1
st
1 Letter:
Let us cut to the chase and start with why. The
heart of Civil Law is to uphold a person's right to
life, liberty, and property. The first elephant in the
room, hence, is the concept of legal personality, i.e.,
who are deemed persons under the law? Why is this
concept critical to disciplined legal scholarship and
the practice of law? Only persons possess the right
to life, liberty, and property; non-
persons are unfit to be the subject of legal relations.
We must then clear it in our minds, 1. who
are persons, 2. who are non-persons, and 3. who
are fit to be the subject of legal relations, but with
delimited capacities to give consent to legal ties or
to assume obligations? What is the spectrum of
legal personality?
PERSONS ---- VARIABILITY OF CAPACITIES TO
ACT ---- NON PERSONS
Chapter 1 means to set the stage for the next
chapters of Part 1, Book 1 of the Way of Civil Law,
and to paint, as best possible, a bird's eye view of
the link between persons & rights. It will explain, in
general, the premise of interesting legal battles that
brought parties all the way up our country's Highest
Court, to litigate issues related to Legal Personality.
In doing so, it will state some reasons why a keen
grasp of the spectrum of legal personality is
helpful not only to legal scholarship, but also the
practice of law or how it may help a practicing
lawyer perform his work better. In more ways than
one, big cases turned on the issue of legal
personality as the operative fact. So let us study
some examples.
1. The Conceived, but Unborn Child.
Art. 37, NCC defines juridical capacity as, "the
fitness to be the subject of legal relations." Only
those with juridical capacity hold the rights to life,
liberty, and property that the Law must protect. Art.
40, NCC, on this note, states that, "Birth determines
personality; but the conceived child shall be
considered born for all purposes that are favourable
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
to it, provided it be born later with the conditions
specified [under Art. 41]."
Is a conceived child, then, a person, fit to be the
subject of legal relations? If a conceived child is not
born, can he/she possibly also die? May one, on
behalf of a conceived but unborn child, fight for his
right to life or his right to support, to property or to
benefit from contracts made in his/her name? If
one intentionally hurts or ends the life of a
conceived yet unborn child, will that culprit be liable
for infanticide & for damages to the child? It all
depends, hence, if the Law treats him as a legal
person fit to be the subject of legal ties; for as such,
the Law will protect his/her right to life, liberty, and
property. This is the focus of Chapter 2, legal battles
on these issues that found their way to the
Supreme Court.
2. Those The Law Deems as Children
Children, for sure, are fit to be the subject of legal
relations and to possess rights to life, liberty, and
property; but without exceptions, they may not get
married or execute a Last Will and Testament. In
general, they may not also enter into contracts and
they may not suffer criminal punishment for
committing crimes, although the law will hold their
legal guardians civilly liable. In general, only children
can be adopted under the Domestic Adoption Act.
During their minority, their persons and properties
fall under the legal guardianship of their parents by
birth, parents by legal fiction, or those with
substitute parental authority over them, in case of
the death or unsuitability of their parents.
The law protects them in a special way from being
victims of crimes, physical and sexual abuse,
neglect, and exploitation. The law even extends the
concept of "children" to those who cannot fend for
themselves, like the imbecile. Children may not give
valid consent to engage in sexual acts with adults,
making the latter possibly liable for statutory rape
or for child abuse. In a recent Supreme Court case,
included in the assignments, however, the Court
interestingly declared 12 to be the age of sexual

consent. So can one imagine a child, only 12 to 18,
unfit to get married or execute a will, but free to
permit an adult to perform sexual acts on his or her
person? In Chapter 3, we will discuss cases decided
by the Highest Court, to teach the point that the
law on persons, on children, can determine legal
effects and, at times, the nullity of contracts or of
deeds.
3. Those The Law Deems as Insane
Insanity refers to a concept not exactly the same as
imbecility. It pertains to, "any mental disorder
severe enough that it prevents a person from
having legal capacity and excuses the person from
criminal or civil responsibility," according to the
Black's Law Dictionary. "Insanity is a legal, not a
medical, standard." Under Philippine Law, insanity
exempts a person from criminal, but not from civil,
liability. Insanity is a ground for the annulment of
marriage and a person of "unsound mind" lacks the
testamentary capacity to execute a Last Will and
Testament. Chapter 3 will cover this in its
discussions. How can one's grasp of the Law on
insane persons help one litigate cases or give sound
advise on legal deeds?
4. Limits from Free Cohabitation, Marriage, and
Family Ties
To live together as husband and wife, even outside
marriage, has legal consequences to modify one's
rights, like to liberty and property. Free
cohabitation for at least 5 years, for instance, grants
parties the freedom to get married even without
the formal requisite of a marriage license.
Cohabitation as husband and wife moreover
triggers, in given contexts, the presumption of co-
ownership of properties acquired during the
cohabitation and to give ground for the nullity of
certain acts of ownership without the unanimous
consent of the live-in partners. It must be clear in
our minds then what this term cohabitation means
and what are the legal implications thereof?
Marriage also modifies one's capacities to act.
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
2
Marriage, or cohabitation, for one, makes it void for
one to donate to one's spouse, live-in partner,
mistress or paramour. Marriage, as a general rule,
also makes it void for one to enter into contracts of
sale or lease with one's spouse, live-in partner,
mistress or paramour. Marriage strips its spouses,
as a rule, of the legal capacity to get married again
during the subsistence of their marriage or to testify
against one's another. Family ties, on the other
hand, create the obligation to support and to exert
earnest efforts to avoid litigation amongst
themselves, among others. Chapter 4 will make this
point, a person's status is relevant to an accurate
determination of whether a sale, lease or donation
is valid, if one's testimony is admissible, or if one's
lawsuit is ripe, among others. Cohabitation,
marriage, and family ties affect one's capacity to
act.
5. Limits from Being Aliens
Non-citizens of the Philippines may be fit to be the
subject of legal relations, but their status in terms of
citizenship modify their capacities to act. The Law,
for instance, sets limits on their rights of suffrage
and to run for public office, but this study will not
touch on that, for being in the field of Political Law.
It will, however, discuss topics wherein the status of
a persons as alien/s or non-citizen/s affected his or
her rights to participate in a community of property
or conjugal partnership of gains regime in marriage
or enter into contracts. Chapter 5, on this note, will
illustrate how alienage, which is a law on persons,
affects the binding effect of an aspect of marriage
and of contracts.
6. Limits from Absence, The Matter of Legal Ghosts
Chapter 6 will delve into persons deemed by Law to
be incompetent due to absence, civil interdiction,
prodigality, insolvency, and trusteeship. Persons in a
state of absence or civil interdiction, for instance,
may still be alive and breathing, but their legal
circumstances or status may weaken or diminish
their capacities to act. Some of them, as such, may
be seen as legal ghosts, wherein, though alive, they

will suffer from diminished capacities to perform
acts with legal effect. Legal guardians or those
court-appointed to act for parties declared
incompetent may then start to act on behalf of
these parties, and at times even against their own
wishes.
7. Those Deemed as NON-PERSONS.
The rightmost end of the spectrum has NON-
PERSONS. Chapter 7 will study examples of legal
battles decided by the Highest Court, wherein the
cases turned on the status of the parties as NON-
PERSONS, as found by the Court. It will also study a
case that teaches an interesting exception, on the
topic of intergenerational responsibility, as it will
conclude with cases wherein parties lost their
personalities due to death on the basis of Art. 42,
NCC, which states that, "Civil personality is
extinguished by death." What happens when a
PERSON dies and becomes a NON-PERSON, losing
his or her civil personality? What rights dissolve
with its owner's demise? What rights pass on to a
PERSON's heirs?
8. Conclusion to Spectrum of Legal Personality.
Chapter 8 will then write a summary of the link
between persons and rights, and the main reason/s
why the law on persons or the spectrum of legal
personality carry function/s as a foundation stone
to learning the principles of Civil Law. Unlike many
other civil law topics or facts, the matter of
PERSONS appears to fall under sacred grounds as
matters of public policy, not subject to any form of
waiver, contract, or compromise settlement as a
default rule. The civil status, gender, citizenship,
state of mind, and minority of persons present
themselves as solid facts that cannot be changed by
simple stipulation or choice, no matter where the
parties' best interest/s lie and no matter if no one
gets hurt. This is why performing due diligence on
contracts or investigating the merits of cause/s of
action or defence/s to cause/s of action requires
that the lawyer must not be blind or impervious to
issues related to the spectrum of legal personality.
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
3
The search for right legal strategies, in fact, starts
with a good second look at the parties to the
contract and the parties to the case or litigation at
hand. In the next Letter, let us talk about the
unborn.
2nd Letter:
It matters if a person is deemed born under the law
or not. Art. 40, NCC states that, "Birth determines
personality, but the conceived child shall be born
for all purposes that are favourable to it, provided it
be born later with the conditions specified in the
following article." Sec. 5 of PD No. 603 or the Child
and Youth Welfare Code, moreover, states that the,
"civil personality of the child shall be begin from his
conception, for all purposes favourable to him,
subject to the requirements of Art. 41 of the Civil
Code." Art. 41, NCC states on this note that, "For
civil purposes the foetus is considered born if it is
alive at the time it is completely delivered from the
mother's womb. However, if the foetus had an
intrauterine life of less than 7 months, it is not
deemed born if it dies within 24 hours after its
complete delivery from the maternal womb." So
what happens to an unborn foetus?
1. Is the life of an unborn foetus protected under
the law?
Laws meant to punish and deter murder, homicide,
and infanticide protect a person's right to life by
imposing imprisonment on those who violate it. In
one case, a father and a husband, who worked as a
butcher, came home from the slaughterhouse, with
his tools of trade, his knives. He then stabbed his
pregnant wife 14 times, to her death. The Supreme
Court, on appeal, affirmed his conviction
for parricide with unintentional abortion, as it held
that the accused could not have committed
infanticide, since “In the crime of infanticide, it is
necessary that the child be born alive and be viable,
that is, capable of independent existence. However,
even if the child who was expelled prematurely and
deliberately were alive at birth, the offence is
abortion due to the fact that a fetus with an

intrauterine life of 6 months is not viable...” The
Court, hence, did not punish the accused for
the loss-of-life of the unborn foetus for infanticide,
but for the unintentional abortion as suffered by
the mother. (People v. Paycana, Jr., G.R.
No. 179035, April 16, 2008.)
In People v. Paycana, Jr. the Court did not deem an
unborn foetus with an intrauterine life of only 6
months as alive or viable, albeit for the purpose
only of determining whether the accused
committed infanticide. This provides no basis,
however, to say that under our laws, an unborn
foetus has no right to life. Sec. 12, Art. II of the 1987
Constitution in fact provides that the State, "... shall
equally protect the life of the mother and the life of
the unborn from conception." Art. 256 of the
Revised Penal Code, in fact, punishes with a penalty
of up to reclusion temporal persons who commit
intentional abortion; Art. 257, RPC, those who
commit abortion by violence but
unintentionally; Art. 258, RPC, a woman who shall
practice abortion upon herself or shall consent that
any other person do so ... or if the abortion be done
by the parents of the pregnant woman with her
consent; and Art. 259, RPC, any physician, midwife,
pharmacist, or one taking advantage of their
scientific knowledge or skill shall cause an abortion.
2. If abortion is an injury inflicted on the mother
and not on the unborn foetus, may the Court award
damages in favour of the conceived child?
A medical doctor did abortion on a lady twice with
the permission of her husband. She got pregnant
again; she asked for a 3rd abortion; but this time,
the husband said no. The wife & her doctor went on
with the abortion nonetheless; hence, the husband
sued the doctor, on behalf of the aborted foetus.
The foetus had an intrauterine life of less than 7
months and it died within an hour from delivery.
May the father of an unborn foetus, on its behalf,
sue for damages? What legal personality, if any,
does an unborn foetus carry while in the womb of
its mother? What rights do the parents of the
unborn foetus hold?
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
4
The Supreme Court held that, “no action for
damages could be instituted on behalf of the
unborn child,” since the unborn only carries the
“provisional personality of a conceived child”
(conceptus pro nato habetur) under Art.
40, NCC which, “expressly limits such provisional
personality by imposing the condition that the child
should be subsequently born alive.” The child, in
this case, was dead when delivered from its
mother’s womb. Without the required civil
personality, in other words, an unborn child had no
right or legal standing to suffer injury or sue for
damages and could not have passed on this
inexistent right to sue to its next of kin.
But the parents had the right to collect damages the
doctor may have inflicted directly upon them, as
distinguished from the injury or violation of the
rights to life & physical integrity of the deceased
unborn child. These damages, normally, would be
limited to moral damages on account of the distress
& anguish due from the disappointment of their
parental expectations. But the Court ruled that the
parents did not deserve to be awarded damages in
this case. For more than once, they arranged for
abortion twice; how then may the husband sue for
payment for mental anguish ensuing from a 3rd
abortion arranged by his wife? (Geluz, v. Court of
Appeals, G.R. No. L-16439, July 20, 1961.)
3. But may an unborn foetus, to protect its own life,
sue for support?
A man had premarital sex with a young lady, who
got pregnant. He then left her. So she sued the man
for support & damages. The man, in his defence,
moved to dismiss the case on the ground that since
the complaint failed to allege that the lady already
gave birth to the child, the complaint failed to state
any cause of action. How can an unborn foetus, he
argued, claim for support? An unborn child, the
man said, has no civil personality and no right to
sue. May an unborn foetus, then, sue its father to
be given support? How should the court resolve the
case filed by the mother of the unborn foetus?

The Supreme Court held that, “a conceived child,
although as yet unborn, is given by law a provisional
personality of its own for all purposes favourable to
it under Article 40 of the Civil Code. The unborn
child, hence, has a right to support from its
progenitors … even if the said child is only “en
ventre de sa mere” just as a conceived child, even if
as yet unborn, may receive donation and its
exclusion by his parent in his or her last will &
testament may result in preterition, to annul the
institution of the testamentary heir/s even if such
child should be born only after the death of the
testator.” (Quimuiging v. Icao, G.R. No. 26795, July
31, 1970.)
4. May a foetus "not born" under the law, in fact,
also die?
A worker’s wife once had to prematurely deliver her
baby on her 38th week of pregnancy, but the baby
died during labor. The worker then invoked the
benefits of the Collective Bargaining Agreement
("CBA") between his employer and his union, and
he claimed for paternity and bereavement leave, as
he claimed to be paid death and accident insurance,
due to the death of a dependent. His employer
granted his paternity leave, but declined his
application for bereavement leave and to be paid
death and accident insurance from the death of a
legitimate dependent. The employer claimed that
the foetus could not have died, since she never
acquired civil personality in the first place under the
Civil Code and the CBA cannot recognise a dead
foetus as a dependent, so as to entitle its father to
death and accident benefits, as well as
bereavement leave. Is the employer right?
The Supreme Court held that the unborn child’s civil
personality did not need to be established, since the
parties raised no issue relevant to her fitness to be
the subject of legal relations or of her capacity to
act. The parties only raised the issue of whether the
foetus could have died, in order to entitle her father
to bereavement leave and to other death benefits
under the CBA. The Court, hence, held that Articles
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
5
40, 41, and 42, NCC do not indicate that only those
who have acquired civil personality could die and
that, in fact, “life is not synonymous with civil
personality. One need not acquire civil personality
before he/she could die. Even a child inside the
womb has life.”
No less than the Constitution, the Court held,
promises to protect the life of the unborn from the
time of its conception, as to be equally precious as
with the life of its mother. The unborn, hence, could
also die, as it has the right to be considered as
someone’s legitimate dependent. The CBA, in this
case, defined dependent as, “one who relies on
another for support and one not able to exist or
sustain oneself without the power or aid of
someone else.” The Family Code, moreover, defines
as legitimate children those born or conceived
during a valid marriage. The foetus who depended
on its mother for its intrauterine life and whom her
parents conceived during the subsistence of their
marriage, hence fell under the term legitimate
dependent. A foetus, hence, even
when not deemed born for purposes of civil
personality is actually treated by the law as to
possess life, and hence, capable of death.
(Continental Steel Manufacturing Corporation v.
Allan S. Montano, et. al., G.R. No. 182836, October
13, 2009.)
5. So what happens, in fact, to children conceived
but not born?
The law treats them as persons with a right to life,
fit to be the subject of legal relations. To protect
their right to life, the law in fact outlaws intentional
and unintentional abortion, legislating jail time even
against mothers, who commit abortion on
themselves. In the wombs of their mothers, in fact,
conceived children can already assume the status of
legitimate or illegitimate children under the Family
Code and, on their behalf, their pregnant mother
may sue the putative father for support, since the
law grants the unborn provisional personality of its
own for all purposes favourable to it under Article
40 of the New Civil Code.
 6
Exams. Jose "Pepe" Diokno, on this note, represents the End
For this reason, it is legally possible for one to make activities in Civil Law Review this year. 1. He became one of
a donation in favour of a foetus with yet no birth country; 2. He excelled in the Bar Exams; and 3. He held the
certificate or with yet no actual chosen name, as his life; he even used the Law to fight and to save not only h
long as this donation fulfils the resolutory condition from a pandemic of injustice.
that the child is born after an intrauterine life of 7
months or if it had an intrauterine life of less than 7 Teachers hold this basic duty to have dreams for those who
months, it must remain alive for more than 24 tutelage. In the next 10 months, let us study Civil Law in the
hours. More importantly, its existence as a possible for students in class, 1. to someday be one of the to
conceived child, by itself and with no further acts or country; 2. to build trust in himself or herself to not only pas
deeds, already triggers legal effects, since a child and 3. to know Civil Law enough, to sow not only seeds of lo
conceived or born in the course of a marriage is use the Law as a tool to contain, prevent, & settle injustice.
given the status of a legitimate child, making him or "Pepe" Diokno, we will use these hard times for the good, w
her a primary compulsory heir of his or her parents. obstinate self-study. Our hard work should, then, help to ma
Hence, if a testator writes a last will and testament to 1. someday practice Law in a grand way; 2. face the Bar E
and forgets to leave any portion of his estate for and 3. write the Law in our hearts, because we have seen it
one of his legitimate children who, at the time of to wherever.
the execution of the will was yet simply a conceived
child, Art. 854, NCC, due to preterition, will still In 1941, Jose "Pepe" Diokno may have lived in worse times.
annul the institution of heirs, provided that the foreign invasion that made it uncertain if studying Philippine
conceived child would later be born after an Exams, Atty. Diokno only had his father's law books, nothing
intrauterine life of 7 months or if with less than 7 course, on the other hand, our self-study will be made in the
months of intrauterine life, that the child stays alive leverage itself on the help of an entire community of scholar
for at least 24 hours. at least 5 Learning Tools, which we shall refer to
as, 1. Questions; 2. Letters; 3. TeaTime; 4. MindMaps; and 5.
particulars of these tools briefly.
3rd Letter:
1. Questions. To help in your self-study of the subject, the c
In the thick of a pandemic and an imminent economic meltdown,between you500-800
have decided
questions
to finish
on Civil
yourLaw, spread out in the 5
law studies. Thank you for taking courage. The bad times may is to
stophelp
or you
deterenvision
us fromtaking
pursuing
the Bar
our Exams wherein not one
original plans; it has no power to stop us from accepting theyou
facts,
off-guard,
no matter because
if theyyoulookhave
difficult,
already met that question o
and using what appears to impede us to instead propel us toanswered
work eventhem harder
successfully
to still achieve
or mistakenly
our in the past. To illu
best and highest possibilities as persons. identified 240 Supreme Court cases for Book 1, to teach Per
will then distribute these cases among its 110 members, wit
"There is nothing new under the sun," Ecclesiastes 1:9. We take
will convert
solace fromthesethedecided
truth that
casesininto
the Bar Exam Question/s w
past, bad things did also impede the work of our predecessorspicked
to study
thesethecases,
law and
basedto on
become
a concept and jurisprudence M
lawyers. In 1941, for instance, WW2 stopped Jose "Pepe" Diokno
process,in his
thetracks
students
to study
will get
Lawtoatseethethe Bar Exams not only
University of Santo Tomas. Instead of getting lost, he proceeded
but also
to still
themaster
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Lawthebymanner
self- of crafting bar exam qu
study. Then the war ended and the Supreme Court granted him legalaandspecial
jurisprudential
dispensation bases.
to take the
Bar despite not having completed a law degree. In 1944, he topped the Bar Exams with a grade of
95.3%. Later, he came to be one of the toughest and greatest 2. litigators
Letters. To tohelp
practice
in asynchronous
Law in our learning, the course plan
country. letters, using Basecamp, to explain the questions chosen and
grasp of Civil Law. Our course has divided Book 1, for instanc
This pandemic may stop or deter me from teaching Civil Lawsend usinga my
series
outdated
of Letters
lesson
to initiate
plans; dialogue
it has on interesting po
no power to stop me from still beginning with the End in Mind,
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goal to fuel themyLetters
work will
for abe under the heading, S
fresh 10 months, to again study Civil Law with a group of young
2, Permutations:
legal scholarsValidbracing for the Bar
Marriage/s ; for Part 3, Book on Broke
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
 7
Married Share Wealth; and for Part 5, Children and the Duty of Family. For Books 1, 2, & 3 of the
Civil Code combined, the course will write a series of at leastThis
13 Letters.
pandemic, To deepen
indeed, the
mayexchange
have changedof our lives for the w
ideas, lastly, students are encouraged to post their own thoughts,
comesqueries,
to preparing
& letter/s,
for thethru
Bar, it may have also forced open
BaseCamp, at the COMMENTS section of the Letter/s. This tool For is
instance,
meant to without
be an aid
thetopandemic,
the studywho of would have imagin
the Codals and of jurisprudence, instead of the KeyNote & PowerPoint
force of necessity,
presentations
would used
have into the
become autodidacts and le
years that preceded the pandemic. learning? But has it not always been the truth of the matter?
those in thirst to flowing streams, but in the end, they could
3. Teatime. For Books 1, 2, & 3 of the Civil Code, the course thirsty?
plans to How
meetabout
the class
a world,
over where
Saturday one finally breaks free fro
afternoon tea or coffee for at least 13 times, for the purposebeoffree
engaging
to finally
in conversations
perform deepabout work? Or how about a world
Civil Law. To aid in the conversations, the teacher will at times
their
showstudents
MindMapsto simply
to show
do their
the jobs & learn about the law a
interconnectedness of almost all concepts of Civil Law, call select
add tostudents,
a person's as dignity
scheduled,
to really
to learn about the law?
recitation/s & simulate real-life lawyering situations, among others, and initiate an open forum to
entertain queries and clarifications, among others. The course To will
close also
thisuse
Letter,
this tool
I haveto appended
exchange a Jurisprudence MindM
feedbacks, so to create room to institute changes or improvements,
divided intoin case
5 parts.
of need.
In total,
TeaTime
I wishforto raise 240 questions on
this course has been scheduled to every Saturday for at leastRelations
2 hours,to asthose
indicated
whoinhave
the chosen
shared to journey with the clas
calendar on BaseCamp, except when the class has scheduledReview Major 1. Exams
May onI possibly
Books 1, ask2,the
& 3,class coordinators to distrib
which will be our Prelims, Midterms, and Finals. During TeaTime,
invitedyouto are
BaseCamp?
always free Please
to bring
transform
or the 2-3 case/s assign
partake of your own snacks online, except when it is your turn with
toSuggested
recite. JustAnswer/s
please refrain
and post
fromthem on BaseCamp3 on o
talking when your mouth is full. we will be holding our first TeaTime and we will be exploring
details for our upcoming work for Civil Law Review 1. Meant
4. MindMaps. In the course of the year, as a class, we will work
readtothis
see1sthowLetter.
interrelated
Let me endthe ideas
with a quote from Emperor
and concepts in Civil Law are. In place of PowerPoint or KeyNote
actionpresentations,
advances action. the course
What stands
has alsoin the way becomes th
prepared MindMaps of Civil Law principles, ideas, and cases, which the class will discuss during
scheduled meetings. This will help the class catch a glimpse CLR1,Jurisprudence
of a bird's eye-view or MindMap,18Aug2020.docx
to appreciate 22.2 KB • Do
the breadth of Philippine Civil Law.

5. Simulations. To achieve the objectives of becoming a great lawyer and performing well in the Bar
Exams, our course will also be simulating activities, that will allow you to visit the future. To
You can reply to this email or respond in Basecamp.
simulate taking the Bar Exams, for instance, we will be conducting Exams, where we simulate an
Exam on Civil Law, where the Examiner unreasonably focuses the Exam This message
70% or evenwas sent
100%toon Abdul Jomar Magandia, Adr
Books 1, 2, 3, 4, or 5, as the case may be, only. This is to train one's mind and emotions for thatA.day
Aivy Castro, Aladin Rolando Nuneza, ALAN VINCENT
and to increase one's ability to accept any Exam on Civil Law without Andrew M. Navarrete,
complaint/s Anna Katrina
or misgivings, just M. Rodriguez, Ann
to answer them without fuss, as best possible. To simulate lawyering, Aprilthe
Sumalinog,
course will Ara Valladores,
also hold oral Arcelli Onod, Arlene M
Arthelly Gamao, Arthur
examinations, wherein the student is treated as a lawyer, tasked to help out a client in need, Degamo,
whereAubrey Angela Toled
he or she has to think on his or her feet. Samad, Beverly Keren Lou B. Baje, Caryl Mae Abellon,
Magloyuan, Christi V. Yu Vega, Christian Tiempo, Cleff
Grades will be calculated as follows: 25% from the Exams on Book Darlene Dacles,
1, 25% from theDarryl
ExamsVidad,
on BookDeborah Malinao, Desire
2, 25% from the Exams on Book 3, and 25% from Class Standing, meaning, Elesterio,Recitation/s,
Edgardo Arriesgado
Course Ybanez, Eliza Fe Rojas, E
Work, attendance at TeaTime, and Others. The course, in the meantime, Angelique A. exploring
is still Tequillo, Frances
ways toSamson, Franz Lawrenc
Genesis Caesar Manalili,
credibly gauge and test the student's learning in Civil Law, with the possibility of holding Oral Gerald
Exams Garciano, Gerald Ram
over ZOOM or BrightSpace, instead of written exams as a gauge. But Glean
thisMyrrh Valde, Hannah
is still subject to furtherC. Sabal, Hannah M. Baca
analysis. The Main Point is this school year, the teacher will play a James Andrin,
different James
role. The Marvin Basañez,
pandemic has Jansen Ynrik V.
jefferson dela pena,
challenged our school community to encourage students to be autodidacts, or to be self-taught. Jemar E. Arapan, Jennifer Anor, Je
Jlayda for
We must not shirk from this challenge, but look it in the eye. Our model Gabor, Joben Vernan
its feasibility Cuenca, Joey Ross Maput
is no less
than Sen. Jose "Pepe" Diokno. It is indeed possible for a person to oppus, Joseph
not attend P. Gaviola,
lectures, Joymee Bariquit, Junalyn Po
but still
keeu
master the law better than those whose time/s get eaten up by unlimited talk. dela victoria, Kenneth Jorge A. Esparagoza, Kesse
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
 8
part of the TEATIMES between Sept. 3 and Oct. 2.
Papas, Kim Ecarma, Kimberly Butao, leona decena, Lloyd Sanchez, Lorenzo Ruiz,
Grades will form part of your Class Standing. Even
Louela Cabrillos, Ma. Baby P. Panares, Ma. Rebecca Fe Melendres, mardy edemne,
though the set deadline for the Q&A is yet on Sept.
Maria Helen P. Figues, Maria Mae Florence Montecillo, Marie Concepcion Capoy,
3, students are encouraged to submit their
Mario Josshua Menil, Mary Licel Regala, May Irma C. Baguio, Melinda Elnar, Model
assignments earlier, as an act of kindness to help
Kim Dacuba, Monica Marie Bongalos, Monyeen Sesante, Nikki Abad, Oliver John
classmates with not enough reference or reading
Oropel, Patricia Reyes, Paulynn Salubre, Piccola Fuentes, Pretty L.K. Gimena, Princess
materials and to help everyone else prepare for the
Kay de Guzman, Queen Alipayo, quejarra de asis, Rafael Gubalane, Reyniere Alo,
upcoming comprehensive recitations on Book 1.
Rheyz Pierce A. Campilan, Robin Reyes, Ronald Anthony Librando, Rose Ann Lascuña,
Thank you in advance. I hope you're enjoying Civil
Rudeza Sheena A. Calibugan, Ruel Eduard Ligutan, Shana Alexandra Perez, Shyril Ann
Law Review 1 so far.
Survila, Sittie Farhannah Amer, Stephanie Abangan, Therese Sunico, Vanessa C. Roa,
VHINJEALEEN MAE COSTILLAS, Xyra Baldivia, Yasie T. Dungog, and Yves M. Resit.
4th Letter:
Unsubscribe • Change your notification settings
Get the Basecamp app for iPhone or Android! "Children", according to R.A. No. 7610, "refers to
persons below 18 years of age or those over but are
unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical
or mental disability or condition." Under Art.
Mon,
Jennoh Tequillo (Basecamp) <notifications@3.basecamp.com> 38, NCC, moreover, "minority, insanity or
Aug 24, imbecility," among others, create restrictions on
11:25 one's capacity to act, which is, "the power to do
AM acts with legal effect." In this chapter, let us then
to me study the small hands of persons defined and
treated by the law as "children." How does one's
Thanks to all for attending TEATIME last Saturday. status as a "child" under the law affect one's
Our next MISSION in class, to reiterate, is to submit capacity to perform acts with legal effect?
as soon as possible the BAR EXAMS Q&A's assigned
to the members of the class, based on the 1. Effect of Minority on Contracts.
distribution of the Supreme Court cases suggested
to provide premise for the Questions & suggested Children, in general, cannot give consent to
Answers and to finish your 1st reading (for this contracts; but contracts entered into by them are in
school year) of Book 1 of the Civil Code or on the general only voidable, not void. Under Art.
Law on Persons and Family Relations. Beginning on 1327, NCC, minors, insane or demented persons,
Sept. 3, 2020 and until Oct. 2, 2020 (for about 1 deaf-mutes who do not know how to write, "cannot
month), we will be conducting oral exams on Book give consent to a contract." But under Art.
1, to test your mastery of Book 1. It will be on any 1390, NCC, the effect of contracts entered into by,
topic on the Law on Persons and Family Relations "parties incapable of giving consent," is not to
and it will simulate or role play a legal consult or an render consent absent, or to make the contract
actual litigation scenario, where the students void, but to make these contracts simply as,
reciting will play as lawyer, judge, or others, as may "voidable or annulable, even though there may
be assigned, to test your ability not only to have been no damage to the contracting parties."
remember the law, but also to use and apply the At times, the contracts also
law to solve concrete problems. The class become unenforceable under Art. 1403, NCC, if,
coordinators & teacher will further plan the "both parties are incapable of giving consent to a
schedule of the recitations or the oral exams, as contract."
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)

The status of a person as a child under the law
is outside the commerce of men; as such, it cannot
be the object of compromise, stipulation, or
agreement. This but operates as a general rule,
since Art. 38, NCC, also states that, "minority,
insanity, or imbecility... do not exempt the
incapacitated person from certain obligations, as
when the latter arise from his acts or from property
relations, such as easements." Arts. 1489, NCC, on
this note, further stipulate that, "When necessaries
are sold and delivered to a minor or other person
without capacity to act, he must pay a reasonable
price therefore. Necessaries are those referred to
in Art. 290", NCC, as, "indispensable for sustenance,
dwelling, clothing, ... medical attendance, ... and
education," "according to the social position of the
family."
This is to say, hence, that some contracts entered
into by minors are neither voidable nor void, but
valid, premised also on Sec. 2, Rule 131, RoC, that,
"whenever a party has, by his own declaration, act,
or omission, intentionally or deliberately led
another to believe a particular thing to be true, and
to act upon such belief, he cannot in any litigation
arising out of such declaration, act or omission, be
permitted to falsify it." Tolentino, Vol. IV, p. 470,
writes that, "The courts have laid down the rule
that the sale of real estate, effected by minors who
have already passed the age of puberty and
adolescence and are near the adult age, when they
pretend to have already reached their majority,
while in fact they have not, is valid, and they cannot
be permitted afterwards to excuse themselves from
compliance with obligations assumed by them or
seek their annulment," citing Mercado v.
Espiritu, 37 Phil. 37 and Suan & Chiao v.
Alcantara, GR No. L-1720, Mar. 4, 1950.
In a more recent case, Francisco v. Montes (Notice
of Resolution) G.R. No. 212801, Sept. 1, 2014, the
Supreme Court declared petitioners as estopped
from invoking minority to pray for the annulment of
a deed of mortgage on the basis that they, "have
already benefitted from the loan and mortgage
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
9
transaction, ... which all three of them signed ...
despite their knowledge that ... Jane Acosta
Francisco was still a minor at that time. Having
given their approval and conformity to the
mortgage which was relied upon by the
respondents, petitioners are bound by said
contract." The Court, in this case, also held that,
"Janet's minority only rendered the contract
voidable to the extent of her share in the property,
pursuant to Articles 1327 and 1390 of the New Civil
Code. Since Janet failed to seek the annulment
thereof within the four-year prescriptive period
under Article 1391 of the same Code, she is deemed
to have ratified the contract."
2. Effect of Minority & Unsoundness of Mind on
Last Wills, Contracts, & Marriage
Minors may neither execute a Last Will and
Testament nor get married, for otherwise the Last
Will and Testament and the Marriage will be void,
under Art. 797, NCC, & Arts. 2, 4, & 5, FC. Persons of
unsound mind, on the other hand, may get married,
and the law treats their marriage as valid until
annulled or voidable under Art. 45, FC. But they
may not execute a Last Will and Testament, for Art.
798, NCC, requires that, "In order to make a will it is
essential that the testator be of sound mind at the
time of its execution." What does it meant, in fact,
to be "of unsound mind" in the context of wills and
contracts?
"To be of sound mind, " Art. 799, NCC, states, "it is
not necessary that the testator be in full possession
of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or unshattered by
disease, injury, or cause. It shall be sufficient if the
testator was able at the time of making the will to
know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of
the testamentary act." In one case, on the other
hand, parties claimed a donor to lack the legal
capacity to give consent at the time of his donation,
on the ground that a panel of doctors found him to
be suffering from schizophrenia. In debunking the
claims of lack of consent, the SC held that, "the

burden of proving such incapacity rests upon the
person who alleges it; if no sufficient proof to this
effect is presented, capacity will be presumed." It
also held that, "a person suffering from
schizophrenia does not necessarily lose his
competence to intelligently dispose his property."
(Catalan v. Basa, G.R. No. 159567, July 31, 2007)
Sta. Maria p. 319, hence, quotes a U.S. Case that,
"Ordinarily, the mental incapacity must relate
specifically to the contract of marriage in order to
affect it, and therefore any form of mental disease
that does not render the afflicted party incapable of
understanding or assenting to the marriage
contract cannot be used as a basis for attacking the
validity of the marriage."
3. Effect of Minority on Criminal Liability
R.A. 9344, or the Juvenile Justice and Welfare Act of
2006, states that, 1. "A child 15 years of age or
under at the time of the commission of the offense
shall be exempt from criminal liability. However,
the child shall be subjected to an intervention
program..."; 2. "A child above 15 years but below 18
years of age shall likewise be exempt from criminal
liability and be subjected to an intervention
program, unless he/she has acted with
discernment..."; 3. "The exemption from criminal
liability ... does not include exemption from civil
liability, which shall be enforced in accordance with
existing laws"; 4. "The child in conflict with the law
shall enjoy the presumption of minority. He/She
shall enjoy all the rights of a child in conflict with
the law until he/she is proven to be eighteen (18)
years old or older. ...In case of doubt as to the age
of the child, it shall be resolved in his/her favor.";
and 5. "If it has been determined that the child
taken into custody is 15 years old or below, the
authority ... has the duty to immediately release the
child to the custody of his/her parents or guardian,
or in the absence thereof, the child’s nearest
relative."
To gauge the costs and benefits of R.A. 9344 in
terms of protecting children from harm, imagine
your 15-year old son or nephew in disagreement
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
10
with some bullies in school, with ages between 16-
17 years old, one level higher than him. They then
confront him at recess and they crack his head open
with a giant rock; he ends up dead. In the course of
their trial for homicide, the prosecutor proves all
the elements, even their intent to kill, except that
he failed to prove the perpetrators acted with
discernment, or that they deliberately did what they
knew to be wrong. In a similar case, the SC
acquitted perpetrators, as it held, "For a minor ...to
be criminally liable, the prosecution is burdened to
prove beyond reasonable doubt, by direct or
circumstantial evidence, that he acted with
discernment, meaning that he knew what he was
doing and that it was wrong. Such circumstantial
evidence may include the utterances of the minor;
his overt acts before, during and after the
commission of the crime relative thereto; the
nature of the weapon used in the commission of
the crime; his attempt to silence a witness; his
disposal of evidence or his hiding the corpus delicti."
(CICL XXX, v. People, G.R. No. 237334, Aug. 14,
2019.) In the news, a minor accused 4 minors of
gang raping her. If her perpetrators had ages of less
than 15 years old at the time of the rape, what
constitutes the rape victim's recourse?
4. Effect of Imbecility or Insanity on Criminal
Liability
Art. 12, RPC, on the same note, exempts from
criminal liability an, "imbecile or an insane person,
unless the latter has acted during a lucid interval."
On this, Reyes, Book 1, p. 204, writes that Art. 12,
par. 1, "establishes the distinction between
imbecility and insanity, because while the imbecile
is exempt in all cases from criminal liability, the
insane is not so exempt if it can be shown that he
acted during a lucid interval." According to Reyes,
"an imbecile is one who, while advanced in age, has
a mental development comparable to that of
children between two and seven years of age. An
imbecile within the meaning of Art. 12 is one who is
deprived of reason or discernment and freedom of
the will at the time of committing the crime." He
cited People v. Ambal, G.R. No. L-52688, Oct. 17,

1980, 100 SCRA 325, 333, citing People v.
Formigones, 87 Phil. 658, 660.)
In a 2018 case, the SC cited People v. Dungo, as it
held that, "Under foreign jurisdiction, there
are three major criteria in determining the
existence of insanity, namely: delusion
test, irresistible impulse test, and the right and
wrong test. ... Under the delusion test, an insane
person believes in a state of things, the existence of
which no rational person would believe. A person
acts under an irresistible impulse when, by reason
of duress or mental disease, he has lost the power
to choose between right and wrong, to avoid the
act in question, his free agency being at the time
destroyed. Under the right and wrong test, a person
is insane when he suffers from such perverted
condition of the mental and moral faculties as to
render him incapable of distinguishing between
right and wrong. (See 44 C.J.S. 2)" To set clear
boundaries, lastly, the SC held that, "To be
exempting from criminal responsibility, insanity
is the complete deprivation of intelligence in
committing the criminal act. Mere abnormality of
the mental faculties does not exempt from criminal
responsibility." (People v. Jesse Haloc y Codon, G.R.
No. 227312, Sept. 5, 2018)
5. Effect of Minority In Ability to Consent to Rape
and Acts of Lasciviousness
Micheal Malto taught Philosophy at the
Assumption. Using his clout, he invited some of his
students to check into a motel and watch
pornographic videos with him. He then courted one
of them and he succeeded to take away her
virginity a few days before her 18th birthday. Later
the student learned that Malto did this not only
with her but also with his other students; she broke
up with him. It dawned on her that Malto exploited
her as a minor and so she reported Malto for child
abuse, for using his influence as an adult to seduce
her into engaging in sexual intercourse or lascivious
conduct. In his defense, Malto presented alibis; he
also said that assuming arguendo, they had sex, his
student freely consented to do it, since, in truth,
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
11
they were sweethearts. Due to his conviction, his
case went up the Supreme Court. In Malto v.
People, GR No. 164733, Sept. 21, 2007, the SC held
that, to be guilty of child abuse under Sec. 5(b), Art.
III of RA 7610, the State need not prove the
perpetrator's use of force or intimidation or the lack
of consent of the minor to the sexual intercourse or
the acts of lasciviousness.
The SC held that, "Unlike rape, therefore, consent is
immaterial in cases involving violation of Sec. 5, Art.
III of RA 7610. The mere act of having sexual
intercourse or committing lascivious conduct with a
child who is exploited in prostitution or subjected to
sexual abuse constitutes the offense. It is a malum
prohibitum, an evil that is proscribed." The SC
furthermore held that, "A child cannot give consent
to a contract under our civil laws. This is on the
rationale that she can easily be the victim of fraud
as she is not capable of fully understanding or
knowing the nature or import of her actions. The
State, as parens patriae, is under the obligation to
minimize the risk of harm to those who, because of
their minority, are as yet unable to take care of
themselves fully." The SC, hence, upheld Malto's
conviction, making the rule simple: an adult who
exploits a child in prostitution or who uses his
influence to lure a child to engage in sex or in
lascivious conduct is liable for child abuse
under Sec. 5, Art. III of RA 7610. The child's consent
matters not, because, "a child is presumed by law to
be incapable of giving rational consent to any
lascivious act or sexual intercourse."
In People v. Tulagan, GR No. 227363, Mar. 12, 2019,
the SC held that, "We take exception, however, to
the sweeping conclusions in Malto (1) that "a child
is presumed by law to be incapable of giving
rational consent to any lascivious conduct or sexual
intercourse" and (2) that "consent of the child is
immaterial in criminal cases involving violation of
Section 5, Article III of RA 7610" because they would
virtually eradicate the concepts of statutory rape
and statutory acts of lasciviousness, and trample
upon the express provision of the said law." The SC
explained that only in statutory rape or statutory

acts of lasciviousness, where the victim was below
12, will consent be irrelevant. If an adult engaged in
sexual intercourse, committed sexual assault, or
performed lascivious acts with a child below 12,
then it matters not that the child gave his or her
consent. This was malum prohibitum.
How about for children between 12 and 18 years
old? The SC held that, 1. "If the victim who is 12
years old or less than 18 and is deemed to be a child
"exploited in prostitution and other sexual abuse"
because she agreed to indulge in sexual intercourse
"for money, profit or any other consideration or due
to coercion or influence of any adult, syndicate or
group," then the crime could not be rape under the
RPC, because this no longer falls under the concept
of statutory rape, and there was consent. That is
why the offender will now be penalized
under Section 5(b), R.A. No. 7610, and not under
Article 335 of the RPC [now Article 266-A]." 2. "But
if the said victim does not give her consent to sexual
intercourse in the sense that the sexual intercourse
was committed through force, threat or
intimidation, the crime is rape under paragraph 1,
Article 266-A of the RPC. However, if the same
victim gave her consent to the sexual intercourse,
and no money, profit, consideration, coercion or
influence is involved, then there is no crime
committed, except in those cases where "force,
threat or intimidation" as an element of rape is
substituted by "moral ascendancy or moral
authority," like in the cases of incestuous rape, and
unless it is punished under the RPC as qualified
seduction under Article 337 or simple seduction
under Article 338."
To apply the Tulagan doctrine, hence, to the
criminal prosecution of Prof. Micheal Malto, it
would have possible for him to escape liability from
being convicted of rape or of child abuse
under Section 5(b), R.A. No. 7610, if the State either
failed to prove or claim Malto used force or
intimidation to compel the student to engage in
sexual intercourse with him or if he used money,
profit, consideration, coercion, or influence, as
premise for the minor student to give her consent
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
12
to the sexual intercourse with him. To gauge this
doctrine, we hence contrast it with the other legal
acts the Law affords minors. The Law bars minors
from entering into marriage or contracts and from
executing wills. The Law also prevents minors from
suffering criminal liability, except if the prosecutor
proves that the minor was between 15-18 at the
time of the commission of the offense and he or
she acted with discernment. But under the Tulagan
doctrine, if an adult had sex or lascivious conduct
with children between 12-18, he can be held
innocent of any crime if the prosecution fails to
claim or prove that either he used force or
intimidation or that he used money, profit,
consideration, coercion, or influence to make the
child consent to the sexual intercourse or acts of
lasciviousness. In doing so, the Tulagan doctrine
confirmed the age of sexual consent to as low as 12
years old.
6. Children under the Laws on Adoption
Only minors, as a general rule, may be adopted,
except: a. if the child is over 18, but is unable to
fully take care of him/herself or protect
himself/herself from abuse, neglect, cruelty,
exploitation, or discrimination because of physical
or mental disability or condition; b. if the child is
over 18, but he/she is the child by nature or the
legitimate child of the adopter's spouse; c. if the
child is over 18, but he/she is an illegitimate child of
the adopter's spouse; and d. if the child is over 18 if,
prior to the adoption, said person has been
consistently considered and treated by the
adopter/s as his/her own child since minority. (R.A.
8552, as amended by R.A. 9523)
As for Inter-Country Adoption, a "child legally
available for adoption, or a child in whose favour a
certification was issued by the Department of Social
Welfare and Development (DSWD) that he/she is
legally available for adoption after the fact of
abandonment or neglect has been proven through
the submission of pertinent documents, or one who
was voluntarily committed by his/her parent/s or
legal guardian. The child may either be a person

below 18 years of age or a person over 18 years of
age but is unable to fully take care of
himself/herself or protect himself/herself from
abuse, neglect, exploitation, cruelty, or
discrimination, because of physical or mental
disability or condition. (R.A. 8552, as amended
by R.A. 9523)
7. Closing Statement/s on Small Hands
"Mankind owes to the child the best it has to give,"
the SC, in Malto v. People quotes the Final
Preambular Clause of the Declaration of the Rights
of the Child. The law, for this reason, has taken a
second look at the small hands of little children, in
order to set rules, not only to uphold their rights to
life, liberty, and property, but also to protect them
from burdens and liabilities their small hands may
yet be unable to fully bear.
The law, then, has to tug-of-war between end-goals
that seem to compete against one another. To
protect children from making mistakes, the law
stripped them of the legal capacity to get married,
write last wills and testaments, and in general
execute contracts. The law also set their properties
and persons under the guardianship of their
parents, or in their default, those entitled to
exercise substitute parental authority over them.
The law in fact exempts them from criminal liability,
except when they turn 15 and if they acted with
discernment. In the process of doing so, however,
the law frees the same children to commit crimes
against fellow children or on adults without fear of
jail time or of legal consequences. But curiously,
case law went so far as to interpret criminal laws to
support their right, even as children aged 12-18, to
consent to sexual intercourse and lascivious
activities with adults, even though the rule makes it
easier for perpetrator/s in the end to escape liability
for child abuse. In our study of marriage, wills,
obligations & contracts, we must hence keep
mindful of the law on persons and on children.
5th Letter:
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
13
To be man and wife means to share the same roof;
it has a price to pay, the status is both as source of
rights and obligations. This chapter focuses on the
impact of marriage or of cohabitation on
the capacities to act of both man and
wife. 1. Persons who cohabit as man and wife for at
least 5 years need not to secure a marriage
license; 2. Those who live as man and wife may
neither donate nor sell to their partners; 3. The man
and his wife co-own properties acquired during
their cohabitation; as such, they may not sell or do
acts of strict dominion over these shared properties
without their partners' consent; 4. The Rules on
Evidence disqualify them from breaking privilege
and testifying against their own spouses or family
members; 5. They need to exert earnest efforts to
compromise before they can sue their own
family; 6. Marital and family ties can exempt
spouses and family members from criminal
liabilities; and 7. To adopt children, spouses have to
file a Petition for Adoption jointly. This chapter will
study examples of how marriage and family ties can
modify the capacities to act of persons.
1. Marriage License Exemption.
"No license shall be necessary for the marriage of a
man and a woman who have lived together as
husband and wife for at least 5 years and without
any legal impediment to marry each other, " Art.
34, FC, states. Parties who live, hence, as husband
and wife for at least 5 years, in the absence of
marriage, so long as they hold no legal impediments
to marry each other at the time of their
marriage are exempt from the essential requisite of
marriage license. They only need to state the details
of their cohabitation in a sworn affidavit. The
solemnizing officer, as well, "shall state under oath
that he ascertained the qualifications of the
contracting parties and found no legal impediment
to the marriage."
The key, hence, is for the parties to live together as
husband and wife for at least 5 years. In De Castro
v. De Castro, G.R. No. 160172, the SC held that
issuing a false affidavit, just to escape the marriage

license requirement, will make it a mere scrap of
paper; the parties' marriage will remain void. This
affidavit may be false in 1 of 2 ways, in that: 1. the
spouses never lived together as husband and wife
or 2. they did cohabit as husband and wife but for
less than 5 years. In De Castro v. De Castro, the SC
confirmed the nullity of the parties' marriage, on
the basis of their admission that they never did live
together as husband and wife for at least 5 years.
This is easy. But what does it mean to say, really, for
parties to live together as husband and wife? If a
man houses his mistress, whom he pays conjugal
visits at daytime only, for instance, will the law treat
the couple as to have lived together as man and
wife, to support an exemption to the marriage
license requirement? We will study the different
shades of cohabitation, its 50 shades of grey, in
greater depth, when we go to Part 2 of Book 1 of
this course.
2. No Right to Sell and Donate, between Man and
Wife.
"Every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the
marriage shall be void, " Art. 87, FC, states. "The
prohibition shall also apply to persons living
together as husband and wife without a valid
marriage." An exception to this rule is when, on
occasion of family rejoicing, the spouses give each
other moderate gifts. Art. 739, NCC, moreover,
states that donations, "made between persons who
were guilty of adultery or concubinage at the time
of the donation," shall be void. Civil Law, as a hint,
hence, distinguishes among these types of
cohabitation: 1. as spouses living under a roof in the
context of a valid marriage; 2. as persons living
together as husband and wife outside a valid
marriage; or 3. "between parties in a state of
adultery or concubinage," as the SC named in the
case of In the Matter of the Petition for the
Probate of the Will of Pete Roxas de Jesus v. De
Jesus, G.R. No. 168733, Mar. 27, 2006.
"The husband and the wife cannot sell property to
each other, " Art. 1490, NCC, states. It admits,
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however, of 2 exceptions namely, "(1) when a
separation of property was agreed upon in the
marriage settlements; or (2) when there has been a
judicial separation of property..." Art. 1646, NCC,
extends the disqualification to lease, while Art.
1492, NCC, extends the prohibitions to "sales in
legal redemption, compromises, and
renunciations." In Calimlim-Canullas v. Fortun, G.R.
No. L-57499 June 22, 1984, the SC applied Art.
1490, NCC, to couples living together as husband
and wife without the benefit of marriage for
otherwise, "the condition of those who incurred
guilt would turn out to be better than those in legal
union." In Cruz v. Court of Appeals, G.R. No. 120122
Nov. 6, 1997, moreover, the SC held that, "Although
under Art. 1490 the husband and wife cannot sell
property to one another as a rule which, for policy
consideration ... require that the prohibition apply
to common-law relationships, petitioner can no
longer seek reconveyance of the property to her as
it has already been acquired by," a buyer in good
faith."
In Rodriguez v. Rodriguez, G.R. No. L-23002, July 31,
1967, lastly, the SC declined to grant relief to the
wife, applying, "the rule in pari delicto non oritur
action, denying all recovery to the guilty
parties inter se," even though the SC confirmed that
the wife's simulated sale/donation in favour of her
husband was illegal and void. In this case, the wife
sold her exclusive property to her daughter, who
later sold the same to her own father, in order to
make the property form part of their shared
property. But when her husband (who had children
from a prior marriage) died, the widow now had to
fight over the property with her stepchildren, and
so, she sued for the nullity of the sale she indirectly
made to her husband. The SC held her to be,
"clearly as guilty as her husband in the attempt to
evade the legal interdiction," against sale/donation
between spouses.
3. Right/s of Co-ownership Between Husband and
Wife.
In the absence of a pre-nuptial agreement,

marriage will bind its parties into the default
Absolute Community of Property Regime (for
marriages after Aug. 3, 1988) and to the Conjugal
Partnership of Gains (for marriages prior to Aug. 3,
1988), which will make it void for them to dispose
or encumber assets that form part of their ACP or
CPG without the consent of the other spouse, in
accordance with Arts. 96 and 124, FC. Under Art.
89, FC, furthermore, "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."
Parties who live exclusively together as husband and
wife without the benefit of or under a void marriage
under Art. 147, FC, lastly, are presumed to have
obtained properties acquired during their
cohabitation, "by their joint efforts, work, or
industry," and they shall own these properties "in
equal shares." As such, "Neither party can
encumber or dispose by acts inter vivos of his or her
share in the property acquired during cohabitation
and owned in common, without the consent of the
other, until after the termination of their
cohabitation. The validity of deeds or contracts, in
other words, may hinge on the status of the persons
selling, assigning, or mortgaging their rights. If the
seller or assignor shares a roof with another person,
whether in the context of marriage or as live-in
partners, the buyer or assignee may need to get the
consent of the seller's spouse or live-in partner,
under pains of invalidating the deal, due to its
nullity under Arts. 89, 96, 124, and 147, FC.
In Hapitan v. Spouses Lagradilla, GR No. 170004,
Jan. 13, 2016, the wife issued bouncing checks. To
hide their assets, the husband sold their house &
lot, using an SPA he issued to his sister. But prior to
consummation, his wife notified the buyers that she
opposed the sale and her sister-in-law had no
authority, on her behalf, to sell. Later, the wife's
creditor sued and the court ruled against the
spouses, declaring the sale of the house & lot void,
as it directed them to pay their debts. The husband
entered into compromise with the wife's creditors
without the wife's consent; in this settlement both
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husband and the wife's creditor/s waived their
cause/s of action to pray for the nullity of the sale.
The SC, then, ruled the husband's
disposition/waiver as void, since Art. 124, FC,
"requires that any disposition or encumbrance of
conjugal property must have the written consent of
the other spouse; otherwise, such disposition is
void." Art. 89, FC, furthermore, states that, "no
waiver of rights, interests, shares, and effects of the
conjugal partnership of gains during the marriage
can be made except in case of judicial separation of
property."
4. Marital and Filial Privilege
The status that comes from marriage and family ties
also matter, because of these rules on
evidence: a. the Marital Privilege Rule: "During their
marriage, neither the husband nor the wife may
testify for or against the other without the consent
of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter's
direct descendants or ascendants." (Sec. 22, Rule
130, Rules of Court.) and b. the Parental or Filial
Privilege Rule: "No person may be compelled to
testify against his parents, other direct ascendants,
children or other direct descendants." (Sec. 25, Rule
130, Rules of Court.)
5. Fighting Within the Family.
"No suit between members of the same family shall
prosper unless it should appear from the verified
complaint or petition that earnest efforts toward a
compromise have been made, but that the same
have failed. If it is shown that no such efforts were
in fact made, the same case must be
dismissed." Art. 151, FC, states. Failure to fulfil this
condition will give ground to a Motion to Dismiss
under Rule 16, Sec. 1(j), RoC. Under Art. 150, FC, on
this note, "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."

a. To fall under this requirement, the suit must be
among family members. In Moreno v. Kahn, G.R No.
217744, July 30, 2018, hence, the SC held that,
"Article 151 of the Family Code must be construed
strictly, it being an exception to the general rule.
Hence, any person having a collateral familial
relation with the plaintiff other than what is
enumerated in Article 150 of the Family Code is
considered a stranger who, if included in a suit
between and among family members, would render
unnecessary the earnest efforts requirement under
Article 151." A suit filed by one against her sister
and her sister's husband, hence, need not involve
earnest efforts to compromise, since one's the
brother-in-law falls outside those included in one's
family relations under the Law. (Hontiveros v.
RTC, G.R. No. 125465, June 29, 1999.)
b. Art. 151, FC, also does not apply to cases not
subject to compromise under the law. "No
compromise upon the following questions shall be
valid: 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," as Art.
2035, NCC, states. Hence, in Versoza v.
Versoza, G.R. No. L-25609, Nov. 27, 1968, which
involved the issue of future support, as a main
cause of action, the Court refused to apply the duty
to initiate earnest efforts to compromise, since
parties are not expected to compromise on the
issue of whether future support should be given, as
a matter of duty, or not.
6. Criminal Liability and Family Ties.
a. "No criminal, but only civil liability shall result
from the commission of the crime of theft,
swindling, or malicious mischief committed or
caused mutually by the following persons: 1.
spouses, ascendants, and descendants, or relatives
by affinity in the same line; 2. the widowed spouse
with respect to the property which belonged to the
deceased spouse before the same shall have passed
into the possession of another; and 3. brothers and
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sisters and brothers-in-law and sisters-in-law, if
living together. The exemption established by this
article shall not be applicable to strangers
participating in the commission of the crime." (Art.
332, RPC) Reyes, p. 932, on this note, opines that
that rationale behind Art. 332, RPC, is, "the
presumed co-ownership of the property between
the offender and the offended party.
Citing Art. 144, NCC, and People v. Constantino,
Reyes, hence, further opines that Art. 332, RPC,
applies to common-law spouses. The Court, he
wrote, "should not draw hair-splitting distinction
between a couple whose cohabitation is sanctioned
by a sacrament or legal tie and another who are
husband and wife de facto. In actual life, no
difference in relationship exists. Even our Civil Code
concedes to a man and a woman who live together
as husband and wife without the benefit of
ceremony, the right of co-ownership to the
'property acquired by either or both of them
through their work or industry or their wages and
salaries." Reyes, p. 932, adds, moreover, that the,
"stepfather and stepmother are included as
ascendants by affinity, citing People v.
Alvarez and People v. Adame. It may be argued,
indeed, that parties who share a roof deserve the
benefit of the doubt of the right to jus utendi or
abutendi over the properties in the same home
shared.
If one's spouse dies, one's marriage terminates. But
will the ties by affinity also end, like will the father
of one's wife cease to be one's father in law, after
the death of one's wife? In the Intestate Estate of
Gonzales v. People, G.R. No. 181409, Feb. 11, 2010,
the SC held that, "for purposes of Art. 332(1) of the
Revised Penal Code, the Court holds that the
relationship by affinity created between the
surviving spouse and the blood relatives of the
deceased spouse survives the death of either party
to the marriage which created the affinity. (The
same principle applies to the justifying
circumstances of the defense of one's relatives
under Art. 11(2) of the Revised Penal Code, the
mitigating circumstance of immediate vindication of

grave offense committed against one's relatives
under Art. 13(5) of the same Code and the
absolutory cause of relationship in favour of
accessories under Art. 20 also of the same Code."
b. "The penalties prescribed for accessories shall
not be imposed upon those who are such with
respect to their spouses, ascendants, descendants,
legitimate, natural and adopted brothers and
sisters, or relatives by affinity within the same
degrees, with the single exception of accessories
falling with the provisions of paragraph 1 of the
next preceding article." (Art. 20, RPC)
c. "Any legally married person who, having
surprised his spouse in the act of committing sexual
intercourse with another person, shall kill any of
them or both of them in the act or immediately
thereafter, or shall inflict upon them any serious
physical injury, shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any
other kind, he shall be exempt from punishment.
These rules shall be applicable, under the same
circumstances to parents with respect to their
daughters under 18 years of age, and their
seducers. while the daughters are living with their
parents." (Art. 247, RPC)
7. Husband and Wife Must Adopt Jointly
"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." (R.A. No. 8552 or the Domestic
Adoption Act of 1998.)
Monina Lim made it appear (by simulating a birth
certificate) that during her marriage with her first
husband, she gave birth to Michelle P. Lim. Later,
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her first husband died and she remarried to a US
Citizen. When Michelle turned 25, Monina decided
to come clean and during the amnesty period for
simulated birth certificates, she filed a Petition for
Adoption. Her 2nd husband, however, did not join
her in the Petition. As a foreigner, the Law
apparently required more stringent requirements
like maintaining residency in the Philippines for at
least 3 continuous years. Monina, moreover, argued
that at 25, Michelle was an adult and joint adoption
no longer made sense. The lower court dismissed
her Petition and the SC affirmed the dismissal, as it
held that, "even if emancipation terminates
parental authority, the adoptee is still considered a
legitimate child of the adopter with all the rights of
a legitimate child such as: (1) to bear the surname
of the father and the mother; (2) to receive support
from their parents; and (3) to be entitled to the
legitime and other successional rights. Conversely,
the adoptive parents shall, with respect to the
adopted child, enjoy all the benefits to which
biological parents are entitled, such as support and
successional rights." (In Re: Petition for Adoption of
Michelle P. Lim. G.R. Nos. 168992-93, May 21,
2009.)
8. The Matter of Marriage, Cohabitation, and Family
Ties.
Persons belong to marriages or families, whether
big or small. To study deals, it helps to take a
second look at the parties in them, to see how their
marital & family ties or statuses stand to invalidate
or affect the deals at hand. This chapter simply
wishes to further learn from the spectrum of legal
personality. Persons who share a roof, due to
cohabitation, marriage, or family ties, tend to share
rights, secrets, and properties. How is a person's
marital and family status a source of rights and
obligations? How may one's cohabitation, marriage
or family ties lead to exemptions and
disqualifications? In the next chapter. we will
discuss the link between alienage and one's
capacity to act.
6th Letter:

One sentence ties the beads together, to help us
grasp the chief components of a good and valid
marriage: "Marriage is a special contract." Let us
count the ways. It has, first of all, essential and
formal requisites, in which, if any of them is absent,
marriage becomes void. If an essential requisite is
defective, moreover, the marriage becomes
voidable. To illustrate, 1. only 2 adults, male and
female, and not tied to subsisting marriage/s may
get married; in other contracts, the rules for legal
capacity are less strict; Then, 2. consent in
marriage must be freely given, in person, and in the
context of a public celebration, unlike in ordinary
contracts, which require no ceremony for their
execution; 3. The solemnizing officer must also be
among those authorized by law to solemnize
marriages, which is a non-issue for other
contracts; 4. The parties, to get married, must first
obtain a marriage license, except under Arts. 27-
34, FC; and 5. For marriage to exist, it does not
suffice for the parties to simply shake hands or sign
the deal, they have to publicly celebrate their vows
in a marriage ceremony that meets the Family
Code's minimum requirements.
More than that, 6. the parties may not freely
stipulate its terms and conditions; the law defines
its nature, consequences, and incidents, except
property relations, which the spouses may fix within
legal limits; 7. Marriage is a contract of permanent
union, not subject to rescission by mutual consent
or judicial determination; 8. In case of breach of
contract, the aggrieved spouse may not sue the
guilty spouse for specific, substitute, or equivalent
performance or for damages, but only for legal
separation; 9. The Family Code honours marriages
celebrated outside the Philippines, if it follows the
solemnities set by the country wherein performed,
except when the marriage violates the fundamental
boundaries set by Arts. 35(1), (4), (5),
and (6), 36, 37, & 38, FC; and 10. One's subsisting
marriage precludes the celebration of a subsequent
marriage with someone else, except upon a final
judgment of nullity or annulment or the issuance of
a decree of presumptive death of the spouse of the
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prior marriage. Let us then discuss why marriage is
a special contract, as we explore the myriad faces of
a valid marriage.
Falcis v. Civil Registrar General.
No legal scholar has written more exhaustively than
Justice Marvic Leonen, writing for the Supreme
Court on the topic of the bundle of rights,
privileges, & legal implications that come with
Marriage that makes it a special contract. In the
2019 case entitled, Falcis III v. Civil Registrar
General, G.R. No. 217910, Sept. 3, 2019, Justice
Leonen wrote that, "More than being the
'foundation of the family' the state of marriage
grants numerous specific rights and privileges that
affect most, if not all, aspects of marital and family
relationships." To let the Highest Court speak for
itself, let us then quote word-for-word a portion of
its 2019 Decision.
1. Marriage and Its Bundle of Rights and Duties, In
General
"Included in the bundle of rights granted by the
Family Code to married spouses is the right of
support, shown in the obligation of each spouse to
"render mutual help and support" and to provide
support to the family. For instance, spouses are
mandated to contribute to the expenses for the
management of the household. Likewise, spouses
are jointly responsible for the "sustenance,
dwelling, clothing, medical attendance, education[,]
and transportation" of the family. The entitlement
to this right continues even during proceedings for
legal separation, annulment of marriage, or
declaration of nullity of marriage."
"As these obligations are enforceable, they
concomitantly grant either spouse relief when the
other spouse reneges on his or her duty or commits
acts that "tend to bring danger, dishonor or injury
to the other or to the family[.]" Either spouse may
likewise object to the profession, occupation,
business or activity of the other spouse on "valid,
serious, and moral grounds."

"Although the Family Code does not grant the right
to compel spouses to cohabit with each other, it
maintains that spouses are duty bound to "live
together" and to "fix the family domicile." This is
consistent with the policy of promoting solidarity
within the family."
"Furthermore, the Family Code allows spouses to
constitute a family home, which shall be exempt
from execution, forced sale, or attachment. The
family home may not be sold, donated, assigned, or
otherwise encumbered by either spouse without
the other's written consent. Though an unmarried
head of a family may constitute a family home, only
those persons enumerated in Article 154 of the
Family Code may be considered beneficiaries."
"The Civil Code also offers an expansive coverage on
the rights and privileges of spouses should either of
them die. The law grants surviving legitimate
spouses the right and duty to make funeral
arrangements for the deceased spouse.
Accordingly, "no human remains shall be retained,
interred, disposed of[,] or exhumed" without proper
consent from the legitimate spouse, who shall have
a better right than the other persons enumerated in
Article 199 of the Family Code."
"In relation to this, Section 4 of Republic Act No.
7170 permits the surviving spouse to donate all or
any part of the body of the deceased legitimate
spouse, as long as there is no actual notice of
contrary intentions by the deceased, or of
opposition by a member of his or her immediate
family."
"The Civil Code also covers the successional rights
granted to spouses. This includes the division and
partition of the deceased spouse's estate among
the surviving spouse and other surviving
descendants, ascendants, and collateral relatives."
"A surviving spouse succeeds concurrently with the
deceased spouse's legitimate and illegitimate
descendants and ascendants. As compulsory heirs,
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they are entitled to receive a specific and definite
portion of the deceased's estate."
In cases where the deceased spouse left a will, the
surviving spouse is entitled to one-half of the
testator's entire estate. If the spouse survives with
legitimate or illegitimate children or descendants
and/or acknowledged natural children, he or she
receives a share equivalent to the share of a
legitimate child."
"If either spouse dies without any will and the
surviving spouse is the sole heir of the deceased,
the spouse is entitled to the entire estate "without
prejudice to the rights of brothers and sisters,
nephews[,] and nieces" of the deceased. If the
spouse survives with the legitimate or illegitimate
children or descendants of the deceased then the
spouse is entitled to receive the same amount of
share that a legitimate child is entitled to receive."
"The Civil Code also covers situations where the
spouses were married in articulo mortis, and one (1)
of them died three (3) months after such marriage.
In these cases, the surviving spouse is entitled to
one-third of the deceased's estate. However, where
the spouses were living together as husband and
wife five (5) years before a spouse dies, the
surviving spouse is entitled to half of the estate."
"Aside from the rights and privileges between
married spouses, the Civil Code also provides for
the relationships between the spouses, as parents,
and their children. Consistent with the
constitutional provision on the "right and duty of
parents in rearing the youth," the Family Code
states that spouses shall exercise joint parental
authority, legal guardianship, and custody over
common children."
"Parental authority encompasses a bundle of rights
for unemancipated children. This includes the right
to represent the common children in matters
affecting their interests and to impose discipline on
them as may be necessary, among others."

"The Family Code likewise provides that spouses
shall exercise legal guardianship over the property
of the minor child by operation of law. This entitles
the spouses to a right over the fruits of the child's
property, which shall be used primarily for child
support and secondarily for the family's collective
needs."
"Meanwhile, Republic Act No. 8552 covers the
rights and privileges attached to adoption. One (1)
of the significant rights granted by this law is the
legitimate spouses' right to jointly adopt a child.
Spouses who jointly adopt shall exercise joint
parental authority and custody over the adoptee."
"The adoptees shall, for all intents and purposes, be
considered as legitimate children of the adoptive
parents. As legitimate children, they may bear the
surname of their adoptive parents. They are
likewise granted the right to receive support, the
legitime, and other successional rights from both of
the adoptive parents."
"Moreover, inter-country adoption permits Filipino
citizens permanently residing abroad to jointly file
for adoption with their spouse. Though Section 9 of
Republic Act No. 8043 restricts adopters to persons
who are "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[,]" the
same provision allows an exception in favor of an
adopter who is the legitimate spouse of the
adoptee's natural parent."
2. Marriage and Its Implications To Criminal Law
"Marriage has consequences in criminal law as
well."
"For instance, anyone who, after having suddenly
come upon his or her legitimate spouse in the act of
committing sex with another, kills any or both is
only liable to suffer destierro. Should the offending
spouse inflict physical injuries upon his or her
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spouse or the other person, he or she shall be
exempt from criminal liability."
"Marital relations also influence the imposable
penalty for crimes. Any person's criminal act in
defense of his or her spouse is a justifying
circumstance, while immediate vindication of a
grave offense to one's spouse is a mitigating
circumstance. That the victim is the spouse of the
offender is considered an alternative circumstance,
which may be considered as aggravating or
mitigating depending on "the nature and effects of
the crime and the other conditions attending its
commission." Commission of the crime in full view
of the spouse of the victim-spouse is also an
aggravating circumstance in the crime of rape. The
Anti-Trafficking in Persons Act of 2003, as amended,
also qualifies trafficking if the offender is a spouse
of the trafficked person. Further, a spouse who is an
accessory to a crime is generally exempt from
criminal liability."
"In the crimes of seduction, abduction, acts of
lasciviousness, and rape, the marriage between the
offending and the offended party extinguishes the
criminal action and remits the penalty already
imposed upon the offender. In marital rape, "the
subsequent forgiveness" of the offended wife
extinguishes the criminal action or penalty against
the offending husband. Likewise, adultery and
concubinage cannot be prosecuted when the
offended spouse has pardoned the offenders or has
consented to the offense."
"Bigamy is committed by a person who has been
previously married and who contracts a subsequent
marriage before the first marriage has been legally
dissolved or before the absent spouse has been
declared presumptively dead by a court judgement.
Penalizing the act of contracting a subsequent
marriage where one is still legally married to
another person safeguards the institution of
marriage, protecting the rights and status off the
legitimate spouse."
3. Marriage and Its Implications To Tax Law

"The State's interest in marriage and married
persons extends to taxation."
"Under the National Internal Revenue Code, as
amended by Republic Act No. 10963, the income
taxes of married individuals are generally computed
separately based on their respective total taxable
income. However, for any income that "cannot be
definitely attributed to or identified as income
exclusively earned or realized by either of the
spouses," Section 24 of the National Internal
Revenue Code, as amended, provides that the
amount shall be equally divided between the
spouses for the computation of their respective
taxable incomes."
"Further, in the computation of an individual's
taxable income, the National Internal Revenue
Code, as amended, excludes from the computation
of the gross income any amount received by an heir
of an official or employee from the employer "as a
consequence of separation of such official or
employee from the service of the employer because
of death sickness or other physical disability or for
any cause beyond the control of the said official or
employee." Likewise, benefits received by a spouse
from the Social Security System, in accordance with
Republic Act No. 8282, as well as benefits received
from the Government Service Insurance System, in
accordance with Republic Act No. 8291, are
excluded from the computation of an individual's
gross income."
"On the filing of income tax returns, the National
Internal Revenue Code, as amended, provides that
married individuals, regardless of citizenship or
residence, "who do not derive income purely from
compensation," shall file an income tax return that
includes the income of both spouses, except "where
it is impracticable for the spouses to file one
return," in which case each spouse may file
separate income tax returns."
"As for estate tax, the National Internal Revenue
Code, as amended, provides that "the capital of the
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surviving spouse of a decedent" is not deemed part
of the gross estate. Consequently, "the net share of
the surviving spouse in the conjugal partnership
property" is "deducted from the net estate of the
decedent."
"Likewise, when the decedent is a Filipino citizen or
a resident of the Philippines, the National Internal
Revenue Code, as amended, allows a deduction of
the "current fair market value of the decedent's
family home" up to P10 million from the amount of
the gross estate. Further, "any amount received by
the heirs from the decedent's employee as a
consequence of the death of the decedent-
employee in accordance with Republic Act No.
4917" is also deducted from the amount of the
gross estate."
4. Marriage and Its Implications to Labor Law
"Even the Labor Code and other labor laws are
influenced by the institution of marriage."
"The narrow definition of "dependents" under the
Labor Code includes "the legitimate spouse living
with the employee." As a consequence, the
legitimate spouse is entitled to compensation from
the state insurance fund in case of the disability or
death of the employee."
"Further, under the Social Security Act of 1997 and
the Government Service Insurance System Act of
1997, the legal spouse of the member is included in
the list of his or her dependents."
"Similarly, the Overseas Workers Welfare
Administration Act includes the legal spouse in the
list of dependents of overseas Filipino workers.
Thus, certain benefits afforded to overseas Filipino
workers are extended to the legal spouse."
"The Labor Code confines an employee's "primary
beneficiaries" to his or her dependent spouse, until
he or she remarries, and his or her dependent
children. Primary beneficiaries are entitled to
receive full death benefits under the Labor Code."

"In addition, under the Social Security Act of 1997
and the Government Service Insurance System Act
of 1997, the dependent spouse is included in the list
of primary beneficiaries of the employee, until he or
she remarries."
"The Social Security Act of 1997 entitles the
"primary beneficiaries as of the date of retirement"
to receive the retirement benefits of the retired
member upon his or her death. They are also
entitled to receive death benefits "[u]pon the death
of a member who has paid at least thirty-six (36)
monthly contributions prior to the semester of
death." The primary beneficiaries as of the disability
are also entitled to receive the monthly pension of a
permanent total disability pensioner upon the
pensioner's death."
"On the other hand, the Government Service
Insurance System Act of 1997 entitles the
dependent spouse, as a primary beneficiary, to
survivorship pension upon the death of a member.
This entitlement is likewise afforded to qualified
beneficiaries "[u]pon the death of an old-age
pensioner or a member receiving the monthly
income benefit for permanent disability." Further,
funeral benefits are provided under the
Government Service Insurance System Act of 1997."
"Moreover, under the 2010 Philippine Overseas
Employment Administration Standard Employment
Contract, a seafarer's beneficiaries are entitled to a
list of compensation and benefits in the event of
the seafarer's work-related death."
"Meanwhile, under Republic Act No. 7192, or the
Women in Development and Nation Building Act,
"[m]arried persons who devote full time to
managing the household and family affairs" shall be
entitled to voluntary coverage under Pag-IBIG, the
Government Service Insurance System, and Social
Security System, which is equivalent to half of "the
salary and compensation of the working spouse."
These contributions "shall be deducted from the
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salary of the working spouse."
5. Marriage and Its Implications To Remedial Law
"Aside from influencing provisions in substantive
law, the status of marriage is also recognized in the
Rules of Court."
"For instance, spouses may not be compelled to
testify for or against each other during their
marriage. Likewise, during or even after their
marriage, spouses, by reason of privileged
communication, "cannot be examined without the
consent of the other as to any communication
received in confidence by one from the other
during the marriage [.]"
"Moreover, the law accords to family courts
exclusive jurisdiction over petitions for
guardianship, custody of children, adoption of
children, and support, as well as complaints for
annulment, declaration of nullity of marriage, and
property relations."
"A disputable presumption under our Rules on
Evidence is that a man and a woman who deport
themselves as spouses have entered into marriage.
It is also presumed that a property that is acquired
by a man and a woman, who have the capacity to
marry and live exclusively with each other as
spouses without being actually married, was
obtained by their joint efforts, work, or industry. If
such man and woman have acquired property
through their actual joint contribution, their
contributions shall also be presumed as equal."
6. Marriage and Its Implications To Many Special
Laws
"Marriage likewise affects the application of other
special laws. Several statutes grant a range of rights
in favor of legitimate spouses. Among these is the
National Health Insurance Act of 2013, which gives
a legitimate spouse, as a "legal dependent," the
right to receive health care benefits. This right
includes inpatient hospital care and payment for

the services of healthcare professionals, and
diagnostic and other medical services, among
others."
"Furthermore, the Insurance Code, as amended by
Republic Act No. 10607, acknowledges that every
person has an insurable interest in the life of his or
her legitimate spouse. This allows a married person
to enter into an insurance policy upon the life of his
or her spouse as owner and/or beneficiary."
"As to survivorship benefits, legitimate spouses of
retired chairpersons & commissioners of
constitutional commissions — the Commission on
Audit, Civil Service Commission, Commission on
Elections — as well as of the Ombudsman are
entitled under Republic Act No. 10084 to receive all
the retirement benefits that the deceased retiree
was receiving at the time of his or her demise.
Likewise, surviving legitimate spouses of deceased
members of the judiciary, who were retired or
eligible to retire at the time of death, are entitled to
all the retirement benefits of the deceased judge or
justice under Republic Act No. 910, as amended. In
both cases, the surviving legitimate spouse shall
continue to receive such benefits until he or she
remarries."
"Similarly, the surviving legitimate spouses of police
or military personnel, including firefighters, who
died in the performance of duty or by reason of
their position, shall be given special financial
assistance under Republic Act No. 6963. They are
also entitled to receive whatever compensation,
pension, or any form of grant, to which the
deceased person or his or her family was entitled."
"In addition, Republic Act No. 9049 entitles
surviving legitimate spouses of deceased awardees
of medals of valor to a lifetime monthly gratuity pay
of P20,000.00, which shall accrue in equal shares
and with the right of accretion, until he or she
remarries and the common children reach the age
of majority. This is separate from the pension, to
which the surviving legitimate spouse is also
entitled."
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"Under Republic Act No. 10699, the "primary
beneficiaries" of a deceased national athlete or
coach, which include the surviving legitimate
spouse, shall be entitled to a lump sum amount of
P30,000.00 for funeral expenses."
"Republic Act No. 6173 entitles spouses who are
both public officials and employees the right to
jointly file their statement of assets, liabilities, and
net worth and disclosure of business interests and
financial connections."
"Meanwhile, legitimate spouses of persons
arrested, detained, or under custodial investigation
for lawful reasons are granted visitation rights
under Republic Act No. 7438.
"Republic Act No. 9505 or the Personal Equity and
Retirement Act, prescribes the aggregate maximum
contribution of P100,000.00 per contributor. The
same law includes a provision in favor of married
contributors, such that each spouse may make a
maximum contribution of P100,000.00 or its
equivalent in any convertible foreign currency per
year."
:Republic Act No. 8239, otherwise known as the
Philippine Passport Act, also grants diplomatic
passports to legitimate spouses of "persons imbued
with diplomatic status or are on diplomatic
mission[.]" They include the president, vice
president, members of Congress and the judiciary,
cabinet secretaries, and ambassadors, among
others. Moreover, an official passport shall be
issued in favor of the legitimate spouses of all
government officials who are "on official trip abroad
but who are not on a diplomatic mission or
delegates to international or regional conferences
or have not been accorded diplomatic status" when
accompanying them."
"More recently, in Republic Act No. 11035,
legitimate spouses of science, technology, or
innovation experts engaged in a long-term program
have been granted certain privileges, such as

roundtrip airfares from a foreign country to the
Philippines and other special relocation benefits."
(Falcis III v. Civil Registrar General, G.R. No. 217910,
Sept. 3, 2019)
MindMap to Part 2, Book 1 of the Way of Civil Law
In the process of studying why marriage is a special
contract, Part 2 of Book 1 of The Way of Civil
Law will discuss not only the components of a good
and valid marriage, but also its myriad faces, and its
legal implications. Chapter 1 discusses
how Marriage is a Special Contract; it also means to
introduce us to the rest of the chapters of Part 2 of
Book 1. Chapter 2 will study the Essential Requisites
of Marriage, namely, Legal Capacity and Marital
Consent. Chapter 3 will study the Formal Requisites
of Marriage, i.e., Authority of Solemnizing Officer,
Marriage, License, and Marriage Ceremony. Chapter
4 will study how Marriage is a Contract of
Permanent Union and how, in limited cases, it is
not. Chapter 5 will study Mixed Marriages, to
include notes on divorce. Chapter 6 will study In
Breach of Marriage, its grounds and its legal
implications. Chapter 7 will study Marriages after
First Marriages, to study the special rules and
precautions to consider when parties transition into
their 2nd or 3rd marriages for whatever reason.
Part 2 of Book 1 will then end with Chapter 8, its
Summary and Conclusion, to discuss Marriage and
Cohabitation.
th
7 Letter:
"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 and with the limits," set by the
Family Code. (Art. 1, FC) "No marriage shall be valid,
unless these essential requisites are
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
24
present: (1) Legal capacity of the contracting parties
who must be a male & a female; and (2) Consent
freely given in the presence of the solemnizing
officer." (Art. 2, FC)
1. Legal Capacity.
Unlike in ordinary contracts, marriage has to be
between, (a) man & woman, (b) 2 adults; (c) parties
not under the impediments under Arts. 37 & 38, FC.
(Art. 5, FC.); (d) parties not bound by a subsisting
marriage (Art. 40, FC); & (e) parties not performing
deeds prohibited under Arts. 35(1), (4), (5),
& (6), 36, 37, and 38, FC. Absent this legal capacity,
the marriage is void. In other words, (a) the parties
to a marriage must not be of the same
sex; (b) neither of them must be a minor; and the
marriage must not be (c) bigamous or
polygamous; (d) incestuous, (e) against public
policy; (f) between parties suffering
from psychological incapacity; and (g) between
parties with a prior marriage, even if void,
but without a final decree of nullity or
annulment or (h) even with said final decree of
nullity or annulment, the parties must not have
failed to register said final decree with the local civil
registrar, along with the distribution of the spouses'
properties, & the delivery of the presumptive
legitimes to their children, in cases where Art.
50, FC applies. If legal capacity is absent, then the
marriage is void.
In Part 3, Book on Broken Marriages, we will delve
deeper into ideas and examples of marriages void
for lack of legal capacity. For now, we need to clear
it in our minds that (a) marriage, to be valid, must
fulfil the essential requisite of legal
capacity; (b) unlike consent, legal capacity is either
present or absent and the law does not give an
example, where legal capacity is present, but only
defective, and where marriage, as such, is only
voidable and not void ab initio; and (c) legal
capacity, since it inheres in a legal person, is not
subject to change, neither by contract, nor
compromise, nor manipulation. A person, hence, is
either a man or a woman, a minor or an adult, and

not someone in between. This will then determine
their legal capacity to marry their chosen partners
or spouses. For this reason, among others, marriage
is a special contract.
a. Immutability of Gender
Romel, in one case, claimed to be male transsexual,
who is, "anatomically male but feels, thinks & acts
as a female," a man trapped in a woman's body. He
underwent hormone treatment, breast
augmentation, & sex reassignment surgery. Then he
went to court & prayed to let him change his name
to Mely, on the basis of sex reassignment. He also
presented expert testimony to show that he did
have sex reassignment surgery. The trial court
granted his prayers, since no one stood to get hurt
& no one opposed anyway. The court, hence,
directed the Civil Registrar to change Romel's name
to Mely and to correct his gender from male to
female in its official records.
The SC held that, R1 a person may not change his
name on the basis of sex reassignment since Romel
failed to prove a (a) reasonable cause or compelling
reason to justify the change, or (b) that he stood to
be prejudiced by the use of his true and official
name, or (c) that the change will help avoid
confusion, then the trial court had no basis to order
the change of his name. R2 The SC also denied the
correction of Romel's gender from male to female
since, "To correct simply means 'to make or set
aright; to remove the faults or error from'" Since
Romel's birth certificate contained no error, no
correction was needed. Gender, lastly, is not
determined simply by genitalia reassigned since it
is, the SC held, "the sum of peculiarities of structure
& function that distinguish a male from a female...
Female is 'the sex that produces ova or bears
young' and male is 'the sex that has organs to
produce spermatozoa for fertilizing ova.'" For this
reason, the SC concluded that, "the determination
of a person's sex made at the time of his or her
birth, if not attended by error, is immutable."
(Silverio v. Republic, G.R. No. 174689, Oct. 19,
2007.)
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b. The InterSex Exception
Jennifer, in another case, asked the court to change
her name to Jeff & to correct an entry in her birth
certificate from female to male. Born as female in
1981, she started to develop male characteristics
while growing up. She suffered from clitoral
hypertrophy in her early years &, at 6, an
ultrasound revealed she had small ovaries. At 13,
furthermore, her ovarian structures minimized; she
showed no signs of breast or menstrual
development; and she claimed that for all intents
and purposes, she had become a male person. The
doctors diagnosed her to have Congenital Adrenal
Hyperplasia or CAH. For this reason, she filed a
Petition to change her name from Jennifer to Jeff
and her gender from female to male.
The SC, first of all, defined CAH as one of many
conditions to involve intersex anatomy. It also
defined "intersexuality" as, "the state of a living
thing of a gonochoristic species whose sex
chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither
exclusively male nor female. An organism with
intersex may have biological characteristics of both
male and female sexes." The SC , hence, concluded
that Jennifer had CAH, which caused, "the early or
'inappropriate' appearance of male characteristics,"
where she produced too much androgen, a male
hormone. Furthermore the SC held that, "A
newborn who has XX chromosomes coupled with
CAH usually has a (1) swollen clitoris with the
urethral opening at the base, an ambiguous
genitalia often appearing more male than female;
(2) normal internal structures of the female
reproductive tract such as the ovaries, uterus and
fallopian tubes; as the child grows older, some
features start to appear male, such as deepening of
the voice, facial hair, and failure to menstruate at
puberty. About 1 in 10,000 to 18,000 children are
born with CAH."
For this reason, the SC held that, "Ultimately, we
are of the view that where the person is biologically

or naturally intersex the determining factor in his
gender classification would be what the individual,
...having reached the age of majority, with good
reason thinks of his/her sex." In this case, Jennifer
thought of himself as male, considering that his
body produced high levels of male hormones
(androgen). The SC further held that, "sexual
development in cases of intersex persons makes the
gender classification at birth inconclusive." Hence,
the SC held that Jennifer, "is the one who has to live
with his intersex anatomy. ... Thus, to him should
belong the primordial choice of what courses of
action to take along the path of his sexual
development and maturation." Hence, the SC
affirmed, "as valid and justified the respondent's
position and his personal judgment of being a male.
Along this line, the SC let Jennifer also change her
name to Jeff, to imply a change of a feminine name
to a masculine name, and to correct her gender
from "female" to "male." (Republic v.
Cagandahan, G.R. No. 166676, Sept. 12, 2008)
2. Marital Consent.
"No marriage shall be valid," if the parties did not
furnish, "consent, freely given in the presence of
the solemnizing officer." (Art. 2, FC) Marital consent
means, to appear before the solemnizing officer
and declare in the presence of not less than 2
witnesses that they take each other as husband and
wife. (Art. 6, FC) Consent is the 2nd essential
requisite to a valid marriage. If consent is absent,
marriage is void ab inito; if consent is defective,
marriage is voidable. (Art. 4, FC) In Ch. 4, a Contract
of Permanent Union we will study examples of
defective consent, which makes marriage voidable
(Art. 45, FC). For this section, we will study
examples of consent, when absent, which makes
marriage void.
a. Mistake as to Identity
Marriages "contracted through mistake of one
contracting party as to the identity of the other,"
under Art. 35(5), FC, is void ab initio. Ordinarily, "a
contract where consent is given through mistake,"
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26
is only voidable, not void. (Art. 1330, NCC) "In order
that mistake may invalidate consent, " moreover, "it
should refer to the substance of the thing which is
the object of the contract, or to those conditions
which have principally moved one or both parties to
enter into the contract." But mistake "as to the
identity or qualifications of one of the parties will
vitiate consent only when such identity or
qualifications have been the principal cause of the
contract." (Art. 1331, NCC)
Art. 35(5), FC, hence, gives a rare statutory example
where mistake causes marriage, as a special
contract, to become void. Tolentino, Vol. 1, p. 273,
explains Art. 35(5), FC, best: "This refers to mistake
as to the person himself, involving a substitution of
another person for the party who is desired in
marriage, without the knowledge of the other
contracting party. Thus, if X and Y are twins, and X is
to be married to A, but Y substitutes X during the
celebration of the marriage, unknown to A, there
would be a mistake as to identity. This is illustrated
by the Bibilical case of Jacob, who got married to Lia
instead of to Racquel. This deception gives rise to a
mistake as to the physical identity of one of the
parties."
"But when a person merely represents himself to be
somebody else, assuming the name of the latter,
and the other contracting party marries him in the
belief that he is the person whose name he has
assumed," Tolentino, Vol. 1, p. 274, qualifies, "there
is no mistake as to identity, because the same
individual, the same person, which whom marriage
was intended, is the one who actually gets married;
in this case, there is only mistake as to name and,
perhaps, personal qualifications, and therefore,
there is no ground for annulment." Art. 46, FC, to
add, states, "No other misrepresentation or deceit
as to character, health, rank, fortune, or chastity
shall constitute such fraud as will give grounds for
the annulment of marriage."
b. Marriage by Impersonation
Linda, in one case, agreed to marry her boyfriend of

5 years. To get a marriage license, she applied for a
Certificate of No Marriage from the National
Statistics Office "NSO". To her surprise, the NSO
informed her that, on record, she is married to a
Korean national, a total stranger to her. It turned
out another stranger used her name and personal
details to impersonate her and marry a certain Ye
Son Sune at an MTCC in Cebu City. Linda, hence, got
the testimony of an MTCC clerk present during the
claimed wedding that another woman, not Linda,
stood as wife in front of the Judge. Linda also let an
expert witness prove that the purported signature
on her marriage certificate was forged and not hers.
Lastly, she presented witnesses that on the day of
the claimed wedding, she could not have attended
it, since she was in Manila, not in Cebu. To extricate
herself from this bind, what case, hence, must Linda
file? May she freely marry her boyfriend if she
has yet no final decree of nullity of her purported
marriage with Ye Son Sune? Will she be liable for
bigamy? Is consent, as an essential
requisite, present, defective, or absent in this case?
We need to draw a line between 1. the actual
marriage between the unnamed lady & Ye Son
Sune and 2. the purported
marriage between Linda & Ye Son Sune. The MTCC
Judge, no doubt, performed an actual marriage
between the mystery lady & Ye Son Sune, albeit the
lady misrepresented her name to be that of Linda's.
The wife-with-no-name, in fact, concealed her
marriage with Ye Son Sune by simulating her
marriage as that of Linda's & Ye Son Sune's.
Tolentino, on this issue, writes that "when a person
merely represents [herself] to be somebody else,
assuming the name of the latter, & the other
contracting party marries [her] in the belief that
[she] is the person whose name [she] has assumed,
there is no mistake as to identity, because the same
individual, the same person, which whom marriage
was intended, is the one who actually gets married;
in this case, there is only mistake as to name and,
perhaps, personal qualifications." Ye Son Sune's
marriage with the unnamed lady, hence, binds
them, even if the lady used Linda's name. If the lady
wants to remarry, she must get a final decree of
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27
nullity of her first marriage.
Linda's purported marriage to Ye Son Sune, on the
other hand, is not only void, it's also inexistent. It
never happened, an example of marital consent,
when absent. Linda neither attended the purported
wedding, nor did she did promise to give him her
life as his wife. Linda, hence, did not bother to file a
case to declare the nullity of her purported wedding
to Ye Son Sune. She filed a Petition for Cancellation
of Entries in the Marriage Contract, as she
impleaded Cebu City's Local Civil Registrar and her
alleged husband. The trial court, in its Decision,
directed the civil registrar to cancel all the entries in
the WIFE portion of the alleged marriage contract
between Linda and Ye Son Sune. The State raised
the case to the SC, arguing that in directing the civil
registrar to cancel entries in Linda's
claimed Marriage Contract, the trial court, in effect,
declared her claimed marriage void ab initio in a
petition disguised as a Rule 108 proceeding.
The SC held that, "While we maintain that Rule 108
cannot be availed of to determine the validity of
marriage, we cannot nullify the proceedings before
the trial court where all the parties had been given
the opportunity to contest the allegations of
respondent; the procedures were followed, and all
the evidence of the parties had already been
admitted and examined. Respondent indeed
sought, not the nullification of marriage as there
was no marriage to speak of, but the correction of
the record of such marriage to reflect the truth as
set forth by the evidence. Otherwise stated, in
allowing the correction of the subject certificate of
marriage by cancelling the wife portion thereof, the
trial court did not, in any way, declare the marriage
void as there was no marriage to speak of." In other
words, consent in this case was neither present nor
defective, it was absent. (Republic v. Olaybar, G.R.
No. 189538, Feb. 10, 2014)
This case teaches us the lesson, among others,
that at times, when consent is absent, the marriage
may not only be void under Art. 4, FC, it may also
be inexistent. It makes a world of difference, since if

marriage is inexistent, then, 1. the purported wife,
like Linda in this case, has no right to sue for nullity
since, "A petition for declaration of absolute nullity
of void marriage may be filed solely by the husband
or the wife." (Sec. 2, A.M. No. 02-11-10-SC, Mar. 4,
2003); 2. Linda's cause of action, as such, is not to
sue for nullity of a marriage she never had, but to
sue for the cancellation of entries in a falsified
marriage certificate, under Rule 108, RoC; 3. For
purposes of remarriage, Linda need not get a final
decree of nullity of a first marriage that never
existed in the first place; 4. If Linda married her
love, hence, it would be her first marriage and not a
remarriage; hence, she will not be liable for bigamy;
and 5. Linda need not worry about a disputable co-
ownership or a potential co-ownership among
cohabiting partners, under Arts. 147 & 148, FC, that
may need to be partitioned or liquidated at the end
of their cohabitation.
c. Marriage By Simulation
Ben, already married to Sinia with 3 children, fell in
love with Sally. Sinia found out; so to cope with this
hard news, she decided to leave the country for
good. Ben and Sally then started to live together as
husband & wife. This did not fit well with Sally's
close relatives, particularly her dad; in fact, it
humiliated them. So to appease Sinia's father, Ben
& Sally visited his office in Pateros and in his
presence, they signed a Marriage Contract to make
it appear that they got married. The parties,
however, promised one another to keep this
Contract to themselves and not to register it with
the civil registrar. In the course of their
cohabitation, Ben & Sally had 2 children and they
bought 7 properties. Ben's father gave him his
inheritance, i.e., his rights to 37 lots co-owned with
his siblings. But Ben & Sally's relationship turned
sour. Sally migrated to Canada with their children &
she filed criminal complaints for Bigamy and
Falsification against Ben, using the Marriage
Certificate they simulated in the office of Sally's
Dad. In his defense, Ben filed a Petition for the
court to declare her purported Marriage to Sally not
only void, but also inexistent.
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
28
To support his Petition, Ben filed proof that Ben
and Sally got married without a license. He also
presented proof that the Marriage Contract does
not exist in the office of the civil registrar or the
NSO, because no marriage transpired. No one
solemnized the marriage & appearing before Sally's
Dad to sign a Marriage Contract in his presence is
not the same as marriage. To refute Ben's position,
Sally argued estoppel, in the sense that Ben, in the
Birth Certificates of their children, he informed the
NSO of his status as their father who claimed to be
married to Sally. He also signed documents that
describe his name as "Ben, marries to Sally." Lastly
she argued that marriage that is void cannot be
inexistent.
The SC, first of all, held Ben's Marriage to Sally as
void ab initio, for the lack of a marriage license. But
more than that, the SC held the marriage to
be inexistent, since Ben and Sally only made it
appear they got married, when they simply
simulated the celebration of their marriage in front
of Sally's father, in order to appease him. Sally
needed to present proof of the solemnizing officer's
name, where the wedding took place, and the
guests who attended the same. In the absence of
such proof, the signed marriage certificate proves
nothing, but a marriage absolutely simulated, which
is not only void ab initio, but also inexistent. Ben, as
such, is not guilty of bigamy, since he did not get
married the second time. Ben & Sally's property
relations, on the other hand, will be governed
by Art. 148, FC, which will not establish a disputable
co-ownership between them. More than that, if Ben
or Sally acted in bad faith, their shares in the co-
ownership will be forfeited, to their common
children, in Sally's case, or to the property regime of
Ben's subsisting marriage with Sinia, in Ben's
case. (Go-Bangayan v. Bangayan, Jr., G.R. No.
201061, July 3, 2013)
d. Marriage In Jest
Marriage By Simulation is a close cousin of Marriage
in Jest. In both cases, the purported spouses paint

an appearance of the celebration of marriage, but
they do not intend to be bound by that contract of
marriage at all. In Go-Bangayan v. Bangayan, Jr., the
purported husband and wife made it appear that
they got married before an authorized solemnizing
officer by signing a Marriage Certificate to fabricate
evidence of a marriage that did not take place in the
first place. To appease the purported wife's father,
the couple signed, in his presence, marriage
contract, although no marriage ever took place.
Said case gives an example of Marriage By
Simulation, where the parties did not only simulate
consent, but also the celebration of marriage itself.
This type of simulation will lead not only to a void
marriage, but to an inexistent one.
Marriage In Jest, on the other hand, also involves
simulation, as it is a form of Marriage
By Simulation. But while it simulates the
parties' consent to get married, it does not fabricate
evidence of the celebration of a wedding in front of
an officer. "A marriage in jest is a pretended
marriage, legal in form but entered into as a joke,
with no real intention of entering into the actual
marriage status, and with a clear understanding
that the parties would not be bound. The ceremony
is not followed by any conduct indicating a purpose
to enter into such a relation. It is a pretended
marriage not intended to be real and with no
intention to create any legal ties whatsoever,
hence, the absence of any genuine consent.
Marriages in jest are void ab initio, not for vitiated,
defective, or unintelligent consent, but for a
complete absence of consent. There is no genuine
consent because the parties have absolutely no
intention of being bound in any way or for any
purpose." (Republic v. Albios, G.R. No. 198780, Oct.
16, 2013.)
Under the Black's Law Dictionary, p. 395, a
simulated contract is one, "that, by mutual
agreement, does not express the true intent of the
parties." It is absolute, "when the parties intend
that the contract will impose no obligations; no
obligations are enforceable on the parties by such a
contract." It is relative, "if the parties intend to
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
29
impose an obligation different from those recited in
the contract; the intended obligations are
enforceable if all the relevant conditions are met."
In a Marriage In Jest, the parties do exchange vows
in front of one purporting to be a solemnizing
officer and of a crowd, but they do not really mean
to get married. Example, actors who get married to
portray a role in movies, they get married only in
jest. Even though, in public, they exchange marital
vows, they do not mean to get married really. Their
marriage in jest, in this sense, is not only void, but
also inexistent.
The RTC and CA, in one case, declared a marriage
void, as to be in jest. One Filipina got married to an
American, but before their marriage, she promised
to pay him $2,000, and that they will get married
for the sole purpose of helping her earn U.S.
Citizenship. After the Marriage, the Filipina never
saw the American again. The couple did nothing to
live together as husband and wife or to
consummate their Marriage. The RTC and CA,
hence, declared theirs to be a Marriage In Jest,
which treats it as a sham marriage, where consent
is absent. The SC, however, disagreed as it reversed
the RTC's and CA's findings that the couple entered
into a Marriage in Jest, which it defined merely a
"pretended marriage". The SC held instead that the
couple, "had an undeniable intention to be bound
in order to create the very bond necessary to allow
the [wife] to acquire American citizenship. ...There
was, thus, an apparent intention to enter into the
actual marriage status and to create a legal tie,
albeit for a limited purpose. Genuine consent was,
therefore, clearly present." (Republic v. Albios, G.R.
No. 198780, Oct. 16, 2013.)
To be a Marriage In Jest, the parties must have
absolutely simulated their consent to the marriage,
meaning, they must never have intended to get
married at all. It is one thing for the parties not to
intend to get married at all, and quite another for
parties to get married, but for the wrong reasons.
Marriage's avowed purpose under Art. 1, FC, may
be for the couple to establish a conjugal and family
life, it will not make marriage void if parties went

into marriage with mixed motives of their own or
even with no real intention to establish a life
together. Law governs the nature, consequences,
and incidents of marriage & nothing in the law
declares a marriage void if parties get married for
the wrong reasons. The SC held in Republic v. Albios,
hence that, "so long as all the essential and formal
requisites prescribed by law are present, and it is
not void or voidable under the grounds provided by
law, it shall be declared valid." The SC, moreover,
held that, "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."
3. Closing Statements to Chapter 2.
Marriage has essential elements. This is one reason
why Marriage is a special contract. The parties need
the legal capacity to get married and they need to
express their marital consent in the manner
prescribed by law. In the absence of these essential
requisites, the marriage is void; in case of them
being defective, the marriage is voidable. Ch. 2,
hence, also studies how legal capacity or consent
can be absent, if to add to one's arsenal of tools to
examine the myriad faces of valid, defective, and
invalid marriages. The essential requisites, lastly,
point us to the substance of valid marriages,
namely, the legal capacity of its spouses and
the consent freely given by them.
th
8 Letter:
Marriage lets people start families and help the
State build inviolable social institutions. For this
reason, the Family Code treats Marriage as a special
contract. Unlike most other contracts, Marriage has
Formal Requisites, namely, 1. authority of the
solemnizing officer; 2. a valid marriage license,
except under Arts. 27-34, FC; & 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 presence of
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not less than 2 witness of legal age. (Art. 3, FC) The
absence of any of the formal requisites shall render
the marriage void ab initio, except as stated in Art.
35(2). An irregularity in the formal requisites,
however, shall not affect the validity of the
marriage except that the party or parties
responsible for the irregularity shall be civilly,
criminally, & administratively liable. (Art. 4, FC) For
Marriage to be valid, in short, it's not enough to
simply sign or execute it, the parties must celebrate
it, in the presence of an authorized solemnizing
officer & at least 2 witness. They also need a
marriage license.
1. Solemnizing Officer Authority.
If none of the marrying parties stand at risk of
being in articulo mortis, i.e., of being at the point of
death, their marriage may be solemnized by
a: 1. member of judiciary; 2. priest, rabbi, imam, &
other religious ministers; and 3. mayor. If either of
the parties suffer from being in articulo mortis, on
the other hand, their marriage may be solemnized
also by a, 4. ship captain or airplane
chief; 5. military commanders of a unit; and lastly, if
the marriage is celebrated abroad, by the 6. consul-
general, consul, or vice-consul. (Art. 7, FC) (Sec.
444(b)(1)(xviii), R.A. No. 7160, LGC of 1991.) Let us
then study legal issues on the authority to
solemnize marriage/s that have brought the parties
all the way up the Highest Court.
a. "any incumbent member of the judiciary within
the court's jurisdiction"
This rule requires that the member of the judiciary
must be incumbent, meaning, he is at that time a
sitting member of the Judiciary, and he neither
retired nor suffered from the penalty of suspension
from office. The member of the judiciary must also
solemnize the marriage within the court's
jurisdiction, as defined under B.P Blg. 129 (for the
CA, RTC's, and MTC's) and R.A. 9282 (for the CTA),
as amended. Members of the Judiciary include
sitting justices of the Supreme Court, Court of
Appeals, Sandiganbayan, and Court of Tax Appeals,

with jurisdiction national in scope. They also include
sitting judges of Regional Trial Courts, and
Municipal or Metropolitan Trial Courts, with
jurisdiction local in scope. What happens, then,
when a member of the Judiciary solemnizes a
marriage outside the court's jurisdiction?
Sta. Maria, Persons 2019, p. 149, writes that, "If a
marriage is solemnized by a judge of the Regional
Trial Court, Metropolitan Trial Court, or Municipal
Court beyond his jurisdiction, there is absence of a
formal requisite in such a marriage, namely, the
authority of the solemnizing officer. Hence the
marriage is void unless either of the parties believed
in good faith that such solemnizing officer has
authority to conduct such marriage." Rabuya, Civil
Law Reviewer Vol. 1, p. 59, on the other hand,
writes that, "Where a judge solemnized a marriage
outside his court's jurisdiction, this is a mere
irregularity in the formal requisite, which while it
may not affect the validity of the marriage, may
subject the officiating official to administrative
liability." Both of them cite the Navarro v.
Domagtoy, A.M. No. MTJ 06-1088, July 19, 1996.
How, then, may we reconcile these 2 positions?
Art. 8, FC, states that,"The marriage shall be
solemnized publicly in the chambers of the judge or
in open court, ... and not elsewhere except in the
cases of marriages contracted at the point of death
or in remote places ... 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." In Navarro v. Domagtoy, a Judge
invoked this provision to defend his performance of
a marriage outside the court's jurisdiction. The SC
instead held that,"Inasmuch as [the] judge's
jurisdiction covers the municipalities of Sta. Monica
and Burgos, he was not clothed with authority to
solemnize a marriage in the municipality of Dapa,
Surigao del Norte. By citing Article 8 and the
exceptions therein as grounds for the exercise of his
misplaced authority, respondent judge again
demonstrated a lack of understanding of the basic
principles of civil law." But the SC in the same case
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also held that, "Article 8, which is a directory
provision, refers only to the venue of the marriage
ceremony and does not alter or qualify the
authority of the solemnizing officer as provided in
the preceding provision. Non-compliance herewith
will not invalidate the marriage."
Will this pronouncement, hence, change the
mandate of Art. 7, FC, in the sense that if a member
of the judiciary celebrates a marriage outside the
court's jurisdiction, the marriage will remain valid,
albeit irregular, and will simply subject the judge to
disciplinary action? In at least 2 later cases, the SC
continued to mete out penalties on members of the
Judiciary, citing Navarro v. Domagtoy. In Beso v.
Daguman, A.M. No. MTJ-99-1211, Jan. 28, 2000, the
SC held that,"An appellate court justice or a Justice
of this Court has jurisdiction over the entire
Philippines to solemnize marriages, regardless of
the venue, as long as the requisites of the law are
complied with. However, Judges who are appointed
to specific jurisdictions may officiate in weddings
only within said areas and not beyond. Where a
judge solemnizes a marriage outside his court's
jurisdiction, there is a resultant irregularity in the
formal requisite laid down in Article 3, which while
it may not affect the validity of the marriage, may
subject the officiating official to administrative
liability." In Arañes v. Occiano, A.M. No. MTJ-02-
1390 (formerly IPI No. 01-1049-MTJ), Apr. 11, 2002,
furthermore, the SC held that, "Under the Judiciary
Reorganization Act of 1980 or B.P. 129, the
authority of the regional trial court judges and
judges of inferior courts to solemnize marriages is
confined to their territorial jurisdiction as defined
by the Supreme Court." In Keuppers v. Murcia, A.M.
No. MTJ-15-1860, Apr. 3, 2018, lastly, the SC held
that, "A municipal trial judge who solemnizes a
marriage outside of his territorial jurisdiction
violates Article 7 of the Family Code, and is guilty of
grave misconduct and conduct prejudicial to the
best interest of the service. He should be properly
sanctioned."
R1. We note that these cases, first off, did not call
to task the Supreme Court to invalidate a marriage,

on the basis of the absence of a formal requisite,
which is the absence of the solemnizing officer's
authority. The SC in these cases, instead, needed to
decide if the judges, as solemnizing officers,
violated Judicial Ethics, and deserved to be
punished. R2. Secondly, absence of the solemnizing
officer's authority is the only formal requisite for
Marriage that can be cured by the parties' good
faith, in accordance with Art. 35(2), FC, which
stipulates that if, "either or both parties believed in
good faith that the solemnizing officer had the legal
authority," to perform their marriage, then the
marriage will not be void, despite the absence of
the solemnizing officer's authority. R3. The law
presumes the good faith of the marrying spouses
and since in the disciplinary cases against the
Judges no one presented proof to show that the
spouses knew the Judge had no authority to
solemnize their marriage, the Judge's transgression
will not suffice to invalidate their marriage, as it will
operate only as an irregularity to the marriage. For
this reason, the safer position is to stick with the
Letter of Art. 7, FC. If parties, in bad faith,
intentionally get married outside the territorial
jurisdiction of a member of the judiciary, their
marriage is void for the lack of a formal requisite.
b. "... priest, rabbi, imam, or minister of any church
or religious sect ..."
Art. 7, FC, states that, "Marriage may be solemnized
by: 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
religious sect and provided that at least one of the
contracting parties belongs to the solemnizing
officer's church or religious sect."
Sta. Maria, in Persons 2019 Ed., p. 150,
citing Navarro v. Domagtoy, writes that, "For a
priest, rabbi, imam, or minister of any church or
religious sect to be able to validly solemnize a
marriage the following four essential requisites
must concur: he or she 1) must be duly authorized
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by his or her church or religious sect; 2) must act
within the limits of the written authority granted to
him or her by the church or religious sect; 3) must
be registered with the civil registrar general; and 4)
at least one of the contracting parties whose
marriage he or she is to solemnize belongs to his or
her church or religious sect. The written authority
granted to a priest by his sect may impose a
limitation as to the place where he could solemnize
a marriage. For instance, a priest ... commissioned
& allowed by his local ordinary to marry the faithful
... is authorized to do so only within the area of the
diocese or the place allowed by his Bishop."
Kris Aquino and James Yap
To further study this Formal Requisite, let us
consider Kris Aquino & James Yap's story. In 2012,
the Philippine Star through Salve V. Asis reported
that, "Their six-year marriage has been declared null
and void by a Makati judge. The reason: “Lack of
authority of solemnizing officer. As James’ attorney,
Sonya Castillo, explains, “First of all, Kris and James
are not members of the Holy Sacrament
International Church, and at the time of the
supposed marriage, the license, SEC papers of Holy
Sacrament, had been
revoked.'” (https://www.philstar.com/cebu-
entertainment/2012/02/05/774305/kris-james-
back-being-single) In another report, Kris's lawyer
spoke of how James tried to claim good faith, but
the court rejected this, as Atty. Sharlyne Goboy-
Lapuz said, "If you're Roman Catholic and you have
a lady minister solemnizing your marriage, shouldn't
you be asking, 'Are you authorized [to marry us]
because we're
Catholics?" (https://www.pep.ph/news/32886/pep-
special-report-part-i-why-the-marriage-of-kris-
aquino-and-james-yap-was-declared-null-and-void).
To invoke this ground, however, the parties need
not only prove that the solemnizing officer had not
authority to solemnize the marriage, they also
needed to prove that the parties acted in bad faith,
because under Art. 35(2), FC, it matters not if the
solemnizing officer really had no authority to

celebrate the marriage if 1 of the parties to the
marriage believed in good faith in his authority. To
get married in bad faith, however, comes with a
heavy price. Art. 350, RPC, imposes the penalty
of prision correccional in its medium and maximum
periods upon any person who, "shall contract
marriage knowing that the requirements of the law
have not been complied with or that the marriage is
in disregard of a legal impediment." More than
that, Art. 91 of NCC stipulates that, "Damages may
be awarded if, "the person solemnizing the
marriage was not legally authorized to perform
marriages, and the fact was known to one of the
contracting parties, but he or she concealed it from
the other." Lastly, Art. 147, FC, stipulates that, "the
share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children.
In case of default of or waiver by any or all of the
common children or their descendants, each vacant
share shall belong to the respective surviving
descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases,
forfeiture shall take place upon termination of the
cohabitation."
Judge Alma Consuelo Desales-Esidera
In another case, a certain Perfecto filed an
administrative case for immorality against Judge
Desales-Esidera. He claimed, among others, that
during the Judge's subsisting marriage with a first
husband, she had an affair with a 2nd husband, and
got married with him before any court issued a final
decree of nullity or annulment of her first marriage.
In her defense, the Judge, however, claimed she
only entered her 2nd marriage for religious
purposes, to be at peace with her conscience as a
practicing Roman Catholic. But since she knew the
priest had no registration to celebrate a marriage
with the civil registrar general and hence had no
authority to celebrate her 2nd marriage, it was
void ab initio.
The SC upheld her defense and held that the,
"judge's act of participating in the marriage
ceremony as governed only by the rules of her
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religion is not inconsistent with our law against
bigamy. What the law prohibits is not second
marriage during a subsisting marriage per se. What
the law prohibits is a second marriage that would
have been valid had it not been for the subsisting
marriage. Under our law, [the] judge's marriage in
1990 was invalid because of the solemnizing
officer's lack of authority." The SC moreover held
that, "Marriages entered into in accordance with
the law may or may not include marriages
recognized in certain religions. Religious marriages
are recognized in and may be governed by our laws
only if they conform to legal requirements.
Religious marriages that lack some or all the
requirements under the law are invalid. They are
not considered to have been entered into. They do
not enjoy the benefits, consequences, and incidents
of marriage provided under the law." The SC, in
conclusion, held , "The lack of authority of the
officer that solemnized respondent judge's
marriage in 1990 renders such marriage invalid. It is
not recognized in our law. Hence, no second
marriage can be imputed against respondent judge
while her first marriage subsisted."
The SC, however, held that the, "judge may have
disobeyed the law, particularly Article 350 of the
Revised Penal Code, which prohibits knowingly
contracting marriages against the provisions of
laws." The SC found that the, "judge knew that the
solemnizing officer during her and her husband's
marriage in 1990 had no civil authority to solemnize
marriages." In her COMMENTS, in fact, she stated
that, "Fr. David Tither had no license to solemnize
marriage from the National Archives or from the
civil government. Hence, he was not under
obligation to register our marriage. It was a purely
sacramental marriage rite, without legal effect but
definitely valid and recognized by the Roman
Catholic Church. It is called "matrimoña de
conciencia."" The SC, on this issue, held Art. 350,
RPC, to be, "of doubtful constitutionality when
applied to religious exercise and expression insofar
as it prescribes upon individuals and religious
communities formal requirements for the conduct
of their religious ceremonies. It puts a burden upon

the exercise of beliefs by criminalizing marriages
performed in accordance with those beliefs, but
lacks some or all the requisites of a valid marriage
under the law.These requirements include not only
age and consent, but also formal requisites such as
marriage license and civil authority of the
solemnizing officer even though violence, fraud, or
intimidation was not present under the
circumstances. It may, therefore, limit religious
exercise and expression to the formalities of law."
The SC, hence, concluded thus that, "unless
respondent judge's act of participating in a marriage
ceremony according to her religious beliefs violates
other peoples' rights or poses grave and imminent
danger to the society, we cannot rule that
respondent judge is administratively liable for her
participation in her religious marriage ceremony."
(Perfecto v. Esidera, A.M. No. RTJ-15-2417
(Resolution), July 22, 2015)
2. Marriage License.
Marriages "solemnized without a license" as a
general rule are void from the beginning under Art.
35(3), FC. But Arts. 27-34, FC, stipulates these
exceptions: 1. in case either or both of the
contracting parties are at the point of death (Art.
27, FC); 2. if the residence of either party is so
located that there is no means of transportation to
enable such party to appear personally before the
local civil registrar (Art. 28, FC); 3. in case of a
marriage in articulo mortis between passengers or
crew members, while the ship is at sea, the plane is
in flight, and during stopovers at ports of call, or
between persons within the zone of military
operations, whether members of the armed forces
or civilians (Art. 31, FC); 4. in case of marriages
among Muslims or members of ethnic cultural
communities, provided that they are solemnized in
accordance with their customs, rites, or practices
(Art. 33, FC); and lastly, 5. in case of the marriage of
a man and a woman who have lived together as
husband and wife for at least 5 years and without
any legal impediment to marry each other. (Art.
34, FC)
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34
a. Not Cured by Later Celebration of Marriage
The SC in one case held that, "All the evidence cited
by the CA to show that a wedding ceremony was
conducted and a marriage contract was signed does
not operate to cure the absence of a valid marriage
license. Article 4 of the Family Code is clear when it
says, "The absence of any of the essential or formal
requisites shall render the marriage void ab initio,
except as stated in Article 35 (2)." Article 35 (3) of
the Family Code also provides that a marriage
solemnized without a license is void from the
beginning, except those exempt from the license
requirement under Articles 27 to 34, Chapter 2,
Title I of the same Code. Again, this marriage cannot
be characterized as among the exemptions, and
thus, having been solemnized without a marriage
license, is void ab initio. (Abbas v. Abbas, G.R. No.
183896, Jan. 30, 2013)
b. Proof of Nullity Due to Lack of License
In another case the SC held that, "to be considered
void on the ground of absence of a marriage
license, the law requires that the absence of such
marriage license must be apparent on the marriage
contract, or at the very least, supported by a
certification from the local civil registrar that no
such marriage license was issued to the parties."
(Kho v. Republic, G.R. No. 187462, June 1, 2016)
In yet another case, furthermore, the SC held that,
"The Court cannot turn a blind eye to the
statements made in the marriage contract because
these refer to the absence of a formal requisite of
marriage. "The parties should not be afforded any
excuse to not comply with every single requirement
and later use the same missing element as a pre-
conceived escape ground to nullify their marriage.
There should be no exemption from securing a
marriage license unless the circumstances clearly
fall within the ambit of the exception." "The
requirement and issuance of marriage license is the
State's demonstration of its involvement and
participation in every marriage, in the maintenance
of which the general public is interested. This

interest proceeds from the constitutional mandate
that the State recognizes the sanctity of family life
and of affording protection to the family as a basic
'autonomous social institution." (Diaz-Salgado v.
Anson, G.R. No. 204494, July 27, 2016)
c. Legal Ratification of Marital Cohabitation
To qualify for this marriage license exemption, Art.
34, FC requires that, 1. man & woman, 2. must
have lived together as husband and wife, 3. for at
least 5 years, 4. without any legal impediment to
marry each other, and 5. the contracting parties
shall state these elements under oath in an affidavit
and 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. (Art. 34, FC) What happens,
though, if in the course of their 5-year cohabitation,
the man & woman had legal impediment to marry?
Should we check for legal impediments only at the
time of marriage or for the length of the
cohabitation?
To illustrate, let us consider the story of a man
whose wife the doctor diagnosed with a terminal
illness, giving her only 6 months to live. This man
had been already sleeping with his secretary from
time to time. But to cope with the sad news and
prepare for the future, the man decided to pay for
secretary's apartment and to live with her from
time to time, usually on 1 or 2 days of the week.
The wife lived for more than 6 months; in fact she
lived for up to 5 years and 6 months. Immediately
after the wife's burial, the secretary asked the
husband to waste no time to walk her down the
altar. She invoked Art. 34, FC, saying that due to
their 5-years cohabitation, they could get married
without a marriage license. Should the solemnizing
officer to this impending marriage swear under
oath that, he has "ascertained the qualifications of
the contracting parties and found no legal
impediment to the marriage?
The Schools of Thought
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Scholars of Philippine Civil Law hold two schools of
thought on this issue. Rabuya, Civil Law Reviewer
V1, pp. 57-58, on the one hand, writes that, "The
five-year cohabitation should be computed on the
basis of a cohabitation as "husband and wife" where
the only missing factor is the special contract of
marriage to validate the union. In other words, the
five-year common-law cohabitation period, which is
counted back from the date of celebration of
marriage, should be a period of legal union had it
not been for the absence of marriage. This five-year
period should be the years immediately before the
day of the marriage and it should be a period of
cohabitation characterized by exclusivity meaning
no third party was involved at any time within the
five years and continuity is unbroken. Otherwise, if
that continuous five-year cohabitation is computed
without any distinction as to whether the parties
were capacitated to marry each other during the
entire five years, then the law would be sanctioning
immorality and encouraging parties to have
common law relationship and placing them on the
same footing as those who lived faithfully with their
spouse."
Sta. Maria, Persons, 2019 Ed., p. 214, on the other
hand, writes that while the cohabitation of 5 years
must concur with the lack of legal impediment to
get married, "they do not qualify each other. In
other words, during the five-year period, it is not
necessary that they must not have suffered from
any legal impediment. The second condition as to
the absence of any legal impediment must be
construed as to refer only to the time of the actual
marriage celebration. Hence, the parties must be
without legal impediment only at the time of the
marriage ceremony and not during all those
previous five (5) years. This must be the
interpretation because the essential requirements
under Article 2 and the formal requirements under
Article 3 for a valid marriage must be present only
at the celebration of the marriage and not at any
other point in time. The five-year period is not
among the said essential and formal requirements.
Neither could such time element add or diminish
the legal effects of the said essential and formal

requirements." The views of our country's top Civil
Law scholars diverged mainly because of a series of
Supreme Court Decisions that espoused seemingly
divergent views. Let us study them then.
Ninal v. Bayadog
In this case, the SC held that, "Working on the
assumption that Pepito and Norma have lived
together as husband and wife for five years without
the benefit of marriage, that five-year period should
be computed on the basis of a cohabitation as
"husband and wife" where the only missing factor is
the special contract of marriage to validate the
union. In other words, the five-year common-law
cohabitation period, which is counted back from the
date of celebration of marriage, should be a period
of legal union had it not been for the absence of the
marriage. This 5-year period should be the years
immediately before the day of the marriage and it
should be a period of cohabitation characterized by
exclusivity — meaning no third party was involved
at any time within the 5 years and continuity — that
is unbroken. Otherwise, if that continuous 5-year
cohabitation is computed without any distinction as
to whether the parties were capacitated to marry
each other during the entire five years, then the law
would be sanctioning immorality and encouraging
parties to have common law relationships and
placing them on the same footing with those who
lived faithfully with their spouse. Marriage being a
special relationship must be respected as such and
its requirements must be strictly observed. The
presumption that a man and a woman deporting
themselves as husband and wife is based on the
approximation of the requirements of the law. The
parties should not be afforded any excuse to not
comply with every single requirement and later use
the same missing element as a pre-conceived
escape ground to nullify their marriage. There
should be no exemption from securing a marriage
license unless the circumstances clearly fall within
the ambit of the exception. It should be noted that
a license is required in order to notify the public
that two persons are about to be united in
matrimony and that anyone who is aware or has
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knowledge of any impediment to the union of the
two shall make it known to the local civil registrar.
(Niñal v. Bayadog, G.R. No. 133778, Mar. 14, 2000)
Sta. Maria, Persons, 2019 Ed., pp. 214-215, takes
exception to this ruling, because in this case, the SC
meant to apply Art. 76 of the Civil Code, not Art.
34 of the Family Code. He wrote, hence, that,
"Unlike Article 34 of the Family Code, the repealed
Article 7t of the Civil Code made it mandatory that
that, during the whole five-year period, the
contacting parties must be unmarried. Hence,
under the repealed law, a person who was married
at anytime during the five-year period and who was
living with another person cannot avail of the
exception in case he or she intends to marry his or
her live-in partner after his or her legitimate spouse
died. In short, there must be no such legal
impediment during the whole five-year period
(Ninal v. Bayadog, G.R. No. 133778, March 14,
2000, 328 SCRA 122). Under Art. 34 of the Family
Code, however, for as long as there is no legal
impediment at the time of the marriage ceremony,
the parties can avail of the exception. (Manzano v.
Sanchez, A.M. No. MTJ 00-1329, March 8, 2001).
Hence, under the Family Code, a spouse who was
living-in with his or her paramour can avail of this
exception and marry his or her paramour without a
marriage license after the death of his or her legal
spouse."
Manzano v. Sanchez
The SC herein held that, "For this provision on legal
ratification of marital cohabitation to apply, the
following requisites 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 impediment between the parties
must be present at the time of marriage; 4. The
parties must execute an affidavit stating that they
have lived together for at least five years [and are
without legal impediment to marry each other];
and 5. The solemnizing officer must execute a

sworn statement that he had ascertained the
qualifications of the parties and that he had found
no legal impediment to their marriage." (Borja-
Manzano v. Sanchez, A.M. No. MTJ-00-1329
(Resolution), Mar. 8, 2001) The SC in this case,
however, did not primarily tackle the validity or
nullity of Marriage, but the possible liability of a
member of the Judiciary, for gross ignorance of the
law.
Office of the Court Administrator v. Necesario
The SC in this case found that one of the Judges,
"solemnized 43 marriages under Article 34 of the
Family Code. These marriages appeared dubious
since the joint affidavit of cohabitation of the
parties show minority of one or both of them during
cohabitation. For example, he solemnized on 14
May 2004 the marriage of 22-year-old Harol D.
Amorin and 19-year-old Dinalyn S. Paraiso..." The SC
hence held that, "the judges' gross ignorance of the
law is also evident when they solemnized marriages
under Article 34 of the Family Code without the
required qualifications and with the existence of
legal impediments such as minority of a party.
Marriages of exceptional character such as those
made under Article 34 are, doubtless, the
exceptions to the rule on the indispensability of the
formal requisite of a marriage license. Under the
rules of statutory construction, exceptions as a
general rule should be strictly but reasonably
construed. The affidavits of cohabitation should not
be issued and accepted pro forma particularly in
view of the settled rulings of the Court on this
matter. The five-year period of cohabitation should
be one of a perfect union valid under the law but
rendered imperfect only by the absence of the
marriage contract. The parties should have been
capacitated to marry each other during the entire
period and not only at the time of the marriage."
(Office of the Court Administrator v.
Necessario, A.M. No. MTJ-07-1691, April 2, 2013)
Sta. Maria, Persons, 2019 Ed., p. 216, again takes
exception to this ruling, as he writes, "It is
unfortunate that in the case of Office of the Court of
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Administrator v. Necessario, A.M. No. MTJ-07-
1691`, April 2, 2013, the Supreme Court, in
administratively ruling ruling against judges who
irregularly solemnized marriages from 2003 to
2007, made a statement that for the exception to
apply, "the parties should have been capacitated to
marry each other during the entire period and not
only at the time of the marriage." This is erroneous.
The basis used by the Supreme Court was Ninal v.
Bayadog, supra, which clearly was a case applying
not Article 34 of the Family Code, but the old Article
76 of the Civil Code. Be that as it may, considering
the validity of a marriage, the statement may be
considered as an obiter dictum which does not
create a precedent." May a man, indeed, cohabit
with his mistress - in the middle of his marriage -
and be deemed as to have lived together as
husband and wife both with his wife and his
mistress? Is "living together as husband & wife" as
much a conclusion of fact, as it is a simple
statement of fact?
De Castro v. Assidao-De Castro
In this case, the couple lied under oath just to get
married without a marriage license under Art.
34, FC. The truth is, they did not cohabit as husband
and wife for at least 5 years, because at the time of
their marriage, they first met only 4 years ago, and
it took them time to finally share a roof. The SC held
that, "The falsity of the affidavit cannot be
considered as a mere irregularity in the formal
requisites of marriage. The law dispenses with the
marriage license requirement for a man and a
woman who have lived together and exclusively
with each other as husband and wife for a
continuous and unbroken period of at least five
years before the marriage. The aim of this provision
is to avoid exposing the parties to humiliation,
shame and embarrassment concomitant with the
scandalous cohabitation of persons outside a valid
marriage due to the publication of every applicant's
name for a marriage license. In the instant case,
there was no "scandalous cohabitation" to protect;
in fact, there was no cohabitation at all. The false
affidavit which petitioner and respondent executed

so they could push through with the marriage has
no value whatsoever; it is a mere scrap of paper.
They were not exempt from the marriage license
requirement. Their failure to obtain and present a
marriage license renders their marriage void ab
initio. (De Castro v. Assidao-De Castro, G.R. No.
160172, Feb. 13, 2008)
Santiago v. People
In this case, a married man married the 2nd time in
the thick of his first marriage. He then got indicted
with his 2nd wife for the crime of bigamy. He
absconded and left his 2nd wife to face the music
alone. The 2nd wife, then, invoked as one of her
defenses the nullity of the claimed 2nd marriage, on
the basis of the lack of a formal requisite or the
absence of a marriage license. She admitted
misrepresenting to the solemnizing officer that they
lived together as man & wife for at least 5 years
prior to their marriage, when in fact it did not really
happen. This misled the solemnizing officer to issue
a Certificate of Marriage, where he "stated under
oath that no marriage license was necessary,
because the marriage was solemnized under Article
34 of the Family Code." Did the 2nd wife raise a
valid defense to an indictment for bigamy?
The SC, first of all, held that, "Her punishment as a
principal to the crime is wrong. Archilla holds that
the second spouse, if indicted in the crime of
bigamy, is liable only as an accomplice. In referring
to Viada, Justice Luis B. Reyes, an eminent authority
in criminal law, writes that "a person, whether man
or woman, who knowingly consents or agrees to be
married to another already bound in lawful wedlock
is guilty as an accomplice in the crime of bigamy."
Therefore, her conviction should only be that for an
accomplice to the crime." The SC then held
that, "We chastise this deceptive scheme that hides
what is basically a bigamous and illicit marriage in
an effort to escape criminal prosecution. Our penal
laws on marriage, such as bigamy, punish an
individual's deliberate disregard of the permanent
and sacrosanct character of this special bond
between spouses. In Tenebro v. Court of Appeals,
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we had the occasion to emphasize that the State's
penal laws on bigamy should not be rendered
nugatory by allowing individuals "to deliberately
ensure that each marital contract be flawed in some
manner, and to thus escape the consequences of
contracting multiple marriages, while beguiling
throngs of hapless women with the promise of
futurity and commitment." The SC lastly held that,
"No less than the present Constitution provides that
"marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by
the State." It must be safeguarded from the whims
and caprices of the contracting parties. In keeping
therefore with this fundamental policy, this Court
affirms the conviction of petitioner for
bigamy. (Santiago v. People, G.R. No. 200233, July
15, 2015)
3. Marriage Ceremony.
For marriage to be valid, it is indispensable that a
marriage ceremony, "takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration
that they take each other as husband wife in the
presence of not less than 2 witnesses of legal age."
(Art. 3, FC) "No prescribed form or religious rite for
the solemnization of the marriage is required. It
shall be necessary, however, for the contracting
parties to appear personally before the solemnizing
officer and declare in the presence of not less than
2 witnesses of legal age that they take each other as
husband and wife." (Art. 6, FC) Rabuya, in Civil Law
Reviewer V. 1, p. 61, outlines the requisites for a
valid marriage ceremony to exist as, "1. personal
appearance before a slomnizing officer; 2. personal
declaration by the contracting parties that they are
taking each other as husband and wife; and 3. such
personal declaration by the parties must be done in
the presence of the solemnizing officer" What
happens when marriage ceremony is absent? What
is the essence of a marriage ceremony?
a. Mere Prayer?
In one case, Joey and Claire, clad in wedding clothes

and together with their principal and secondary
sponsors and guests, appeared before a priest of
the Catholic Church in order to get married. The
priest, however, declined to push through with their
marriage, since they failed to present a marriage
license. To see if they could still push through with
their marriage, they took a chance to drop by the
next nearest church, the Independent Church of
Filipino Christians, also known as the Aglipayan
Church. They requested the petitioner, an Aglipayan
priest, to perform a ceremony to which the latter
agreed despite having been informed by the couple
that they had no marriage license. But the State
later on sued Fr. Rene of the Aglipayan Church for
performing an illegal marriage ceremony and
violating Art. 352 of the Revised Penal Code. Fr.
Rene, in his own defense, admitted that though he
performed a religious ceremony, his act of blessing
and praying over the couple was not tantamount to
a solemnization of the marriage as contemplated by
law. For this reason, he argued, no marriage, be it
legal or illegal, took palace.
The SC, however, held that pertinently, "Article 3 (3)
mirrors Article 6 of the Family Code and particularly
defines a marriage ceremony as that 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 presence of not less than
two witnesses of legal age." The SC furthermore
held that, "Even prior to the date of the enactment
of Article 352 of the RPC, as amended, the rule was
clear that no prescribed form of religious rite for
the solemnization of the marriage is required.
However, as correctly found by the CA, 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." The SC
also held that, "Undoubtedly, the petitioner
conducted the marriage ceremony despite
knowledge that the essential and formal
requirements of marriage set by law were lacking.
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The marriage ceremony, therefore, was illegal. The
petitioner’s knowledge of the absence of these
requirements negates his defense of good faith."
For this reason, the SC Fr. Rene's criminal conviction
for illegal marriage. (Ronulo v. People, G.R. No.
182438, July 2, 2014)
b. Inexistent Marriage
Lucio married Maria, who later sued Lucio for
Bigamy. She found out apparently that as per a
Marriage Certificate, Lucio had a subsisting
Marriage with Lucia at the time of his marriage with
Maria. In his defense, Lucio filed a Petition to have
his Marriage with Lucia void for the lack of a
marriage ceremony, being that Lucio and Lucia
never appeared in front of a solemnizing officer.
The RTC and CA convicted Lucio of Bigamy, as they
held that, the status of Lucio's marriage matters
not, since for purposes of remarriage, Lucio needed
to get a final decree of nullity or annulment or a
decree of presumptive death prior to his second
marriage, in order not to be held liable for Bigamy.
The SC, however, disagreed with the RTC and CA, as
it held that, "no marriage ceremony at all was
performed by a duly authorized solemnizing officer.
Petitioner and Lucia Barrete merely signed a
marriage contract on their own. The mere private
act of signing a marriage contract bears no
semblance to a valid marriage and thus, needs no
judicial declaration of nullity. Such act alone,
without more, cannot be deemed to constitute an
ostensibly valid marriage for which petitioner might
be held liable for bigamy unless he first secures a
judicial declaration of nullity before he contracts a
subsequent marriage." (Morigo y Cacho v.
People, G.R. No. 145226, Feb. 6, 2004)
In another time, we will discuss cases with
contrasting pronouncements on the impact of the
nullity of the 1st and/or 2nd Marriage on the issue
of Bigamy. But for this Chapter let it be said that
Morigo v. People sets as precedent one solid
defense to a charge of Bigamy, which is the
inexistence of marriage, due to the lack of a
marriage ceremony. Though Art. 4, FC, states that

the absence of a formal requisite, as, for instance,
marriage ceremony, will render the marriage void.
In case marriage ceremony is absent, however,
marriage is more than void; it is inexistent; and
there exists even no ostensible marriage. This
makes a world of difference, because an inexistent
marriage does not trigger the implications of a valid,
voidable, or even void marriage, as long as the
marriage is ostensible. Though an invalid marriage is
void ab initio or right from the start, it does not
mean that it would not trigger any legal implications
whatsoever. If marriage is void for psychological
incapacity or if it falls under Art. 35(6), FC, for
instance, said void ab initio marriage will still trigger
legitimate filiation for children conceived or born
during its subsistence. If the marriage is void, on
other grounds, it will still trigger, at least, the
application of Art. 40, FC, that for purposes of
remarriage, the parties may not invoke the nullity of
a previous marriage without a final decree of nullity
or annulment from the court.
Closing Statements to Letter No. 3.1
Marriage is special contract, because of the formal
requisites set by law. 1. If not exempt, the parties
must first get a marriage license prior to their
marriage. 2. They must appear before an authorized
solemnizing officer. 3. And they must celebrate
their marriage in a valid marriage ceremony. 4. In
the absence of a marriage license, the marriage is
void and the parties' good faith will not change
this. 5. In the absence of a solemnizing officer's
authority, on the other hand, the marriage is void
but only if the parties, in bad faith, knew the
solemnizing officer, in fact, had no authority to
solemnize their marriage. 6. In the absence of a
marriage ceremony, the marriage is not only void,
but also inexistent, which makes a world of
difference. 7. If the parties got married with any
defect or irregularity in the pertinent marriage
license, authority of a solemnizing officer, or
marriage ceremony, the marriage is neither void
nor voidable, but valid, only that, "the parties
ersponsible for the irregularity shall be civilly,
criminally, or administratively liable; 8. But if the
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40
parties got married "knowing that the requirements
of the law have not been complied with or that the
marriage is in disregard of a legal impediment,"
they stand the risk of criminal liability of up to
prision correccional under Art. 350, RPC. Parties
who get married in bad faith also stand to lose their
rights to the net profits of the community of
property under Art. 43, FC or to their net shares of
the co-owned properties under Arts. 147 or 148. FC.
The Formal Requisites of Marriage, hence, also
make marriage a special contract.
9th Letter:
"Marriage is a special contract of permanent
union... It is the foundation of the family and an
inviolable social institution," Art. 1, FC states. In the
Philippines, marriage and family ties play a role to
help people live or at least cope with difficult and
uncertain times. In highly developed economies,
people need not lean only on their families; for
when they get sick, jobless, or old, they have
strong welfare states to help them buy time until
life gets better. In the Philippines, we depend on
our families not only to survive, but also to raise
good children, so we can, in turn, form the
conscience of an entire nation. For this reason, "the
State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic social
institution." (Sec. 12, Art. II, 1987 Constitution)
Marriage in our country, hence, is not only sacred, it
is also inviolable. In this chapter, we will study how
the State directly protects the institution of
Marriage as a contract of permanent union and
how it also indirectly protects Marriage by giving
grounds to terminate problematic marriages even
after their celebration, at the edges of marital
permanence.
1. Protection Strategies.
a. No Right To Rescind
The power to rescind obligations is implied in
reciprocal ones, but except in the special contract

of marriage. Parties to ordinary contracts, as a
matter of right, may rescind them if their contracts
no longer work for them, either by mutual consent
or in case, "one of the obligors should not comply
with what is incumbent upon him." (Art.
1191, NCC.) But to protect marriage as a "contract
of permanent union," the Philippines passed no
laws to let couples freely end their Marriage/s only
by mutual consent or when one of them, "should
not comply with what is incumbent upon him."
Except under Art. 26, FC, no law in the Philippines
allows divorce.
b. Bigamy under the Family Code
More than that, persons in a subsisting marriage
may not marry again except when, "for purposes of
remarriage," they get, "a final judgment declaring
such previous marriage void," under Art. 40, FC or if
the court issues a decree of presumptive death
under Art. 41, FC. Otherwise, the marriage will be
void for being, "bigamous or polygamous ... not
falling under Art. 41," (Art. 35(4), FC). If both
husband and wife got married in bad faith or with
knowledge of the falsity of the grounds invoked to
seek the decree of presumptive death issued by the
court under Art. 41, FC, moreover, "said marriage
shall be void ab initio," under Art.
44, FC. "Contracting ... of a subsequent bigamous
marriage, whether in the Philippines or abroad,"
lastly, is also a ground for Legal Separation
under Art. 55, FC. A spouse found guilty of bigamy
in a case for legal separation even stands to forfeit
his or her share in the net profits of the couple's
shared properties under Art. 43, FC. A spouse who
cohabits with another in the context of a bigamous
marriage declared void by the court, on this note,
stands to forfeit his or her net share/s in the
properties co-owned by the couple, in accordance
with Art. 148, FC, in relation to Art. 147, FC.
c. From the Revised Penal Code
The State also punishes with fine or imprisonment
those who commit 1. BIGAMY under Art.
349, RPC, 2. ADULTERY under Art.
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41
333, RPC, 3. CONCUBINAGE under Art. 334, RPC or
those 4. who get married, "in disregard of a legal
impediment," or who, "shall obtain the consent of
the other by means of violence, intimidation, or
fraud," under Art. 350, RPC, or 5. solemnizing
officers who perform or authorize illegal marriage
ceremonies, under Art. 352, RPC. The State, in these
instances, seeks to protect the sanctity of marriage
by defining as felonies deeds that, in the State's
judgement, will tend to destroy, violate, and mock
the institution of Marriage.
d. Illegality of "Kasunduan Ng Paghihiwalay"
Art. 221, NCC, states that, "any contract for the
personal separation between husband and wife"
and "every collusion to obtain a decree of legal
separation or annulment of marriage," shall be void
and of no effect. Though Art. 254, FC, has expressly
repealed Art. 221, NCC, it does not mean that it no
longer violates public policy for spouses to sign a
contract for their personal separation or for them
to collude to obtain a decree of legal separation or
annulment. Art. 2035, NCC, still stipulates as null
and void compromise settlements upon the
following questions: (1) civil status of persons; (2)
The validity of a marriage or a legal separation; (3)
any ground for legal separation." Art. 56(5), FC, also
mandates the court to deny a suit for legal
separation where, "there is collusion between the
parties..." And Art. 48, FC, states that, "In all cases
of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecuting
attorney or fiscal assigned to it to appear on behalf
of the State to take steps to prevent collusion
between the parties and to take care that evidence
is not fabricated or suppressed."
A husband, in one case, sued his lawyer for
disbarment. This lawyer, apparently, designed for
them a Kasunduan Ng Paghihiwalay, which
stipulated for the personal separation between the
spouses, the custody of their children, and the
dissolution, liquidation, and distribution of their
shared properties. The husband assumed this
settlement to be valid, but faced shock when, in

violation of the settlement, the wife took custody of
all their children as she took possession of almost all
of their shared properties. The husband, hence,
sued their lawyer for malpractice and gross
misconduct in office. The SC held the lawyer liable
and said that, " a notary public should not facilitate
the disintegration of a marriage and the family by
encouraging the separation of the spouses and
extrajudicially dissolving the conjugal partnership."
The SC furthermore held that, "in preparing and
notarizing a void document," the lawyer violated
the rule that, "[a] lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct."
Since she knew fully well that the "Kasunduan Ng
Paghihiwalay" had no legal effect and was against
public policy, the lawyer committed a breach of the
Code of Professional Responsibility. (Espinosa v.
Omaña, A.C. No. 9081, Oct. 12, 2011)
e. Permanence and Its Fringes
The rule, "marriage is a special contract of
permanent union," however, yields exceptions. 1. In
marriages with defective essential requisites, like
vices in consent, the injured party may ask the court
to annul the marriage, which is valid until annulled
under Art. 45, FC. 2. In valid bigamous marriages
under Art. 41, FC, the erstwhile valid marriage may
terminate upon the registration of an affidavit of
reappearance of the lost spouse by an interested
party; and 3. In a mixed marriage under Art. 26, FC,
an absolute divorce issued by a foreign court or
obtained by the foreigner spouse may also dissolve
an otherwise valid marriage. 4. Lastly, we'll discuss
legal separation, what happens when a spouse
breaches the contract of marriage under Art. 55, FC,
and how some of the erstwhile lifetime effects of
marriage may get cut short due to breach of marital
vows.
2. Article 45 Marriages
a. Grounds for Annulment
For consent to be flawless, the spouses must
possess freedom and intelligence at the time of
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42
their marriage. If freedom or intelligence is flawed
at the time of their marriage, the marriage becomes
voidable under Art. 45, FC. Marriage may be
annulled on these grounds: 1. if at the time of
marriage, either of the marrying parties was
between 18-21 and they got married without the
consent of their parents, guardians, or person
having substitute parental authority over them, in
that order; 2. if either party had an unsound mind
at the time of the marriage; and 3. if one party
obtained the consent of the other party by fraud
or 4. by force, intimidation, or undue influence. In
these 4 grounds, the defect in the injured party's
consent must not have been cured or ratified by his
or her free cohabitation as husband and wife after
the injured party got to the age of 21 for the 1st
ground, during the insane party's lucid interval for
the 2nd ground, after the injured party gains full
knowledge of the fraud for the 3rd ground, and
after the force, undue influence or intimidation
would have ceased or disappeared for the the 4th
ground.
In addition to these 4 grounds, marriage may also
be annulled, 5. if either party suffered from being
physically incapable of consummating the marriage
at the time of marriage, the incapacity continues
during the marriage, and it appears to be incurable;
and 6. if either party suffers from a sexually
transmissible disease both serious and incurable.
This 5th and 6th grounds for annulment may not be
cured by the free cohabitation of the parties. But
for all the grounds, except for the ground of
insanity, the injured party must sue for
annulment within 5 years after attaining 21 for
the 1st ground, from the discovery of the fraud for
the 3rd ground, from the disappearance of the
force, intimidation, or undue influence for the 4th
ground, and from the time of the celebration of the
marriage for the 5th and 6th grounds. For insanity
as a ground, both the sane and insane spouse may
file for annulment at any time before the death of
either spouse, except that if the sane spouse had
knowledge of the insanity, he will lack the standing
to sue for annulment on the basis of this
ground.

But if one obtained the consent of the other by
fraud, to be be a ground for annulment of marriage
under Art. 45, FC, the fraud must be among those
defined under Art. 46, FC, as follows: 1. non-
disclosure of a prior conviction by final judgment of
a crime involving moral turpitude; and
concealment, 2. by the wife of the fact that at the
time of the marriage, she was pregnant by a man
other than her husband; 3. of one's sexually
transmissible disease, regardless of its nature,
existing at the time of the marriage; or 4. of drug
addiction or habitual alcoholism, or homosexuality
or lesbianism existing at the time of the marriage.
But, "No other misrepresentation or deceit as to the
character, health, rank, fortune, or chastity shall
constitute fraud as will give grounds for action for
the annulment of marriage." (Art. 46, FC)
b. Legal Implications
For those who get married with vitiated consent,
marriage is valid until annulled; hence, their
marriage will trigger the birth of an absolute
community of property regime, in case the parties
did not enter into a marriage settlement and
children conceived or born in the thick of their
marriage (or prior to its annulment) will possess the
status of legitimate children. In addition the effects
under Art. 43 (2), (3), (4), and (5) and Art. 44, FC,
shall also apply to marriages annulled by final
judgment under Art. 45, FC, as stipulated under Art.
50, FC. Even with as a contract of permanent union,
hence, it can terminate by a decree of annulment
and its termination carries its unique legal
implications.
When the annulment becomes final and executory,
in other words, 1. the ACP or CPG (or the shared
properties) will be dissolved and liquidated, but if
either spouse contracted marriage in bad faith, his
or her share in the net profits of the ACP or CPG will
be forfeited in favour of the common children, or if
there be none, the children of the guilty spouse by a
previous marriage, or in default of children, the
innocent spouse; 2. donations by reason of
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43
marriage shall remain valid, except that donations
made in favour of donees who got married in bad
faith are revoked by operation of law; 3. the
innocent spouse may revoke the designation of the
other spouse who acted in bad faith as beneficiary
in any insurance policy, even if such designation be
stipulated as irrevocable; 4. the spouse who got
married in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate
succession. (Art. 43, in rel. to Art. 50, FC) Lastly, 5. if
both spouses acted in bad faith, donations by
reason of marriage and testamentary dispositions
made by one in favour of the other are revoked by
operation of law. (Art. 44, FC)
3. Article 41 Marriages
a. Premise of Art. 41 Marriages
People at times can go missing and their absence
can throw the civil status of spouses who survive
them in a state of limbo. In Nov. 2013, for example,
Typhoon Yolanda caused a storm surge in Leyte,
sweeping away the loved ones of many. Some could
not retrieve the dead bodies of their lost spouses.
Since no one knows for sure what really happened
to the spouse who went missing, may surviving
spouses deem their marriages terminated on a
mere claim of the death of their missing spouses,
but without any death certificate to show for it? Art.
41, FC, hence, enables a spouse file a Petition for
the Declaration of the Presumptive Death of his or
her absent spouse. He or she must only
prove, 1. the absence of the prior spouse, i.e., for 4
consecutive years as a rule and 2 years if the
absentee was in danger of death; 2. the present
spouse had a well-founded belief that the absentee
probably already died; 3. the present spouse's plan
to remarry; and 4. the present spouse files a
summary proceeding for the declaration of
presumptive death of the absentee. (Republic v.
Cantor, G.R. No. 184621, Dec. 10, 2013)
b. Final and Executory Summary Judgment
In one case, the Office of the Solicitor General, on

behalf of the State, filed a Notice of Appeal to
question the trial court's Declaration of
Presumptive Death as to be without apt
premise. Art. 253, FC, to note, states that the rules
on summary proceedings apply to cases filed
under Art. 41, FC. Art. 238, FC, moreover, states
that cases requiring summary proceedings, "shall be
decided in an expeditious manner without regard to
technical rules. Art. 247, FC, lastly, states that the
court's judgment in these summary proceedings,
"shall be immediately final and executory." May the
OSG then, on behalf of the State, file a Notice of
Appeal to Decree of Presumptive Death issued
under Art. 41, FC?
The SC on this issue held that, "By express provision
of law, the judgment of the court in a summary
proceeding shall be immediately final and
executory. As a matter of course, it follows that no
appeal can be had of the trial court's judgment in a
summary proceeding for the declaration of
presumptive death of an absent spouse under
Article 41 of the Family Code. It goes without
saying, however, that an aggrieved party may file a
petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in
accordance with the Doctrine of Hierarchy of
Courts. To be sure, even if the Court's original
jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain
cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum.
From the decision of the Court of Appeals, the
losing party may then file a petition for review
on certiorari under Rule 45 of the Rules of Court
with the Supreme Court. This is because the errors
which the court may commit in the exercise of
jurisdiction are merely errors of judgment which are
the proper subject of an appeal. (Republic v.
Tango, G.R. No. 161062, July 31, 2009)
c. Well-founded Belief of Death, Not Mere "Passive
Search"
To issue a Declaration of Presumptive Death, the
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trial court must find solid evidence to support the
present spouse's belief that the absentee spouse
probably died already. In one case, the State
questioned the husband's claim of a well-founded
belief that his wife probably died already. The State
argued that the husband's alleged efforts to locate
the wife, "did not engender... a well-founded belief
that the latter is probably dead." If the husband
wanted to find his lost wife, in fact, he inexplicably
failed to enlist the assistance of, "the Philippine
National Police, the National Bureau of
Investigation, the Department of Foreign Affairs,
the Bureau of Immigration, the Philippine Overseas
Employment Administration, or the Overseas
Workers Welfare Administration." The State,
furthermore, argued that the husband failed to
present even one, "disinterested person to
corroborate his allegations" that his wife went
missing and could not be found despite due
diligence.
The SC held that the present spouse's belief of
death must not be based on a mere "passive
search". Citing Republic v. Cantor, the SC outlined
red flags to show that the present spouse probably
failed to conduct a reasonable search for the lost
spouse, "(1) when there is failure to present the
persons from whom the present spouse allegedly
made inquiries especially the absent spouse's
relatives, neighbors, and friends, (2) when there is
failure to report the missing spouse's purported
disappearance or death to the police or mass
media, and (3) when the present spouse's evidence
might or would only show that the absent spouse
chose not to communicate, but not necessarily that
the latter was indeed dead." The SC hence held that
if anything, the husband's pathetically anemic
efforts to locate the missing wife are, "notches
below the required degree of stringent diligence
prescribed by jurisprudence. For, aside from his
bare claims that he had inquired from alleged
friends and relatives as to [the wife's] whereabouts,
[the husband] did not call to the witness stand
specific individuals or persons whom he allegedly
saw or met in the course of his search or quest for
the allegedly missing [wife]. Neither did he prove

that he sought the assistance of the pertinent
government agencies as well as the media. Nor did
he show that he undertook a thorough, determined
and unflagging search for [the wife], say for at least
two years (and what those years were), and naming
the particular places, provinces, cities, barangays or
municipalities that he visited, or went to, and
identifying the specific persons he interviewed or
talked to in the course of his search. (Republic v.
Sareñogon, Jr., G.R. No. 199194, Feb. 10, 2016)
In another case, the present spouse actually sought
help from Media, namely Bombo Radyo, to seek out
the lost spouse, but the Highest Court still held that
his efforts fell short of the degree of diligence set by
jurisprudence because, 1. the husband failed to
present as witness the friends or relatives from
whom he claimed to have made inquiries as to the
whereabouts of his wife; 2. if the husband sought
the help of the police or the National Bureau of
Investigation, he could have increased the chances
of finding his lost wife, but he never did so;
and 3. he made no explanations as to why he failed
to perform all the other deeds to prove that he
made a due diligence search, aside from simply
broadcasting with Bombo Radyo that his wife went
missing. The SC hence held that the husband merely
conductive a "passive search" for his wife and, as
such, he failed to prove his well-founded belief that
his wife did probably die and she did not simply
abandon their family. The SC lastly held that, "A
lenient approach in applying the standards of
diligence required in establishing a "well-founded
belief" would defeat the State's policy in protecting
and strengthening the institution of marriage."
(Republic v. Catubag, G.R. No. 210580, Apr. 18,
2018)
In a third case, the SC again held the husband's
efforts as to have fallen short of the strict
requirements set by law to establish one's well-
founded belief of the absentee spouse's death. In
this case, the SC found that based on the husband's
own testimony, the reason the husband could no
longer locate his lost wife may have had something
to do more with his wife's decision to cohabit with
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45
another man and she had to evade him. More than
that, the husband only testified that, in general, he
interviewed his wife's relatives. He did not even
indicate their names, much less disclose the details
of the exchanges made in the interviews. But more
importantly, if the husband only sought the help of
the authorities to locate his wife, he could have
increased the chances of finding her; but he never
did so. The SC, hence, held that it, "cannot uphold
the issuance of a declaration of presumptive death
for the purpose of remarriage where there appears
to be no well-founded belief of the absentee
spouse's death, but only the likelihood that the
absentee spouse does not want to be found."
(Republic v. Quiñonez, G.R. No. 237412, Jan. 6,
2020)
d. Scenario MindMap after a Decree of Presumptive
Death
i. No matter what happens, the lost spouse may not
remarry during the subsistence of a prior marriage,
just because the court declared his or her
presumptive death. The decree is not a source of
rights to remarry insofar as the absentee spouse is
concerned. Only the present spouse may enter into
a valid bigamous marriage by virtue of said
decree; ii. If the present spouse fails or omits to
remarry after the issuance of a presumptive death
decree, we need not mind about
complications; iii. But if the present spouse chooses
to remarry, then we need to be mindful of myriad
consequences depending on the facts that apply to
the case, as for instance, 1. if a Higher Court
reverses the decree of presumptive death on a
Petition for Certiorari; 2. if a Higher Court reverses
the decree on a Petition for Annulment of
Judgment; 3. If the absent spouse reappears and
claims the present spouse committed extrinsic
fraud; 4. If the absent spouse does not reappear,
but an interested party files a false Affidavit of
Reappearance; and 5. if the absent spouse
reappears and an interested party files an Affidavit
of Reappearance. Let us start from the bottom
up.

e. 1st Scenario: Affidavit of Reappearance, in GF
"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," Art. 42, FC, provides. Plus, a "sworn
statement of the facts and circumstances of
reappearance shall be recorded in the civil registry
of the residence of the parties to the subsequent
marriage at the instance of any interested person,
with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in case
such fact is disputed." (Art. 42, FC)
Tolentino, Civil Code, V. 1 p. 287, however, warns
that interested parties may terminate the
subsequent marriage before the death of either
spouse of the second marriage. He writes that,
"generally if a subsequent marriage is dissolved by
the death of either spouse the effects of dissolution
of valid marriages shall arise. The good or bad faith
of either spouse can no longer be raised, because,
as in annullable or voidable marriages, the marriage
cannot be questioned except in a direct action for
annulment." The SC has adopted this position in
one case, wherein it held that, "It bears reiterating
that a voidable marriage cannot be assailed
collaterally except in a direct proceeding.
Consequently, such marriages can be assailed only
during the lifetime of the parties and not after the
death of either, in which case the parties and their
offspring will be left as if the marriage had been
perfectly valid. Upon the death of either, the
marriage cannot be impeached, and is made
good ab initio. (Social Security System v. Vda. de
Bailon, G.R. No. 165545, Mar. 24, 2006).
Tolentino, Civil Code, V. 1, p. 284, further, writes
that, "The termination by affidavit provided by the
present article 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. In fact,
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46
this would be the more advisable course if there is a
possibility that the reappearance of the absentee
would be disputed by the spouses to the
subsequent marriage." The SC again cited Tolentino
and adopted his position in the same case, as it held
that, "The termination of the subsequent marriage
by affidavit provided by the above-quoted provision
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. (Social
Security System v. Vda. de Bailon, G.R. No. 165545,
Mar. 24, 2006)
f. 2nd Scenario: Affidavit of Reappearance, in BF
It can happen that a husband remarries after
obtaining a Decree of Presumptive Death. From his
prior marriage, he has a daughter with his absentee
wife, who detests the 2nd wife and hates the 2nd
Marriage. She hates the thought of the 2nd wife
conceiving a child, which under the law will be
deemed legitimate, for being conceived during a
valid marriage, and she hates to share her father's
wealth with a 2nd family. The daughter from,
hence, googled the law and she saw that if an
interested party registers an Affidavit of
Reappearance with the Local Civil Registry, the
subsequent marriage will automatically terminate.
So she decides to lie under oath that she saw her
mother; they had dinner; and her mother told her
she felt hurt by the father's 2nd marriage. Hence,
she has decided to migrate to a faraway place, to
change her name, and to never show herself again.
With due notice to her father and his 2nd wife, the
daughter then registers this Affidavit of
Reappearance with the local civil registry of their
place of residence. What recourse should the
husband and the 2nd wife take?
Art. 42, FC, on this note, lets the parties file a
Petition for the Judicial Determination of the
claimed fact of the reappearance of the lost spouse.
But aside from this remedy, this area seems mostly
still uncharted territory. If the courts ultimately give
credence to the false affidavit of reappearance filed

by the aggrieved daughter, what happens to the
husband? 1. Will he now be liable for concubinage,
after the ipso facto termination of his 2nd marriage
due to the filing of the false Affidavit of
Reappearance, if he insists to cohabit with his 2nd
wife and his child from his 2nd marriage? 2. May
the husband file another Petition for Declaration of
Presumptive Death after again exhausting all efforts
to find his lost wife and engaging the help not only
of social media, but also of the police, the NBI, the
Department of Foreign Affairs, and the Bureau of
Immigration, to actively search for his lost wife?
But, 3. if the husband died and the 1st wife remains
nowhere to be found, will the 2nd wife inherit from
his estate as a compulsory heir?
g. 3rd Scenario: No Reappearance Affidavit
Clement, in one case, died and he seemingly left
behind 3 widows, who fought to claim his Social
Security Services "SSS" pension & death benefits.
Clement, apparently, married Alice in 1955. In 1970,
he filed a Petition for the Declaration of her
Presumptive Death. He remarried to Teresita, but
later on, another woman surfaced claiming to have
also married Clement in between Alice and Teresita.
Despite Alice's reappearance, no interested party
filed an Affidavit of Reappearance in the civil
registry of the residence/s of the parties to the
subsequent marriage. The SSS, hence, issued a
ruling nullifying Teresita's marriage to Clement as
bigamous, which the Court of Appeals reversed.
The SC, first of all, held that, "the SSC is empowered
to settle any dispute with respect to SSS coverage,
benefits and contributions, there is no doubt. In so
exercising such power, however, it cannot review,
much less reverse, decisions rendered by courts of
law as it did in the case at bar when it declared that
the December 10, 1970 CFI Order was obtained
through fraud and subsequently disregarded the
same, making its own findings with respect to the
validity of, " the first marriage on the one hand and
the invalidity of the second marriage on the other.
The SC held that, "In interfering with and passing
upon the CFI Order, the SSC virtually acted as an
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47
appellate court. The law does not give the SSC
unfettered discretion to trifle with orders of regular
courts in the exercise of its authority to determine
the beneficiaries of the SSS."
The SC, secondly, cited the eminent jurist Tolentino,
as it held that, "Where a person has entered into
two successive marriages, a presumption arises in
favor of the validity of the second marriage, and the
burden is on the party attacking the validity of the
second marriage to prove that the first marriage
had not been dissolved; it is not enough to prove
the first marriage, for it must also be shown that it
had not ended when the second marriage was
contracted. The presumption in favour of the
innocence of the defendant from crime or wrong
and of the legality of his second marriage, will
prevail over the presumption of the continuance of
life of the first spouse or of the continuance of the
marital relation with such first spouse." The SC,
hence, held that the SSC erred in holding Teresita's
Marriage to Clement as void, despite this
presumption of validity.
The SC, lastly, held that, "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 in spite 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." The SC held Teresita, Clement's
last wife by his last marriage as his rightful
dependent spouse beneficiary. (Social Security
System v. Vda. de Bailon, G.R. No. 165545, Mar. 24,
2006)
In this case, hence, the 1st marriage between the
present spouse and the absentee and the 2nd
marriage between with the 2nd wife subsist to be
valid. In theory, it may look harmless, but in reality,

it creates unintended consequences. Tolentino,
in Civil Code, V. 1, p. 285, hence, writes that the,
"law admittedly gives legal effect to the second
marriage as between the parties to it, until it is
terminated. In view of this, it is submitted that
although the first marriage subsists, all its effects
with respect to the personal and property relations
of the parties must be deemed suspended;
otherwise, we shall have an anomalous, confusing,
and immoral situation of a person with two spouses
both entitled to and exercising conjugal rights.
The de facto separation between the spouses of the
first marriage would thus have been the same
effect as legal separation, in which the marriage tie
exists but the rights and obligations of the spouses
to each other, as well as the conjugal partnership
are extinguished, to be revived only in case of
reconciliation, but in this case, the reconciliation or
reunion cannot legally be effected except by the
termination of the second marriage. Upon the
termination of the second marriage, all its effects
shall terminate, and those of the first marriage shall
be revived."
The SC actually adopts Tolentino's position, as it
held that, "When subsequent marriages are
contracted after a judicial declaration of
presumptive death, a presumption arises that the
first spouse is already dead and that the second
marriage is legal. This presumption should prevail
over the continuance of the marital relations with
the first spouse. The second marriage, as with all
marriages, is presumed valid. The burden of proof
to show that the first marriage was not properly
dissolved rests on the person assailing the validity
of the second marriage." (Santos v. Santos, G.R. No.
187061, Oct. 8, 2014)
h. 4th Scenario: Decree, Fruit from Extrinsic Fraud
Cardo, in one case, needed to get married with his
mistress. He concocted a story about Lina, his wife.
He filed a Petition for the Declaration of Lina's
Presumptive Death on a tale that Lina had left for
HongKong to work as a domestic helper for 12 years
past and he did not hear from her since. He also
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48
claimed that he searched for Lina & interviewed her
relatives, but to no avail. The trial court issued a
Decree of Presumptive Death. Cardo married his
mistress. More than a year after the Decree of
Presumptive Death, however, Lina found out.
Instead of filing an Affidavit of Reappearance to end
Cardo's 2nd marriage under Art. 42, FC, Lina filed a
Petition for the Annulment of Judgment due to
extrinsic fraud. Lina claimed she never left for
HongKong; in fact, she never left their family abode,
which she continued to share with Cardo and their
children until Cardo abandoned them for his new
marriage. Cardo, in his Petition, only made it
appear that Lina lived in Tarlac, in a wrong address,
to prevent her from belying his claims.
The CA dismissed her Petition for Annulment of
Judgement, "for being a wrong mode of remedy."
The CA held, "the proper remedy was to file a sworn
statement before the civil registry, declaring her
reappearance in accordance with Article 42 of the
Family Code." Is the CA correct? The SC held that,
"the choice of remedy is important because
remedies carry with them certain admissions,
presumptions, and conditions." On this note, the SC
held, "The filing of an affidavit of reappearance is 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." Moreover, "When subsequent
marriages are contracted after a judicial declaration
of presumptive death, a presumption arises that the
first spouse is already dead and that the second
marriage is legal. This presumption should prevail
over the continuance of the marital relations with
the first spouse.The second marriage, as with all
marriages, is presumed valid. The burden of proof
to show that the first marriage was not properly
dissolved rests on the person assailing the validity
of the second marriage." Lastly, "The choice of the
proper remedy is also 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."
To be free from criminal liability for bigamy, the

spouse present needs to prove, 1. the absence of
his or her 1st spouse for 4 years or 2 years in special
circumstances; 2. his or her well-founded belief of
the absentee's death; 3. the proceedings held to
confirm the 1st spouse's absence and the 2nd
spouse's well-founded belief of death; & 4. the
judicial declaration of presumptive death. If the lost
spouse turned out to have never been absent or if
the present spouse turned out to lack a well-
founded belief of the absentee's death, the first
spouse is liable for bigamy. The SC held that a,
"subsequent marriage contracted in bad faith, even
if it was contracted after a court declaration of
presumptive death, lacks the requirement of a well-
founded belief that the spouse is already dead. The
first marriage will not be considered as validly
terminated. Marriages contracted prior to the valid
termination of a subsisting marriage are generally
considered bigamous and void. Only a subsequent
marriage contracted in good faith is protected by
law." The SC lastly held that, "the party who
contracted the subsequent marriage in bad faith is
also not immune from an action to declare his
subsequent marriage void for being bigamous. The
prohibition against marriage during the subsistence
of another marriage still applies." (Santos v.
Santos, G.R. No. 187061, Oct. 8, 2014)
i. 5th Scenario: Higher Court voids Decree of
Presumptive Death on Certiorari
Arts. 253 and 247, FC, stipulate that, when a court
issues a Decree of Presumptive Death in a summary
proceeding under Art. 41, FC, the judgment is final
and executory. In a long line of cases, however, the
Supreme Court reversed and declared void on
certiorari the decree of presumptive death issued
by the trial courts, on the premise that the present
spouse failed to prove his or her well-founded belief
that the absentee spouse already died. Most cases
take years to litigate up to the Highest Court. What
happens, hence, if in the interim, the present
spouse gets married the second time, relying on the
final and executory decree of presumptive death
issued by the trial court? Will the reversal or nullity
of the trial court's decree of presumptive death
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49
make his 2nd marriage void either for failure to
comply with Art. 40, FC or for being bigamous
under Art. 35(4), FC?
Tolentino, Civil Code V. 1, p. 283, writes that, "A
subsequent marriage when the former marriage
has not been dissolved or declared a nullity is
generally considered bigamous and null and void.
But a subsequent marriage of the person whose
spouse has been absent for the period provided in
Article 41, when contracted in good faith, with the
spouse present having a well-founded belief that
the absent spouse is already dead, is valid. It is not a
voidable marriage, as it is not among those
enumerated by Article 45. Under the Civil Code, it
was an annullable marriage. Not being void or
voidable, it is valid under the Family
Code." Tolentino continues that, "If both parties to
the subsequent marriage acted in bad faith
(knowing that the absent spouse is alive), however,
the said marriage is void ab initio under Article 44."
Tolentino lastly writes that, "If only one party has
acted in bad faith, is the marriage valid? If the
spouse who contracted the subsequent marriage
knew that in spite of the absence of his spouse for
the period provided in Article 41 said absent spouse
was alive, his subsequent marriage should be
considered void as bigamous under Article 35(4),
because an essential element provided by Article
41, to make it an exception is wanting. If such
present spouse has acted in good faith and the
declaration of presumptive death had been
obtained, the bad faith (knowledge that the
absentee is alive) of the second spouse will not
affect the validity of the marriage, but the
provisions of Article 43 will operate against him,
such as the revocation of donations by reason of
marriage made to him, of his designation as
beneficiary in any insurance of the innocent spouse,
and his disqualification to inherit from the innocent
spouse."
The guide to the answer, hence, comes from Art.
35(4), FC, in relation to Art. 41, FC. Art.
35(4), FC states that, "bigamous and polygamous

marriages not falling under Article 41," shall be void
from the beginning. To fall under Art. 41, FC, the
Petitioner must prove, 1. theprior spouse's absence
for at least 4 consecutive years in ordinary
circumstances and for 2 consecutive years, where
there is danger of death; and 2. the present
spouse's well-founded belief of the absent spouse's
death. If after a Decree of Presumptive Death, the
case goes up on certiorari to the Supreme Court
and the present spouse remarries, what happens to
the present spouse's 2nd marriage, in case the
Supreme Court voids the Decree of Presumptive
Death issued by the trial court? What happens, for
instance, if the Supreme Court declares the trial
court to have committed grave abuse of discretion
for issuing a Decree of Presumptive Death, despite
the lack of evidence to prove the absence of the
lost spouse for at least 2 years or despite the lack of
evidence to prove the present spouse's well-
founded belief of the absentee spouse's death?
If the SC finds that the lost spouse has not been
absent for even 2 years, then Art. 41, FC does not
apply to the marriage and if Art. 41, FC would not
apply to the marriage, then Art. 35(4), FC applies.
Hence, the marriage will be deemed void for being
bigamous. The same conclusion will arise if the SC
finds that the present spouse had no well-founded
belief of the absentee spouse's death, which is the
second indispensable element to claim the
exception under Art. 41, FC. In the absence of this
well-founded belief, Art. 41, FC will again not apply
and Art. 35(4), FC will make the 2nd marriage void
as bigamous. But can the spouse present claim
good faith based on the final and executory
judgment or decree of presumptive death issued by
the trial court? To defend himself from criminal
liability for Bigamy under Art. 349, RPC, perhaps,
albeit this is highly debatable. When the SC finds
that the spouse present had no well-founded belief
of the absent spouse's death, it is tantamount to a
finding that the spouse present had no reason to
believe in good faith that the absentee spouse
already died or that Art. 41, FC, entitled him or her
to marry the second time without the risk of
committing bigamy.
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50
j. To Tie Things Together
The spouse present may remarry during the
subsistence of the first marriage only if the courts
ultimately confirmed, 1. the lost spouse's absence
for 4 years in general or 2 years in situations where
the absentee spouse fell in danger of death;
& 2. the spouse present's well-founded belief of the
absentee's death. If the lost spouse never became
absent for 2 or 4 years, depending on the
circumstances, the spouse present commits bigamy
if he or she gets married the second time. Likewise,
if the spouse present held no well-founded belief of
the absentee's death, then he or she commits
bigamy as well. What the present spouse claims,
which can be self-serving, matters less than what
the courts ultimately put on record with their
findings. Hence, if the spouse present claims
absence of more than 4 years, but the courts
declare - based on evidence - that the lost spouse
did not fall absent not even for 2 years, then the
spouse present has no legal excuse to get married a
second time while his or her first marriage subsists.
Likewise, if the spouse present claims to hold a well-
founded belief of the absentee's death, but the
courts find no evidence to support such self-serving
claim, then the spouse present commits bigamy if
he or she remarries during the subsistence of his or
her first marriage. It matters not if the courts
declare these findings in, a. the proceedings to
litigate the Petition for Declaration of Presumptive
Death itself, b. on a Petition for Certiorari filed in
with CA or SC, as the case may be, c. on a Petition
for Review on Certiorari; d. on a Petition for
Annulment of Judgment; or e. on a Petition to
declare the second marriage void for being
bigamous under Art. 35(4), FC, & not excused
under Art. 41, FC, due to the present spouse's bad
faith or knowledge that the spouse purportedly lost
or absent had been practically present all along.
4. Article 26 Marriages
Valid marriage can assume a different face when
celebrated outside the Philippines. "All marriages

solemnized outside the Philippines in accordance
with the laws in force in the country where they
were solemnized, and valid there as such, shall also
be valid in this country, except those prohibited
under Articles 35 (1), (4), (5), & (6), 36, 37, &
38." Art. 26, FC provides. "As a rule, the validity of a
marriage is determined by the law of the place
where it was entered into. As it is generally
expressed, a marriage valid where it was
celebrated, is valid everywhere. Thus, if a common
law marriage is contracted in a state where it is
valid, it will be recognized in a state where it is valid,
it will be recognized in a state where such marriages
are not allowed. Likewise, marriage by proxy
contracted in a foreign country where such
marriage is good, is good in states where it is not
allowed to be contracted, " Tolentino writes in Civil
Code, V.1, p. 260.
a. Solemnities and Formalities of Marriages
Celebrated Abroad
To a degree, Sta. Maria, Persons, 2019 Ed., p. 178,
agrees with Tolentino in that, "The legal effect
which may be given by one state to the marriage
laws of another state is merely because of comity,
or because public policy and justice demand the
recognition of such laws, and no state is bound by
comity to give effect in its courts to laws which are
repugnant to its own laws and policy. This is
because every sovereign state is the conservator of
its own morals and the good order of society. Each
sovereign state has the right to declare what
marriages it will or will not recognize, regardless of
whether the participants are domiciled within or
without its borders and notwithstanding such
marriages' validity under the laws of a foreign state
where such marriages were contracted." (citations
omitted.) To an extent, Sta. Maria, under p. 182,
also diverges with Tolentino, as he writes that,
"However, common-law marriages obtained by
Filipinos abroad should not be recognized here.
Article 26 clearly uses the word "solemnized" and
not "contracted" or "performed." "Solemnization,"
as used in marriage statutes, has a very technical
and limited meaning. It means the performance of
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the formal act or ceremony by which a man and a
woman contract marriage and assume the status of
husband and wife. It involves a civil or religious
functionary who, on behalf of the state, openly
declare the parties as husband wife." (citations
omitted.)
Legarda, Family Law, V.1, p. 183, on this note,
diverges with Tolentino but she appears to lean in
favour of Sta. Maria's position, as she writes that,
"Filipinos may not enter into a marriage which is
void in the Philippines, although valid abroad. The
only exceptions are a marriage conducted by a
person not authorized to solemnize a marriage and
a marriage without a marriage license, if the foreign
law recognizes such marriages as valid." "Note: A
marriage ceremony is merely a formal requisite,
and therefor if the marriage is valid abroad in form,
it is valid here based on Article 17(1) of the New
Civil Code. Note too, the absence of a marriage
ceremony is not included as an exception under
Article 26. Only absence of authority of a
solemmnizing officer and absence of a marriage
license are included as exceptions to the list of
marriages void even if valid where celebrated. It is
clear in the discussion of the Committee that 'the
parties consent must be given in the presence of
the solemnizing officer to avoid marriage by proxy."
(She cited the Minutes of the Family Code
Commission dates 18 Feb. 1983, p. 5.)
Rabuya, Civil Law Reviewer, V.1, 2017 Ed., p. 63,
lastly, holds a view that seems to diverge from Sta.
Maria and Legarda, as he writes that, "For
marriages involving Filipino citizens celebrated
abroad, the rule is that such marriages are
considered valid in the Philippines if they are valid
in the place where they are celebrated. Hence, the
following marriages are valid - (a) Marriages
without a marriage license if such is not required in
the place of celebration. However, if the marriage is
celebrated before the Philippine consular officials
pursuant to Article 10 of the FC, a marriage license
is still necessary. (b) Marriages celebrated by a
person who is authorized to solemnize marriages in
the place of celebration even if he or she is not

deemed authorized to solemnize marriages under
Philippine laws. (c) Marraiges by proxy, if valid in
the place of celebration. (d) Marriages through
video conferencing, if valid in the place of
celebration."
Our class, on these issues, will take the middle
ground. 1. For marriage to be valid in the
Philippines, it must be, at least, solemnized or
celebrated in a ceremony held for that purpose.
Common-law marriages, hence, where the parties
agreed to live together as husband and wife, but
never attended a ceremony or let an officer
officiate marriage will be treated simply as a
cohabitation, rather than a marriage, following by
the logic of Sta. Maria's arguments on the
distinction between "solemnized" and
"contracted." 2. But for parties who actually get
married in a marriage ceremony in a foreign
country, it matters less what Philippine law
prescribes as minimum solemnities. The law where
the spouses wed will apply, lex loci celebrationis.
Hence, for this issue, we will lean towards Rabuya's
and Tolentino's positions, which treat as valid
marriages by proxy and in Rabuya's case, even
marriages through video conferencing, if valid in the
place of celebration. These days, however, it will be
a challenge to determine the place of marriage, as
for instance, marriage by a ZOOM Meeting, where
the wife is in Cebu City, the husband is in Las Vegas,
the witnesses to their marriage, their loved ones,
are in different parts of the world, and their
solemnizing officer is in Las Vegas, U.S.A. Where is
the place of the celebration of this marriage and will
this marriage still be valid under Art. 26, FC?
b. Marriages Celebrated Abroad, When Void
"In private international law, there are two general
exceptions to the rule that a marriage valid where
celebrated is valid everywhere: (1) marriages which
are deemed contrary to the law of nature and good
morals as generally recognized in Christian
countries, and (2) marriages which the local law-
making power has declared shall not be allowed any
validity. Under the first class are polygamous
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52
marriages and incestuous marriages. The latter
refer to those contracted by persons in the direct
line of consanguinity and between brothers and
sisters. To the second class belong those which are
prohibited by statute as affecting the morals or
good order of society," Tolentino, in Civil Code, V.1,
p,. 261 writes. Furthermore, he writes that Art.
26, FC, "has expanded the exceptions to the general
rule by covering the marriages provided as void
from the beginning by Articles 35, 36, 37, and 38.
Foreign marriages falling under any of these articles
will not be recognized as valid in the Philippines
even if valid where they were
solemnized." Tolentino, however, wrote that, "the
unqualified application of this provision should be
limited to Filipinos. Where the married couple are
both foreigners, and the validity of their marriage is
questioned in Philippine Courts, our courts must
apply our law, but the judgment will have force and
effect only in the Philippine territory. Elsewhere,
the rules of conflict of laws will govern."
Civil Law Scholars seem to be mostly in agreement
on this issue. Sempio-Dy, in her book
entitled, Handbook of the Family Code of the
Philippines, p. 30, writes that Art. 26, FC, "retains
the rule in Art. 71 of the Civil Code that marriages
solemnized abroad, if valid in the country where
celebrated are also [valid] in the Philippines (the
rule of lex loci celebrationis)." "The same Article,
however, amends Art. 71 of the Civil Code as to the
exceptions to the rule of lex loci celebrationis. For
while Art. 71 of the Civil Code excepts therefrom
only bigamous, polygamous, and incestuous
marriages as determined by Philippine law, the
above Article excepts all those void under Articles
35(1), (4), (5), and (6), 36, 37, 38, and applies the
rule of lex loci celebrationis only to foreign
marriages solemnized in accordance with the
formal requisites of the countries where they were
celebrated but otherwise valid under the Family
Code."
"In other words, a foreign marriage, although valid
in the country of celebration, will still be be void in
the Philippines if: (1) Either or both parties did not

have the legal capacity to get married (Art. 35(1)).
(2) The marriage is immoral for being bigamous or
polygamous (Art. 35(4)). (3) Consent of one party is
lacking because of mistake as to the identity of the
other (Art. 35(5)). (4) One of the parties was
psychologically incapacitated at the time of the
marriage to comply with the essential marital
obligations (Art. 26); (5) The marriage is incestuous
(Art. 37); or (6) The marriage is void by reason of
public policy (Art. 38)," Sempio-Dy writes. "Art. 26
on the validity of foreign marriages applies,
however, only to Filipinos. Foreign marriages of
foreigners or of a Filipino and a foreigner are
governed by the rules of Conflict of Laws."
Rabuya, in Civil Law Reviewer, V.1, p. 64, along the
same line writes that the, "following marriages are
void even if they are celebrated abroad and
considered valid in the place of their celebration -
(a) If a party thereto is below 18 and he or she is a
Filipino citizen. (b) If the marriage is bigamous or
polygamous. (c) If the marriage is contracted
through mistake of one contracting party as to the
identity of the other. (d) If one of the parties in a
subsequent marriage is already a party to a prior
marriage which has been annulled or judicially
declared void but fails to comply with the
requirements of Article 52 of the FC. (e) If one of
the parties to such marriage, at the time of its
celebration, is psychologically incapacitated to
comply with the essential marital obligations. (f) If
the marriage is incestuous. (g) If the marriage is
void by reason of public policy as enumerated in
Article 38 of the FC. (h) Same-sex marriage is
likewise not recognized as valid in the Philippines. It
is not even a marriage under Philippine laws which
define marriage as a special contract of permanent
union between a man and woman only."
Sta. Maria, in Persons, 2019 Ed., p. 179, adds that,
"Under the Family Code, if either or both
contracting parties are Filipinos and they are below
18 years of age, their marriage solemnized abroad
will not be recognized in the Philippines as valid
even if the marriage is valid in the place where it
has been solemnized. Our law clearly clearly
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53
adheres to the rule that the marrying capacity of
the contracting parties is governed by the national
law of that party, which is the Philippine law. Article
15 of the Civil Code provides that laws relating to
family rights and duties, or to the status, conditions
and legal capacity of persons are binding upon
citizens of the Philippines, even though living
abroad. In the Philippines, persons below 18 years
of age are not legally capacitated to marry. Article
26 of the Family Code and Article 15 of the Civil
Code express the "extra-territorial effect of the
exception. Moreover, Article 17, paragraph 3 of the
Civil Code provides that prohibitive laws concerning
persons, 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."
"However," Sta. Maria adds, "if one is a Filipino and
another is an alien whose national laws capacitate
persons below 18 years of age (for instance, 16
years of age) to marry, the Family Code does not
seem to give a precise solution to this situation. It
must be pointed out that Article 35(1), which is
made an exception to the comity provisions,
provides that a marriage is void ab initio if
'contracted by any party below eighteen years of
age.' The law is addressed 'to any party.' It does not
distinguish whether one of the parties parties is a
Philippine citizen or a foreigner. Hence, the law can
be construed as a blanket exception that should
apply likewise to a situation where the foreign
spouse is below 18 years of age. The only problem
with this construction is that it will lead to absurdity
if Article 26 and the exception under Article 35(1)
are related to the other provisions of the Family
Code, specifically Article 21. It should be
remembered that under Article 21, a foreigner can
get married in the Philippines even if he is below 18
years of age if he obtains a certificate of legal
capacity from his diplomatic mission in the
Philippines stating that, in his country, persons even
under 18 years of age can marry. ... With respect to
legal capacity, the Philippines follows the nationality
rule, and hence, should accord respect to the laws
of the country insofar as the legal capacity to marry

of the foreigner is concerned. Accordingly, the
better rule is that the exception under Article 26
referring to Article 35(1) should be construed as
referring to a situation where the marriage abroad
is between a Filipino and a Filipina and not between
a Filipino or Filipina and an alien married in the
alien's state where he or she (the alien), though
below 18 years of age, is capacitated to marry. "
On the topic of SAME SEX MARRIAGE, Sta. Maria, p.
185, writes that, "Public policy in the Philippines
mandates only a man and a woman can marry each
other. This clear public policy consideration is
enunciated in Article 1 of the Family Code, stating
that marriage is a special contract of permanent
union between a man and a woman. Article 2(1)
also states that the contracting parties must be a
male and a female. In fact, the Family Code is
replete with terms and articles clearly indicating
that marriage is heterosexual relationship. It is
based on the distinction between a man and a
woman. Hence, words like 'husband and wife,'
'father and mother.' and 'man and woman' are
used. Same sex marriage, therefore, is not allowed
in the Philippines. If a Filipino contracts a marriage
abroad with a person of the same sex, whether
such person is another Filipino or a foreigner, such a
marriage shall be recognized here. Article 15 of the
Civil Code provides that 'laws relating to family
rights and duties, or to status, condition and legal
capacity of persons are binding upon citizens of the
Philippines, even though living abroad.' In the
Philippines, a persona has legal capacity to marry
only a person of the opposite sex. As stated
previously, this public policy consideration can be
clearly seen as one of the objects or bases of the
Family Code. Hence, this limitation will follow the
Filipino anywhere in the world. Moreover, the third
paragraph of Article 17 of the Civil Code provides
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 judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country. The Family Code
mandates that only a make and a female can marry
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54
each other. This is, therefore, a public policy matter
which cannot be rendered ineffective by any foreign
law."
In addition to the points raised
by Tolentino, Sempio-Dy, Rabuya, and Sta. Maria on
the application of the Nationality Principle to
determine the legal capacity of aliens related to
their family rights and duties, including their duty to
support their children, R1 in Del Socorro v. Van
Wilsem, G.R. No. 193707, Dec. 10, 2014, the SC held
that even if Dutch law failed to require child
support, Philippine courts cannot apply it,
because, (a) "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."
and (b) "foreign law should not be applied when its
application would work undeniable injustice to the
citizens or residents of the forum." R2, One may
argue that marriage between parties of the same
sex is contrary to public policy, since Art.
1, FC defines marriage to be "a special contract of
permanent union between man and woman"
and Art. 350 of the RPC, in fact, punishes
with prision correccional up to its maximum period
persons who shall contract marriage, "in disregard
of a legal impediment." R3, it helps to reiterate the
point raised by Prof. Rabuya that same-sex
marriage, "is not even a marriage under Philippine
laws which define marriage as a special contract of
permanent union between a man and woman
only." Sta. Maria, opines that, "Same sex marriage
can be allowed... only if the Supreme Court renders
unconstitutional heterosexual marriages in the
Philippines as against the equal protection clause of
the constitution. Also, if the legislature comes up
with a law signed by the President allowing same
sex marriage, such a marriage can be recognized in
the Philippines assuming that the Supreme Court
will allow it as not inconsistent with the
Constitution." (Persons, 2019 Ed., p. 186)
c. the Right to Absolute Divorce

"Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to
remarry under Philippine law," Art. 26, par. 2, of
the FC states. In a given context, hence, the
Philippine law does recognize divorce under the
following conditions: 1. it must be a mixed
marriage between a foreigner and a Philippine
citizen; 2. the alien spouse obtains the divorce in a
foreign country; and 3. the foreign court issues
a decree of absolute divorce which allows the alien
spouse to remarry.
d. meaning of "mixed marriage"
Cipri and Myros, both Filipinos, in 1981, got
married. In 1986, Myros left for the U.S.A., as she
became a naturalized U.S. Citizen. Then Myros
obtained a Decree of Absolute Divorce against Cipri
and she remarried to an American. Cipri, hence,
filed a Petition for Authority to Remarry, invoking
Art. 26, par. 2 of the FC, which the court considered
as a Petition for Declaratory Relief. The trial court
granted the Petition, but the OSG filed for Review
on Certiorari before the Supreme Court. The issue
is, whether Cipri may remarry, on account of the
Decree of Absolute Divorce obtained by Myros,
given that in 1981, Cipri's marriage to Myros was
not a mixed marriage, but one between 2 Filipinos?
The SC began by asking, "Does the same principle
apply to a case where at the time of the celebration
of the marriage, the parties were Filipino citizens,
but later on, one of them obtains a foreign
citizenship by naturalization?" The SC held that,
"taking into consideration the legislative
intent... we hold that Paragraph 2 of Article 26
should be interpreted to include cases involving
parties who, at the time of the celebration of the
marriage were Filipino citizens, but later on, one of
them becomes naturalized as a foreign citizen and
obtains a divorce decree." The SC, to add, held that,
"If we are to give meaning to the legislative intent
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55
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, then the instant case must be
deemed as coming within the contemplation of
Paragraph 2 of Article 26."
The SC, hence, laid down the rule, "In view of the
foregoing, we state the twin elements for the
application of Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been
celebrated between a Filipino citizen and a
foreigner; and 2. A valid divorce is obtained abroad
by the alien spouse capacitating him or her to
remarry." The SC held that the, "reckoning point is
not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at
the time a valid divorce is obtained abroad by the
alien spouse capacitating the latter to remarry."
(Republic v. Orbecido III, G.R. No. 154380, Oct. 5,
2005.)
e. meaning of "obtaining a decree of absolute
divorce"
Before the landmark Republic v. Manalo, legal
scholars took the position that, "Article 26 will not
apply if it is the Filipino spouse who obtains the
decree of divorce," Rabuya, for instance,
quotes Department of Justice (DOJ) Opinion No. 32,
Series of 1991 in Civil Law Reviewer, V.1, 2017
Ed. Tolentino, in Civil Code, V.1, p. 263, on the same
note, opines that, "if the foreigner obtains a valid
foreign divorce, the Filipino spouse shall have
capacity to remarry under Philippine law. But if it is
the Filipino citizen who secures the divorce, the
divorce will not be recognized in the Philippines,
and he canny remarry under the law." "This rule
seems to place a Filipino citizen on a plane of
inequality. There is reason for this, however. Our
law does not allow the Filipino to seek a foreign
divorce, hence if he obtains one, it is not recognized
in the Philippines. He is subject to the Philippine law
on status wherever he goes."
Prior to the landmark Republic v. Manalo, hence,

legal scholars interpreted the word "obtained" as
"initiated" and they took the position that if the
Filipino sued for divorce or if he or she "initiated"
the proceedings, the divorce decree will not enable
the Filipino to remarry. Two issues may be raised
from this position: 1. Is "initiate" easily
interchangeable with "obtain"? If the Filipino
spouse sues for divorce and a foreign court grants
it, will this indeed no longer fulfil the requirement
that, "a divorce decree is validly obtained abroad by
the alien spouse capacitating him or her to
remarry"? No matter who "initiates" the divorce, is
it not that the alien spouse will still and always
"obtain" the divorce? 2. This position presupposes it
to be always easy to figure out who sued for
divorce. But what happens when no one sues for
divorce, like in absolute divorce by mutual consent
as allowed in Japan, will the Filipino spouse be
allowed to remarry?
Haru (a Japanese) and Stevia (a Filipina), for
instance, got married in 2000. In 2002, they
obtained a divorced. No one sued for divorce;
instead, husband and wife only filed a divorce by
agreement. Steve, hence, filed a Petition for the
Recognition of Foreign Judgment. The RTC granted
it. The CA, however, reversed it, saying, "The
second of the following requisites under Article 26
of the Family Code is missing: (a) there is a valid
marriage that has been celebrated between a
Filipino citizen and a foreigner; and (b) a divorce is
obtained abroad by the alien spouse capacitating
him or her to remarry. This is because the divorce
herein was consensual in nature, obtained by
agreement of the parties, and not by Sakai alone.
Thus, since petitioner, a Filipino citizen, also
obtained the divorce herein, said divorce cannot be
recognized in the Philippines." Is this correct?
The SC, in this case, held that despite the fact that
the Filipina participated in the divorce proceedings
in Japan, and even if it is assumed that she initiated
the same, "she must still be allowed to benefit from
the exception provided under Par. 2 of Art. 26."
Consequently, since her marriage to Haru had
already been dissolved by virtue of the divorce
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56
decree they obtained in Japan, thereby capacitating
Haru to remarry, Stevia shall likewise have capacity
to remarry under Philippine law. The SC based this
rule on the landmark case Republic v. Manalo.
(Juego-Sakai v. Republic, G.R. No. 224015, July 23,
2018)
f. the landmark Republic v. Manalo
In 2005, Shino (a Japanese) and Relyn (a Filipina) got
married in the Philippines. Relyn sued Haru for
divorce and in 2011, a Japanese court issued a
Decree of Divorce. In 2012, Relyn then filed a
petition for cancellation of entry of marriage in the
Civil Registry of San Juan, Metro Manila, by virtue of
a judgment of divorce rendered by the Japanese
court. The trial court denied her petition for lack of
merit, as it held that, "based on Article 15 of the
New Civil Code, the Philippine law "does not afford
Filipinos the right to file for a divorce, whether they
are in the country or living abroad, if they are
married to Filipinos or to foreigners, or if they
celebrated their marriage in the Philippines or in
another country" and that unless Filipinos "are
naturalized as citizens of another country,
Philippine laws shall have control over issues
related to Filipinos' family rights and duties,
together with the determination of their condition
and legal capacity to enter into contracts and civil
relations, including marriages." The Court of
Appeals, however, overturned the trial court's
decision. The State, hence, went up to the Supreme
Court.
The SC began with a brief summary of our rules, in
that, "1. Philippine law does not provide for
absolute divorce; hence, our courts cannot grant
it. 2. Consistent with Articles 15 and 17 of the New
Civil Code, the marital bond between two Filipinos
cannot be dissolved even by an absolute divorce
obtained abroad. 3. An absolute divorce obtained
abroad by a couple, who are both aliens, may be
recognized in the Philippines, provided it is
consistent with their respective national laws. 4. In
mixed marriages involving a Filipino and a foreigner,
the former is allowed to contract a subsequent

marriage in case the absolute divorce is validly
obtained abroad by the alien spouse capacitating
him or her to remarry." To explain the rationale
behind the rule, the SC held that, "According to
Judge Alicia Sempio-Diy, a member of
the Committee, the idea of the amendment is to
avoid the absurd situation of a Filipino as still being
married to his or her alien spouse, although the
latter is no longer married to the former because he
or she had obtained a divorce abroad that is
recognized by his or her national law."
The SC furthermore held that, "Paragraph 2 of
Article 26 speaks of 'a divorce x x x validly obtained
abroad by the alien spouse capacitating him or her
to remarry.' Based on a clear and plain reading of
the provision, it only requires that there be a
divorce validly obtained abroad. The letter of the
law does not demand that the alien spouse should
be the one who initiated the proceeding wherein
the divorce decree was granted. It does not
distinguish whether the Filipino spouse is the
petitioner or the respondent in the foreign divorce
proceeding. The Court is bound by the words of the
statute; ... Verba legis non est recedendum." The SC
lastly held that if, "for the sake of argument... the
word "obtained" should be interpreted to mean
that the divorce proceeding must be actually
initiated by the alien spouse, still, the Court will not
follow the letter of the statute when to do so would
depart from the true intent of the legislature or
would otherwise yield conclusions inconsistent with
the general purpose of the act. Laws have ends to
achieve, and statutes should be so construed as not
to defeat but to carry out such ends and purposes."
The SC lastly held that, "invoking the nationality
principle is erroneous. Such principle, found under
Article 15 of the Civil Code, is not an absolute and
unbending rule. In fact, the mere existence of
Paragraph 2 of Article 26 is a testament that the
State may provide for an exception thereto.
Moreover, blind adherence to the nationality
principle must be disallowed if it would cause unjust
discrimination and oppression to certain classes of
individuals whose rights are equally protected by
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57
law. The courts have the duty to enforce the laws of
divorce as written by the Legislature only if they are
constitutional." To explain the rationale further, the
SC added that, "A Filipino who is married to another
Filipino is not similarly situated with a Filipino who is
married to a foreign citizen. There are real, material
& substantial differences between them. Ergo, they
should not be treated alike." The Court explained
that, "On the contrary, there is no real.. difference
between a Filipino who initiated a foreign divorce
proceedings and a Filipino who obtained a divorce
decree upon the instance of his or her alien spouse.
In the eyes of the Philippine and foreign laws, both
are considered as Filipinos who have the same
rights and obligations in an alien land. The
circumstances surrounding them are alike. Were it
not for Paragraph 2 of Article 26, both are still
married to their foreigner spouses who are no
longer their wives/husbands. Hence, to make a
distinction between them based merely on the
superficial difference of whether they initiated the
divorce proceedings or not is utterly unfair. Indeed,
the treatment gives undue favour to one and
unjustly discriminate against the other." (Republic v.
Manalo, G.R. No. 221029, April 24, 2018)
g. Republic v. Manalo Rationale, Some Thoughts
True enough, if the SC refused to free the Filipina
from her marriage with her Japanese husband or
declare the divorce void insofar as the Filipina is
concerned just because the Filipina initiated the
proceedings, it will lead to an absurd situation
where the Filipina will remain married under
Philippine Law to a husband no longer married to
her and to harsh unintended consequences. 1. If
the Filipina decides to move on and cohabit with
another man, will she stand the risk of being sued
for adultery? 2. If the Filipina remarries, will she be
liable for bigamy? 3. If the Filipina conceives and
gives birth to a child in the thick of her de
facto separation with her foreigner husband
following their divorce, will the law deem the child
as the former husband's legitimate child, subject to
his parental authority as legal guardian of the child's
person and property, and to carry his surname? 4. If

the Filipina earns income or acquires
properties after their divorce, will it form part of her
community of property with said former
husband? 5. If she decides to sell or donate any of
her properties, will she need the consent of her
divorced husband? 6. If the Filipina dies and leaves
behind an estate, will the former husband remain as
one of her secondary compulsory heirs? 7. If the
Filipina files an application to adopt a child, will she
have to adopt jointly with her divorced husband?
Sempio-Dy in Handbook on the Family Code, p.
31 writes that, "Foreign marriages of foreigners or
of a Filipino and a foreigner are governed by the
rules on Conflict of Laws." Art. 15, NCC, on this
note, does stipulate the nationality principle, as it
states that, "Laws relating to family rights and
duties, or the status, condition, and legal capacity of
persons are binding upon citizens of the Philippines,
even though living abroad." By the nationality rule,
it can happen, hence, that a couple in a mixed
marriage can carry a civil status that is both
"divorced", insofar as the foreigner is concerned,
and "still married", insofar as the Filipino is
concerned, at the same time. For this reason,
Republic v. Manalo teaches that paragraph 2 of Art.
26 of the FC sets an exception to the nationality
principle in that, if the foreigner spouse obtains a
divorce, the Filipino spouse is deemed as to have
obtained a divorce likewise, and vice-versa. It has a
way of simplifying the rules indeed.
h. foreign judgment of divorce, a question of fact
"Time and again... the starting point in any
recognition of a foreign divorce judgment is the
acknowledgment that our courts do not take
judicial notice of foreign judgments and laws. This
means that the foreign judgment and its
authenticity must be proven as facts under our
rules on evidence, together with the alien's
applicable national law to show the effect of the
judgment on the alien himself or herself." So what
steps should a party who invokes rights or causes of
action under Art. 26, FC, take? "Since both the
foreign divorce decree and the national law of the
KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)
58
alien, recognizing his or her capacity to obtain a
divorce, purport to be official acts of a sovereign
authority, Section 24 of Rule 132 of the Rules of
Court applies. Thus, what is required is proof, either
by (1) official publications or (2) copies attested by
the officer having legal custody of the documents. If
the copies of official records are not kept in the
Philippines, these must be (a) accompanied by a
certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service
stationed in the foreign country in which the record
is kept and (b) authenticated by the seal of his
office." (Juego-Sakai v. Republic, G.R. No. 224015,
July 23, 2018)
5. Legal Separation
We will study in greater detail the idea of Legal
Separation in Part 3. But for now, let it be said that
although marriage is a contract of permanent
union, in the thick of marriage, the parties may file
a Petition for Legal Separation with these
effects: a. the right of spouses to live on their own
or separately from each other, albeit the bonds of
marriage will not be severed. b. the loss of the
husband's or the wife's rights to consortium; c. the
dissolution of the ACP or the CPG and forfeiture of
the guilty spouse's share in the Net Profits of the
ACP or the CPG in favour of the i. common children,
or in their absence, ii. the guilty of the guilty spouse,
or in their absence, iii. the innocent spouse. Then a
regime of complete separation of property will
govern the property relations of the spouses; d. the
loss of the guilty spouse's status as compulsory or
intestate heir to the innocent spouse, but the
innocent spouse remains as compulsory and
intestate heir to the guilty spouse; e. the revocation
by operation of law of testamentary dispositions
the innocent spouse made in favour of the guilty
spouse; f. upon the finality of the decree of legal
separation, the duty of mutual support between the
spouses terminates, albeit the court may order the
guilty spouse to give support to the innocent
spouse; g. within 5 years from the finality of a
decree of legal separation, the innocent spouse may
revoke donations propter nuptias he or she made in
 59
favour of the guilty spouse; h. third party donors
may revoke donations propter nuptias made in
favour of guilty spouses, in case the latter is guilty;
and h. the innocent spouse may revoke the
designation of the guilty spouse as beneficiary in his
or her insurance policy, even if the policy holder
stipulated the designation as irrevocable.
Closing Statements to Letter No. 3.3

Marriages that are contracts of permanent union

are like one another; but marriages that end
midstream are impermanent and brittle in their
own way. The first set comes in the form of voidable
marriages under Art. 45 of the FC. The second set
comes from spouses who enter into valid bigamous
marriages after a decree of presumptive death
under Art. 41 of the FC. The last set comes in the
form of mixed marriages if one of the spouses files
for divorce under Art. 26 of the FC. From time to
time, spouses may also terminate some of the
rights and duties of marriage by way of a decree of
legal separation under Art. 55 of the FC, albeit the
law will preserve their marital ties. In terms of the
permanence of a contract of marriage, the law
provides not an absolute, but only a general rule. It
may be the State's burden to build legal
infrastructure to support marriage as a special
contract of permanent union if to build a sanctuary
especially for little children, but this mantle of
protection from the Law on Marriage has built-in
exceptions, given special circumstances. This is the
takeaway from the Edges of Marital Permanence.

10th Letter:

KMB: Letter Compilation (CIVIL-PERSONS: ATTY.T)