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EFFECT AND APPLICATION OF LAWS
The Civil Code took effect on August 30, 1950.
EFFECTIVITY OF LAWS (Art. 2)
General Rule: Laws take effect after 15 days
following the completion of its publication in the
Official Gazette or in a newspaper of general
circulation (EO No. 200).
 The law shall take effect on the 16 th day because
in counting the period, the first day is excluded
and the last day included (Art. 13, NCC).
 No one shall be charged with notice of the
statute’s provision until publication is completed
and the 15 day period has expired.
Exception: Unless otherwise provided by the law (EO
No. 200).
 The exception refers to the “15-day period”
only and not the requirement of publication.
 Publication is indispensable, absence of
which will not render the law effective (Tañada vs.
Tuvera GR No. L-63915, December 29, 1986)
Rules on Period Provided by Statute
1. Shorter/longer period than the 15-day - such
period as provided in the statute shall prevail.
2. Takes effect immediately - it shall take effect
immediately after publication with the 15-day
period being dispensed with (Tañada vs. Tuvera
G.R. No. L-63915, December 29, 1986).
3. No provision as to its effectivity - it takes effect
15 days following its publication.
Coverage (PLAC E) 3
1. Presidential Decrees
2. Laws which refer to all statutes, including local
and private laws
3. Administrative Rules and Regulations where
purpose is to enforce/implement existing law
pursuant to a valid delegation
4. Charter of a City
5. Circulars issued by the Monetary Board where
purpose is not merely to interpret but to fill in the
details of the Central Bank Act
6. Circulars and Regulations which prescribe a
penalty for its violation (People vs. Que Po Lay,
G.R. No. L-6791, March 29, 1954)
7. Executive Orders (Tañada vs. Tuvera G.R. No. L-
63915, December 29, 1986).
Publication not Required (I – L)
1. Interpretative regulations and those internal in
nature, regulating only the personnel of the
administrative agency.
2. Letters of Instructions issued by administrative
superiors on rules/guidelines to be followed by
subordinates in the performance of their duties
(Tañada vs. Tuvera, ibid).
Note: Date of effectivity of Municipal Ordinances is
NOT covered by this rule but by the Local
Government Code. (Tañada vs. Tuvera, supra).
IGNORANCE OF THE LAW EXCUSES
NO ONE (Art. 3)
Conclusive Presumption – every person is
presumed to know the law even if they have no actual
knowledge of the law.
 Applies only to mandatory and prohibitory laws.
 Does not apply to foreign laws because there is
no judicial notice of such foreign laws; it must be
proved like any other matter of fact (Ching Huat
vs. Co Heong L-1211, January 30, 1947).
Note: Mistakes in the application or interpretation of
difficult or doubtful provisions of law may be the basis
of good faith and has been given the same effect as a
mistake of fact, which may excuse one from the legal
consequences of his conduct (Art. 526, 2155, NCC).
NON RETROACTIVITY OF LAWS (Art. 4)
General Rule: No retroactive effect.
Exceptions: (P2UT NICE)
1. Tax laws when expressly declared or is clearly the
legislative intent (Cebu Portland Cement vs. Coll.
G.R. No. 18649, February 27, 1965)
2. Interpretative statutes
3. Procedural or Remedial
4. Curative or Remedial statutes
5. Emergency laws
6. Laws creating new rights (Bona vs. Briones G.R.
No. L-10806, July 6, 1918; Bustamante et al. vs.
Cayas, G.R. Nos. L-8562-8563, December 17,
1955)
7. Unless the law otherwise provides
8. Penal laws favorable to the accused.
Exceptions to the Exception: (E–I)
1. Ex Post Facto Laws
2. Laws that impair obligation of contracts (Asiatic
Petroleum vs. Llanes, G.R. No. L-25386, October
20, 1926)
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ACTS CONTRARY TO LAW (Art. 5) Judicial decisions, although in themselves not laws,
assume the same authority as the statute itself
(People vs. Licera G.R. No. L-39990, July 2, 1975).
General Rule: Acts contrary to mandatory or
prohibitory laws are VOID.
 No publication required, binding on parties after
the lapse of appeal period, and will bind all future
Exceptions: (PAVE)
cases with identical facts, until reversed by SC.
1. The law makes the act valid but punishes the
They are part of the law as of the date of the
violator (ex. Marriage solemnized by a person
enactment of said law because the Supreme Court’s
without legal authority)
interpretation merely establishes the
2. The law itself authorizes its validity (ex. Lotto,
contemporaneous legislative intent that the construed
sweepstakes)
law purports to carry into effect (People v. Licera G.R.
3. The law makes the act only voidable (ex.
No. L-39990, July 2, 1975).
Voidable contracts where consent is vitiated)
4. The law declares the nullity of an act but
HOWEVER, when a doctrine is overruled and a
recognizes its effects as legally existing (ex. Child
different view is adopted, the new doctrine should be
born before annulment of marriage is considered
applied prospectively and should not prejudice parties
legitimate)
who relied on the old doctrine (People v. Jabinal G.R.
No. L-30061, February 27, 1974).

WAIVER OF RIGHTS (Art. 6)

CUSTOMS (Arts. 11 and12)
General Rule: Rights can be waived.
Rules of conduct formed by repetition of acts
Requisites for a valid waiver: (CUE–CF) uniformly observed as a social rule. They are legally
binding and obligatory.
1. Full capacity to make the waiver.
2. Waiver must be unequivocal General Rule: Customs must be proved as a fact
3. Right must exist at the time of the waiver according to the rules of evidence.
4. It must not be contrary to law, public policy,
morals or good customs or prejudicial to a third Exception: A court may take judicial notice of a
person with a right recognized by law. custom if there is already a decision rendered by the
5. When formalities are required, the same must same court recognizing the custom.
be complied with.
Requisites to Make a Custom an Obligatory Rule:
Exceptions: (C–PEN) (P2TO)

1. Waiver is contrary to law, public order, public 1. Plurality or repetition of acts;

policy, morals or good customs; 2. Practiced by the great mass of the social
2. If the waiver is prejudicial to a third party with group;
a right recognized by law. 3. Continued practice for a long period of time;
3. Alleged rights which really do not yet exist, as 4. The community accepts it as a proper way of
in the case of future inheritance acting, such that it is considered as obligatory
4. If the right is a natural right, such as right to upon all.
be supported.
RULE ON PERIODS (Art. 13)

JUDICIAL DECISIONS FORM PART OF THE 1. Years - 365 days, unless year is identified
LEGAL SYSTEM or DOCTRINE OF STARE 2. Months - 30 days, unless month identified
DECISIS (Art. 8) 3. Days – 24 hours
4. Nights-sunset to sunrise
DOCTRINE OF STARE DECISIS enjoins adherence 5. Calendar week – Sunday to Saturday
6. Week – Count 7 days as indicated, not
to judicial precedents and is based on the principle
necessarily Sunday to Saturday
that once a question of law has been examined and
decided, it should be deemed settled and closed to  To count the period, first day is excluded, last day
further argument. is included.

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a. Marriage between Filipinos solemnized

Exception: Rule does NOT apply to computation abroad shall be void though valid abroad
of age; each year is counted based on birth when void under Philippine laws. (Article
anniversary. 26(1) FC)
b. Intrinsic Validity of Contracts: Validity is
Policy if the Last Day is a Sunday or a Legal determined by the following rules:
i. The law stipulated by the parties shall be
Holiday:
applied;
ii. In default thereof, and the parties are of
1. If the act to be performed within the period is
the same nationality, their national law
prescribed or allowed (1) by the Rules of Court,
shall be applied;
(2) by an order of the court, or (3) by any other
iii. If the parties are not of the same
applicable statute, the last day will automatically
nationalities, the law of the place of the
be considered the next working day.
perfection of the obligation shall govern
2. If the act to be performed within the period arises
its fulfillment;
from a contractual relationship, the act will
iv. If the above places are not specified and
become due despite the fact that the last day falls
they cannot be deduced from the nature
on a Sunday or Holiday.
and circumstances of the obligation, then
the law of the passive subject shall apply.
Applicable Laws
Lex Lex Rei Sitae Lex Loci
1. Penal Laws and laws of public security (Article Nationalii Celebrationis
14) Art. 15, CC Art. 16, CC Art. 17, CC
Territoriality rule governs regardless of the
nationality but subject to principles of international Citizenship is Law of the place Law of the place
law and to treaty stipulations. the basis for where the where the contract
determining property is was executed is the
2. Laws relating to family rights and duties, or to the personal situated is the basis for determining
status, condition and legal capacity of law basis for law applicable
persons. applicable determining law
Nationality rule applies regardless of their place of applicable
residence.
Covers family Covers both real Covers only the
Exception: Divorce validly obtained abroad by rights and and personal forms and
duties, property solemnities (extrinsic
alien spouse capacitating him or her to remarry,
status, validity)
the Filipino spouse shall have capacity to remarry
condition and
under Philippine law. (Article 26 (2) Family Code) legal capacity
of persons.
3. Laws on property (real and personal)
Lex Rei SItae: The law of the country where the Exception: Exceptions: Exceptions:
property is situated shall govern property
transactions. (Article 16 (1)) Art. 26, par. 2 (CIAO) 1. Art. 26, par.
of Family 1 of Family Code
Exception: Order and amount of successional Code  Capacit 2. Intrinsic
y to succeed validity of contracts
rights, intrinsic validity of testamentary provisions,
 Intrinsic
and capacity to succeed governed by the national validity of the
law of decedent. (Article 16 (2)) will
 Amount
4. Laws on forms and solemnities of
Lex Loci Celebrationis: Forms and solemnities of successional
rights
contracts, wills, and other public instruments
 Order
(extrinsic validity) shall be governed by the laws of of succession
the country in which they are executed. (Article
17)
Rules on Personal Law: Domiciliary Rule and
Exceptions: Nationality Rule Distinguished

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Domiciliary Rule Nationality Rule
Basis for determining Basis for determining
personal law of an individual personal law is
is his DOMICILE CITIZENSHIP
5. Renvoi Doctrine: Occurs when a citizen of
another country dies as a domiciliary of another
country. Where the conflict rules of the forum refer
to a foreign law, and the latter refers it back to the
internal law, the law of the forum shall apply.
Transmission Theory: If the foreign law refers it
to a third country, the said country’s law shall
govern.
6. Doctrine of Processual Presumption
The foreign law, whenever applicable, should be
proved by the proponent thereof; otherwise, such
law shall be presumed to be exactly the same as
the law of the forum.
Rule on Prohibitive Laws
General Rule: Prohibitive laws concerning persons,
their acts or property, and laws which have for their
object public order, public policy or good customs are
NOT rendered ineffective by laws, or judgments
promulgated or by determinations or conventions
agreed upon in foreign country. (Art. 17(3))
Exception: Art. 26, par. 2 Family Code (ex. Divorce
Law)
HUMAN RELATIONS
ABUSE OF RIGHT (Art. 19)
Elements: (LEP)
1. Existence of a legal right or duty;
2. Which is exercised in bad faith;
3. For the sole intent of prejudicing or injuring
another.
Doctine of Violenti Non Fit Injuria (to which a
person assents is not esteemed in law as injury) –
refers to self-inflicted injuries or to the consent to
injury which precludes the recovery of damages by
one who has knowingly and voluntarily exposed
himself to danger, even if he is not negligent in doing
so (Nikko Hotel Manila Garden, et all vs. Roberto
Reyes (Amay Bisaya) G.R. No. 154259, Feb. 28,
2005).
Damnum Absque Injuria (damage without injury) – A
person who exercises his legal right does no injury.
HOWEVER, it cannot be said that a person exercises
a right when he unnecessarily prejudices another or
offends morals or good customs.
his
 When damages result from a person’s exercise of
rights, it is damnum absque injuria (ABS-CBN v.
Republic Broadcasting Corp. G.R. No. 128690,
January 21, 1999).
ACTS CONTRARY TO LAW (Art. 20)
Every person who is criminally liable shall also be
civilly liable, whether the act is intentional or
unintentional.
ACTS CONTRA BONUS MORES (Art. 21)
Elements: (L-C-I)
1. There is a legal act;
2. But which is contrary to morals, good
customs, public order or public policy; and,
3. It is done with intent to injure.
Articles 19, 20 and 21 are related to one another and
under these articles, an act which causes injury to
another may be made the basis for an award of
damages (Albenson Enterprises Corp. v. CA, G.R.
No. 88694, January 11, 1993).
Articles 19 and 21 refer to INTENTIONAL acts while
Article 20 pertains either to WILLFUL or NEGLIGENT
acts, which must be contrary to law. (Ibid.)
PRINCIPLE OF UNJUST ENRICHMENT
(Art. 22)
Accion In Rem Verso – action for recovery of what
has been paid without just cause.
Application:
1. When someone acquires or comes into
possession of something, which means delivery
or acquisition of things; AND
2. Acquisition is undue and at the expense of
another, which means without just or legal
ground.
Accion in Rem Verso and Solutio Indebiti
Accion In Rem Verso Solutio Indebiti (Art.
2154)
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It is not necessary that the Payment was made by

payment be made by
mistake, payment could
have been made knowingly
and voluntarily but
nevertheless, there would be
recovery of what has been
paid
mistake is an essential
element to maintain the CIVIL PERSONALITY
action for recovery.
Aptitude of being the subject, active or passive, of
rights and obligations.
Juridical Capacity and Capacity to Act

Juridical Capacity Capacity To Act

Requisites: (JELA) Fitness to be the subject Power to do act with legal
1. Defendant has been enriched; of legal relations (Art. 37) effects (Art. 37)
2. Enrichment is without just or legal ground;
3. Plaintiff has suffered a loss; and Passive Active
4. He has no other action based on contract, quasi–
contract, crime or quasi–delict. Inherent Merely acquired

Lost only through death Lost through death and

Note: For a more comprehensive discussion of
other causes
Articles 19-35, please see discussion thereof under
Torts. Can exist without capacity Cannot exist without
to act juridical capacity

Cannot be limited or Can be restricted, modified

PREJUDICIAL QUESTION (Art. 36)
restricted or limited

General Rule: If both criminal and cvil cases are filed

in court, the criminal case takes precedence. Theories on Capacity to Act

Exceptions: Theory of General Theory of Special

Capacities Capacities
1. In case of prejudicial questions, the criminal case Applies to natural persons Applies to juridical persons
is suspended because the issues in the civil case
This limits the power of
are determinative of the outcome of the criminal One has the ability to do all
case. things with legal effects juridical persons only to
except only in those those that are expressly
 A prejudicial question is that which arises in a
case, the resolution of which is a logical specific circumstances conferred upon them or
where the capacity to act is those which can be implied
antecedent of the issue involved therein, and
restrained therefrom or incidental
the cognizance of which pertains to another
tribunal (Yap v. Paras, G.R. No. 101236, thereto
January 30, 1992).

Requisites: (Section 7, Rule 111, Rules of Court) Restrictions on Capacity to Act do not exempt the
a. Previously instituted civil action involves an incapacitated person from certain obligations as when
issue similar or intimately related to the issue the latter arise from his acts or from property relations
raised in the subsequent criminal action. such as easements (Art. 38): (MID-PC)
b. The resolution of such issue determines
whether or not the criminal action may 1. Minority
proceed. 2. Insanity or imbecility
3. State of being deaf mute
2. Independent civil action granted by law (CD-QR) 4. Prodigality
a. Breach of constitutional and other rights (Art. 5. Civil interdiction
32)
b. Defamation, fraud, physical injuries (Art. 33) Modifications/ Limitations on Capacity to Act (Art.
c. Refusal or failure of city or municipal police to 39): (FI3T P2A3D)
give protection (Art. 34)
1. Family Relations;
d. Quasi-delict or culpa-aquiliana (Art.2177)
2. Insanity;
3. Imbecility;
Note: The Civil Code has SUPPLETORY application
4. Insolvency;
in matters governed by special laws.

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5. Trusteeship; shall be no transmission of rights from one

6. Penalty; another (Art. 43)
7. Prodigality;
8. Age; Note: Art. 43 apply when the parties are called to
9. Alienage; succeed each other or are heirs to one another. But if
10. Absence; and the parties are not called to succeed each other, Rule
11. State of being deaf-mute. 131, Sec. 3 (jj) of the Rules of Court applies. Both are
to be applied only in the absence of facts.
Note: The consequences of the restrictions and
modifications in a person’s capacity to act are The legitimacy or illegitimacy of a child attaches upon
provided by the Civil Code, other codes, special laws, his/ her conception (Continental Steel Manufacturing
and the Rules of Court. Corp. v. Hon. Accredited Voluntary Arbitrator, et al.,
G.R. No. 182836, October 13, 2009).

NATURAL PERSONS
Beginning of Personality
General Rule: Birth determines personality (actual
personality) (Art. 40).
Exception: The law considers the conceived child as
born for all purposes favorable to it if born alive.
Therefore, the child has a presumed personality,
which has two characteristics:
1. Limited; and
2. Provisional/conditional (Quimiguing vs. Icao, G.R.
No. L-26795, July 31, 1970)
Note: The concept of provisional personality
CANNOT be invoked to obtain damages for and
in behalf of an aborted child (Geluz vs. CA, G.R.
No. L-16439, July 20, 1961).
When is a Child Considered Born:
General Rule: For civil purposes, the fetus is
considered born if it is alive at the time it is completely
delivered from the mother’s womb.
Exception: If the fetus 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 (Article 41).
Presumption of Survivorship:
In case of doubt as to which of two or more persons
called to succeed each other died first:
1. Whoever alleges the death of one prior to the
other, shall prove the same
2. In the absence of proof, the presumption is
that the parties died at the same time and there
JURIDICAL PERSONS
The following are juridical persons:
1. State and its political subdivisions
2. Corporations, institutions and entities for public
purpose or interest
3. Corporations, partnership and associations for
private interest or purpose to which the law grants
a juridical personality, separate and distinct from
that of each shareholder, partner or member (Art.
44)
Creation:
1. For (1) and (2), by the laws creating or
recognizing them; government corporations are
created by their special charters passed by the
legislature
2. Private corporations are governed by BP 68; and
3. Partnerships and associations for private interest
or purpose are governed by the provisions of this
Code concerning partnerships.
Note: The estate of a deceased should be considered
an artificial or juridical person for the purposes of the
settlement and distribution of his estate which include
the exercise during the judicial administration thereof
of his rights and the fulfillment of obligations which
survived after his death (Limjoco vs. Intestate Estate
of Pedro Fragrante, No. L–770 April 27, 1948).
Cessation of Civil Personality
1. If natural persons: by death (Art. 42)
 The effect of death upon the rights and
obligations of the deceased is determined by
law, contract, and by will because some rights
and obligations survive the death of a person
2. If juridical persons: by termination of existence

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 Dissolution of private corporations is only be two persons – one

governed by Title IV of the Corporation Code is a female and the other regardless of gender
 Dissolution of corporations for public interest is a male
or purposes is governed by the provisions of
their respective charters and in its absence by Parties can fix a period for
the Corporation Code its efficacy to be
Permanent Union ineffective after a few
years

FAMILY CODE
Breach of obligations of
husband and wife does
The Family Code of the Philippines took effect on not give rise to an action
August 3, 1988. for damages. The law Breach of ordinary
provides penal and civil contracts gives rise to an
sanctions such as action for damages
MARRIAGE
prosecution for adultery or
concubinage and
A special contract of permanent union between a man proceedings for legal
and a woman entered into in accordance with law for separation.
the establishment of conjugal and family life. It is the Can be dissolved by
foundation of the family and an inviolable social Can be dissolved only by mutual agreement and by
death or annulment, not other legal causes
institution whose nature, consequences and incidents by mutual agreement
are governed by law and not subject to stipulation
(Art. 1).
 Although a marriage contract is considered a Breach of Promise to Marry
primary evidence of marriage, its absence is not
always proof that no marriage took place. General Rule: It is not by itself an actionable wrong
Testimony of one of the parties to the marriage, (Hermosisima vs. CA L-14628, September 30, 1960).
witnesses or solemnizing officer is admissible to One cannot seek specific performance to compel
prove the fact of marriage. (Balogbog v. CA, G.R. marriage.
No.  83598, March 7, 1997).
 Once the presumption of marriage arises, other Exceptions: To be actionable, there must be another
evidence may be presented in support thereof. act independent of the breach of promise to marry
The evidence need not necessarily or directly which gives rise to liability as where there was
establish the marriage but must at least be
enough to strengthen the presumption of financial damage, social humiliation, and moral
marriage. Every intendment of law leans toward seduction.
legitimizing marriage (Delgado vda de De la Rosa
v. Heirs of Marciana vda de Damian, GR No 1. Mere breach of promise to marry is not an
155733, January 27, 2006) actionable wrong; but to formally set a wedding
and go through all the preparations and publicity,
Marriage and Ordinary Contract Distinguished only to walk out of it when the matrimony is about
to be solemnized, is quite different. This is
palpably and unjustifiably contrary to good
Marriage Ordinary Contract
customs for which defendant must be held
Special contract Merely a contract
answerable in damages pursuant to Art. 21 NCC.
Social institution Merely a contract (Wassmer vs. Velez, No. L-20089, December 26,
1964)
Governed by law on Governed by law on
marriage contracts 2. Where a man’s promise to marry was the
proximate cause of giving herself unto him in
Not subject to stipulations sexual congress and there is proof he had no
Generally subject to
except in property intention of marrying her, the promise being a
stipulations
relations deceptive device, damages may be awarded
pursuant to Art. 21 NCC because of the fraud and
Minors may contract thru
deceit behind it and the willful injury to her honor
their parents or guardians
Legal capacity is required and reputation (Baksh vs. CA, G.R. No. 97336,
or in some cases by February 19, 1993).
themselves

Contracting parties must Two or more parties Essential Requisites of Marriage: (LC)

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1. Legal capacity of the contracting parties, who
must be a male and a female
a. Eighteen years old or above
b. Not under any impediment mentioned in Arts.
37 and 38 (Art. 5)
2. Consent freely given in the presence of a
solemnizing officer (Art. 2)
 No particular form required
 Capable of intelligently understanding the
nature and consequences of the act
Formal Requisites of Marriage: (ALM)
1. Authority of the solemnizing officer
2. Valid Marriage License
3. Marriage ceremony where the contracting
parties appear before the solemnizing officer, with
their personal declaration that they take each
other as husband and wife in the presence of not
less than two witnesses of legal age (Art. 3)
Effects of: (Art. 4)
1. ABSENCE of essential or formal requisites:
The marriage is VOID AB INITIO (ex: expired
marriage license, marriage by way of jest)
Exception: Marriage is valid where either or both
parties believed in good faith that the solemnizing
officer had legal authority to do so when he had
none at the time of the solemnization of the
marriage (Art. 35(2))
2. DEFECT in any of the essential requisites:
The marriage is VOIDABLE (ex: consent obtained
through force and intimidation)
3. IRREGULARITY in any of the formal
requisites: Does NOT affect the validity of the
marriage BUT will hold the party responsible for
such irregularity civilly, criminally and
administratively liable
Exception: Marriage is VOIDABLE where
contracting party 18 years old or over but below
21 without the consent of the parents
Authority of Solemnizing Officer
It is not the presence/absence of the solemnizing
officer which constitutes the formal requirement but
the absence/presence of the authority of such
solemnizing officer at the time of the solemnization of
the marriage.
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General Rule: The Solemnizing officer is not duty
bound to investigate whether the marriage license
was regularly issued.
 Must only determine if it was issued by a
competent official
 If so, it may be presumed that the said official
fulfilled the duty to ascertain whether the
contracting parties fulfilled the requirements of law
(People vs. Janssen)
Exception: In cases of marriage in articulo mortis, in
remote places, and between a man and a woman
living together as husband and wife for at least 5
years without legal impediment to marry each other
 Solemnizing officer must take steps to
ascertain the ages, relationship, and qualifications
of contracting parties (Art. 29)
Persons Authorized to Solemnize Marriages (Art.
7): PMJCCC
1. Priest, rabbi, imam or ministers of any church or
religious sect
a. duly authorized by his church or religious sect
b. registered with the Office of the Civil Registrar
General
c. acting within the limits of the written authority
granted
d. at least one of the parties belongs to the
solemnizing officer’s church or religious sect
2. Municipal and city mayors (Local Government
Code, January 1, 1992)
 The term “Mayor” includes a Vice-Mayor who
is the “Acting Mayor” or who is merely acting
as a Mayor (People vs. Bustamante, citing
Laxamana vs. Baltazar)
3. Incumbent members of the judiciary within the
court’s jurisdiction
4. Ship captains or air plane chiefs (Art. 31)
 Only in cases of marriages in articulo mortis
between passengers or crew members
 During the voyage, while plane is in flight or
ship is at sea and during stopovers at ports of
call
 Assistant pilot has no authority to solemnize a
marriage even if airplane chief dies during the
trip
5. Commanders of military unit, in the absence of
chaplain (Art. 32)
 Must be a commissioned officer – rank should
start from second lieutenant, ensign and
above (Webster Dictionary, 1991 edition)
 San Beda College of Law
Persons and Family Relations
 Only in cases of marriage in articulo mortis
between members of the armed forces or
civilians within the zone of military operation
6. Consul generals, consuls or vice–consuls of the
Republic of the Philippines abroad (Art. 10)
 Only in cases of marriage between Filipino
citizens abroad
 The marriage ceremony is in accordance with
the laws of the Philippines (Art. 17, NCC)
 Also performs the duties of the local civil
registrar
 Consuls on home assignment in the
Philippines cannot solemnize marriage
Valid Marriage License
The license is valid in any part of the Philippines for
120 days from date of issue, which is the date when
the local civil registrar signed the license.
 Automatically canceled at the expiration of the
period if contracting parties have not made use of
it (Art. 20)
 The requirement that the parties or one of
them must reside in the place of the issuance of
the license is a mere formal requirement. If there
is no compliance with the same, the defect is a
mere infirmity that does not affect the validity of
the marriage (Ty vs. Court of Appeals, 2003).
 When either or both parties are foreign
citizens, they must first submit a CERTIFICATE
OF LEGAL CAPACITY TO MARRY issued by
their diplomatic/consular officials before marriage
license can be obtained (Art. 21)
Exception: Marriage of both foreign citizens will be
solemnized by their country’s consul-general assigned
in the Philippines, if their country’s law allows the
same
Stateless persons/refugees from other countries shall
submit an affidavit stating circumstances to show
capacity to contract marriage before a marriage
license can be obtained (Art. 21)
Marriages Exempt from License Requirement
(MOLAR) (Art.27)
1. Among Muslims or members of ethnic cultural
communities solemnized in accordance with their
customs, rites and practices (Art. 33)
2. Solemnized outside the Phil. where no
marriage license is required by the country where
they were solemnized
3. Of a man and a woman who have lived
together as husband and wife for at least 5 years
and without legal impediment to marry each other
10
(Art. 34)
Requisites:
a. The man and woman must have been
living together as husband and wife for at
least five years before the marriage;
b. The parties must have no legal
impediment to marry each other;
c. The fact of absence of legal impediment
between the parties must be present at
the time of  marriage;
d. 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
e. 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 (Manzano v. Sanchez G.R. No.
MTJ–00–1329, March 08, 2001)
 The 5–year period should be computed on the
basis of cohabitation as husband and wife
where the only missing factor is the marriage
contract to validate the union (ex: if both
cohabited at the age of 17, counting starts
when parties reach 18 years)
 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
legal impediment was present at any time
within the 5 years and CONTINUITY – that is
unbroken (Republic v. Dayot, G.R. No.
175581,March 8, 2008)
4. In articulo mortis
 Remains valid even if ailing party
subsequently survives (Art. 27)
5. In remote places
 Residence of either party is so located that
there is no means of transportation to enable
them to personally appear before the local
civil registrar (Art. 28)
Marriage Ceremony
There is no particular form prescribed by the Family
Code.
The absence of two witnesses of legal age is merely
an irregularity but the party responsible for the
irregularity shall be civilly, criminally, and
administratively liable.
 San Beda College of Law
2010 Centralized Bar Operations

Marriages by proxy in Art. 41, FC (Art. 35(4))

3. Contracted through mistake of one party as to
1. If it was solemnized in the Philippines, the the identity of the other (Art. 35(5))
marriage is VOID because physical appearance is 4. Contracted following the annulment or
required under Art. 6. declaration of nullity of a previous marriage but
2. If performed abroad, whether between Filipinos or before partition (Art.35(6))
foreigners or mixed, the controlling article is Art. 5. Void due to psychological incapacity (Art. 36)
26 of the Family Code. 6. Incestuous (Art.37)
7. Void for reasons of public policy (Art. 38)
Authorized Venues of Marriage (Art. 8)
Divorce
General Rule: Must be solemnized publicly, and not
elsewhere, in the: General rule: No divorce is allowed in the Philippines

1. Chambers of the judge or in open court Exceptions:

2. Church, chapel or temple
3. Office of consul–general, consul or vice– 1. Between 2 aliens – if valid in their national laws
consul even if marriage was celebrated in the Philippines
2. Between a Filipino and an Alien – if (a) there is a
Exceptions: valid marriage celebrated between a Filipino
citizen and a foreigner; and (b) a valid divorce
1. Marriage in articulo mortis; according to the national law of the foreigner is
2. Marriage in remote places; obtained abroad by the alien spouse capacitating
3. Marriage at a house or place designated by him or her to remarry. Art. 26(2))
the parties in a sworn statement to that effect,  The Filipino spouse should likewise be
with the written request of both parties to the allowed to re–marry as if he or she was a
solemnizing officer foreigner at the time of the solemnization of
the marriage. To rule otherwise would
Note: This provision is only directory and the sanction absurdity and injustice
requirement that the marriage be solemnized in a  Party pleading it must prove divorce as a fact
particular or a public place is not an essential and demonstrate its conformity to the foreign
requisite. law allowing it, which must be proved as
courts cannot take judicial notice of foreign
laws. If a valid divorce decree has been
FOREIGN MARRIAGE obtained abroad, there is no more need to file
an action to nullify the marriage. The plaintiff
has no more personality to sue since the
Validity of Marriage
marriage bond has already been severed
(Felicitas Amor-Catalan vs. CA, G.R. No.
General Rule: Where one or both parties to the
167109, February 6, 2007).
marriage are citizens of the Philippines, the foreign  Article 26 (2) applies where parties were
marriage is valid in this country if solemnized in Filipino citizens at the time of celebration of
accordance with the laws of the country of celebration. the marriage, but later on, one of them
(Art. 26) becomes naturalized as a foreign citizen and
obtains a divorce decree because the
 In case a Filipino contracts a foreign marriage reckoning point is their citizenship at the time
which is null and void in the place where it was a valid divorce is obtained abroad by the alien
solemnized, the same shall also be null and void spouse capacitating the latter to re–marry.
in the Philippines even if such was valid if (Rep. vs. Cipriano Obrecido III, G.R. No.
celebrated under Philippine laws 154380, Oct. 5, 2005)
 If both are foreigners, lex loci celebrationis  In Edgar San Luis v. Felicidad Sagalongos
applies (G.R. No. 134029, February 6, 2007), whether
a Filipino who had been divorced by his alien
Exceptions: Foreign marriages shall not be spouse abroad may validly remarry in the
recognized in the Philippines if: (B2MA-PIP) Philippines considering that the marriage was
solemnized before the Family Code, it was
1. Contracted by a national who is below 18 held that it need not retroactively apply the
years of age (Art. 35(1)) provisions of the Family Code, particularly
2. Bigamous or polygamous except as provided Article 26, par. (2), considering that there is

11
 San Beda College of Law
Persons and Family Relations
sufficient jurisprudential basis allowing the
retroactivity of the Family Code.
 There must be a showing that the divorce
decree gave the foreigner spouse legal
capacity to remarry because in some
jurisdictions, remarriage may be limited or
prohibited (Bayot vs. Bayot, G.R. No. 155635
& 163979, November 7, 2008).
VOID MARRIAGES (Art. 35)
Due to absence of any of the essential requisites:
(BB–LAPIS)
1. Contracted by any party below 18 years of age
even with parental consent;
2. Solemnized by any person NOT LEGALLY
authorized to perform marriages UNLESS one or
both of the parties believed in good faith that the
solemnizing officer had the legal authority to do
so;
3. Solemnized WITHOUT a license except as
otherwise provided;
4. Bigamous or polygamous marriages except Art
41;
5. Marriages contracted through mistake of one of
the parties as to the physical identity of the other
6. Subsequent marriages that are void under Article
53 of the Family Code
7. Contracted by a party who at the time of the
marriage was psychologically incapacitated.
Note: Enumeration in Art 35 is NOT exclusive.
Psychological Incapacity (Art. 36)
No less than a mental (not physical) incapacity that
causes a party to be truly incognitive of the basic
marital covenants that concomitantly must be
assumed and discharged by the parties to the
marriage. Its meaning is confined to the most serious
cases of personality disorders clearly demonstrative of
an utter insensitivity or inability to give meaning and
significance to the marriage. This psychological
condition must exist at the time the marriage is
celebrated. (Santos vs. CA, G.R. No. 112019,
January 4, 1995)  4.
12
 Requisites of Psychological Incapacity: (JIG)
1. Gravity – must be grave/serious such that the
party would be incapable of carrying out the
ordinary duties required in a marriage;
2. Juridical Antecedence – Must be rooted in the
history of the party antedating the marriage,
although the overt manifestations may emerge
only after the marriage; and
3. Incurability – Must be incurable or, even if it
were otherwise, the cure would be beyond the
means of the party involved. (Santos vs. CA, G.R.
No. 112019, January 4, 1995) 
May involve a senseless, protracted and constant
refusal to comply with the essential marital obligations
by one or both of the spouses although he, she or
they are physically capable of performing such
obligations (Chi Ming Tsoi v. CA, G.R. No. 119190,
Jan. 16, 1997)
A person who is unable to distinguish between fantasy
and reality would be unable to comprehend the legal
nature of the marital bond much less its psychic
meaning and the obligations attached to the marriage,
including parenting. One unable to adhere to reality
cannot be expected to adhere as well to any legal or
emotional commitments (Antonio v. Reyes, G.R. No.
155800, March 10, 2006)
While disagreements on money matters would, no
doubt, affect the other aspects of one’s marriage as to
make the wedlock unsatisfactory, this is not a
sufficient ground to declare a marriage null and void.
In fact, the Court takes judicial notice of the fact that
disagreements’ regarding money matters is a
common, and even normal, occurrence between
husbands and wives. (Tongol vs. Tongol, G.R. No.
157610, October 19, 2007)
Petitioner is not entitled to moral damages based on
declaration of psychological incapacity because the
award of moral damages should be predicated, not on
the mere act of entering into the marriage, but on
specific evidence that it was done deliberately and
with malice by a party who had known of his or her
disability and yet willfully concealed the same. (Noel
Buenaventura v. CA, et al., G.R. No. 127358, March
31, 2005)
Essential Elements: (MAVFFCCI)
1. Mental condition
2. Applies to a person who is maritally
contracted to another
3. Marriage entered into with volition
Failure to perform or comply with the essential
obligations in marriage
 San Beda College of Law
2010 Centralized Bar Operations
5. Failure to perform is chronic
6. Cause is psychological in nature
7. Cause is serious, with juridical antecedence,
and must be incurable
8. Incapacity results in the failure of the
marriage.
Jurisprudential Guidelines (Molina Doctrine)
(Republic v. Molina G.R. No. 108763, February 13,
1997): (PROBE PIG)
1. Plaintiff has burden of proof;
2. Root cause of the psychological incapacity
must be:
a. Medically or clinically identified
b. Alleged in the complaint:
i. Sufficiently proven by experts
ii. Clearly explained in the decision
3. Incapacity proven to be existing at the time of
the celebration of marriage;
4. Incapacity must be permanent or incurable;
5. Illness is grave enough to bring about
disability to assume essential marital obligations;
6. Marital obligations refer to Art. 68–71,
220,221 and 225 of the FC;
7. Interpretations of the National Appellate
Matrimonial Tribunal of the Catholic Church of the
Philippines while not controlling should be given
great respect;
8. Trial court must order the prosecuting
attorney or fiscal and the Solicitor General to
appear for the state.
Note: The SC held in Te vs. Te (G.R. No. 161793,
February 13, 200) as decisive the psychological
evaluation made by the expert witness and thus ruled
that the marriage of the parties is null and void on the
ground of both parties’ psychological incapacity. The
clinical psychologist did not personally examine the
respondent, and relied only on the information
provided by petitioner. Further, the psychological
incapacity was not shown to be attended by gravity,
juridical antecedence, and incurability, deviating from
Republic vs. CA and Molina (1997) ruling, upon the
Court’s reasoning that the impositions of the Molina
case were inappropriate, as cases of psychological
incapacity should be decided not on the basis of a
priori assumptions, predictions or generalizations but
according to its own facts. Courts should interpret the
provision on a case-to-case basis; guided by
experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church
tribunals. The Molina doctrine has become a strait-
jacket, forcing all sizes to fit into and be bound by it.
The Court in conveniently applying Molina, has
allowed diagnosed sociopaths, schizophrenics,
13
nymphomaniacs, narcissists and the like, to
continuously debase and pervert the sanctity of
marriage.
The wife’s promiscuity and the psychiatrist’s report
that she was suffering from social personality disorder
exhibited by blatant display of infidelity, emotional
immaturity, and irresponsibility cannot be equated with
psychological incapacity (Dedel vs. Court of Appeals,
G.R. No. 151867, January 29, 2004).
Similarly, the husband’s alleged alcoholism,
drunkenness, his habitual verbal and physical abuse
of the wife, failure to support the latter and her
children, and unbearable jealousy, do not constitute
psychological incapacity (Republic vs. Melgar, G.R.
No. 139676, March 31, 2006).
In Marcos v. Marcos (GR. NO. 136490, October 19,
2000), the SC held that psychological incapacity may
be established by the totality of the evidence
presented. The facts alleged in the petition and the
evidence presented, considered in totality, should be
sufficient to convince the court of the psychological
incapacity of the party concerned. (Bernardino S.
Zamora vs. CA, G.R. No. 141917, February 7, 2007)
 The complete facts should allege the physical
manifestations, if any, as are indicative of
psychological incapacity at the time of the
celebration (Sec. 2(d) A.M. No. 02-11-10-SC,
March 15, 2003)
 There is NO REQUIREMENT that the person
sought to be declared psychologically
incapacitated should be personally examined by a
physician/ psychologist as a condition sine qua
non to arrive at such declaration. It can be proven
by independent means that one is psychologically
incapacitated, There is no reason why the same
should not be credited. (Republic of the
Philippines vs. Laila Tanyag-San Jose and
Manolito San Jose, G.R. No. 168328, February
28, 2007)
Psychological incapacity is not meant to comprehend
all possible cases of psychoses. The fourth guideline
in Molina requires that the psychological incapacity as
understood under Art. 36 (FC) must be relevant to the
assumption of marriage obligations, not necessarily to
those not related to marriage, like the exercise of a
profession or employment in a job (Tongol vs. Tongol,
G.R. No. 157610, October 19, 2007).
The new Rule promulgated by the SC on 4 March
2003 on Annulment and Declaration of Nullity of
 San Beda College of Law
Persons and Family Relations

Marriage dispensed with the certification from the relatives by consanguinity or affinity of the
Solicitor General, stating therein his reasons for his adopter;
agreement or opposition to the petition. Attachment of 5. Parties who have been convicted of adultery
or concubinage.
expert opinions to the petition is also dispensed with
6. Collateral relatives by the half blood
(Tongol vs. Tongol, G.R. No. 157610, October 19,
2007). Void Subsequent Marriages

Rule on Declaration of Absolute Nullity of Void 1. Without judicial declaration of nullity of previous
Marriages and Annulment of Voidable Marriages void marriage (Art. 40)
(A.M. No. 02- 11- 10 SC, March 15, 2003), provides 2. Without judicial declaration of presumptive death
option to the trial judge to refer the case to a court- of absent spouse (Art. 41)
appointed psychologist/ expert for an independent 3. Where the absent spouse was presumed dead,
and both the present spouse and would–be
assessment and evaluation of the psychological state
spouse were in bad faith in contracting marriage
of the parties, in order to assist the court to arrive at (Art. 44)
an intelligent and judicious determination of the case. 4. Failure to comply with Art 52 requiring the
partition and distribution of properties and delivery
Note: Final judgment denying a petition for nullity on of children’s presumptive legitimes which should
the ground of psychological incapacity bars a be recorded in the appropriate civil registry and
subsequent petition for declaration of nullity on the registry of property after obtaining judgment for
ground of lack of marriage license. There is res declaration of nullity or annulment (Art. 53).
judicata (Mallion vs. Alcantara, G.R. No. 141528,
October 31, 2006). Note: Failure to record in the civil registry and registry
of property the judgment of annulment or of absolute
Incestuous marriages, whether the relationship is nullity of the marriage, partition and distribution of the
legitimate or illegitimate, between (Art. 37): property of the spouses and the delivery of the
children’s presumptive legitimes shall not affect third
1. Ascendants & Descendants of any degree; persons (Arts. 52–53).
2. Brothers & Sisters whether full or half–blood
Void and Voidable Marriage Distinguished
Those contrary to public policy contracted
between (Art. 38): (C-KA3PS3) Void Voidable
Decree of nullity Decree of annulment
1. Collateral blood relatives whether legitimate or
illegitimate up to the 4th civil degree Incapable of ratification Ratified by free
2. Step–parents & step children cohabitation
3. Parents–in–law & children–in–law
4. The adopting parent & the adopted child Can be attacked directly Can be attacked directly
5. The surviving spouse of the adopting parent & the or collaterally only
adopted child
6. The surviving spouse of the adopted child & the Co–ownership of Generally Conjugal
adopter properties through joint Partnership or Absolute
7. Adopted child & a legitimate child of the adopter actual contributions Community
8. Adopted children of the same adopter
Always void Valid until annulled
9. Parties where one, with the intention to marry the
other, killed the latter’s spouse, or his/her spouse. Action for declaration of Action prescribes
 There is no need for conviction in a criminal nullity does not prescribe
case of the guilty party. The fact of killing
committed by one of the parties to the Only the spouses can Those provided under Art.
marriage can be proved in a civil case have their marriage 47
declared void starting
The following can now marry each other: (LSG- March 15, 2003; but
CA) before such date, any
interested party can do
1. Brother–in–law and sister–in–law; so
2. Stepbrother and stepsister;
3. Guardian and ward;
4. Adopted and illegitimate child, parents and

14
 San Beda College of Law
2010 Centralized Bar Operations
Judicial Declaration of Nullity
The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage
void (Art. 40).
 Remarriage is not the sole purpose of declaration
of nullity of a marriage as it can be declared void
for other purposes
For purposes of remarriage, the only legally
acceptable basis for declaring a previous marriage an
absolute nullity is a final judgment declaring such
previous marriage void
 Parties to a marriage should not be permitted to
judge for themselves its nullity, only competent
courts having such authority. Prior to such
declaration of nullity, the validity of the first
marriage is beyond question (Landicho vs.
Rolova L-22579, February 23, 1968).
 One who enters into a subsequent marriage
without first obtaining such judicial declaration is
guilty of bigamy. This principle applies even if the
earlier union is characterized by statute as “void.”
(Manuel vs. People, G.R. No. 165842,November
29, 2005)
 Interestingly, in Lucio Morigo vs. People, GR
No. 145226, Feb. 6, 2004, the SC ruled that a
judicial declaration of nullity is NOT NEEDED
where NO MARRIAGE CEREMONY at all was
performed by a duly authorized solemnizing
officer, as where the parties merely signed a
marriage contract on their own without the
presence of the solemnizing officer
For purposes other than remarriage, such as but not
limited to determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate, dissolution
of property regime or criminal case, other evidence is
acceptable to show the nullity of the marriage and the
court may pass upon the validity of marriage so long
as it is essential to the determination of the case
(Niñal vs. Bayadog, G.R. No. 133778, March 14,
2000).
 Collateral attack of marriage is allowed
 In a case for concubinage, the accused need not
present a final judgment declaring his marriage
void, for he can adduce evidence in the criminal
case of the nullity of his marriage other than proof
of a final judgment declaring his marriage void
(Beltran vs. People, G.R. No. 137567, June 20,
2000).
Who may file Action for Declaration of Nullity
Before March 15, 2003 – Any interested party can file
a direct case for nullity of marriage, e.g., a father can
file a case for declaration of nullity of a bigamous
marriage entered into by his daughter and a married
man.
15
March 15, 2003 and onwards – A petition for
declaration of absolute nullity of void marriage may be
filed solely by the husband or wife. A.M. 02-11-10-SC
which provides for the same is prospective in its
application. (Juan de Dios Carlos vs. Falicidad
Sandoval, G.R. No. 179922, December 16, 2008)
Imprescriptibility of Action for Declaration of
Nullity
General Rule: The action or defense for the
declaration of absolute nullity of a marriage shall not
prescribe (Art. 39, as amended by R.A. 8533
approved on February 23, 1998).
Declaration of Nullity not a Prejudicial Question
The pendency of the civil action for nullity of marriage
does not pose a prejudicial question in a criminal case
for concubinage. (Beltran vs. People, G.R. No.
137567, June 20, 2000). This ruling applies in a case
for bigamy by analogy since both crimes presuppose
the subsistence of a marriage. (Bobis vs. Bobis, G.R.
No.138509, July 31, 2000).
BIGAMOUS MARRIAGES (Art. 41)
General Rule: A marriage contracted by any person
during the subsistence of a previous valid marriage
shall be null and void (Gomez v. Lipana, GR. No. L–
23214, June 30, 1970)
Exception: Before the celebration of the subsequent
marriage, a declaration of presumptive death is
obtained after complying with the following
requirements: (JAB)
1. Absence of the other spouse must have been for
4 consecutive years, or 2 years where there was
danger of death under circumstances laid down in
Art. 391 of the NCC
2. Well-founded belief of the present spouse who
wishes to marry that absent spouse is already
dead
3. Judicial declaration of presumptive death; present
spouse must file a summary proceeding for the
declaration of the presumptive death of the
absentee without prejudice to the latter’s
reappearance
Note: This is intended to protect the present spouse
from criminal prosecution for bigamy under Art 349 of
the Rev Penal Code. However, if the bigamous
marriage was committed abroad, the guilty party
cannot be criminally prosecuted for bigamy in the
Philippines as our penal statutes are territorial in
nature.
 San Beda College of Law
Persons and Family Relations
Exception to the exception: If both spouses of the
subsequent marriage acted in bad faith, said marriage
shall be void ab initio and all donations made by one
in favor of the other are revoked by operation of law.
(Art. 44)
Effect of Reappearance of Absent Spouse:
General Rule: The subsequent bigamous marriage
under Article 41 remains valid despite reappearance
of the absentee spouse.
Exception: Subsequent marriage is automatically
terminated if the reappearance was recorded in a
sworn statement 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 said
spouses, without prejudice to the fact of reappearance
being judicially determined in case such fact is
disputed.
Exception to the exception: If there was a previous
judgment annulling or declaring the first marriage a
nullity, the subsequent bigamous marriage remains
valid.
Notes:
 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 (SSS v. Bailon, G.R. No
165545, March 24, 2006).
 Judgment declaring a spouse presumptively dead
is unappealable because the proceedings thereon
are summary in nature as per Art. 153 FC. The
remedy is special civil action for certiorari (Heirs
of Maura So vs. Obliosca, G.R. No. 147082,
January 28, 2008).
See Comparative Chart on Effects of Declaration of
Nullity, Annulment and Termination of Marriage in Art.
41 and Legal Separation.
VOIDABLE MARRIAGES (Art. 45)
Grounds: (UP–FAVS) must exist AT THE TIME of
marriage
1. Age of the party in whose behalf the marriage
is sought to be annulled was 18 years of age or
over but below 21, and the marriage was
16
solemnized without the consent of the parents,
guardian or person exercising substitute parental
authority over the party, in that order;
2. Unsound mind of either party
3. Consent of either party obtained by fraudulent
means as enumerated in Art. 46: (NPSD)
a. Non–disclosure of a previous conviction by
final judgment of the other party of a crime
involving moral turpitude;
b. Concealment by the wife of the fact that at the
time of the marriage, she was pregnant by a
man other than her husband;
 Must have been done in bad faith. If the
woman did not expressly inform the man
of her pregnancy but such physical
condition was readily apparent to the
man, he cannot claim lack of knowledge
thereof. (Buccat vs. Buccat, G.R. No.
47101, April 25, 1941)
c. Concealment of a sexually transmissible
disease, regardless of its nature, existing at
the time of the marriage; and
 Nature or gravity of disease is irrelevant; it
is enough that there was concealment at
the time of the ceremony
d. Concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism
existing at the time of the marriage
4. Vitiated consent of either party through force,
intimidation or undue influence
 Criminal liability attaches to anyone who uses
violence, intimidation and fraud in contracting
a marriage (Art. 350 RPC)
5. Physical incapability of either party to
consummate the marriage with the other, and
such incapacity continues and appears to be
incurable (impotency)
 Permanent inability on the part of one of the
spouses to perform the complete act of sexual
intercourse, arising from physical and other
causes, including psychological causes
 Need not be universal; condition may exist
only as to the present spouse and not as to
others
Requisites for annulment due to Impotence:
(CUPIN)
a. It exists at the time of the celebration of the
marriage;
b. It is permanent;
c. It is incurable;
d. It is unknown to the other spouse;
e. The other spouse must not also be impotent.
 San Beda College of Law
2010 Centralized Bar Operations

Doctrine of Triennial Cohabitation – Presumption no know- either party insane

that the husband is impotent should the wife still ledge of regains
remain a virgin for at least 3 years from time the sanity
spouses started cohabiting. insanity

Relative, Anytime
6. Sexually transmissible disease of either party
guardian before the
found to be serious and appears to be incurable.
or death of
persons either party
Elements: (ESSA)
having Free
a. Existing at the time of marriage legal cohabita-
b. Sexually transmissible disease charge of tion after
c. It is serious; and the insane insane
d. Appears incurable regains
Insane During
sanity
spouse lucid
The enumeration in Article 46 is EXCLUSIVE (Anaya
vs. Palaroan, GR. No. L–27930, November 26, 1970). interval or
after
regaining
sanity
Note: Misrepresentation as to character, health, rank,
fortune or chastity is NOT a ground for annulment. Parent/ Anytime
legal before the
guardian “no
Persons Prescrip-
Grounds Ratifi- having consent”
Who May tive
(F2I2NS) cation charge of party Free
Sue Period
Force, Injured W/in 5 Free the “no– reaches 21 cohabita-
Non–
intimidatio party years from cohabita- consent” tion after
consent
n, or the time tion after party reaching
undue the force, disap- age of 21
”No W/in 5
influence intimidation pearance
consent “ years after
, or undue of force,
party reaching
influence intimida-
21
ceased tion /
undue STD Injured W/in 5 No ratifica-
influence party years after tion since
respect- the defect is
tively celebration perma-
of the nent.
Fraud Injured W/in 5 Free
marriage
party years from cohabita-
the tion even
discovery with full
of fraud know-ledge Note: Whichever comes first may convalidate the
of facts
marriage: Cohabitation OR Prescription.
constitu-
ting the Additional Requirements for Annulment or
fraud
Declaration of Nullity
Incapabi- Injured W/in 5 No
lity to party years after ratification Prosecuting attorney or fiscal should:
consum- the since
mate celebration defect is
1. Appear on behalf of the state
of the permanent
2. Take steps to prevent collusion between the
marriage
parties
3. Take care that evidence is not fabricated or
Insanity Sane Anytime Free suppressed
spouse before the cohabita-
who has death of tion after Collusion

17
 San Beda College of Law
Persons and Family Relations
Public Prosecutor shall be ordered by the court to
investigate and to submit a report on whether parties
are in collusion when:
1. No answer is filed or the answer does not tender
an issue;
2. Respondent filed his answer but failed to appear
at the pre-trial (Secs. 8(3) and 13(b), A.M. No. 02-
11-12-SC, March 15, 2003)
Note: The same also applies to Legal Separation
pursuant to Secs. 5(c) and 10(2) of A.M. No. 02-11-
11-SC, March 15, 2003.
There will be collusion only if the parties had arranged
to make it appear that a ground existed or had been
committed although it was not, or if the parties had
connived to bring about a matrimonial case even in
the absence of grounds therefor (Ocampo vs.
Florenciano, GR. No. L–13553, February 23, 1960).
However, petitioner’s vehement opposition to the
annulment proceedings negates the conclusion that
collusion existed between the parties. Under these
circumstances, the non–intervention of a prosecuting
attorney to assure lack of collusion between the
contending parties is not fatal to the validity of the
proceedings in the trial court (Tuason vs. CA, G.R.
No. 116607, April 10, 1996).
Decision
No judgment on the pleadings, summary judgment,
confession of judgment, or judgment by default shall
be allowed.
If the defendant spouse fails to answer the complaint,
the court CANNOT declare him or her in default. But
instead, should order the public prosecutor to
determine if collusion exists between the parties.
Note: The same also applies to Legal Separation
After court grants petition, it shall issue the decree of
absolute nullity or annulment only after compliance
with the following:
1. Must proceed with the liquidation, partition, and
distribution of the properties of the spouses
including custody and support of the common
children unless such matters had been
adjudicated in previous judicial proceedings
2. Delivery of the children’s presumptive legitimes
3. Registration of the entry of judgment granting
petition for declaration of absolute nullity or
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annulment in the Civil Registry where the
marriage was celebrated and in the Civil Registry
of the place where the FC was located
4. Registration of approved partition and distribution
of properties of the spouses in the proper Registry
of Deeds where the real properties are located
Note: The same applies to Legal Separation.
In case of annulment or declaration of absolute nullity
of marriage, Art.49 of the Family Code grants
visitation rights to a parent who is deprived of the
custody of the children. Such visitation rights flow from
the natural right of both parents to each other’s
company. There being no such parent– child
relationship between them, Gerardo has no
demandable right to visit the child of Mario with
Theresa (Concepcion vs. CA GR. No. 12345, August
31, 2005).
Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages
(A.M. 00–11–01–SC)
 This took effect on March 15, 2003.
 This Rule shall govern petitions for
declaration of absolute nullity of void marriages
and annulment of voidable marriages under the
Family Code of the Philippines.
 The Rules of Court have suppletory
application.
For a more comprehensive discussion on the
procedural aspects of the Rule, please refer to the
Remedial Law Memory Aid.
LEGAL SEPARATION
Exclusive Grounds: (SAMBA–LIPAD)
1. Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner
2. Attempt of the respondent to corrupt or induce
the petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance
in such corruption or inducement
 Refers to prostitution only and irrespective of
the age of the child
3. Attempt by the respondent against the life of the
petitioner
4. Final judgment sentencing the respondent to
imprisonment of more than 6 years even if
pardoned
 San Beda College of Law
2010 Centralized Bar Operations
5. Drug addiction or habitual alcoholism of the
respondent
6. Lesbianism or homosexuality of the respondent
7. Abandonment of the petitioner by the respondent
without justifiable cause for more than 1 year
 There must be absolute cessation of marital
relations, duties, and rights, with the intention
of perpetual separation (Partosa-Jo vs. CA,
G.R. No. 82606, December 18, 1992).
Abandonment implies total renunciation of
duties.
8. Physical violence or moral pressure to compel
petitioner to change religious or political affiliation
9. Contracting by respondent of a subsequent
bigamous marriage; and
10. Sexual infidelity or perversion.
 Sexual perversion includes engaging in such
behavior not only with third persons but also
with the spouse
Cooling–Off Period – 6-month period from the filing
of the petition designed to give the parties enough
time to further contemplate their positions with the end
in view of attaining reconciliation between them. No
action for Legal Separation shall be tried during such
period (Art. 58). It is a mandatory requirement and its
non-compliance makes the decision infirm. (Pacete
vs. Carrianga, G.R. No. 53880, March 17, 1994)
Grounds for Denial of Petition (Art. 56): (C4–MP–
DR)
1. Condonation of the offense or act complained of.
But failure of the husband to look for his
adulterous wife is NOT condonation to wife's
adultery (Ocampo vs. Florenciano, G.R. No. L–
13553, February 23, 1960).
 The act of the husband in having sexual
intercourse with his wife in spite of his
knowledge of the latter’s infidelity is an act of
implied condonation. (Ginez v. Bugayong,
G.R. No. L-10033, December 28, 1956)
2. Consent to commission of offense or act
complained of
3. Connivance between parties of commission of
offense or act constituting ground
 Connivance is corrupt consenting
4. Collusion between parties
 Collusion is corrupt agreement between the
spouses to procure divorce or legal
separation
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5. Mutual Guilt or where both parties have given
ground for legal separation
6. Prescription
 An action for legal separation shall be filed
within 5 years from time of occurrence of the
cause (Art. 57)
7. Death of either party during the pendency of the
case (Lapuz–Sy vs. Eufemio, G.R. No. 113842,
August 3, 1994)
8. Reconciliation of the spouses during the
pendency of the case
 By filing in the same proceeding a joint
manifestation under oath, duly signed by the
spouses (Art. 65)
Effects of Filing Petition: (LDS)
1. The spouses shall be entitled to live separately
from each other
2. In the absence of an agreement between the
parties, the court shall designate the husband, the
wife, or a third person to manage the absolute
community or conjugal partnership property (Art.
61)
3. The husband shall have no more right to have
sexual intercourse with his wife.
Decision
No legal separation may be decreed unless the Court
has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts,
that reconciliation is highly improbable. (Art. 59)
Note: The wife who has been granted legal
separation cannot petition to be allowed to revert to
her maiden name.
Even if the parents are separated de facto, still in the
absence of judicial grant of custody to one parent,
both parents are entitled to the custody of their child.
The remedy of habeas corpus may be resorted to by
the parent who has been deprived of the rightful
custody of the child (Salientes v. Abanilla, G.R. No.
162734, August 29, 2006).
Note: A decree of legal separation, on the ground of
concubinage, may issue upon proof of preponderance
of evidence in the action for legal separation. No
criminal proceedings or conviction is necessary.
Effects of Reconciliation of the Spouses (Art. 66):
 San Beda College of Law
Persons and Family Relations

1. The legal separation proceedings, if still

pending, shall thereby be terminated at whatever
stage.
2. The final decree of legal separation shall be
set aside, but the separation of property and any
forfeiture of share of the guilty spouse already
effected shall subsist, unless the spouses agree
to revive their former property regime.

Revival of Property Regime (Art. 67)

Agreement of revival and motion for its approval shall

be filed in court in the same proceeding for legal
separation and shall be executed under oath and shall
specify:

1. Properties to be contributed anew to restored

regime;
2. Those to be retained as separated properties of
each spouse;
3. Names of all known creditors, addresses, and
amounts owing to each

After due hearing, court shall take measures to protect

interest of creditors and such order shall be recorded
in the proper registries of properties but the same
shall not prejudice creditors not listed or notified,
unless debtor-spouse has sufficient separate
properties to satisfy creditor’s claim.

Rule on Legal Separation (A.M. 02–11–11–SC)

This took effect on March 15, 2003.

This Rule shall govern petitions for legal separation
under the Family Code in the Philippines; the Rules of
Court shall apply suppletorily.

Please refer to the Remedial Law Memory Aid for the

procedural provisions of the Rule.

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 San Beda College of Law
2010 Centralized Bar Operations

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