LAST MINUTE POINTERS IN PERSONS & FAMILY RELATIONS

(PROF. ATTY. ELMER T. RABUYA)

1. A Year is understood to be “twelve calendar months.” Under the Civil Code, a year is
equivalent to 365 days whether it be a regular year or a leap year. Under the
Administrative Code of 1987, however, a year is composed of 12 calendar months.
Needless to state, under the Administrative Code of 1987, the number of days is
irrelevant. There obviously exists a manifest incompatibility in the manner of computing
legal periods under the Civil Code and the Administrative Code of 1987. Hence, the
Supreme Court recognized the existence of implied repeal and declared that the
provision of Section 31, Chapter VIII, Book I of the Administrative Code of 1987, being
the more recent law, now governs the computation of legal periods with respect to
counting “a year.” Hence, a “year” now means 12 calendar months. [CIR v. Primetown
Property Group, Inc., 531 SCRA 436, 444 (2007); reiterated in CIR vs. Aichi Forging
Company of Asia, Inc., 632 SCRA 422 (2010) and Co vs. New Prosperity Plastic
Products, 727 SCRA 503 (2014)]

2. An accion in rem verso is considered merely an auxiliary action, available only when
there is no other remedy on contract, quasi-contract, crime or quasi-delict. If there is an
obtainable action under any other institution of positive law, that action must be
resorted to, and the principle of accion in rem verso will not lie. Hence, if the delivery is
by reason of mistake, the action must be based on the quasi-contract of solutio indebiti
and not under in rem verso. In solutio indebiti, mistake is an essential element; but in
the accion in rem verso, it is not necessary that there should be mistake in the payment.
[UP vs. Philab Industries, Inc., G.R. No. 152411, Sep. 29, 2004; see also Land Bank of
the Philippines vs. Ong, 636 SCRA 266 (2010)]

3. The concept of "unfair competition" under Article 28 of the NCC is very much broader
than that covered by intellectual property laws. In order to qualify the competition as
"unfair," it must have two characteristics: (1) it must involve an injury to a competitor
or trade rival, and (2) it must involve acts which are characterized as "contrary to good
conscience," or "shocking to judicial sensibilities," or otherwise unlawful; in the
language of our law, these include force, intimidation, deceit, machination or any other
unjust, oppressive or high-handed method. The public injury or interest is a minor
factor; the essence of the matter appears to be a private wrong perpetrated by
unconscionable means. [Willaware Products Corporation vs. Jesichris Manufacturing
Corp., 734 SCRA 238 (2014)]

4. The Mercado ruling (Mercado vs. Tan, 337 SCRA 122) applies only where a marriage,
at least ostensibly, had taken place, although later declared void ab initio, as when the
first marriage is void by reason of lack of marriage license. But if no marriage ceremony
at all was performed by a duly authorized solemnizing officer, there is no marriage that
took place, even ostensibly. Hence, there is no need to comply with the requirements of
Article 40 of the FC. Recall the case of Morigo vs. People. In Republic vs. Olaybar (G.R.
No. 189538, Feb. 10, 2014, 715 SCRA 605), involving a case of identity theft, the Court
allowed the correction of an entry in the civil registry by cancelling the wife portion in
the subject marriage contract without need of a judicial declaration of nullity of the
marriage, on the ground that there was no marriage to speak of. In that case, Melinda
Olaybar requested from the National Statistics Office (NSO) a Certificate of No Marriage
(CENOMAR) as one of the requirements for her marriage with her boyfriend of five
years. Upon receipt thereof, she discovered that she was already married to a certain Ye
Son Sune, a Korean National. It turned out that someone made use of her identity. This
is another situation where a judicial declaration of nullity of a void marriage is no
longer required.

5. Jurisprudence clearly requires that for the accused to be convicted of bigamy, the
second or subsequent marriage must have all the essential requisites for validity except
for the existence of a prior marriage. Thus, if the second marriage is void not because of
the existence of the first marriage but for other causes, such as lack of license, the
crime of bigamy is not committed. Hence, where it is established that the second
marriage was contracted without the necessary license and thus void, no liability for the
crime of bigamy can attach [People vs. De Lara, CA, 51 O.G., 4079; Go-Bangayan vs.
Bangayan, 700 SCRA 702 (2013)]. BUT if the reason for the absence of a marriage
license during the celebration of the marriage was because the parties falsified the
Affidavit of Cohabitation to make it appear that the marriage is exempt from the license
requirement pursuant to Article 34 of the Family Code, the parties to the subsequent
marriage are liable for bigamy and the absence of the marriage license in this situation
is not considered a defense [Santiago vs. People, G.R. No. 200233, July 15, 2015]

6. If the second marriage is alleged to be void on the ground of psychological incapacity,

the pendency of a previously instituted civil action for declaration of nullity of the said
marriage does not constitute a prejudicial question to the criminal action for bigamy. In
Tenebro v. Court of Appeals, the Supreme Court held that in psychological incapacity
as ground for the nullity of a marriage, there is recognition written into the law itself
that such a marriage, although void ab initio, may still produce legal consequences and
among these legal consequences is incurring criminal liability for bigamy.

7. Articles 40, 41 and 42 of the Civil Code on natural persons, must be applied in
relation to Article 37 of the same Code. There is no need to establish the civil
personality of the unborn child if his/her juridical capacity and capacity to act as a
person are not in issue and the case is not whether the unborn child has acquired any
rights or incurred any obligations prior to his/her death that were passed on to or
assumed by the child’s parents. Hence, when the issue in a case pertains directly to the
rights of the parents of the unborn child, the above-mentioned provisions do not apply
[Continental Steel Manufacturing Corp. vs. Montaño, 603 SCRA 621 (2009)]. In
Continental Steel Manufacturing Corp. vs. Montaño, the Collective Bargaining
Agreement provides for bereavement leave and other death benefits in case of death of a
legitimate dependent of an employee. One of the members of the union applied for said
benefits because his unborn child died when his wife had a premature delivery after 38
weeks of pregnancy. The employer does not want to pay on the ground that under
Articles 40, 41 and 42 of the Civil Code only one with civil personality could die and
hence, the unborn child never died because it never acquired juridical personality. The
Court ruled: First. The reliance on Articles 40, 41 and 42 of the Civil Code for the legal
definition of death is misplaced. Articles 40, 41 and 42 of the Civil Code on natural
persons, must be applied in relation to Article 37 of the same Code. There is no need to
establish civil personality of the unborn child herein since his/her juridical capacity
and capacity to act as a person are not in issue. The issue in this case is not whether
the unborn child acquired any rights or incurred any obligations prior to his/her death
that were passed on to or assumed by the child’s parents. Instead, the rights to
bereavement leave and other death benefits in this case pertain directly to the parents
of the unborn child upon the latter’s death. Second. Articles 40, 41 and 42 of the Civil
Code do not provide at all a definition of death. Moreover, while the Civil Code
expressly provides that civil personality may be extinguished by death, it does not
explicitly state that only those who have acquired juridical personality could die. Third.
Death has been defined as the cessation of life. Life is not synonymous with civil
personality. One need not acquire civil personality first before he/she could die. Even
a child inside the womb already has life. No less than the Constitution recognizes the
life of the unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even prior to the
child being delivered, qualifies as death.

8. In Republic vs. Albios (707 SCRA 584 (2013), where a citizen of the Philippines got
married to an American citizen solely for the purpose of acquiring American citizenship
in consideration of a sum of money, it was alleged that the marriage was void because it
was one made in jest and consent was therefore lacking. In declaring the marriage to be
valid, the Court ruled that that there is no law that declares a marriage void if it is
entered into for purposes other than what the Constitution or law declares, such as the
acquisition of foreign citizenship. While the avowed purpose of marriage under Article 1
of the Family Code is for the couple to establish a conjugal and family life, the
possibility that the parties in a marriage might have no real intention to establish a life
together is, however, insufficient to nullify a marriage freely entered into in accordance
with law. Thus, marriages entered into for other purposes, limited or otherwise, such as
convenience, companionship, money, status, and title, provided that they comply with
all the legal requisites, are equally valid. Love, though the ideal consideration in a
marriage contract, is not the only valid cause for marriage. Other considerations, not
precluded by law, may validly support a marriage.

9. No marriage license shall be issued by the Local Civil Registrar unless the applicants
present a Certificate of Compliance issued for free by the local Family Planning Office
certifying that they had duly received adequate instructions and information on
responsible parenthood, family planning, breastfeeding and infant nutrition (Sec. 15,
R.A. No. 10354, The Responsible Parenthood and Reproductive Health Act of 2012 (RH
Law). But the absence of such certificate is merely an irregularity in complying with the
formal requirement of procuring a marriage license which will not affect the validity of
the marriage.

10. In Republic vs. Dayot (550 SCRA 435 (2008), the Supreme Court ruled that the
falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short
of the minimum five-year requirement, effectively renders the marriage void ab initio for
lack of a marriage license. In De Castro vs. Assidao-De Castro (G.R. No. 160172
February 13, 2008, 545 SCRA 162), the Court further clarified that the falsity of the
affidavit cannot be considered as a mere irregularity in the formal requisites of
marriage. To permit a false affidavit to take the place of a marriage license, the Court
explained in Dayot, is to allow an abject circumvention of the law. In Santiago vs.
People (G.R. No. 200233, July 15, 2015), the Court held that the falsity of an affidavit
of cohabitation CANNOT be used as a defense in the crime of bigamy, for it will be the
height of absurdity for the Court to allow the accused to use her illegal act to escape
criminal conviction.

11. In Ronulo vs. People (728 SCRA 675 (2014), a solemnizing officer from the
Aglipayan Church was charged with violation of Article 352 of the RPC for allegedly
performing an illegal marriage ceremony because he solemnized the marriage knowing
fully well that the parties did not have marriage license. The accused contended that he
merely conducted a “blessing” and that in order for a marriage ceremony to exist, the
law require the verbal declaration that the couple take each other as husband and wife,
and a marriage certificate containing the declaration in writing which is duly signed by
the contracting parties and attested to by the solemnizing officer. In holding that the
accused indeed performed a marriage ceremony, the Court ruled that the law sets the
minimum requirements constituting a marriage ceremony: first, there should be the
personal appearance of the contracting parties before a solemnizing officer; and second,
their declaration in the presence of not less than two witnesses that they take each
other as husband and wife. Both requirements were present in this case.

12. Only the Filipino spouse can invoke the second paragraph of Article 26 of the
Family Code while the alien spouse can claim no right under said provision. The Court
explained that the provision was included in the law to avoid the absurd situation
where the Filipino spouse remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse. The legislative intent is for the
benefit of the Filipino spouse, by clarifying his or her marital status, settling the doubts
created by the divorce decree. Essentially, the second paragraph of Article 26 of the
Family Code provided the Filipino spouse a substantive right to have his or her
marriage to the alien spouse considered as dissolved, capacitating him or her to
remarry. Thus, if the Filipino spouse invokes the second paragraph of Article 26 of the
Family Code, the action is not limited to the recognition of the foreign divorce decree. If
the court finds that the decree capacitated the alien spouse to remarry, the courts can
declare that the Filipino spouse is likewise capacitated to contract another marriage. No
court in this jurisdiction, however, can make a similar declaration for the alien spouse
(other than that already established by the decree), whose status and legal capacity are
generally governed by his national law. The unavailability of the second paragraph of
Article 26 of the Family Code to aliens does not, however, necessarily strip the alien
spouse of legal interest to petition our courts for the recognition of his/her foreign
divorce decree. The foreign divorce decree itself, after its authenticity and conformity
with the alien’s national law have been duly proven according to our rules of evidence,
serves as a presumptive evidence of right in his/her favor. [Corpuz vs. Sto. Tomas, G.R.
No. 186571, 11 August 2010, 628 SCRA 266; Fujiki vs. Marinay, 700 SCRA 69 (2013)]

13. The principle in Article 26 of the Family Code is also applicable to a marriage
between a Filipino and a foreign citizen who obtains a foreign judgment nullifying the
marriage on the ground of bigamy. The Court explained that the principle in the second
paragraph of Article 26 of the Family Code applies because the foreign spouse, after the
foreign judgment nullifying the marriage, is capacitated to remarry under the laws of
his or her country. If the foreign judgment is not recognized in the Philippines, the
Filipino spouse will be discriminated — the foreign spouse can remarry while the
Filipino spouse cannot remarry. [Fujiki vs. Marinay, 700 SCRA 69 (2013), citing Braza
vs. The City Civil Registrar of Himamaylan City, Negros Occidental, G.R. No. 181174, 4
December 2009, 607 SCRA 638]

14. With the advent of A.M. No. 02-11-10-SC, it appears that the Court is emphasizing
on the necessity of a direct action in cases where the validity of a void marriage covered
by said Rule is call into question. As explained by the Court, a direct action is necessary
to prevent circumvention of the substantive and procedural safeguards of marriage
under the Family Code, A.M. No. 02-11-10-SC and other related laws. Among these
safeguards are the requirement of proving the limited grounds for the dissolution of
marriage, support pendente lite of the spouses and children, the liquidation, partition
and distribution of the properties of the spouses, and the investigation of the public
prosecutor to determine collusion. A direct action for declaration of nullity or
annulment of marriage is also necessary to prevent circumvention of the jurisdiction of
the Family Courts under the Family Courts Act of 1997 (Republic Act No. 8369). [Fujiki
vs. Marinay, 700 SCRA 69 (2013)] Thus, in Braza vs. The City Civil Registrar of
Himamaylan City, Negros Occidental (G.R. No. 181174, 4 December 2009, 607 SCRA
638), the Court held that a trial court has no jurisdiction to nullify marriages in a
special proceeding for cancellation or correction of entry under Rule 108 of the Rules of
Court. In that case, the first family of the deceased filed a Petition for Correction of
Entries in the birth certificate of a child, who is alleged to a “legitimated” child of the
deceased with another woman. They wanted the court to nullify the child’s legitimation
and to declare the marriage of the child’s mother with the deceased as void for being
bigamous. The Court ruled that their cause of action is actually to seek the declaration
of the second marriage as void for being bigamous and impugn the child’s legitimacy,
which causes of action are governed not by Rule 108 but by A.M. No. 02-11-10-SC
which took effect on March 15, 2003, and Art. 171 of the Family Code, respectively,
hence, the petition should be filed in a Family Court. [Note that in the Braza case, the
marriage which is sought to be declared void is covered by A.M. No. 02-11-10-SC]

15. For marriages which are not covered by A.M. No. 02-11-10-SC, the Court applied
the ruling in Niñal that the validity of a void marriage can be subjected to a collateral
attack, as follows: In Garcia-Quiason vs. Belen (G.R. No. 189121, July 31, 2013, 702
SCRA 707), the Court allowed a marriage to be declared void ab initio for being
bigamous in a Petition for Letters of Administration filed by a compulsory heir. The
Court, citing Niñal, ruled that any interested party may attack a void marriage directly
or collaterally without prescription, which may be filed even beyond the lifetime of the
parties to the marriage. [Note: In this case, the law in effect at the time of the marriage
was the Civil Code, and not the Family Code, making the ruling in Niñal applicable.] In
De Castro vs. Assidao-De Castro (G.R. No. 160172, Feb. 13, 2008, 545 SCRA 162), the
wife filed an action for support against the husband who, in turn, denied the marriage
claiming that the same is void ab initio since they falsified the affidavit of cohabitation
required in Article 34 of the Family Code and they failed to meet the minimum period of
cohabitation required under said law. On the question of whether the lower court had
jurisdiction to determine the validity of the marriage, the Court ruled that the trial court
had jurisdiction to determine the validity of the marriage between the parties in an
action for support. Citing the case of Niñal, the Court reasoned that the validity of a
void marriage can be collaterally attacked. [Note: While the marriage in this case took
place during the effectivity of the Family Code (it was celebrated on March 13, 1995),
nonetheless the complaint for support was filed on June 4, 1998, or long before the
promulgation of A.M. No. 02-11-10-SC.]

16. If the marriage sought to be declared void was celebrated during the effectivity of
the Civil Code, in which case A.M. No. 02-11-10-SC is not applicable, the ruling in
Niñal that a petition for declaration of nullity may still be filed even after the death of
either party to that marriage still applies. If the marriage is covered by A.M. No. 02-11-
10-SC, a void marriage can still be questioned even after the death of either party, but
no longer by way of a petition for declaration of nullity of the marriage because the
same can only be filed during the lifetime of the parties. Pursuant to AM No. 02-11-10-
SC, 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 (Sec. 24(a), A.M. No. 02-11-10-SC),
but without prejudice to a collateral attack that may be done by the compulsory or
intestate heirs of the spouses upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse (Enrico vs. Heirs of Sps. Medinaceli,
G.R. No. 173614, September 28, 2007, 534 SCRA 418).

17. The following actions for declaration of absolute nullity of a marriage are excepted
from the application of A.M. No. 02-11-10-SC and the rule that only the husband or the
wife can file a petition for declaration of absolute nullity of a void marriage: (a) Those
marriages celebrated during the effectivity of the Civil Code; and (b) Those petitions for
nullity of marriages commenced prior to March 15, 2003, the effecitivity date of A.M.
No. 02-11-10-SC.

18. For marriages covered by AM 02-11-10-SC, A petition for declaration of

absolute nullity of void marriage may be filed solely by the husband or the wife.
However, the rule in A.M. No. 02-11-10-SC that only the husband or wife can file a
declaration of nullity or annulment of marriage does not apply if the reason behind the
petition is bigamy (Juliano-Llave vs. Republic, 646 SCRA 753 (2011). Section 2(a) of
A.M. No. 02-11-10-SC does not preclude a spouse of a subsisting marriage to question
the validity of a subsequent marriage on the ground of bigamy. On the contrary, when
Section 2(a) states that “ a petition for declaration of absolute nullity of void marriage
may be filed solely by the husband or the wife” — it refers to the husband or the wife of
the subsisting marriage. Under Article 35(4) of the Family Code, bigamous marriages
are void from the beginning. Thus, the parties in a bigamous marriage are neither the
husband nor the wife under the law. The husband or the wife of the prior subsisting
marriage is the one who has the personality to file a petition for declaration of absolute
nullity of void marriage under Section 2(a) of A.M. No. 02-11-10-SC. (Fujiki vs. Marinay,
700 SCRA 69 (2013).

19. Recently, the Court applied Article 40 retroactively to cases where the second
marriage took place prior to the effectivity of the Family Code. In Jarillo vs. People
(G.R. No. 164435, Sep. 29, 2009; and the Resolution of the Motion for Reconsideration,
G.R. No. 164435, June 29, 2010, 622 SCRA 24), the second marriage was celebrated on
November 26, 1979; while in Montañez vs. Cipriano, (684 SCRA 315 (2012). the
second marriage took place on January 24, 1983. In both cases, the Court applied
Article 40 retroactively in a criminal action for bigamy holding that said provision, being
a rule of procedure, may be applied retroactively.

20. Under present law, the subsequent marriage under Article 41 of the Family Code is
automatically terminated by the recording of the affidavit of reappearance of the absent
spouse, without prejudice to the fact of reappearance being judicially determined in
case such fact is disputed. But the termination of the subsequent marriage by affidavit
provided by Article 42 of the Family Code does not preclude the filing of an action in
court to prove the reappearance of the absentee and obtain a declaration of dissolution
or termination of the subsequent marriage. Thus, there are two ways of terminating the
subsequent marriage, to wit: (1) by the recording of the affidavit of reappearance; or (2)
by a judicial declaration of dissolution or termination of the subsequent marriage. [SSS
vs. Jarque Vda. De Bailon, 485 SCRA 376 (2006).

21. But what if the presumptively dead spouse has not really been absent and the
judicial declaration of presumptive death was obtained by reason of extrinsic fraud,
what is his/her appropriate remedy? Must he/she file an affidavit of reappearance?
According to the Court in Santos vs. Santos (G.R. No. 187061, October 08, 2014, 737
SCRA 637), the proper remedy available to the presumptively dead spouse is not the
filing of an affidavit of reappearance but an action to annul the judgment declaring
him/her presumptively dead. The Court reasoned out that if the presumptively dead
spouse is to be limited to the filing of an affidavit of reappearance as his/her remedy,
such remedy is not sufficient because: (1) it carries with it an admission on the part of
the first spouse that his or her marriage to the present spouse was terminated when he
or she was declared absent or presumptively dead; (2) if the subsequent marriage is
terminated by mere recording of the affidavit of reappearance, the children of the
subsequent marriage conceived before the termination shall still be considered
legitimate; (3) the property relations of the spouse in the subsequent marriage will be
the same as in valid marriages; and (4) a judgment declaring presumptive death is a
defense against prosecution for bigamy. So therefore, the choice of proper remedy is
important for purposes of determining the status of the second marriage and the
liabilities of the spouse who, in bad faith, claimed that the other spouse was absent.

22. If the absentee reappears, but no step is taken to terminate the subsequent
marriage, either by affidavit or by court action, such absentee’s mere reappearance,
even if made known to the spouses in the subsequent marriage, will not terminate such
marriage. Since the second marriage has been contracted because of a presumption
that the former spouse is dead, such presumption continues inspite of the spouse’s
physical reappearance, and by fiction of law, he or she must still be regarded as legally
an absentee until the subsequent marriage is terminated as provided by law. (SSS vs.
Jarque Vda de Bailon)

23. In Santos vs. Santos, the Court held that the reappearance of the absentee spouse
does not always immediately cause the subsequent marriage's termination. According
to the Court in said case, the reappearance of the absent or presumptively dead spouse
will cause the termination of the subsequent marriage only when all the conditions
enumerated in Article 42 of the Family Code are present, as follows: (1) the non-
existence of a judgment annulling the previous marriage or declaring it void ab initio; (2)
recording in the civil registry of the residence of the parties to the subsequent marriage
of the sworn statement of fact and circumstances of reappearance (the affidavit of
reappearance); (3) due notice to the spouses of the subsequent marriage of the fact of
reappearance; and (4) the fact of reappearance must either be undisputed or judicially
determined. Hence, the subsequent marriage may still subsist despite the absent or
presumptively dead spouse's reappearance (1) if the first marriage has already been
annulled or has been declared a nullity; (2) if the sworn statement of the reappearance
is not recorded in the civil registry of the subsequent spouses' residence; (3) if there is
no notice to the subsequent spouses; or (4) if the fact of reappearance is disputed in the
proper courts of law, and no judgment is yet rendered confirming, such fact of
reappearance.

24. General Rule: If the marriage is void, regardless of the cause thereof, the property
relations of the spouses during the period of cohabitation are governed by the
provisions of Article 147 or 148, as the case may be.
• Article 147 applies to unions of parties who are legally capacitated and not barred by
any Impediment to contract marriage, but whose marriage is nonetheless void, such as
when the marriage is declared void on the ground of psychological incapacity or when
it was celebrated without a valid marriage license.
• Article 148, on the other hand, applies to void marriages where the parties are
incapacitated to marry each other, such as when the marriage is bigamous or one of the
parties thereto is below 18 years of age.
25. Exception: If the subsequent marriage is void by reason of non-compliance with
Article 40 (but the prior marriage is indeed void ab initio), the property relations of the
parties to the subsequent marriage would still be absolute community or conjugal
partnership of gains, as the case may be, or even complete separation. [Diño vs. Diño,
640 SCRA 178 (2011); Valdez vs. RTC, Br. 102, QC, 260 SCRA 221 (1996), citing Art.
50, in relation to Art. 43(2), FC.

26. The surviving spouse must liquidate the community property, either judicially or
extrajudicially, within one year from the death of the deceased spouse, otherwise any
disposition or encumbrance of any community or conjugal partnership property is void.
But in Heirs of Patricio Go, Sr. and Marta Barola vs. Servacio (657 SCRA 10 (2011),
it was held that the disposition by sale of a portion of the conjugal property by the
surviving spouse without the prior liquidation mandated by Article 130 of the Family
Code (which is the counterpart provision of Article 103 in the regime of conjugal
partnership of gains) is not necessarily void if said portion has not yet been allocated by
judicial or extrajudicial partition to another heir of the deceased spouse.

27. If the spouses got married prior to the effectivity of the Family Code without a
marriage settlement, in which case the property relation is that of conjugal partnership
under the Civil Code, may it be argued that pursuant to the transitory provisions of the
Family Code such property relation was changed to absolute community when the
Family Code took effect in 1988 considering that no vested or acquired rights are
impaired? In Pana vs. Heirs of Jose Juanite, Sr. (G.R. No. 164201, Dec. 10, 2012, 687
SCRA 414), both the RTC and the CA took the position that such property relation was
changed to absolute community upon the effectivity of the Family Code considering that
no vested or acquired rights are impaired. The Supreme Court did not, however, agree
as it ruled that Article 256 of the Family Code does not intend to reach back and
automatically convert into absolute community of property relation all conjugal
partnerships of gains that existed before 1988 excepting only those with prenuptial
agreements.

28. REMINDERS: The following obligations chargeable to the separate properties of the
spouses may be enforced against the conjugal partnership if: (1) all the responsibilities
of the partnership have already been covered; and (2) the spouse who is bound has no
exclusive properties or the same are insufficient, subject to reimbursement upon
liquidation of the partnership (Art. 122, 3rd par., FC):
a) Personal debts of either spouse contracted before the marriage which did not
redound to the benefit of the family;
BUT: if the personal debt is contracted during the marriage, note that the same may
not be enforced against the conjugal partnership.
b) Support of illegitimate children of either spouse;
c) Fines and indemnities arising from delicts and quasi-delicts.
NOTE: In case of absence or insufficiency of separate property of the debtor-spouse, the
foregoing liabilities can be enforced against the assets of the conjugal partnership
provided that the responsibilities of the conjugal partnership enumerated in Article 121
of the Family Code have already been covered [Dewara vs. Lamela, 647 SCRA 483
(2011), and Pana vs. Heirs of Jose Juanite, Sr., 687 SCRA 414 (2012)]. Article 121 of
the Family Code allows payment of criminal indemnities even prior to the liquidation of
the conjugal partnership, so long as the responsibilities enumerated in same article
have been covered. The Court explained that such is not altogether unfair since Article
122 of the Family Code states that “at the time of liquidation of the partnership, such
(offending) spouse shall be charged for what has been paid for the purposes above-
mentioned.” [Pana vs. Heirs of Jose Juanite, Sr., 687 SCRA 414 (2012)]

29. In the cases of Bautista vs. Silva (G.R. No. 157434, September 19, 2006, 502
SCRA 334), Ravina vs. Villa Abrille (604 SCRA 120 (2009) and Aggabao vs. Parulan
(Aggabao vs. Parulan, G.R. No.165803, Sep. 1, 2010), the Court erected a standard to
determine the good faith of the buyers dealing with a seller who had title to and
possession of the land but whose capacity to sell was restricted, in that the consent of
the other spouse was required before the conveyance, declaring that in order to prove
good faith in such a situation, the buyers must show that they inquired not only into
the title of the seller but also into the sellers capacity to sell. Thus, the buyers of
conjugal property must observe two kinds of requisite diligence, namely: (a) the
diligence in verifying the validity of the title covering the property; and (b) the diligence
in inquiring into the authority of the transacting spouse to sell conjugal property in
behalf of the other spouse.

30. Rule: In a void marriage, regardless of the cause thereof, the property relations of
the parties during the period of cohabitation is governed by the provisions of Article 147
or Article 148, such as the case may be, of the Family Code. In other words, there is no
absolute community or conjugal partnership in a void marriage.
Exception: If the subsequent marriage is void by reason of non-compliance with Article
40 (but the prior marriage is indeed void ab initio), the property relations of the parties
to the subsequent marriage may either absolute community or conjugal partnership of
gains, as the case may be, unless the parties agree to a complete separation of property
in a marriage settlement entered into before the marriage. As such, Sec. 19(1) of A.M.
No. 02-11-10-SC, which requires the liquidation, partition and distribution of properties
prior to the issuance of decree of nullity of the marriage applies only to a void marriage
under Article 40 of the Family Code when said rule mentions of “decree of absolute
nullity” and not to a marriage declared void by reason of psychological incapacity under
Article 36 of the Family Code. In the latter case, since the applicable property regime is
that provided in Article 147 of the Family Code, the declaration of nullity can already be
made even without waiting for the liquidation of the properties of the parties because it
is not necessary to liquidate the properties of the spouses in the same proceeding for
declaration of nullity of marriage. In Article 147, what governs the liquidation of
properties owned in common are the rules on co-ownership. In Article 40, however,
since the property relations of the parties is governed by absolute community of
property or conjugal partnership of gains, there is a need to liquidate, partition and
distribute the properties before a decree of absolute nullity could be issued. [Diño vs.
Diño, 640 SCRA 178 (2011); see also Art. 50, in relation to Art. 43(2), FC]

31. Article 148 does not apply to a cohabitation of parties coming from same sex, or to a
same-sex marriage. Note that Article 148 refers to cohabitations between a man and a
woman. With respect to the property relations of same-sex cohabitations, the same
shall be governed by the applicable provisions of the Civil Code on Property.

32. In order for the relatives of the person who constituted the family home to be
considered a beneficiary of the family home, three (3) requisites must concur:
(i) They must be among the relationships enumerated in Art. 154 of the Family Code;
(ii) They live in the family home; and
(iii) They are dependent for legal support upon the head of the family. (Patricio vs. Dario
III)

33. Generally, in order for a private handwritten instrument to be considered competent

evidence of filiation, it is necessary that: (1) that there must be statement of admission
of filiation; and (2) the handwritten instrument must be signed by the parent concerned
[Salas vs. Matusalem, 705 SCRA 560 (2013); Nepomuceno vs. Lopez, 616 SCRA 145
(2010)]. Are the foregoing twin requirements to be strictly applied? What if there is
admission of filiation in the handwritten instrument but the same was not signed by the
alleged parent, can it not be considered as competent evidence of filiation? In the case
of Dela Cruz vs. Gracia [594 SCRA 648 (2009), Reiterated in Aguilar vs. Siasat, G.R.
No. 200169, January 28, 2015], the Court adopted the following rules respecting the
requirement of affixing the signature of the acknowledging parent in any private
handwritten instrument wherein an admission of filiation of a legitimate or illegitimate
child is made:
a) Where the private handwritten instrument is the lone piece of evidence submitted to
prove filiation, there should be strict compliance with the requirement that the same
must be signed by the acknowledging parent; and
b) Where the private handwritten instrument is accompanied by other relevant and
competent evidence, it suffices that the claim of filiation therein be shown to have been
made and handwritten by the acknowledging parent as it is merely corroborative of
such other evidence.
34. In the recent case of Grande vs. Antonio (G.R. No. 206248, Oct. 18, 2014, 716
SCRA 698), the Court clarified that Article 176 of the Family Code, as amended by R.A.
No. 9255, gives illegitimate children the right to decide if they want to use the surname
of their father or not. It is not the father or the mother who is granted by law the right
to dictate the surname of their illegitimate children. The use of the word "may" in the
provision readily shows that an acknowledged illegitimate child is under no compulsion
to use the surname of his illegitimate father. Hence, a father cannot compel the use of
his surname by his illegitimate children upon his recognition of their filiation.

35. If the admission of paternity is made in a private handwritten instrument which was
not signed by the father, may the illegitimate child be allowed to make use of the
father’s surname on the basis of such instrument? In Dela Cruz vs. Gracia, the Court
allowed the child to use the father’s surname on the basis of such private handwritten
instrument considering that there are other evidence to prove paternity and filiation. In
the same case, the Court adopted the following rules respecting the requirement of
affixing the signature of the acknowledging parent in any private handwritten
instrument wherein an admission of filiation of a legitimate or illegitimate child is made:
a) Where the private handwritten instrument is the lone piece of evidence submitted to
prove filiation, there should be strict compliance with the requirement that the same
must be signed by the acknowledging parent; and
b) Where the private handwritten instrument is accompanied by other relevant and
competent evidence, it suffices that the claim of filiation therein be shown to have been
made and handwritten by the acknowledging parent as it is merely corroborative of
such other evidence.

36. One of the exceptions to the rule of joint adoption by the spouses is when one
spouse seeks to adopt his or her own illegitimate son/daughter. However, the law
requires the spouse seeking to adopt his/her illegitimate child to first obtain the
consent of his/her spouse. This requirement is mandatory according to the case of
Castro vs. Gregorio (G.R. No. 177728, July 31, 2009, 594 SCRA 648). According to the
Court, in all instances where it appears that a spouse attempts to adopt a child out of
wedlock, the other spouse and other legitimate children must be personally notified
through personal service of summons and it is not enough that they be deemed notified
through constructive service; otherwise, the court does not validly acquire jurisdiction
over the proceedings and the decision of the court is null and void.

37. The process of declaring a child legally available for adoption is entirely
administrative. Under present law, it is only the Department of Social Welfare and
Development (DSWD) who shall have the sole authority to issue the certification
declaring a child legally available for adoption [Sec. 2(1), R.A. No. 9523]. But the above-
mentioned Certification is not required in the following cases which can be filed directly
in court:
· Adoption of an illegitimate child by any of his/her biological parent;
· Adoption of a child by his/her step-parent; and
· Adoption of a child by a relative within the fourth (4th) degree of consanguinity or
affinity.

38. The law also requires the written consent of the adopter's children if they are 10
years old or older, for the adoption to be valid (Castro vs. Gregorio, 738 SCRA 415
(2014). The consent of the adopter's other children is necessary as it ensures harmony
among the prospective siblings. It also sufficiently puts the other children on notice that
they will have to share their parent's love and care, as well as their future legitimes,
with another person.

39. If the child is under the age of seven, the law presumes that the mother is the best
custodian. Hence, the law provides that “no child under seven years of age shall be
separated from the mother unless the court finds compelling reasons to order otherwise.”
This is the so-called “tender-age presumption.” In the case of Dacasin vs. Dacasin [611
SCRA 657 (2010)], the Court held that this statutory awarding of sole parental custody
to the mother under the second paragraph of Article 213 of the Family Code is
mandatory and any agreement to the contrary is void. Reminder: The Court in Dacasin
recognized, however, the validity of an agreement providing for joint custody if the
children are already over seven years of age considering the fact that the imposed
custodial regime under the second paragraph of Article 213 is limited in duration,
lasting only until the child’s seventh year. From the eighth year until the child’s
emancipation, the law gives the separated parents freedom, subject to the usual
contractual limitations, to agree on custody regimes they see fit to adopt