Professional Documents
Culture Documents
01 Memory Aid Persons and Family Relatio
01 Memory Aid Persons and Family Relatio
1. Presidential Decrees;
E FFECT AND A PPLICATION OF 2. Laws which refer to all statutes, including local and
L AWS private laws;
3. Administrative Rules and Regulations where purpose
The Civil Code took effect on August 30, 1950. is to enforce/implement existing law pursuant to a valid
delegation;
E FFECTIVITY OF L AWS (A RT .2) 4. Charter of a City;
5. Circulars issued by the Monetary Board where
purpose is not merely to interpret but to fill in the
General Rule: Laws take effect after 15 days following details of the Central Bank Act;
the completion of its publication in the Official Gazette or 6. Circulars and Regulations which prescribe a penalty
in a newspaper of general circulation (EO No. 200). for its violation (People vs. Que Po Lay, G.R. No. L-
6791, March 29, 1954);
The law shall take effect on the 16th day because in 7. Executive Orders (Tañada vs. Tuvera G.R. No. L-
counting the period, the first day is excluded and the last 63915, December 29, 1986).
day included (Art. 13, NCC).
Publication not Required (I – L)
No one shall be charged with notice of the statute’s 1. Interpretative regulations and those internal in nature,
provision until publication is completed and the 15 day regulating only the personnel of the administrative
period has expired. agency.
2. Letters of Instructions issued by administrative
Exception: Unless otherwise provided by the law (EO superiors on rules/guidelines to be followed by
No. 200). subordinates in the performance of their duties
(Tañada vs. Tuvera, ibid).
The exception refers to the “15-day period” only and not
the requirement of publication. Publication is Date of effectivity of Municipal Ordinances is NOT
indispensable, absence of which will not render the law covered by this rule but by the Local Government Code
effective (Tañada v. Tuvera G.R. No. L-63915, (Tañada vs. Tuvera, supra).
December 29, 1986).
I GNORANCE OF THE L AW
Rules on Period Provided by Statute
E XCUSES NO ONE (A RT .3)
Shorter/longer period than the 15-day
Such period as provided in the statute shall prevail. Conclusive Presumption
Every person is presumed to know the law even if they
Takes effect immediately have no actual knowledge of the law. It applies only to
It shall take effect immediately after publication with the mandatory and prohibitory laws.
15-day period being dispensed with (Tañada vs. Tuvera
G.R. No. L-63915, December 29, 1986). Does not apply to foreign laws because there is no
judicial notice of such foreign laws; it must be proved like
No provision as to its effectivity any other matter of fact (Ching Huat vs. Co Heong L-
It takes effect 15 days following its publication. 1211, January 30, 1947).
Note: Mistakes in the application or interpretation of
Coverage (PLAC3E)
3. Will bind all future cases with identical facts, until 6. Week – Count 7 days as indicated, not necessarily
reversed by SC. Sunday to Saturday.
Judicial decisions, although in themselves not laws, To count the period, first day is excluded, last day is
assume the same authority as the statute itself (People included.
vs. Licera G.R. No. L-39990, July 2, 1975).
Exception: Rule does NOT apply to computation of age;
No publication required, binding on parties after the lapse each year is counted based on birth anniversary.
of appeal period, and will bind all future cases with
identical facts, until reversed by SC. Policy if the Last Day is a Sunday or a Legal Holiday
1. If the act to be performed within the period is
The application or interpretation placed by the Court prescribed or allowed (a) by the Rules of Court, (b) by
upon a law is part of the law as of the date of enactment an order of the court, or (c) by any other applicable
of said law because the Supreme Court’s interpretation statute, the last day will automatically be considered
merely establishes the contemporaneous legislative the next working day.
intent that the construed law purports to carry into effect 2. If the act to be performed within the period arises from
(People v. Licera G.R. No. L-39990, July 2, 1975). a contractual relationship, the act will become due
despite the fact that the last day falls on a Sunday or
HOWEVER, when a doctrine is overruled and a different Holiday.
view is adopted, the new doctrine should be applied
prospectively and should not prejudice parties who relied P ROVISION ON C ONFLICT OF
on the old doctrine (People v. Jabinal G.R. No. L-30061,
February 27, 1974). L AW (A RTS .14-17)
C USTOMS (A RTS .11 AND 12) 1. Penal Laws and laws of public security (Article 14):
Territoriality rule governs regardless of the nationality
but subject to principles of international law and to
Customs treaty stipulations.
Rules of conduct formed by repetition of acts uniformly
observed as a social rule. They are legally binding and 2. Laws relating to family rights and duties, or to status,
obligatory. condition and legal capacity of persons (Article 15):
General Rule: Customs must be proved as a fact Nationality rule applies regardless of their place of
according to the rules of evidence. residence.
Exception: A court may take judicial notice of a custom if Exception: Divorce validly obtained abroad by alien
there is already a decision rendered by the same court spouse capacitating him or her to remarry, the Filipino
recognizing the custom. spouse shall have capacity to remarry under Philippine
law. (Article 26 (2) Family Code)
Requisites to Make a Custom an Obligatory Rule: (P2OT)
1. Plurality or repetition of acts; 3. Laws on property (real and personal)
2. Practiced by the great mass of the social group;
3. The community accepts it as a proper way of acting, Lex Rei Sitae: The law of the country where the
such that it is considered as obligatory upon all; property is situated shall govern property transactions.
4. Continued practice for a long period of time. (Article 16 (1))
A person who exercises his legal right does no injury. Solutio Indebiti
HOWEVER, it cannot be said that a person exercises a Accion In Rem Verso
(Art. 2154)
right when he unnecessarily prejudices another or
It is not necessary that the
offends morals or good customs.
payment was made by
mistake, payment could Payment was made by
When damages result from a person’s exercise of rights,
have been made knowingly mistake is an essential
it is damnum absque injuria (ABS-CBN v. Republic
and voluntarily but element to maintain the
Broadcasting Corp. G.R. No. 128690, January 21, 1999).
nevertheless, there would action for recovery.
be recovery of what has
ACTS CONTRARY TO LAW (Art. 20)
been paid.
Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for
the same. Requisites: (JELA)
1. Enrichment is without just or legal ground
ACTS CONTRA BONUS MORES (Art. 21) 2. Defendant has been enriched;
3. Plaintiff has suffered a loss; and
Elements: (L-C-I) 4. He has no other action based on contract, quasi–
1. There is a legal act; contract, crime or quasi–delict.
2. But which is contrary to morals, good customs, public
order or public policy; and, For a more comprehensive discussion of Articles 19-35,
3. It is done with intent to injure. please see discussion thereof under Torts.
2. Insanity or imbecility
The Civil Code has SUPPLETORY application in matters 3. State of being deaf mute
governed by special laws. Deaf mute may either be sane or insane.
4. Prodigality – The state of squandering money or
property with a morbid desire to prejudice the heirs of a
C IVIL P ERSONALITY (A RT .37) person (Martinez v. Martinez, 1 Phil. 182).
5. Civil interdiction
Civil Personality
It is the aptitude of being the subject, active or passive, of Modifications/ limitations on capacity to act (Art. 39):
rights and obligations. (FI3T P2A3D)
1. Family Relations;
Juridical capacity and Capacity to Act (Paras, E. Civil 2. Insanity;
Code of the Philippines Annotated 15th ed. (2002), p. 3. Imbecility;
236) 4. Insolvency;
Juridical Capacity Capacity To Act 5. Trusteeship;
Fitness to be the subject Power to do acts with 6. Penalty;
of legal relations (Art. 37) legal effects (Art. 37) 7. Prodigality;
8. Age;
Passive Active 9. Alienage;
Inherent Merely acquired 1. Absence; and
Lost through death and 2. State of being deaf-mute.
Lost only through death
other causes
Can exist without Cannot exist without Note: The consequences of the restrictions and
capacity to act juridical capacity modifications on a person’s capacity to act are provided
Cannot be limited or Can be restricted, by the Civil Code, other codes, special laws and the
restricted modified or limited Rules of Court.
When is a child considered born: (Art. 41) from the strength and the age of the sexes, according to
the following rules:
General Rule: For civil purposes, the fetus is considered 1. If both were under the age of fifteen years, the older
born if it is alive at the time it is completely delivered from is deemed to have survived;
the mother’s womb. 2. If both were above the age sixty, the younger is
deemed to have survived;
Exception: If the fetus had an intra-uterine life of less 3. If one is under fifteen and the other above sixty, the
than 7 months, it is NOT deemed born if it dies within 24 former is deemed to have survived;
hours after its complete delivery from the maternal womb 4. If both be over fifteen and under sixty, and the sex be
(Article 41). different, the male is deemed to have survived, if the
sex be the same, the older;
Illustration: 5. If one be under fifteen or over sixty, and the other
Intra-uterine life When considered born between those ages, the latter is deemed to have
7 months or more Alive upon complete survived.
delivery
- regardless whether the JURIDICAL PERSONS (Art. 44 to 46)
child dies within 24 A juridical person is a being of legal existence
hours or not susceptible of rights and obligations, or of being the
Less than 7 months Alive upon complete subject of juridical relations (Roldan vs. Philippine
delivery AND at least 24 Veterans Board G.R. No. L-11973, June 30, 1959)
hours thereafter
Who are juridical persons:
The legitimacy or illegitimacy of a child attaches upon 1. State and its political subdivisions
conception (Continental Steel Manufacturing Corp. v. 2. Corporations for public interest - governed either by
Hon. Accredited Voluntary Arbitrator, et al., G.R. No. the Corporation Code or their special charters passed
182836, October 13, 2009). by the legislature.
How civil personality is extinguished Personality begins as soon as they have been
Civil personality is extinguished by death. The effect of constituted according to law
death upon the rights and obligations of the deceased is
determined by law, by contract and by will (Art. 42). 3. Corporations, partnerships and associations for private
interest
Presumption of survivorship
In case of doubt as to which of two or more persons Corporations are governed by the Corporation Code.
called to succeed each other died first: Their personality exist from the moment a certificate of
1. Whoever alleges the death of one prior to the other incorporation is granted to it from the Securities and
shall prove the same Exchange Commission (Sec. 19, Corporation Code)
2. In the absence of proof, the presumption is that the
parties died at the same time and there shall be no By a contract of partnership, two or more persons bind
transmission of rights from one another (Art. 43) themselves to contribute money, property or industry to
a common fund, with the intention of dividing the profits
Note: Article 43 applies when the case involves two or among themselves; or for the exercise of profession
more persons who are called to succeed each other. But (Art. 1767, NCC). Partnerships are governed by the
if the parties are not called to succeed each other, Rule contract between partners and the provisions of Art.
131, Sec. 3 (jj) of the Rules of Court applies. Both are to 1767 to 1867 of the Civil Code.
be applied only in the absence of facts. (Paras, p. 248)
C ITIZENSHIP AND D OMICILE
Rule 131 Section 3 (jj). That except for purposes of
succession, when two persons perish in the same
calamity, such as wreck, battle, or conflagration, and it is Citizenship
not shown who died first, and there are no particular It is the membership in a political community which is
circumstances from which it can be inferred, the more or less permanent in nature. Article IV of 1987
survivorship is determined from the probabilities resulting Philippine Constitution now governs the rule on
citizenship.
and shall protect and strengthen the family as a basic Exceptions: To be actionable, there must be another act
autonomous social institution. The same sentiment has independent of the breach of promise to marry which
been expressed in the Family Code of the Philippines in gives rise to liability as where there was financial
Article 149: 'The family, being the foundation of the damage, social humiliation, and moral seduction.
nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations 1. Mere breach of promise to marry is not an actionable
are governed by law and no custom, practice or wrong; but to formally set a wedding and go through all
agreement destructive of the family shall be recognized the preparations and publicity, only to walk out of it
or given effect. when the matrimony is about to be solemnized, is quite
different. This is palpably and unjustifiably contrary to
Marriage and ordinary contract distinguished good customs for which defendant must be held
Marriage Ordinary Contract answerable in damages pursuant to Art. 21 NCC.
Special contract Merely a contract (Wassmer vs. Velez, No. L-20089, December 26,
Social institution Merely a contract 1964)
Governed by law on Governed by law on 2. Where a man’s promise to marry was the proximate
marriage contracts cause of giving herself unto him in sexual congress
Not subject to and there is proof he had no intention of marrying her,
Generally subject to the promise being a deceptive device, damages may
stipulations except in
stipulations be awarded pursuant to Art. 21 NCC because of the
property relations
Minors may contract fraud and deceit behind it and the willful injury to her
Legal capacity is through their parents or honor and reputation (Baksh vs. CA, G.R. No. 97336,
required guardians or in some February 19, 1993).
cases by themselves
Contracting parties must ESSENTIAL REQUISITES OF MARRIAGE: (LC)
only be two persons – Two or more parties 1. Legal capacity of the contracting parties, who must be
one is a female and the regardless of gender a male and a female
other is a male a. Eighteen years old or above
Parties can fix a period b. Not under any impediment mentioned in Arts.
for its efficacy to be 37 and 38 (Art. 5)
Permanent union ineffective after a few 2. Consent freely given in the presence of a solemnizing
years officer (Art. 2)
No particular form required
Breach of obligations of Capable of intelligently understanding the nature and
husband and wife does consequences of the act
not give rise to an action
for damages. The law Breach of ordinary FORMAL REQUISITES OF MARRIAGE: (ALM)
provides penal and civil contracts gives rise to an 1. Authority of the solemnizing officer
sanctions such as action for damages 2. Valid Marriage License
prosecution for adultery 3. Marriage ceremony where the contracting parties
or concubinage and appear before the solemnizing officer, with their
proceedings for legal personal declaration that they take each other as
separation. husband and wife in the presence of not less than two
Can be dissolved only Can be dissolved by witnesses of legal age (Art. 3)
by death or annulment, mutual agreement and
not by mutual agreement by other legal causes Effects of noncompliance with the requisites (Art. 4)
Essential Formal
Breach of promise to marry Void ab initio
General Rule: It is not by itself an actionable wrong Absence (ex: expired marriage license; one of
(Hermosisima vs. CA L-14628, September 30, 1960). the parties is below 18 years old at
One cannot seek specific performance to compel the time of the marriage)
marriage. Defect Voidable Voidable
(ex: consent
obtained
through force Marriages by proxy
and 1. If it was solemnized in the Philippines, the marriage is
intimidation; VOID because physical appearance is required under
Art. 45, 46) Art. 6.
Valid Valid, but person 2. If performed abroad, whether between Filipinos or
responsible for foreigners or mixed, the controlling article is Art. 26 of
irregularity shall the Family Code. (Paras, p. 377-378)
be civilly and
criminally liable Authority of solemnizing officer
It is not the presence or absence of the solemnizing
Except: when officer which constitutes the formal requirement but the
parties over 18 absence or presence of the solemnizing officer’s
but below 21 authority at the time of the solemnization of the marriage
failed to obtain (Arañes vs. Occiano A.M. No. MTJ-02-1390 April 11,
parental consent, 2002; Navarro vs. Domagtoy A.M. No. MTJ-96-
in which case the 1088. July 19, 1996).
marriage is
voidable (Art. 14) General Rule: The solemnizing officer is not duty bound
to investigate whether the marriage license was regularly
(example of issued.
irregularity: no
witnesses of legal Must only determine if it was issued by a competent
age, or only one official (Alcantara vs. Alcantara G.R. No. 167746 August
witness of legal 28, 2007)
Irregularity age, or witnesses
but not of legal If so, it may be presumed that the said official fulfilled the
age during the duty to ascertain whether the contracting parties fulfilled
marriage the requirements of law (People vs. Janssen G.R. No. L-
ceremony (Sta. 31763 December 27, 1929).
Maria, M.,
Persons and Exception: In cases of marriage in articulo mortis, in
Family Relations, remote places, and between a man and a woman living
2010, p. 127); together as husband and wife for at least 5 years without
issuance of legal impediment to marry each other
marriage license
despite absence Solemnizing officer must take steps to ascertain the
of publication prior ages, relationship, and qualifications of contracting
to the completion parties (Art. 29)
of the 10-day
period for Persons authorized to Requisites for the exercise
publication solemnize marriages of their authority
(Alcantara vs. (Art. 7) (PMJ-C³)
Alcantara G.R. Priest, rabbi, imam or a. Duly authorized by his
No. 167746 ministers of any church church or religious
August 28, 2007) or religious sect sect;
Marriage ceremony (Art. 6)
b. Registered with the
No prescribed form or religious rite for solemnization of
office of the civil
marriage is required.
registrar general;
The absence of two witnesses of legal age is merely an
c. Acting within the limits
irregularity but the party responsible for the irregularity
of the written authority
shall be civilly, criminally, and administratively liable.
granted; and
b. He or she must be a
d. At least one of the commissioned officer;
parties belongs to the
solemnizing officer’s Note: Rank should start
church or religious sect from 2nd lieutenant, ensign
Municipal and city The term “mayor” includes and above (Webster
mayors (Sec. 444, 445 a vice-mayor who is the Dictionary, 1991 ed.)
Local Government “Acting Mayor” or who is
Code, January 1, 1992) merely acting as a Mayor c. A chaplain must be
(People vs. Bustamante, assigned to such unit;
citing Laxamana vs.
Baltazar G.R. No. L- d. Such chaplain must
11598 January 27, 1959) be absent at the time
Incumbent members of Note: Court of Tax of the marriage;
the judiciary within the Appeals, Sandiganbayan,
court’s jurisdiction Court of Appeals and e. Marriage must be one
Supreme Court justices in articulo mortis; and
have jurisdiction over the
whole Philippine territory f. The contracting
(Sta. Maria, M., Persons parties, whether
and Family Relations, members of the
2010,, p. 135) armed forces or
Ship captains or air a. The marriage must be civilians, must be
plane chiefs in articulo mortis (one within the zone of
of the parties is at the military operation.
point of death); Consul generals, a. Marriage must only be
consuls or vice–consuls between Filipino
b. The marriage must be of the Republic of the citizens;
between passengers Philippines abroad (Art.
or crew members; 10) b. Has authority to
solemnize marriage
c. The ship must be at only abroad;
sea or the plane must
be in flight; including c. Acts not only as
stopovers at ports of solemnizer of a
call. marriage but also
perform the duties of
Assistant pilot has no a local civil registrar
authority to solemnize a such as the issuance
marriage even if airplane of a marriage license;
chief dies during the trip
Commander of a military a. He or she must be a b. The solemnities
unit, in the absence of military commander of established by
chaplain (Art. 32) a unit; Philippine laws shall
be observed in their
Note: Unit refers to a execution (Art. 17,
battalion under the NCC).
present table of
organization and not a
Authorized venues of marriage (Art. 8)
mere company (Minutes
General Rule: Must be solemnized publicly, and not
of the Civil Code Revision
elsewhere, in the
Committee held on May
1. Chambers of the judge or in open court
23, 1983, p. 4)
Automatically cancelled at the expiration of the period if This 5–year period should be the years immediately
contracting parties have not made use of it (Art. 20) before the day of the marriage and it should be a
period of cohabitation characterized by
Exceptions to the marriage license requirement EXCLUSIVITY – meaning no legal impediment was
(MARCO): present at any time within the 5 years and
1. Among Muslims or members of ethnic cultural CONTINUITY – that is unbroken (Republic v.
communities solemnized in accordance with their Dayot, G.R. No. 175581, March 8, 2008).
customs, rites and practices (Art. 33)
5. Solemnized outside the Phil. where no marriage
Exception only applies to Muslims and members of the license is required by the country where they were
ethnic groups of the Cordillera Autonomous Region solemnized (Art. 26 par. 1)
because they have a separate law—Code of Muslim
Personal Laws of the Philippines and Organic Act of Solemnizing of a marriage involving a foreign contracting
the Cordillera Autonomous Region (RA 6766). Other party in the Philippines (Art. 21)
ethnic groups are still governed by the Family Code When either or both parties are foreign citizens, they
(Sta. Maria, M., Persons and Family Relations, 2010, must first submit a CERTIFICATE OF LEGAL CAPACITY
p. 187). TO MARRY issued by their diplomatic/consular officials
before marriage license can be obtained.
2. In articulo mortis (Art. 27)
Marriage remains valid even if spouse at the point of Ratio: A certificate of legal capacity is necessary
death subsequently survives (Art. 27) because the Philippines, insofar as marriage is
3. In remote place concerned, adheres to the national law of the contracting
Residence of either party is so located that there is no parties with respect to their legal capacity to contract
means of transportation to enable them to personally marriage. Without this certification of legal capacity, the
appear before the local civil registrar (Art. 28) local civil registrar will not issue the marriage license
4. Marriage of people who have previously cohabited for (Sta. Maria, M., Persons and Family Relations, 2010, p.
at least 5 years /ratification by cohabitation (Art. 34) 151).
capacitated to marry (Sta. Maria, M., Persons and been severed (Felicitas Amor-Catalan v. CA, G.R. No.
Family Relations, 2010, p. 165). 167109, February 6, 2007).
2. Bigamous or polygamous except as provided in Art. Article 26(2) applies where parties were Filipino
41, FC (Art. 35(4)) citizens at the time of the marriage was celebrated,
3. Contracted through mistake of one party as to the and later on, one of them becomes naturalized as a
identity of the other (Art. 35(5)) foreign citizen and obtains a divorce decree: the
4. Contracted following the annulment or declaration of reckoning point is their citizenship at the time the valid
nullity of a previous marriage but before partition divorce is obtained abroad by the alien spouse
(Art.35(6)) capacitating the latter to remarry (Rep. v. Obrecido III,
5. Void due to psychological incapacity (Art. 36) G.R. No. 154380, Oct. 5, 2005).
6. Incestuous (Art.37)
7. Void for reasons of public policy (Art. 38) In Edgar San Luis v. Felicidad Sagalongos (G.R. No.
134029, February 6, 2007), it was held that a Filipino
Note: The existence of the pertinent provision of the who had been divorced by his alien spouse abroad
foreign marriage law must be shown to prove a foreign may NOT validly remarry in the Philippines if the
marriage. marriage was solemnized BEFORE the Family Code
took effect. It was noted that there is no need to
It is well-settled in our jurisdiction that our courts cannot retroactively apply Art. 26 paragraph 2 of the Family
take judicial notice of foreign laws. Like any other facts, Code, since there is sufficient jurisprudential basis
they must be alleged and proved. Australian marital laws allowing the Court to rule in the affirmative.
are not among those matters that judges are supposed to
know by reason of their judicial function. The power of There must be a showing that the divorce decree gave
judicial notice must be exercised with caution, and every the foreigner spouse legal capacity to remarry because
reasonable doubt upon the subject should be resolved in in some jurisdictions, remarriage may be limited or
the negative (Garcia vs. Recio, G.R. No. 138322 October prohibited (Bayot v. Bayot, G.R. No. 155635 &
2, 2001). 163979, November 7, 2008).
Party pleading it must prove divorce as a fact and Note: As a general rule, good faith and bad faith are
demonstrate its conformity to the foreign law allowing immaterial in determining whether or not a marriage is
it, which must be proved as courts cannot take judicial null and void. Nonetheless, the party who knew that he or
notice of foreign laws. If a valid divorce decree has she was entering a void marriage before its
been obtained abroad, there is no more need to file an solemnization may be held liable for damages by the
action to nullify the marriage. The plaintiff has no more other contracting party under Art,19, 20 and 21 of the
personality to sue since the marriage bond has already Civil Code.
This principle applies even if the earlier union is parties as to the physical identity of the other
characterized by statute as “void” (Manuel vs. People, 6. Subsequent marriages that are void under Article 53 of
G.R. No. 165842, November 29, 2005). the Family Code
Interestingly, in Lucio Morigo v. People, (GR No. 145226, General rule: A marriage contracted by any person
Feb. 6, 2004), the SC ruled that a judicial declaration of during the subsistence of a previous valid marriage
nullity is NOT NEEDED where NO MARRIAGE shall be null and void (Gomez v. Lipana, GR. No. L–
CEREMONY at all was performed by a duly authorized 23214, June 30, 1970).
solemnizing officer, as where the parties merely signed a
marriage contract on their own without the presence of Elements of bigamy (Art. 349, RPC):
the solemnizing officer. a. The offender has been legally married.
b. The marriage has not been legally dissolved or in
The requirement for a declaration of absolute nullity of a case his or her spouse is absent, the absent spouse
marriage is also for the protection of the spouse who, could not yet be presumed dead according to the
believing that his or her marriage is illegal and void, Civil Code.
marries again. With the judicial declaration of the nullity c. The offender contracts a second or subsequent
of his or her marriage, the person who marries again marriage.
cannot be charged with bigamy. A judicial declaration of d. The second or subsequent marriage has all the
nullity is required before a valid subsequent marriage can essential requisites for validity.
be contracted; or else, what transpires is a bigamous .
marriage, reprehensible and immoral. (Teves vs. People, Exception: Before the celebration of the subsequent
G.R. No. 188775, August 24, 2011). marriage, a declaration of presumptive death is
obtained after complying with the following
For purposes other than remarriage, such as but not requirements: (JAB)
limited to determination of heirship, legitimacy or i. Judicial declaration of presumptive death; present
illegitimacy of a child, settlement of estate, dissolution of spouse must file a summary proceeding for the
property regime or criminal case, other evidence is declaration of the presumptive death of the
acceptable to show the nullity of the marriage and the absentee without prejudice to the latter’s
court may pass upon the validity of marriage so long as it reappearance.
is essential to the determination of the case (Niñal vs. ii. Absence of the other spouse must have been for 4
Bayadog, G.R. No. 133778, March 14, 2000). consecutive years, or 2 years where there was
danger of death under circumstances laid down in
Collateral attack of marriage is allowed. Art. 391 of the NCC;
iii. Well-founded belief of the present spouse who
In a case for concubinage, the accused need not present wishes to marry that absent spouse is already
a final judgment declaring his marriage void, for he can dead; and
adduce evidence in the criminal case of the nullity of his
marriage other than proof of a final judgment declaring There is no well-founded belief that the absent
his marriage void (Beltran vs. People, G.R. No. 137567, spouse is already dead when the present party
June 20, 2000). fails to conduct a diligent search for the missing
party (Republic v. Nolasco, G.R. No. 94053,
I. VOID MARRIAGES DUE TO ABSENCE OF ANY OF March 17, 1993).
THE ESSENTIAL OR FORMAL REQUISITES: (BB–
LAPIS) Note: This is intended to protect the present
1. Contracted by any party below 18 years of age even spouse from criminal prosecution for bigamy
with parental consent under Art 349 of the Revised Penal Code .
2. Bigamous or polygamous marriages except Art 41 However, if the bigamous marriage was
3. Solemnized WITHOUT a license except as otherwise committed abroad, the guilty party cannot be
provided criminally prosecuted for bigamy in the Philippines
4. Solemnized by any person NOT LEGALLY authorized as our penal statutes are territorial in nature.
to perform marriages UNLESS one or both of the
parties believed in good faith that the solemnizing Exception to the exception: If both spouses of the
officer had the legal authority to do so subsequent marriage acted in bad faith, said
5. Marriages contracted through mistake of one of the marriage shall be void ab initio and all donations
In Marcos v. Marcos (GR. NO. 136490, October 19, 2. Step–parents & step children
2000), the SC held that psychological incapacity may be 3. Parents–in–law & children–in–law
established by the totality of the evidence presented. The 4. The adopting parent & the adopted child
facts alleged in the petition and the evidence presented, 5. The surviving spouse of the adopting parent & the
considered in totality, should be sufficient to convince the adopted child
court of the psychological incapacity of the party 6. The surviving spouse of the adopted child & the
concerned (Bernardino S. Zamora vs. CA, G.R. No. adopter
141917, February 7, 2007). 7. Adopted child & a legitimate child of the adopter
8. Parties where one, with the intention to marry the
There is NO REQUIREMENT that the person sought to other, killed the latter’s spouse, or his/her spouse.
be declared psychologically incapacitated should be 9. Adopted children of the same adopter
personally examined by a physician or psychologist as a Note: There is no need for conviction in a criminal case
condition sine qua non to arrive at such declaration. It of the guilty party. The fact of killing committed by one
can be proven by independent means that one is of the parties to the marriage can be proved in a civil
psychologically incapacitated; there is no reason why the case.
same should not be credited (Republic of the Philippines
vs. Laila Tanyag-San Jose and Manolito San Jose, G.R. The following can now marry each other: (LSG-AC2)
No. 168328, February 28, 2007). 1. Brother–in–law and sister–in–law
2. Stepbrother and stepsister
Psychological incapacity is not meant to comprehend all 3. Guardian and ward
possible cases of psychoses. The fourth guideline in 4. Adopted and illegitimate child, parents and relatives by
Molina requires that the psychological incapacity as consanguinity or affinity of the adopter;
understood under Art. 36 (FC) must be relevant to the 5. Parties who have been convicted of adultery or
assumption of marriage obligations, not necessarily to concubinage
those not related to marriage, like the exercise of a 6. Collateral relatives by the half blood.
profession or employment in a job (Tongol vs. Tongol,
G.R. No. 157610, October 19, 2007). Determination if two persons are relatives up to the 4 th
civil degree:
Final judgment denying a petition for nullity on the ground 1. Consider the nearest and immediate common
of psychological incapacity bars a subsequent petition for ascendant
declaration of nullity on the ground of lack of marriage 2. Count the number of relatives from one of them to the
license. There is res judicata (Mallion vs. Alcantara, G.R. common ascendant and from the common ascendant
No. 141528, October 31, 2006). to the other one.
In petitions for the declaration of nullity of marriage, the Relationship by consanguinity is in itself not capable of
burden of proof to show the nullity of marriage lies with dissolution. Hence, the mere fact that a common
the plaintiff. Unless the evidence presented clearly ascendant, a grandfather for example, died does not
reveals a situation where the parties, or one of them, sever the blood relationship of first cousins.
could not have validly entered into a marriage by reason
of a grave and serious psychological illness existing at Two views on termination of marriage on the “affinity
the time it was celebrated, we are compelled to uphold prohibition”
the indissolubility of the marital tie (Republic v. Galang, a. Relationship by affinity terminates with the termination
G.R. No. 168335, June 6, 2011). of the marriage whether there are children or not in the
marriage.
III. INCESTUOUS MARRIAGES, WHETHER THE b. Relationship by affinity is dissolved if one of the
RELATIONSHIP IS LEGITIMATE OR ILLEGITIMATE, spouses dies and the spouses have no living issues or
BETWEEN (Art. 37): children; it does not cease if there are living issues or
1. Ascendants & Descendants of any degree; children of the marriage ‘in whose veins the blood of
2. Brothers & Sisters whether full or half blood the parties are commingled, since the relationship of
affinity was continued through the medium of the issue
IV. THOSE CONTRARY TO PUBLIC POLICY of marriage (Sta. Maria, M., Persons and Family
CONTRACTED BETWEEN (Art. 38): (CS-PASS-AKA) Relations, 2010, p. 251-253).
1. Collateral blood relatives whether legitimate or
illegitimate up to the 4th civil degree
adequate provisions in a written agreement between the mutually agreed upon and judicially approved.
spouses, the court shall:
1. Provide for the support of the spouses and the custody Delivery shall in no way prejudice the ultimate
and support of common children successional rights of the children accruing upon the
2. Give paramount consideration to the moral and death of either or both parents
material welfare of the said children and their choice of
the parent with whom they wish to remain. The value of the properties received shall be
3. Provide for appropriate visitation rights. (Art. 49, FC) considered as advances.
Visitation rights flow from the natural right of both parents 3. Registration of the entry of judgment granting petition
to each other’s company. There being no such parent– for declaration of absolute nullity or annulment in the
child relationship between them, Gerardo has no Civil Registry where the marriage was celebrated and
demandable right to visit the child of Mario with Theresa in the Civil Registry of the place where the FC was
(Concepcion vs. CA GR. No. 12345, August 31, 2005). located.
4. Registration of approved partition and distribution of
Decision on the nullification of the marriage properties of the spouses in the proper Registry of
No judgment shall be based upon stipulation of facts or Deeds where the real properties are located.
confession of judgment (Art. 48 par. 2).
Note: The rule applies to Legal Separation.
Stipulation of facts
An admission by both parties made in court agreeing to Effects of nullity
the existence of the act constituting the ground for 1. Either of the former spouses may marry again after
annulment or for the declaration of nullity. complying with the requirements of Art. 52 (Art. 53).
2. On Children (Art. 54)
Confession of judgment a. Those conceived or born before the judgment or
The admission made in court by the respondent annulment or absolute nullity of the marriage under
admitting fault as invoked by the plaintiff to sever the Art. 36 has become final and executory, shall be
marriage ties (Sta. Maria, M., Persons and Family considered legitimate.
Relations, 2010, p. 319). b. Those conceived or born of the subsequent
marriage under Art. 53 shall likewise be legitimate.
If the defendant spouse fails to answer the complaint, the
court CANNOT declare him or her in default; instead, it In both instances under Articles 40 and 45, the marriages
should order the public prosecutor to determine if are governed either by absolute community of property or
collusion exists between the parties (Section 6, Rule 18 conjugal partnership of gains unless the parties agree to
of the Revised Rules of Court; Sec. 13 (b); Supreme a complete separation of property in a marriage
Court En Banc Resolution A.M. 02-11-10-SC). settlement entered into before the marriage. Since the
property relations of the parties is governed by absolute
If aside from a stipulation of facts or a confession of community of property or conjugal partnership of gains,
judgment, sufficient evidence was presented, the court there is a need to liquidate, partition and distribute the
may render a judgment annulling the marriage (Ocampo properties (Dino v. Dino, G.R. No. 178044, January 19,
v. Florenciano, GR. No. L–13553, February 23, 1960). 2011).
9. Causing mental or emotional anguish, public ridicule or There is consent when either of the spouses agreed to
humiliation to the woman or her child, including, but not or did not object, despite full knowledge, to the act
limited to, repeated verbal and emotional abuse, and giving rise to a ground for legal separation, before such
denial of financial support or custody of minor children act was in fact committed (Sta. Maria, M., Persons
of access to the woman's child/children (Sec. 5, RA and Family Relations, 2010, p. 363).
9262).
3. Connivance between parties of commission of
In cases of legal separation, where violence as offense or act constituting ground
specified in RA 9262 is alleged, Article 58 of the
Family Code on the 6 months cooling-off period shall Connivance or procurement
NOT apply. The court shall proceed on the main case Denotes direction, influence, personal exertion, or
and other incidents of the case as soon as possible. other action with knowledge and belief that such action
The hearing on any application for a protection order would produce certain results and which results are
filed by the petitioner must be conducted within the produced (Cohen, Divorce and Alimony in North
mandatory period specified (Sec. 19, RA 9262). Carolina, 59, IV, p. 98 as cited Sta. Maria, p. 364).
The woman victim of violence shall be entitled to the 4. Collusion between parties
custody and support of her child/children. Children
below seven (7) years old older but with mental or Collusion
physical disabilities shall automatically be given to the It is a corrupt agreement between the spouses by
mother, with right to support, unless the court finds making it appear that the marriage is defective due
compelling reasons to order otherwise. A victim who is to the existence of any of the grounds and agreeing
suffering from battered woman syndrome shall not be to represent such false or non-existent cause of
disqualified from having custody of her children. In no action before the proper court to procure divorce or
case shall custody of minor children be given to the legal separation (Sta. Maria, M., Persons and Family
perpetrator of a woman who is suffering from battered Relations, 2010, p. 317).
woman syndrome (Sec. 28, RA 9262).
5. Mutual guilt or where both parties have given ground
GROUNDS FOR DENIAL OF PETITION (Art. 56): for legal separation
(C4–MP–DR)
1. Condonation of the offense or act complained of. 6. Prescription
7. Death of either party during the pendency of the case Note: The wife who has been granted legal separation
(Lapuz–Sy vs. Eufemio, G.R. No. 113842, August 3, cannot petition to be allowed to revert to her maiden
1994) name (Art. 372, NCC).
8. Reconciliation of the spouses during the pendency of Even if the parents are separated de facto, still in the
the case absence of judicial grant of custody to one parent, both
parents are entitled to the custody of their child. The
By filing in the same proceeding a joint manifestation remedy of habeas corpus may be resorted to by the
under oath, duly signed by the spouses (Art. 65) parent who has been deprived of the rightful custody of
the child (Salientes v. Abanilla, G.R. No. 162734, August
Cooling–off period 29, 2006). A decree of legal separation, on the ground of
6-month period from the filing of the petition designed to concubinage, may issue upon proof of preponderance of
give the parties enough time to further contemplate their evidence in the action for legal separation. No criminal
positions with the end in view of attaining reconciliation proceedings or conviction is necessary.
between them. No action for Legal Separation shall be
tried during such period (Art. 58). RECONCILIATION OF LEGALLY SEPARATED
SPOUSES
It is a mandatory requirement and its non-compliance If the spouses should reconcile, the corresponding joint
makes the decision infirm (Pacete vs. Carriaga, G.R. No. manifestation under oath duly signed by them shall be
53880, March 17, 1994). filed with the court in the same proceeding for legal
separation (Art. 65).
The cooling-off period does not mean the overruling of
provisions as custody, alimony, and support pendente Effects of reconciliation of the spouses (Art. 66)
lite. 1. The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage.
A writ of preliminary mandatory injunction for the return of 2. The final decree of legal separation shall be set aside,
the wife’s paraphernal property can in the meantime be but the separation of property and any forfeiture of
heard and granted during the 6-month period (Somosa- share of the guilty spouse already effected shall
Ramos v. Vamenta, G.R. No. L-34132 July 29, 1972). subsist, unless the spouses agree to revive their
former property regime.
Effects of filing petition: (Art. 61)
1. The spouses shall be entitled to live separately from Revival of property regime (Art. 67)
each other Agreement of revival and motion for its approval shall be
2. In the absence of an agreement between the parties, filed in court in the same proceeding for legal separation
the court shall designate the husband, the wife, or a and shall be executed under oath and shall specify:
third person to manage the absolute community or 1. Properties to be contributed anew to restored regime;
conjugal partnership property (Art. 61) 2. Those to be retained as separated properties of each
3. The husband shall have no more right to have sexual spouse;
intercourse with his wife. 3. Names of all known creditors, addresses, and amounts
owing to each.
No legal separation may be decreed unless the Court
has taken steps toward the reconciliation of the spouses After due hearing, court shall take measures to protect
and is fully satisfied, despite such efforts, that interest of creditors and such order shall be recorded in
reconciliation is highly improbable. (Art. 59) 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.
EFFECTS OF THE PETITION FOR DECLARATION OF PRESUMPTIVE DEATH, NULLITY OF MARRIAGE, ANNULMENT
AND LEGAL SEPARATION
The grounds alleged must be proved. No judgment on the pleadings, summary judgment
or confession of judgment shall be allowed.
Summary proceeding;
judgment may be Notes:
rendered based on Stipulation of facts- an admission by both parties made in court agreeing to the existence
affidavits, documentary of the act constituting the ground for annulment or for the declaration of nullity.
evidence or oral Confession of judgment- the admission made in court by the respondent admitting fault as
testimonies at the invoked by the plaintiff to sever the marriage ties (Sta. Maria, M., Persons and Family
sound discretion of the Relations, 2010, p. 319).
court (Art. 246)
In legal separation cases, no decree shall be issued unless the Court has take steps
toward reconciliation of the spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable (Art. 59).
After decree:
To the innocent spouse but no child under 7 shall be separated from the mother unless there
are compelling reasons
Child Support
Support in case of During pendency:
dispute shall be 1. Written agreement
decided by the court in 2. In the absence thereof, from properties of the absolute community of property (ACP) or
separate proceedings conjugal partnership (CP)
for custody but same
considerations as in After Decree:
Declaration of Nullity Either parent/ both may be ordered by court to give an amount necessary for support in
proportion to resources/means of giver and necessities of recipient
Spousal Support
During pendency:
1. Written agreement
2. In the absence thereof, from properties of the ACP or CP, considered as advance to be
deducted from share during liquidation
3. Restitution if after final judgment court finds that person providing support pendente lite is
not liable therefor (Sec. 7, Rule 61, ROC)
Property Relations
1. ACP or CP shall be dissolved and liquidated 1. ACP or CP shall be
2. If either spouse contracted marriage in bad faith, he or she has no right to any dissolved and liquidated.
share of net profits earned by ACP or CP 2. Offending spouse has no
3. Net profits shall be forfeited in favor of common children, or if none, children of right to any share of net
guilty spouse by previous marriage, or in default thereof, the innocent spouse profits earned by ACP or CP
4. In all other cases of void marriage, Art. 147 and 148 applies (Valdes vs. RTC) 3. Net profits shall be forfeited
in favor of common children,
In addition, for marriages under Art. 40 and 45: or if none, children of guilty
1. All creditors of spouses and of the ACP or CP shall be notified of the spouse by previous
proceedings for liquidation marriage, or in default
2. Conjugal dwelling and lot on which it is situated shall be adjudicated pursuant to thereof, the innocent
Art. 102 and 129 spouse.
Presumptive Legitime
1. Delivery of presumptive legitime of all common
children computed as of date of final judgment without
prejudice to ultimate successional rights of children
accruing upon death of either or both parents
2. Shall be considered as advances on common
children’s legitime (Art. 51)
Donation Propter Nuptias
1. Shall remain valid, 1. Shall remain valid, unless 1. Shall remain valid, 1. Donor is given option to
unless donee donee contracted unless donee revoke; if donor decides to
contracted marriage in bad faith, in contracted marriage revoke, must do so within 5
marriage in bad which case, donation is in bad faith, in which years from finality of decree
faith, in which revoked by operation of case, donation is 2. But if ground for legal
case, donation is law. revoked by separation is sexual
revoked by 2. If both spouses of operation of law infidelity (adultery or
operation of law. subsequent marriage (Art. 43(3)). concubinage), donation
2. If both spouses of acted in bad faith, 2. No conflict between persons guilty
subsequent donations propter nuptias 3. with Art. 86(2) as thereof at time of donation is
marriage acted in made by one in favor of such does not void (Art. 739[1]NCC)
aggrieved party may apply to the court for relief. (Art 72.)
R IGHTS
AND O BLIGATIONS
BETWEEN THE H USBAND AND The relief may take on many forms: filing a case for legal
separation if there are grounds for the same; filing an
THE W IFE (LORF-JM)
action for declaration of nullity based on Art 36 if the
neglect is such that it does not create a functional marital
1. Live together life; petitioning the court for receivership, for judicial
separation of property, or for authority to be the sole
Act of living together is a voluntary act of the spouses administrator of community property or conjugal
which cannot be compelled by any proceeding in court. partnership.(Sta Maria, Melencio Jr. S., Persons and
Family Relations Law,page 408 ex., 3-4 [2010])
Only the moral obligation of the spouses constitutes the
motivating factor for making them observe the said EXERCISE OF PROFESSION
duties and obligations which are highly personal
(Ramirez-Cuaderno v Cuaderno, 12 SCRA 505). General Rule: Both can engage in any lawful enterprise or
profession WITHOUT the consent of the other.
If the wife refuses unjustifiably to live with her husband,
the court will admonish but not order her return; and Exception: The other spouse may object only on valid,
even if an order is made, contempt proceeding against serious and moral grounds.
the wife will not prosper. The only remedy here for the
husband is to refuse to grant support (Mariano B. In case of disagreement, court shall decide whether (1)
Arroyo v. Dolores C. Vasquez de Arroyo, 42 Phil. 54). the objection is proper; and (2) the benefit accrued to the
family prior to the objection or thereafter [Art. 73 (2)].
2. Observe mutual love, respect and fidelity
If a husband compels the wife to desist from pursuing a
3. Render mutual help & support profession or any other conduct which the wife has the
right to engage in, this can be considered acts of violence
4. Fix the family domicile against women under RA 9262 (Sta. Maria, M., Persons
a. Both husband and wife shall fix the family domicile. In and Family Relations, 2010, M. p. 409 )
case of disagreement, the court shall decide.
b. The court may exempt one spouse from living with RULE IF BUSINESS BENEFITED FAMILY
the other if the latter should live abroad or there are
other valid and compelling reasons for the exemption. General rule:
However, such exemption shall not apply if the same
is not compatible with the solidarity of the family (Art 1. Debts and obligations incurred of whatever nature and
69). regardless of the time they were incurred but
redounding to the benefit of the family shall be
5. Joint responsibility for the support of the family chargeable to the ACP or the CPG.
a. Expenses shall be paid from the community property
b. In the absence thereof, from income or fruits of their 2. An obligation incurred as a result of a spouse’s exercise
separate properties of a legitimate profession is an obligation redounding to
c. In the absence or insufficiency thereof, from their the benefit of the family shall be shouldered by the ACP
separate properties (Art. 70) or CPG.
When parties stipulate in their MS that local custom Note: It is argued by some law practitioners and authors
shall apply or that ACP regime shall not govern but fail that while no person below 18 can enter into a valid
to stipulate what property regime will be applied. marriage and since the MS is required to be executed
before the marriage, one below 18 may execute a MS as
4. In the absence of local custom, rules on co–ownership long as he or she is 18 or above at the time of marriage.
will apply (Art. 74).
Efficacy of marriage settlement (Art. 81)
the celebration of the marriage shall be valid 2. Donation in MS not more than one-fifth (1/5) of present
property (Art. 84)
2. Property relations shall be governed by Philippine laws,
regardless of the place of the celebration of the Any excess shall be considered void and the donation
marriage or the parties’ residence (Art. 80). will be reduced to one-fifth.
General Rule: Must be made before the marriage, in If one of the requisites is not complied with, it may still be
writing, signed by parties valid as an ordinary donation.
Exceptions: Modifications made through judicial decree For donation of present property to be valid, the rules
during the marriage: governing ordinary donations under Title III of Book III of
1. In case of revival of former property regime between the Civil Code must be observed.
reconciling spouses after decree of legal separation has
been issued (Art. 66, 67) Please refer to Property on requisites for valid donations.
2. When abandoned spouse files petition for judicial
separation of property under Art. 128 DPN of future property
3. When a spouse files petition for judicial separation of DPN of future property is allowed by way of exception to
property for sufficient cause under Art. 135 Art. 751 of NCC (which provides that donations cannot
4. Petition for voluntary dissolution of property regime comprehend future property). It is governed by the law on
under Art. 136 testamentary succession both as to intrinsic and extrinsic
validity. However said DPN can only be revoked by the
DONATION BY REASON OF MARRIAGE donor only on the basis of Art. 86 of the FC (Art. 84 par.
Donations propter nuptias (DPN) are made by one spouse 2).
in favor of the other or by a stranger. It is without onerous
consideration, the marriage being merely the occasion or DPN of encumbered property
motive for the donation, not its causa. Being liberalities, The donation is valid because the donor is still the owner,
they remain subject to reduction for inofficiousness upon even if it is encumbered. If mortgage is foreclosed and
the donor’s death, should they infringe the legitime of a sold at a lesser price, donee is not liable for deficiency but
forced heir (Mateo vs. Lagua, No. L-26270, October 30, if sold for more, donee is entitled to excess (Art. 85).
1969).
Donations propter nuptias and ordinary donations
Requisites: (Art. 82) (COB) Donations Propter
1. In consideration of marriage Ordinary Donations
Nuptias
2. In favor of one or both of the future spouses Formalities
3. Made before celebration of marriage Governed by the rules on Governed by rules on
ordinary donations donations (Arts. 725–773,
Rules in case of donation by the would-be spouses to except that if future NCC)
each other: (MOAC) property is donated, it
1. There must be a valid MS stipulating a property regime must conform with
other than ACP (Art. 84). formalities of wills
Present Property
May be donated but only No limit except that donor 6. Donee commits acts of ingratitude as specified by Art.
up to 1/5 of donor’s shall leave property 765 of NCC (Art. 86).
present property if the enough for his support
spouses agree on a
regime other than S YSTEMS OF P ROPERTY
absolute community R EGIMES
Future property
May be included Cannot be included I. ABSOLUTE COMMUNITY OF PROPERTY (ACP)
provided donation is The property regime of the spouses in the absence of a
mortis causa marriage settlement or when the marriage is void. This is
Grounds for revocation so because it is more in keeping with Filipino culture.
Art. 86, FC Arts. 760, 764, & 765,
NCC It commences at the precise moment the marriage is
celebrated; any stipulation for the commencement thereof
RULE ON DONATION BETWEEN SPOUSES DURING at any other time is void (Art. 88). The same applies to
MARRIAGE CPG (Art. 107).
General rule: VOID, either direct or indirect donation
Provisions on CO-OWNERSHIP apply to ACP in all
Rationale: matters not provided by the Chapter on ACP (Art. 90).
1. To protect unsecured creditors from being defrauded;
2. To prevent stronger spouse from imposing upon the General Rule: Community property shall consist of all
weaker one the transfer of the latter’s property to the property owned by the spouses at the time of the marriage
former; or acquired thereafter (Art. 91).
3. To prevent indirect modification of the marriage
settlement (Paras, p. 520). Exceptions: (BEG)
1. Property, including fruits and income thereof, acquired
Exceptions: before the marriage by either spouse who has
1. Moderate gifts on occasions of family celebrations legitimate descendants by a former marriage
2. Donations mortis causa 2. Property for personal and exclusive use except jewelry
3. Property acquired during the marriage by gratuitous
Note: This rule also applies to persons living together as title, including fruits and income thereof, except when
husband and wife without a valid marriage (Art.87). the donor, testator or grantor expressly provides
otherwise (Art. 92)
The prohibition does not include a spouse being the
beneficiary of an insurance contract over the life of the Presumption: Property acquired during the marriage is
other spouse. (Gercio vs. Sunlife Assurance Co. of presumed to belong to the community, unless otherwise
Canada, G.R. No. 23703, September 28, 1925) proven (Art. 93).
Grounds for revocation (VoCALRI) Note: No waiver of rights allowed during the marriage
1. Marriage not celebrated or declared Void ab initio except in case of judicial separation of property. The
except those made in MS that do not depend on waiver must be in a public instrument and recorded in the
celebration of marriage office of the local civil registrar where the marriage
contract was recorded as well as in the proper registry of
If made by a stranger, action for revocation may be property (Art. 89 and 77). The same applies to CPG (Art.
brought under ordinary rules on prescription: if in 107).
writing, brought within 10 years and if oral, within 6
years (Albano, Ed Vincent S., Persons and Family Rule on games of chance (Art. 95)
Relations, 2006). Loss: Shall be borne by the loser-spouse and shall not be
charged to the community property
2. Marriage without parental consent Winnings: Shall form part of the community property (Art.
3. Marriage is annulled and donee is in bad faith 95)
4. Upon legal separation, the donee being the guilty
spouse
5. Complied with resolutory condition
Exception: If said ticket was gratuitously given by a friend 6. Acquired through occupation such as fishing
to a spouse, only upon express provision of the donor will 7. Net fruits of their exclusive property
it be considered part of the community property. 8. Share of either spouse in hidden treasure (Art. 117)
9. Interest falling due during the marriage on principal
Note: The same applies to CPG (Art. 123). amount of credit belonging to one spouse which is
II. CONJUGAL PARTNERSHIP OF GAINS (CPG) payable in partial payments/ installments and collected
It is that formed by a husband and wife whereby they during the marriage (Art. 119).
place in a common fund the proceeds, products, fruits and
income of their separate properties, and those acquired by Disposition of CPG
either or both spouses through their efforts or by chance, A wife’s consent to the husband’s disposition of conjugal
the same to be divided between them equally (as a property does not always have to be explicit or set forth in
general rule) upon the dissolution of the marriage or the any particular document, so long as it is shown by the acts
partnership (Art. 106). of the wife that such consent was indeed given (Pelayo v.
CA, G.R. No. 141323 June 8, 2005).
The CPG shall be governed by the rules on the
CONTRACT OF PARTNERSHIP in all that is not in The sale of conjugal property requires the consent of both
conflict with what is provided in the chapter on CPG or by spouses; otherwise the sale shall be void, including the
the spouses in their MS (Art. 108). portion of the conjugal property pertaining to the husband
who contracted the sale (Homeowners and Savings Loan
Before the presumption under Art. 116 applies (that Bank vs. CA, GR No 153802, March 11, 2005).
properties acquired during marriage are presumed
conjugal), there must be proof that the property was Exclusive property of each spouse (OGREC) (Art. 109)
acquired during the marriage. This is a condition sine qua 1. That which is brought to the marriage as his/her own,
non for the operation in favor of conjugal ownership whether with or without legitimate descendants
(Metrobank, et al. v. Tan, GR No. 163712, November 30, 2. Acquired during the marriage by gratuitous title
2006).
Property donated/left by will to spouses, jointly with
Properties under conjugal partnership (L2C2 FONTI) designation of determinate shares, shall pertain to
1. Obtained from labor, industry, work or profession of donee-spouse as exclusive property; in the absence of
either or both spouses designation, property shall be divided between them but
2. Livestock existing upon dissolution of partnership in shall belong to them exclusively (Art. 113).
excess of number of each kind brought to the marriage
by either spouse If spouse does not accept his/her part of the donation,
3. Acquired by chance such as winnings from gambling, accretion sets in favor of the other spouse who will own
but losses therefrom shall be borne exclusively by loser- all of property donated as separate property.
spouse
4. Acquired during the marriage by onerous title with Accretion will not apply if donor so provides or if there is
conjugal funds designation of determinate properties (i.e. house, car).
Damages for physical injuries inflicted by a third person If donation is onerous, charges shall be borne by
are exclusive property (Lilius vs. Manila Railroad Co. exclusive property of donee-spouse, whenever
G.R. No. 42551 September 4, 1935) advanced by the CPG.
Damages from illegal detention of exclusive property Retirement benefits, pensions, annuities, gratuities,
pertains to CPG if detention deprived the CP of the use usufructs, and similar benefits acquired by gratuitous
and earnings thereof (Bismorte vs. Aldecoa, G.R. No. title are exclusive properties; if by onerous title during
L-5586, December 10, 1910). marriage (i.e. contributions to pension funds or
deduction from salaries of common funds), they are CP
Note: The registration of the property in either party’s (Art. 115).
name alone is immaterial if the property was acquired
with conjugal funds (Marigsa v. Macabuntoc, G.R. No. Unearned increment (such as increase in the value of
4883, September 27, 1910). the paraphernal property) belongs to the spouse
concerned.
5. Fruits of the conjugal property during the marriage
ACP (Art. 94) CPG (Art. 121) view would put in peril the conjugal partnership property
mere preservation during by allowing it to be given gratuitously similar to cases of
marriage upon separate donation of conjugal partnership property, which is
property of either spouse, prohibited.
mere preservation during
regardless of whether
marriage upon separate The conjugal partnership is NOT liable for an indemnity
used by family because
property of either spouse agreement entered into by the husband to accommodate
use and enjoyment of
used by family a third party (Security Bank v. Mar Tierra Corp., GR No.
separate property of the
spouses belong to the 143382, November 29, 2006).
partnership
Expenses to enable either spouse to PROVISIONS COMMON TO ACP AND CPG
commence/complete a professional, vocational or other
activity for self-improvement A. Administration of property (ACP: Art. 96-98/ CPG: Art.
124-125)
Value donated/promise by both spouses in favor of
common legitimate children for exclusive purpose of
General Rule: Administration shall belong to both spouses
commencing or completing professional or vocational
jointly.
course or other activity for self-improvement
Exceptions:
Expenses of litigation between spouses unless suit 1. In case of disagreement, husband’s decision shall
found to be groundless prevail, subject to recourse to the court by the wife for
1. Ante-Nuptial Debts For Ante-Nuptial Debts, proper remedy within 5 years from date of contract
Chargeable to ACP if same as ACP but in case implementing such decision
redounded to benefit of insufficiency of 2. In case one spouse is incapacitated or unable to
of family separate property, participate in the administration of the common
2. Personal debts not obligations enumerated in properties, the other spouse may assume sole powers
redounding to benefit Art. 121 must first be of administration (Art. 96).
of family such as satisfied before such These powers do NOT include:
liabilities incurred by debts may be chargeable a. Disposition
reason of crime or to the CP b. Encumbrance
quasi-delict,
chargeable to Written consent of other spouse or authority of the
separate property of court is required, otherwise disposition or encumbrance
debtor spouse is VOID.
3. In case of
insufficiency of The husband and wife are the joint administrators of their
separate property, properties forming part of the conjugal partnership and
chargeable to ACP absolute community of properties. The right vested upon
but considered them to ½ of the conjugal assets does not vest until the
advances deductible dissolution and liquidation of the conjugal partnership. The
from share of debtor- sale by the husband of property belonging to the conjugal
spouse upon partnership or the absolute community without the
liquidation consent of the wife or authority of the court is void (Abalos
vs. Macatangay, G.R. No. 155043, September 30, 2004).
Note: The separate properties shall be solidarily and
subsidiarily liable for the obligations if the community or The transaction, however, shall be construed as a
conjugal properties are insufficient. continuing offer on the part of the consenting spouse and
the third person, until acceptance by the other spouse or
Benefits that might accrue to a husband in his signing a authorization by the court before the offer is withdrawn by
surety or guarantee agreement not in favor of the family either or both offerors (ACP: Art. 96;CPG: Art. 124).
but in favor of his employer corporation are not benefits
that can be considered as giving a direct advantage Neither spouse may donate any community property
accruing to the family. Hence, the creditors cannot go without the consent of the other but either may, without
against the conjugal partnership property in satisfying the the other’s consent, make moderate donations for charity
obligation subject of the surety agreement. A contrary
or on occasions of family rejoicing or family distress (ACP: 2. When the consent of one spouse to any transaction of
Art. 98; CPG:Art. 125). the other is required by law, judicial authorization shall
be obtained in a summary proceeding;
Exception: In ACP, either spouse may dispose by will of 3. In the absence of sufficient community property, the
his or her interest in the ACP (Art. 97) separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present
B. Remedies of present spouse in case of abandonment shall, upon proper petition in a summary proceeding, be
by the other spouse or failure to comply with obligations given judicial authority to administer or encumber any
(marital, parental or property relations) specific separate property of the other spouse and use
1. Receivership the fruits or proceeds thereof to satisfy the latter's share
1. Judicial separation of property (Art. 100).
2. Authority to be the sole administrator of the
absolute community (ACP: Art. 101; CPG: Art. 128) D. Steps in liquidation of ACP and CPG (Art. 102 and
129)
A spouse is deemed to have abandoned the other when 1. Inventory of ACP or CPG properties and
he or she has left the conjugal dwelling without any exclusive property of each spouse
intention of returning. Three (3) months’ disappearance or
failure to give within the same period any information as to Separate property included as it is solidarily liable to
a spouse’s whereabouts prima facie raises a presumption creditors and will be used to pay them if ACP or CPG
that the absent spouse has no intention of returning is insolvent
(ACP: Art. 101 par. 3; CPG: Art. 108 par. 3).
Should also include receivables from each spouse
C. Grounds for termination (ACP: Art. 99-101; CPG: Art. for:
126-128): (LADS) a. Amounts advanced for personal debts of each
1. Decree of legal separation spouse
b. Support pendent elite of each spouse
2. Annulment or declaration of nullity of marriage c. For CPG, include value of improvements
constructed on separate property
3. Death of either spouses
1. Payment of ACP or CPG debts
Surviving spouse shall liquidate ACP within 1 year from
death of deceased spouse if no judicial settlement is Must first pay out of the ACP or CP property, if
instituted, failure to do so upon lapse of 1 year period insufficient, spouses solidarily liable with separate
makes any disposition or encumbrance of ACP void properties
Mandatory regime of complete separation of property For CPG, must first reimburse spouse for separate
governs subsequent marriage of surviving spouse if property acquired by CP due to increased value
he/she fails to comply with liquidation of ACP of thereof as a result of improvements thereon
previous marriage
2. Delivery to each spouse of his/her separate
4. Judicial separation of property property if any
3. For CPG, unless owner indemnified from
Note: Effect of separation in fact (ACP: Art. 102; CPG: whatever source, payment of loss or deterioration of
Art. 127) movables belonging to either spouse that was used
for the benefit of the family
General Rule: The separation in fact between husband 4. Division of net assets (for ACP) or net profits
and wife shall not affect the regime of ACP/CPG (CPG), which are not subject to forfeiture
(Sta. Maria, M., Persons and Family Relations, 1. Termination of civil interdiction
2010, p. 504) 2. Reappearance of absentee
3. Upon satisfaction of court that spouse granted
5. Delivery of presumptive legitime, if any, to the administration in the MS will not abuse that power and
children authorizes resumption of said administration
6. Adjudication of conjugal dwelling and lot 4. Return and resumption of common life with spouse by
the other who left the conjugal home without decree of
III. SEPARATION OF PROPERTY DURING THE legal separation
MARRIAGE 5. Restoration of parental authority
6. Reconciliation and resumption of common life of
Takes place if expressly provided for in the MS or by spouses who had been separated in fact for at least 1
judicial order after the marriage (Art. 134). year
7. Spouses agree upon joint petition to revival of former
It may refer to present or future property or both, total or property regime after voluntary dissolution of ACP or
partial. If partial, ACP shall govern properties not agreed CPG has been judicially decreed
upon as separate (Art. 144).
No voluntary separation of property may thereafter be
Separation of property may be effected voluntarily or for granted.
sufficient cause, subject to judicial approval (Art. 134).
Administration of exclusive property (Art. 142)
Causes of judicial separation of property: (CLA²PS) (Art. 1. The administration of all classes of exclusive property of
135) either spouse may be transferred by the court to the
1. Petitioner’s spouse has been sentenced with a penalty other spouse:
which carries with it civil interdiction; a. When one spouse becomes the guardian of the other;
2. Loss of parental authority of petitioner’s spouse as b. When one spouse is judicially declared an absentee;
decreed by the court; c. When one spouse is sentenced to a penalty which
3. Petitioner’s spouse has been judicially declared an carries with it civil interdiction; or
absentee; d. When one spouse becomes a fugitive from justice or
4. Abandonment by the petitioner’s spouse or failure to is in hiding as an accused in a criminal case.
comply with the obligations to the family as provided in 2. If the other spouse is not qualified by reason of
Art. 101; incompetence, conflict of interest, or any other just
5. Spouse granted power of administration in marriage cause, the court shall appoint a suitable person to be
settlement abused such power; and the administrator (Art. 142).
6. At the time of the petition, spouses have been
separated in fact for at least 1 year and reconciliation is IV. REGIME OF SEPARATION OF PROPERTY
highly improbable 1. Each spouse shall own, dispose of, possess, administer
and enjoy his or her own separate estate, without need
Note: In the cases provided for in (1-3), presentation of of the consent of the other. To each spouse shall
final judgment against guilty/ absentee spouse is enough belong all earnings from his or her profession, business
basis for grant of degree of judicial separation of property. or industry and all fruits, natural, industrial or civil, due
or received during the marriage from his or her separate
Effects of judicial separation of property property (Art. 145).
1. Dissolution and liquidation of ACP/CPG (Art. 137) 2. The spouses contribute to the family expenses
2. Liability of the spouses to creditors shall be solidary with PROPORTIONATELY with their income or in case of
their separate properties insufficiency or default thereof, with the current market
3. Mutual obligation to support each other continues value of their separate properties. However, the liability
except when there is legal separation of the spouses to the creditors for family expenses is
4. Rights previously acquired by creditors are not SOLIDARY (Art. 146).
prejudiced (Art. 140)
A Compromise Agreement which was judicially approved
Revival of former property regime (Art. 141) is exactly such a separation of property allowed under the
It shall be governed by Art. 67 and may be filed in the law. However, voluntary separation of property is subject
same proceedings where separation of property was to the rights of all creditors of the conjugal partnership of
decreed in any of the following instances: gains and other persons with pecuniary interest pursuant
through their joint efforts and owned by them in equal belonged to the deceased spouse before the same shall
shares in the absence of proof to the contrary. Rules on have passed into the possession of another; and
co- ownership govern their property relations. 3. Brothers and sisters and brothers-in-law and sisters-in-
law, if living together.
T HE F AMILY
Running of prescriptive periods
The family is a basic social institution which public policy Unless otherwise provided by the Family Code and
cherishes and protects (Art. 149); hence, no suit between other laws, Art. 1109 of the Civil Code provides that
members of the family shall prosper unless a compromise prescription does not run between:
between the parties has failed (Art. 151). Family relations a. Husband and wife, even though there be a separation
are governed by law and no custom, practice or of property agreed upon in the marriage settlements
agreement destructive of the family shall be recognized or or by judicial decree;
given effect (Art. 149). b. Parents and children during the latter’s minority or
insanity;
Family relations include: c. Guardian and ward during the continuance of the
1. Between husband and wife guardianship. (Sta. Maria, m., persons and family
2. Between parents and children relations 2010 ed., p. 589)
3. Among other ascendants and descendants
4. Among brothers and sisters whether full or half–blood FAMILY HOME
(Art. 150) It is constituted jointly by the husband and wife or by an
unmarried head of a family; is the dwelling house where
Mandatory Prior Recourse to Compromise they and their family reside, and the land on which it is
No suit between members of the same family shall situated (Art. 152).
prosper UNLESS it appears from the verified complaint or
petition that earnest efforts toward a compromise have General Rule: The family home is exempt from execution,
been made, and that the same have failed. If it is shown forced sale or attachment.
that no such efforts were, in fact, made, the case must be
dismissed (Art. 151). Rationale: When the creditors seize the family house, they
virtually shatter the family itself.
Exceptions:
1. When a stranger is involved in the suit Exceptions: (PLMN)
1. Debts incurred prior to constitution (Art. 153);
Ratio: The interest of such stranger may differ from the
interest of members of the same family. (Sta. Maria, M., Note: Art. 153 cannot be given retroactive effect to
Persons and Family Relations, 2010, p. 588) shield the homes of debtors from execution of judgment
arising from debts which became due and demandable
2. In cases where compromise is invalid under the Civil prior to the effectivity of the Family Code. To be able to
Code (Art. 2035): (CV JAFF) avail of the benefits of a family home in relation to debts
a. Civil status of persons which matured prior to August 3, 1988, it must be
b. Validity of marriage or a legal separation shown that the home was constituted either judicially or
c. Jurisdiction of courts extrajudicially pursuant to the old Civil Code (Sta.
d. Any ground for legal separation Maria, M., Persons and Family Relations, 2010, p. 591).
e. Future support
f. Future legitime 2. Debts due to laborers, mechanics, architects, builders,
material men and others who have rendered service or
The term “suit” provided by law clearly implies only civil furnished materials for the construction of the building
actions. (Manalo vs. CA, G.R. No. 129242, January 26, (Art. 155);
2000) On the other hand, Art. 332 of the Revised Penal 3. Debts secured by mortgages on family home (Art. 155);
Code provides for exemption from criminal, but not civil 4. Non–payment of taxes on home (Art. 155)
liability, for the crimes of theft, swindling or malicious
mischief committed or caused by the following: If ever the family home is subject of an attachment, the
1. Spouses, ascendants and descendants, or relative by beneficiaries thereof have to move for the quashal of
affinity in the same line; the writ of attachment. If no motion for the quashal of
2. The widowed spouse with respect to the property which the writ or attachment or levy is filed, the benefit of
exemption is considered waived (Honrado v. Court of The family home is shielded from immediate partition
Appeals, G.R. No. 166333, November 25, 2005). under Article 159 regardless of its ownership. This
signifies that even if the family home has passed by
As a rule, the family home is exempt from execution, succession to the co-ownership of the heirs, or has been
forced sale or attachment. However, Article 155(3) of willed to any one of them, this fact alone cannot transform
the Family Code explicitly allows the forced sale of a the family home into an ordinary property, much less
family home “for debts secured by mortgages on the dispel the protection cast upon it by the law. The rights of
premises before or after such constitution.” In this case, the individual co-owner of the family home cannot
there is no doubt that spouses Fortaleza voluntarily subjugate the rights granted under Article 159 to the
executed on January 28, 1998 a deed of Real Estate beneficiaries of the family home (Arriola v. Arriola, G.R.
Mortgage over the subject property which was even No. 177703, January 28, 2008).
notarized by their original counsel of record. And
assuming that the property is exempt from forced sale, 8. To be a beneficiary (other than the husband and the
spouses Fortaleza did not set up and prove to the wife or an unmarried person who is the head of the
Sheriff such exemption from forced sale before it was family), three requisites must concur:
sold at the public auction (Sps. Fortaleza and Ofelia a. They must be either the parent, ascendant,
Fortaleza v. Sps. Lapitan, G.R. No. 178288, August 15, descendant, brother or sister whether legitimate or
2012). illegitimate (Art. 154).
b. They must live in the family home
Outline of provisions regarding the family home: c. They are dependent for legal support upon the head
1. It is constituted on the dwelling house of the family and of the family.
the land on which house is situated Thus in Patricio vs. Dario III (G.R. No. 170829,
2. Deemed constituted from time of actual occupation as a November 20, 2006) a grandson was not considered
family residence (Art. 153) a beneficiary of a family home owned by his
3. Continues to be such as long as any of its beneficiaries grandparent because, while the said grandchild was
actually resides therein (Art. 153) living in the said family home, he was not dependent
4. Must be part of the properties of the absolute for support on the grandparent, who was the head of
community or the conjugal partnership or owned by the family where the grandchild lived, but on his
person constituting it (may be either or both spouses father.
or the single head of a family) (Art. 156)
d. In-laws, provided the home is jointly constituted by
Property that is the subject of a conditional sale on husband and wife. But this law definitely excludes
installments where ownership is reserved by the vendor maids and overseers (Manacop v. CA, G.R. No.
only to guarantee payment of the purchase price may 102855 November 13, 1992).
be constituted as a family home. (Art. 156 par. 2) 8. Every person may constitute or be the beneficiary of
5. Must be permanent (Sta. Maria, M., Persons and one (1) family home only. (Art. 161)
Family Relations, 2010, p. 590). 9. May be alienated, sold, donated, assigned or
6. Rule applies to valid and voidable and even to common- encumbered by the owners provided the written consent
law spouses under Articles 147 and 148 of the following are obtained:
7. Continues despite death of one or both spouses or a. The person who constituted
unmarried head of the family for 10 years, or as long as the same,
a minor beneficiary lives therein. Heirs cannot partition b. His or her spouse, and
the same unless the court finds compelling reasons c. Majority of the beneficiaries of
therefor. (Art. 159). legal age give their consent. (Art. 158)
Paternity
It is the civil status relationship of the father to the child. Legitimate Illegitimate
Exception:
Filiation If child’s filiation has been
It is the civil status or relationship of the child to the father expressly recognized by
or mother. the father through the
The filiation of children may be by nature or by adoption. record of birth appearing
Natural filiation may be legitimate or illegitimate (Art. 163). in the civil register, or
when an admission in a
LEGITIMATE AND ILLEGITIMATE CHILDREN public document or private
DISTINGUISHED handwritten instrument is
Legitimate Illegitimate made by the father.
Conceived and born (Sec.1, RA 9255)
outside a valid marriage Parental Authority
or inside a void ab initio Sole parental authority of
Joint authority of parents
marriage such as mother
Conceived or born during
bigamous and incestuous Support
a valid marriage (Art. 164)
marriages and marriage Entitled to receive support
declared void for being from any of his or her
contrary to law and public direct ascendants and
Entitled to receive support
policy (Art. 165) descendants in
only up t his or her
Conceived or born before accordance with the
grandparents or
the judgment of priority set by law in Art.
Born after the decree of grandchildren as provided
annulment or absolute 195 and 199 (Sta. Maria,
annulment of a voidable for in Art. 195(2) and (3)
nullity of marriage if the M., Persons and Family
marriage (Sta. Maria, M., Persons
ground is psychological Relations, 2010, p. 650).
and Family Relations,
incapacity (Art. 54)
2010, p. 650).
Born in a subsequent void Preferential right to
marriage due to failure to support over mother if
No such preference
comply with Art. 52 and father has no sufficient
53 (Art. 54) means to meet both
Product of artificial claims
insemination provided Successional Right
both spouses authorized Entitled to ½ of legitimate
Entitled to inheritance
or ratified such procedure child’s inheritance
in a written instrument, Beneficiary Right Under the SSS (RA 8282) and GSIS
executed and signed (RA 8291)
before birth of child and Primary beneficiary Not primary beneficiaries
recorded (Art. 164) Paternity Leave under RA 8187 (Paternity Leave Act of
Conceived or born of 1996)
mothers who might have Father is entitled to No such benefit
declared against its paternity leave of 7 days
legitimacy or was with full pay
sentenced as an
adulteress (Art. 167) RULE ON CHILDREN CONCEIVED AS A RESULT OF
Legitimated: conceived ARTIFICIAL INSEMINATION
and born outside of The status of the child is legitimate if all the requirements
wedlock of parents under Art. 164 are complied with namely:
without impediment at the 1. Both spouses authorize or ratify such insemination
time of conception and 2. The authorization or ratification is in a written instrument
had subsequently married signed by them before the birth of the child
Use of Surname 3. The instrument is recorded in the civil registry together
Right to bear father’s Generally required to use with the birth certificate of the child.
surname mother’s surname
Note: Even if the above requirements are not complied
with and the husband does not impugn the legitimacy of engaging in sexual intercourse. Hence in Andal v.
the child on grounds provided by Art. 166 within the Macaraig (G.R. No. L-2474, May 30, 1951), the Court
prescriptive period, the child shall still be considered ruled that the fact that the husband was seriously sick
legitimate because the child has been conceived or born with tuberculosis was not sufficient to overcome the
during the valid marriage of the parents pursuant to Article presumption of legitimacy. Impossibility of access by
164 par. 1. husband to wife would include absence during the
initial period of conception; impotence which is
RULES ON IMPUGNING LEGITIMACY (Art. 166 and 167) patent, continuing and incurable; and imprisonment,
Necessarily applies only to a situation where the child has unless it can be shown that cohabitation took place
been delivered by a woman who is the child’s natural through corrupt violation of prison regulations.
mother (Sta. Maria, M., Persons and Family Relations,
2010, p. 609). 2. Biological or scientific proof that the child could not have
been that of the husband;
In the event that any of the grounds enumerated in Art. Note: Racial dissimilarity may be a considered sufficient
166 is proven, the child will neither be legitimate nor scientific proof (Watkins vs. Carlton, 37 VA [10 Leigh]
illegitimate in so far as the husband is concerned. Simply, 586 as cited Sta. Maria, p. 617).
the husband and the child will not be related to each other
in any manner considering that the husband did not For sterility to constitute proof of non-paternity, the
participate in any way as to the child’s precreation. In so husband must be shown to be completely sterile at the
far as the mother is concerned, the child will be time when the child was conceived (Sta. Maria, M.,
considered illegitimate (Sta. Maria, M., Persons and Persons and Family Relations, 2010, p. 618).
Family Relations, 2010, p. 609).
3. Vitiated consent in artificial insemination
Grounds for impugning legitimacy: (PBC)
1. Physical impossibility of the husband to have sexual Note: The mistake, fraud, violence, intimidation or
intercourse with his wife within the first 120 days of the undue influence can be exerted by not only the spouses
300 days immediately preceding the child’s birth, due against each other but also by third persons on both of
to: the spouses or on any one of them. In any case, only
a. Physical incapacity of the husband; the husband can impugn the legitimacy of the child, or
the heirs in special cases provided in Art. 171.
Note: Must be proved by convincing and persuasive
evidence hence, the fact that a husband, who was Prescriptive periods to file action to impugn legitimacy:
never separated from his wife, has been absolutely 1. One year, from knowledge of birth or recording in the
stiff in th hips at the time of the conception of the child civil register, if husband or heirs live in the SAME
has been held as not conclusive enough to overturn city/municipality where the birth took place or was
the presumption of legitimacy. (State vs. Reed, 107 recorded.
W Va. 563, as cited Sta. Maria, p. 616) 2. Two years, if both reside in the Philippines.
3. Three years, if the child’s birth took place or was
b. Husband and the wife were living separately; recorded in the Philippines while the husband has his
residence abroad, or vice versa (Art. 170).
Note: Mere remoteness of the wife from the husband
is not sufficient to disavow paternity. Hence, the bare Note: The question of legitimacy cannot be collaterally
testimony by the husband that he and his wife were attacked. It can be impugned only in a direct action.
living thirty miles away from each other at the time of (Liyao Jr. vs. Liyao, G.R. No. 138961, March 7, 2002)
the conception of the child is not enough to show the
illegitimacy of the child without any showing that the Parties who can impugn legitimacy of a child:
sexual intercourse with the wife was not possible
(Skott vs. State, 46 ALR 3d 180 as cited Sta. Maria, General Rule: Only the husband may impugn.
p.616).
Exception: The heirs may impugn within the same period
c. Serious illness of the husband which absolutely in the following cases:
prevented sexual intercourse 1 If the husband dies before the expiration of the period
fixed for bringing his action
Note: Must be such as to absolutely prevent him from
2 If he should die after the filing of the complaint without Child born at any time after June 28, 2012 (even if before
having desisted therefrom; or July 26, 2012) is presumed to be filiated with the second
3 If the child was born after the husband’s death (Art. husband.
171).
Note: The legitimacy or illegitimacy of a child born after
An assertion by the mother against the legitimacy of her three hundred days following the termination of the
child cannot affect the legitimacy of the child born or marriage shall be proved by whoever alleges such
conceived within a valid marriage. A mother has no right illegitimacy or illegitimacy (Art. 169).
to disavow a child because maternity is never uncertain
(Concepcion v. CA, GR No 123450, August 31, 2005). Note: Art. 169 negates any presumption of filiation for a
child born after 300 days from the termination of a
The death of the putative father does not ipso facto marriage, in the absence of a subsequent marriage (Sta.
negate the application of DNA testing for as long as Maria, M., Persons and Family Relations, 2010, p. 627).
appropriate biological samples of his DNA exist. In such a
case the petitioner must show the impossibility of PROOF OF FILIATION
obtaining an appropriate biological sample that can be General Rule: Filiation of legitimate (or illegitimate)
utilized for the conduct of DNA testing (Estate of Rogelio children is established by any of the following: (RA)
Ong v. Diaz, G.R. No. 171713, December 17, 2007). 1. The record of birth appearing in the civil registry or a
final judgment
STATUS OF CHILDREN BORN WITHIN 300 DAYS 2. An admission of legitimate (or illegitimate) filiation in a
FROM THE TERMINATION OF A FIRST MARRIAGE public document or a private handwritten instrument
AND THE CELEBRATION OF A SUBSEQUENT and signed by the parent concerned.
MARRIAGE (Art. 168 and 169)
Exceptions: In the absence of any of the foregoing
Requisites: (TS–WBN) evidence, such legitimate or illegitimate filiation shall be
1. First marriage terminated proved by: (OA)
2. Mother contracted subsequent marriage
3. Subsequent marriage was contracted within 300 days 1. Open and continuous possession of the status of a
after termination of previous marriage legitimate or illegitimate child;
4. Child was born within 300-day period 2. Any other means allowed by the Rules of Court and
5. No evidence as to status of child special laws (Art. 172).
a. An act or declaration concerning pedigree (Sec. 33,
Rules on presumption of filiation in case of two marriages: Rule 130, Rules of Court)
1. To first marriage, if child was born before the lapse of b. Family reputation or tradition concerning pedigree
180 days after celebration of 2nd marriage, provided it (Sec. 34, Rule 130, Rules of Court)
was born within 300 days after termination of the 1st c. Common reputation respecting pedigree (Sec. 35,
marriage. Rule 130, Rules of Court)
2. To second marriage, if child was born after 180 days d. Judicial admission (Sec. 2, Rule 129, Rules of Court)
following celebration of 2nd marriage, whether born e. Admission of a party (Sec. 22, Rule 130, Rules of
within 300 days after termination of 1st marriage or Court)
afterwards (Art. 168). f. Admission by silence (Sec. 23, Rule 130, Rules of
Court)
Illustration:
Termination of first marriage: October 1, 2011 Baptismal certificate, judicial admission, family bible,
Celebration of second marriage: January 1, 2012 evidence of pedigree, admission by silence,
300th day from termination of first marriage: July 26, 2012 testimonies of witnesses and other pieces of
180th day from celebration of second marriage: June 28, evidence under Rule 130, Rules of Court may be
2012 proofs of filiation (Cruz vs. Cristobal, G.R. No.
148247,August 7, 2006).
Hence:
Child born on or before June 28, 2012 is presumed to be In Dela Cruz vs. Garcia (G.R. No. 177728, July 31,
filiated to the first husband. 2009), a handwritten autobiography of the father was
recognized as evidence of filiation although not
signed. The Court ruled that “where the private
handwritten instrument is accompanied by other the apparent desire to have and treat the child as such
relevant and competent evidence, it suffices that the in all relations in society and in life, not accidentally, but
claim of filiation therein be shown to have been made continuously” (Jison vs. CA, GR. No. 8454, April 13,
and handwritten by the acknowledging parent as it is 1956).
merely corroborative of such other evidence.”
If the unsigned record of birth can be a proof of filiation
Action to Claim Legitimacy (Art. 173) of the child, it would be easy for a woman to vest
Who may claim: legitimate status to an illegitimate child. Hence, an
1. Child – exclusive and personal right of child which may unsigned record of birth cannot be used as proof of
be brought anytime during his lifetime, regardless of the filiation (Reyes v. Court of Appeals, GR. 39537, March
proof presented to support his claim 19, 1985).
2. Transmitted to heirs of the child within a period of 5
years in case RIGHTS OF CHILDREN
a. Child dies during minority Legitimate Illegitimate
b. Child dies in a state of insanity
c. Child dies after action has already been instituted Use of father & mother’s Use of mother‘s
surname surname
Action to Claim Illegitimacy
Illegitimate children may establish their illegitimate filiation Note: However, R.A.
in the same way and on the same evidence as legitimate 9255 amended Art. 176,
children (Art. 175). FC
Receive support from Receive support only up
1. If illegitimate filiation is established by a record of birth ascendants or to grandparent and
in the civil register or a final judgment, or an admission descendants of the same grandchildren
of filiation in a public document or a private handwritten line.
instrument signed by the parent concerned, the action Entitled to the legitime in Legitime is ½ of the
for recognition may be brought by the child during his succession legitime of a legitimate
lifetime (Guy, vs. CA, G.R. No. 163707, September 15, child
2006).
Right to inherit ab No right to inherit as
2. If the action is based upon open and continuous intestato from legitimate such
possession of the status of an illegitimate child, or any children and relatives of
other means allowed by the rules or special laws, it may his father and mother
be only brought during the lifetime of the alleged parent
(Guy vs. CA, ibid). R.A. No. 9255
An Act Allowing Illegitimate Children to use the surname
3. Unlike an action for legitimacy, the right to claim for of their Father, amending for the purpose Article 176 of
status is NOT transmissible to the heirs. EO No. 209, otherwise known as the "FAMILY CODE OF
THE PHILIPPINES" (approved February 24, 2004).
“Continuous” does not mean that the concession of
status shall continue forever but only that it shall not be Illegitimate children may use the surname of their father if:
of an intermittent character while it is continuous. The 1. Their filiation has been expressly recognized by the
possession of such status means that, the father has father through the record of birth appearing in the civil
treated the child as his own, directly and not through register, or
others, spontaneously, and without concealment, 2. When an admission in a public document or private
though without publicity. There must be a showing of handwritten instrument is made by the father; Provided,
permanent intention of the supposed father to consider that the father has the right to institute an action before
the child as his own by continuous and clear the regular courts to prove non-filiation during his
manifestation of paternal affection and care (Mendoza lifetime.
vs. CA, G.R. No. 86302 September 24, 1991).
LEGITIMATED CHILDREN
The paternal affection and care must not be attributed
to pure charity. “Such acts must be of such a nature that Legitimation
they reveal not only the conviction of paternity, but also
It is a remedy by means of which those who in fact were ascendants (Art. 181)
conceived and born outside of wedlock and should 4. Legitimation may be impugned only by those who are
therefore be considered illegitimate are by legal fiction prejudiced in their rights.
considered legitimate. It shall take place only by the Generally refers to those who would suffer economic or
subsequent valid marriage between the biological parents. material injury by legitimation such as testamentary or
intestate heirs (Sta. Maria, M., Persons and Family
Requisites: (NIM) Relations, 2010, p. 663).
1. The child is illegitimate.
2. The parents at the time of the child’s conception are not Legitimation may be impugned within 5 years from the
disqualified by any impediment from marrying each time their cause of action accrues, that is, from the
other or were so disqualified only because either or both death of the putative parent.
of them were below eighteen (18) years of age (Art.
177, as amended by R.A. 9858). Legitimation may be impugned on grounds like:
3. There is a valid marriage subsequent to the child’s birth a. The subsequent marriage of the child’s parents is
(Art. 178). void;
b. The child allegedly legitimated is not natural; or
Note: Children born out of wedlock to parents who were c. The child is not really the child of the alleged
not allowed by law to marry for being minors are now parents.
qualified for legitimation. This has been made possible by
RA 9858, approved on December 20, 2009 and has A DOPTION
amended Article 177 of the Family Code of the
Philippines. Before RA 9858, Article 177 stated that only
children born out of wedlock to parents who were not The process of making a child, whether related or not to
disqualified from getting married at the time of conception the adopter, possess in general, rights accorded to a
could be legitimized.Under the present law, legitimation legitimate child (Paras, E. Civil Code of the Philippines
would automatically take place upon marriage of the Annotated, 2002 ed., p. 685).
parents. Moreover, couples who had children when they
were below the marrying age would not need to go Adoption statutes, being humane and salutary, hold the
through the process of having to adopt their own offspring interest and welfare of the child to be of paramount
just so their kids could enjoy the rights of legitimate consideration and are designed to provide homes,
children. parental care and education for unfortunate, needy or
orphaned children and give them the protection of society
Notes: Laws providing for the process of legitimation are and family in the person of the adopter as well as to allow
remedial in character intended for the benefit and childless couples to experience the joys of parenthood
protection of the innocent offspring and, therefore, may be and give them legally a child in the person of the adopted
applied retrospectively (Lund’s Estate, 162 ALR 606) and for the manifestation of their natural parental instincts.
must be liberally construed (Cardenas vs. Cardenas, 12 Every reasonable intendment should be sustained to
Ill. App 2d 497, 63 Alr2rd 1001 as cited in Sta. Maria, p. promote and fulfill these noble and compassionate
659). objectives of the law (In re: Petition for adoption of
Effects of legitimation: Michelle P. Lim, G.R. No. 168992-93 May 21, 2009).
1. Legitimated children shall enjoy the same rights as
legitimate children (Art. 179) Nature of adoption proceedings
1. Adoption is a juridical act. Only an adoption made
Note: Legitimation creates for the legitimated child the through the court, or in pursuance with the procedure
total and full extent of the blood-relationship existing laid down under Rule 99 of the Rules of Court is valid in
within the family to include all descendants, ascendants this jurisdiction. It is not of natural law at all, but is
and collateral relative, unlike in adoption where only a wholly and entirely artificial. To establish the relation,
parent-child relationship is created. (Sta. Maria, M., the statutory requirements must be strictly carried out,
Persons and Family Relations, 2010, p. 661) otherwise, the adoption is an absolute nullity (Lazatin
vs. Hon. Judge Campos, G.R. No. L-42955-56 July 30,
2. The effects of legitimation shall retroact to the time of 1979).
the child’s birth (Art. 180) 2. Adoption proceedings are IN REM and publication
3. The legitimation of children who died before the serves as constructive notice to the whole world
celebration of the marriage shall benefit their (Santos vs. Aranzanso, L-23828, February 28, 1966).
f. Has not been convicted of any crime involving moral Other factors to be considered in evaluating prospective
turpitude parents:
g. Emotionally and psychologically capable of caring for 1. Total personality of the applicants
children 2. Emotional maturity
3. Quality of marital relationship
2. Alien (S-DELL) 4. Feeling about children
a. Same qualifications as a Filipino 5. Feeling about childlessness and readiness to adopt
b. Country has diplomatic relations with the Philippines. 6. Motivation (Sta. Maria, M., Persons and Family
c. Certified by said office that his government allows the Relations, 2010, p. 681).
adoptee to enter his country as his adopted child
d. Has been living in the Philippines for at least three (3) Who may be adopted: (Sec. 8) (DARILL)
continuous years prior to the application for adoption 1. Child whose biological or adoptive parents have died,
and maintains such residence until the adoption provided that no proceedings shall be initiated within 6
decree is entered, months from the time of death of said parents
e. Certified to have legal capacity to adopt by his/her 2. Any person below 18 years of age who has been
direct proceeding frontally addressing the issue (Sayson Being a legitimate child by virtue of adoption, it follows
vs. CA, G.R. Nos. 89224-25 January 23, 1992). that the child is entitled to all the rights provided by law to
a legitimate child. The adopted child remains an intestate
Rescission of adoption (Sec. 19) - by ADOPTEE ONLY heir of his/her biological parents. Hence, she can well
assert her hereditary rights from her natural mother in the
Grounds: (ASAR) future (In the matter of adoption of Stephanie Nathy
1. Attempt on the life of the adoptee Astorga Garcia, GR No 148311 March 31, 2005).
2. Sexual assault or violence
3. Abandonment and failure to comply with parental Simulation of Birth
obligations Is the tampering of the civil registry making it appear in the
4. Repeated physical or verbal maltreatment by the birth records that a certain child was born to a person who
adopter despite having undergone counseling is not his/her biological mother, causing such child to lose
his/her true identity and status [R.A.8552 Art. 1 Sec. 3
Note: Adoption shall not be subject to rescission by the (J)].
adopters. However, the adopters may disinherit the
adoptee for causes provided under Art 919 of the Civil Punished by prision mayor in its medium and a fine not
Code (Sec. 19). exceeding P50, 000 under Sec. 21 (b) of the same law.
An adoptee refused to use the surname of the adopter
though already adopted. The adopter sought to A crime defined and punished by Sec. 21 (b) of RA 8552
rescind/revoke the Decree of Adoption (DOA), but the committed by any person who shall cause the fictitious
Domestic Adoption Act (R.A. 8552) which removes the registration of the birth of a child under the names of
right of adopter to challenge the validity of the DOA persons who are not his/her biological parents.
became effective. SC held that the adopter may disinherit
the adoptee, and that the latter has the sole right to INTER-COUNTRY ADOPTION ACT OF 1995 (R.A. 8043)
challenge the DOA (Lahom v. Sibulo, G.R. No 143989, The socio-legal process of adopting a Filipino child by a
July 14, 2003). foreigner or a Filipino citizen permanently residing abroad
where the petition is filed, the supervised trial custody is
Disinheritance of adoptee by adopter undertaken, and the decree of adoption is issued outside
Grounds: (Art. 919, NCC) (GAMM-CARD) the Philippines [Sec. 3 (a)].
1. Groundless accusation against the testator of a crime
punishable by six (6) years or more imprisonment Who may be adopted (Sec. 8)
2. Found guilty of an attempt against the life of the Only a “legally-free child” may be the subject of inter-
testator, his/her spouse, descendants or ascendants country adoption
3. Causes the testator to make or changes a testator’s will
through violence, intimidation, fraud or undue influence Legally-free Child
4. Maltreatment of the testator by word or deed A child who has been voluntarily or involuntarily
5. Conviction of a crime which carries the penalty of civil committed to the DSWD of the Philippines, in accordance
interdiction with the Child Youth and Welfare Code [Sec. 3 (f)]
6. Adultery or concubinage with testator’s spouse
7. Refusal without justifiable cause to support the parent No child shall be matched to a foreign adoptive family
or ascendant unless it is satisfactorily shown that the child cannot be
8. Leads a dishonorable or disgraceful life. adopted locally (Sec. 11).
Effects of rescission: (Sec. 20) (PRAS) There shall be no physical transfer of a voluntarily
1. Parental authority of adoptee’s biological parents or committed child earlier than six (6) months from the date
legal custody of DSWD shall be restored if adoptee is of execution of Deed of Voluntary Commitment except:
still a minor or incapacitated. 1. Adoption by a relative
2. Reciprocal rights and obligations of the adopter(s) and 2. Children with special medical conditions
the adoptee to each other shall be extinguished.
3. Amended certificate of birth of the adoptee shall be Who may adopt (Sec. 9)
cancelled and its original shall be restored. 1. Any alien or
4. Succession rights shall revert to their status prior to the 2. Filipino citizen, both permanently residing abroad
adoption, but vested rights shall be respected.
Conditions: (JAC-NERD--PQ)
1. If married, his/her spouse must jointly file for the (Sec. 44, Implementing Rules of RA 8043)
adoption 2. The adopting parent(s) shall submit to the governmental
2. At least 27 years of age and at least 16 years older than agency or authorized and accredited agency, which
the child to be adopted, at the time of the application shall in turn transmit a copy to the Board, a progress
unless the adopter is: report of the child’s adjustment.
a. Parent by nature of the child to be adopted or
b. Spouse of such parent Disruption and termination of placement: (Sec. 47,
3. Capacity to act and assume all rights and Implementing Rules of RA 8043)
responsibilities of parental authority under his/her In the event of serious damage in the relationship
national laws, and has undergone the appropriate between the child and applicant; or when the continued
counseling from an accredited counselor in his/her placement is no longer in the best interests of the child:
country
4. Has not been convicted of a crime involving moral a. The Board through the Central Authority shall take
turpitude necessary measures to protect the child, in particular
5. Eligible to adopt under his/her national law cause the child to be withdrawn from the applicant
6. Agrees to uphold the basic rights of the child as and arrange for his temporary care
embodied under Philippine laws, the U.N. Convention b. The Central Authority shall exhaust all means to
on the Rights of a Child, and to abide by the rules and remove cause of unsatisfactory relationship
regulations issued to implement the Inter–Country c. The Central Authority shall submit at complete report
Adoption Act to the Board as to the actions taken as well as
7. Comes from a country with whom the Philippines has recommendations.
diplomatic relations and whose government maintains a d. Based on the report submitted by the Central
similarly authorized and accredited agency and that Authority, the Board may terminate the pre-adoptive
adoption is allowed under his/her national laws relationship.
8. In a position to provide the proper care and support and
to give the necessary moral values and examples to all Note: If the pre-adoptive relationship is found
his children, including the child to be adopted unsatisfactory by the child or the applicant or both, or if
9. Possesses all the qualifications and none of the the foreign adoption agency finds that the continued
disqualifications under the Inter–Country Adoption Act placement of the child is not in the child’s best interest,
and other applicable Philippine laws said relationship shall be suspended by the Board and the
foreign adoption agency shall arrange for the child’s
Filing of application (Sec.10): Either with the Philippine temporary care.
RTC having jurisdiction over the child OR with the Inter-
Country Adoption Board, through an intermediate agency If a satisfactory pre-adoptive relationship is formed
between the applicant and the child, the Board shall
Inter-Country Adoption Board (Sec. 4) submit the written consent to the adoption to the foreign
It acts as the central authority in matters relating to inter- adoption agency within 30 days after receipt of the latter’s
country adoption. request.
The Board shall ensure that all possibilities for the A copy of the final decree of adoption of the child,
adoption of the child under the Family Code have been including certificate of citizenship/naturalization whenever
exhausted and that inter–country adoption is in the best applicable, shall be transmitted by the foreign adoption
interest of the child. agency to the Board within 1 month after its issuance
(Sec. 53, Implementing Rules of RA 8043)
Supervision of trial custody (Sec. 14)
Mandatory period of 6 months from the time of placement Presumption of illegal adoption: (Sec. 57, Implementing
before a decree of adoption may be issued. During this Rules of RA 8043) (CPEN)
period, the adopting parents shall submit a progress 1. Consent for adoption was acquired through or attended
report of the child’s adjustment which shall be taken into by coercion, fraud, improper material inducement
consideration in issuing the decree of adoption. 2. Procedures and safeguards provided by law for
adoption were not complied with
1. Starts upon actual physical transfer of the child to the 3. Has exposed or subjected the child to be adopted to
applicant who, as actual custodian, shall exercise danger, abuse or exploitation
substitute parental authority over the person of the child 4. No authority to effect adoption from the Board
Note: Art. 197 providing for the source from where the In case of or urgent need and special circumstances, the
support should be taken out highlights the fact that the court may order only one of them to furnish support
people enumerated in Art. 195 have a personal obligation provisionally subject to the right to claim from the others
to support each other (Sta. Maria, M., Persons and Family the share due them (Art. 200 [2nd par]).
Relations, 2010, p. 763).
When two or more recipients at the same time claim for
For support of legitimate ascendants, descendants support and the person legally obliged to give does not
(legitimate/illegitimate), brothers and sisters have sufficient means to satisfy all claims:
(legitimate/illegitimate), only separate property of person 1. The order of liability provided by law shall be followed.
obliged to give support shall be answerable. In the
Demand for support (Art. 203) Exemption of support from attachment or execution
The obligation to give support shall be demandable from The right to receive support as well as money or property
the time the person who has a right to receive the same obtained as such support shall not be levied upon on
needs it for maintenance, but it shall not be paid except attachment or execution (Art. 205). But in case of
from the date of judicial or extrajudicial demand. contractual support or that given by will, the excess in
amount beyond that required for legal support shall be
Support must be demanded and the right to it established subject to levy on attachment or execution (Art. 208).
before it becomes payable. For the right to support does
not arise from the mere fact of relationship, even from Only salary "due" the judgment debtor is subject to
relationship of parents and children, but from ‘imperative attachment and execution, and then only if it is not made
necessity’ without which it cannot be demanded, and the to appear by the affidavit of the debtor or otherwise that
law presumes that such necessity does not exist unless such earnings are necessary for the support of his family.
support is demanded. (Sy vs. CA, G.R. No. 124518, Dec. Under the Revised Rules, so much of the earnings of the
17, 2007) debtor for his personal services within the month
preceding the levy as are necessary for the support of his
Payment of the amount for support starts only from the family (Sec. 12, Rule 39) is exempt from execution
time support has been judicially or extra-judicially (Avendaño vs. Alikapala, G.R. No. L-21189 November
demanded for the right to support does not arise from the 28, 1964).
mere fact of relationship but from imperative necessity
without which it cannot be demanded, and the law
presumes that such necessity does not exist, unless P ARENTAL A UTHORITY (PA)
support is demanded (Jocson vs. Empire Insurance Co.,
G.R. No. L-10792, April 30, 1958). Parental authority is the sum total of the right of the
parents over the persons and property of their
Performance of obligation to support (Art. 204) unemancipated children. It is pursuant to the natural right
1. Paying the allowance fixed; or and duty of parents over the same and it includes caring
2. Receiving and maintaining in the family dwelling the for and rearing of such children for civic consciousness
person who has a right to receive support provided that and efficiency and the development of their moral and
there is no moral or legal obstacle to do so. physical character and well-being (Art. 209).
Note: The law provides that the husband, who is obliged Parental Preference Rule
to support the wife, may fulfill the obligation either by The natural parents, who are of good moral character and
paying her a fixed pension or by maintaining her in his who can reasonably provide for the child, are ordinarily
own home at his option. However, this option given by entitled to custody as against all other persons (Sta.
law is not absolute. The law will not permit the husband to Maria, M., Persons and Family Relations, 2010, p. 789).
evade or terminate his obligation to support his wife if the
wife is driven away from the conjugal home because of his Parental authority and responsibility are inalienable and
wrongful acts. In the case at bar, the wife was forced to may not be transferred or renounced except in cases
authorized by law. The right attached to parental authority, descendant or by one parent against the other (Art. 215,
being purely personal, the law allows a waiver of parental FC in relation to Sec. 25, Rule 130 of the Rules on
authority only in cases of adoption, guardianship and Evidence)
surrender to a children’s home or an orphan institution.
When a parent entrusts the custody of a minor to another, In Emma Lee vs. CA (G.R. No. 177861, July 13, 2010),
such as a friend or godfather, even in a document, what is the person (Tiu) who invoked the filial privilege, claims
given is merely temporary custody and it does not that she is the stepmother of petitioner Lee. The Supreme
constitute a renunciation of parental authority. Even if a Court declared that the privilege cannot apply because the
definite renunciation is manifest, the law still disallows the rule applies only to “direct” ascendants and descendants,
same. The father and mother, being the natural guardians a family tie connected by a common ancestry. A
of unemancipated children, are duty-bound and entitled to stepdaughter does not have a common ancestry by her
keep them in their custody and company (Sagala-Eslao stepmother. Relative thereto, Art. 965 of the NCC
vs. CA, G.R. No. 116773, January 16, 1997). provides that the direct line is either descending or
ascending. The former unites the head of the family with
The right of custody accorded to parents springs from the those who descend from him. The latter binds a person
exercise of parental authority. (Santos vs. CA, G.R. No. with those from whom he descends. Consequently, Tiu
113054 March 16, 1995) can be compelled to testify against petitioner Emma Lee.
This rule is not strictly a rule on disqualification because a
Rules on the exercise of parental authority descendant is not incompetent or disqualified to testify
Joint parental authority by the father and mother over the against an ascendant. The rule refers to a privilege not to
persons of their common children, whether legitimate or testify, which can be invoked or waived like other
illegitimate. In case of disagreement, the father’s decision privileges. As correctly observed by the lower court, Elven
shall prevail unless there is a judicial order to the contrary was not compelled to testify against his father; he chose
(Art. 211) to waive that filial privilege when he voluntarily testified
against Artemio. Elven declared that he was testifying as
Under Art. 176, parental authority of illegitimate children is a witness against his father of his own accord and only "to
generally with the mother. To harmonize Art. 176 with Art. tell the truth” (People vs. Invencion, G.R. No. 131636
211, joint parental authority may be exercised over March 5, 2003).
illegitimate children if:
1. The father is certain, and In line with the filial privilege under Art. 215 of the Family
2. The illegitimate children are living with the said father Code is the marital privilege provided for under Sec. 24
and mother who are cohabiting without the benefit of (a) of Rule 130 of the Rules of Court which states that:
marriage or under a void marriage not falling under
Arts. 36 and 53.( Sta. Maria, M., Persons and Family The husband or the wife, during or after the marriage,
Relations, 2010, p. 781) cannot be examined without the consent of the other as to
any communication received in confidence by one from
Note: The recognition by the father could be a ground for the other during the marriage except in a civil case by one
ordering him to give support, but not custody of the child. against the other, or in a criminal case for a crime
Only if the mother defaults can the father assume such committed by one against the other or the latter's direct
custody or authority. Only the most compelling of reasons, descendants or ascendants.
such as the mother’s unfitness to exercise sole parental
authority shall justify deprivation of her parental authority Rules in case parental authority cannot be exercised
and the award of custody to someone else (Briones vs. jointly (Art. 212 to 214)
Miguel, G.R. No. 156343 October 18, 2004). Cause of absence of Effect on parental
parent authority
Duties of Children towards their Parents Absence or death of one PA continued by the
1. To observe respect and reverence toward their parents; parent parent present or
2. To obey their parents as long as they are under their surviving parent
parental authority. In case of remarriage of PA continued to be
the surviving parent exercised by surviving
Rule of filial privilege parent unless court
No descendant shall be compelled, in a criminal case, to appoints another person
testify against his parents and grandparents, except when a guardian
such testimony is indispensable in a crime against the
Note: The new spouse, As to the bias favoring the mother over the father in case
by virtue of his or her of separation: At any rate, the rule’s seeming harshness
marrying the surviving or undesirability is tempered by ancillary agreements the
parent, does not separated parents may wish to enter such as granting the
automatically possess father visitation and other privileges. These arrangements
parental authority over are not inconsistent with the regime of sole maternal
the children of the custody under the second paragraph of Article 213 which
surviving parent unless merely grants to the mother final authority on the care and
such new spouse custody of the minor under seven years of age, in case of
adopts the children. disagreements.
(Sta. Maria, M., Persons
and Family Relations, As to the limited period of application of preference:
2010, p. 784) Further, the imposed custodial regime under the second
Legal separation of PA shall be exercised by paragraph of Article 213 is limited in duration, lasting only
parents the parent designated until the child’s seventh year. From the eighth year until
by the court the child’s emancipation, the law gives the separated
parents freedom, subject to the usual contractual
Exception: limitations, to agree on custody regimes they see fit to
If child is under seven adopt.
years old, the mother
shall have custody over Writ of habeas corpus in child custody cases
said child. Habeas corpus may be resorted in cases where rightful
custody is withheld from a person entitled thereto
Exception to the (Salientes vs. Abanilla G.R. No. 162734 August 29,
exception: 2006).
Unless the court finds
compelling reasons to The controversy does not involve the question of personal
order otherwise. freedom, because an infant is presumed to be in the
Death, absence or Substitute parental custody of someone until he attains majority age. In
unsuitability of both authority shall be passing on the writ in a child custody case, the court deals
parents exercised by the with a matter of an equitable nature. Not bound by any
surviving grandparent. mere legal right of parent or guardian, the court gives his
In case several survive, or her claim to the custody of the child due weight as a
the court shall consider claim founded on human nature and considered generally
the best interests of the equitable and just. Therefore, these cases are decided,
child in the designation. not on the legal right of the petitioner to be relived from
unlawful imprisonment or detention, as in the .case of
Doctrines regarding the maternal preference granted by adults, but on the court’s view of the best interests of
Art. 213 par. 2 as decided in Dacasin vs. Dacasin (G.R. those whose welfare requires that they be in custody of
No. 168785 February 5, 2010) one person or another. Hence, the court is not bound to
deliver a child into the custody of any claimant or of any
Maternal preference cannot be subject to an agreement persons, but should, in the consideration of the facts,
between the separated spouses: Indeed, the separated leave it in such custody as its welfare at the time appears
parents cannot contract away the provision in the Family to require. In short, the child’s welfare is the supreme
Code on the maternal custody of children below seven consideration (Sombong vs. CA, G.R. No.
years anymore than they can privately agree that a 111876. January 31, 1996).
mother who is unemployed, immoral, habitually drunk,
drug addict, insane or afflicted with a communicable Maternal Preference/ Tender Years Rule
disease will have sole custody of a child under seven as General Rule: No child under 7 years of age shall be
these are reasons deemed compelling to preclude the separated from the mother.
application of the exclusive maternal custody regime
under the second paragraph of Article 213. Exception: When the court finds compelling reason to
order otherwise. The welfare and well-being of the child is
the paramount consideration in awarding custody.
The same order of preference shall be observed when Parental authority shall be entrusted in summary judicial
appointment of guardian over property of child becomes proceeding to:
necessary. 1. Heads of children’s homes,
2. Orphanages, or
Private respondents' (grandparents) demonstrated love 3. Similar institutions duly accredited by the proper
and affection for the boy, notwithstanding, the legitimate government agency (Art. 217)
father is still preferred over the grandparents. The latter's SPECIAL PARENTAL AUTHORITY (Art. 218 and 219)
wealth is not a deciding factor, particularly because there Can only be exercised over minors while under their
is no proof that at the present time, petitioner is in no supervision, instruction or custody. The authority and
position to support the boy. The fact that he was unable to supervision also attach to all authorized activities whether
provide financial support for his minor son from birth up to inside or outside the school, entity or institution.
over three years when he took the boy from his in-laws
without permission, should not be sufficient reason to strip The following shall be held principally and solidarily liable
him of his permanent right to the child's custody. While for damages caused by the acts or omissions of the
petitioner's previous inattention is inexcusable and merits unemancipated minor:
only the severest criticism, it cannot be construed as 1. School
abandonment. His appeal of the unfavorable decision
against him and his efforts to keep his only child in his No distinction between academic or non-academic (arts
custody may be regarded as serious efforts to rectify his and trades)
past misdeeds. To award him custody would help
enhance the bond between parent and son. It would also Note: In Amadora vs. CA (G.R. No. L-47745 April 15,
give the father a chance to prove his love for his son and 1988), the Court has come to the conclusion that the
for the son to experience the warmth and support which a Art. 218 and 219 should apply to all schools, academic
father can give (Santos vs. CA, G.R. No. 113054 March as well as non-academic. Where the school is academic
16, 1995). rather than technical or vocational in nature,
responsibility for the tort committed by the student will
Note: The person exercising substitute parental authority attach to the teacher in charge of such student,
shall have the same authority over the person of the child following the first part of the provision. This is the
as the parents (Art. 233). general rule. In the case of establishments of arts and
trades, it is the head thereof, and only he, who shall be
Rule in case of foundlings, abandoned, neglected or held liable as an exception to the general rule. In other
abused children and other children similarly situated: (Art. words, teachers in general shall be liable for the acts of
217) their students except where the school is technical in
nature, in which case it is the head thereof who shall be
Foundling answerable. Following the canon of reddendo singula
Newborn child abandoned by its parents who are singulis "teachers" should apply to the words "pupils
unknown (Bouvier’s Law Dictionary, 3rd Revision, p. 1293) and students" and "heads of establishments of arts and
trades" to the word "apprentices."
Abandoned child
One who has no proper parental care or guardianship, or 2. Administrators and teachers
those whose parents or guardians have deserted him for a 3. Individual, entity or institution engaged in child care
period of at least six continous months [Art. 141 (2), PD
603]
As held in the case of Palisoc vs. Brillantes (G.R. No. L- must be living in their
29025 October 4, 1971), the phrase "so long as (the company AND under
students) remain in their custody" means the protective their parental authority.
and supervisory custody that the school and its heads and
teachers exercise over the pupils and students for as long The principle of parental liability (under Art. 221) is a
as they are at attendance in the school, including recess species of vicarious liability, or the doctrine of imputed
time. There is nothing in the law that requires that for such negligence where a person is not only liable for torts
liability to attach, the pupil or student who commits the committed by himself, but also for torts committed by
tortious act must live and board in the school. In the view others with whom he has a certain relationship and for
of the Court, the student is in the custody of the school whom he is responsible. Parental liability is, in other
authorities as long as he is under the control and influence words, anchored upon the parental authority coupled with
of the school and within its premises, whether the the presumed parental dereliction in the discharge of the
semester has not yet begun or has already ended. duties accompanying such authority (Tamargo vs. CA,
G.R. No. G.R. No. 85044 June 3, 1992).
Note: In no case shall the persons exercising special
parental authority inflict corporal punishment upon the
child (Art. 233).
civic affairs, and inspire in them compliance with the Exception: Parents are required to file a bond where the
duties of citizenship; market value of the property or the annual income of the
4. To furnish them with good and wholesome educational child exceeds P50,000. The bond shall not be less than
materials, supervise their activities, recreation and ten per centum (10%) of the value of the property or
association with others, protect them from bad annual income, to guarantee the performance of the
company, and prevent them from acquiring habits obligations prescribed for general guardians.
detrimental to their health, studies and morals;
5. To represent them in all matters affecting their Fruits and profits of industry of child:
interests; a. Owned by the child;
6. To demand from them respect and obedience; b. Shall be devoted exclusively to the child’s support
7. To impose discipline on them as may be required and education unless the title or transfer provides
under the circumstances; and otherwise.
8. To perform such other duties as are imposed by law c. Parent may only use such fruits and income shall be
upon parents and guardians. limited primarily to the child's support and secondarily
to the collective daily needs of the family.
Procedure for imposing discipline on the child (Art. 223)
1. Parent or person exercising parental authority, may Administration of parents’ property by unemancipated
petition the proper court of the place where the child child (Art. 227)
resides, for an order providing for disciplinary measures 1. The net proceeds of such property shall belong to the
over the child. parents-owner.
a. Relief prayed for may include commitment in an 2. The child shall be given a reasonable monthly
institution in child care duly accredited by the proper allowance in an amount not less than that which the
government authority for not more than 30 days. owner would have paid if the administrator were a
b. If petition is granted, parent shall not interfere with stranger, unless the owner, grants the entire proceeds
the implementation of the decision but shall continue to the child.
to provide for his support. 3. The proceeds given in whole or in part shall not be
charged to the child's legitime.
2. There will be a summary hearing and the child shall be Kinds of Properties of a Minor
entitled to the assistance of counsel, either of his choice
or appointed by the court. Adventitious (Art. 226) Profectitious (Art. 227)
3. If in the same proceeding the court finds the petitioner
at fault, irrespective of the merits of the petition, or when Earned or acquired by the
Property given by the
the circumstances so warrant, the court may also order child through his work or
parents to the child for
the deprivation or suspension of parental authority or industry by onerous or
the latter to administer
adopt such other measures as it may deem just and gratuitous title
proper.
4. The court may terminate the commitment of the child Owned by the child Owned by the parents
whenever just and proper (Art. 224)
Child is also the
II. Upon the Property of the Children (Art. 225 and 226) usufructuary, but the child’s
The father and the mother shall jointly exercise legal Parents are the
use of the property shall be
guardianship over the property of the unemancipated usufructuary
secondary to the collective
common child without the necessity of a court daily needs of the family
appointment.
Property administered by Property administered by
In case of disagreement, the father's decision shall the parents the child
prevail, unless there is a judicial order to the contrary.
Note: Two cases where a parent cannot be the Note: The courts may appoint a guardian of the child’s
administrator of the property of his children under the property, or a guardian ad litem when the best interests of
provisions on succession, Art. 923 and Art. 1035 of the the child so require. (Art. 222)
Civil Code.
SUSPENSION AND TERMINATION OF PARENTAL
AUTHORITY (Art. 228 and 229)
Effect of Emancipation
Emancipation for any cause shall terminate parental
authority over the person and property of the child who
Grounds for termination of parental authority shall then be qualified and responsible for all acts of civil
Permanent (Art. 228 and life, save the exceptions established by existing laws in
Temporary (Art. 229)
232) special cases (Art 236 as amended by RA 6809).
Death of the parents Adoption of the child
Upon the effectivity of this Act (December 13, 1989),
Appointment of a general existing wills, bequests, donations, grants, insurance
Death of the child
guardian policies and similar instruments containing references and
Emancipation of the child Judicial declaration of provisions favorable to minors will not retroact to their
abandonment prejudice (Sec, 4, RA 6809).
If the person exercising
parental authority has Final judgment divesting
subjected the child or the parents of parental
S UMMARY J UDICIAL
allowed him to be subjected authority P ROCEEDINGS IN THE F AMILY
to sexual abuse L AW
Judicial declaration of
absence or incapacity of Actions requiring summary judicial proceedings under the
the parents exercising Family Code:
parental authority over the 1. To obtain a judicial declaration of presumptive death for
child. the purpose of contracting a subsequent marriage (Art.
41)
2. In case of legally separated spouses, when the consent
Notes: Sec. 10 (b) of the RA 7610 punishes any person
of one spouse to any transaction of the other is required
who shall keep or have in his company a minor:
by law, judicial authorization shall be obtained in a
a. Who is 12 years old or younger in any public or
summary proceeding (Art. 100 [2])
private place, hotel, motel, beer joint, discotheque,
3. In case of legally separated spouses, when the
cabaret, pension house, sauna or massage parlor,
community property is not sufficient for the support of
beach and/or other tourist resort or similar places; or
the family each spouse is liable with his/her separate
b. Who is 10 or more years his junior, in the places
property. The spouse present shall petition the court for
enumerated in (a).
the administration of the specific separate property of
a. Her maiden first name and surname and add her Exception: Use of pen names or stage names is
husband's surname (ex: Maria Aquino-dela Cruz) or permitted, PROVIDED it is done in good faith and there is
b. Her maiden first name and her husband's surname no injury to third persons (Art 379)
(ex: Maria dela Cruz) or
c. Her husband's full name, but prefixing a word Usurpation of a name and surname may be the subject of
indicating that she is his wife, such as "Mrs.” (ex: an action for damages and other relief. (Art. 377)
Mrs. Juan dela Cruz)
Elements:
2. In case of annulment of marriage (Art. 371): a. There is an actual use of another’s name by the
a. If the wife is the guilty party, she shall resume her defendant
maiden name and surname. b. The use is unauthorized;
b. If she is the innocent spouse, she may resume her c. The use of another’s name is to designate personality
maiden name and surname. However, she may or identify a person (Tolentino vs. Ca, G.R. no. L-41427
choose to continue employing her former husband's june 10, 1988).
surname, unless:
i. The court decrees otherwise, or The unauthorized or unlawful use of another person's
ii. She or the former husband is married again to surname gives a right of action to the latter. (Art. 378)
another person.
Change of name is a judicial proceeding in rem.
3. When legal separation has been granted, the wife shall Jurisdiction to hear and determine a petition therefor, by
continue using her name and surname employed before law, is acquired after publication of the "order reciting the
the legal separation. (Art. 372) purpose of the petition" and the "date and place for the
hearing thereof"---for three (3) successive weeks in a
Note: The language of the statute is mandatory that the newspaper of general circulation. But, for that publication
wife, even after the legal separation has been decreed, to be effective, it must give a correct information. We
shall continue using her name and surname employed therefore rule that for purposes of an application for
before the legal separation. This is so because her change of name under Article 376 of the Civil Code, the
married status is unaffected by the separation, there only name that may be changed is the true or official
being no severance of the vinculum. It seems to be the name recorded in the civil register. In addition, we
policy of the law that the wife should continue to use the accordingly hold that for a publication of a petition for a
name indicative of her unchanged status for the benefit change of name to be valid, the title thereof should
of all concerned ( Laperal vs. Republic, G.R. No. L- include, first, his real name, and second, his aliases, if any
18008 October 30, 1962). (Ng Yao vs. Republic, G.R. No. L-20306 March 31, 1966).
b. The spouse is preferred as the legal representative Absence under ordinary circumstances
except when they are legally separated. (Art. 390)
c. If absentee left no spouse, any competent person any
Presumed dead for
be appointed.
purposes of opening
succession
2. Declared absence (Art. 384)
a. Without administrator - When a person disappears
Exception:
from his domicile, and 2 years have elapsed without
10 years If at the time of
any news about him, or since the receipt of the last
disappearance person
news.
was already 75 years old,
b. With administrator – 5 years have elapsed
5 years of absence is
sufficient for this
The following may ask for the declaration of absence:
presumption to apply.
i. Spouse present
ii. Testate or Intestate heirs Presumed dead for
iii.Other persons subordinated to rights by death. 4 years purposes of remarriage of
the spouse present
The judicial declaration of absence shall not take effect
until six months after its publication in a newspaper of Absence under extraordinary circumstances/ Qualified
general circulation (Art. 386) absence (Art. 391)
Presumed dead for all
An administrator of the absentee’s property shall be
4 years purposes including
appointed.
opening of succession
When the wife is appointed as an administratrix, she Presumed dead for
2 years
cannot alienate or encumber the husband’s property or purposes of remarriage
that of the conjugal property without judicial authority.
The legal requirement on the need for judicial declaration Change of first name or nickname Under R.A. 9048 (An
of presumptive death does not apply to a marriage Act Authorizing City or Municipal Civil Registrar or the
celebrated under the (Old) Civil Code as the law itself Consul General to Correct a Clerical or Typographical
presumed as dead the spouse who disappeared for a Error in an Entry and/or Change of First Name or
period of seven (7) years where the present spouse has Nickname in the Civil Registrar without Need of a Judicial
no news of the absentee being alive, or for less than Order, Amending For This Purpose Arts. 376 And 412 Of
seven (7) years where the absentee was generally The Civil Code)
presumed dead (Valdez vs. Republic, G.R. No. 180863,
September 8, 2009). Hence, proof of “well- founded” belief Authority to correct clerical or typographical error and
is not required. change of first name or nickname: (Sec. 1)
Note: R.A. 9048 does NOT sanction a change of first Opposition may be filed by the civil registrar and any
name on the ground of sex reassignment. To rule person having or claiming any interest under the entry
otherwise may create grave complications in the civil whose cancellation or correction is sought within 15
registry and public interest (Republic v. CA, GR NO. days from notice of the petition, or from the last date of
97906, May 21, 1992). publication of such notice. (Sec. 5)
Middle names serve to identify the maternal lineage or Orders expediting the proceedings and preliminary
filiation of a person as well as further distinguish him from injunction for the preservation of the rights of the parties
others who may have the same given name and surname pending such proceedings may be granted by the court.
as he has. The dropping of the middle name of a minor so (Sec. 6)
that he will not be different from his classmates in
Singapore and on the additional ground that it would After hearing, the court may either dismiss the petition
cause confusion and difficulty in its pronunciation in or issue an order granting the cancellation or correction
Singapore does not constitute proper and reasonable prayed for. In either case, a certified copy of the
cause to drop it from his registered complete name. As he judgment shall be served upon the civil registrar
is of tender age, he may not yet understand and concerned who shall annotate the same in his record.
appreciate the value of the change of his name and (Sec. 7)
granting of the same at this point may just prejudice him in
his rights under our laws (In Re: Petition for Change of
Name and/or Correction/Cancellation of Entry in Civil Entries subject to cancellation or correction upon good
Registry of Julian Lin Carulasan Wang vs. Cebu City Civil and valid grounds (Sec.2)
Registrar, G.R. No. 159966, March 30, 2005). 1. Births
2. Marriages
Please refer to Remedial Law Memory Aid for a 3. Deaths
comprehensive discussion of the procedural aspects of 4. Legal separations
change of name. 5. Judgments of annulments of marriage
6. Judgments declaring marriages void from the beginning
7. Legitimations
8. Adoptions
9. Acknowledgments of natural children
Cancellation or correction of entries in the Civil Registry 10.Naturalization
(Rule 108, Rules of Court) 11.Election, loss or recovery of citizenship
12.Civil interdiction
Any person interested in any act, event, order or decree 13.Judicial determination of filiation
concerning the civil status of persons which has been 14.Voluntary emancipation of a minor
recorded in the civil register, may file a verified petition for 15. Changes of name
the cancellation or correction of any entry relating thereto,
with the Court of First Instance of the province where the
corresponding civil registry is located. (Sec 1)
1. Fix the time and place for the hearing of the same
2. Cause reasonable notice thereof to be given to the
persons named in the petition.
3. Cause the order to be published once a week for 3
consecutive weeks in a newspaper of general
circulation in the province. (Sec. 4)