after the action to impugn is filed, the hus-
band dies without having desisted therefrom; or
(3) If the child is born after the death of the hus-
band (Art. 171, Family Code).
Upon the expiration of the periods set forth in Arti-
cle 170, and in proper cases Article 171, the action to
impugn the legitimacy of a child would no longer be le-
gally feasible and the status conferred by the presump-
tion becomes fixed and unassailable (De Jesus vs. Estate
of Juan Dizon, supra.). Impugning the legitimacy of the
child is a strictly personal right of the husband or, in
exceptional cases, of his heirs for the simple reason that
he is the one directly confronted with the scandal and
ridicule which the infidelity of his wife produces and he
should be the one to decide whether to conceal that infi-
delity or expose it in view of the moral and economic
interests involved (William Liyaim, Jr. vs. Juanita
Tanhoti-Liyao, G.R. No. 138961, 7 March 2002). The pe-
riods in Article 171 apply only when the husband im-
pugns the legitimacy of his wife’s child; they do not apply
when the child is alleged not to be his wife’s child but of
another woman’ (Babiera vs. Catotal, 333 SCRA 487).
Legitimacy cannot be collaterally attacked but only di-
rectly by the mother’s husband (De Jesus vs. Estate of
Dizon, Oct. 2001, 366 SCRA 499).
Chapter 2 — Proof of Filiation
Art. 172. The filiation of legitime children is estab-

lished by any of the following:
(1) The record of birth appearing in the civil reg-
ister or a final judgment; or
(2) An admission of legitimate filiation in a pub-
lic document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the le-

gitimate filiation shall be proved by:
(1) The open and continuous possession of the
status of a legitimate child; or
(2) Any other means allowed by the Rules of
Court and special laws. (265a, 266a, 267a)
Art. 173. The action to claim legitimacy may be
brought by the child during his or her lifetime and
shall be transmitted to the heirs should the child die
during minority or in a state of insanity. In these cases,
the heirs shall have a period of five years within which
to institute the action.
The action already commenced by the child shall
survive notwithstanding the death of either or both of
the parties. (268a)
When the child’s legitimacy is expressed in: (a) a record

of birth signed by the father (see Baluyut vs. Baluyut, 186
SCRA 506; Vda. de Alberto vs. Court of Appeals, 173 SCRA
436), (b) a final judgment, or (c) an admission in a public
document or a private handwritten instrument and signed
by the parent concerned, the fact of filiation is established,
being in effect uncontroverted, and no further judicial ac-
tion is required (albeit not prohibited). In the third mode,
the “admission,” it is believed, must be direct and unam-
biguous to make it at par with, or at least comparable in
form and substance to, either a record of birth or a final
judgment. An incidental statement that does not convey
a clear intent to establish the child’s legitimacy should,
at best, be just a piece of evidence that might be consid-
ered in proving that filiation by judicial action.
A birth certificate is a formidable piece of evidence
prescribed by both the Civil Code and Family Code for
purposes of recognition and filiation; nevertheless, the
birth certificate offers only prima facie evidence of filia-
tion and may be refuted by contrary evidence. Its eviden-
tiary worth cannot be sustained where there exists strong,
complete, and conclusive proof of its falsity or nullity
(Sayson vs. Court of Appeals, 205 SCRA 321; Intestate

Estate of Juan Locsin, Sr. vs. Juan Locsin, Jr., G.R. No.
146737, 10 December 2001). A certificate of live birth
purportedly identifying the putative father is not compe-
tent evidence as to the issue of paternity, when there is
no showing that the putative father had a hand in the
preparation of the certificate (Jison vs. Court of Appeals,
91 SCAD 849, 286 SCRA 495).
The second paragraph of Article 172 of the Family
Code, providing that the filiation may be proved by: (a)
an open and continuous possession of the status of a
legitimate child; or (b) any other means allowed by the
Rules of Court and special laws, contemplates the neces-
sity of judicial action in order to finally establish filiation
(see Quismundo vs. Workmen’s Compensation Commis-
sion, 132 SCRA 590; revoking Tongoy vs. Court of Ap-
peals, 123 SCRA 99, and reinstating Noble vs. Noble, 18
SCRA 1104; Paulino vs. Paulino, 3 SCRA 730; see also
Vda. de Sy-Quia vs. Court of Appeals, 125 SCRA 835;
Uyguangco vs. Court of Appeals, 178 SCRA 684; but see
Castro vs. Court of Appeals, 173 SCRA 656).
The continuous possession of the status of an ille-
gitimate child must be of such nature that it reveals not
only the conviction of paternity but also the apparent
desire to have and treat the child as such in relation to
society and in life, not accidentally but continuously
(Baluyut vs. Baluyut, 186 SCRA 506). “Continuous” does
not mean “forever”; it is enough that it is not intermittent
while it lasts but it must be direct, spontaneous and
public (Mendoza vs. Court of Appeals, 201 SCRA 675).
Possession of status of a child does not in itself constitute
an acknowledgment; it is only a ground for a child to
compel recognition by his assumed parent (Rodolfo
Fernandez vs. Romeo Fernandez, G.R. No. 143256, 28
August 2001, 153 SCAD 787).
A baptismal certificate, a statement in the marriage
contract of the bride’s alleged father, school records or
photographs, by themselves, have not been independ-

ently considered as reliable proof (see Reyes vs. Court of
Appeals, 135 SCRA 439). Blood-grouping tests may be
conclusive as to non-paternity but inconclusive as to pa-
ternity (Jao vs. Court of Appeals, 152 SCRA 359).
The action to claim his legitimacy may be brought
by, and during the lifetime of, the child. The right is
transmitted to the heirs should the child die during mi-
nority or in a state of insanity, in which case the heirs
shall have a period of five years thereafter to institute
the action. An action already commenced by the child is
transmitted, if still pending, upon his or her death (see
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 parent, their
ascendants, in proper cases, their brothers and sis-
ters, in conformity with the provisions of this Code on
Support; and
(3) To be entitled to the legitimate and other suc-
cessional rights granted to them by the Civil Code. (264a)
Article 174 merely encapsulates the rights of legiti-

mate children detailed and expressed in various provi-
sions of the Civil Code and the Family Code.
Chapter 3 — Illegitimate Children

Art. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.
The action must be brought within the same pe-
riod 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)
Art. 176. Illegitimate children shall use the surname

and shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this
Code. The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate child.
(287a)
Illegitimate children are those conceived and born out-

side a valid marriage (Art. 165, Family Code), except those
provided for in Article 36 (void marriages due to psychologi-
cal incapacity) and Article 53, in relation to Article 52 (void
marriages due to failure of partition, delivery of presump-
tive legitimes and recording thereof, following the annul-
ment or declaration of nullity of a prior marriage) who are
by said provisions of the Family Code specially considered
legitimate despite the invalidity of the marriage.
The filiation of illegitimate children, like legitimate
children, is established by (1) the record of birth appear-
ing 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 par-
ent concerned. In the absence thereof, filiation shall be
proved by (1) the open and continuous possession of the
status of a legitimate child; or (2) any other means al-
lowed by the Rules of Court and special laws. The due
recognition of an illegitimate child in a record of birth, a
will, a statement before a court of record, or in any au-
thentic writing is, in itself, a consummated act of ac-
knowledgment of the child, and no further court action is
required. In fact, any authentic writing is treated not
just a ground for compulsory recognition; it is in itself a
voluntary recognition that does not require a separate
action for judicial approval. Where, instead, a claim for
recognition is predicated on other evidence merely tend-
ing to prove paternity, i.e., outside of a record of birth, a
will, a statement before a court of record of an authentic
writing, judicial action within the applicable statute of
limitations is essential in order to establish the child’s
acknowledgment. (see De Jesus vs. Dizon, G.R. No. 142877,
2 October 2001; Gono-Javier vs. Court of Appeals, 239

SCRA 593).
Under the Civil Code of Spain, which was in force in
the Philippines from 08 December 1889 up until the day
prior to 30 August 1950 when the Civil Code of the Phil-
ippines took effect, acknowledgement was required to
establish filiation or paternity. Acknowledgment was ei-
ther judicial (compulsory) or voluntary. Judicial or com-
pulsory acknowledgment was possible only if done dur-
ing the lifetime of the putative parent; voluntary acknowl-
edgment could only be had in a record of birth, a will, or a
public document. In order that the birth certificate could
then be utilized to prove voluntary acknowledgment of
filiation or paternity, the certificate was required to be
signed or sworn to by the father. The failure of such
requirement rendered the same useless from being an
authoritative document of recognition.
Compulsory acknowledgment could be demanded
generally in cases when the child had in his favor any
evidence to prove filiation. Unlike an action to claim le-
gitimacy which would last during the lifetime of the child,
and might pass exceptionally to the heirs of the child, an
action to claim acknowledgment, however, could only be
brought during the lifetime of the presumed parent. Le-
gal acknowledgment took place in favor of full blood broth-
ers and sisters of an illegitimate child who was recog-
nized or judicially declared as natural.
The proof of filiation of paternity for purposes of
determining his citizenship status is independent from
and not inextricably tied up with that prescribed for civil
law purposes. The Civil Code or Family Code provisions
on proof of filiation or paternity, although good law, do
not have preclusive effects on matters alien to personal
and family relations. The ordinary rules on evidence could
well and should govern. The ordinary rules on evidence
could well and should govern. For instance, the matter
about pedigree is not necessarily precluded from being
applicable by the Civil Code or Family Code provisions
(Maria Jeanette C. Tecson, et al. vs. Commission on Elec-

tions, et al., G.R. No. 161434; Zoilp Antonio Velez vs.
Ronald Kelley Poe, G.R. No. 161634; Victorino X. Fornier
vs. Comelec, et al., G.R. No. 161824; 03 March 2004).
Article 175 of the Family Code states that the filia-
tion of illegitimate children is established in the same
manner or proved on the same evidence as legitimate
children as so provided for in Article 172 of the Family
Code (supra.). Whereas an action to claim legitimacy un-
der the second paragraph of said Article 172 (requiring
judicial action) may be brought by the child during his or
her lifetime, an action, however, to prove filiation of an
illegitimate must be brought during the lifetime of the
alleged parent (Art. 175, Family Code; Uyguangco vs.
Court of Appeals, 178 SCRA 684; but see Castro vs. Court
of Appeals, 173 SCRA 656). The requirement that the
action be filed during the lifetime of the alleged parent is
to prevent illegitimate children, on account of strong temp-
tations to large estates left by dead persons, to claim part
of the property without giving the alleged parent per-
sonal opportunity to be heard (Cenido vs. Apacionado,
115 SCAD 798, 318 SCRA 688). These provisions have
retroactive effects so long as vested rights are not im-
paired (in relation to Art. 256, Family Code; Uyguangco
vs. Castro, supra.). The success of an action to establish
illegitimate filiation under the second paragraph of Arti-
cle 172 of the Family Code hinges on a “high standard of
proof.” There must be evidence of the manifestation of
permanent intention by the supposed father to consider
the child as his by continuous and clear manifestations of
parental affection and care which cannot just be attrib-
uted to pure charity (Jison vs. Court of Appeals, 91 SCAD
849, 286 SCRA 495).
In the matter of proving filiation, the Supreme Court
continued to uphold what it believed to be the evident
intent of the law to liberalize the rule on the investiga-
tion of paternity of an illegitimate child. In one case, it so
allowed as proof of illegitimacy the mother’s disclosure of
the child’s father (Rodriguez vs. Court of Appeals, 61 SCAD

896, 245 SCRA 150). In another, the fact of marriage and
consequently that of filiation was proved despite the ab-
sence of marriage contract and petitioner’s birth certificate
by the testimony of witnesses, consisting of their attend-
ance to the parents’ wedding ceremony and the petitioner’s
baptism, the deportment of the parents as being husband
and wife, the baptismal certificate identifying the petition-
er’s parents, and the petitioner’s continued and open use of
the father’s name without any objection from the former’s
other relatives (Trinidad vs. Court of Appeals, 93 SCAD
610, 289 SCRA 188). When a putative father manifested
openly through words and deeds his recognition of a child,
the courts should do no less than confirm that acknowledg-
ment (Lim vs. Court of Appeals, 80 SCAD 685, 270 SCRA 1).
In Rodolfo Fernandez vs. Romeo Fernandez (G.R. No. 143256,
28 August 2001, 153 SCAD 787), however, the Court held
that an application for recognition of back pay rights under
Act No. 897, although a public document, was nonetheless
an inconclusive proof of filiation between the applicant-al-
leged parent and the person seeking recognition.
During the regime of the 1950 Civil Code, the right to
claim recognition, unlike an action to claim legitimacy, in no
event could pass to the heirs of the child (see Conde vs.
Abaya, 13 Phil. 249; Vda. de Clemeña vs. Clemeña, 24 SCRA
720, Heirs of Raymundo C. Bañas vs. Heirs of Bibiano Bañas,
134 SCRA 260). Under Article 175 of the Family Code,
while the law expresses that “illegitimate children may es-
tablish their illegitimate filiation in the same way and on
the same evidence as legitimate children” and that “the
action may be brought within the same period specified in
the 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,”
no mention has been made, however, on whether or not that
right is transmitted to the heirs of said children. It is be-
lieved that the Family Code has neither intended nor con-
veyed a change in the old rule.
In Bernabe vs. Alejo (G.R. No. 140500, 21 January

2002), the Court has resolved in the affirmative the issue
of whether or not the right of an illegitimate child to
bring an action for recognition, granted by Article 285 of
the Civil Code, is already deemed vested prior to the
enactment of the Family Code. The Court has emphasized
that the right to seek recognition granted by the Civil
Code to illegitimate children who are still minors at the
time of effectivity of the Family Code could neither be
impaired nor withdrawn. Thenceforth, the minors would
have up to four years from attaining majority within
which to file an action for recognition.
Articles 276, 277, 278, 279, and 280 of the Civil Code
have not been repealed by the Family Code which now
allows the establishment of illegitimate filiation in the
same way and on the same evidence as legitimate chil-
dren (Rodriguez vs. Court of Appeals, 61 SCAD 896, 245
SCRA 150).
The provisions of the 1950 Civil Code which either
have substantially been modified or abandoned, for easy
reference, are —
“Art. 276. A natural child may be recognized by
the father and mother jointly, or by only one of them.
(129)
“Art. 277. In case the recognition is made by
only one of the parents, it shall be presumed that the
child is natural, if the parent recognizing it had le-
gal capacity to contract marriage at the time of the
conception. (130)
“Art. 278. Recognition shall be made in the
record of birth, a will, a statement before a court of
record, or in any authentic writing. (131a)
“Art. 279. A minor who may not contract mar-
riage without parental consent cannot acknowledge
a natural child, unless the parent or guardian ap-
proves the acknowledgment, or unless the recog-
nition is made in a will. (n)
“Art. 280. When the father or the mother makes

the recognition separately, he or she shall not reveal
the name of the person with whom he or she had the
child; neither shall he or she state any circumstance
whereby the other parent may be identified. (132a)
“Art. 281. A child who is of age cannot be recog-
nized without his consent.
When the recognition of a minor does not take
place in a record of birth or in a will, judicial ap-
proval shall be necessary.
A minor can in any case impugn the recognition
within four years following the attainment of his
majority. (133a)
“Art. 282. A recognized natural child has the
right:
(1) To bear the surname of the parent recog-
nizing him;
(2) To receive support from such parent, in con-
formity with Article 291;
(3) To receive, in a proper case, the hereditary
portion which is determined in this Code. (134)
“Art. 283. In any of the following cases, the fa-
ther is obliged to recognize the child as his natural
child:
(1) In case of rape, abduction or seduction,
when the period of the offense coincides more or less
with that of the conception;
(2) When the child is in continuous possession
of status of a child of the alleged father by the direct
acts of the latter or of his family;
(3) When the child was conceived during the
time when the mother cohabited with the supposed
father;
(4) When the child has in his favor any evi-
dence or proof that the defendant is his father. (n)
“Art. 284. The mother is obliged to recognize

her natural child;
(1) In any of the cases referred to in the pre-
ceding article, as between the child and the mother;
(2) When the birth and the identity of the child
are clearly proved. (136a)
“Art. 285. The action for the recognition of natu-
ral children may be brought only during the lifetime
of the presumed parents, except in the following
cases:
(1) If the father or mother died during the mi-
nority of the child, in which case the latter may file
the action before the expiration of four years from
the attainment of his majority;
(2) If after the death of the father or of the
mother a document should appear of which nothing
had been heard and in which either or both parents
recognize the child.
In this case, the action must be commenced
within four years from the finding of the document.
(137a)
“Art. 286. The recognition made in favor of a
child who does not possess all the conditions stated
in Article 269, or in which the requirements of the
law have not been fulfilled, may be impugned by
those who are prejudiced by such recognition. (137)
“Art. 287. Illegitimate children other than natu-
ral in accordance with Article 269 and other than
natural children by legal fiction are entitled to sup-
port and such successional rights as are granted in
this Code. (n)
“Art. 288. Minor children mentioned in the pre-
ceding article are under the parental authority of
the mother. (n)
“Art. 289. Investigation of the paternity or ma-

ternity of children mentioned in the two preceding
articles is permitted under the circumstances speci-
fied in Articles 283 and 284.” (n)
Under the 1950 Civil Code where voluntary recog-
nition could take place in a record of birth, a will, a state-
ment before a court of record, or in any authentic writing
(Art. 178, Civil Code), a review of Supreme Court deci-
sions can be helpful guides:
(a) Voluntary recognition (the equivalent under the
Family Code of filiation being deemed “established”) needs
no further court action (see Divinagracia vs. Bellosillo,
143 SCRA 356).
(b) Voluntary recognition must be express; a mere
statement incidentally revealing paternity will not suf-
fice (see Javelon vs. Monteclaro, 74 Phil. 793; Donado vs.
Donado, 55 Phil. 861; see also Vda. de Sy-Quia vs. Court
of Appeals, 125 SCRA 835; Colorado vs. Court of Appeals,
135 SCRA 47). The doctrine of incidental recognition,
which would allow recognition as having taken place
where the putative parent has made an incidental, rather
than a direct, remark on the child’s filiation has been
held to apply under the provisions of the Spanish Civil
Code (Art. 131 vs. Art. 135 thereof) in cases of voluntary
recognition expressed in a public document (see Heirs of
Raymundo C. Bañas vs. Heirs of Bibiano Bañas, 134 SCRA
260).
(c) A mere baptismal certificate is not enough to
establish recognition (Vidaurrazaga vs. Court of Appeals,
48 O.G. No. 7, p. 2643).
(d) An authentic writing may be public or private
as long as it can be established as one made by the ac-
knowledging parent (see Madridejo vs. de Leon, 55 Phil.
1; De Jesus vs. Syquia, 58 Phil. 866; Varela vs. Villanueva,
etc., et al., 95 Phil. 248; Pareja, et al. vs. Pareja, et al., 103
Phil. 324). Under Article 172 of the Family Code, the
private document must be handwritten and signed by the

parent concerned. Thus, filiation may likewise be estab-
lished by holographic, as well as notarial, wills, except
that they no longer need to be probated or to be strictly in
conformity with the formalities thereof for purposes of
establishing filiation.
(e) A statement in a court of record must be made
personally by the parent himself or herself. The volun-
tary recognition of a child by the brother of the alleged
parent does not qualify as such (Cenido vs. Apacionado,
115 SCAD 798, 318 SCRA 688).
(f) No provision of law is necessary to allow a per-
son who recognizes filiation from rectifying that act as
and when circumstances would justify it (Heirs of
Raymundo C. Bañas vs. Heirs of Bibiano Bañas, 134 SCRA
260).
The due recognition of an illegitimate child in a record
of birth, a will, a statement before a court of record, or in
any authentic writing is, in itself, a consummated act of
acknowledgment of the child, and no further court action
is required. In fact, any authentic writing is treated not
just a ground for compulsory recognition; it is in itself a
voluntary recognition that does not require a separate
action for judicial approval. Where, instead, a claim for
recognition is predicated on other evidence merely tend-
ing to prove paternity, i.e., outside of a record of birth, a
will, a statement before a court of record or an authentic
writing, judicial action within the applicable statute of
limitations is essential in order to establish the child’s
acknowledgment (Jinkie de Jesus vs. Estate of Juan Dizon,
G.R. No. 142877, 02 October 2001).
Illegitimate children, whose filiation has been either
established or proved, are entitled to support and succes-
sional rights (see De La Puerta vs. Court of Appeals, 181
SCRA 861; Reyes vs. Court of Appeals, 135 SCRA 439).
The legitime of each illegitimate child is one-half of that
of a legitimate child, thereby increasing to that much the
legitime of an illegitimate child begotten by parents who

suffer from an impediment to marry (then called “non-natu-
ral” or “spurious”) who were under the 1950 Civil Code
entitled to only two-fifths of the legitime of each legitimate
child or four-fifths of the share of an illegitimate child who is
“natural.” Since the ownership by heirs vests upon the death
of the decedent, the new rights of illegitimate children legis-
lated after such death cannot be asserted without impairing
vested rights (Balais vs. Balais, 159 SCRA 37; Jimenez vs.
Fernandez, 184 SCRA 190).
The clear intendment of the law is to put illegiti-
mate children as one class by themselves and to grant
them equal rights among one another. Unfortunately,
Article 176 of the Family Code has provided for the in-
crease in successional rights of non-natural illegitimate
children to the legitime and has failed to explicitly extend
it to the rights in intestacy, where the then share of an
illegitimate child who was “non-natural” was four-fifths
the share of one who was “natural,” that may give rise to
doubts on whether or not the amendatory rule should
likewise apply to intestacy. It may well be, however, that
since Article 983 of the Civil Code on intestacy states
that the sharing among illegitimate children “shall be in
the proportions prescribed in Article 895” on legitimes,
the change brought about by Article 176 of the Family
Code on such legitimes can be said to now also dictate
their shares in intestacy. In every case, the legitime of
such illegitimate children, established in the Family Code
should first be satisfied.
Illegitimate children of any category shall use the
surname and be under the parental authority of their
mother (Art. 176, Family Code). Under the 1950 Civil
Code, illegitimate children who were “natural” and ac-
knowledged by the father were required to use the sur-
name of their father (Art. 366, Civil Code), and parental
authority was exercised by both parents jointly (Art. 311,
Civil Code, as amended by P.D. 603).
Republic Act No. 9255, entitled “An Act Allowing

Illegitimate Children to Use the Surname of their father,
amending for the purpose Article 176 of Executive Order
No. 209, otherwise known as the Family Code of the
Philippines’’ enacted on 24 February 2004, now provides:
“Section 1. Article 176 of Executive Order No.
209, otherwise known as the Family Code of the
Philippines, is hereby amended to read as follows:
“Article 176. Illegitimate children shall use the
surname and shall be under the parental authority
of their mother, and shall be entitled to support in
conformity with this Code. However, illegitimate chil-
dren may use the surname of their father if their
filiation has been expressly recognized by the father
through the record of birth appearing in the civil
register, or when an admission in a public document
or private handwritten instrument is made by the
father. Provided, the father has the right to institute
an action before the regular courts to prove non-
filiation during his lifetime. The legitime of each
illegitimate child shall consist of one-half of the legi-
time of a legitimate child.’’
Section 2. Repealing Clause. — All laws, presi-
dential decrees, executive orders, proclamations,
rules and regulations, which are inconsistent with
the provisions of this Act are hereby repealed or
modified accordingly.’’
Chapter 4 — Legitimated Children
Art. 177. Only children conceived and born outside

of wedlock of parents who, at the time of the conception
of the former, were not disqualified by any impediment
to marry each other may be legitimated. (269a)
Art. 178. Legitimation shall take place by a subse-
quent valid marriage between parents. The annulment
of a voidable marriage shall not affect the legitimation.
(270a)
Art. 179. Legitimated children shall enjoy the same

rights as legitimate children. (272a)
Art. 180. The effects of legitimation shall retroact
to the time of the child’s birth. (273a)
Art. 181. The legitimation of children who died
before the celebration of the marriage shall benefit their
descendants. (274)
Art. 182. Legitimation may be impugned only by
those who are prejudiced in their rights, within five
years from the time their cause of action accrues. (275a)
Illegitime children of parents, who at the time of

conception of the former were not disqualified by any
impediment to marry each other, are legitimated by the
subsequent marriage of said parents. Thus, the child of
parents, one or both of whom are below 18 years of age at
the time of conception and birth of the child, is not legiti-
mated by the subsequent valid marriage of the parents.
The requirement of 18 years of age in marriage is not
merely a declaration of capacity but one of disqualifica-
tion if not met (Art. 35, Family Code) and, clearly then,
an “impediment” within the meaning of Article 177 of the
Code. It is believed that a child, although conceived at a
time when an impediment to marry exists but born when
that impediment ceases, can be legitimated being a rea-
sonable deduction than can be derived from the use of the
phrase “conceived and born” in Article 177.
The annulment of the marriage (when voidable) shall
not adversely affect the legitimation (Arts. 177-178, Fam-
ily Code) of a child.
Legitimated children enjoy the same rights of legiti-
mate children, including those who die before the cel-
ebration of the marriage, which benefits inure to their
descendants. The effects of legitimation retroact to the
child’s birth (see Arts. 179-181, Family Code).
399
TITLE VII. ADOPTION
The provisions of Article 334 up to Article 348 of the

Civil Code on adoption were repealed by Chapter 1, Sec-
tion B, of the Child and Youth Welfare Code (Presidential
Decree No. 603), which, in turn, was replaced by the
present provisions of the Family Code.
The provisions on adoption are primarily intended
to promote the well-being and security of the adopted
child, as well as the enchancement of his opportunities
for a useful and happy life (Daoang vs. Municipal Judge
of San Nicolas, Ilocos Norte, 159 SCRA 369), and second-
arily to provide for a legal process and sanction by which
a person who may wish to do so may embrace as his own
the child of another. The courts are then expected to
consider not merely the legal aspects of the case but like-
wise, and paramount, the physical, moral, social and in-
tellectual welfare of the child for whom the law on adop-
tion has, in the first place, been designed.
An alien qualified to adopt under the Child and Youth
Welfare Code, who therefore acquires a vested right, can-
not be affected by the subsequent enactment of a new law
disqualifying him. The enactment of the Family Code
will not impair the right of an alien to adopt a Filipino
child under the Child and Youth Welfare Code, which
right becomes vested at the time of the filing of the peti-
tion for adoption (Republic vs. Miller, 105 SCAD 809, 306
SCRA 183).
Art. 183. A person of age and in possession of full

civil capacity and legal rights may adopt, provided he is
in a position to support and care for his children, legiti-
mate or illegitimate, in keeping with the means of the
family.
399
Only minors may be adopted, except in the cases

when the adoption of a person of majority age is al-
lowed in this Title.
In addition, the adopter must be at least sixteen
years older than the person to be adopted, unless the
adopter is the parent by nature of the adopted, or is
the spouse of the legitimate parent of the person to be
adopted. (27a, EO 91 and PD 603)
Art. 184. The following persons may not adopt:
(1) The guardian with respect to the ward prior
to the approval of the final accounts rendered upon
the termination of their guardianship relation;
(2) Any person who has been convicted of a
crime involving moral turpitude;
(3) An alien, except:
(a) A former Filipino citizen who seeks to
adopt a relative by consanguinity;
(b) One who seeks to adopt the legitimate
child of his or her Filipino spouse; or
(c) One who is married to a Filipino citizen
and seeks to adopt jointly with his or her spouse
a relative by consanguinity of the latter.
Aliens not included in the foregoing exceptions
may adopt Filipino children in accordance with the rules
on inter-country adoption as may be provided by law.
(28a, EO 91 and PD 603)
Art. 185. Husband and wife must jointly adopt,
except in the following cases:
(1) When one spouse seeks to adopt his own
illegitimate child; or
(2) When one spouse seeks to adopt the legiti-
mate child of the other. (29a, EO 91 and PD 603)
Art. 186. In case husband and wife jointly adopt or
one spouse adopts the legitimate child of the other,
joint parental authority shall be exercised by the spouses
in accordance with this Code. (29a, EO 91 and PD 603)
Title VII. Adoption
Art. 187. The following may not be adopted:

(1) A person of legal age, unless he or she is a
child by nature of the adopter or his or her spouse, or,
prior to the adoption, said person had been consist-
ently considered and treated by the adopter as his or
her own child during minority;
(2) An alien with whose government the Repub-
lic of the Philippines has no diplomatic relations; and
(3) A person who has already been adopted un-
less such adoption has been previously revoked or
rescinded. (30a, EO 91 and PD 603)
Art. 188. The written consent of the following to
the adoption shall be necessary:
(1) The person to be adopted, if ten years of age
or over;
(2) The parents by nature of the child, the legal
guardian, or the proper government instrumentality;
(3) The legitimate and adopted children, ten
years of age or over, of the adopting parent or parents;
(4) The illegitimate children, ten years of age or
over, of the adopting parent, if living with said parent
and the latter’s spouse, if any; and
(5) The spouse, if any, of the person adopting or
to be adopted. (31a, EO 91 and PD 603)
Any person of age and in full possession of civil rights

may adopt so long as he is in a position to property pro-
vide, basically in terms of support and care, not only for
the adopted but also for his own children, legitimate and
illegitimate, in keeping with the means, both material
and otherwise, of the family (see Art. 183, Family Code).
An emancipated child, being “qualified and responsible
for all acts of civil life” (Art. 236, Family Code), may
adopt. The phrase “person of age” in Article 183 of the
Family Code does not necessarily refer to one who has
reached twenty-one years of age but that age where the
person can exercise capacity to act. In any case, the re-
duction of majority age from 21 years to 18 years renders

the issue academic. The adopter must be at least sixteen
years older than the adopted except when the adopter is
the parent by nature of the adopted or is the spouse of the
legitimate parent of the adopted (Art. 183, Family Code).
In order to ensure harmony, at least between the spouses,
the husband and the wife may not singly adopt (mere
consent by the other does not suffice), except when the
adopted is his own illegitimate child or the legitimate
child of the other (in which case the latter’s consent is
enough [Art. 185, in relation to Art. 188, Family Code]).
The prospective adopter need not be a resident of the
Philippines (see Nieto vs. Magat, 136 SCRA 533).
The old law on adoption, Presidential Decree No.
603 (The Child and Youth Welfare Code), exactly adopted
that found in then Article 336 of the Civil Code. Article
29, Section B, Chapter I, Title I, of the said decree pro-
vided:
“Art. 29. Husband and wife may jointly adopt.
In such case, parental authority shall be exercised
as if the child were their own by nature.
Observe that the law then in force used the word
“may’’ under which regime, a joint adoption by the spouses
was apparently not made obligatory. The provision was
later amended, however, by Executive Order No. 91, dated
17 December 1986, of President Corazon C. Aquino. The
new Article 29 expressed, thus —
“Art. 29. Husband and wife may jointly adopt.
In such case, parental authority shall be exercised
as if the child were their own by nature.
“If one of the spouses is an alien, both husband
and wife shall jointly adopt. Otherwise, the adoption
shall not be allowed.’’
As amended by Executive Order 91, Presidential
Decree No. 603, had thus made it mandatory for both the
spouses to jointly adopt when one of them was an alien.
Title VII. Adoption
The law was silent when both spouses were of the same
nationality.
The Family Code has resolved any possible uncer-
tainty. Article 185 thereof now expresses the necessity for
a joint adoption by the spouses except in only two in-
stances —
(1) When one spouse seeks to adopt his own ille-
gitimate child; or
(2) When one spouse seeks to adopt the legitimate
child of the other.
It is the foregoing cases when Article 186 of the Code,
on the subject of parental authority, can aptly find gov-
ernance.
“Article 186. In case husband and wife jointly
adopt or one spouse adopts the legitimate child of
the other, joint parental authority shall be exercised
by the spouses in accordance with this Code.’’
Adoption creates a status that is closely assimilated
to legitimate paternity and filiation with corresponding
rights and duties that necessarily flow from adoption,
such as, but not necessarily confined to, the exercise of
parental authority, use of surname of the adopter by the
adopted, as well as support and successional rights. These
are matters that obviously cannot be considered inconse-
quential to the parties. (See Republic vs. Spouses Hughes,
G.R. No. 100835, 26 October 1993, 227 SCRA 401).
As a matter of public policy, the law does not allow
an adoption by —
(1) A guardian as regards the ward pending the
approval of the final accounting upon the termination of
the guardianship;
(2) A convict of a crime involving moral turpitude;
or
(3) An alien, except: (a) when he or she used to be a
Filipino citizen who seeks to adopt a relative by consangui-
nity; (b) when he or she seeks to adopt a legitimate child

of the Filipino spouse; (c) when he or she seeks to adopt,
jointly with the Filipino spouse, the latter’s relative by
consanguinity; or (d) in general, when allowed in accord-
ance with the rules on inter-country adoption (Art. 184,
Family Code).
Only minors may be adopted except when the per-
son to be adopted is a child by nature of the adopter or
the latter’s spouse or had been consistently treated and
considered by the adopter as his or her own child during
the latter’s minority. A person who has already been
adopted, unless the adoption has been revoked or re-
scinded, may no longer be adopted. It is believed, how-
ever, that the death of the adopter or of both of the adopt-
ing parents, as the case may be, would not disallow the
adopted child from being adopted anew by others. An alien
with whose government the Philippines has no diplomatic
ties cannot be adopted (see Art. 183 and Art. 187, Family
Code).
An adoption requires the written consent of: (a) the
person to be adopted if ten years of age or over; (b) the
parents by nature of the adopted, the legal guardian, or
the proper government instrumentality, in that order; (c)
the legitimate and adopted children of the adopter if said
children are ten years of age or over; (d) the illegitimate
children of the adopter if said children are ten years of
age or over and living with the adopter; and (e) the spouse,
if any, of the person adopting or to be adopted (Art. 188,
Family Code).
Art. 189. Adoption shall have the following effects:

(1) For civil purposes, the adopted shall be
deemed to be a legitimate child of the adopters and both
shall acquire the reciprocal rights and obligations aris-
ing from the relationship of parent and child, including
the right of the adopted to use the surname of the
adopters;
(2) The parental authority of the parents by na-
ture over the adopted shall terminate and be vested in
Title VII. Adoption
the adopters, except that if the adopter is the spouse

of the parent by nature of the adopted, parental au-
thority over the adopted shall be exercised jointly by
both spouses; and
(3) The adopted shall remain an intestate heir of
his parents and other blood relatives. (39[1]a, [2]a, [3]a,
PD 603)
Art. 190. Legal or intestate succession to the es-
tate of the adopted shall be governed by the following
rules:
(1) Legitimate and illegitimate children and de-
scendants and the surviving spouse of the adopted
shall inherit from the adopted, in accordance with the
ordinary rules of legal or intestate succession;
(2) When the parents, legitimate or illegitimate,
or the legitimate ascendants of the adopted concur
with the adopters, they shall divide the entire estate,
one-half to be inherited by the parents or ascendants
and the other half, by the adopters;
(3) When the surviving spouse or the illegitimate
children of the adopted concur with the adopters, they
shall divide the entire estate in equal shares, one-half
to be inherited by the spouse or the illegitimate chil-
dren of the adopted and the other half, by the adopters;
(4) When the adopters concur with the illegiti-
mate children and the surviving spouse of the adopted,
they shall divide the entire estate in equal shares, one-
third to be inherited by the illegitimate children, one-
third by the surviving spouse, and one-third by the
adopters;
(5) When only the adopters survive, they shall
inherit the entire estate; and
(6) When only collateral blood relatives of the
adopted survive, then the ordinary rules of legal or
intestate succession shall apply. (39[4]a, PD 603)
The burden of proof in establishing adoption is upon

the person claiming such relationship (Vda. de Jacob vs.
Court of Appeals, 111 SCAD 137, 312 SCRA 772). The
adoptive relationship is personal and solely between the

adopter and the adopted. Between them, the adoption
creates a status of legitimate paternity and filiation with
corresponding rights and duties appurtenant thereto.
Thus, the adopted may use the surname of the adopter,
and the parental authority of the parents by nature ter-
minates and instead vests in the adopter except that if
the adopter is the spouse of the parent by nature of the
adopted, then that authority shall be exercised jointly by
the spouses (see Art. 189, Family Code). Adoption does
not really sever the previous status of the adopted child
with regard to his other blood relatives, let alone his
parents by nature, nor adversely affect the legal implica-
tions of that relationship except only to the extent that
the law expresses otherwise. In main, his rights and du-
ties continue in respect to his natural relations. So also,
the adopted does not acquire the Philippine citizenship of
the adopter since this status is itself conferred by law.
Relative to the effects of adoption on successional
rights, the following rules may be said to govern:
A. As regards the adopted child

(1) The adopted child remains to be an intestate
heir of the parents by nature and other blood relatives
(Art. 189, Family Code). In this context, the term “intes-
tate” means the generic concept of succession by law which
includes the adopted child’s rights, for instance, to the
legitime and to the reserva troncal.
(2) The adopted person becomes an heir as a legiti-
mate child of the adopter. The 1950 Civil Code (Art. 343)
and the Child and Youth Welfare Code (Art. 34 on adop-
tion) both contain a proviso to the effect that if the adopt-
ing parent is survived by his legitimate parents or as-
cendants (in the absence of legitimate children and de-
scendants) and by an adopted child, the latter shall not
have more successional rights than those that pertain to
an illegitimate child. Said provisions have been deleted
Title VII. Adoption
in the Family Code. Since the law on succession under

the Civil Code states that an “adopted child succeeds to
the property of the adopting parents in the same manner
as a legitimate child” (Art. 979, 2nd par., Civil Code),
without any qualifying proviso, the presence of an adopted
child would now preclude the legitimate parents and as-
cendants from succeeding as compulsory or intestate heirs
(see Santos, et al. vs. Aranzanso, 16 SCRA 344) of the
adopter.
B. As regards the parents and ascendants

The successional rights established in Article 190 of
the Family Code are inapplicable if the adopted is not
survived by any adopting parent or if the adopted is sur-
vived by any legitimate child or descendant or by his own
adopted child; instead, the ordinary rules on succession
by law should apply.
The presence of legitimate children and descend-
ants, as well as adopted children, of a deceased adopted
would exclude his parents and ascendants, as well as the
adopting parents, from succeeding by operation of law
(legal or forced succession). The presence of illegimate
children, or their descendants by right of representation,
would only exclude illegitimate parents, but not the le-
gitimate parents and ascendants, or the adopting par-
ents, from legal succession. When such parents and as-
cendants, or the adopting parents, are not thus excluded,
in accordance with the above rules (see Arts. 887, 985
and 993, Civil Code), the evident intendment of the Fam-
ily Code is to allow the parents (including the ascendants
if the relationship is legitimate) by nature and the adopt-
ing parents to have equal rights to the adopted child’s
estate as might pertain to the ascending line. The Family
Code does not contain any provision expressly excluding
the parents or ascendants by nature when they concur
with the surviving spouse and illegitimate children of the
adopted. If there is among them only one surviving group
— either the ascending blood line or the parents by adop-
tion — then that group, would be entitled to the entire

portion pertaining to said ascending group. Thus —
(1) In the absence of other possible concurring heirs,
if the parents, legitimate or illegitimate, or the legiti-
mate ascendants (in the absence of legitimate parents) of
the adopted concur with the adopters, one-half of the
estate shall pertain to said parents or ascendants and the
other half to the adopting parents. If only the adopting
parents survive the adopted, then the entire estate shall
pertain to them. If, upon the other hand, no adopting
parent survives the adopted, the special rules under Arti-
cle 190 of the Family Code would no longer be applicable
(since the adoptive relationship had theretofore ceased);
instead, the adopted estate shall be governed by the ordi-
nary rules on succession established by the Civil Code.
(2) When the parents by nature (or ascendants
when applicable) and by adoption concur with a surviv-
ing spouse, the estate shall be divided equally, one-half to
be inherited by the surviving spouse and the other half
by the parents (or ascendants), by nature and by adop-
tion, the latter being entitled to their one-half share in
the manner stated in paragraph (1).
(3) When the legitimate parents or ascendants by
nature and by adoption concur with illegitimate children
(or their descendants by right of representation), the es-
tate shall be divided equally, one-half to pertain to the
illegitimate children and the other half to the parents (or
ascendants) who shall inherit in the manner expressed in
paragraph (1). It may be noted that illegitimate parents
are excluded by illegitimate children (or their descend-
ants by right of representation).
(4) When the legitimate parents (or ascendants) by
nature and by adoption concur with the surviving spouse
of the adopted and the latter’s illegitimate children (or
their descendants by right of representation), the estate
shall be divided equally into three parts — one-third to
pertain to the surviving spouse, another one-third to the
Title VII. Adoption
illegitimate children and the remaining one third to the

above parents (or ascendants) to be allocated in accord-
ance with paragraph (1).
The Family Code must be deemed to have modified
to the above extent the rules on legitimes and intestate
succession (see Art. 190, Family Code, in relation to Arts.
887, 972, 984, 985, 987, 990, 991, 993, 997, Civil Code),
otherwise certain incongruities become inevitable. It may
be worthwhile to state, however, that the special rules on
successional rights established in Article 190 of the Fam-
ily Code can have occasion to apply only when adopting
parents survive the adopted.
The provisions on reversion adoptiva under Article
39 of the Child and Youth Welfare Code (P.D. 603) have
been deleted by the Family Code.
Art. 191. If the adopted is a minor or otherwise

incapacitated, the adoption may be judicially rescinded
upon petition of any person authorized by the court or
proper government instrumentality acting on his be-
half, on the same grounds prescribed for loss or sus-
pension of parental authority. If the adopted is at least
eighteen years of age, he may petition for judicial re-
scission of the adoption on the same grounds pre-
scribed for disinheriting an ascendant. (40a, PD 603)
Art. 192. The adopters may petition the court for
the judicial rescission of the adoption in any of the
following cases:
(1) If the adopted has committed an act consti-
tuting a ground for disinheriting a descendant; or
(2) When the adopted has abandoned the home
of the adopters during minority for at least one year,
or, by some other acts, had definitely repudiated the
adoption. (41a, PD 603)
Art. 193. If the adopted minor has not reached the
age of minority at the time of the judicial rescission of
the adoption, the court in the same proceeding shall
reinstate the parental authority of the parents by nature,
unless the latter are disqualified or incapacitated, in

which case the court shall appoint a guardian over the
person and property, of the minor. If the adopted person
is physically or mentally handicapped, the court shall
appoint in the same proceeding a guardian over his
person or property or both.
Judicial rescission of the adoption shall extinguish
all reciprocal rights and obligations between the
adopters and the adopted arising from the relationship
of parent and child. The adopted shall likewise lose
the right to use the surnames of the adopters and shall
resume his or her surname prior to the adoption.
The court shall accordingly order the amendment
of the records in the proper registries. (42a, PD 603)
The rescission of adoption may only be effected judi-

cially upon petition of: (a) any person authorized by the
court or the proper governmental instrumentality on the
same grounds prescribed by the Family Code (Title IX,
infra.) for loss or suspension of parental authority; (b) the
person adopted if at least eighteen years of age on the
same grounds prescribed for disinheriting an ascendant
(see Article 920, Civil Code); or (c) the adopters on the
grounds expressed in Article 192 of the Family Code (su-
pra.; see also Art. 919, Civil Code).
The Domestic Adoption Act of 1998 (Republic Act
No. 8552) no longer allows the rescission of adoption by
the adopters. Interestingly, even before the passage of
the statute, an action to set aside the adoption is subject
to the five-year bar rule under Rule 100 of the Rules of
Court and that the adopter would lose the right to revoke
the adoption decree after the lapse of that period. The
exercise of the right within a prescriptive period is a
condition that could not fulfill the requirements of a vested
right entitled to protection. It must also be acknowledged
that a person has no vested right in statutory privileges.
While adoption has often been referred to in the context
of a “right,’’ the privilege to adopt is itself not naturally
innate or fundamental but rather a right merely created
Title VII. Adoption
by statute. It is a privilege that is governed by the state’s

determination on what it may deem to be for the best
interest and welfare of the child. Concomitantly, a right
of action given by statute may be taken away at anytime
before it has been exercised (Adoption has also been char-
acterized as a status created by the state acting as parens
patriae, the sovereign parent) (Isabelita Lahom vs. Jose
Melvin Sibulo, G.R. No. 143989, 14 July 2003).
Judicial rescission has the effect of extinguishing
forthwith the adoptive relationship; hence —
(1) The rights and obligations between the adopter
and the adopted arising from the adoptive relationship
cease;
(2) The adopted losses the right to the use of the
adopter’s surname and shall resume the use of his or her
surname prior to the adoption.
(3) Parental authority, in case the adopted is still a
minor, shall re-vest in the parents by nature or, if dis-
qualified or incapacitated, in a guardian appointed by
the court in the same proceedings for rescission (see Art.
193, Family Code, supra.).
Domestic Adoption
Significantly, Philippine adoption is now also gov-
erned by Republic Act No. 8552 (Domestic Adoption Act of
1998) and Republic Act No. 8043 (Inter-Country Adoption
Act of 1995).
Under Domestic Adoption Act, the following may
adopt: (a) any Filipino citizen of legal age, in possession
of full civil capacity and legal rights, of good moral char-
acter, has not been convicted of any crime involving moral
turpitude, emotionally and psychologically capable of car-
ing for children, at least sixteen (16) years older than the
adoptee, and who is in a position to support and care for
his/her children in keeping with the means of the family;
(b) any alien possessing the same qualifications as pro-
vided for Filipino nationals: Provided, That his/her coun-

try has diplomatic relations with the Republic of the Phil-
ippines, that he/she has been in the Philippines for at
least three (3) continuous years prior to the filing of the
application for adoption and maintains such residence
until the adoption decree is entered, that he/she has been
certified by his/her diplomatic or consular office or any
appropriate government agency that he/she has the legal
capacity to adopt in his/her country, and that his/her
government allows the adoptee to enter his/her country
as his/her adopted son/daughter; and (c) the guardian
with respect to the ward after the termination of the
guardianship and clearance of his/her financial
accountabilities (Sec. 7, R.A. No. 8552).
The requirement of sixteen (16) years difference be-
tween the age of the adopter and the adopted may be
waived when the adopter is the biological parent of the
adopted or is the spouse of the parent of the adopted
(Ibid.). The residency requirement for alien and the certi-
fication to adopt in his/her country may be waived if: (a)
he/she is a former Filipino citizen who seeks to adopt a
relative within the fourth (4th) degree of consanguinity
or affinity; or (b) he/she is seeking to adopt the legitimate
son/daughter of his/her Filipino spouse; or (c) he/she is
married to a Filipino citizen and seeks to adopt jointly
with his/her spouse a relative within the fourth (4th)
degree of consanguinity or affinity of the Filipino spouse
(Ibid.).
Husband and wife shall jointly adopt except if: (a)
one spouse seeks to adopt the legitimate child of the other;
or (b) if one spouse seeks to adopt his/her own illegiti-
mate child, provided that the other spouse signifies his/
her consent thereto; or (c) if the spouses are legally sepa-
rated from each other. In case husband and wife jointly
adopt, or one spouse adopts the illegitimate child of the
other, joint parental parental authority shall be exer-
cised by the spouses (Ibid.).
Title VII. Adoption
The following may be adopted: (a) any person below

eighteen (18) years of age who has been administratively
or judicially declared available for adoption; (b) the le-
gitimate son/daughter of one spouse by the other spouse;
(c) an illegitimate son/daughter by a qualified adopter to
improve his/her status to that of legitimacy; (d) a person
of legal age if, prior to the adoption, said person has been
consistently considered and treated by the adopter(s) as
his/her own child since minority; (e) a child whose adop-
tion has been previously rescinded; or (f) a child whose
biological or adoptive parent(s) has died: Provided, That
no proceedings shall be initiated within six (6) months
from the time of death of said parent(s) (Sec. 8, ibid.).
The decree of adoption shall sever all legal ties be-
tween the biological parents and the adopted, save the
cases where the biological parent is the spouse of the
adopter; parental authority shall then be vested on the
adopter (Sec. 16, ibid.). The adoptee shall be considered
the legitimate son/daughter of the adopter(s) for all in-
tents and purposes and as such is entitled to all the
rights and obligations provided by law to legitimate sons/
daughters born to them without discrimination of any
kind. To this end, the adoptee is entitled to love, guid-
ance, and support in keeping with the means of the fam-
ily (Sec. 17, ibid.). In legal and intestate succession, the
adopter(s) and adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation.
If, however, the adoptee and his/her biological parent(s)
had left a will, the law on testamentary succession shall
govern (Sec. 18, ibid.).
The laws enacted prior to the Domestic Adoption Act
have consistently recognized the right of the adoptee and
his biological parents to inherit from each other through
legal and forced succession on the thesis that adoption
does not sever the status of the adopted with regard to
his other blood relatives, let alone his parents by nature,
except only to the extent that the law otherwise provides.
The decree of adoption does not dispossess the adopted of
his status as an “issue” of his biological parents, and it

does not divest the child of his legal right to inherit from
his parents by nature, nor should such implication be
drawn from the fact alone that the child, following his
adoption, gains the status of a legal child of the adopter. A
contrary view would be derogative of keeping the adopt-
ed’s welfare and best interest, the paramount considera-
tion of adoption laws. The right to inherit by intestate
succession between and among the adopted and his bio-
logical parents is reciprocal in nature and obviously sub-
sists, and there is nothing in the Domestic Adoption Act
that would sufficiently indicate any legislative intent to
dissolve all ties between the adopted and his biological
parents, except that referred to in Section 16 of the law
on the exercise of parental authority which shall vest on
the adopter.
The general repealing clause in Section 26 of the
Domestic Adoption Act affects only laws, presidential de-
cree or issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to, or
inconsistent with, its provisions. Although the provisions
in Article 189(3) and Article 190(2) and (6) of the Family
Code have not been reproduced in the Domestic Adoption
Act, neither, however, are they inconsistent therewith.
An implied repeal takes place only when an irreconcil-
able inconsistency and repugnancy in the terms of the
new and old law exist.
The adoption may be rescinded, upon petition of the
adopted with the assistance of the Department of Social
Welfare and Development, if still a minor or is otherwise
incapacitated, should the adopter commit: (a) repeated
physical and verbal maltreatment despite having under-
gone counseling; or (b) an attempt on the life of the adop-
tee; or (c) sexual assault or violence; or (d) abandonment
and failure to comply with parental obligations (Sec. 19,
ibid.). Being in the interest of the child, adoption shall
not be subject to rescission by the adopter, but the adopter
Title VII. Adoption
may disinherit the adopted for causes provided in Article

919 of the Civil Code (Ibid.).
The judicial rescission of adoption shall extinguish
the reciprocal rights and obligations of the adopted and
the adopter, and the parental authority of the biological
parents, if known, of the adopted or the legal custody of
the DSWD shall be forthwith restored (Sec. 20, ibid.).
Accordingly, the court shall order the Civil Registrar to
cancel the amended certificate of birth of the adopted and
restore his/her original birth certificate. Successional
rights shall revert to its status before the adoption, but
only as of the date of judicial rescission. Vested rights
which have been acquired prior to judicial rescission shall
be respected. These effects shall be without prejudice to
the penalties imposable under the Revised Penal Code if
the criminal acts are properly proven (Ibid.).
Inter-Country Adoption
The Inter-Country Adoption Act of 1995 (Republic Act
No. 8043) came into being pursuant to Article 184 of the
Family Code that supports the adoption of rules on inter-
country adoption. Under Republic Act No. 8043, only a
“legally-free child” may be the subject of inter-country
adoption (Sec. 8, R.A. No. 8043). The term “legally-free
child” refers to a child who has been voluntarily or invol-
untarily committed to the Department of Social Welfare
and Development or “DSWD” (Sec. 3[f], ibid.). Any alien
or a Filipino citizen permanently residing abroad may file
an application for inter-country adoption if the person
seeking such adoption: (a) is at least twenty-seven (27)
years of age and at least sixteen (16) years older than the
child to be adopted, at the time of application unless the
adopter is the parent by nature of the child to be adopted
or the spouse of such parent; (b) if married, his/her spouse
jointly file for the adoption; (c) has the capacity to act and
assume all rights and responsibilities of parental author-
ity under his national laws, and has undergone the
appropriate counseling from the accredited counselor in
his/her country; (d) has not been convicted of a crime in-

volving moral turpitude; (e) is eligible to adopt under his/
her national law; (f) is in a position to provide the proper
care and support and to give the necessary moral values
and example to all his children, including the child to be
adopted; (g) agrees to uphold the basic rights of the child
as embodied under Philippine laws, the U.N. Convention
on the Rights of the Child, and to abide by the rules and
regulations issued to implement the provisions of the In-
ter-Country Adoption Act; (h) comes from a country with
whom the Philippines has diplomatic relations and whose
government maintains a similarly authorized and accred-
ited agency and that adoption is allowed under his/her
national laws; and (i) possesses all the qualifications and
none of the disqualifications therein provided and in other
applicable Philippine laws (Sec. 9, ibid.).
The Inter-Country Adoption Board acts as the cen-
tral authority in matters relating to inter-country adop-
tion and the policy-making body for purposes of carrying
out the provisions of the Inter-Country Adoption Act, in
consultation and coordination with the DSWD, the differ-
ent child-care and placement agencies, adoptive agen-
cies, as well as non-governmental organizations engaged
in child-care and placement activities (Sec. 4, ibid.).
The application to adopt a Filipino child shall be
filed either with the Regional Trial Court having jurisdic-
tion over the child (see A.M. No. 02-06-02 SC RE: Rules
on Adoption, which became effective on 22 August 2002),
or with the Inter-country Adoption Board through an
intermediate agency, whether governmental or an
authorized and accredited agency in the country of the
prospective parents. In case of adoption by judicial pro-
ceedings, the Rules of Court shall apply (Sec. 10, ibid.;
see A.M. No. 02-06-02 SC RE: Rules on Adoption). The
trial custody period shall be six (6) months from the time
of placement, and it is only after the lapse of this period
of trial custody shall a decree of adoption be issued (Sec.
14, ibid.).
Title VII. Adoption
The Inter-country Adoption Board shall ensure that

all possibilities for adoption of the child under the Family
Code have been exhausted and that inter-country adop-
tion is in the best interest of the child. Inter-country
adoption shall thus be regarded, it would seem, as being
merely the last resort (see Sec. 7, ibid.).
418 CIVIL LAW
TITLE VIII. SUPPORT
Art. 194. Support comprises everything indispen-

sable for sustenance, dwelling, clothing, medical at-
tendance, education and transportation, in keeping with
the financial capacity of the family.
The education of the person entitled to be sup-
ported referred to in the preceding paragraph shall in-
clude his schooling or training for some profession,
trade or vocation, even beyond the age of majority.
Transportation shall include expenses in going to and
from school, or to and from place of work. (290a)
The above article has been taken from Article 290 of

the Civil Code but added “transportation” among the items
of support. The Family Code likewise modified the extent
of support to be “in keeping with the financial capacity of
the family” and has thus eliminated the distinction un-
der the Civil Code between civil support (based on the
“social position” of the family), applicable to the spouses,
descendants and ascendants, and natural support (con-
fined to the “necessaries for life”) in the case of brothers
and sisters (see Arts. 290 and 291, Civil Code).
Art. 195. Subject to the provisions of the succeed-

ing articles, the following are obliged to support each
other to the whole extent set forth in the preceding
article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the
legitimate and illegitimate children of the latter;
418
Title VIII. Support
(4) Parents and their illegitimate children and the

legitimate and illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of
the full or half-blood. (291a)
Art. 196. Brothers and sisters not legitimately re-
lated, whether of the full or half-blood, are likewise
bound to support each other to the full extent set forth
in Article 194, except only when the need for support
of the brother or sister, being of age, is due to a cause
imputable to the claimant’s fault or negligence. (291a)
Art. 197. For the support of legitimate ascend-
ants; descendants, whether legitimate or illegitimate;
and brothers and sisters, whether legitimately or illegiti-
mately related, only the separate property of the per-
son obliged to give support shall be answerable pro-
vided that in case the obligor has no separate prop-
erty, the absolute community or the conjugal, partner-
ship, if financially capable, shall advance the support,
which shall be deducted from the share of the spouse
obliged upon the liquidation of the absolute commu-
nity or of the conjugal partnership. (n)
Art. 198. During the proceedings for legal sepa-
ration or for annulment of marriage, and for declara-
tion of nullity of marriage, the spouses and their chil-
dren shall be supported from the properties of the ab-
solute community or the conjugal partnership. After
final judgment granting the petition, the obligation of
mutual support between the spouses ceases. However,
in case of legal separation, the court may order that
the guilty spouse shall give support to the innocent
one, specifying the terms of such order. (292a)
Art. 199. Whenever two or more persons are
obliged to give support, the liability shall devolve upon
the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
Art. 200. When the obligation to give support falls

upon two or more persons, the payment of the same
shall be divided between them in proportion to the
resources of each.
However, in case of urgent need and by special
circumstances, the judge may order only one of them
to furnish the support provisionally, without prejudice
to his right to claim from the other obligors the share
due from them.
When two or more recipients at the same time
claim support from one and the same person legally
obliged to give it, should the latter not have sufficient
means to satisfy all claims, the order established in
the preceding article shall be followed, unless the
concurrent obligees should be the spouse and a child
subject to parental authority, in which case the child
shall be preferred. (295a)
The obligation of mutual support is ordained by law

among members of the family (see Art. 150, Family Code,
supra.). In the case of legitimate relationship, support is
ordained among ascendants and descendants ad infini-
tum. In the case of illegitimate relationship, support is
likewise required among: (a) parents and their legiti-
mate children and the latter’s legitimate or illegitimate
children (not further descendants); (b) parent and their
illegitimate children and the latter’s legitimate and
illegitimate children (not further descendants); and
(c) brothers and sisters, whether of the full or half-blood,
legitimate or illegitimate, but in this latter case
(illegitimate brothers and sisters) support may be denied
if the need is due to a cause imputable to the claimant’s
fault or negligence (see Art. 195, in relation to Arts. 196
and 197, Family Code).
Support, when proper and where two or more per-
sons are obliged to give it (concurrent obligors) or are
entitled to receive it (concurrent obligees) but the obligor
has no sufficient means to satisfy all, shall be made in
the following order —
Title VIII. Support
(1) The spouse;

(2) The descendants of the nearest degree;
(3) The ascendants of the nearest degree; and
(4) The brothers and sisters —
except that if the concurrent obligees should be the spouse
and a child still subject to parental authority, the latter
shall be preferred (Arts. 199 and 200, Family Code). When
the obligation to give support falls upon two or more
persons, the same shall be divided among them in
proportion to their financial resources although, in case
of urgent need and when their financial capability
warrants, one or some may be required to provisionally
furnish support without prejudice to their right to seek
reimbursement from the others (see Art. 200, Family
Code). Among concurrent obligees related in equal de-
gree to the obligor, the law is silent on any preference,
thus leaving the matter to whatever may be just and
proper in each particular case and circumstance (see
Articles 201 and 202, Family Code, infra.).
Art. 201. The amount of support, in the cases re-

ferred to in Articles 195 and 196, shall be in proportion
to the resources or means of the giver and to the ne-
cessities of the recipient. (296a)
Art. 202. Support in the cases referred to in the
preceding article shall be reduced or increased pro-
portionately, according to the reduction or increase of
the necessities of the recipient and the resources or
means of the person obliged to furnish the same. (297a)
Art. 203. The obligation to give support shall be
demandable from the time the person who has a right
to receive the same needs it for maintenance, but it
shall not be paid except from the date of judicial or
extrajudicial demand.
Support pendente lite may be claimed in accord-
ance with the Rules of Court.
Payments shall be made within the first five days

of each corresponding months. When the recipient dies,
his heirs shall not be obliged to return what he has
received in advance. (298a)
Art. 204. The person obliged to give support shall
have the option to fulfill the obligation either by paying
the allowance fixed, or by receiving and maintaining in
the family dwelling the person who has a right to re-
ceive support. The latter alternative cannot be availed
of in case there is a moral or legal obstacle thereto. (299a)
Art. 205. The right to receive support under this
Title as well as any money or property obtained as
such support shall not be levied upon on attachment
or execution. (302a)
Art. 206. When, without the knowledge of the per-
son obliged to give support, it is given by a stranger,
the latter shall have a right to claim the same from the
former, unless it appears that he gave it without an
intention of being reimbursed. (2164a)
Art. 207. When the person obliged to support an-
other unjustly refuses or fails to give support when ur-
gently needed by the latter, any third person may fur-
nish support to the needy individual, with a right of
reimbursement from the person obliged to give sup-
port. This Article shall apply particularly when the fa-
ther or mother of a child under the age of majority un-
justly refuses to support or fails to give support to the
child when urgently needed. (2166a)
Art. 208. In case of contractual support or that
given by will, the excess in amount beyond that re-
quired for legal support shall be subject to levy on
attachment or execution.
Furthermore, contracted support shall be subject
to adjustment whenever modification is necessary due
to changes in circumstances manifestly beyond the
contemplation of the parties. (n)
In sum, the various other rules on support may be

stated, thus —
Title VIII. Support
(1) The amount of support shall be in proportion to

the financial capability of the obligor and to the needs of
the obligee and may thus vary from time to time in ac-
cordance therewith (Arts. 201-202, Family Code). Con-
tractual support is subject to adjustment when circum-
stances so change as to be manifestly beyond the contem-
plation of the parties (Art. 208, Family Code).
(2) Support is demandable as and when the need
therefor arises, and the amount is payable upon demand
and thereafter within the first five days of each corre-
sponding month (Art. 203, Family Code), unless the obli-
gator opts to receive and maintain the obligee in the
family dwelling so long as there are no moral or legal
obstacles thereto (Art. 204, Family Code).
(3) The right to receive support and money or prop-
erty thus received may not be attached or levied on ex-
ecution except in case of contractual, or legacy of, support
to the extent that there is an excess in amount beyond
that required for legal support (see Art. 205, in relation to
(4) Where the support is given by a stranger, the
latter may claim reimbursement from the obligor of sup-
port: (a) when it is made without the knowledge of the
person obliged to give it unless the former gives it with-
out any intention of being reimbursed; or (b) when the
obligor unjustly refuses or fails to give that support (Arts.
206-207, Family Code).
In all cases involving a child, his interest and wel-
fare are always the paramount concerns. There may be
instances where, in view of the poverty of the child, it
would be a travesty of justice to refuse him support until
the decision of the trial court attains finality while time
continues to slip away (Gan vs. Pondevida, G.R. No.
145527, 28 May 2002). The money and property adjudged
for support and education should and must be given pres-
ently and without delay because if it had to wait the final
judgment, the children may in the meantime have suf-
fered because of lack of food or have missed and lost

years in school because of lack of funds. One cannot delay
the payment of such funds for support and education for
the reason that if paid long afterwards, however much
the accumulated amount, its payment cannot cure the
evil and repair the damage caused (De Leon, et al. vs.
Soriano, et al., 95 Phil. 806). A judgment for support is
enforceable by a writ of execution despite the lapse of the
five-year period under Section 6, Rule 39, of the Rules of
Court since such judgment does not become dormant.
Similarly, where support should be terminated or sus-
pended, a mere motion therefor is enough to warrant an
order of such termination or suspension (Canonizado vs.
Benitez, 127 SCRA 610).
425
TITLE IX. PARENTAL AUTHORITY
Chapter 1 — General Provisions
Art. 209. Pursuant to the natural right and duty of

parents over the person and property of their uneman-
cipated children, parental authority and responsibility
shall include the caring for and rearing of such chil-
dren for civil consciousness and efficiency and the
development of their moral, mental and physical char-
acter and well-being. (n)
Art. 210. Parental authority and responsibility may
not be renounced or transferred except in the cases
authorized by law. (313a)
Art. 211. The father and the mother shall jointly
exercise parental authority over the persons of their
common children. In case of disagreement, the father’s
decision shall prevail, unless there is a judicial order
to the contrary.
Children shall always observe respect and rever-
ence toward their parents and are obliged to obey them
as long as the children are under parental authority.
(17a, PD 603)
Art. 212. In case of absence or death of either
parent, the parent present shall continue exercising
parental authority. The remarriage of the surviving
parent shall not affect the parental authority over the
children unless the court appoints another person to
be the guardian of the person or property of the chil-
dren. (17a, PD 603)
Art. 213. In case of separation of the parents, pa-
rental authority shall be exercised by the parent desig-
nated by the Court. The Court shall take into account
all relevant considerations, especially the choice of the
425
child over seven years of age, unless the parent cho-

sen is unfit. (n)
No child under seven years of age shall be sepa-
rated from the mother, unless the court finds compel-
ling reasons to order otherwise.
Art. 214. In case of death, absence or unsuitabil-
ity of the parents, substitute parental authority shall be
exercised by the surviving grandparent. In case sev-
eral survive, the one designated by the court, taking
into account the same consideration mentioned in the
preceding article, shall exercise the authority. (355a)
Art. 215. No descendant shall be compelled, in a
criminal case, to testify against his parents and grand-
parents, except when such testimony is indispensable
in a crime, against the descendant or by one parent
against the other. (315a)
In its declaration of state policies, the 1987 Consti-

tution expresses its recognition of the “natural and pri-
mary right and duty of parents in the rearing of the
youth for civil efficiency and the development of moral
character” (Art. II, Sec. 12, Constitution). Parental au-
thority may not thus be unduly denied the parents; nei-
ther may it be renounced or transferred by them except
in the cases authorized by law (Art. 210, Family Code).
Parental authority is jointly exercised by the father and
the mother over the person and property of their common
children. In case of a disagreement, the father’s decision
prevails unless there is a judicial order to the contrary
(Arts. 211 and 225, Family Code).
In case of absence or death of either parent, the
other shall continue to exercise parental authority. The
remarriage of the surviving parent does not affect this
parental authority unless another is appointed as guard-
ian over the person or property of the children (Art. 212,
Family Code). In cases of annulment or declaration of
absolute nullity of marriage or legal separation of par-
ents, the court shall designate the parent who shall exer-
Title IX. Parental Authority
cise parental authority, taking into account all relevant

considerations, especially the choice of the child over seven
years of age (see Arts. 49, 63, and 213, Family Code). In
Unson III vs. Navarro (101 SCRA 183), the Supreme
Court has said:
“The sole and foremost consideration in contro-

versies regarding child custody is the physical, edu-
cational, social and moral welfare of the child.
Premises considered, the child, an eight-year old girl
and who is thus in the formative and most impres-
sionable stage in her life, should be freed from the
unwholesome and immoral situation of a mother who
openly lives with her brother-in-law.”
No child under seven years of age shall be separated
from the mother, unless the court finds compelling rea-
sons to order otherwise (Art. 213, 2nd par., Family Code).
The rule is partly called for so as to avoid the tragedy and
deep sorrow of a mother who otherwise would see her
baby torn away from her (Hontiveros vs. Intermediate
Appellate Court, 132 SCRA 745). At this tender age, a
child, said the Court of Appeals in one instance, is yet
considered unable to discern between what may be mor-
ally right or wrong; hence, “compelling reasons” should
refer to physical rather than the moral well-being of the
child (see Sy vs. Funa, CA-G.R. Nos. 122117-R, 16 Febru-
ary 1955). The Supreme Court appears to have taken a
different view in Cervantes vs. Fajardo (G.R. No. 79955,
27 January 1984).
While it is true that the determination of the right to
custody of minor children is relevant in cases where the
parents who are married to each other but for some rea-
sons are separated from one another, it does not, how-
ever, follow that it cannot arise in any other situation.
The Supreme Court, in David vs. Court of Appeals (65
SCAD 508, 250 SCRA 82), sustained the propriety of ha-
beas corpus proceeding in behalf of an illegitimate child
by a mother who, by law, is vested with custody of the
child. The fact that the father of an illegitimate child has

recognized the minor child may be a ground for ordering
him to give support to the latter, but not necessarily for
giving him custody of the child. Apparently, the law makes
no distinction between a case of a mother separated from
her husband and she who has borne an illegitimate child
(Sabrina Bondagjy vs. Fouzi Ali Bondagjy, G.R. No.
140817, 07 December 2001). The writ of habeas corpus is
proper to regain custody of a child (Tijing vs. Court of
Appeals, G.R. No. 125901, 08 March 2001, 145 SCAD 391).
There is, despite a dearth of specific legal provisions,
enough recognition on the inherent right of parents over
their children. Article 150 of the Family Code expresses
that “(f)amily relations included those x x x (2) (b)etween
parents and children; x x x.’’ Article 209, in relation to
Article 220, of the Code states that it is the natural right
and duty of parents and those exercising parental author-
ity to, among other things, keep children in their com-
pany and to give them love and affection, advice and coun-
sel, companionship and understanding. The Constitution
itself speaks in terms of the “natural and primary rights’’
of parents in the rearing of the youth. There is nothing
conclusive to indicate that these provisions are meant to
solely address themselves to legitimate relationships. In-
deed, although in varying degrees, the laws on support
and successional rights, by way of examples, clearly go
beyond the legitimate members of the family and so ex-
plicitly encompass illegitimate relationships as well. Then,
too, and most importantly, in the declaration of nullity of
marriages, a situation that presupposes a void or inexist-
ent marriage, Article 49 of the Family Code provides for
appropriate visitation rights to parents who are not given
custody of their children. (cited in Carlito E. Silva vs. Court
of Appeals & Suzanne T. Gonzales, G.R. No. 114742, 17
July 1997, 275 SCRA 604).
The children, in turn, owe respect, reverence and
obedience to their parents while under parental author-
ity. No descendant, the law provides, shall be compelled
to testify against parents and ascendants except when

the testimony is indispensable in a crime against the
descendant or by one parent against the other (Arts. 2211,
2nd par. and Art. 215, Family Code).
In Sabrina Bondagjy vs. Fouzi Ali Bondagjy (su-
pra.), the Supreme Court has said that the Family Code
shall be taken into consideration in deciding whether a
non-Muslim woman is incompetent to have custody of
her children following her divorce from her Muslim hus-
band. What determines her capacity, observed the Court,
is the standard laid down by the Family now that she is
not a Muslim.
Chapter 2 — Substitute and Special

Parental Authority
Art. 216. In default of parents or a judicially ap-

pointed guardian, the following persons shall exercise
substitute parental authority over the child in the order
indicated:
(1) The surviving grandparents, as provided in
Art. 214;
(2) The oldest brother or sister, over twenty-one
years of age; unless unfit or disqualified; and
(3) The child’s actual custodian, over twenty-one
years of age, unless unfit or disqualified;
Whenever the appointment of a judicial guardian
over the property of the child becomes necessary, the
same order of preference shall be observed. (349a, 351a,
354a)
Art. 217. In case of foundlings, abandoned, ne-
glected or abused children and other children similarly
situated, parental authority shall be entrusted in sum-
mary judicial proceedings to heads of children’s homes,
orphanages and similar institutions duly accredited by
the proper government agency. (314a)
Art. 218. The school, its administrators, and teach-
ers, or the individual, entity or institution engaged in
child care shall have special parental authority and

responsibility over the minor child while under their
supervision, instruction or custody.
Authority and responsibility shall apply to all au-
thorized activities whether inside or outside the
premises of the school, entity or institution. (349a)
Art. 219. Those given the authority and respon-
sibility under the preceding Article shall be principally
and solidarily liable for damages caused by the acts or
omission of unemancipated minor. The parents, judi-
cial guardians or the persons exercising substitute pa-
rental authority over said minor shall be subsidiarily
liable.
The respective liabilities of those referred to in
the preceding paragraph shall not apply if it is proved
that they exercised the proper diligence required un-
der the particular circumstances.
All other cases not covered by this and the pre-
ceding articles shall be governed by the provisions of
the Civil Code on quasi-delicts. (n)
There is in law and jurisprudence a recognition of

the deep ties that bind parent and child. Parents are thus
placed first in rank in matters of parental authority. Sub-
stitute parental authority may be exercised by the grand-
parents only in case the parents have died or are absent
or declared unfit in proper proceedings for that purpose.
Parental authority stands to include the right and duty
to the custody of the child, excepting only, of course, what
might otherwise be best for the child’s welfare.
In case of death, absence or unsuitability of the par-
ents, or, in general, in their default or that of a judicially
appointed guardian, substitute parental authority over
the child is exercised in the following order:
(1) The surviving grandparent; if several, the one
designated by the court, taking into consideration the
same factors in disputes over child custody between the
parents;
(2) The oldest brother or sister, over twenty-one

years of age, unless unfit or disqualified; and
(3) The child’s actual custodian over twenty-one
years of age, unless unfit or disqualified (Art. 216, in
relation to Arts. 213 and 215, Family Code).
Parental authority over foundling, abandoned, ne-
glected or abused children, as well as children who are
similarly situated, is entrusted, in summary judicial pro-
ceedings, to heads of children’s homes, orphanages and
similar institutions duly accredited by the proper govern-
ment agency (Art. 217, Family Code).
Special parental authority is exercised, and the re-
sponsibility therefor is assumed, by schools, administra-
tors and teachers, or the individual, entity or institution
engaged in child care while the minor child is under their
supervision, instruction or custody, and in all authorized
activities, whether inside or outside the premises of the
school, entity or institution (St. Mary’s Academy vs.
Carpitanos, G.R. No. 143363, 6 February 2002). In no
case shall such persons exercising special parental au-
thority inflict corporal punishment upon the child (Art.
233, Family Code). Those entrusted with this special pa-
rental authority and responsibility are held principally
and solidarily liable for damages caused by acts or omis-
sion of the minor. The parents and judicial guardians or
the persons exercising substitute parental authority
thereover are subsidiarily liable. The liabilities herein
discussed are not incurred if it is proved (by way of defense)
that the persons so charged have exercised the proper
diligence required under the circumstances. The provi-
sions on and principles in quasi-delicts are applicable
suppletorily (see Arts. 218 and 219, Family Code).
Certain provisions of the Civil Code on quasi-delicts
that may be pertinent include —
“Art. 2180. The obligation imposed by Article
2176 is demandable not only for one’s own acts or
omissions, but also for those of persons for whom one

is responsible.
The father and, in case of his death or incapac-
ity, the mother, are responsible for the damages
caused by the minor children who live in their com-
pany.
Guardians are liable for damages caused by the
minors or incapacitated persons who are under their
authority and live in their company.
The owners and managers of an establishment
or enterprise are likewise responsible for damages
caused by their employees in the service of the
branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused
by their employees and household helpers acting
within the scope of their assigned tasks, even though
the former are not engaged in any business or indus-
try.
The State is responsible in like manner when it
acts through a special agent; but not when the dam-
age has been caused by the official to whom the task
done properly pertains, in which case what is pro-
vided in Article 2176 shall be applicable.
Lastly, teachers or heads of establishments of
arts and trades shall be liable for damages caused
by their pupils and students or apprentices, so long
as they remain in their custody.
The responsibility treated of in this article shall
cease when the persons herein mentioned prove that
they observed all the diligence of a good father of a
family to prevent damage.”
“Art. 2181. Whoever pays for the damage caused
by his dependents or employees may recover from
the latter what he has paid or delivered in satisfac-
tion of the claim.”
“Art. 2182. If the minor or insane person caus-

ing damage has no parents or guardian, the minor
or insane person shall be answerable with his own
property in an action against him where a guardian
ad litem shall be appointed.”
xxx xxx xxx
“Art. 2193. The head of a family that lives in a
building or a part thereof, is responsible for dam-
ages caused by things thrown or falling from the
same.”
“Art. 2194. The responsibility of two or more
persons who are liable for a quasi-delict is solidary.”
(n)
The liability of a person exercising parental author-
ity for the fault or negligence of the child subject to such
authority is premised on the former’s own presumed fail-
ure to exercise due diligence in discharging his respon-
sibility of control and supervision. His vicarious liability
is thus primary and direct, defensible only if he can show
that there is, in fact, no fault or negligence on his part.
Construing paragraph (6) of Article 2180 of the Civil
Code, the Supreme Court, in Palisoc vs. Brillantes (41
SCRA 548), held that the liability of teachers or heads of
establishments of arts and trade covers damages caused
by their pupils and students or apprentices so long as
they remain in their protective and supervisory custody,
including recess time, and they need not be living and
boarding in the school. On the question as to whether the
law contemplated to include academic educational insti-
tutions, the same Court, in Exconde vs. Capuno (101 Phil.
843), answered in the negative, although the decision of
the majority (four against three justices) in the Palisoc
case (involving a school arts and trades) carried a foot-
note expressing agreement with Justice J.B.L. Reyes in
his dissenting opinion in the Exconde case. Article 218, in
relation to Article 219, of the Family Code, has adopted
this dissenting view. In Pasco vs. Court of First Instance

of Bulacan, Branch V (160 SCRA 784), by a majority vote
of three justices, against the two justices who dissented,
the Supreme Court ruled that Article 2180 refers only to
teachers and heads of establishment of arts and trades
and not to the school or the institution itself.
In St. Mary’s Academy vs. Carpitanos (G.R. No.
143363, 6 February 2002), the Supreme Court absolved
the petitioner school of any liability for damages arising
from the vehicular accident that resulted in the death of
one of its students who had joined the school’s enrollment
drive after it was shown that the immediate cause of the
accident was the detachment of the steering wheel guide
that caused the jeep to turn turtle.
In Amadora vs. Court of Appeals (160 SCRA 315),
decided by the Supreme Court en banc, the following
summation was made:
“1. At the time Alfredo Amadora was fatally
shot, he was still in the custody of the authorities of
Colegio de San Jose-Recoletos notwithstanding that
the fourth year classes had formally ended. It was
immaterial if he was in the school auditorium to
finish his physics report for what should be impor-
tant was his being there for a legitimate purpose.
Even the mere savoring of the company of his friends
in the premises of the school was a legitimate pur-
pose that brought him in the custody of the school
authorities.
2. The rector, the high school principal and
the dean of boys could not be held liable because
none of them was the teacher-in-charge, and each of
them was exercising only a general authority over
the student body and not the direct control and in-
fluence exerted by the teacher placed in charge of
particular classes or sections and thus immediately
involved in its discipline. The evidence of the parties
failed to disclose who the teacher-in-charge of the
offending student was. The mere fact that Alfredo

Amadora had gone to school that day in connection
with his physics report did not necessarily make the
physics teacher, respondent Celestino Dicon, the
teacher-in-charge of Alfredo’s killer.
3. At any rate, assuming that the physic’s
teacher was the teacher-in-charge, there was no
showing that Dicon was negligent in enforcing disci-
pline or that he had waived observance of the rules
and regulations of the school or condoned their non-
observance. His absence when the tragedy happened
should not be considered against him because he
was not supposed or required to report to school on
that day. And while it might be true that the offend-
ing student was still in the custody of the teacher-in-
charge even if the latter was physically absent when
the tort was committed, it was not established that
the incident was caused by his laxness in enforcing
discipline upon the student. On the contrary, the
private respondents were able to prove that they
had exercised due diligence, through the enforce-
ment of the school regulations in maintaining that
discipline.
4. In the absence of a teacher-in-charge, it
would probably be the dean of boys who should be
held liable, especially in view of the unrefuted evi-
dence that he earlier confiscated an unlicensed gun
from one of the students and returned the same later
to him without taking disciplinary action on report-
ing the matter to higher authorities. While this was
clearly negligence on his part, for which he would
deserve sanction from the school, it could not, how-
ever, necessarily link him to the shooting of Amadora
as it was not shown that the confiscated and re-
turned pistol was the gun that killed Amadora.
5. Finally, the Colegio de San Jose-Recoletos
could not be held directly liable under the article be-
cause only the teacher or the head of the school of
arts and trades might be made responsible for the

damage caused by the student or apprentice. Nei-
ther could it be held to answer for the tort commit-
ted by any of the other private respondents for none
of them was found to have been charged with the
custody of the offending student or was remiss in the
discharge of his duties in connection with such cus-
tody.
“In sum, the Court finds under the facts as dis-
closed by the record and in the light of the principles
herein announced that none of the respondents is
liable for the injury inflicted by Pablito Daffon on
Alfredo Amadora that resulted in the latter’s death
x x x.”
Under Article 218 and Article 219 of the Family Code,
educational institutions, as well as those engaged in child
care, are now expressly made principally and solidarily
liable with administrators and teachers but the provi-
sions still allow the defense of due diligence on the part of
said persons exercising special parental authority. The
parents and persons exercising substitute parental au-
thority over the child are subsidiarily liable but they, too,
may raise the defense of due diligence.
Chapter 3 — Effect of Parental Authority

Upon the Persons of the Children
Art. 220. The parents and those exercising paren-

tal authority shall have with respect to their unemanci-
pated children or wards the following rights and duties:
(1) To keep them in their company, to support,
educate and instruct them by right precept and good
example, and to provide for their upbringing in keep-
ing with their means;
(2) To give them love and affection, advice and
counsel, companionship and understanding;
(3) To provide them with moral and spiritual guid-
ance, inculcate in them honesty, integrity, self-disci-
pline, self-reliance, industry and thrift, stimulate their

interest in civic affairs, and inspire in them compliance
with the duties and citizenship;
(4) To enhance, protect, preserve and maintain
their physical and mental health at all times;
(5) To furnish them with good and wholesome
educational materials, supervise their activities, rec-
reation and association with others, protect them from
bad company, and prevent them from acquiring habits
detrimental to their health, studies and morals;
(6) To represent them in all matters affecting their
interests;
(7) To demand from them respect and obedience;
(8) To impose discipline on them as may be re-
quired under the circumstances; and
(9) To perform such other duties as are imposed
by law upon parents and guardians. (316a)
Art. 221. Parents and other persons exercising
parental authority shall be civilly liable for the injuries
and damages caused by the acts or omissions of their
unemancipated children living in their company and
under their parental authority subject to the appropri-
ate defenses provided by law. (2180[2]a and [4]a)
Art. 222. The court may appoint a guardian of the
child’s property, or a guardian ad litem when the best
interests of the child so require. (317)
Art. 223. The parents or, in their absence or incapa-
city, the individual, entity or institution exercising pa-
rental authority, may petition the proper court of the
place where the child resides, for an order providing
for disciplinary measures over the child. The child shall
be entitled to the assistance of counsel, either of his
choice or appointed by the court, and a summary hear-
ing shall be conducted wherein the petitioner and the
child shall be heard.
However, if in the same proceeding the court finds
the petitioner at fault, irrespective of the merits of the
petition, or when the circumstances so warrant, the
court may also order the deprivation or suspension of

parental authority or adopt such other measures as it
may deem just and proper. (318a)
Art. 224. The measures referred to in the preced-
ing article may include the commitment of the child for
not more than thirty days in entities or institutions en-
gaged in child care or in children’s homes duly ac-
credited by the proper government agency.
The parent exercising parental authority shall not
interfere with the case of the child whenever committed
but shall provide for his support. Upon proper peti-
tion or at its own instance, the court may terminate the
commitment of the child whenever just and proper.
(319a)
The enumeration of the rights and duties that ap-

pertain to parental authority under Article 220 (supra.)
of the Family Code are not exclusive; neither are they
intended to unduly restrict the means by which the basic
responsibility of parenthood entails in the good upbring-
ing of children where potestative and individual judg-
ment may at times be called for. Where problems arise
that may work to the adverse interest of the child, the
courts, upon petition, may be asked to provide judicial
relief, such as for an appointment of a guardian, or for
ordering disciplinary measure over the child, including
his possible commitment in an institution engaged in
child care, or for an order, in turn, suspending or depriv-
ing parental authority under the conditions set by law
(see Arts. 222-224, Family Code).
The civil liability of persons exercising parental au-
thority for the harm done by children is primary and
direct based on a presumed failure on their part to exer-
cise due diligence in properly discharging their responsi-
bility of control and supervision. Proof of due diligence in
the exercise of parental authority is thus a defense against
that liability. The parents are civilly liable for the torts of
the child as long as the child is below 21 years old and is
living with the parents (Tamargo vs. CA, 209 SCRA 948;
Libi vs. IAC, 214 SCRA 17).
Under paragraph (1) of Article 2180 of the Civil Code,
the liability of parents covers “damages caused by the
minor children who live in their company.” In Elcano vs.
Hill (77 SCRA 98), the Supreme Court held liable a fa-
ther for a quasi-delict committed by his emancipated (by
marriage) minor son since the latter was still living with
and getting subsistence from the father, but the child
being already emancipated, that liability was ruled to be
merely subsidiary. It may be noted, however, that the
accountability of parents for the culpable act or negli-
gence of their children is predicated on the former’s
responsibility under a relationship of patria potestas
(Article 221 of the Family Code).
Republic Act No. 6809, reducing from 21 years to 18
years the age of majority, has nonetheless provided that
such change shall not be “construed to derogate from the
duty or responsibility of parents and guardians for chil-
dren and wards below twenty-one years of age mentioned
in the second and third paragraphs of Article 2180 (su-
pra.) of the Civil Code.”
Chapter 4 — Effect of Parental Authority

Upon the Property of the Children
Art. 225. The father or, in his absence or incapac-

ity, the mother, shall be the legal guardian of the prop-
erty of the unemancipated child without the necessity
of a court appointment.
Where the market value of the property or the
annual income of the child exceeds P50,000, the par-
ent concerned shall be required to furnish a bond in
such amount as the court may determine, but not less
than ten per centum (10%) of the value of the property
or annual income, to guarantee the performance of the
obligations prescribed for general guardians.
A verified petition for approval of the bond shall
be filed in the proper court of the place where the child
resides, or if the child resides in a foreign country, in

the proper court of the place where the property or any
part thereof is situated.
The petition shall be docketed as a summary spe-
cial proceeding in which all incidents and issues re-
garding the performance of the obligations referred to
in the second paragraph of this Article shall be heard
and resolved.
The ordinary rules on guardianship shall be merely
suppletory except when the child is under substitute
parental authority, or the guardian is a stranger, or a
parent has remarried in which case the ordinary rules
on guardianship shall apply. (320a)
Art. 226. The property of the unemancipated child
earned or acquired with his work or industry or by oner-
ous or gratuitous title shall belong to the child in own-
ership and shall be devoted exclusively to the latter’s
support and education, unless the title or transfer pro-
vides otherwise.
The right of the parents over the fruits and in-
come of the child’s property shall be limited primarily
to the child’s support and secondarily to the collective
daily needs of the family. (321a, 323a)
Art. 227. If the parents entrust the management or
administration of any of their properties to an uneman-
cipated child, the net proceeds of such property shall
belong to the owner. The child shall be given a reason-
able monthly allowance in an amount not less than that
which the owner would have paid if the administrator
were a stranger, unless the owner grants the entire pro-
ceeds to the child. In any case, the proceeds thus given
in whole or in part shall not be charged to the child’s
legitime. (322a)
The joint parental authority of the father and the

mother over the property of their common minor children
does not require a court appointment but where said
property has a market value or an annual income in
excess of P50,000, a bond in an amount equivalent to not
less than ten percent of such value or income, judicially
approved in summary special proceedings, must be fur-

nished by the parent concerned. Where the child is under
substitute parental authority or the guardian is a stranger,
or where the parent has remarried, the ordinary rules on
guardianship would instead apply.
Adventicios
Property acquired by the minor child through work
or industry or by onerous or gratuitous title shall belong
to the child in ownership and shall be devoted exclusively
for his support and education, unless the title or transfer
provides otherwise. The fruits and income derived from
such property shall be used primarily for his support and
secondarily for the collective daily needs of the family.
The Civil Code provision allowing the parents to enjoy
usufructuary rights over the property (Art. 321, Civil
Code) has been removed by the Family Code.
Profectios
Under Article 324 of the Civil Code, the income that
a minor child may acquire using the capital or property of
the parents belong in ownership and in usufruct to the
latter but if the parents should expressly grant the child
all or part thereof, the same is not charged to his legi-
time. Under the Family Code, the child, unless he is
granted the full proceeds, is to be given a reasonable
monthly allowance equivalent to an amount not less than
that which the owner would have paid had the manage-
ment or administration of the property been given in-
stead to a stranger. This, too, is not to be charged to his
legitime. (Art. 227, Family Code).
Chapter 5 — Suspension or Termination

of Parental Authority
Art. 228. Parental authority terminates perma-
nently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child. (327a)

Art. 229. Unless subsequently revived by a final
judgment, parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of
the child in a case filed for the purpose;
(4) Upon final judgment of a competent court
divesting the party concerned of parental authority; or
(5) Upon judicial declaration of absence or inca-
pacity of the person exercising parental authority. (327a)
Art. 230. Parental authority is suspended upon

conviction of the parent or the person exercising the
same of a crime which carries with it the penalty of
civil interdiction. The authority is automatically rein-
stated upon service of the penalty or upon pardon or
amnesty of the offender. (330a)
Art. 231. The court in an action filed for the pur-
pose or in a related case may also suspend parental
authority if the parent or the person exercising the same:
(1) Treats the child with excessive harshness or
cruelty;
(2) Gives the child corrupting orders, counsel
or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be sub-
jected to acts of lasciviousness.
The grounds enumerated above are deemed to
include cases which have resulted from culpable neg-
ligence of the parent or the person exercising parental
authority.
If the degree of seriousness so warrants, or the
welfare of the child so demands, the court shall deprive
the guilty party of parental authority or adopt such other
measures as may be proper under the circumstances.
The suspension or deprivation may be revoked

and the parental authority revived in a case filed for
the purpose or in the same proceeding if the court
finds that the cause therefor has ceased and will not
be repeated. (332a)
Art. 232. If the person exercising parental author-
ity has subjected the child or allowed him to be sub-
jected to sexual abuse, such person shall be perma-
nently deprived by the court of such authority. (n)
Art. 233. The person exercising substitute paren-
tal authority shall have the same authority over the
person of the child as the parents.
In no case shall the school administrator, teacher
or individual engaged in child care and exercising spe-
cial parental authority, inflict corporal punishment upon
the child. (n)
A child is permanently freed from parental author-

ity upon a valid emancipation (Art. 228 and Art. 236,
Family Code). A person exercising parental authority may
lose that authority, besides by the child’s reaching the
age of majority or death, by judicial order terminating or
suspending such a person’s parental authority under the
respective provisions of Article 229 and Article 230 of the
Family Code. When parental authority terminates by
adoption or by the appointment of a general guardian,
the adopter or the guardian, as the case may be, assumes
the parental authority. In other cases, the persons exer-
cising substitute parental authority take over that au-
thority unless or until a guardian or a guardian ad litem
is appointed by the court. When parental authority is
suspended upon a parent’s being sentenced for a crime
that carries with it the penalty of civil interdiction, pa-
rental authority is reinstated upon service of the penalty
or his pardon or amnesty. In either case of termination or
suspension, parental authority may re-vest in proper cases
to the person who loses it except when such person has
subjected the child or allowed the latter to be subjected,
to sexual abuse (Art. 232, Family Code).
444 CIVIL LAW
TITLE X. EMANCIPATION AND AGE

OF MAJORITY
Art. 234. Emancipation takes place by the attain-

ment of majority. Unless otherwise provided, majority
commences at the age of twenty-one years.
Emancipation also takes place:
(1) By marriage of the minor; or
(2) By the recording in the Civil Register of an
agreement in a public instrument executed by the parent
exercising parental authority and the minor at least
eighteen years of age. Such emancipation shall be ir-
revocable. (397a, 398a, 400a, 401a)
Art. 235. The provisions governing emancipation
by recorded agreement shall also apply to an orphaned
minor and the person exercising parental authority but
the agreement must be approved by the court before it
is recorded. (404a, 405a, 406a)
Art. 236. Emancipation for any cause shall termi-
nate parental authority over the person and property
of the child who shall then be qualified and responsi-
ble for all acts of civil life. (399a)
Art. 237. The annulment or declaration of nullity of
the marriage of a minor or of the recorded agreement
mentioned in the foregoing Articles 234 and 235 shall
revive the parental authority over the minor but shall
not affect acts and transactions that took place prior to
the recording of the final judgment in the Civil Register.
(n)
Under Article 234 of the Family Code, a person is

emancipated at the very moment following: (a) the stroke
of 00:00 HOURS on the very first day he starts his 21st
444
Title X. Emancipation and Age of Majority
year from birth, (b) his marriage, (c) the recording of the
public instrument containing the agreement executed by
the parent exercising parental authority and the minor
at least eighteen years of age, and (d) the recording of a
judicially-approved agreement between the person exer-
cising parental authority and an orphaned minor (also of
at least eighteen years of age). The emancipation of the
child is final and permanently extinguishes parental au-
thority, except when the marriage or the agreements,
referred to in items (b), (c) and (d) above, are annulled or
declared a nullity in which cases parental authority is
revived but shall not affect acts or transactions that may
have taken place prior to the recording of the final judg-
ment in the Civil Registrar (see Art. 234, 235 and 237,
Family Code).
Emancipation qualifies and holds responsible the
child for all acts of civil life (Art. 236, Family Code), modi-
fying Article 399 of the Civil Code which required an
emancipated minor to still obtain parental consent in bor-
rowing money or alienating or encumbering real property.
The Family Code has also eliminated Article 403 of the
Civil Code which provided that a daughter below twenty
years of age could not leave the parental home, without
the consent of the father or mother in whose company she
lived, except to become a wife or when the parent would
have contracted a subsequent marriage.
The inclusion of the phrase “or declaration of nullity”
of marriage appears to suggest that emancipation takes
place in marriage even if the contract is void. A void
contract is inexistent and without legal consequence ab
initio except in those cases when the law itself explicitly
provides otherwise such as, for instance, Article 40 and
Article 54 of the Family Code (supra.). It is believed,
therefore, that a minor is emancipated by marriage only
when the contract is valid or voidable but not when it is
void. The annulment of the marriage revives parental
authority; the declaration of nullity confirms that such
parental authority has never been lost.
Title X, comprising Article 234 to Article 237, inclu-

sive, of the Family Code, however, has been superseded
by Republic Act No. 6809, entitled, “AN ACT LOWER-
ING THE AGE OF MAJORITY FROM TWENTY-ONE
TO EIGHTEEN YEARS, AMENDING FOR THE PUR-
POSE EXECUTIVE ORDER NUMBERED TWO HUN-
DRED NINE, AND FOR OTHER PURPOSES, the perti-
nent provisions of which read:
SECTION 1. Article 234 of Executive Order No.
209, the Family Code of the Philippines, is hereby
amended to read as follows:
“ART. 234. Emancipation takes place by
the attainment of majority. Unless otherwise
provided, majority commences at the age of
eighteen years.”
SEC. 2. Articles 235 and 237 of the same Code
are hereby repealed.
SEC. 3. Articles 236 of the same Code is also
hereby amended to read as follows:
“ART. 236. Emancipation for any cause
shall terminate parental authority over the per-
son and property of the child who shall then be
qualified and responsible for all acts of civil life,
save the exceptions established by existing laws
in special cases.
Contracting marriage shall require parent-
al consent until the age of twenty-one.
Nothing in this Code shall be construed to
derogate from the duty or responsibility of
parents and guardians for children and wards
below twenty-one years of age mentioned in the
second and third paragraphs of Article 2180 of
the Civil Code.”
SEC. 4. Upon the effectivity of this Act, existing
wills, bequests, donations, grants, insurance poli-
Title X. Emancipation and Age of Majority
cies and similar instruments containing references

and provisions favorable to minors will not retroact
to their prejudice.
SEC. 5. This Act shall take effect upon comple-
tion of its publication in at least two (2) newspapers
of general circulation.”
As it now stands, emancipation takes place only by
the attainment of the age of majority of eighteen years,
thereby terminating parental authority and qualifying
the person, as well as making him responsible, for all
acts of civil life, save in the following cases:
(a) Exceptions established by laws in special cases;
(b) Parental consent to the marriage contracted by
a person below twenty-one years of age; and
(c) The duty and responsibility of parents and
guardians under the provisions of Article 2180 (particu-
larly second and third paragraphs) of the Civil Code.
The age of majority of a person is now eighteen years
from which there is no exception. The exclusionary clauses
in the law (Art. 236, Family Code, as amended by R.A.
6809) merely relate to, and are modificatory of, the
person’s qualifications and responsibilities “for all acts of
civil life.” Hence, the phrase “save the exceptions estab-
lished by existing laws in special cases” found in the
amendatory provisions should be understood as referring
to those instances where circumstances, other than age
of majority per se, may affect capacity to act. To illus-
trate, a person, before attaining the age of emancipation,
may already be allowed to act with civil effects in certain
cases (such as minor child maintaining a savings account
with a banking institution) or, despite having attained
such age, may yet be denied full capacity to act (such as
by reason of incapacity). So also, while he may marry, he
would still need parental consent if he does so before
reaching the age of twenty-one years. Between those ages,
the parents neither are completely absolved from possi-
ble liability under Article 2180 of the Civil Code. These

cases are not irreconcilably opposed to a person’s having,
or not having, attained the age of emancipation.
The amendatory law apparently has retroactive ef-
fect, following the rule expressed in Article 256 of the
Family Code, except that in respect to the instruments
referred to in Section 4 of Republic Act 6809, any favorable
reference to the minor shall not retroact to their preju-
dice.
449
TITLE XI. SUMMARY JUDICIAL

PROCEEDINGS IN THE FAMILY LAW
Chapter 1 — Scope of Application
Art. 238. Until modified by the Supreme Court, the

procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court
proceedings. Such cases shall be decided in an
expeditious manner, without regard to technical rules.
(n)
Unlike the Civil Code where basically there was a

delineation of authority and responsibility that it vested
and reposed on each of the spouses, the Family Code,
upon the other hand, in an attempt to give the greatest
value to the Constitutional mandate of equality between
man and woman, generally now provides for joint actions
and decisions on matters affecting them, their common
property, and their family. Serious disagreements between
the spouses on such matters can not, however, be dis-
counted, and delays in their final resolutions may affect
quite adversely the interest of the family. The Family
Code, to properly address the problem, has prescribed
the instances, such as the separation in fact of the spouses
and incidents involving parental authority, and formu-
lated the appropriate rules when the spouses can invoke
summary court proceedings in settling such disputes with-
out regard to the usual technical rules therefor.
The provisions on Summary Judicial Proceedings
apply to cases arising under articles 41, 51, 69, 73, 96,
124, 217, 223, 225, 235 and, as well as in relation to,
articles 239 and 249 of the Family Code (see infra.).
449
Chapter 2 — Separation in Fact Between

Husband and Wife
Art. 239. When a husband and wife are separated

in fact, or one has abandoned the other and one of
them seeks judicial authorization for a transaction
where the consent of the other spouse is required by
law but such consent is withheld or cannot be ob-
tained, a verified petition may be filed in court alleging
the foregoing facts.
The petition shall attach the proposed deed, if
any, embodying the transaction, and, if none, shall de-
scribe in detail the said transaction and state the rea-
son why the required consent thereto cannot be se-
cured. In any case, the final deed duly executed by the
parties shall be submitted to and approved by the court.
(n)
Art. 240. Claims for damages by either spouse,
except costs of the proceedings, may be litigated only
in a separate action. (n)
Art. 241. Jurisdiction over the petition shall, upon
proof of notice to the other spouse, be exercised by
the proper court authorized to hear family cases, if one
exists, or in the Regional Trial Court or its equivalent,
sitting in the place where either of the spouses re-
sides. (n)
Art. 242. Upon the filing of the petition, the court
shall notify the other spouse, whose consent to the
transaction is required, of said petition, ordering said
spouse to show cause why the petition should not be
granted, on or before the date set in said notice for the
initial conference. The notice shall be accompanied by
a copy of the petition and shall be served at the last
known address of the spouse concerned. (n)
Art. 243. A preliminary conference shall be con-
ducted by the judge personally without the parties be-
ing assisted by counsel. After the initial conference, if
the court deems it useful, the parties may be assisted
by counsel at the succeeding conference and hear-
ings. (n)
Title XI. Summary Judicial Proceedings in the Family Law
Art. 244. In case of non-appearance of the spouse

whose consent is sought, the court shall inquire into
the reasons for his or her failure to appear, and shall
require such appearance, if possible. (n)
Art. 245. If, despite all efforts, the attendance of
the non-consenting spouse is not secured, the court
may proceed ex parte and render judgment as the facts
and circumstances may warrant. In any case, the judge
shall endeavor to protect the interests of the non-ap-
pearing spouse. (n)
Art. 246. If the petition is not resolved at the initial
conference, said petition shall be decided in a sum-
mary hearing on the basis of affidavits, documentary
evidence or oral testimonies at the sound discretion of
the court. If testimony is needed, the court shall specify
the witnesses to be heard and the subject-matter of
their testimonies, directing the parties to present said
witnesses. (n)
Art. 247. The judgment of the court shall be im-
mediately final and executory. (n)
Art. 248. The petition for judicial authority to ad-
minister or encumber specific separate property of the
abandoning spouse and to use the fruits or proceeds
thereof for the support of the family shall also be gov-
erned by these rules. (n)
Briefly, the summary procedure for seeking judi-

cial relief under the Family Code, in appropriate cases,
include —
(1) The filing of a verified petition with the proper
court authorized to hear family cases, if one exists, or in
the Regional Trial Court or its equivalent, sitting in the
place where either of the spouses resides. The petition
shall: (a) recite the essential facts upon which the cause
of action is based, (b) attach all deeds or documents that
may be pertinent thereto, (c) state the reasons therefor,
and (d) specify the relief sought;
(2) The notice to the other spouse (at last known
address) by the court, upon the filing of the petition, or-
dering said spouse to show cause why the petition should

not be granted on or before the date set in the notice for
the initial conference (the notice, which shall attach a
copy of the petition, is enough to authorize the court to
exercise jurisdiction over the case);
(3) A preliminary conference which shall be con-
ducted personally by the judge with the parties, initially
without the assistance of their respective counsel and
thereafter, if the court deems it useful, with such legal
assistance;
(4) A summary hearing, if the matter is not resolved
at the preliminary conference level, where the court may
receive affidavits and documentary evidence or, at the
sound discretion of the court, oral testimonies of such
witnesses on specific matters as the court may direct; and
(5) The judgment which shall immediately be final
and executory.
In cases where the other spouse does not appear, the
court shall inquire into the reasons therefor and take
measures to require that appearance. If, despite such
steps, the spouse fails to take part in the proceedings, the
court may conduct the case ex parte and render judgment
as the facts and circumstances so warrant but shall
endeavor to protect the interest of the non-appearing
spouse.
The provision of Article 247 of the Family Code, to
the effect that the “judgment of the court shall be imme-
diately final and executory,” would not, however, deprive
a party from questioning the same such as by, but not
necessarily limited to, certiorari either by way of appeal
or by special civil action as the law or the rules of proce-
dure may provide (see Art. VIII, Sec. 5, Constitution).
Chapter 3 — Incidents Involving Parental Authority
Art. 249. Petitions filed under Articles 223, 225 and

239 of this Code involving parental authority shall be
verified. (n)
Art. 250. Such petitions shall be filed in the proper

court of the place where the child resides. (n)
Art. 251. Upon the filing of the petition, the court
shall notify the parents or, in their absence or incapac-
ity, the individuals, entities or institutions exercising
parental authority over the child.
Art. 252. The rules in Chapter 2 hereof shall also
govern summary proceedings under this Chapter inso-
far as they are applicable. (n)
The summary procedure under Chapter 2 (supra.)

likewise applies to incidents involving parental authority
such as in petitions for disciplinary measures over the
child (Art. 223, Family Code), and for approval of bonds
in legal guardianship by a parent where the market value
of the child’s property or its annual income exceeds
P50,000 (Art. 225, Family Code).
In the above cases, the corresponding petition shall
be filed with the proper court where the child resides,
whereupon, the court shall notify the person or entity
exercising parental authority over the child.
Chapter 4 — Other Matters Subject to

Summary Proceedings
Art. 253. The foregoing rules in Chapters 2 and 3

hereof shall likewise govern summary proceedings filed
under Articles 41, 51, 69, 73, 96, 124 and 217, insofar
as they are applicable. (n)
In resumé, the cases when summary judicial pro-

ceedings govern include the following petitions —
1. For the declaration of presumptive death of an
absentee spouse for the purpose of allowing the spouse
present to contract a subsequent marriage (Art. 41, Fam-
ily Code).
2. For the approval of a partition agreement for
the delivery of the presumptive legitimes of common chil-
dren following the annulment or declaration of nullity of

the marriage of the parents (Art. 51, Family Code).
3. To resolve a dispute in fixing the family domi-
cile or to exempt a spouse from living with the other for
valid or justifiable grounds (Art. 69, Family Code).
4. To resolve a disagreement between spouses
when one objects to the other’s exercise of profession,
occupation, business or activity (Art. 73, Family Code).
5. To resolve a disagreement between spouses in
the administration and enjoyment of community prop-
erty or conjugal partnership property or to approve the
disposition or encumbrance of such property by one spouse
where the other is incapacitated or unable to participate
in the administration thereof (Art. 96, and Art. 124, Fam-
ily Code).
6. To entrust parental authority to heads of chil-
dren homes, orphanages and similar institutions over
foundlings, abandoned, neglected or abused children and
other children similarly situated (Art. 217, Family Code).
7. For an order directing disciplinary measures
over the child (Art. 223, Family Code).
8. To resolve a disagreement between the spouses
on their exercise of legal guardianship over the property
of a common minor child and/or for approval of bonds by a
parent where the market value of the child’s property or
its annual income exceeds P50,000 (Art. 225, Family
Code).
9. For approval in the emancipation by agreement
of an orphaned minor (Art. 235, Family Code, but no
longer allowed under Republic Act 6809).
10. For the approval of a transaction (normally re-
quiring the consent of both spouses) by one spouse where
the husband and wife are separated in fact or one has
abandoned the other (Art. 239, Family Code).
11. For judicial authority to administer or encum-

ber specific separate property of the abandoning spouse
and to use the fruits or proceeds thereof for the support of
the family (Art. 248, Family Code).
In the foregoing cases, claims for damages, except
for the costs of the proceedings, by one spouse against the
other may be litigated only in a separate action (Art. 240,
Family Code).
456 CIVIL LAW
TITLE XII. FINAL PROVISIONS
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of
Book I of Republic Act No. 386, otherwise known as
the Civil Code of the Philippines, as amended, and
Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42
of the Presidential Decree No. 603, otherwise known
as the Child and Youth Welfare Code, as amended, and
all laws, decrees, executive orders, proclamations, rules
and regulations or parts thereof, inconsistent herewith
are hereby repealed. (n)
Art. 255. If any provision of this Code is held
invalid, all the other provisions not affected thereby
shall remain valid. (n)
Art. 256. This Code shall have retroactive effect
insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or
other laws. (n)
Art. 257. This Code shall take effect one year after
the completion of its publication in a newspaper of
general circulation, as certified by the Executive Sec-
retary, Office of the President.
Publication shall likewise be made in the Official
Gazette. (n)
It would seem that the Family Code has repealed

Titles III-IX, XI and XV, Book I, of the Civil Code (Repub-
lic Act No. 386), as well as articles 17-19 and 27-42 of the
Child and Youth Welfare Code (Presidential Decree No.
603), as amended. The clause “inconsistent herewith” in
Article 254 of the Family Code appears to merely refer to
all other “laws, decrees, executive orders, proclamations,
456
Title XII. Final Provisions
rules and regulations, or parts thereof” and not to those

specific provisions (of the Civil Code and the Child and
Youth Welfare Code) particularly cited by the Family Code.
The Family Code was signed into law on 06 July
1987 and took effect on 03 August 1988, exactly one year
(1988 being a leap year) or three hundred sixty-five days
(see People vs. Ramos, 83 SCRA 1; Art. 13, Civil Code)
after the completion of its publication conformably with
Article 257 thereof. The publication of the Family Code
in Manila Chronicle, a newspaper of general circulation,
was completed on August 4, 1987 (Memorandum Circu-
lar No. 85, “Clarifying the Effectivity Date of the Family
Code of the Philippines” issued by the Office of President
on November 7, 1988).
The Code has retroactive effect “insofar as it does
not prejudice or impair vested or acquired rights in ac-
cordance with the Civil Code or other laws” (Art. 256,
Family Code). Accordingly, the new provisions on proof of
filiation can apply to children born prior to the effectivity
of the Family Code (Castro vs. Court of Appeals, 173
SCRA 656; Uyguangco vs. Court of Appeals, 178 SCRA
684).
A vested right is one that is already established or
fixed and free from further contingency, uncertainty or
controversy (see Luque vs. Villegas, 30 SCRA 417). A
vested right is absolute, complete and unconditional, to
the exercise of which no obstacle exists (Reyes vs. Com-
mission on Audit, 105 SCAD 290, 305 SCRA 512, cited in
Bernabe vs. Alejo, G.R. No. 140500, 21 January 2002). It
includes not only legal or equitable title to the enforce-
ment of a demand, but also an exemption from a new
obligation created after the right has vested (Republic vs.
Miller, 105 SCAD 809, 306 SCRA 183). Rights that have
vested lawfully (see Art. 256, Family Code, in relation to
Art. 2254, Civil Code) when the Family Code took effect
are not prejudiced by the changes it has introduced — a
consequence of the constitutional guaranty of due proc-
ess — but where no impairment results, the new provi-

sions can be given retroactive effect. The law applicable
to successional rights to the estate of a deceased person is
that which governs at the time of his death (see Balais vs.
Balais, 159 SCRA 47; Montilla vs. Montilla, 2 SCRA 695).
No legal impediment can result in the retroactivity of
adjective provisions of the Code (see Cabauatan vs. Court
of First Instance of Isabela, 51 SCRA 171).
There are other provisions of the Family Code spe-
cifically dealing on its retroactive governance. Thus, Ar-
ticle 39 implicitly allows, within the 10-year prescriptive
period, an action to declare null and void on the ground of
psychological incapacity a marriage celebrated prior to
the effectivity of the Family Code. Without this provi-
sion, it would be doubtful to assume, despite Article 256
of the Family Code providing for its retroactivity, that the
law had intended to hold as void any marriage validly
contracted under the Civil Code regime. Hence, by way of
illustration, marriages contracted prior to 03 August 1988
between parents-in-law and children-in-law (now prohib-
ited by the Family Code) must still be considered valid.
Article 105 mandates the application of the provi-
sions of the Family Code on conjugal partnership of gains
to those already established between spouses before the
said code’s effectivity. The administration, therefore, of
common property no longer lies as a rule alone with the
husband but would now be exercised jointly by the
spouses. Unlike Article 166 of the Civil Code which ex-
cluded real property acquired before the effectivity thereof
from the requirement of the wife’s consent in the aliena-
tion or encumbrance of such property by the husband,
the Family Code, however, did not provide for any similar
exclusionary clause.
Article 162 of the Family Code states that its perti-
nent provisions on the family home also govern existing
family residences. Conformably with Article 256 of the
same Code, this retroactive effect may not impair or preju-
dice vested or acquired rights.
Title XII. Final Provisions
It would be interesting to watch further develop-

ments in our jurisprudence on other areas affected by the
Family Code. For instance, would the grounds for annul-
ment of marriages and for legal separation apply to mar-
riages contracted prior to the effectivity of the Family
Code? There would be little doubts but to allow such
grounds if they still persist (in annulment) or they arise
(in legal separation) after the Code had taken effect, for
such is the essence of retroactivity. One might expect, to
be sure, a possible divergence of views on the applicabil-
ity of those grounds had they arisen before the effectivity
of the Family Code, but did not persist thereafter. To
illustrate, would sexual infidelity (not in such degree as
to constitute concubinage) by the husband committed prior
to the effectivity of the Family Code, but who since such
effectivity has remained faithful to his spouse, be a ground
for a petition for legal separation by the wife? It is
submitted that the retroactive effect of the Family Code
does not go so far back as to govern a situation occurring
before its effectivity and which has theretofore been an
uncontroverted matter or that which should aptly be de-
scribed as “fait accompli.” Thus, also, the continuing full
validity of a marriage entered into between a parent-in-
law and a son-in-law prior to the effectivity of the Family
Code cannot even now be seriously doubted.
It may be additionally noted that the Family Code
has neither provided for nor adopted the transitional
provisions of the Civil Code except in the determination
of “vested or acquired rights” under said Code or other
laws.
460 CIVIL LAW
461
APPENDICES
462 CIVIL LAW
463
APPENDIX A
REPUBLIC ACT NO. 8171
AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO

WOMEN WHO HAVE LOST THEIR PHILIPPINE CITIZEN-
SHIP BY MARRIAGE TO ALIENS AND OF NATURAL-BORN
FILIPINOS.
SECTION 1. Filipino women who have lost their Philippine citizen-

ship by marriage to aliens and natural-born Filipinos who have lost their
Philippine citizenship, including their minor children, on account of
political or economic necessity, may reacquire Philippine citizenship
through repatriation in the manner provided in Section 4 of Commonwealth
Act No. 63, as amended: Provided, That the applicant is not a:
(1) Person opposed to organized government or affiliated with
any association or group of persons who uphold and teach doctrines
opposing organized government;
(2) Person defending or teaching the necessity or propriety of
violence, personal assault, or association for the predominance of their
ideas;
(3) Person convicted of crimes involving moral turpitude; or
(4) Person suffering from mental alienation or incurable contagious
diseases.
SEC. 2. Repatriation shall be effected by taking the necessary oath
of allegiance to the Republic of the Philippines and registration in the
proper civil registry and in the Bureau of Immigration. The Bureau of
Immigration shall thereupon cancel the pertinent alien certificate of
registration and issue the certificate of identification as Filipino citizen to
the repatriated citizen.
SEC. 3. All laws, decrees, orders, rules and regulations, or parts
thereof inconsistent with this Act are hereby repealed or amended
accordingly.
SEC. 4. This Act shall take effect thirty (30) days after its publication
in a newspaper of general circulation.
Approved, lapsed into law on October 23, 1995, without the signature
of the President, in accordance with Article VI, Section 27(1) of the
Constitution.
463
464 CIVIL LAW
APPENDIX B
AN ACT AUTHORIZING THE CITY OF MUNICIPAL CIVIL

REGISTRAR OR THE CONSUL GENERAL TO CORRECT A
CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY
AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE
CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER,
AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412
OF THE CIVIL CODE OF THE PHILIPPINES.
Be it enacted by the Senate and House of Representatives of the Philippines

in Congress assembled:
Section 1. Authority to Correct Clerical or Typographical Error and

Change of First Name or Nickname. — No entry in a civil register shall
be changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this Act and its
implementing rules and regulations.
Sec. 2. Definition of Terms. — As used in this Act, the following
terms shall mean:
(1) “City or municipal civil registrar” refers to the head of the
local civil registry office of the city or municipality, as the case may be,
who is appointed as such by the city or municipal mayor in accordance
with the provisions of existing laws.
(2) “Petitioner” refers to a natural person filing the petition and
who has direct and personal interest in the correction of a clerical or
typographical error in an entry or change of first name or nickname in
the civil register.
(3) “Clerical or typographical error” refers to a mistake committed
in the performance of clerical work in writing, copying, transcribing or
typing an entry in the civil register that is harmless and innocuous, such
as misspelled name or misspelled place of birth or the like, which is
visible to the eyes or obvious to the understanding, and can be corrected
or changed only by reference to other existing record or records: Provided,
464
Secs. 3-4 APPENDIX B 465
Republic Act No. 9048
however, That no correction must involve the change of nationality, age,

status, or sex of the petitioner.
(4) “Civil register” refers to the various registry books and related
certificates and documents kept in the archives of the local civil registry
offices, Philippine Consulates and of the Office of the Civil Registrar-
General.
(5) “Civil Registrar General” refers to the administrator of the
National Statistics Office which is the agency mandated to carry out and
administer the provision of laws on civil registration.
(6) “First Name” refers to a name or a nickname given to a person
which may consist of one or more names in addition to the middle and
last names.
Sec. 3. Who May File the Petition and Where. — Any person having
direct and personal interest in the correction of a clerical or typographical
error in an entry and/or change of first name or nickname in the civil
register may file, in person, a verified petition with the local civil registry
office of the city or municipality where the record being sought to be
corrected or changed is kept.
In case the petitioner has already migrated to another place in the
country and it would not be practical for such party, in terms of
transportation expenses, time and effort to appear in person before the
local civil registrar keeping the documents to be corrected or changed, the
petition may be filed, in person, with the local civil registrar of the place
where the interested party is presently residing or domiciled. The two (2)
local civil registrars concerned will then communicate to facilitate the
processing of the petition.
Citizens of the Philippines who are presently residing or domiciled
in foreign countries may file their petition, in person, with the nearest
Philippine Consulates.
The petitions filed with the city or municipal civil registrar or the
consul general shall be processed in accordance with this Act and its
implementing rules and regulations.
All petitions for the correction of clerical or typographical errors
and/or change of first names or nicknames may be for only once.
Sec. 4. Grounds for Change of First Name or Nickname. — The
petition for change of first name or nickname may be allowed in any of
the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous,
tainted with dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly known by
that first name or nicknames in the community; or
466 CIVIL LAW Secs. 5-7
(3) The change will avoid confusion.

Sec. 5. Form and Contents of the Petition. — The petition shall be in
the form of an affidavit, subscribed and sworn to before any person
authorized by law to administer oaths. The affidavit shall set forth facts
necessary to establish the merits of the petition and shall show
affirmatively that the petitioner is competent to testify to the matters
stated. The petitioner shall state the particular erroneous entry or entries
which are sought to be corrected and/or the change sought to be made.
The petition shall be supported with the following documents:
(1) A certified true machine copy of the certificate or of the page
of the registry book containing the entry or entries sought to be corrected
or changed;
(2) At least two (2) public or private documents showing the correct
entry or entries upon which the correction or change shall be based; and
(3) Other document which the petitioner or the city or municipal
civil registrar, or the consul general may consider relevant and necessary
for the approval of the petition.
In case of change of first name or nickname, the petition shall
likewise be supported with the documents mentioned in the immediately
preceding paragraph. In addition, the petition shall be published at least
once a week for two (2) consecutive weeks in a newspaper of general
circulation. Furthermore, the petitioner shall submit a certification from
the appropriate law enforcement agencies that he has no pending case or
no criminal record.
The petition and its supporting papers shall be filed in three (3)
copies to be distributed as follows: first copy to the concerned city or
municipal civil registrar, or the consul general; second copy to the Office
of the Civil Registrar General; and the third copy to the petitioner.
Sec. 6. Duties of the City or Municipal Civil Registrar or the Consul
General. — The city or municipal civil registrar or the consul general to
whom the petition is presented shall examine the petition and its
supporting documents. He shall post the petition in a conspicuous place
provided for that purpose for ten (10) consecutive days after he finds the
petition and its supporting documents sufficient in form and substance.
The city or municipal civil registrar or the consul general shall act
on the petition and shall render a decision not later than five (5) working
days after the completion of the posting and/or publication requirement.
He shall transmit a copy of his decision together with the records of the
proceedings to the Office of the Civil Registrar General within five (5)
working days from the date of the decision.
Sec. 7. Duties and Powers of the Civil Registrar General. — The civil
registrar general shall within ten (10) working days from receipt of the
Secs. 8-10 APPENDIX B 467
decision granting a petition, exercise the power to impugn such decision

by way of an objection based on the following grounds:
(1) The error is not clerical or typographical;
(2) The correction of an entry or entries in the civil register is
substantial or controversial as it affects the civil status of a person; or
(3) The basis used in changing the first name or nickname of a
person does not fall under Section 4.
The civil registrar general shall immediately notify the city or
municipal civil registrar or the consul general of the action taken on the
decision. Upon receipt of the notice thereof, the city or municipal civil
registrar or the consul general shall notify the petitioner of such action.
The petitioner may seek reconsideration with the civil registrar
general or file the appropriate petition with the proper court.
If the civil registrar general fails to exercise his power to impugn
the decision of the city or municipal civil registrar or of the consul general
within the period prescribed herein, such decision shall become final and
executory.
Where the petition is denied by the city or municipal civil registrar
or the consul general, the petitioner may either appeal the decision to the
civil registrar general or file the appropriate petition with the proper
court.
Sec. 8. Payment of Fees. — The city or municipal civil registrar or
the consul general shall be authorized to collect reasonable fees as a
condition for accepting the petition. An indigent petitioner shall be exempt
from the payment of the said fee.
Sec. 9. Penalty Clause. — A person who violates any of the provisions
of this Act shall, upon conviction, be penalized by imprisonment of not
less than six (6) years but not more than twelve (12) years, or a fine of
not less than Ten thousand pesos (P10,000.00) but not more than One
hundred thousand pesos (P100,000.00), or both at the discretion of the
court.
In addition, if the offender is a government official or employee he
shall suffer the penalties provided under civil service laws, rules, and
regulations.
Sec. 10. Implementing Rules and Regulations. — The civil registrar
general shall, in consultation with the Department of Justice, the
Department of Foreign Affairs, the Office of the Supreme Court
Administrator, the University of the Philippines Law Center and the
Philippine Association of Civil Registrars, issue the necessary rules and
regulations for the effective implementation of this Act not later than
three (3) months from the effectivity of this law.
Sec. 11. Retroactivity Clause. — This Act shall have retroactive

effect insofar as it does not prejudice or impair vested or acquired rights
in accordance with the Civil Code and other laws.
Sec. 12. Separability Clause. — If any portion or provision of this
Act is declared void or unconstitutional, the remaining portions or
provisions thereof shall not be affected by such declaration.
Sec. 13. Repealing Clause. — All laws, decrees, orders, rules and
regulations, other issuances, or parts thereof inconsistent with the
provisions of this Act are hereby repealed or modified accordingly.
Sec. 14. Effectivity Clause. — This Act shall take effect fifteen (15)
days after its complete publication in at least two (2) national newspapers
of general circulation.
469
APPENDIX C
AN ACT ESTABLISHING THE RULES AND POLICIES ON THE

DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR
OTHER PURPOSES.
ARTICLE I
GENERAL PROVISIONS
SECTION 1. Short Title. — This Act shall be known as the “Domestic

Adoption Act of 1998.”
SEC. 2. Declaration of Policies. —
(a) It is hereby declared the policy of the State to ensure that
every child remains under the care and custody of his/her parent(s) and
be provided with love, care, understanding and security towards the full
and harmonious development of his/her personality. Only when such efforts
prove insufficient and no appropriate placement or adoption within the
child’s extended family is available shall adoption by an unrelated person
be considered.
(b) In all matters relating to the care, custody and adoption of a
child, his/her interest shall be the paramount consideration in accordance
with the tenets set forth in the United Nations (UN) Convention on the
Rights of the Child. UN Declaration on Social and Legal Principles relating
to the Protection and Welfare of Children with Special Reference to Foster
Placement and Adoption, Nationally and Internationally; and the Hague
Convention on the Protection of Children and Cooperation in Respect of
Inter-country Adoption. Toward this end, the State shall provide alternative
protection and assistance through foster care or adoption for every child
who is neglected, orphaned, or abandoned;
(c) It shall also be a State policy to:
(i) Safeguard the biological parent(s) from making hurried
decisions to relinquish his/her parental authority over his/her child;
469
470 CIVIL LAW Sec. 3
(ii) Prevent the child from unnecessary separation from his/

her biological parent(s);
(iii) Protect adoptive parent(s) from attempts to disturb his/
her parental authority and custody over his/her adopted child.
Any voluntary or involuntary termination of parental authority
shall be administratively or judicially declared so as to establish
the status of the child as “legally available for adoption” and his/her
custody transferred to the Department of Social Welfare and
Development or to any duly licensed and accredited child-placing or
child-caring agency, which entity shall be authorized to take steps
for the permanent placement of the child;
(iv) Conduct public information and educational campaigns
to promote a positive environment for adoption;
(v) Ensure that sufficient capacity exists within government
and private sector agencies to handle adoption inquiries, process
domestic adoption applications, and offer adoption-related services
including, but not limited to, parent preparation and post-adoption
education and counseling; and
(vi) Encourage domestic adoption so as to preserve the child’s
identity and culture in his/her native land, and only when this is
not available shall inter-country adoption be considered as a last
resort.
SEC. 3. Definition of Terms. — For purposes of this Act, the following
terms shall be defined as:
(a) “Child” is a person below eighteen (18) years of age.
(b) “A child legally available for adoption” refers to a child who
has been voluntarily or involuntarily committed to the Department or to
a duly licensed and accredited child-placing or child-caring agency, freed
of the parental authority of his/her biological parent(s) or guardian or
adopter(s) in case of rescission of adoption.
(c) “Voluntarily committed child” is one whose parent(s) knowingly
and willingly relinquishes parental authority to the Department.
(d) “Involuntarily committed child” is one whose parent(s), known
or unknown, has been permanently and judicially deprived of parental
authority due to abandonment; substantial, continuous, or repeated
neglect; abuse; or incompetence to discharge parental responsibilities.
(e) “Abandoned child” refers to one who has no proper parental
care or guardianship or whose parent(s) has deserted him/her for a period
of at least six (6) continuous months and has been judicially declared as
such.
(f) “Supervised trial custody” is a period of time within which a
Sec. 4 APPENDIX C 471
social worker oversees the adjustment and emotional readiness of both

adopter(s) and adoptee in stabilizing their filial relationship.
(g) “Department” refers to the Department of Social Welfare and
Development.
(h) “Child-placing agency” is a duly licensed and accredited agency
by the Department to provide comprehensive child welfare services
including, but not limited to, receiving applications for adoption, evaluating
the prospective adoptive parents, and preparing the adoption home study.
(i) “Child-caring agency” is a duly licensed and accredited agency
by the Department that provides twenty-four (24) hour residential care
services for abandoned, orphaned, neglected, or voluntarily committed
children.
(j) “Simulation of birth” is the tampering of the civil registry
making it appear in the birth records that a certain child was born to a
person who is not his/her biological mother, causing such child to lose his/
her true identity and status.
ARTICLE II
PRE-ADOPTION SERVICES
SEC. 4. Counselling Services. — The Department shall provide the

services of licensed social workers to the following:
(a) Biological Parent(s) — Counseling shall be provided to the
parent(s) before and after the birth of his/her child. No binding commitment
to an adoption plan shall be permitted before the birth of his/her child. A
period of six (6) months shall be allowed for the biological parent(s) to
reconsider any decision to relinquish his/her child for adoption before the
decision becomes irrevocable. Counseling and rehabilitation services shall
also be offered to the biological parent(s) after he/she has relinquished
his/her child for adoption.
Steps shall be taken by the Department to ensure that no hurried
decisions are made and all alternatives for the child’s future and the
implications of each alternative have been provided.
(b) Prospective Adoptive Parent(s) — Counseling sessions, adoption
fora and seminars, among others, shall be provided to prospective adoptive
parent(s) to resolve possible adoption issues and to prepare him/her for
effective parenting.
(c) Prospective Adoptee — Counseling sessions shall be provided
to ensure that he/she understands the nature and effects of adoption and
is able to express his/her views on adoption in accordance with his/her
age and level of maturity.
SEC. 5. Location of Unknown Parent(s). — It shall be the duty of

the Department or the child-placing or child-caring agency which has
custody of the child to exert all efforts to locate his/her unknown biological
parent(s). If such efforts fail, the child shall be registered as a foundling
and subsequently be the subject of legal proceedings where he/she shall
be declared abandoned.
SEC. 6. Support Services. — The Department shall develop a pre-
adoption program which shall include, among others, the above-mentioned
services.
ARTICLE III
ELIGIBILITY
SEC. 7. Who May Adopt. — The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil
capacity and legal rights, of good moral character, has not been convicted
of any crime involving moral turpitude, emotionally and psychologically
capable of caring for children, at least sixteen (16) years older than the
adoptee, and who is in a position to support and care for his/her children
in keeping with the means of the family. The requirement of sixteen (16)
year-difference between the age of the adopter and the adoptee may be
waived when the adopter is the biological parent of the adoptee, or is the
spouse of the adoptee’s parent;
(b) Any alien possessing the same qualifications as above-stated
for Filipino nationals: Provided, That his/her country has diplomatic
relations with the Republic of the Philippines, that he/she has been in the
Philippines for at least three (3) continuous years prior to the filing of the
application for adoption and maintains such residence until the adoption
decree is entered, that he/she has been certified by his/her diplomatic or
consular office or any appropriate government agency that he/she has the
legal capacity to adopt in his/her country, and that his/her government
allows the adoptee to enter his/her country as his/her adopted son/
daughter: Provided, further, That the requirements on residency and
certification of the alien’s qualification to adopt in his/her country may be
waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative
within the fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of
his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to
adopt jointly with his/her spouse a relative within the fourth (4th)
degree of consanguinity or affinity of the Filipino spouse; or
Secs. 8-9 APPENDIX C 473
(c) The guardian with respect to the ward after the termination
of the guardianship and clearance of his/her financial accountabilities;
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter
of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/
daughter: Provided, however, That the other spouse has signified
his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the
illegitimate son/daughter of the other, joint parental authority shall be
exercised by the spouses.
SEC. 8. Who May Be Adopted. — The following may be adopted:
(a) Any person below eighteen (18) years of age who has been
administratively or judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve
his/her status to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has
been consistently considered and treated by the adopter(s) as his/her own
child since minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive parent(s) has died:
Provided, That no proceedings shall be initiated within six (6) months
from the time of death of said parent(s).
SEC. 9. Whose Consent is Necessary to the Adoption. — After being
properly counseled and informed of his/her right to give or withhold his/
her approval of the adoption, the written consent of the following to the
adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal
guardian, or the proper government instrumentality which has legal
custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of
age or over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over,
of the adopter if living with said adopter and the latter’s spouse, if any;
and
(e) The spouse, if any, of the person adopting or to be adopted.
ARTICLE IV
PROCEDURE
SEC. 10. Hurried Decisions. — In all proceedings for adoption, the

court shall require proof that the biological parent(s) has been properly
counseled to prevent him/her from making hurried decisions caused by
strain or anxiety to give up the child, and to sustain that all measures to
strengthen the family have been exhausted and that any prolonged stay
of the child in his/her home will be inimical to his/her welfare and interest.
SEC. 11. Case Study. — No petition for adoption shall be set for
hearing unless a licensed social worker of the Department, the social
service office of the local government unit, or any child-placing or child-
caring agency has made a case study of the adoptee, his/her biological
parent(s), as well as the adopter(s), and has submitted the report and
recommendations on the matter to the court hearing such petition.
At the time of preparation of the adoptee’s case study, the concerned
social worker shall confirm with the Civil Registry the real identity and
registered name of the adoptee. If the birth of the adoptee was not
registered with the Civil Registry, it shall be the responsibility of the
concerned social worker to ensure that the adoptee is registered.
The case study on the adoptee shall establish that he/she is legally
available for adoption and that the documents to support this fact are
valid and authentic. Further, the case study of the adopter(s) shall
ascertain his/her genuine intentions and that the adoption is in the best
interest of the child.
The Department shall intervene on behalf of the adoptee if it finds,
after the conduct of the case studies, that the petition should be denied.
The case studies and other relevant documents and records pertaining to
the adoptee and the adoption shall be preserved by the Department.
SEC. 12. Supervised Trial Custody. — No petition for adoption shall
be finally granted until the adopter(s) has been given by the court a
supervised trial custody period for at least six (6) months within which
the parties are expected to adjust psychologically and emotionally to each
other and establish a bonding relationship. During said period, temporary
parental authority shall be vested in the adopter(s).
The court may motu proprio or upon motion of any party reduce the
trial period if it finds the same to be in the best interest of the adoptee,
stating the reasons for the reduction of the period. However, for alien
adopter(s), he/she must complete the six (6)-month trial custody except
for those enumerated in Sec. 7(b) (i) (ii) (iii).
If the child is below seven (7) years of age and is placed with the
prospective adopter(s) through a pre-adoption placement authority issued
by the Department, the prospective adopter(s) shall enjoy all the benefits
to which biological parent(s) is entitled from the date the adoptee is

placed with the prospective adopter(s).
SEC. 13. Degree of Adoption. — If, after the publication of the order
of hearing has been complied with, and no opposition has been interposed
to the petition, and after consideration of the case studies, the
qualifications of the adopter(s), trial custody report and evidence submitted,
the court is convinced that the petitioners are qualified to adopt, and that
the adoption would redound to the best interest of the adoptee, a decree
of adoption shall be entered which shall be effective as of the date the
original petition was filed. This provision shall also apply in case the
petitioner(s) dies before the issuance of the decree of adoption to protect
the interest of the adoptee. The decree shall state the name by which the
child is to be known.
SEC. 14. Civil Registry Record. — An amended certificate of birth
shall be issued by the Civil Registry, as required by the Rules of Court,
attesting to the fact that the adoptee is the child of the adopter(s) by
being registered with his/her surname. The original certificate of birth
shall be stamped “cancelled” with the annotation of the issuance of an
amended birth certificate in its place and shall be sealed in the civil
registry records. The new birth certificate to be issued to the adoptee
shall not bear any notation that it is an amended issue.
SEC. 15. Confidential Nature of Proceedings and Records. — All
hearings in adoption cases shall be confidential and shall not be open to
the public. All records, books, and papers relating to the adoption cases in
the files of the court, the Department, or any other agency or institution
participating in the adoption proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the information to a third
person is necessary for purposes connected with or arising out of the
adoption and will be for the best interest of the adoptee, the court may
merit the necessary information to be released, restricting the purposes
for which it may be used.
ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority. — Except in cases where the biological

parent is the spouse of the adopter, all legal ties between the biological
parent(s) and the adoptee shall be severed and the same shall then be
vested on the adopter(s).
SEC. 17. Legitimacy. — The adoptee shall be considered the
legitimate son/daughter of the adopter(s) for all intents and purposes and
and as such is entitled to all the rights and obligations provided by law to
legitimate sons/daughters born to them without discrimination of any
kind. To this end, the adoptee is entitled to love, guidance, and support in
keeping with the means of the family.
SEC. 18. Succession. — In legal and intestate succession, the
adopter(s) and the adoptee shall have reciprocal rights of succession
without distinction from legitimate filiation. However, if the adoptee and
his/her biological parent(s) had left a will, the law on testamentary
succession shall govern.
ARTICLE VI
RESCISSION OF ADOPTION
SEC. 19. Grounds for Rescission of Adoption. — Upon petition of

the adoptee, with the assistance of the Department if a minor or if over
eighteen (18) years of age but is incapacitated, as guardian/counsel, the
adoption may be rescinded on any of the following grounds committed by
adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s)
despite having undergone counseling; (b) attempt on the life of the adoptee;
(c) sexual assault or violence; (d) abandonment and failure to comply
with parental obligations.
Adoption, being in the best interest of the child, shall not be subject
to rescission by the adopter(s). However, the adopter(s) may disinherit
the adoptee for causes provided in Article 919 of the Civil Code.
SEC. 20. Effects of Rescission. — If the petition is granted, the
parental authority of the adoptee’s biological parent(s), if known, or the
legal custody of the Department shall be restored if the adoptee is still a
minor or incapacitated. The reciprocal rights and obligations of the
adopter(s) and the adoptee to each other shall be extinguished.
The court shall order the Civil Registrar to cancel the amended
certificate of birth of the adoptee and restore his/her original birth
certificate.
Succession rights shall revert to its status prior to adoption, but
only as of the date of judgment of judicial rescission. Vested rights acquired
prior to judicial rescission shall be respected.
All the foregoing effects of adoption shall be without prejudice to
the penalties imposable under the Penal Code if the criminal acts are
properly proven.
ARTICLE VII
VIOLATIONS AND PENALTIES
SEC. 21. Violations and Penalties. —

(a) The penalty of imprisonment ranging from six (6) years and
one (1) day to twelve (12) years and/or a fine not less than Fifty thousand
Sec. 21 APPENDIX C 477
pesos (P50,000.00), but not more than Two hundred thousand pesos
(P200,000.00) at the discretion of the court shall be imposed on any person
who shall commit any of the following acts:
(i) obtaining consent for an adoption through coercion, undue
influence, fraud, improper material inducement, or other similar
acts;
(ii) non-compliance with the procedures and safeguards
provided by the law for adoption; or
(iii) subjecting or exposing the child to be adopted to danger,
abuse, or exploitation.
(b) Any person who shall cause the fictitious registration of the
birth of a child under the name(s) of a person(s) who is not his/her biological
parent(s) shall be guilty of simulation of birth, and shall be punished by
prision mayor in its medium period and a fine not exceeding Fifty thousand
pesos (P50,000.00).
Any physician or nurse or hospital personnel who, in violation of
his/her oath of office, shall cooperate in the execution of the above-
mentioned crime shall suffer the penalties herein prescribed and also the
penalty of permanent disqualification.
Any person who shall violate established regulations relating to the
confidentiality and integrity of records, documents, and communications
of adoption applications, cases, and processes shall suffer the penalty of
imprisonment, ranging from one (1) year and one (1) day to two (2) years,
and/or a fine of not less than Five thousand pesos (P5,000.00) but not
more than Ten thousand pesos (P10,000.00) at the discretion of the court.
A penalty lower by two (2) degrees than that prescribed for the
consummated offense under this Article shall be imposed upon the
principals of the attempt to commit any of the acts herein enumerated.
Acts punishable under this Article, when committed by a syndicate
or where it involves two (2) or more children shall be considered as an
offense constituting child trafficking and shall merit the penalty of
reclusion perpetua.
Acts punishable under this Article are deemed committed by a
syndicate if carried out by a group of three (3) or more persons conspiring
and/or confederating with one another in carrying out any of the unlawful
acts defined under this Article. Penalties as are herein provided, shall be
in addition to any other penalties which may be imposed for the same
acts punishable under other laws, ordinances, executive orders, and
proclamations.
When the offender is an alien, he/she shall be deported immediately
after service of sentence and perpetually excluded from entry to the
country.
Any government official, employee or functionary who shall be found

guilty of violating any of the provisions of this Act, or who shall conspire
with private individuals shall, in addition to the above-prescribed penalties,
be penalized in accordance with existing civil service laws, rules and
regulations: Provided, That upon the filing of a case, either administrative
or criminal, said government official, employee, or functionary concerned
shall automatically suffer suspension until the resolution of the case.
SEC. 22. Rectification of Simulated Births. — A person who has,
prior to the effectivity of this Act, simulated the birth of a child shall not
be punished for such act: Provided, That the simulation of birth was
made for the best interest of the child and that he/she has been consistently
considered and treated by that person as his/her own son/daughter:
Provided, further, That the application for correction of the birth
registration and petition for adoption shall be filed within five (5) years
from the effectivity of this Act and completed thereafter: Provided, finally,
That such person complies with the procedure as specified in Article IV of
this Act and other requirements as determined by the Department.
ARTICLE VIII
FINAL PROVISIONS
SEC. 23. Adoption Resources and Referral Office. — There shall be

established an Adoption Resources and Referral Office under the
Department with the following functions: (a) monitor the existence,
number, and flow of children legally available for adoption and prospective
adopter(s) so as to facilitate their matching; (b) maintain a nationwide
information and educational campaign on domestic adoption; (c) keep
records of adoption proceedings; (d) generate resources to help child-caring
and child-placing agencies and foster homes maintain viability; and (e) do
policy research in collaboration with the Inter-country Adoption Board
and other concerned agencies. The office shall be manned by adoption
experts from the public and private sectors.
SEC. 24. Implementing Rules and Regulations. — Within six (6)
months from the promulgation of this Act, the Department, with the
Council for the Welfare of Children, the Office of Civil Registry General,
the Department of Justice, Office of the Solicitor General, and two (2)
private individuals representing child-placing and child-caring agencies
shall formulate the necessary guidelines to make the provisions of this
Act operative.
SEC. 25. Appropriations. — Such sum as may be necessary for the
implementation of the provisions of this Act shall be included in the
General Appropriations Act of the year following its enactment into law
and thereafter.
SEC. 26. Repealing Clause. — Any law, presidential decree or
issuance, executive order, letter of instruction, administrative order, rule,
or regulation contrary to, or inconsistent with the provisions of this Act is

hereby repealed, modified, or amended accordingly.
SEC. 27. Separability Clause. — If any provision of this Act is held
invalid or unconstitutional, the other provisions not affected thereby shall
remain valid and subsisting.
SEC. 28. Effectivity Clause. — This Act shall take effect fifteen (15)
days following its complete publication in any newspaper of general
circulation or in the Official Gazette.
Approved: February 25, 1998.
480 CIVIL LAW
APPENDIX D
AN ACT ESTABLISHING THE RULES TO GOVERN INTER-

COUNTRY ADOPTION OF FILIPINO CHILDREN, AND FOR
OTHER PURPOSES.
ARTICLE I. General Provisions

SECTION 1. Short Title. — This Act shall be known as the “Inter-
Country Adoption Act of 1995.”
SEC. 2. Declaration of Policy. — It is hereby declared the policy of
the State to provide every neglected and abandoned child with a family
that will provide such child with love and care as well as opportunities
for growth and development. Towards this end, efforts shall be exerted to
place the child with an adoptive family in the Philippines. However,
recognizing that inter-country adoption may be considered as allowing
aliens, not presently allowed by law to adopt Filipino if such children
cannot be adopted by qualified Filipino if such citizens or aliens, the
State shall take measures to ensure that inter-country adoptions are
allowed when the same shall prove beneficial to the child’s best interests,
and shall serve and protect his/her fundamental rights.
SEC. 3. Definition of Terms. — As used in this Act, the term:
a) Inter-country adoption refers to the socio-legal process of
adopting a Filipino child by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is issued outside the Philippines.
b) Child means a person below fifteen (15) years of age unless
sooner emancipated by law.
c) Department refers to the Department of Social Welfare and
Development of the Republic of the Philippines.
d) Secretary refers to the Secretary of the Department of Social
Welfare and Development.
e) Authorized and accredited agency refers to the State welfare
480
Sec. 4 APPENDIX D 481
agency or a licensed adoption agency in the country of the adopting parents

which provide comprehensive social services and which is duly recognized
by the Department.
f) Legally-free child means a child who has been voluntarily or
involuntarily committed to the Department, in accordance with the Child
and Youth Welfare Code.
g) Matching refers to the judicious pairing of the adoptive child
and the applicant to promote a mutually satisfying parent-child
relationship.
h) Board refers to the Inter-Country Adoption Board.
ARTICLE II. The Inter-Country Adoption Board

SEC. 4. The Inter-Country Adoption Board. — There is hereby created
the Inter-Country Adoption Board, hereinafter referred to as the Board,
to act as the central authority in matters relating to inter-country adoption.
It shall act as the policy-making body for purposes of carrying out the
provisions of this Act, in consultation and coordination with the
Department, the different child-care and placement agencies, adoptive
agencies as well as non-governmental organizations engaged in child-care
and placement activities. As such, it shall:
a) Protect the Filipino child from abuse, exploitation, trafficking
and/or sale or any other practice in connection with adoption which is
harmful, detrimental, or prejudicial to the child;
b) Collect, maintain, and preserve confidential information about
the child and the adoptive parents;
c) Monitor, follow up, and facilitate completion of adoption of the
child through authorized and accredited agency;
d) Prevent improper financial or other gain in connection with
an adoption and deter improper practices contrary to this Act;
e) Promote the development of adoption services including post-
legal adoption;
f) License and accredit child-caring/placement agencies and
collaborate with them in the placement of Filipino children;
g) Accredit and authorize foreign adoption agency in the
placement of Filipino children in their own country; and
h) Cancel the license to operate and blacklist the child-caring
and placement agency or adoptive agency involved from the accreditation
list of the Board upon a finding of violation of any provision under this
Act.
SEC. 5. Composition of the Board. — The Board shall be composed

of the Secretary of the Department as ex officio Chairman, and six (6)
other members to be appointed by the President for a nonrenewable term
of six (6) years: Provided, That there shall be appointed one (1) psychiatrist
or psychologist, two (2) lawyers who shall have at least the qualifications
of a regional trial court judge, one (1) registered social worker and two (2)
representatives from non-governmental organizations engaged in child-
caring and placement activities. The members of the Board shall receive
a per diem allowance of One thousand five hundred pesos (P1,500) for
each meeting attended by them: Provided, further, That no compensation
shall be paid for more than four (4) meetings a month.
SEC. 6. Powers and Functions of the Board. — The Board shall
have the following powers and functions:
a) to prescribe rules and regulations as it may deem reasonably
necessary to carry out the provisions of this Act, after consultation and
upon favorable recommendation of the different agencies concerned with
child-caring, placement, and adoption;
b) to set the guidelines for the convening of an Inter-Country
Adoption Placement Committee which shall be under the direct supervision
of the Board;
c) to set the guidelines for the manner by which selection/
matching of prospective adoptive parents and adoptive child can be made;
d) to determine a reasonable schedule of fees and charges to be
exacted in connection with the application for adoption;
e) to determine the form and contents of the application for inter-
country adoption;
f) to formulate and develop policies, programs and services that
will protect the Filipino child from abuse, exploitation, trafficking and
other adoption practice that is harmful, detrimental and prejudicial to
the best interest of the child;
g) to institute system and procedures to prevent improper
financial gain in connection with adoption and deter improper practices
which are contrary to this Act;
h) to promote the development of adoption services, including
post-legal adoption services;
i) to accredit and authorize foreign private adoption agencies
which have demonstrated professionalism, competence and have
consistently pursued non-profit objectives to engage in the placement of
Filipino children in their own country: Provided, That such foreign private
agencies are duly authorized and accredited by their own government to
conduct inter-country adoption: Provided, however, That the total number
Secs. 7-9 APPENDIX D 483
of authorized and accredited foreign private adoption agencies shall not

exceed one hundred (100) a year;
j) to take appropriate measures to ensure confidentiality of the
records of the child, the natural parents and the adoptive parents at all
times;
k) to prepare, review or modify, and thereafter, recommend to
the Department of Foreign Affairs, Memoranda of Agreement respecting
inter-country adoption consistent with the implementation of this Act
and its stated goals, entered into, between and among foreign governments,
international organizations and recognized international non-governmental
organizations;
l) to assist other concerned agencies and the courts in the
implementation of this Act, particularly as regards coordination with
foreign persons, agencies and other entities involved in the process of
adoption and the physical transfer of the child; and
m) to perform such other functions on matters relating to inter-
country adoptions as may be determined by the President.
ARTICLE III. Procedure

SEC. 7. Inter-Country Adoption as the Last Resort. — The Board
shall ensure that all possibilities for adoption of the child under the Family
Code have been exhausted and that inter-country adoption is in the best
interest of the child. Towards this end, the Board shall set up the guidelines
to ensure that steps will be taken to place the child in the Philippines
before the child is placed for inter-country adoption: Provided, however,
That the maximum number that may be allowed for foreign adoption shall
not exceed six hundred (600) a year for the first five (5) years.
SEC. 8. Who May be Adopted. — Only a legally free child may be
the subject of inter-country adoption. In order that such child may be
considered for placement, the following documents must be submitted to
the Board:
a) Child study;
b) Birth certificate/foundling certificate;
c) Deed of voluntary commitment/decree of abandonment/death
certificate of parents;
d) Medical evaluation/history;
e) Psychological evaluation, as necessary; and
f) Recent photo of the child.
SEC. 9. Who May Adopt. — Any alien or a Filipino citizen
permanently residing abroad may file an application for inter-country
adoption of a Filipino child if he/she:
484 CIVIL LAW Sec. 10
a) is at least twenty-seven (27) years of age and at least sixteen

(16) years older than the child to be adopted, at the time of application
unless the adopter is the parent by nature of the child to be adopted or
the spouse of such parent;
b) if married, his/her spouse must jointly file for the adoption;
c) has the capacity to act and assume all rights and
responsibilities of parental authority under his national laws, and has
undergone the appropriate counseling from an accredited counselor in
his/her country;
d) has not been convicted of a crime involving moral turpitude;
e) is eligible to adopt under his/her national law;
f) is in a position to provide the proper care and support and to
give the necessary moral values and example to all his children, including
the child to be adopted;
g) agrees to uphold the basic rights of the child as embodied
under Philippine laws, the U.N. Convention on the Rights of the Child,
and to abide by the rules and regulations issued to implement the
provisions of this Act;
h) comes from a country with whom the Philippines has diplomatic
relations and whose government maintains a similarly authorized and
accredited agency and that adoption is allowed under his/her national
laws; and
i) possesses all the qualifications and none of the disqualifications
provided herein and in other applicable Philippine laws.
SEC. 10. Where to File Application. — An application to adopt a
Filipino child shall be filed either with the Philippine Regional Trial Court
having jurisdiction over the child, or with the Board, through an
intermediate agency, whether governmental or an authorized and accredited
agency, in the country of the prospective adoptive parents, which application
shall be in accordance with the requirements as set forth in the
implementing rules and regulations to be promulgated by the Board.
The application shall be supported by the following documents
written and officially translated in English:
a) Birth certificate of applicant(s);
b) Marriage contract, if married, and divorce decree, if applicable;
c) Written consent of their biological or adopted children above
ten (10) years of age, in the form of sworn statement;
d) Physical, medical and psychological evaluation by a duly
licensed physician and psychologist;
e) Income tax returns or any document showing the financial
capability of the applicant(s);
f) Police clearance of applicant(s);

g) Character reference from the local church/minister, the
applicant’s employer and a member of the immediate community who
have known the applicant(s) for at least five (5) years; and
h) Recent postcard-size pictures of the applicant(s) and his
immediate family.
The Rules of Court shall apply in case of adoption by judicial
proceedings.
SEC. 11. Family Selection/Matching. — No child shall be matched
to a foreign adoptive family unless it is satisfactorily shown that the child
cannot be adopted locally. The clearance, as issued by the Board, with the
copy of the minutes of the meetings, shall form part of the records of the
child to be adopted. When the Board is ready to transmit the Placement
Authority to the authorized and accredited inter-country adoption agency
and all the travel documents of the child are ready, the adoptive parents,
or any one of them, shall personally fetch the child in the Philippines.
SEC. 12. Pre-adoptive Placement Costs. — The applicant(s) shall
bear the following costs incidental to the placement of the child;
a) The cost of bringing the child from the Philippines to the
residence of the applicant(s) abroad, including all travel expenses within
the Philippines and abroad; and
b) The cost of passport, visa, medical examination and psycholo-
gical evaluation required, and other related expenses.
SEC. 13. Fees, Charges and Assessments. — Fees, charges, and
assessments collected by the Board in the exercise of its functions shall
be used solely to process applications for inter-country adoption and to
support the activities of the Board.
SEC. 14. Supervision of Trial Custody. — The governmental agency
or the authorized and accredited agency in the country of the adoptive
parents which filed the application for inter-country adoption shall be
responsible for the trial custody and the care of the child. It shall also
provide family counseling and other related services. The trial custody
shall be for a period of six (6) months from the time of placement. Only
after the lapse of the period of trial custody shall the decree of adoption
be issued in the said country, a copy of which shall be sent to the Board to
form part of the records of the child.
During the trial custody, the adopting parent(s) shall submit to the
governmental agency or the authorized and accredited agency, which shall
in turn transmit a copy of the Board, a progress report of the child’s
adjustment. The progress report shall be taken into consideration in
deciding whether or not to issue the decree of adoption.
The Department of Foreign Affairs shall set-up a system by which

Filipino children sent abroad for trial custody are monitored and checked
as reported by the authorized and accredited inter-country adoption agency
as well as the repatriation to the Philippines of a Filipino child whose
adoption has not been approved.
SEC. 15. Executive Agreement. — The Department of Foreign Affairs,
upon representation of the Board, shall cause the preparation of Executive
Agreements with countries of the foreign adoption agencies to ensure the
legitimate concurrence of said countries in upholding the safeguards
provided by this Act.
ARTICLE IV. Penalties
SEC. 16. Penalties. — a) Any person who shall knowingly participate

in the conduct of or carrying out of an illegal adoption, in violation of the
provisions of this Act, shall be punished with a penalty of imprisonment
ranging from six (6) years and one (1) day to twelve (12) years and or a fine
of not less than Fifty thousand pesos (P50,000), but not more than Two
hundred thousand pesos (P200,000), at the discretion of the court. For
purposes of this Act, an adoption is illegal if it is effected in any manner
contrary to the provisions of this Act or established State policies, its
implementing rules and regulations, executive agreements, and other laws
pertaining to adoption. Illegality may be presumed from the following acts:
1) consent for an adoption was acquired through, or
attended by coercion, fraud, improper material inducement;
2) there is no authority from the Board to effect adoption;
3) the procedures and safeguards placed under the laws for
adoption were not complied with; and
4) the child to be adopted is subjected to, or exposed to
danger, abuse and exploitation.
b) Any person who shall violate established regulations relating
to the confidentiality and integrity of records, documents and
communications of adoption applications, cases and processes shall suffer
the penalty of imprisonment ranging from one (1) year and one (1) day to
two (2) years, and/or fine of not less than Five thousand pesos (P5,000), but
not more than Ten thousand pesos (P10,000), at the discretion of the court.
A penalty lower by two (2) degrees than that prescribed for the
consummated felony under this Article shall be imposed upon the
principals of the attempt to commit any of the acts herein enumerated.
Acts punishable under this Article, when committed by a syndicate
or where it involves two or more children shall be considered as an offense
constituting child trafficking and shall merit the penalty of reclusion
perpetua.
Acts punishable under this Article are deemed committed by a

syndicate if carried out by a group of three (3) or more persons conspiring
and/or confederating with one another in carrying out any of the unlawful
acts defined under this Article. Penalties as are herein provided shall be
in addition to any other penalties which may be imposed for the same
acts punishable under other laws, ordinances, executive orders, and
proclamations.
SEC. 17. Public Officers as Offenders. — Any government official,
employee or functionary who shall be found guilty of violating any of the
provisions of this Act, or who shall conspire with private individuals
shall, in addition to the above-prescribed penalties, be penalized in
accordance with existing civil service laws, rules and regulations: Provided,
That upon the filing of a case, either administrative or criminal, said
government official, employer or functionary concerned shall automatically
suffer suspension until the resolution of the case.
ARTICLE V. Final Provisions
SEC. 18. Implementing Rules and Regulations. — The Inter-Country

Adoption Board, in coordination with the Council for the Welfare of
Children, the Department of Foreign Affairs, and the Department of
Justice, after due consultation with agencies involved in child-care and
placement, shall promulgate the necessary rules and regulations to
implement the provisions of this Act within six (6) months after its
effectivity.
SEC. 19. Appropriations. — The amount of Five million pesos
(P5,000,000) is hereby appropriated from the proceeds of the Lotto for
initial operations of the Board and subsequently the appropriations of the
same shall be included in the General Appropriations Act for the year
following its enactment.
SEC. 20. Separability Clause. — If any provision, or part hereof, is
held invalid or unconstitutional, the remainder of the law or the provision
not otherwise affected, shall remain valid and subsisting.
SEC. 21. Repealing Clause. — Any law, decree, executive order,
administrative order or rules and regulations contrary to, or inconsistent
with the provisions of this Act are hereby repealed, modified or amended
accordingly.
SEC. 22. Effectivity Clause. — This Act shall take effect fifteen (15)
days after its publication in two (2) newspapers of general circulation. (91
OG 32, Aug. 7, 1995.)
Approved: June 7, 1995.
488 CIVIL LAW
APPENDIX E
MALACAÑANG
MANILA
PRESIDENTIAL DECREE NO. 1083

(The Code of Muslim Personal Laws of the Philippines,
effective Feb. 4, 1977)
“THE MUSLIM CODE’’
A DECREE TO ORDAIN AND PROMULGATE A CODE

RECOGNIZING THE SYSTEM OF FILIPINO MUSLIM LAWS,
CODIFYING MUSLIM PERSONAL LAWS, AND PROVIDING
FOR ITS ADMINISTRATION AND FOR OTHER PURPOSES.
WHEREAS, pursuant to the spirit of the provision of the Constitution

of the Philippines that, in order to promote the advancement and effective
participation of the National Cultural Communities in the building of the
New Society, the State shall consider their customs, traditions, beliefs
and interests in the formulation and implementation of its policies;
WHEREAS, Islamic law and its principles of equity and justice, to
which the Filipino Muslim communities adhere, provide an essential basis
for the fuller development of said communities in relation to the search
for harmonious relations of all segments of the Filipino nation to enhance
national unity;
WHEREAS, the enforcement, with the full sanction of the State, of
the legal system of the Filipino Muslims shall redound to the attainment
of a more ordered life amongst them;
WHEREAS, it is the intense desire of the New Society to strengthen
all the ethnolinguistic communities in the Philippines within the context
of their respective ways of life in order to bring about a cumulative result
satisfying the requirements of national solidarity and social justice;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Republic of the Philippines, by virtue of the powers vested in me by the
488
Arts. 1-4 APPENDIX E 489
Presidential Decree No. 1083
Constitution of the Philippines, do hereby ordain and promulgate the

“Code of Muslim Personal Laws of the Philippines’’ as part of the law of
the land and hereby decree:
BOOK ONE
GENERAL PROVISIONS
TITLE I. TITLE AND PURPOSES OF CODE
ARTICLE 1. Title. — This decree shall be known as the “Code of

Muslim Personal Laws of the Philippines.”
ART. 2. Purposes of Code. — Pursuant to Section 11 of the Article
XV of the Constitution of the Philippines, which provides that “the State
shall consider the customs, traditions, beliefs and interests of national
cultural communities in the formulation and implementation of state
policies,’’ this Code:
(a) Recognizes the legal system of the Muslims in the Philippines
as part of the law of the land and seeks to make Islamic institutions more
effective;
(b) Codifies Muslim personal laws; and
(c) Provides for an effective administration and enforcement of
Muslim personal laws among Muslims.
TITLE II. CONSTRUCTION OF CODE AND

DEFINITION OF TERMS
ART. 3. Conflict of provisions. — (1) In case of conflict between any

provision of this Code and laws of general application, the former shall
prevail.
(2) Should the conflict be between any provision of this Code and
special laws or laws of local application, the latter shall be liberally
construed in order to carry out the former.
(3) The provisions of this Code shall be applicable only to Muslims
and nothing herein shall be construed to operate to the prejudice of a
non-Muslim.
ART. 4. Construction and interpretation. — (1) In the construction
and interpretation of this Code and other Muslim laws, the court shall
take into consideration the primary sources of Muslim law.
(2) Standard treaties and works on Muslim law and jurisprudence
shall be given persuasive weight in the interpretation of Muslim law.
ART. 5. Proof of Muslim law and ‘ada’. — Muslim law and ‘ada’ not
embodied in this Code shall be proven in evidence as a fact. No ‘ada’ which
is contrary to the Constitution of the Philippines, this Code, Muslim law,
public order, public policy or public interest shall be given any legal effect.
ART. 6. Conflict in Islamic schools of law. — (1) Should there be any
conflict among the orthodox (Sunni) Muslim schools of law (Madhahib),
that which is in consonance with the Constitution of the Philippines, this
Code, public order, public policy and public interest shall be given effect.
(2) The Muslim school of law shall, for purposes of this Code, be
the Hanafi, the Hanbali, the Maliki and the Safi’i.
ART. 7. Definition of terms. — Unless the context otherwise provides:
(a) “Agama Arbitration Council” means a body composed of the
Chairman and a representative of each of the parties to constitute a
council to take all necessary steps for resolving conflicts between them.
(b) “Ada” means customary law.
(c) “General Register” means the General Register of marriages,
divorces, revocation of divorces, conversions and such other deeds or
instruments kept by the Register under this Code.
(d) “Ihram’’ signifies the state of ritual consecration of a person
while on pilgrimage to Mecca.
(e) “Madhhab’’ (plural, Madhahib) means any of the four orthodox
(Sunni) schools of Muslim law.
(f) “Month’’ means a period of thirty days.
(g) “Muslim” is a person who testifies to the oneness of God and
the Prophethood of Muhammad and professes Islam.
(h) “Muslim Law” (Shari’a) refers to all the ordinances and
regulations governing Muslims as found principally in the Qur’an and
the Hadith.
(i) “Muslim Personal Law” includes all laws relating to personal
status, marriage and divorce, matrimonial and family relations, succession
and inheritance, and property relations between spouses as provided for
in this Code.
BOOK TWO
PERSONS AND FAMILY RELATIONS
TITLE I. CIVIL PERSONALITY (SHAKSHIYAH MADANIYA)
ART. 8. Legal capacity. — Juridical capacity, which is the fitness to

be the subject of legal relations, is inherent in every natural person and
is lost only through death. Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost.
ART. 9. Restrictions on capacity. — The following circumstances,
among others, modify or limit capacity to act: age, insanity, imbecility,
the state of being a deaf-mute, the condition of death-illness (marad-ul-
maut), penalty, prodigality, absence, family relations, alienage, insolvency,
and trusteeship. The consequences of these circumstances are governed
by this Code and other Islamic laws and, in a suppletory manner, by
other laws.
ART. 10. Personality, how acquired. — Birth determines personality;
but the conceived child shall be considered born for all purposes that are
favorable to it, provided it be born alive, however briefly, at the time it is
completely delivered from the mother’s womb.
ART. 11. Extinction of personality. — (1) Civil personality is
extinguished by death. The effect of death upon the rights and obligations
of a deceased person is determined by this Code, by contract, and by will.
(2) After an absence of seven years, it being unknown whether or
not the absentee still lives, he shall be presumed dead.
ART. 12. Simultaneous death. — If, as between two or more persons
who are called to succeed each other, there is a doubt as to which of them
died first, whoever alleges the death of one prior to the other shall prove
the same; in the absence of such proof, it is presumed that they died at
the same time and there shall be no transmission of rights from one to
the other. However, the successional rights of their respective heirs shall
not be affected.
TITLE II. MARRIAGE AND DIVORCE
Chapter One
APPLICABILITY CLAUSE
ART. 13. Application. — (1) The provisions of this Title shall apply
to marriage and divorce wherein both parties are Muslims, or wherein
only the male party is a Muslim and the marriage is solemnized in
accordance with Muslim law or this Code in any part of the Philippines.
(2) In case of a marriage between a Muslim and a non-Muslim,
solemnized not in accordance with Muslim law or this Code, the Civil
Code of the Philippines shall apply.
(3) Subject to the provisions of the preceding paragraphs, the
essential requisites and legal impediments to marriage, divorce, paternity
and filiation, guardianship and custody of minors, support and
maintenance, claims for customary dower (mahr), betrothal, breach of
contract to marry, solemnization and registration of marriage and divorce,

rights and obligations between husband and wife, parental authority, and
the property relations between husband and wife shall be governed by
this Code and other applicable Muslim laws.
Chapter Two
MARRIAGE (NIKAH)
SECTION 1. — Requisites of Marriage
ART. 14. Nature. — Marriage is not only a civil contract but a social
institution. Its nature, consequences and incidents are governed by this
Code and the Shari’a and not subject to stipulation, except that the
marriage settlement may to a certain extent fix the property relations of
the spouses.
ART. 15. Essential requisites. — No marriage contract shall be
perfected unless the following essential requisites are complied with:
(a) Legal capacity of the contracting parties;
(b) Mutual consent of the parties freely given;
(c) Offer (ijab) and acceptance (gabul) duly witnessed by at least
two competent persons after the proper guardian in marriage (wali) has
given his consent; and
(d) Stipulation of customary dower (mahr) duly witnessed by two
competent persons.
ART. 16. Capacity to contract marriage. — (1) Any Muslim male at
least fifteeen years of age and any Muslim female of the age of puberty or
upwards and not suffering from any impediment under the provisions of
this Code may contract marriage. A female is presumed to have attained
puberty upon reaching the age of fifteen.
(2) However, the Shari’a District Court may, upon petition of a
proper wali, order the solemnization of the marriage of a female who
though less than fifteen but not below twelve years of age, has attained
puberty.
(3) Marriage through a wali by a minor below the prescribed ages
shall be regarded as betrothal and may be annulled upon the petition of
either party within four years after attaining the age of puberty, provided
no voluntary cohabitation has taken place and the wali who contracted
the marriage was other than the father or paternal grandfather.
ART. 17. Marriage ceremony. — No particular form of marriage
ceremony is required but the ijab and the gabul in marriage shall be
declared publicly in the presence of the person solemnizing the marriage
and two competent witnesses. This declaration shall be set forth in an

instrument in triplicate, signed or marked by the contracting parties and
said witnesses, and attested by the person solemnizing the marriage. One
copy shall be given to the contracting parties and another sent to the
Circuit Registrar by the solemnizing officer who shall keep the third.
ART. 18. Authority to solemnize marriage. — Marriage may be
solemnized:
(a) By the proper wali of the woman to be wedded;
(b) Upon authority of the proper wali, by any person who is
competent under Muslim law to solemnize marriage; or
(c) By the judge of the Shari’a District of Shari’a Circuit Court or
any person designated by the judge, should the proper wali, refuse without
justifiable reason, to authorize the solemnization.
ART. 19. Place of solemnization. — Marriage shall be solemnized
publicly in any mosque, office of the Shari’a judge, office of the District or
Circuit Registrar, residence of the bride or her wali, or at any other
suitable place agreed upon by the parties.
ART. 20. Specification of dower. — The amount or value of dower
may be fixed by the contracting parties (mahr-musamma) before, during
or after the celebration of the marriage. If the amount or the value thereof
has not been so fixed, a proper dower (mahr-mithl) shall, upon petition of
the wife, be determined by the court according to the social standing of
the parties.
ART. 21. Payment of dower. — Subject to the stipulation of the
parties, the dower may be fully or partially paid before, during, or after
the marriage. The property or estate of the husband shall be liable for the
unpaid dower, or any part thereof.
ART. 22. Breach of contract. — Any person who has entered into a
contract to marry but subsequently refuses without reasonable ground to
marry the other party who is willing to perform the same shall pay the
latter the expenses incurred for the preparation of the marriage and such
damages as may be granted by the court.
SECTION 2. — Prohibited Marriages
ART. 23. Bases of prohibition. — No marriage may be contracted by

parties within the prohibited degrees:
(a) Of consanguinity;
(b) Of affinity; and
(c) Of fosterage.
ART. 24. Prohibition by consanguinity (tahrim-bin-nasab). — No

marriage shall be contracted between:
(a) Ascendants and descendants of any degree;
(b) Brothers and sisters, whether germane, consanguine or uterine;
and
(c) Brothers or sisters and their descendants within the third
civil degree.
ART. 25. Prohibition by affinity (tahrim-bil-musahara). — (1) No
marriage shall be contracted between:
(a) Any of the spouses and their respective affinal relatives in the
ascending line and in the collateral line within the third degree;
(b) Stepfather and stepdaughter when the marriage between the
former and the mother of the latter has been consummated;
(c) Stepmother and stepson when the marriage between the former
and the father of the latter has been consummated; and
(d) Stepson or stepdaughter and the widow, widower or divorcee
of their respective ascendants.
(2) The prohibition under this article applies even after the
dissolution of the marriage creating the affinal relationship.
ART. 26. Prohibition due to fosterage (tahrim-bir-rada’a). — (1) No
person may validly contract marriage with any woman who breastfed
him for at least five times within two years after his birth.
(2) The prohibition on marriage by reason of consanguinity shall
likewise apply to persons related by fosterage within the same degrees,
subject to exceptions recognized by Muslim law.
SECTION 3. — Subsequent Marriages
ART. 27. By a husband. — Notwithstanding the rule of Islamic law

permitting a Muslim to have more than one wife but not more than four
at a time, no Muslim male can have more than one wife unless he can
deal with them with equal companionship and just treatment as enjoined
by Islamic law and only in exceptional cases.
ART. 28. By widow. — No widow shall contract a subsequent
marriage unless she has observed an ‘idda of four months and ten days
counted from the date of the death of her husband. If at that time the
widow is pregnant, she may remarry within a reasonable time after
delivery. In such case, she shall produce the corresponding death certificate.
ART. 29. By divorce. — (1) No woman shall contract a subsequent
marriage unless she has observed an ‘idda of three monthly courses
counted from the date of divorce. However, if she is pregnant at the time
of the divorce, she may remarry only after delivery.
(2) Should a repudiated woman and her husband reconcile during
her ‘idda, he shall have a better right to take her back without need of a
new marriage contract.
(3) Where it is indubitable that the marriage has not been
consummated when the divorce was effected, no ‘idda shall be required.
ART. 30. Marriage after three talaq. — (1) Where a wife has been
thrice repudiated (talaq bain kubra) on three different occasions by her
husband, he cannot remarry her unless she shall have married another
person who divorces her after consummation of the intervening marriage
and the expiration of the ‘idda.
(2) No solemnizing officer shall perform the subsequent marriage
mentioned in the preceding paragraph unless he has ascertained that
there was no collusion among the parties.
SECTION 4. — Batil and Fasid Marriages
ART. 31. Batil marriages. — The following marriages shall be void

(batil) from the beginning:
(a) Those contracted contrary to Articles 23, 24, 25 and 26;
(b) Those contracted in contravention of the prohibition against
unlawful conjunction; and
(c) Those contracted by parties one or both of whom have been
found guilty of having killed the spouse of either of them.
ART. 32. Fasid marriages. — The following marriages shall be
irregular (fasid) from their performance:
(a) Those contracted with a female observing ‘idda;
(b) Those contracted contrary to Article 30;
(c) Those wherein the consent of either party is vitiated by
violence, intimidation, fraud, deceit or misrepresentation;
(d) Those contracted by a party in a condition of death-illness
(marad-ul-maut) without the same being consummated;
(e) Those contracted by a party in a state of ihram; and
(f) Mixed marriages not allowed under Islamic law.
ART. 33. Validation of irregular marriages. — (1) Irregular marriages
may be made regular by a new marriage contract in the following cases:
(a) Those referred to in Article 32(a), after the impediment
has been removed;
(b) Those referred to in Article 32(b), upon compliance with

the requirement of Article 30;
(c) Those referred to in Article 32(c), after the causes
vitiating consent have ceased;
(d) Those referred to in Article 32(d), in case the party
recovers;
(e) Those referred to in Article 32(e), when the party is no
longer in a state of ihram; and
(f) Those referred to in Article 32(f), after conversion to a
faith that could have made the marriage valid.
(2) The effects of the new marriage under the first paragraph
shall retroact to the date of the celebration of the irregular marriage.
SECTION 5. — Rights and Obligations Between Spouses
ART. 34. Mutual rights and obligations. — (1) The husband and the
wife are obliged to live together, observe mutual respect and fidelity, and
render mutual help and support in accordance with this Code.
(2) When one of the spouses neglects his or her duties to the
conjugal union or brings danger, dishonor or material injury upon the
other, the injured party may petition the court for relief. The court may
counsel the offender to comply with his or her duties, and take such
measures as may be proper.
(3) The husband and the wife shall inherit from each other in
accordance with this Code.
(4) The husband and the wife shall have the right to divorce in
accordance with this Code.
ART. 35. Rights and obligations of the husband. — The husband
shall fix the residence of the family. The court may exempt the wife from
living with her husband on any of the following grounds:
(a) Her dower is not satisfied in accordance with the stipulations;
or
(b) The conjugal dwelling is not in keeping with her social standing
or is, for any reason, not safe for the members of the family or her
property.
ART. 36. Rights and obligations of the wife. — (1) The wife shall
dutifully manage the affairs of the household. She may purchase things
necessary for the maintenance of the family, and the husband shall be
bound to reimburse the expenses, if he has not delivered the proper sum.
(2) The wife cannot, without the husband’s consent, acquire any
property by gratuitous title, except from her relatives who are within the
prohibited degrees in marriage.
(3) The wife may, with her husband’s consent, exercise any
profession or occupation or engage in lawful business which is in keeping
with Islamic modesty and virtue. However, if the husband refuses to give
his consent on the ground that his income is sufficient for the family
according to its social standing or his opposition is based on serious and
valid grounds, the matter shall be referred to the Agama Arbitration
Council.
(4) The wife shall have the right to demand the satisfaction of her
mahr.
(5) Unless otherwise stipulated in the marriage settlements, the
wife retains ownership and administration of her exclusive property.
(6) The wife shall be entitled to an equal and just treatment by
the husband.
SECTION 6. — Property Relations Between Spouses
ART. 37. How governed. — The property relations between husband

(a) By contract before or at the time of the celebration of marriage;
(b) By the provisions of this Code; and
(c) By custom.
ART. 38. Regime of property regulations. — The property relations
between the spouses, in the absence of any stipulation to the contrary in
the marriage settlements or any other contract, shall be governed by the
regime of complete separation of property in accordance with this Code
and, in a suppletory manner, by the general principles of Islamic law and
the Civil Code of the Philippines.
ART. 39. Stipulation in the marriage settlements. — Every stipulation
in the marriage settlements or contract referred to in the preceding article
shall be void and without effect whatsoever, should the marriage not take
place. However, stipulations that do not depend upon the contract of
marriage shall be valid.
ART. 40. Ante-nuptial property. — The wife shall not lose ownership
and administration of all properties brought by her to the marriage in the
absence of any written agreement to the contrary, and she may dispose of
the same by deed or otherwise even without the consent of her husband.
ART. 41. Exclusive property of each spouse. — The following shall be
the exclusive property of either spouse:
(a) Properties brought to the marriage by the husband or the

wife;
(b) All income derived by either spouse from any employment,
occupation or trade;
(c) Any money or property acquired by either spouse during
marriage by lucrative title;
(d) The dower (mahr) of the wife and nuptial gifts to each spouse;
(e) Properties acquired by right of redemption, purchase or
exchange of the exclusive property of either; and
(f) All fruits of properties mentioned in the foregoing paragraphs.
ART. 42. Ownership and administration. — Each spouse shall own,
possess, administer, enjoy and dispose of his or her own exclusive estate
even without the consent of the other. However, the court may, upon
petition of either spouse, grant to the other the administration of such
property.
ART. 43. Household property. — Household property which custom-
arily pertains to or is used by either spouse shall be prima facie presumed
to be the property of said spouse.
ART. 44. Right to sue and be sued. — The wife may, independently
of the husband, sue or be sued in the following cases:
(a) When the litigation is between husband and wife;
(b) If the suit concerns her exclusive property;
(c) If the litigation is incidental to her profession, occupation or
business;
(d) If the litigation concerns the exclusive property of the husband,
the administration of which has been transferred to her; or
(e) Such other appropriate cases as may be allowed by the general
principles of Islamic law and other laws.
Chapter Three
DIVORCE (TALAQ)
SECTION 1. — Nature and Form
ART. 45. Definition and forms. — Divorce is the formal dissolution

of the marriage bond in accordance with this Code to be granted only
after the exhaustion of all possible means of reconciliation between the
spouses. It may be effected by:
(a) Repudiation of the wife by the husband (talaq);
(b) Vow of abstinence by the husband (ila);

(c) Injurious assimilation of the wife by the husband (zihar);
(d) Acts of imprecation (li’an);
(e) Redemption by the wife (khul’);
(f) Exercise by the wife of the delegated right to repudiate (tafwid);
or
(g) Judicial decree (faskh).
ART. 46. Divorce by talaq. — (1) A divorce by talaq may be effected
by the husband in a single repudiation of his wife during her non-
menstrual period (tuhr) within which he has totally abstained from carnal
relation with her. Any number of repudiations made during one tuhr
shall constitute only one repudiation and shall become irrevocable after
the expiration of the prescribed ‘idda.’
(2) A husband who repudiates his wife, either for the first or
second time, shall have the right to take her back (ruju’) within the
prescribed ‘idda by resumption of cohabitation without need of a new
contract of marriage. Should he fail to do so, the repudiation shall become
irrevocable (talaq bain sugra).
ART. 47. Divorce by ila. — Where a husband makes a vow to abstain
from any carnal relation (ila) with his wife and keeps such ila for a
period of not less than four months, she may be granted a decree of
divorce by the court after due notice and hearing.
ART. 48. Divorce by zihar. — Where the husband has injuriously
assimilated (zihar) his wife to any of his relatives within the prohibited
degrees of marriages, they shall mutually refrain from having carnal
relation until he shall have performed the prescribed expiation. The wife
may ask the court to require her husband to perform the expiation or to
pronounce a regular talaq should he fail or refuse to do so, without
prejudice to her right of seeking other appropriate remedies.
ART. 49. Divorce by li’an. — Where the husband accuses his wife in
court of adultery, a decree of perpetual divorce may be granted by the
court after due hearing and after the parties shall have performed the
prescribed acts of imprecation (li‘an).
ART. 50. Divorce by khul’. — The wife may, after having offered to
return or renounce her dower to pay any other lawful consideration for
her release (khul’) from the marriage bond, petition the court for divorce.
The court shall, in meritorious cases and after fixing consideration, issue
the corresponding decree.
ART. 51. Divorce by tafwid. — If the husband has delegated (tafwid)
to the wife the right to effect a talaq at the time of the celebration of the
marriage or thereafter, she may repudiate the marriage and the
repudiation would have the same effect as if it were pronounced by the

husband himself.
ART. 52. Divorce by faskh. — The court may, upon petition of the
wife, decree a divorce by faskh on any of the following grounds:
(a) Neglect or failure of the husband to provide support for the
family for at least six consecutive months;
(b) Conviction of the husband by final judgment sentencing him
to imprisonment for at least one year;
(c) Failure of the husband to perform for six months without
reasonable cause his marital obligation in accordance with this Code;
(d) Impotency of the husband;
(e) Insanity or affliction of the husband with an incurable disease
which would make the continuance of the marriage relationship injurious
to the family;
(f) Unusual cruelty of the husband as defined under the next
succeeding article; or
(g) Any other cause recognized under Muslim law for the
dissolution of marriage by faskh either at the instance of the wife or the
proper wali.
ART. 53. Faskh on the ground of unusual cruelty. — A decree of
faskh on the ground of unusual cruelty may be granted by the court upon
petition of the wife if the husband:
(a) Habitually assaults her or makes her life miserable by cruel
conduct even if this does not result in physical injury;
(b) Associates with persons of ill-repute or leads an infamous life
or attempts to force the wife to live an immoral life;
(c) Compels her to dispose of her exclusive property or prevents
her from exercing her legal rights over it;
(d) Obstructs her in the observance of her religious practices; or
(e) Does not treat her justly and equitably as enjoined by Islamic
law.
ART. 54. Effects of irrevocable talaq or faskh. — A talaq or faskh, as
soon as it becomes irrevocable, shall have the following effects:
(a) The marriage bond shall be severed and the spouses may
contract another marriage in accordance with this Code;
(b) The spouses shall lose their mutual rights of inheritance;
(c) The custody of children shall be determined in accordance
with Article 78 of this Code;
(d) The wife shall be entitled to recover from the husband her
whole dower in case the talaq has been effected after the consummation
of the marriage, or one-half thereof if effected before its consummation;
(e) The husband shall not be discharged from his obligation to
give support in accordance with Article 67; and
(f) The conjugal partnership, if stipulated in the marriage
settlements, shall be dissolved and liquidated.
ART. 55. Effects of other kinds of divorce. — The provisions of the
article immediately preceding shall apply to the dissolution, or marriage
by ila, zihar, li’an and khul’, subject to the effects of compliance with the
requirements of the Islamic law relative to such divorces.
SECTION 2. — ‘Idda
ART. 56. ‘Idda defined. — ‘Idda the period of waiting prescribed for
a woman whose marriage has been dissolved by death or by divorce the
completion of which shall enable her to contract a new marriage.
ART. 57. Period. — (1) Every wife shall be obliged to observe ‘idda
as follows:
(a) In case of dissolution of marriage by death, four months
and ten days counted from the death of her husband;
(b) In case of termination of marriage by divorce, for three
monthly courses; or
(c) In case of a pregnant woman, for a period extending
until her delivery.
(2) Should the husband die while the wife is observing ‘idda for
divorce, another ‘idda for death shall be observed in accordance with
paragraph 1(a).
TITLE III. PATERNITY AND FILIATION
ART. 58. Legitimacy, how established. — Legitimacy of filiation is

established by evidence of valid marriage between the father and the
mother at the time of the conception of the child.
ART. 59. Legitimate children. — (1) Children conceived in lawful
wedlock shall be presumed to be legitimate. Whoever claims illegitimacy
of or impugns such filiation must prove his allegation.
(2) Children born after six months following the consummation of
marriage or within two years after the dissolution of the marriage shall
be presumed to be legitimate. Against this presumption no evidence shall
be admitted other than that of the physical impossibility of access between

the parents at or about the time of the conception of the child.
ART. 60. Children of subsequent marriage. — Should the marriage
be dissolved and the wife contracts another marriage after the expiration
of her ‘idda, the child born within six months from the dissolution of the
prior marriage shall be presumed to have been conceived during the
former marriage, and if born thereafter, during the latter.
ART. 61. Pregnancy after dissolution. — If, after the dissolution of
marriage, the wife believes that she is pregnant by her former husband,
she shall, within thirty days from the time she became aware of her
pregnancy, notify the former husband or his heirs of that fact. The husband
or his heirs may ask the court to take measures to prevent a simulation
of birth.
ART. 62. Rights of legitimate child. — A legitimate child shall have
the right:
(a) To bear the surnames of the father and of the mother;
(b) To receive support from the father or, in his default, from his
heirs in accordance with Articles 65 and 68; and
(c) To share in the legitime (furud) and other successional rights
which this Code recognizes in his favor.
ART. 63. Acknowledgment by father. — Acknowledgment (igrar) of a
child by the father shall establish paternity and confer upon each the
right to inherit from the other exclusively in accordance with Article 94,
provided the following conditions are complied with:
(a) The acknowledgment is manifested by the father’s acceptance
in public that he is the father of the child who does not impugn it; and
(b) The relation does not appear impossible by reason of disparity
in age.
ART. 64. Adoption. — No adoption in any form shall confer upon
any person the status and rights of a legitimate child under Muslim law,
except that said person may receive a gift (hiba).
TITLE IV. SUPPORT (NAFAQA)
ART. 65. Support defined. — Support (nafaqa) includes everything

that is indispensable for sustenance, dwelling, clothing and medical
attendance according to the social standing of the person obliged to give
it, and the education of the person entitled to the support until he complete
his education, training or vocation even beyond the age of majority.
ART. 66. Amount. — The amount of support shall be in proportion
to the resources of the giver and to the needs of the recipient.
ART. 67. Support for wife and infant. — (1) The wife shall be entitled
to support during the marriage. In cases of divorce (talaq), her right shall
be extended up to the expiration of ‘idda. However, in case the wife is
pregnant at the time of the separation, she shall be entitled to support
until delivery.
(2) Any divorced nursing mother who continues to breastfed her
child for two years shall be entitled to support until the time of weaning.
ART. 68. Support between ascendants and descendants. — The
ascendants and descendants shall be obliged to support each other in the
order in which they are called to succeed by intestacy the person who has
a right to claim support.
ART. 69. Payment. — (1) The obligation to support shall be

demandable from the time the recipient needs it for maintenance, but it
shall not be paid except from the date it is extrajudicially demanded.
(2) Payment shall be made daily, weekly or monthly in advance,

and when the recipient dies, his heirs shall not be obliged to return what
he had received in advance.
(3) If the recipient is the wife, the rule established in the foregoing
paragraph shall apply even though the marriage is dissolved.
ART. 70. Extinguishment of support. — The obligation to support
shall cease:
(a) Upon the death of the recipient;
(b) When the resources of the obligor have been so reduced that
he cannot give the support without neglecting his own needs and those of
his family, except that in the case of the spouses, the husband, though
needy, is obliged to support the wife; or
(c) When the recipient commits any act which would give rise to
disqualification to inherit or denial of support under Muslim law.
TITLE V. PARENTAL AUTHORITY
Chapter One
NATURE AND EFFECTS
ART. 71. Who exercises. — (1) The father and the mother shall
jointly exercise just and reasonable parental authority and fulfill their
responsibility over their legitimate and acknowledged children. In case of
disagreement, the father’s decision shall prevail unless there is a judicial
order to the contrary.
(2) The mother shall exercise parental authority over her children
born out of wedlock, but the court may, when the best interests of the
children so require, appoint a general guardian.
ART. 72. Duty to parents. — (1) Children shall respect, revere, and
obey their parents always unless the latter cast them into disbelief.
(2) Grandparents are likewise entitled to respect and reverence,
and shall be consulted whenever practicable by all members of the family
on all important questions.
ART. 73. Duty to children. — Every parent and every person
exercising parental authority shall see to it that the rights of the children
are respected, and their duties complied with, and shall particularly by
precept and example, imbue them with religious and civic consciousness,
love of country, veneration of the national heroes and attachment to the
ideal of permanent world peace.
ART. 74. Effects upon person of children. — The parents have, with
respect to their unemancipated children:
(a) The duty to support them, have them in their company, educate
and instruct them in keeping with their means and represent them in all
actions which shall redound to their benefits; and
(b) The power to correct, discipline, and punish them moderately.
ART. 75. Effects upon property of children. — (1) The father, or in
his absence the mother, shall be the legal administrator of the property of
the child under parental authority. If the property is worth more than
five thousand pesos, the father or the mother shall give a bond to be
approved by the court.
(2) The court may appoint a guardian (wali) in the absence of one
who is natural or testamentary.
ART. 76. Parental authority non-transferable. — Parental authority
can neither be renounced nor transferred except as otherwise provided in
this Code and the general principles of Islamic law.
ART. 77. Extinguishment of parental authority. — (1) Parental
authority terminates upon the death of the parents or the child, or upon
emancipation.
(2) Subject to Article 78, the widowed mother who contracts a
subsequent marriage shall lose parental authority and custody over all
children by the deceased husband, unless the second husband is related
to them within the prohibited degrees of consanguinity.
(3) The court may deprive a person of parental authority or
suspend the exercise thereof if he treats his children with excessive
harshness, gives them corrupting or immoral orders and counsel, or
abandons them.
Chapter Two
CUSTODY AND GUARDIANSHIP
ART. 78. Care and custody. — (1) The care and custody of children
below seven years of age whose parents are divorced shall belong to the
mother or, in her absence, to the maternal grandmother, the paternal
grandmother, the sister and aunts. In their default, it shall devolve upon
the father and the nearest paternal relatives. The minor above seven
years of age but below the age of puberty may choose the parent with
whom he wants to stay.
(2) The unmarried daughter who has reached the age of puberty
shall stay with the father, the son, under the same circumstances, shall
stay with the mother.
ART. 79. Guardian for marriage (wali). — The following persons
shall have authority to act as guardian for marriage (wali) in the order of
precedence:
(a) Father;
(b) Paternal grandfather;
(c) Brother and other paternal relatives;
(d) Paternal grandfather’s executor or nominee; or
(e) The court.
ART. 80. Guardian of minor’s property. — The following persons
shall exercise guardianship over the property of minors in the order of
precedence:
(a) Father;
(b) Father’s executor or nominee;
(c) Paternal grandfather;
(d) Paternal grandfather’s nominee; or
(e) The court.
TITLE VI. CIVIL REGISTRY
Chapter One
REGISTRY OF MARRIAGE, DIVORCE
AND CONVERSIONS
ART. 81. District Registrar. — The Clerk of Court of the Shari’a

District Court shall, in addition to his regular functions, act as District
Registrar of Muslim Marriages, Divorces, Revocations of Divorces, and
Conversions within the territorial jurisdiction of said court. The Clerk of
Court of the Shari’a Circuit Court shall act as Circuit Registrar of Muslim
Marriages, Divorces, Revocations of Divorces, and Conversions within his
jurisdiction.
ART. 82. Duties of District Registrar. — Every District Registrar
shall exercise supervision over Circuit Registrars in every Shari’a District.
He shall, in addition to an entry book, keep and bind copies of certificates
of Marriage, Divorce, Revocation of Divorce, and Conversion sent to him
by the Circuit Registrars in separate general registers. He shall send
copies in accordance with Act No. 3753, as amended, to the office of the
Civil Registrar-General.
ART. 83. Duties of Circuit Registrar. — Every Circuit Registrar
shall:
(a) File every certificate of marriage (which shall specify the nature
and amount of the dower agreed upon), divorce or revocation of divorce
and conversion and such other documents presented to him for registration;
(b) Compile said certificates monthly, prepare and send any
information required of him by the District Registrar;
(c) Register conversions involving Islam;
(d) Issue certified transcripts or copies of any certificate or
document registered upon payment of the required fees;
(e) Send to the District Registrar during the first ten days of each
month a copy of the entries made during the previous month;
(f) Index the same for easy reference and identification in case
any information is required; and
(g) Administer oaths, free of charge, for civil registry purposes.
ART. 84. Cancellation or Correction of Entry. — Any entry in the
District or Circuit Register may, upon verified petition of any interested
party, be corrected upon order of the Shari’a District Court, subject to the
provisions of the Rules of Court. Every Registrar shall be civilly responsible
for any unauthorized alteration made in the registry to any person
suffering damage thereby. However, the Registrar may exempt himself
from such liability if he proves that he has taken every reasonable
precaution to prevent the unlawful alteration.
ART. 85. Registration of revocation of divorce. — Within seven days
after the revocation of a divorce by ruju’, the husband shall, with the
wife’s written consent, file a statement thereof with the Circuit Registrar
in whose records the divorce was previously entered.
ART. 86. Legal effects of registration. — The books making up the
registry of marriage, divorce, revocation of divorce, conversion, and all
other documents relating thereto shall be considered public documents
and shall be prima facie evidence of the facts therein contained. However,
nothing herein provided shall affect the intrinsic validity or invalidity of

the acts registered.
ART. 87. Applicability of other civil registry law. — To the extent
not inconsistent with the provisions of this Code, the provisions of other
registry laws govern in other civil registrars shall be observed by district
or circuit registrars.
Chapter Two
OTHER ACTS AFFECTING CIVIL STATUS
ART. 88. Where registered. — All other acts, events, or judicial decrees
affecting civil status not mentioned in Chapter One of this Title shall be
recorded in the existing civil registry of the city or municipality in accord-
ance with special laws.
BOOK THREE
SUCCESSION
TITLE I. GENERAL PROVISIONS
ART. 89. Succession defined. — Succession is a mode of acquisition

by virtue of which the estate of a person is transmitted to his heirs or
others in accordance with this Code.
ART. 90. Successional rights, when vested. — The rights to succession
are transmitted from the moment of the death of the decedent. The right
to succession of an heir who predeceases the decedent shall not be
transmitted by right of representation to his own heirs.
ART. 91. Requisites of succession. — No settlement of the estate of a
deceased person shall be effected unless:
(a) The death of the decedent is ascertained;
(b) The successor is alive at the time of the death of the decedent,
and;
(c) The successor is not disqualified to inherit.
ART. 92. Inheritance (Mirath). — The inheritance of a person includes
all properties of any kind, movable or immovable, whether ancestral or
acquired either onerous or gratuitous title, as well as all transmissible
rights and obligations at the time of his death and those that accrue
thereto before partition.
ART. 93. Disqualifications to succession. — The following shall be
disqualified to succeed:
(a) Those who have intentionally caused directly or indirectly the

death of the decedent;
(b) Those who have committed any other act which constitutes a
ground for disqualification to inherit under Islamic law; and
(c) Those who are so situated that they cannot inherit under
Islamic law.
ART. 94. Succession from acknowledging person. — Without prejudice
to the order of succession of heirs, mutual rights of inheritance shall
obtain:
(a) Between the acknowledging father and the acknowledged child;
and
(b) Between the kinsman acknowledged through another person
and acknowledger.
ART. 95. Succession by illegitimate child. — A child who was the
cause of the mother’s having been divorced by li’an shall have mutual
rights of succession only with the mother and her relatives.
ART. 96. Succession between divorced persons. — (1) The husband
who divorces his wife shall have mutual rights of inheritance with her
while she is observing her ‘idda. After the expiration of the ‘idda, there
shall be no mutual rights of succession between them.
(2) The husband who, while in a condition of death-illness, divorces
his wife shall not inherit from her, but she shall have the right to succeed
him even after the expiration of her ‘idda.
ART. 97. Succession by conceived child. — A child conceived at the
time of the death of the decedent shall be considered an heir provided it
be born later in accordance with Article 10; its corresponding share shall
be reserved before the estate is distributed.
ART. 98. Succession by absentee. — The share of an heir who is
missing or otherwise absent at the time of the death of the decedent shall
be reserved:
(a) Until he reappears and claims it;
(b) Until he is proven dead; or
(c) Until the lapse of ten years after which he shall be presumed
dead by decree of the court.
ART. 99. Order of succession. — The heirs of a decedent shall inherit
in the following order:
(a) Sharers (ashab-ul-furud) shall be entitled to fixed shares;
(b) Residuaries (ashab-ul-mirath) shall be entitled to the residue;
(c) In the absence of the foregoing, the distant kindred (dhaw-ul-

arham) who are blood relatives but are neither sharers nor residuaries;
and
(d) In default of the above, the acknowledged kinsman, universal
legatee, or the public treasury (bait-ul-mal), in that order.
ART. 100. Modes of Succession. — Succession may be:
(a) By will (wasiya);
(b) By operation of this Code; or
(c) By combination of both.
TITLE II. TESTAMENTARY SUCCESSION
Chapter One
WILLS
ART. 101. Will defined. — A will (wasiya) is a declaration whereby a

person is permitted, with formalities prescribed by law, to control the
disposition after his death of not more than one-third of his estate, if
there are heirs, or the whole of it, if there are no heirs or distant kindred.
ART. 102. Formalities. — (1) The making of a will is strictly a
personal act; it cannot be left in whole or in part to the discretion of a
third person or accomplished through the instrumentality of an agent.
(2) A will may be declared orally or in writing in a manner that
shows clearly the intention of the testator to execute it in the presence of
at least two competent, credible and disinterested witnesses.
ART. 103. Proof of will. — (1) No nuncupative will shall pass any
property of the decedent unless it is proved and allowed in accordance
with a solemn oath of affirmation of all the witnesses who attested to its
declaration.
(2) No will of any other kind, holographic or formal, shall pass
any property unless it is proved and allowed in accordance with this
Code.
ART. 104. Testamentary warf. — An endowment for Islamic purposes
to take effect after the death of the donor (wagf-bil-waiya) partakes of the
nature of a testamentary disposition.
ART. 105. Capacity to make a will. — Any person of sound and dis-
posing mind and who is not expressly prohibited by Islamic law may make
a will. Persons of either sex under the age of puberty cannot make a will.
ART. 106. Disposable third. — (1) The testator, in his will, cannot
dispose of more than one-third of his estate. Any bequest in excess thereof
shall not be given effect unless ratified by the heirs.
In any case, the bequest must be accepted by the legatee.

(2) A bequest to any sharer or residuary shall not be valid unless
ratified by the testator’s heirs existing at the time of his death.
ART. 107. Bequest by operation of law. — Should the testator dies
without having made a bequest in favor of any child of his son who
predeceased him, or who simultaneously dies with him, such child shall
be entitled to one-third of the share that would have pertained to the
father if he were alive. The parent or spouse, who is otherwise disqualified
to inherit in view of Article 93(c), shall be entitled to one-third of what he
or she would have received without such disqualification.
ART. 108. Revocation of will. — A will may be expressly or impliedly
revoked by the testator at any time before his death. Any waiver or
restriction of this right shall be void.
ART. 109. Partial invalidity of will. — The invalidity of one of
several provisions of a will shall not result in the invalidity of the others,
unless it is to be presumed that the testator would not have made such
other provisions if the first invalid provision had not been made.
TITLE III. LEGAL SUCCESSION
Chapter One
SHARERS
ART. 110. Who are sharers. — The following persons shall be entitled
to the inheritance as sharers to the extent set forth in the succeeding
articles:
(a) The husband, the wife;
(b) The father, the mother, the grandfather, the grandmother;
(c) The daughter and the son’s daughter in the direct line;
(d) The full sister, the consanguine sister, the uterine sister and
the uterine brother.
ART. 111. Share of surviving husband. — The husband surviving
together with a legitimate child or a child of the decedent’s son shall be
entitled to one-fourth of the hereditary estate; should there be no such
descendants, he shall inherit one-half of the estate.
ART. 112. Share of surviving wife. — The wife surviving together
with a legitimate child or a child of the decedent’s son shall be entitled to
one-fourth of the hereditary estate; in the absence of such descendants,
she shall inherit one-fourth of the estate.
ART. 113. Share of surviving father. — The father succeeding together
with the legitimate son of the decedent or a son of the decedent’s son
shall be entitled, as sharer, to one-sixth of the hereditary estate. The

father who succeeds together with a legitimate daughter of the decedent
or a daughter of the decedent’s son shall inherit, as sharer, one-sixth of
the inheritance without prejudice to his share as residuary.
ART. 114. Share of surviving mother. — The mother succeeding as
sharer together with a child or a child of the decedent’s son, or with two
or more brothers or sisters of the decedent, shall be entitled to one-sixth
of the hereditary estate. Should she survive without any such descendant
or with only one brother or sister, she shall inherit one-third of the estate.
ART. 115. Share of paternal grandfather. — The paternal grandfather
succeeding together with the child of the decedent or, in default thereof,
with his descendants in the direct male line however distant, shall be
entitled to one-sixth of the hereditary estate. Should he survive with any
sharer other than the brothers or sisters of the decedent, he shall be
entitled to one sixth without prejudice to his right as a residuary.
ART. 116. Share of paternal grandmother. — The paternal
grandmother succeeding in default of the mother, father, or intermediate
grandfather of the decedent shall be entitled, as sharer, to one-sixth of
the hereditary estate.
ART. 117. Share of surviving daughter. — (1) If the decedent leaves
no son but one daughter, the latter shall be entitled to inherit, as sharer,
one-half of the hereditary estate. Two or more daughters shall share
equally two-thirds thereof. Should one or more daughters survive with
one or more sons of the decedent, the latter shall be entitled to double the
share of the former.
(2) Should a lone daughter of the decedent survive together with
his son’s daughter, the two-thirds share shall be divided between them
one-half thereof to pertain to the former and one-sixth to the latter.
ART. 118. Share of son’s daughter. — The son’s daughter shall, in
the absence of any child of the decedent, be entitled to one-half of the
hereditary estate. Two or more daughters of the decedent’s son shall
share the two-thirds of the estate per capita.
ART. 119. Share of full sister. — Should the decedent leave neither
descendant, father, nor full brother, the full sister shall be entitled as
sharer to the extent of one-half of the hereditary estate. Two or more full
sisters shall inherit two-thirds of the estate per capita.
ART. 120. Share of consanguine sister. — Should the decedent leave
neither descendant, father, full brother, nor full sister, the consanguine
sister shall be entitled to one-half of the hereditary estate. Two or more
consanguine sisters shall inherit two-thirds of the estate per capita.
ART. 121. Share of uterine brother or sister. — The share of a uterine
brother or sister shall be one-sixth of the hereditary estate should there
be no surviving descendant, father, paternal grandfather, or full brother

and sister of the decedent. Two or more uterine brothers or sisters shall
inherit one-third of the estate per capita.
ART. 122. Participation of full brother. — (1) One or more full
brothers and sisters surviving together, or one or more consanguine
brothers or sisters surviving together, shall participate in the hereditary
estate, a brother to inherit double the share of a sister.
(2) The provision of the next succeeding article notwithstanding
the full brother shall, if nothing is left for him after the distribution of
shares and he survives with uterine brothers, participate with the latter
in the one-third of the hereditary estate per capita.
ART. 123. Exclusion among heirs. — The exclusion of heirs from the
inheritance shall be governed by the following rules:
(a) In the same line, the relative nearest in degree excludes the
more remote.
(b) Full-blood relatives exclude the consanguine and the uterine.
(c) Whoever is related to the decedent through any person shall
not inherit while the latter is living, except in the case of another
concurring with her children.
(d) Heirs who, in a particular case, do not succeed by reason of
disqualification on any ground shall not exclude others.
Chapter Two
RESIDUARY HEIRS
ART. 124. Residuaries. — Any residue left after the distribution of

the shares shall be partitioned among the residuaries in accordance with
the following articles. An heir may succeed as residuary in his own right
(asababin-nafs), in another’s right (asaba-bil-ghair), or together with
another (asaba-ma’al-ghair).
ART. 125. Residuaries in their own right. — The following persons
are residuaries in their own right:
(a) Male descendants of the decedent in the direct line, however
distant in degree;
(b) Male ascendants of the decedent in the direct line, however
distant in degree;
(c) Full-blood or consanguine brothers of the decedent and their
male descendants, however distant in degree; and
(d) Full-blood or consanguine paternal uncles of the decedent and
their male descendants, however distant in degree.
ART. 126. Residuaries in another’s right. — The following persons

shall succeed as residuaries in another’s right:
(a) Daughters surviving with the son of the decedent;
(b) Son’s daughters surviving with their own brothers;
(c) Full sisters surviving with their full brothers; and
(d) Consanguine sisters surviving with their consanguine brothers.
ART. 127. Residuaries together with another. — Full-blood or

consanguine sisters surviving with daughters of the decedent or with the
son’s daughters, however distant in degree from the decedent, are
residuaries together with another.
ART. 128. Preference among residuaries. — Preference among

residuaries shall be governed by the following rules:
(a) The residuary nearer in degree shall be preferred to the more
remote of the same class.
(b) The residuary with full-blood relationship shall be preferred
to those of the half-blood of the same degree of relationship in the same
class.
(c) The residuaries of the same class, degree and blood relationship
shall share equally, subject to the rule of the male having a share double
that of the female in proper cases.
ART. 129. Reduction of shares. — If the totality of all the shares

assigned to each of the shares exceeds the whole inheritance, the shares
shall be reduced proportionately.
ART. 130. Reversion of residue. — If, after distributing the portions
of the sharers, a residue is left in the inheritance and there is no surviving
residuary heir, the same shall revert in its entirety to the lone sharer or
to all the sharers in proportion to their respective shares. However, the
husband or the wife shall not be entitled to any part of the reverted
portion as long as there are other sharers or distant kindred.
Chapter Three
DISTANT KINDRED (DHAW-UL-ARHAM)
ART. 131. Relatives included. — Distant kindred includes the

following:
(a) The daughter’s children and the children of the son’s daughter
and their descendants;
(b) The excluded grandfather and the excluded grandmother;

(c) The sister’s children, and the brother’s daughters, the sons of
the uterine brother, and their descendants; and
(d) The paternal aunts, the uterine uncles and the maternal aunts
and uncles.
ART. 132. Extent and distribution of shares. — In default of all
sharers and residuaries, the distant kindred shall inherit the entire
hereditary estate, the same to be distributed among them in accordance
with Articles 124 and 128.
TITLE IV. SETTLEMENT AND PARTITION OF ESTATE
ART. 133. Administration. — The administration of the estate of a

decedent shall, for purposes of settlement, vest at the time of his death in
the executor appointed in the will or, in the absence thereof, in his heir or
administrator to whom the court has granted letters of administration.
ART. 134. Governing school of law. — (1) In every petition for probate
of will or for the settlement of the estate of a decedent all matters relating
to the appointment of administrator, powers and duties of administrators
or executor, the court shall take into consideration the school of law
(madhhab) of the decedent.
(2) If the decedent’s madhhab is not known, the Shafi’i school of
law may be given preference together with the special rules of procedure
adopted pursuant to this Code.
ART. 135. Order of preference of claims. — The estate of a decedent
shall be applied to claims and charges in the following order:
(a) unpaid taxes;
(b) reasonable funeral expenses;
(c) the expenses for probate, administration and other judicial
expenses;
(d) the debts of the decedent;
(e) the legacies to the extent of the disposable one-third;
(f) the distribution of shares among heirs; and
(g) unpaid dower.
ART. 136. Liability of heirs. — The liability of the heirs of a decedent
for the payment of the latter’s debts shall not exceed the hereditary
estate. Each heir shall be liable only for the payment of the decedent’s
debt in proportion to his share.
BOOK FOUR
ADJUDICATION AND SETTLEMENT OF DISPUTES
AND RENDITION OF LEGAL OPINIONS
TITLE I. THE SHARI’A COURTS
ART. 137. Creation. — There are hereby created, as part of the

judicial system, courts of limited jurisdiction, to be known respectively as
Shari’a District Courts and Shari’a Circuit Courts, which shall exercise
powers and functions in accordance with this Title.
Shari’a courts and the personnel thereof shall be subject to the
administrative supervision of the Supreme Court.
Chapter One
SHARI’A DISTRICT COURTS
ART. 138. Shari’a judicial districts. — Five special judicial districts,

each have one Shari’a District Court presided over by one judge, are
constituted as follows:
(a) The First Shari’a District shall comprise the Province of Sulu;
(b) The Second Shari’a District, the Province of Tawi-Tawi;
(c) The Third Shari’a District, the Province of Basilan, Zamboanga
del Norte, Zamboanga del Sur, and the Cities of Dipolog, Pagadian and
Zamboanga;
(d) The Fourth Shari’a District, the provinces of Lanao del Norte
and Lanao del Sur, and the Cities of Iligan and Marawi; and
(e) The Fifth Shari’a District, the Provinces of Maguindanao,
North Cotabato and Sultan Kudarat, and the City of Cotabato.
ART. 139. Appointment of judges. — The judicial function in the
Shari’a District Courts shall be vested in Shari’a District judges to be
appointed by the President of the Philippines.
ART. 140. Qualifications. — No person shall be appointed Shari’a
District judge unless, in addition to the qualifications for judges of Courts
of First Instance fixed in the Judiciary Law, he is learned in Islamic law
and jurisprudence.
ART. 141. Tenure. — Shari’a District judges shall be appointed to
serve during good behavior until they reach the age of sixty-five years, or
become incapacitated to discharge the duties of their office, unless sooner
removed for the same causes and the same manner, provided by law for
judges of Courts of First Instance.
ART. 142. Compensation. — Shari’a District judges shall receive

the same compensation and enjoy the same privileges as the judges of
Courts of First Instance.
ART. 143. Original jurisdiction. — (1) The Shari’a District Court
shall have exclusive original jurisdiction over:
(a) All cases involving custody, guardianship, legitimacy,
paternity and filiation arising under this Code;
(b) All cases involving disposition, distribution and
settlement of the estate of deceased Muslims, probate of wills,
issuance of letters of administration or appointment of administrators
or executors regardless of the nature or the aggregate value of the
property;
(c) Petitions for the declaration of absence and death and
for the cancellation or correction of entries in the Muslim Registries
mentioned in Title VI of Book Two of this Code;
(d) All actions arising from customary contracts in which
the parties are Muslims, if they have not specified which law shall
govern their relations; and
(e) All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus, and all other auxiliary writs and processes
in aid of its appellate jurisdiction.
(2) Concurrently with existing civil courts, the Shari’a District
Court shall have original jurisdiction over:
(a) Petitions by Muslims for the constitution of a family
home, change of name and commitment of an insane person to an
asylum;
(b) All other personal and real actions not mentioned in
paragraph 1 (d) wherein the parties involved are Muslims except
those for forcible entry and unlawful detainer, which shall fall under
the exclusive original jurisdiction of the Municipal Circuit Court;
and
(c) All special civil actions for interpleader or declaratory
relief wherein the parties are Muslims or the property involved
belongs exclusively to Muslims.
ART. 144. Appellate jurisdiction. — (1) Shari’a District Courts shall
have appellate jurisdiction over all cases tried in the Shari’a Circuit
Courts within their territorial jurisdiction.
(2) The Shari’a District Court shall decide every case appealed to
it on the basis of the evidence and records transmitted as well as such
memoranda, briefs or oral arguments as the parties may submit.
ART. 145. Finality of decisions. — The decisions of the Shari’a

District Courts whether on appeal from the Shari’a Circuit Court or not
shall be final. Nothing herein contained shall affect the original and
appellate jurisdiction of the Supreme Court as provided in the Constitution.
ART. 146. Clerks and other subordinate employees. — Shari’a District
Courts shall have the same officers and other personnel as those provided
by law for Courts of First Instance.
The pertinent provisions of the Judiciary Law regarding the number,
qualifications, appointment, compensation, functions, duties and other
matters relative to the personnel of the Courts of First Instance shall
apply to those of the Shari’a District Courts.
ART. 147. Permanent stations; offices. — (1) The Shari’a District
Courts shall have their respective permanent stations in the following
places:
(a) First Shari’a District, Jolo, Sulu;
(b) Second Shari’a District, Bongao, Tawi-Tawi;
(c) Third Shari’a District, Zamboanga City;
(d) Fourth Shari’a District, Marawi City;
(e) Fifth Shari’a District, Cotabato City;
(2) The Shari’a District Courts may hold sessions anywhere within
their respective districts.
(3) The provinces, cities or municipalities concerned shall provide
such court with adequate court office, supplies and equipment in
accordance with the provision of the Judiciary Law.
ART. 148. Special procedure. — The Shari’a District Courts shall be
governed by such special rules of procedure as the Supreme Court may
promulgate.
ART. 149. Applicability of other laws. — The provisions of all laws
relative to the Court of First Instance shall, insofar as they are not
inconsistent with this Code, applicable to Shari’a District Courts.
Chapter Two
SHARI’A CIRCUIT COURTS
ART. 150. Where establish. — (1) Shari’a Circuit Courts shall be

established as follows:
(a) Six such courts in the Province of Sulu;
(b) Eight in the Province of Tawi-Tawi;
(c) Ten in and for the Provinces of Basilan, Zamboanga del

Norte and Zamboanga del Sur, and the Cities of Dipolog, Pagadian,
and Zamboanga;
(d) Twelve in and for the Provinces of Lanao del Norte and
Lanao del Sur and the Cities of Iligan and Marawi;
(e) Fifteen in and for the Provinces of Maguindanao, North
Cotabato and Sultan Kudarat and the City of Cotabato.
(2) The territorial jurisdiction of each of the Shari’a Circuit Courts
shall be fixed by the Supreme Court on the basis of geographical contiguity
of the municipalities and cities concerned and their Muslim population.
ART. 151. Appointment of judges. — Each Shari’a Circuit Court
shall be presided over by a Shari’a Circuit Judge to be appointed by the
President of the Philippines.
ART. 152. Qualifications. — No person shall be appointed judge of
the Shari’a Circuit Court unless he is a natural-born citizen of the Philip-
pines at least twenty-five years of age, and has passed an examination in
the Shari’a and Islamic jurisprudence (fiqh) to be given by the Supreme
Court for admission to special membership in the Philippine Bar to practice
in the Shari’a Courts.
ART. 153. Tenure. — Shari’a Circuit judges shall be appointed to
serve during good behavior until they reach the age of sixty-five years or
become incapacitated to discharge the duties of their office, unless sooner
removed for the same causes and in the same manner provided by law for
judges of Municipal Circuit Courts.
ART. 154. Compensation. — Shari’a Circuit judges shall receive the
same compensation and enjoy the same privileges as judges of Municipal
Circuit Courts.
ART. 155. Jurisdiction. — The Shari’a Circuit Courts shall have
exclusive original jurisdiction over:
(1) All cases involving offenses defined and punished under this
Code.
(2) All civil actions and proceedings between parties who are
Muslim or have been married in acccordance with Article 13 involving
disputes relating to:
(a) Marriage;
(b) Divorce recognized under this Code;
(c) Betrothal or breach of contract to marriage;
(d) Customary dower (mahr);
(e) Disposition and distribution of property upon divorce;
(f) Maintenance and support, and consolatory gilts (mut’a);

and
(g) Restitution of marital rights.
(3) All cases involving disputes relative to communal properties.
ART. 156. Clerks and other subordinate employees. — (1) Shari’a
Circuit Courts shall have the same officers and other personnel as those
provided by law for Municipal Circuit Courts.
(2) The pertinent provisions of the Judiciary Law regarding the
number, qualifications, appointment, compensation, functions, duties and
other matters relative to the personnel of the Municipal Circuit Courts
shall apply to those of the Shari’a Circuit Courts.
ART. 157. Place of sessions; stations. — Shari’a Circuit Court may
hold sessions anywhere within their respective circuits, but each shall
have a principal station to be fixed by the Supreme Court.
ART. 158. Special Procedure. — The Shari’a Circuit Courts shall be
governed by such special rules and procedures as the Supreme Court may
promulgate.
ART. 159. Applicability of other laws. — The provisions of all laws
relative to Municipal Circuit Courts shall, to the extent that they are not
inconsistent with this Code, be applicable to the Shari’a Circuit Courts.
TITLE II. THE AGAMA ARBITRATION COUNCIL
ART. 160. Constitution. — The Shari’a District Court or the Shari’a

Circuit Court may, in appropriate cases, constitute an Agama Arbitration
Council in the manner specified in this Title.
ART. 161. Divorce by talaq and tafwid. — (1) Any Muslim male who
has pronounced a talaq shall, without delay, file with the Clerk of Court
of the Shari’a Circuit Court of the place where his family resides a written
notice of such fact and the circumstances attended thereto, after having
served a copy thereof to the wife concerned. The talaq pronounced shall
not become irrevocable until after the expiration of the prescribed ‘idda.
The notice filed shall be conclusive evidence that talaq has been
pronounced.
(2) Within seven days from receipt of notice, the Clerk of Court
shall require each of the parties to nominate a representative. The
representatives shall be appointed by the Court to constitute, together
with the Clerk of Court as Chairman, an Agama Arbitration Council. The
Agama Arbitration Council shall submit to the Court a report on the
result of the arbitration, on the basis of which and such other evidence as
may be allowed, the Court shall issue the corresponding order.
(3) The provisions of this article shall be observed should the wife
exercise tafwid.
ART. 162. Subsequent marriages. — Any Muslim husband desiring
to contract a subsequent marriage shall, before so doing, file a written
notice thereof with the Clerk of Court of the Shari’a Circuit Court of the
place where his family resides. Upon receipt of said notice, the Clerk
shall serve a copy thereof to the wife or wives. Should any of them object,
an Agama Arbitration Council shall be constituted in accordance with the
provisions of paragraph (2) of the preceding article. If the Agama
Arbitration Council fails to obtain the wife’s consent to the proposed
marriage, the Court shall subject to Article 27, decide whether or not to
sustain her objection.
ART. 163. Offenses against customary law. — The Shari’a Circuit
Court, in cases involving offenses against customary law which can be
settled without formal trial may, at its discretion, direct the Shari’a Clerk
of Court to constitute a council of not less than two nor more than four
members, with him as chairman, to settle the case amicably.
TITLE III. JURISCONSULT IN ISLAMIC LAW
ART. 164. Creation of office and appointment. — (1) There shall be

a Jurisconsult in Islamic Law, who shall be appointed by the President of
the Philippines and hold office for a term of seven years, without prejudice
to re-appointment, unless sooner removed for cause or incapacitated to
discharge the duties of his office.
(2) The Office of the Jurisconsult shall be under the administrative
supervision of the Supreme Court of the Philippines which shall also fix
its permanent station, preferably in the City of Zamboanga.
ART. 165. Qualifications. — No person shall be appointed
Jurisconsult in Islamic Law unless he is a citizen of the Philippines, at
least forty years of age, of good moral character and proven integrity, and
an eminent scholar in the Qur’an and Hadith and in Islamic jurisprudence
as well as proficient in Arabic.
ART. 166. Functions. — (1) The Jurisconsult shall, on the written
request of any interested party, have the authority to render legal opinions,
based on recognized authorities, regarding any question relating to Muslim
Law. For this purpose, he may, if he deems it necessary, consult or ask for
a consensus of the ‘ulama.
(2) The Jurisconsult shall consider and act on every such request
unless, in his opinion and for good reason, the question need not be
answered.
(3) The Office of the Jurisconsult shall keep a compilation and
cause the publication of all his legal opinions.
ART. 167. Compensation. — Until otherwise provided by law, the

Jurisconsult shall receive an annual compensation of forty-eight thousand
pesos which shall not be diminished during his term of office.
ART. 168. Office personnel. — The Jurisconsult may, in accordance
with the Civil Service Law and subject to the approval of the Supreme
Court, appoint and fix the compensation of such personnel as may be
necessary for the performance of his functions.
BOOK FIVE
MISCELLANEOUS AND TRANSITORY
PROVISIONS
TITLE I. MUSLIM HOLIDAYS
ART. 169. Official Muslim holidays. — The following are hereby

recognized as legal Muslim holidays:
(a) ‘Amun Jadid (New Year), which falls on the first day of the
first lunar month of Muharram;
(b) Maulid-um-Nabi (Birthday of the Prophet Muhammad), which
falls on the twelfth day of the third lunar month of Rabi-ul-Awwal;
(c) Lailatul Isra Wal Mi’raj (Nocturnal Journey and Ascension of
the Prophet Muhammad), which falls on the twenty-seventh day of the
seventh lunar month of Rajab;
(d) Id-ul-Fitr (Hari Raya Puasa), which falls on the first day of
the tenth lunar month of Shawwal, commemorating the end of the fasting
season; and
(e) ‘Id-ul-Adha (Hari Raya Haji), which falls on the tenth day of
the twelfth lunar month of Dhu l-Hijja.
ART. 170. Provinces and cities where officially observed. — (1) Muslim
holidays shall be officially observed in the Provinces of Basilan, Lanao
del Norte, Lanao del Sur, Maguindanao, North Cotabato, Sultan Kudarat,
Sulu, Tawi-Tawi, Zamboanga del Norte and Zamboanga del Sur, and in
the Cities of Cotabato, Iligan, Marawi, Pagadian, and Zamboanga and in
such other Muslim provinces and cities as may hereafter be created.
(2) Upon proclamation by the President of the Philippines, Muslim
holidays may also be officially observed in other provinces and cities.
ART. 171. Dates of observance. — The dates of Muslim holidays
shall be determined by the Office of the President of the Philippines in
accordance with the Muslim Lunar Calendar (Hijra).
ART. 172. Observance of Muslim employees. — (1) All Muslim
government officials and employees in places other than those enumerated
under Article 170 shall also be excused from reporting to office in order
that they may be able to observe Muslim holidays.
(2) The President of the Philippines may, by proclamation, require
private offices, agencies or establishments to excuse their Muslim
employees from reporting for work during a Muslim holiday without
reduction in their usual compensation.
TITLE II. COMMUNAL PROPERTY
ART. 173. What constitute. — The following are communal properties:

(a) Customary heirloom, which shall include artifacts and ancestral
implements or things of cultural value handed down from a common
ancestor;
(b) Ancestral property, which shall comprehend hallowed ancestral
plot, ancestral shrine, royal court, and similar properties; and
(c) Charitable trust property.
ART. 174. Administration or disposition. — (1) Except as otherwise
provided in this Code, communal property shall be administered or
disposed of in accordance with Muslim law, ‘ada, and special provisions of
law.
(2) Any provision of existing law to the contrary notwithstanding,
the trustee of any communal property shall be the person who is in
lawful possession thereof, either personally or through an agent.
(3) The Shari’a Circuit Court may appoint a trustee of a communal
property when there is a dispute as to its custody, possession, or
administration.
TITLE III. CUSTOMARY CONTRACTS
ART. 175. How construed. — Any transaction whereby one person

delivers to another any real estate, plantation, orchard or any fruit-bearing
property by virtue of sanda, sanla, arindao, or similar customary contract,
shall be construed as a mortgage (rihan) in accordance with Muslim law.
TITLE IV. CONVERSIONS
ART. 176. Effect of registration of conversion to Islam. — (1)

Registration of a person’s conversion to Islam shall constitute a prima
facie proof that he professes Islam.
(2) Whoever disputes the profession or renunciation of Islam by
any person shall have the burden of proving the contrary.
ART. 177. Regulation on conversion. — No conversion of a minor

below the age of eighteen years shall be registered by the District or
Circuit Registrar without the written consent or permission of the parents
or guardian, except when such minor has been emancipated from parental
authority in accordance with law.
ART. 178. Effect of conversion to Islam on marriage. — The
conversion of non-Muslim spouses to Islam shall have the legal effect of
ratifying their marriage as if the same had been performed in accordance
with the provisions of this Code or Muslim law, provided that there is no
legal impediment to the marriage under Muslim law.
ART. 179. Effect of change of religion. — The change of religion by a
Muslim shall not have the effect of extinguishing any obligation or liability
whatsoever incurred prior to said change.
TITLE V. PENAL PROVISIONS
Chapter One
RULE ON BIGAMY
ART. 180. Law applicable. — The provision of the Revised Penal

Code relative to the crime of bigamy shall not apply to a person married
in accordance with the provisions of this Code or, before its effectivity,
under Muslim law.
Chapter Two
SPECIFIC OFFENSES
ART. 181. Illegal solemnization of marriage. — Any person who

shall, without authority, solemnize any marriage purportedly under this
Code, or shall do so in a manner contrary to the provisions thereof, shall
be punished by imprisonment of not less than two months but not more
than two years, or a fine of not less than two hundred pesos but not more
than two thousand pesos, or both, in the discretion of the court.
ART. 182. Marriage before expiration of Idda. — Any widow or
divorced woman who, having been married under Muslim law or under
this Code, contracts another marriage before the expiration of the
prescribed ‘idda shall suffer the penalty of a fine not exceeding five
hundred pesos.
ART. 183. Offenses relative to subsequent marriage, divorce, and
revocation of divorce. — A person who fails to comply with the requirements
of Articles 86, 161, and 162 of this Code shall be penalized by arresto
mayor or a fine of not less than two hundred pesos but not more than two
thousand pesos, or both, in the discretion of the court.
ART. 184. Failure to report for registration. — Except as provided in

the article immediately preceding, a person who knowingly fails to perform
his duty under this Code to report for registration any fact concerning the
civil status of persons shall be punished by a fine of not less than one
hundred pesos but not more than one thousand pesos.
ART. 185. Neglect of duty of registrars. — Any district registrar or
circuit registrar who fails to perform properly his duties in accordance
with this Code shall be penalized in accordance with Section 18 of Article
3753.
TITLE VI. TRANSITORY AND FINAL PROVISIONS
ART. 186. Effect of Code on past acts. — (1) Acts executed prior to
the effectivity of this Code shall be governed by the laws in force at the
time of their execution, and nothing herein except as otherwise specifically
provided, shall affect their validity or legality or operate to extinguish
any right acquired or liability incurred thereby.
(2) A marriage contracted by a Muslim male prior to the effectivity
of this Code in accordance with non-Muslim law shall be considered as
one contracted under Muslim law provided the spouses register their
mutual desire to this effect.
ART. 187. Applicability clause. — The Civil Code of the Philippines,
the Rules of Court and other existing laws, insofar as they are not
inconsistent with the provisions of this Code, shall be applied suppletorily.
ART. 188. Separability clause. — If, for any reason, any article or
provision of this Code is held to be invalid, the same shall not affect the
other articles or provisions hereof.
ART. 189. Repealing clause. — All laws, proclamations, executive
orders, rules and regulations, or any part thereof, inconsistent with the
provisions of this Code are hereby correspondingly modified or repealed.
ART. 190. Effectivity. — This Code shall take effect immediately.
Done in the City of Manila, this 4th day of February, in the year of
Our Lord nineteen hundred and seventy-seven.
(SGD.) FERDINAND E. MARCOS

President of the Philippines
By the President:
(SGD.) JUAN C. TUVERA

Presidential Assistant
525
APPENDIX F
A.M. No. 02-11-10-SC

RULE ON DECLARATION OF ABSOLUTE NULLITY
OF VOID MARRIAGES AND ANNULMENT
OF VOIDABLE MARRIAGES
Section 1. Scope. — This Rule shall govern petitions for declaration

of absolute nullity of void marriages and annulment of voidable marriages
under the Family Code of the Philippines.
The Rules of Court shall apply suppletorily.
Sec. 2. Petition for declaration of absolute nullity of void mar-
riages. —
(a) Who may file. — A petition for declaration of absolute nullity
of void marriage may be filed solely by the husband or the wife. (n)
(b) Where to file. — The petition shall be filed in the Family
Court.
(c) Imprescriptibility of action or defense. — An action or defense
for the declaration of absolute nullity of void marriage shall not prescribe.
(d) What to allege. — A petition under Article 36 of the Family
Code shall specifically allege the complete facts showing that either or
both parties were psychologically incapacitated from complying with the
essential marital obligations of marriage at the time of the celebration of
marriage even if such incapacity becomes manifest only after its
celebration.
The complete facts should allege the physical manifestations, if any,
as are indicative of psychological incapacity at the time of the celebration
of the marriage but expert opinion need not be alleged.
Sec. 3. Petition for annulment of voidable marriages. —
(a) Who may file. — The following persons may file a petition for
annulment of voidable marriage based on any of the grounds under Article
45 of the Family Code and within the period herein indicated:
525
(1) The contracting party whose parent, or guardian, or

person exercising substitute parental authority did not give his or
her consent, within five years after attaining the age of twenty-one
unless, after attaining the age of twenty-one, such party freely
cohabitated with the other as husband or wife; or the parent,
guardian or person having legal charge of the contracting party, at
any time before such party has reached the age of twenty-one;
(2) The sane spouse who had no knowledge of the other’s
insanity; or by any relative, guardian, or person having legal charge
of the insane, at any time before the death of either party; or by the
insane spouse during a lucid interval or after regaining sanity,
provided that the petitioner, after coming to reason, has not freely
(3) The injured party whose consent was obtained by fraud,
within five years after the discovery of the fraud, provided that said
party, with full knowledge of the facts constituting the fraud, has
not freely cohabited with the other as husband or wife;
(4) The injured party whose consent was obtained by force,
intimidation, or undue influence, within five years from the time
the force, intimidation, or undue influence disappeared or ceased,
provided that the force, intimidation, or undue influence having
disappeared or ceased, said party has not thereafter freely cohabited
with the other as husband or wife;
(5) The injured party where the other spouse is physically
incapable of consummating the marriage with the other and such
incapacity continues and appears to be incurable, within five years
after the celebration of marriage; and
(6) The injured party where the other party was afflicted
with a sexually-transmissible disease found to be serious and appears
to be incurable, within five years after the celebration of marriage.
(b) Where to file. — The petition shall be filed in the Family
Court.
Sec. 4. Venue. — The petition shall be filed in the Family Court of
the province or city where the petitioner or the respondent has been
residing for at least six months prior to the date of filing, or in the case of
a non-resident respondent, where he may be found in the Philippines, at
the election of the petitioner.
Sec. 5. Contents and form of petition. — (1) The petition shall allege
the complete facts constituting the cause of action.
(2) It shall state the names and ages of the common children of
the parties and specify the regime governing their property relations, as
well as the properties involved.
Secs. 6-8 APPENDIX F 527
Rule on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages
If there is no adequate provision in a written agreement between

the parties, the petitioner may apply for a provisional order for spousal
support, custody and support of common children, visitation rights,
administration of community or conjugal property, and other matters
similarly requiring urgent action.
(3) It must be verified and accompanied by a certification against
forum shopping. The verification and certification must be signed
personally by the petitioner. No petition may be filed solely by counsel or
through an attorney-in-fact.
If the petitioner is in a foreign country, the verification and
certification against forum shopping shall be authenticated by the duly
authorized officer of the Philippine embassy or legation, consul general,
consul or vice-consul or consular agent in said country.
(4) It shall be filed in six copies. The petitioner shall serve a copy
of the petition on the Office of the Solicitor General and the Office of the
City or Provincial Prosecutor, within five days from the date of its filing
and submit to the court proof of such service within the same period.
Failure to comply with any of the preceding requirements may be a
ground for immediate dismissal of the petition.
Sec. 6. Summons. — The service of summons shall be governed by
Rule 14 of the Rules of Court and by the following rules:
(1) Where the respondent cannot be located at his given address
or his whereabouts are unknown and cannot be ascertained by diligent
inquiry, service of summons may, by leave of court, be effected upon him
by publication once a week for two consecutive weeks in a newspaper of
general circulation in the Philippines and in such places as the court may
order. In addition, a copy of the summons shall be served on the respondent
at his last known address by registered mail or any other means the
court may deem sufficient.
(2) The summons to be published shall be contained in an order
of the court with the following data: (a) title of the case; (b) docket number;
(c) nature of the petition; (d) principal grounds of the petition and the
reliefs prayed for; and (e) a directive for the respondent to answer within
thirty days from the last issue of publication.
Sec. 7. Motion to dismiss. — No motion to dismiss the petition shall
be allowed except on the ground of lack of jurisdiction over the subject
matter or over the parties; Provided, however, That any other ground
that might warrant a dismissal of the case may be raised as an affirmative
defense in an answer.
Sec. 8. Answer. — (1) The respondent shall file his answer within
fifteen days from service of summons, or within thirty days from the last
issue of publication in case of service of summons by publication. The
answer must be verified by the respondent himself and not by counsel or

attorney-in-fact.
(2) If the respondent fails to file an answer, the court shall not
declare him or her in default.
(3) Where no answer is filed or if the answer does not tender an
issue, the court shall order the public prosecutor to investigate whether
collusion exists between the parties.
Sec. 9. Investigation report of public prosecutor. — (1) Within one
month after receipt of the court order mentioned in paragraph (3) of
Section 8 above, the public prosecutor shall submit a report to the court
stating whether the parties are in collusion and serve copies thereof on
the parties and their respective counsels, if any.
(2) If the public prosecutor finds that collusion exists, he shall
state the basis thereof in his report. The parties shall file their respective
comments on the finding of collusion within ten days from receipt of a
copy of the report. The court shall set the report for hearing and if
convinced that the parties are in collusion, it shall dismiss the petition.
(3) If the public prosecutor reports that no collusion exists, the
court shall set the case for pre-trial. It shall be the duty of the public
prosecutor to appear for the State at the pre-trial.
Sec. 10. Social worker. — The court may require a social worker to
conduct a case study and submit the corresponding report at least three
days before the pre-trial. The court may also require a case study at any
stage of the case whenever necessary.
Sec. 11. Pre-trial. —
(1) Pre-trial mandatory. — A pre-trial is mandatory. On motion or
motu proprio, the court shall set the pre-trial after the last pleading has
been served and filed, or upon receipt of the report of the public prosecutor
that no collusion exists between the parties.
(2) Notice of pre-trial. — (a) The notice of pre-trial shall contain:
(1) the date of pre-trial conference; and
(2) an order directing the parties to file and serve their
respective pre-trial briefs in such manner as shall ensure the receipt
thereof by the adverse party at least three days before the date of
pre-trial.
(b) The notice shall be served separately on the parties and their
respective counsels as well as on the public prosecutor. It shall be their
duty to appear personally at the pre-trial.
(c) Notice of pre-trial shall be sent to the respondent even if he
fails to file an answer. In case of summons by publication and the
respondent failed to file his answer, notice of pre-trail shall be sent to

respondent at his last known address.
Sec. 12. Contents of pre-trial brief. — The pre-trial brief shall contain
the following:
(a) A statement of the willingness of the parties to enter into
agreements as may be allowed by law, indicating the desired terms thereof;
(b) A concise statement of their respective claims together with
the applicable laws and authorities;
(c) Admitted facts and proposed stipulations of facts, as well as
the disputed factual and legal issues;
(d) All the evidence to be presented, including expert opinion, if
any, briefly stating or describing the nature and purpose thereof;
(e) The number and names of the witnesses and their respective
affidavits; and
(f) Such other matters as the court may require.
Failure to file the pre-trial brief or to comply with its required
contents shall have the same effect as failure to appear at the pre-trial
under the succeeding paragraphs.
Sec. 13. Effect of failure to appear at the pre-trial. —
(a) If the petitioner fails to appear personally, the case shall be
dismissed unless his counsel or a duly authorized representative appears
in court and proves a valid excuse for the non-appearance of the petitioner.
(b) If the respondent has filed his answer but fails to appear, the
court shall proceed with the pre-trial and require the public prosecutor to
investigate the non-appearance of the respondent and submit within fifteen
days thereafter a report to the court stating whether his non-appearance
is due to any collusion between the parties. If there is no collusion, the
court shall require the public prosecutor to intervene for the State during
the trial on the merits to prevent suppression or fabrication of evidence.
Sec. 14. Pre-trial conference. — At the pre-trial conference, the court:
(a) May refer the issues to a mediator who shall assist the parties
in reaching an agreement on matters not prohibited by law.
The mediator shall render a report within one month from referral
which, for good reasons, the court may extend for a period not exceeding
one month.
(b) In case mediation is not availed of or where it fails, the court
shall proceed with the pre-trial conference, on which occasion it shall
consider the advisability of receiving expert testimony and such other
matters as may aid in the prompt disposition of the petition.
Sec. 15. Pre-trial order. — (a) The proceedings in the pre-trial shall
be recorded. Upon termination of the pre-trial, the court shall issue a pre-
trial order which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed on the
pleadings, and, except as to the ground of declaration of nullity or
annulment, the agreements or admissions made by the parties on any of
the matters considered, including any provisional order that may be
necessary or agreed upon by the parties.
(b) Should the action proceed to trial, the order shall contain a
recital of the following:
(1) Facts undisputed, admitted, and those which need not
be proved subject to Section 16 of this Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have
been marked and will be presented;
(4) Names of witnesses who will be presented and their
testimonies in the form of affidavits; and
(5) Schedule of the presentation of evidence.
(c) The pre-trial order shall also contain a directive to the public
prosecutor to appear for the State and take steps to prevent collusion
between the parties at any stage of the proceedings and fabrication or
suppression of evidence during the trial on the merits.
(d) The parties shall not be allowed to raise issues or present
witnesses and evidence other than those stated in the pre-trial order. The
order shall control the trial of the case, unless modified by the court to
prevent manifest injustice.
(e) The parties shall have five days from receipt of the pre-trial
order to propose corrections or modifications.
Sec. 16. Prohibited compromise. — The court shall not allow
compromise on prohibited matters, such as the following:
(a) The civil status of persons;
(b) The validity of a marriage or of a legal separation;
(c) Any ground for legal separation;
(d) Future support;
(e) The jurisdiction of courts; and
(f) Future legitime.
Sec. 17. Trial. — (1) The presiding judge shall personally conduct
the trial of the case. No delegation of the reception of evidence to a
commissioner shall be allowed except as to matters involving property

relations of the spouses.
(2) The grounds for declaration of absolute nullity or annulment
of marriage must be proved. No judgment on the pleadings, summary
judgment, or confession of judgment shall be allowed.
(3) The court may order the exclusion from the courtroom of all
persons, including members of the press, who do not have a direct interest
in the case. Such an order may be made if the court determines on the
record that requiring a party to testify in open court would not enhance
the ascertainment of truth; would cause to the party psychological harm
or inability to effectively communicate due to embarrassment, fear, or
timidity; would violate the right of a party to privacy; or would be offensive
to decency or public morals.
(4) No copy shall be taken nor any examination or perusal of the
records of the case or parts thereof be made by any person other than a
party or counsel of a party, except by order of the court.
Sec. 18. Memoranda. — The court may require the parties and the
public prosecutor, in consultation with the Office of the Solicitor General,
to file their respective memoranda in support of their claims within fifteen
days from the date the trial is terminated. It may require the Office of
the Solicitor General to file its own memorandum if the case is of
significant interest to the State. No other pleadings or papers may be
submitted without leave of court. After the lapse of the period herein
provided, the case will be considered submitted for decision, with or without
the memoranda.
Sec. 19. Decision. — (1) If the court renders a decision granting the
petition, it shall declare therein that the decree of absolute nullity or
decree of annulment shall be issued by the court only after compliance
with Articles 50 and 51 of the Family Code as implemented under the
Rule on Liquidation, Partition and Distribution of Properties.
(2) The parties, including the Solicitor General and the public
prosecutor, shall be served with copies of the decision personally or by
registered mail. If the respondent summoned by publication failed to
appear in the action, the dispositive part of the decision shall be published
once in a newspaper of general circulation.
(3) The decision becomes final upon the expiration of fifteen days
from notice to the parties. Entry of judgment shall be made if no motion
for reconsideration or new trial, or appeal is filed by any of the parties,
the public prosecutor, or the Solicitor General.
(4) Upon the finality of the decision, the court shall forthwith
issue the corresponding decree if the parties have no properties.
If the parties have no properties, the court shall observe the
procedure prescribed in Section 21 of this Rule.
The entry of judgment shall be registered in the Civil Registry

where the marriage was recorded and in the Civil Registry where the
Family Court granting the petition for declaration of absolute nullity or
annulment of marriage is located.
Sec. 20. Appeal. —
(1) Pre-condition. — No appeal from the decision shall be allowed
unless the appellant has filed a motion for reconsideration or new trial
within fifteen days from notice of judgment.
(2) Notice of appeal. — An aggrieved party or the Solicitor General
may appeal from the decision by filing a Notice of Appeal within fifteen
days from notice of denial of the motion for reconsideration or new trial.
The appellant shall serve a copy of the notice of appeal on the adverse
parties.
Sec. 21. Liquidation, partition and distribution, custody, support of
common children and delivery of their presumptive legitimes. — Upon
entry of the judgment granting the petition, or, in case of appeal, upon
receipt of the entry of judgment of the appellate court granting the petition,
the Family Court, on motion of either party, shall proceed with the
liquidation, partition and distribution of the properties of the spouses,
including custody, support of common children and delivery of their
presumptive legitimes pursuant to Articles 50 and 51 of the Family Code
unless such matters had been adjudicated in previous judicial proceedings.
Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or
Annulment of Marriage. — (a) The court shall issue the Decree after:
(1) Registration of the entry of judgment granting the
petition for declaration of nullity or annulment of marriage in the
Civil Registry where the marriage was celebrated and in the Civil
Registry of the place where the Family Court is located;
(2) Registration of the approved partition and distribution
of the properties of the spouses, in the proper Register of Deeds
where the real properties are located; and
(3) The delivery of the children’s presumptive legitimes in
cash, property, or sound securities.
(b) The court shall quote in the Decree the dispositive portion of
the judgment entered and attach to the Decree the approved deed of
partition.
Except in the case of children under Articles 36 and 53 of the Family
Code, the court shall order the Local Civil Registrar to issue an amended
birth certificate indicating the new civil status of the children affected.
Sec. 23. Registration and publication of the decree; decree as best
evidence. — (a) The prevailing party shall cause the registration of the
Decree in the Civil Registry where the marriage was registered, the Civil
Registry of the place where the Family Court is situated, and in the
National Census and Statistics Office. He shall report to the court
compliance with this requirement within thirty days from receipt of the
copy of the Decree.
(b) In case service of summons was made by publication, the
parties shall cause the publication of the Decree once in a newspaper of
general circulation.
(c) The registered Decree shall be the best evidence to prove the
declaration of absolute nullity or annulment of marriage and shall serve
as notice to third persons concerning the properties of petitioner and
respondent as well as the properties or presumptive legitimes delivered
to their common children.
Sec. 24. Effect of death of a party; duty of the Family Court or
Appellate Court. — (a) In case a party dies at any stage of the proceedings
before the entry of judgment, the court shall order the case closed and
terminated, without prejudice to the settlement of the estate in proper
proceedings in the regular courts.
(b) If the party dies after the entry of judgment of nullity or
annulment, the judgment shall be binding upon the parties and their
successors in interest in the settlement of the estate in the regular courts.
Sec. 25. Effectivity. — This Rule shall take effect on March 15, 2003
following its publication in a newspaper of general circulation not later
than March 7, 2003.
534 CIVIL LAW
APPENDIX G
A.M. No. 02-11-11-SC

RULE ON LEGAL SEPARATION
Section 1. Scope. — This Rule shall govern petitions for legal

separation under the Family Code of the Philippines.
The Rules of Court shall apply suppletorily.
Sec. 2. Petition. —
(a) Who may and when to file. — (1) A petition for legal separation
may be filed only by the husband or the wife, as the case may be, within
five years from the time of the occurrence of any of the following causes:
(a) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of the
petitioner;
(b) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(c) Attempt of respondent to corrupt or induce the petitioner,
a common child, or a child of the petitioner, to engage in prostitution,
or connivance in such corruption or inducement;
(d) Final judgment sentencing the respondent to imprison-
ment of more than six years, even if pardoned;
(e) Drug addiction or habitual alcoholism of the respondent;
(f) Lesbianism or homosexuality of the respondent;
(g) Contracting by the respondent of a subsequent bigamous
marriage, whether in or outside the Philippines;
(h) Sexual infidelity or perversion of the respondent;
(i) Attempt on the life of petitioner by the respondent; or
(j) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
534
Sec. 3 APPENDIX G 535
(b) Contents and form. — The petition for legal separation shall:
(1) Allege the complete facts constituting the cause of action.
(2) State the names of ages of the common children of the
parties, specify the regime governing their property relations, the
properties involved, and creditors, if any. If there is no adequate
provision in a written agreement between the parties, the petitioner
may apply for a provisional order for spousal support, custody and
support of common children, visitation rights, administration of
community or conjugal property, and other similar matters requiring
urgent action.
(3) Be verified and accompanied by a certification against
forum shopping. The verification and certification must be personally
signed by the petitioner. No petition may be filed solely by counsel
or through an attorney-in-fact. If the petitioner is in a foreign country,
the verification and certification against forum shopping shall be
authenticated by the duly authorized officer of the Philippine
embassy or legation, consul general, consul or vice-consul or consular
agent in said country.
(4) Be filed in six copies. The petitioner shall, within five
days from such filing, furnish a copy of the petition to the City or
Provincial Prosecutor and the creditors, if any, and submit to the
court proof of such service within the same period.
Failure to comply with the preceding requirements may be a
ground for immediate dismissal of the petition.
(c) Venue. — The petition shall be filed in the Family Court of the
province or city where the petitioner or the respondent has been residing
for at least six months prior to the date of filing or in the case of a non-
resident respondent, where he may be found in the Philippines, at the
election of the petitioner.
Sec. 3. Summons. — The service of summons shall be governed by
Rule 14 of the Rules of Court and by the following rules:
(a) Where the respondent cannot be located at his given address
or his whereabouts are unknown and cannot be ascertained by diligent
inquiry, service of summons may, by leave of court, be effected upon him
by publication once a week for two consecutive weeks in a newspaper of
general circulation in the Philippines and in such place as the court may
order.
In addition, a copy of the summons shall be served on respondent at
his last known address by registered mail or by any other means the
court may deem sufficient.
(b) The summons to be published shall be contained in an order
of the court with the following data: (1) title of the case; (2) docket number;
(3) nature of the petition; (4) principal grounds of the petition and the
reliefs prayed for; and (5) a directive for respondent to answer within
thirty days from the last issue of publication.
Sec. 4. Motion to Dismiss. — No motion to dismiss the petition shall
be allowed except on the ground of lack of jurisdiction over the subject
matter or over the parties; Provided, however, That any other ground
that might warrant a dismissal of the case may be raised as an affirmative
defense in an answer.
Sec. 5. Answer. — (a) The respondent shall file his answer within
fifteen days from receipt of summons, or within thirty days from the last
issue of publication in case of service of summons by publication. The
answer must be verified by respondent himself and not by counsel or
attorney-in-fact.
(b) If the respondent fails to file an answer, the court shall not
declare him in default.
(c) Where no answer is filed, or if the answer does not tender an
issue, the court shall order the public prosecutor to investigate whether
collusion exists between the parties.
Sec. 6. Investigation Report of Public Prosecutor. — (a) Within one
month after receipt of the court order mentioned in paragraph (c) of the
preceding section, the public prosecutor shall submit a report to the court
on whether the parties are in collusion and serve copies on the parties
and their respective counsels, if any.
(b) If the public prosecutor finds that collusion exists, he shall
state the basis thereof in his report. The parties shall file their respective
comments on the finding of collusion within ten days from receipt of copy
of the report. The court shall set the report for hearing and if convinced
that parties are in collusion, it shall dismiss the petition.
(c) If the public prosecutor reports that no collusion exists, the
court shall set the case for pre-trial. It shall be the duty of the public
prosecutor to appear for the State at the pre-trial.
Sec. 7. Social Worker. — The court may require a social worker to
conduct a case study and to submit the corresponding report at least
three days before the pre-trial. The court may also require a case study at
any stage of the case whenever necessary.
Sec. 8. Pre-trial. —
(a) Pre-trial mandatory. — A pre-trial is mandatory. On motion or
motu proprio, the court shall set the pre-trial after the last pleading has
been served and filed, or upon receipt of the report of the public prosecutor
that no collusion exists between the parties on a date not earlier than six
months from date of the filing of the petition.
Secs. 9-10 APPENDIX G 537
(b) Notice of Pre-trial. — (1) The notice of pre-trial shall contain:

(a) the date of pre-trial conference; and
(b) an order directing the parties to file and serve their
respective pre-trial briefs in such manner as shall ensure the receipt
thereof by the adverse party at least three days before the date of
the pre-trial.
(2) The notice shall be served separately on the parties and their
respective counsels as well as on the public prosecutor. It shall be their
duty to appear personally at the pre-trial.
(3) Notice of pre-trial shall be sent to the respondent even if he
fails to file an answer. In case of summons by publication and the
respondent failed to file his answer, notice of pre-trial shall be sent to
respondent at his last known address.
Sec. 9. Contents of pre-trial brief. — The pre-trial brief shall contain
the following:
(1) A statement of the willingness of the parties to enter into
agreements as may be allowed by law, indicating the desired terms thereof;
(2) A concise statement of their respective claims together with
the applicable laws and authorities;
(3) Admitted facts and proposed stipulations of facts, as well as
the disputed factual and legal issues;
(4) All the evidence to be presented, including expert opinion, if
any, briefly stating or describing the nature and purpose thereof;
(5) The number and names of the witnesses and their respective
affidavits; and
(6) Such other matters as the court may require.
Failure to file the pre-trial or to comply with its required contents
shall have the same effect as failure to appear at the pre-trial under the
succeeding section.
Sec. 10. Effect of failure to appear at the pre-trial. — (1) If the
petitioner fails to appear personally, the case shall be dismissed unless
his counsel or a duly authorized representative appears in court and
proves a valid excuse for the non-appearance of the petitioner.
(2) If the respondent filed his answer but fails to appear, the
court shall proceed with the pre-trial and require the public prosecutor to
investigate the non-appearance of the respondent and submit within fifteen
days a report to the court stating whether his non-appearance is due to
any collusion between the parties. If there is no collusion, the court shall
require the public prosecutor to intervene for the State during the trial
on the merits to prevent suppression or fabrication of evidence.
Sec. 11. Pre-trial conference. — At the pre-trial conference, the court

may refer the issues to a mediator who shall assist the parties in reaching
an agreement on matters not prohibited by law.
The mediator shall render a report within one month from referral
which, for good reasons, the court may extend for a period not exceeding
one month.
In case mediation is not availed of or where it fails, the court shall
proceed with the pre-trial conference, on which occasion it shall consider
the advisability of receiving expert testimony and such other matters as
may aid in the prompt disposition of the petition.
Sec. 12. Pre-trial order. — (a) The proceedings in the pre-trial shall
be recorded. Upon termination of the pre-trial, the court shall issue a pre-
trial order which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed on the
pleadings, and, except as to the ground of legal separation, the agreements
or admissions made by the parties on any of the matters considered,
including any provisional order that may be necessary or agreed upon by
the parties.
(b) Should the action proceed to trial, the order shall contain a
recital of the following:
(1) Facts undisputed, admitted, and those which need not
be proved subject to Section 13 of this Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have
been marked and will be presented;
(4) Names of witnesses who will be presented and their
testimonies in the form of affidavits; and
(5) Schedule of the presentation of evidence.
The pre-trial order shall also contain a directive to the public
prosecutor to appear for the State and take steps to prevent collusion
between parties at any stage of the proceedings and fabrication or
suppression of evidence during the trial on the merits.
(c) The parties shall not be allowed to raise issues or present
witnesses and evidence other than those stated in the pre-trial order. The
order shall control the trial of the case unless modified by the court to
prevent manifest injustice.
(d) The parties shall have five days from receipt of the pre-trial
order to propose corrections or modifications.
Sec. 13. Prohibited compromise. — The court shall not allow
compromise on prohibited matters, such as the following:
(1) The civil status of persons;

(2) The validity of a marriage or of a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts; and
(6) Future legitime.
Sec. 14. Trial. — (a) The presiding judge shall personally conduct
the trial of the case. No delegation of the reception of evidence to a
commissioner shall be allowed except as to matters involving property
relations of the spouses.
(b) The grounds for legal separation must be proved. No judgment
on the pleadings, summary judgment, or confession of judgment shall be
allowed.
(c) The court may order the exclusion from the courtroom of all
persons, including members of the press, who do not have a direct interest
in the case. Such an order may be made if the court determines on the
record that requiring a party to testify in open court would not enhance
the ascertainment of truth; would cause to the party psychological harm
or inability to effectively communicate due to embarrassment, fear, or
timidity; would violate the party’s right to privacy; or would be offensive
to decency or public morals.
(d) No copy shall be taken nor any examination or perusal of the
records of the case or parts thereof be made by any person other than a
party or counsel of a party, except by order of the court.
Sec. 15. Memoranda. — The court may require the parties and the
public prosecutor to file their respective memoranda in support of their
claims within fifteen days from the date the trial is terminated. No other
pleadings or papers may be submitted without leave of court. After the
lapse of the period herein provided, the case will be considered submitted
for decision, with or without the memoranda.
Sec. 16. Decision. — (a) The court shall deny the petition on any of
the following grounds:
(1) The aggrieved party had condoned the offense or act
complained of or has consented to the commission of the offense or
act complained of;
(2) There is connivance in the commission of the offense or
act constituting the ground for legal separation;
(3) Both parties have given ground for legal separation;
(4) There is collusion between the parties to obtain the decree

of legal separation; or
(5) The action is barred by prescription.
(b) If the court renders a decision granting the petition, it shall
declare therein that the Decree of Legal Separation shall be issued by the
court only after full compliance with liquidation under the Family Code.
However, in the absence of any property of the parties, the court
shall forthwith issue a Decree of Legal Separation which shall be registered
in the Civil Registry where the marriage was recorded and in the Civil
Registry where the Family Court granting the legal separation is located.
(c) The decision shall likewise declare that:
(1) The spouses are entitled to live separately from each
other but the marriage bond is not severed;
(2) The obligation of mutual support between the spouses
ceases; and
(3) The offending spouse is disqualified from inheriting from
the innocent spouse by intestate succession, and provisions in favor
of the offending spouse made in the will of the innocent spouse are
revoked by operation of law.
(d) The parties, including the Solicitor General and the public
prosecutor, shall be served with copies of the decision personally or by
registered mail. If the respondent summoned by publication failed to
appear in the action, the dispositive part of the decision shall also be
published once in a newspaper of general circulation.
Sec. 17. Appeal. —
(a) Pre-condition. — No appeal from the decision shall be allowed
unless the appellant has filed a motion for reconsideration or new trial
within fifteen days from notice of judgment.
(b) Notice of Appeal. — An aggrieved party or the Solicitor General
may appeal from the decision by filing a Notice of Appeal within fifteen
days from notice of denial of the motion for reconsideration or new trial.
The appellant shall serve a copy of the notice of appeal upon the adverse
parties.
Sec. 18. Liquidation, partition and distribution, custody, and support
of minor children. — Upon entry of the judgment granting the petition,
or, in case of appeal, upon receipt of the entry of judgment of the appellate
court granting the petition, the Family Court, on motion of either party,
shall proceed with the liquidation, partition and distribution of the
properties of the spouses, including custody and support of common
children, under the Family Code unless such matters had been adjudicated
in previous judicial proceedings.
Sec. 19. Issuance of Decree of Legal Separation. — (a) The court

shall issue the Decree of Legal Separation after:
(1) registration of the entry of judgment granting the petition
for legal separation in the Civil Registry where the marriage was
celebrated and in the Civil Registry where the Family Court is
located; and
(2) registration of the approved partition and distribution of
the properties of the spouses, in the proper Register of Deeds where
the real properties are located.
(b) The court shall quote in the Decree the dispositive portion of
the judgment entered and attach to the Decree the approved deed of
partition.
Sec. 20. Registration and publication of the Decree of Legal
Separation; decree as best evidence. —
(a) Registration of decree. — The prevailing party shall cause the
registration of the Decree in the Civil Registry where the marriage was
registered, in the Civil Registry of the place where the Family Court is
situated, and in the National Census and Statistics Office. He shall report
to the court compliance with this requirement within thirty days from
receipt of the copy of the Decree.
(b) Publication of decree. — In case service of summons was made
by publication, the parties shall cause the publication of the Decree once
in a newspaper of general circulation.
(c) Best evidence. — The registered Decree shall be the best
evidence to prove the legal separation of the parties and shall serve as
notice to third persons concerning the properties of petitioner and
respondent.
Sec. 21. Effect of death of a party; duty of the Family Court or Appel-
late Court. — (a) In case a party dies at any stage of the proceedings
before the entry of judgment, the court shall order the case closed and
terminated without prejudice to the settlement of estate in proper
proceedings in the regular courts.
(b) If the party dies after the entry of judgment, the same shall
be binding upon the parties and their successors in interest in the
settlement of the estate in the regular courts.
Sec. 22. Petition for revocation of donations. — (a) Within five (5)
years from the date the decision granting the petition for legal separation
has become final, the innocent spouse may file a petition under oath in
the same proceeding for legal separation to revoke the donations in favor
of the offending spouse.
(b) The revocation of the donations shall be recorded in the

Register of Deeds in the places where the properties are located.
(c) Alienations, liens, and encumbrances registered in good faith
before the recording of the petition for revocation in the registries of
property shall be respected.
(d) After the issuance of the Decree of Legal Separation, the
innocent spouse may revoke the designation of the offending spouse as a
beneficiary in any insurance policy even if such designation be stipulated
as irrevocable. The revocation or change shall take effect upon written
notification thereof to the insurer.
Sec. 23. Decree of Reconciliation. — (a) If the spouses had reconciled,
a joint manifestation under oath, duly signed by the spouses, may be filed
in the same proceeding for legal separation.
(b) If the reconciliation occurred while the proceeding for legal
separation is pending, the court shall immediately issue an order
terminating the proceeding.
(c) If the reconciliation occurred after the rendition of the judgment
granting the petition for legal separation but before the issuance of the
Decree, the spouses shall express in their manifestation whether or not
they agree to revive the former regime of their property relations or
choose a new regime.
The court shall immediately issue a Decree of Reconciliation
declaring that the legal separation proceeding is set aside and specifying
the regime of property relations under which the spouse shall be covered.
(d) If the spouses reconciled after the issuance of the Decree, the
court, upon proper motion, shall issue a decree of reconciliation declaring
therein that the Decree is set aside but the separation of property and
any forfeiture of the share of the guilty spouse already effected subsists,
unless the spouses have agreed to revive their former regime of property
relations or adopt a new regime.
(e) In case paragraphs (b), (c) and (d), if the reconciled spouses
choose to adopt a regime of property relations different from that which
they had prior to the filing of the petition for legal separation, the spouses
shall comply with Section 24 hereof.
(f) The decree of reconciliation shall be recorded in the Civil
Registries where the marriage and the Decree had been registered.
Sec. 24. Revival of property regime or adoption of another. — (a) In
case of reconciliation under Section 23, paragraph (c) above, the parties
shall file a verified motion for revival of regime of property relations or
the adoption of another regime of property relations in the same proceeding
for legal separation attaching the said motion their agreement for the
approval of the court.
Sec. 25 APPENDIX G 543
(b) The agreement which shall be verified shall specify the

following:
(1) The properties to be contributed to the restored or new
regime;
(2) Those to be retained as separate properties of each
spouse; and
(3) The names of all their known creditors, their addresses,
and the amounts owing to each.
(c) The creditors shall be furnished with copies of the motion and
the agreement.
(d) The court shall require the spouses to cause the publication of
their verified motion for two consecutive weeks in a newspaper of general
circulation.
(e) After due hearing, and the court decides to grant the motion,
it shall issue an order directing the parties to record the order in the
proper registries of property within thirty days from receipt of a copy of
the order and submit proof of compliance within the same period.
Sec. 25. Effectivity. — This Rule shall take effect on March 15, 2003
following its publication in a newspaper of general circulation not later
than March 7, 2003.
544 CIVIL LAW
APPENDIX H
A.M. No. 02-11-12-SC

RULE ON PROVISIONAL ORDERS
SECTION 1. When Issued. — Upon receipt of a verified petition for

declaration of absolute nullity of void marriage or for annulment of voidable
marriage, or for legal separation, and at any time during the proceeding,
the court, motu proprio or upon application under oath of any of the
parties, guardian or designated custodian, may issue provisional orders
and protection orders with or without a hearing. These orders may be
enforced immediately, with or without a bond, and for such period and
under such terms and conditions as the court may deem necessary.
SECTION 2. Spousal Support. — In determining support for the
spouses, the court may be guided by the following rules:
(a) In the absence of adequate provisions in a written agreement
between the spouses, the spouses may be supported from the properties
of the absolute community or the conjugal partnership.
(b) The court may award support to either spouse in such amount
and for such period of time as the court may deem just and reasonable
based on their standard of living during the marriage.
(c) The court may likewise consider the following factors: (1)
whether the spouse seeking support is the custodian of a child whose
circumstances make it appropriate for that spouse not to seek outside
employment; (2) the time necessary to acquire sufficient education and
training to enable the spouse seeking support to find appropriate
employment, and that spouse’s future earning capacity; (3) the duration
of the marriage; (4) the comparative financial resources of the spouses,
including their comparative earning abilities in the labor market; (5) the
needs and obligations of each spouse; (6) the contribution of each spouse
to the marriage, including services rendered in home-making, child care,
education, and career building of the other spouse; (7) the age and health
of the spouses; (8) the physical and emotional conditions of the spouses;
(9) the ability of the supporting spouse to give support, taking into account
that spouse’s earning capacity, earned and unearned income, assets, and
544
Secs. 3-4 APPENDIX H 545
standard of living; and (10) any other factor the court may deem just and
equitable.
(d) The Family Court may direct the deduction of the provisional
support from the salary of the spouse.
SECTION 3. Child Support. — The common children of the spouses
shall be supported from the properties of the absolute community or the
conjugal partnership.
Subject to the sound discretion of the court, either parent or both
may be ordered to give an amount necessary for the support, maintenance,
and education of the child. It shall be in proportion to the resources or
means of the giver and to the necessities of the recipient.
In determining the amount of provisional support, the court may
likewise consider the following factors: (1) the financial resources of the
custodial and non-custodial parent and those of the child; (2) the physical
and emotional health of the child and his or her special needs and
aptitudes; (3) the standard of living the child has been accustomed to; (4)
the non-monetary contributions that the parents will make toward the
care and well-being of the child.
The Family Court may direct the deduction of the provisional support
from the salary of the parent.
SECTION 4. Child Custody. — In determining the right party or
person to whom the custody of the child of the parties may be awarded
pending the petition, the court shall consider the best interests of the
child and shall give paramount consideration of the material and moral
welfare of the child.
The court may likewise consider the following factors: (a) the
agreement of the parties; (b) the desire and ability of each parent to
foster an open and loving relationship between the child and the other
parent; (c) the child’s health, safety, and welfare; (d) any history of child
or spousal abuse by the person seeking custody or who has had any filial
relationship with the child, including anyone courting the parent; (e) the
nature and frequency of contact with both parents; (f) habitual use of
alcohol or regulated substances; (g) marital misconduct; (h) the most
suitable physical, emotional, spiritual, psychological and educational
environment; and (i) the preference of the child, if over seven years of age
and of sufficient discernment, unless the parent chosen is unfit.
The court may award provisional custody in the following order of
preference; (1) to both parents jointly; (2) to either parent taking into
account all relevant considerations under the foregoing paragraph,
especially the choice of the child over seven years of age, unless the
parent chosen is unfit; (3) to the surviving grandparent, or if there are
several of them, to the grandparent chosen by the child over seven years
of age and of sufficient discernment, unless the grandparent is unfit or
disqualified; (4) to the eldest brother or sister over twenty-one years of

age, unless he or she is unfit or disqualified; (5) to the child’s actual
custodian over twenty-one years of age, unless unfit or disqualified; or (6)
to any other person deemed by the court suitable to provide proper care
and guidance for the child.
The custodian temporarily designated by the court shall give the
court and the parents five days notice of any plan to change the residence
of the child or take him out of his residence for more than three days
provided it does not prejudice the visitation rights of the parents.
SECTION 5. Visitation Rights. — Appropriate visitation rights shall

be provided to the parent who is not awarded provisional custody unless
found unfit or disqualified by the court.
SECTION 6. Hold Departure Order. — Pending resolution of the

petition, no child of the parties shall be brought out of the country without
prior order from the court.
The court, motu proprio or upon application under oath, may issue
ex parte a hold departure order, addressed to the Bureau of Immigration
and Deportation, directing it not to allow the departure of the child from
the Philippines without the permission of the court.
The Family Court issuing the hold departure order shall furnish
the Department of Foreign Affairs and the Bureau of Immigration and
Deportation of the Department of Justice a copy of the hold departure
order issued within twenty-four hours from the time of its issuance and
through the fastest available means of transmittal.
The hold-departure order shall contain the following information:
(a) the complete name (including the middle name), the date and
place of birth, and the place of last residence of the person against whom
a hold-departure order has been issued or whose departure from the
country has been enjoined;
(b) the complete title and docket number of the case in which the
hold departure was issued;
(c) the specific nature of the case; and
(d) the date of the hold-departure order.
If available, a recent photograph of the person against whom a
hold-departure order has been issued or whose departure from the country
has been enjoined should also be included.
The court may recall the order, motu proprio or upon verified motion
of any of the parties after summary hearing, subject to such terms and
conditions as may be necessary for the best interests of the child.
Secs. 7-9 APPENDIX H 547
SECTION 7. Order of Protection. — The court may issue an Order

of Protection requiring any person:
(a) to stay away from the home, school, business, or place of
employment of the child, other parent or any other party, and to stay
away from any other specific place designated by the court;
(b) to refrain from harassing, intimidating, or threatening such
child or the other parent or any person to whom custody of the child is
awarded;
(c) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety, or welfare of the child;
(d) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(e) to permit a designated party to enter the residence during a
specified period of time in order to take personal belongings not contested
in a proceeding pending with the Family Court;
(f) to comply with such other orders as are necessary for the
protection of the child.
SECTION 8. Administration of Common Property. — If a spouse
without just cause abandons the other or fails to comply with his or her
obligations to the family, the court may, upon application of the aggrieved
party under oath, issue a provisional order appointing the applicant or a
third person as receiver or sole administrator of the common property
subject to such precautionary conditions it may impose.
The receiver or administrator may not dispose of or encumber any
common property or specific separate property of either spouse without
prior authority of the court.
The provisional order issued by the court shall be registered in the
proper Register of Deeds and annotated in all titles of properties subject
of the receivership or administration.
SECTION 9. Effectivity. — This Rule shall take effect on March 15,
2003 following its publication in a newspaper of general circulation not
later than March 7, 2003.

Civil. Civil Law (Vol I) - Justice Jose Vitug PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Civil. Civil Law (Vol I) - Justice Jose Vitug PDF

Uploaded by

Copyright:

Available Formats

TABLE OF CONTENTS

Civil Law and Common Law Distinguished ......................... 1

THE CIVIL CODE OF THE PHILIPPINES

Chapter 1 — EFFECT AND APPLICATION

Chapter 2 — HUMAN RELATIONS

TITLE I — CIVIL PERSONALITY

Chapter 1 — GENERAL PROVISIONS

Chapter 2 — NATURAL PERSONS

Chapter 3 — JURIDICAL PERSONS

TITLE II — CITIZENSHIP AND DOMICILE

Chapter 1 — REQUISITES OF MARRIAGE

Chapter 2 — MARRIAGES OF EXCEPTIONAL

Chapter 3 — VOID AND VOIDABLE

Chapter 4 — AUTHORITY TO SOLEMNIZE

TITLE IV — LEGAL SEPARATION

TITLE V — RIGHTS AND OBLIGATIONS

Article 109 ................................................................................ 106

TITLE VI — PROPERTY RELATIONS

Chapter 1 — GENERAL PROVISIONS

Article 118 ................................................................................ 112

Chapter 2 — DONATIONS BY REASON

Article 126 ................................................................................ 115

Chapter 3 — PARAPHERNAL PROPERTY

Article 135 ................................................................................ 118

Chapter 4 — CONJUGAL PARTNERSHIP

Section 1 — General Provisions

Article 142 ................................................................................ 120

Section 2 — Exclusive Property

Article 148 ................................................................................ 121

Section 3 — Conjugal Partnership Property

Article 153 ................................................................................ 122

Section 4 — Charges Upon and Obligations

Article 161 ................................................................................ 130

Section 5 — Administration of the Conjugal

Article 165 ................................................................................ 133

Section 6 — Dissolution of the Conjugal

Article 175 ................................................................................ 137

Section 7 — Liquidation of the Conjugal

Article 179 ................................................................................ 138

Chapter 5 — SEPARATION OF PROPERTY

Article 190 ................................................................................ 141

Chapter 6 — SYSTEM OF ABSOLUTE

Article 198 ................................................................................ 145

Chapter 7 — SYSTEM OF COMPLETE

Article 212 ................................................................................ 149

TITLE VII — THE FAMILY

Chapter 1 — THE FAMILY AS AN

Article 216 ................................................................................ 151

Chapter 2 — THE FAMILY HOME

Article 223 ................................................................................ 155

Section 2 — Judicial Constitution of the

Article 225 ................................................................................ 155

Section 3 — Extrajudicial Creation

Article 240 ................................................................................ 158

Chapter 3 — THE FAMILY COUNCIL

Article 252 ................................................................................ 163

TITLE VIII — PATERNITY AND FILIATION

Chapter 1 — LEGITIMATE CHILDREN

Article 255 ................................................................................ 164

Chapter 2 — PROOF OF FILIATION

Article 265 ................................................................................ 170

Chapter 3 — LEGITIMATED CHILDREN

Article 269 ................................................................................ 172