.

 NEW CIVIL CODE

  took effect on August 30, 1950

Effectivity of laws

GENERAL RULE: Laws take effect 15 days following the completion of its publication

EXCEPTION: Unless otherwise provided by the law. This refers to the 15 day period and NOT to the
requirement of publication. (Tanada vs. Tuvera)

NOTE: Administrative rules and regulations must also be published if their purpose is to enforce or
implement existing laws pursuant to a valid delegation. The publication must be in full since its
purpose is to inform the public of the contents of the law. (Phil. Int’l Trading Corp. vs. Angeles)

Ignorance of the law excuses no one

  considered a CONCLUSIVE presumption and applies only to mandatory and prohibitory

laws. (Consunji vs. CA)

Non-retroactivity of laws

GENERAL RULE: Laws have no retroactive effect.

EXCEPTIONS: (UCIPELT)

1.Unless the law otherwise provides

2. Curative statutes

3. Interpretative statutes

4. Procedural/remedial

5. Emergency laws

6. Laws creating new rights

7. Tax laws

EXCEPTIONS TO THE EXCEPTIONS:

1.     Ex post facto laws

2.      Laws that impair obligation of contracts

Acts Contrary To Law

GENERAL RULE: Acts which are contrary to mandatory or prohibitory laws are void.

EXCEPTIONS:

1.     When the law itself authorized its validity   (ex. lotto, sweepstakes)

2.     When the law makes the act only voidable and not void (ex. voidable contracts where
consent is vitiated)

3.     When the law makes the act valid but punishes the violator (ex. marriage solemnized by a
person without legal authority)

Waiver of rights

  Requisites: (EKI)

1. Existence of a right

2. Knowledge of the existence of a right

3. Intention to relinquish the right

GENERAL RULE: Rights can be waived.

EXCEPTIONS:

1.      If the waiver is contrary to law, public order, public policy, morals or good customs
(LPPMG)

2.     If the waiver is prejudicial to a third party with a right recognized by law.

NOTE: A stipulation requiring the recipient of a scholarship grant to waive his right to transfer to
another school, unless he refunds the equivalent of his scholarship in cash is null and void. The school
concerned obviously understands scholarship awards as a business scheme designed to increase the
business potential of an educational institution. Thus, conceived, it is not only inconsistent with sound
policy, but also with good morals. (Cui vs. Arellano University)
Laws applicable

1.    Penal laws and laws of public security

  territoriality rule governs

  laws of the Philippines will govern upon ALL those who live or sojourn in it

2.    Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons

  nationality rule applies

  laws of the Philippines will govern its citizens, regardless of their residence

EXCEPTION: When a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have the capacity to remarry under Philippine law. ( Article 26(2)
Family Code)

NOTE: domiciliary rule supplants the nationality rule in cases involving stateless persons

3.    Laws on property

  lex rei sitae applies

  real property, as well as personal property is subject to the law of the country where it is
situated

4.    Laws on forms and solemnities

  lex loci celebrationis applies

Rules on Personal Law

DOMICILIARY RULE NATIONALITY RULE

Basis for determining personal law of an individual is his domicile basis for determining personal law of an individua

Law >

Persons and Family Relations

PERSONS AND FAMILY RELATIONS

  

I. NEW CIVIL CODE

  took effect on August 30, 1950

Effectivity of laws

GENERAL RULE: Laws take effect 15 days following the completion of its publication

EXCEPTION: Unless otherwise provided by the law. This refers to the 15 day period and NOT to the requirement of p
(Tanada vs. Tuvera)

NOTE: Administrative rules and regulations must also be published if their purpose is to enforce or implement ex
pursuant to a valid delegation. The publication must be in full since its purpose is to inform the public of the cont
law. (Phil. Int’l Trading Corp. vs. Angeles)

Ignorance of the law excuses no one

  considered a CONCLUSIVE presumption and applies only to mandatory and prohibitory laws. (Consunji vs. CA)

Non-retroactivity of laws

GENERAL RULE: Laws have no retroactive effect.

EXCEPTIONS: (UCIPELT)

1.Unless the law otherwise provides

2. Curative statutes

3. Interpretative statutes

4. Procedural/remedial
 5. Emergency laws

6. Laws creating new rights

7. Tax laws

EXCEPTIONS TO THE EXCEPTIONS:

1.     Ex post facto laws

2.      Laws that impair obligation of contracts

Acts Contrary To Law

GENERAL RULE: Acts which are contrary to mandatory or prohibitory laws are void.

EXCEPTIONS:

1.     When the law itself authorized its validity   (ex. lotto, sweepstakes)

2.     When the law makes the act only voidable and not void (ex. voidable contracts where consent is vitiated)

3.     When the law makes the act valid but punishes the violator (ex. marriage solemnized by a person w
authority)

Waiver of rights

  Requisites: (EKI)

1. Existence of a right

2. Knowledge of the existence of a right

3. Intention to relinquish the right

 

GENERAL RULE: Rights can be waived.

EXCEPTIONS:

1.      If the waiver is contrary to law, public order, public policy, morals or good customs (LPPMG)

2.     If the waiver is prejudicial to a third party with a right recognized by law.

NOTE: A stipulation requiring the recipient of a scholarship grant to waive his right to transfer to another school
refunds the equivalent of his scholarship in cash is null and void. The school concerned obviously understands scholar
as a business scheme designed to increase the business potential of an educational institution. Thus, conceived, it
inconsistent with sound policy, but also with good morals. (Cui vs. Arellano University)

Laws applicable

1.    Penal laws and laws of public security

  territoriality rule governs

  laws of the Philippines will govern upon ALL those who live or sojourn in it

2.    Laws relating to family rights and duties, or to the status, condition and legal capacity of persons

  nationality rule applies

  laws of the Philippines will govern its citizens, regardless of their residence

EXCEPTION: When a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is therea
obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have the
remarry under Philippine law. (Article 26(2) Family Code)

NOTE: domiciliary rule supplants the nationality rule in cases involving stateless persons

3.    Laws on property

  lex rei sitae applies

  real property, as well as personal property is subject to the law of the country where it is situated
  

4.    Laws on forms and solemnities

  lex loci celebrationis applies

Rules on Personal Law

NATIONALITY
DOMICILIARY RULE
RULE
Basis for basis for
determining determining
personal law of an personal law of an
individual is individual is
his domicile his citizenship
 

LEX REI LEX LOCI

LEX SITAE CELEBRA-
NATIO- TIONIS
NALII
Art. 15, CC Art. 16, CC Art. 17, CC
Citizenship Law of the Law of the
is the basis place place where
for where the the contract
determining property is was executed
the situated is is the basis
personal the basis for
law for determining
applicable determining law applicable
law
applicable
Covers Covers both Covers only
family real & the forms &
rights & personal solemnities
duties, property (extrinsic
status, validity)
condition &
legal
capacity
Exception: Exceptions: Exceptions:

Art. 26, (CIAO) 1. Art. 26,

par. 2 of par. 1 of
Family 1. Capacity Family Code
Code to succeed (marriage
involving
Filipinos
 2. Intrinsic solemnized
validity of abroad, when
the will such are void
in the
3. Amount Philippines)
of
successional 2. Intrinsic
rights validity of
contracts
4. Order of
succession
 

Renvoi Doctrine

  Where the conflict rules of the forum refer to a foreign law, and the latter refers it back to the intern
latter (law of the forum) shall apply. 

NOTE: If the foreign law refers it to a third country, the said country’s laws shall govern, and is referred to as the t
theory.

Doctrine of Processual Presumption

  The foreign law, whenever applicable, should be proved by the proponent thereof; otherwise, such la
presumed to be exactly the same as the law of the forum.

Rule on Prohibitive Laws

GENERAL RULE: Prohibitive laws concerning persons, their acts or property and laws which have for their object p
public policy or good customs are not rendered

ineffective by laws, judgments promulgated or conventions agreed upon in foreign country.

EXCEPTION: Art. 26, par. 2 Family Code

  Example:  Divorce law

Human Relations

  Every person must, in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due, and observe honesty and good faith. (Art. 19 of NCC)

 
NOTE: The elements of an abuse of right under Art. 19 are:

1.    There is a legal right;

2.    Which is exercised in bad faith;

3.   For the sole intent of prejudicing or injuring another. (Albenson Ent. Corp. vs. CA)

The SC in Velayo vs. Shell held the defendant liable under Art. 19 for disposing of its property (a
perfectly legal act) in order to escape the reach of a creditor. Likewise, in  Globe Mackay Cable and
Radio Corp.
vs. CA, the employer corporation was held liable for damages for an abusive manner in dismissing an
employee, as well as for the inhuman treatment the latter got from them.

  Every person who, contrary to law, willfully or negligently causes damage to another, shall
indemnify the latter for the same. (Art. 20 of NCC)

  Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage. (ART. 21 of
NCC)

NOTE: Art. 21 deals with acts contra bonus mores, and has the following elements:

1.    There is an act which is legal;

2.    But which is contrary to morals, customs, public order;

3.    and it is done with intent to injure.

Arts. 19, 20 and 21 are related to each other and, under these articles, an act which

causes injury to another may be made the basis for an award of damages.

           

There is a common element under Arts. 19 and 21, and that is, the act must be done intentional.
However, Art. 20 does not distinguish, the act may be done either “willfully” or
“negligently.” (Albenson Ent. Corp. vs. CA)

    The SC in Pe vs. Pe, applying Art. 21 ruled that a married man had seduced a girl through an
ingenious and tricky scheme, i.e. on the pretext of teaching her how to pray the rosary, to the extent
of making her fall in love with him. Verily, he has committed an injury to the girl’s family in a manner
contrary to morals, good customs and public policy.

However, in Tanjanco vs. CA, the SC denied the award of moral damages based on the fact that
for one year, from 1958-1959, the plaintiff, a woman of adult age, maintained intimate sexual relations
with defendant, with repeated acts of intercourse. Such conduct is incompatible with the idea of
seduction. Plainly, there is here voluntariness and mutual passion; for had the plaintiff been deceived,
had she surrendered exclusively because of the deceit, artful persuasions and wiles of defendant, she
would not have again yielded to his embraces, much less for one year without exacting early fulfillment
of the alleged promises of marriage and would have cut short all sexual relations upon finding that
defendant did not intend to fulfill his promises. Hence, no case is made under Art. 21 of Civil Code.

    While a breach of promise to marry is not actionable, it has been held that to formally set a
wedding and go through and spend for all the wedding preparation and publicity, only to walk out of it
when the matrimony was about to be solemnized is a different matter. This palpably and unjustifiably
contrary to good customs for which the defendant must be held answerable for damages in accordance
with Art. 21 of the Civil Code. (Wassmer vs. Velez)

    The obligation of cohabitation of husband and wife is not enforceable by contempt proceedings. In
private relations, physical coercion is barred under the the old maxim – “Nemo potest preciso cogi ad
factum.” However, the refusal of the wife to perform her wifely duties, her denial of consortium and
her desertion of her husband would certainly constitute a willful infliction of injury upon her husband’s
feelings in a manner which is contrary to morals, good customs and public policy for which Arts. 21 and
2210 (10) of the CC authorize an award for moral damages. (Tenchavez vs. Escano)

Prejudicial Question

GENERAL RULE: If both criminal and civil cases are filed in court, the criminal case takes precedence.

EXCEPTION: When there is a prejudicial question or a question that arises in a case, the resolution of
which is a logical antecedent of the issue involved herein, and the cognizance of which pertains to
another tribunal.

  Requisites (Sec. 7, Rule 111, Rules of Court)

a.    Previously instituted civil action involves an issue similar or intimately related to the issue
raised in the subsequent criminal action, and

b.    The resolution of such issue determines whether or not the criminal action may proceed
 

NOTE: The Civil Code has suppletory application in matters governed by special laws

PERSONS

CIVIL PERSONALITY

  aptitude of being the subject, active or passive, of rights and obligations

JURIDICAL CAPACITY TO ACT

CAPACITY
Fitness to be the  Power to do act with
subject of legal legal effects
relations
Passive Active
Inherent Merely acquired
Lost only through Lost through death
death and other causes
Can exist without Cannot exist without
capacity to act juridical capacity
Cannot be Can be restricted,
limited or modified or limited
restricted

THEORIES ON CAPACITY TO ACT

THEORY OF THEORY OF
GENERAL
CAPACITIES SPECIAL
CAPACITIES
Applies to Applies to juridical
natural persons persons
One has the This limits the power
ability to do all of juridical persons
things with legal only to those that are
effects except expressly conferred
only in those upon them or those
specific circum- which can be implied
stances where therefrom or
the capacity to incidental thereto
act is restrained

Natural persons
GENERAL RULE: Birth determines personality.

EXCEPTION: The law considers the conceived child as born for all purposes favorable to it if born
alive.  Therefore, the child has a presumed personality, which has two characteristics:

1.     limited; and

2.     provisional/conditional (Quimiguing vs. Icao)

NOTES:

 The presumption as to the child’s personality applies only in cases beneficial to the child.

 The concept of provisional personality CANNOT be invoked to obtain damages for and in behalf
of an aborted child. (Geluz vs. CA)

When is a Child Considered Born

GENERAL RULE: For civil purposes, the fetus is considered born if it is alive at the time it is
completely delivered from the mother’s womb.

EXCEPTION:     If the fetus had an intrauterine life of less than 7 months, it is not deemed born if it
dies within 24 hours after its complete delivery from the maternal womb.

Presumption of survivorship

  Two or more persons, called to succeed each other, shall be presumed to have died at the
same time, subject to the following conditions:

1.    parties are heirs to one another

2.    no proof as to who died first

3.    with doubt as to who died first

NOTE: Article 43 applies when the parties are called to succeed each other.  But if the parties are not
called to succeed each other, Rule 131, Sec. 3 (jj) of the Rules of Court applies.  Both are to be
applied only in the absence of facts.

Juridical persons

WHO:
 1. State and its political subdivisions
2. Corporations, institutions and entities for public purpose or interest
3. Corporations, partnership and associations for private interest

HOW CREATED: For (a) and (b), by the laws creating or recognizing them; private corporations are
governed by BP 68 and partnership and associations are governed by the provisions of this Code
concerning partnerships.

NOTE: The Roman Catholic Church is a corporation by prescription, with acknowledged juridical

personality, inasmuch as it is an institution which antedated, by almost a thousand years, any other
personality in Europe, and which existed when Grecian eloquence still flourished in Antioch and when
idols where still worshipped in the temple of Mecca. (Barlin vs. Ramirez)

            The estate of a deceased person should be considered an artificial or juridical person for the
purposes of the settlement and distribution of his estate which, of course, include the exercise during
the judicial administration thereof of those rights and the fulfillment of those obligations of his which
survived after his death. (Limjoco vs. Intestate Estate of Pedro Fragrante)

Cessation of Civil Personality

1.     If natural persons: by death

2.     If juridical persons: by termination of existence

CITIZENSHIP AND DOMICILE

RESIDENCE DOMICILE
Used to indicate a denotes a FIXED
PLACE OF ABODE, PERMANENT
whether RESIDENCE, which
permanent or when absent, one
temporary has the intention of
returning
There can be There can only be
several places of ONE place of
residence domicile

Elements of Domicile

a.    Physical presence in a fixed place

b.    Intention to remain permanently (animus manendi)

 

Kinds of Domicile

1.    Domicile of origin - received by a person at birth.

2.    Domicile of choice - the place freely chosen by a person sui juris.

3.    Constructive domicile - assigned to a child by law at the time of his birth.

II.    FAMILY CODE

  took effect August 3, 1988

MARRIAGE

  A special contract of permanent union between a man and a woman entered into in accordance
with law for the establishment of conjugal and family life.  Its nature, consequences and incidents
are fixed by law and cannot be the subject of stipulation.

Essential requisites: (LC)

1.    Legal capacity of the contracting parties, who must be a male and a female

2.    Consent freely given in the presence of a solemnizing officer

Formal requisites: (ALM)

1.    Authority of the solemnizing officer

2.    Valid Marriage License

3.    Marriage ceremony where the contracting parties appear before the solemnizing officer, with
their personal declaration that the take each other as husband and wife in the presence of not less
than two witnesses of legal age

Effects:

1.    Absence of essential or formal requisites

  the marriage is  void ab initio

 2.    Defect in any of the essential requisites

  The is marriage voidable

3.    Irregularity in any of the formal requisites

  Does NOT affect the validity of the marriage BUT will hold the party responsible for such
irregularity liable

Persons Authorized To Solemnize Marriages: (PMJCCC)

1.    priests, rabbis, and ministers of any church

2.    municipal and city mayors

3.    members of the judiciary

4.    ship captains or air plane chiefs

5.    commanders of military unit, in the absence of chaplain

6.    consul generals, consuls or vice-consuls

Authorized Venues Of Marriage

GENERAL RULE: Must be solemnized publicly, and not elsewhere, in the:

1.    chambers of the judge or in open court

2.    church, chapel or temple

3.    office of consul-general, consul or vice-consul

EXCEPTIONS:

1.    marriage at the point of death (articulo mortis);

2.    marriage in remote places

3.    marriage at a house or place designated by the parties with the written request to the
solemnizing officer

Marriages Exempt From License Requirement: (MOLAR)

 1.    among Muslims or members of ethnic cultural communities, provided such were solemnized in
accordance with their customs, rites and practices

2.    solemnized outside the Phil. where NO marriage license is required by the country where they
were solemnized

3.    of a man and a woman who have lived together as husband and wife for at least 5 years and
without legal impediment to marry each other

NOTE: The 5-year period should be computed on the basis of a cohabitation as husband and wife
where the only missing factor is the marriage contract to validate the union. This 5-year period
should be the years immediately before the day of the marriage and it should be a period of
cohabitation characterized by exclusivity - meaning no third party was involved at any time within
the 5 years and continuity - that is unbroken (Ninal vs. Bayadog, GR No. 133778  March 14, 2000). 

NOTE: In the case of Manzano vs. Sanchez (G.R. No. MTJ-00-1329, March 08, 2001), the Supreme
Court laid down the requisites to avail the exemption under Article 34 of the Family Code:

a.    The man and woman must have been living together as husband and wife for at least five
years before the marriage;
b.    The parties must have no legal impediment to marry each other;
c.     The fact of absence of legal impediment between the parties must be present at the time
of  marriage;
d.    The parties must execute an affidavit stating that they have lived together for at least five
years [and are without legal impediment to marry each other; and
e.    The solemnizing officer must execute a sworn statement that he had ascertained the
qualifications of the parties and that he had found no legal impediment to their marriage

4.    in articulo mortis

5.    in remote places

NOTE: A marriage license is valid only for 120 days from date of issue, in any part of the Philippines.

Foreign Marriages

  Validity of marriage:

GENERAL RULE: Where one or both parties to the marriage are citizens of the Philippines, the foreign
marriage is valid in this country if solemnized in accordance with the laws of the country of
celebration.

EXCEPTIONS: Foreign marriages shall not be recognized in the Philippines if prohibited because:

(MABB-PIP)

1.     contracted by a national who is below 18 years of age

 2.     bigamous or polygamous (except as provided for in Art. 41, FC)

3.     contracted through mistake of one party as to the identity of the other

4.     contracted following the annulment or declaration of nullity of a previous marriage but

before partition

5.     void due to psychological incapacity

6.     incestuous

7.     void for reasons of public policy

  Validity of divorce:

GENERAL RULE: A divorce validly obtained abroad by the alien spouse, capacitating him/her to
remarry can allow the Filipino to remarry.

EXCEPTION: The rule will not apply if the divorce was obtained by the Filipino spouse.

NOTE: A Filipino wife remains the lawful wife of the Filipino husband despite a decree of divorce
obtained abroad by the wife. However, if the wife is already a foreigner at the time of the divorce, she
ceases to be the lawful wife of the Filipino husband. This, notwithstanding, if at the time of the
marriage the wife was still a Filipino, and subsequently acquires citizenship of another country,
thereby rendering her to have the legal capacity to obtain a decree of divorce, the Filipino
husband remains a spouse of the former. This situation is not covered by Art. 26, par.2 which requires
that, at the time of the marriage, one of the parties is already an alien.

VOID MARRIAGES

A.    Due to absence of any of the essential requisites: (BB-LAPIS)

1.    contracted by any party below 18 years of age even with parental consent

2.    solemnized by any person not legally authorized to perform marriages unless one or both of the
parties believed in good faith that the solemnizing officer had the legal authority to do so

3.    solemnized without a license except as otherwise provided

4.    bigamous or polygamous marriages

5.    marriages contracted through mistake of one of the parties as to the identity of the other

6.    subsequent marriages that are void under Article 53 of the Family Code
 7.    contracted by a party who at the time of the marriage was psychologically incapacitated

B.    Incestuous marriages, whether the relationship be legitimate or illegitimate (Article 37):

1.    between ascendants & descendants of any degree

2.    between brothers & sisters whether full or half-blood

C.    Those contrary to public policy (Article 38): (SCAPS-SAKA)

1.    between collateral blood relatives whether legitimate or illegitimate up to the 4 th civil degree

2.    between step-parents & step children

3.    between parents-in-law & children-in-law

4.    between the adopting parent & the adopted child

5.    between the surviving spouse of the adopting parent & the adopted child

6.    between the surviving spouse of the adopted child & the adopter

7.    between an adopted child & a legitimate child of the adopter

8.    between the adopted children of the same adopter

9.    between parties where one, with the intention to marry the other, killed the latter’s spouse, or
his/her spouse.

NOTE: Under the FC, the following can now marry each other:

a.    Brother-in-law and sister-in-law;

b.    Stepbrother and stepsister;

c.     Guardian and ward;

d.    Adopted and illegitimate child of the adopter;

e.    Parties who have been convicted of adultery or concubinage.

D.   Subsequent marriages

 1.    without judicial declaration of nullity of previous void marriage (Article 40)

2.    without judicial declaration of presumptive death of absent spouse (Article 41)

3.    where the spouse was presumed dead, and both the present spouse and would-be spouse were
in bad faith in contracting marriage (Article 44)

NOTE: Where there was failure to record in the civil registry and registry of property the judgment of
annulment or of absolute nullity of the marriage, partition and distribution of the property of the
spouses and the delivery of the children’s presumptive legitimes it shall not affect third persons
(Articles 52-53).

NOTE: Even if a marriage is void, it must be declared void first because the parties cannot decide for
themselves the invalidity of their marriage.

VOID VOIDABLE
Decree of nullity Decree of
annulment
Never be ratified Ratified by free
cohabitation
Attacked directly or Attacked directly
collaterally only
Co-ownership Conjugal
Partnership
Always void Valid until annulled
Action for Action prescribes
declaration of
nullity
does not prescribe

Psychological Incapacity

  no exact definition but is restricted to psychological incapacity “to comply with the essential
marital obligations of marriage”

  involves a senseless, protracted and constant refusal to comply with the essential marital
obligations by one or both of the spouses although he, she or they are physically capable of
performing such obligations (Chi Ming Tsoi vs. CA)

  Essential elements: (MAVFFCCI)

a.    Mental condition

b.    Applies to a person who is maritally contracted to another

 c.     Marriage entered into with volition

d.    Failure to perform or comply with the essential obligations in marriage

e.    Failure to perform is chronic

f.     Cause is psychological in nature

g.    Cause is serious, with juridical antecedence and must be incurable

h.    Incapacity results in the failure of the marriage.

JURISPRUDENTIAL GUIDELINES: (Republic vs. Molina)

1.    burden of proof belongs to the plaintiff

2.    root cause of the psychological incapacity must be:

1. medically or clinically identified

2. alleged in the complaint
3. sufficiently proven by experts
4. explained in the decision

3.    incapacity must be existing at the time of the celebration of marriage

4.    incapacity must be permanent or incurable

5.    illness is grave enough to bring about disability to assume marital obligations

6.    marital obligations refer to Art. 68-71 of FC as well as Art. 220,221 and 225 of the FC

7.    interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church of the
Philippines while not controlling should be given great respect.

8.    trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear for
the state.

JUDICIAL OF DECLARATION OF NULLITY

  The absolute nullity of a previous marriage may be invoked for purposes of remarriage on
the basis solely of a final judgment declaring such previous marriage void.

NOTES:
  For purposes of remarriage, the only legally acceptable basis for declaring a previous marriage an
absolute nullity is a final judgment declaring such previous marriage void, whereas, for purposes
other than remarriage, other evidence is acceptable. (Domingo vs. CA)

 In a case for concubinage, the accused need not present a final judgment declaring his marriage
void for he can adduce evidence in the criminal case of the nullity of his marriage other than proof
of a final judgment declaring his marriage void. Hence, the pendency of the civil action for nullity
of marriage does not pose a prejudicial question in a criminal case for concubinage.

 Parties to the marriage should not be permitted to judge for themselves its nullity, for the same
must be submitted to the judgment of the competent courts and only when the nullity of the
marriage is so declared can it be held as void, and so long as there is no such declaration, the
presumption is that the marriage exists for all intents and purposes. Therefore, he who cohabits
with a woman not his wife, before the judicial declaration of nullity of the marriage, assumes the
risk of being prosecuted for concubinage. (Beltran vs. People, June 20, 2000)

BIGAMOUS MARRIAGES

GENERAL RULE: A marriage contracted by any person during the subsistence of a previous valid
marriage shall be null and void.(Gomez vs. Lipana)

EXCEPTIONS:   When the following conditions concur, the subsequent bigamous marriage shall be
valid:

1. absence of the other spouse must have been for four consecutive years, or two years where
there was danger of death

2.    well-founded belief of the present spouse that absent spouse was already dead

3.    judicial declaration of presumptive death

EFFECTS OF TERMINATION OF SUBSEQUENT MARRIAGE: (ICADI)

1.    Children of the subsequent marriage conceived prior to its termination shall be considered
legitimate;

2.    The absolute community or conjugal partnership shall be dissolved and liquidated. If either

spouse acted in bad faith, his/her share in the net profits shall be forfeited:

a.    in favor of the common children;

b.    if none, in favor of the children of the guilty spouse by previous marriage; or

c.     in default of children, in favor of the innocent spouse;

 3.    Donations by reason of the marriage remain valid except if the donee contracted the marriage
in bad faith;

4.    The innocent spouse may revoke the designation of the spouse in bad faith as the beneficiary in
any insurance policy; and

5.    The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate or intestate succession.

NOTE: The above effects apply in voidable bigamous marriages. Except for (1), the above effects also
apply to marriages which are annulled or declared void ab initio under Art. 40 of the Code.

DECLARATION OF PRESUMPTIVE DEATH

  Requisites: (MR-BF)

1.    That the absentee spouse has been missing for 4 consecutive years or 2 consecutive years if the
disappearance occurred where there is danger of death under circumstances laid down in Art.391
of the NCC

2.    The present spouse wishes to remarry;

3.    The present spouse has well-founded belief that the absentee is Dead;

4.    The present spouse files a summary proceeding for the declaration of presumptive death.

NOTE:   The present spouse must establish that he had a well-founded belief required by law that his
absent wife was already dead that would sustain the issuance of a court order declaring presumptive
death. In the case of RP vs. Nolasco, The SC believed that respondent Nolasco failed to conduct a
search for his missing wife with such diligence as to give rise to a “well-founded belief” that she is
dead. When he arrived in San Jose, Antique after learning of his wife’s departure, instead of seeking
the help of local authorities or of the British embassy, he secured another seaman’s contract and went
to London, a vast city of many millions of inhabitants, to look for her there. (RP vs. Nolasco)

Effect of Reappearance of Absent Spouse:

GENERAL RULE:           The subsequent bigamous marriage under Article 41 remains valid despite
reappearance of the absentee spouse.

EXCEPTION:     If the reappearance was made in a sworn statement recorded in the civil registry, the
subsequent marriage is “automatically terminated.”

EXCEPTION TO THE EXCEPTION: If there was a previous judgment annulling or declaring the first
marriage a nullity, the subsequent bigamous marriage remains valid.
  

VOIDABLE MARRIAGES

  Grounds:    (UP-FAVS)

1.    Age of the party in whose behalf it is sought to have the marriage annulled was 18 years of age
or over but below 21, and the marriage was solemnized without the consent of the parents,
guardian or person exercising substitute parental authority over the party, in that order, and both
lived together as husband and wife;

2.    Unsound mind of either party

3.    Fraudulent means of obtaining consent of either party

4.    Vitiated consent of either party through force, intimidation or undue influence

5.    Physical incapability of either party to consummate the marriage with the other, and such
incapacity continues and appears to be incurable

6.    Sexually-transmissible disease of either party found to be serious and appears to be incurable

NOTE: Mode of ratification for Nos. 1-4 is COHABITATION. In Nos. 5 & 6, there is no ratification to
speak of since the defect is permanent. The latter can be convalidated only by prescription, i.e. 5
years from the date of marriage. Specifically, in no.5, the healthy spouse may still annul the marriage
within 5yrs. after celebration.

Circumstances amounting to Fraud under Article 46: (SPND)

1.    Non-disclosure of a previous conviction by final judgment of the other party of a crime involving
moral turpitude;

2.    Concealment by the wife of the fact that at the time of the marriage, she was  Pregnant by a
man other than her husband;

3.    Concealment of a Sexually transmissible disease, regardless of its nature, existing at the time
of the marriage; and

4.    Concealment of Drug addiction, habitual alcoholism, homosexuality or lesbianism existing at

the time of the marriage.

NOTES:
  Misrepresentation as to character, health, rank, fortune or chastity is not a ground for
annulment.

 The enumeration in Article 46 is EXCLUSIVE. (Anaya vs. Palaroan)

Ground Persons Prescriptive

(F2I2NS) Who May Period
Sue
1.Force, Injured party w/in 5 years
intimidation from the time
, or undue   the force,
intimidation,
influence or undue
  influence
ceased
   

   

 
2.  Fraud Injured party w/in 5 years
from the dis-
covery of
fraud
3. incapabi- Injured party w/in 5 years
lity to after the
consum- celebration
mate of the
marriage

4. Insanity (a) sane (a) anytime

spouse who before the
has no death of
knowledge of either party
the insanity
(b) anytime
(b) relatives, before the
guardians or death of
persons ha- either party
ving legal
charge of the (c) during
insane lucid interval
or after
(c) insane regaining
spouse sanity
5. Non- (a) parent/ (a) anytime
consent legal before the
guardian “no consent”
having charge party reaches
of the “no- 21
consent”
party (b) w/in 5
years after
(b) ”no reaching 21
consent “
 party
6. STD Injured party w/in 5 years
after the
celebration
of the
marriage

NOTE: In Nos. 1, 2, 4, and 5, when cohabitation takes place after the defect ceases to exist, the
prescriptive period is rendered moot and academic. Whichever comes first may convalidate the
marriage: Cohabitation or Prescription.

Requisites for annulment due to Impotence under Art.45(5) (CUPIN)

a.    Impotence exists at the time of the celebration of the marriage

b.    The impotence is permanent

c.      incurable

d.    The impotence is unknown to the other spouse

e.    The other spouse must not also be impotent

Doctrine of Triennial Cohabitation

  presumption that the husband is impotent should the wife still remain a virgin after 3 years of
living together with her husband.

Requisites for annulment due to Disease under Article 45(6) (ICSIIF)

1.    Either party is inflicted with a sexually transmissible disease (STD)

ADDITIONAL REQUIREMENTS FOR ANNULMENT OR DECLARATION OF NULLITY

1.     Prosecuting attorney or fiscal should:

a.    Take steps to prevent collusion between the parties

 b.    Take care that evidence is not fabricated or suppressed

2.     The following must be accomplished:

a.    Partition and distribution of the properties of the spouses

b.    Delivery of the children’s presumptive legitimes

c.     Recording of the judgment of annulment or absolute nullity.

NOTES:

 There will be collusion only if the parties had arranged to make it appear that a ground existed
or had been committed although it was not, or if the parties had connived to bring about a
matrimonial case even in the absence of grounds therefore. (Ocampo vs. Florenciano)

 A grant of annulment of marriage or legal separation by default is fraught with danger of
collusion. If the defendant spouse fails to answer the complaint, the court cannot declare him or
her in default but instead, should order the prosecuting attorney to determine if collusion exists
between the parties.

      However, petitioner’s vehement opposition to the annulment proceedings negates the
conclusion that collusion existed between the parties. Under these circumstances, the non-
intervention of a prosecuting attorney to assure lack of collusion between the contending parties is
not fatal to the validity of the proceedings in the trial court. (Tuason vs. CA, GR 116607, April 10,
1996)

RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE

MARRIAGES (A.M. 00-11-01-SC)

  took effect on March 15, 2003

  this Rule shall govern petitions for declaration of absolute nullity of void marriages and
annulment of voidable marriages under the Family Code of the Philippines.

  the Rules of Court has suppletory application

  for a more comprehensive discussion on the procedural aspects of the Rule, please refer to
the Remedial Law Memory Aid.

LEGAL SEPARATION

  Grounds:    (SAMBA-LIPAD)
 1.     repeated physical violence or grossly abusive conduct directed against the petitioner, a
common child, or a child of the petitioner

2.     attempt of the respondent to corrupt or induce the petitioner, a common child, or a child of
the petitioner, to engage in prostitution, or connivance in such corruption or inducement

3.     attempt by the respondent against the life of the petitioner

4.     final judgment sentencing the respondent to imprisonment of more than 6 years even if
pardoned

5.     drug addiction or habitual alcoholism of the respondent

6.     lesbianism or homosexuality of the respondent

7.     abandonment of the petitioner by the respondent without justifiable cause for more than 1
year

8.     physical violence or moral pressure to compel petitioner to change religious or political

affiliation

9.     contracting by respondent of a subsequent bigamous marriage; and

10.   sexual infidelity or perversion.

NOTES:

 Cooling-off Period – 6 months period designed to give the parties enough time to further
contemplate their positions with the end in view of attaining reconciliation between them.

 The enumeration in Article 55 regarding legal separation is EXCLUSIVE. (Lacson vs. San Jose-
Lacson)

Grounds for denial of petition:

(CCCC-MP-DR)

a.    Condonation -NOTE: failure of the husband to look for his adulterous wife is NOT condonation to
wife's adultery. (Ocampo vs. Florenciano)           

b.    Consent

c.     Connivance             

d.    Collusion

e.    Mutual Guilt
 f.     Prescription

g.    Death of either party during the pendency of the case (Lapuz-Sy vs. Eufemio)

h.    Reconciliation of the spouses during the pendency of the case

Effects of filing petition:

a.    The spouses shall be entitled to live separately from each other.

b.    The husband shall have no more right to have sexual intercourse with his wife.

c.     In the absence of an agreement between the parties, the court shall designate the husband,
the wife, or a 3rd person to manage the absolute community or conjugal partnership property.

Effects of decree of legal separation:

a.    The spouses shall be entitled to live separately from each other but the marriage bond is not
severed.

b.    The absolute community or conjugal partnership shall be dissolved and liquidated.

c.     The custody of the minor children shall be awarded to the innocent spouse subject to the
provisions of Art. 213 of the Code.

d.    The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession and the provisions in favor of the offending spouse made in the will of the innocent
spouse shall be revoked by operation of law.

e.    The innocent spouse may revoke the donations made by him/her in favor of the offending
spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if the
designation be irrevocable.

Effects of Reconciliation of the Spouses:

a.    The legal separation proceedings, if still pending, shall thereby be terminated at whatever
stage.

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

RULE ON LEGAL SEPARATION

(A.M. 02-11-11-SC)

  took effect on March 15, 2003

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

  please refer to the Remedial Law Memory Aid for the procedural provisions of the Rule

MARITAL RIGHTS AND OBLIGATIONS

(JL-FORM)

1.    live together

2.    observe mutual love, respect & fidelity

3.    render mutual help & support

4.    fix the family domicile

5.    joint responsibility for the support of the family

6.    management of the household

Exercise of Profession

GENERAL RULE:           Husband & wife can engage in any lawful enterprise or profession without the
consent of the other.

EXCEPTION:     Upon objection of the other spouse only on valid, serious and moral grounds, may the
former’s consent be necessary.

Property Relations Between Husband & Wife

  Governed by:

1.     marriage settlements executed before the marriage or antenuptial agreements

2.     provisions of the Family Code

 3.     local customs (when spouses repudiate absolute community)

MARRIAGE SETTLEMENTS

  It is a contract entered into by the future spouses fixing the matrimonial property regime that
should govern during the existence.

  Requisites:

1.     made before celebration of marriage

2.     in writing (even modifications)

3.     signed by the parties

4.     not prejudice third persons unless registered in the civil registry

5.     to fix terms and conditions of their property relations

6.     additional signatories

1. 18-21: parents
2. civil interdictees & disabled: guardian

  Not applicable when:

1.    both spouses are aliens, even if married in the Philippines

2.    as to extrinsic validity of contracts

3.    contrary stipulation

DONATIONS BY REASON OF MARRIAGE

  Requisites: (COBB)

1.     made before celebration of marriage

2.     in consideration of marriage

3.     in favor of one or both future spouses

 

BASES DONATIONS ORDINARY

PROPTER DONATIONS
NUPTIAS
Governed by the Governed
Formalities rules on ordinary by rules on
donations except donations
that if future (Arts. 725-
property is 773, NCC)
donated, it must
conform with
formalities of wills
Present Property May be donated No limit
but up to 1/5 of except that
donor’s present donor shall
property leave
property
enough for
his support
Future property May be included Cannot be
provided donation included
is mortis causa

Grounds for Art. 86, FC Arts. 760,

revocation 764, & 765,
NCC

Rule on Donation Between Spouses During Marriage

GENERAL RULE: VOID, either direct or indirect donation

EXCEPTIONS:

1.     moderate gifts on occasions of family celebrations

2.     donations mortis causa

NOTE:  This rule also applies to common-law spouses. (Article 87, Family Code)

Grounds for Revocation (VIRAL-CN)

1.    marriage Not celebrated or declared Void ab initio except those made in marriage settlements

2.    marriage without parental Consent

3.    marriage is Annulled and donee is in bad faith

4.    upon Legal separation, the donee being the guilty spouse

 5.    complied Resolutory condition

6.    donee commits acts of Ingratitude

SYSTEM OF ABSOLUTE COMMUNITY (AC)

  The property regime of the spouses in the absence of a marriage settlement or when the
marriage is void. This is so because it is more in keeping with Filipino culture.

GENERAL RULE: Community property shall consist of all property owned by the spouses at the time of
the marriage or acquired thereafter.

EXCEPTIONS:   (BEG)

1.    property acquired before the marriage by either spouse who has legitimate descendants by
a former marriage

2.    property for personal and exclusive use except jewelry

3.    property acquired during the marriage by gratuitous title, except when the donor, testator
or grantor expressly provides otherwise

NOTE: No waiver of rights allowed during the marriage except in case of judicial separation of
property. The waiver must be in a public instrument.

Administration of the community property

GENERAL RULE: It shall belong to both spouses jointly.

EXCEPTIONS:

1.    In case of disagreement, husband’s decision shall prevail.

2.    In case one spouse is incapacitated or unable to participate in the administration of the
common properties, other spouse may assume sole powers.

NOTE: These powers do not include: 

a.    Disposition   

b.    encumbrance

NOTE: Any alienation or encumbrance is void if without the written consent of the other spouse

 
Rule on Game of Chance

  LOSS: Shall be borne by the loser-spouse and shall not be charged to the community property

  WINNINGS: Shall form part of the community property

Steps in Liquidation of AC: (IP-DDP)

1.     Inventory

a.   Inventory of Community Property

b.   Inventory of separate property of the wife

c.   Inventory of separate property of the husband

2.     Payment of Community Debts

  First, pay out of community assets, if not enough, husband and wife

are solidarily liable

3.     Delivery to each spouse his/her separate property if any

4.     Division of the net community assets

5.     Delivery of presumptive legitimes, if any, to the children

CONJUGAL PARTNERSHIP OF GAINS (CP)

  It is that formed by a husband and wife whereby they place in a common fund the fruits of their
separate property, and the income from their work or industry, the same to be divided between
them equally (as a general rule) upon the dissolution of the marriage or the partnership.

Conjugal Partnership Property: (LC2 FONT)

1.    obtained from labor, industry, work or profession

2.    acquired by chance

3.    acquired during the marriage with conjugal funds

4.    fruits of the conjugal property

5.    acquired through occupation

6.    net fruits of their exclusive property

 7.    share of either spouse in hidden treasure

Exclusive Property Of Each Spouse: (OGRE)

1.    that which is brought to the marriage as his/her own

2.    acquired during the marriage by gratuitous title

3.    acquired by right of redemption, barter or exchange with property belonging to either spouse

4.    purchased with exclusive money of either spouse

Rules In Cases Of Improvement Of Exclusive Property

1.    Reverse Accession – if the cost of the improvement and the plus value is more than the value of
the principal property at the time of the improvement, the property becomes conjugal

2.    Accession – if the cost of the improvement of the plus value is equal to or less than the value of
the principal property at the time of the improvement, the entire property becomes the exclusive
property of the spouse.

Steps In Liquidation Of CP: (DIRDO-DIP)

1.     Inventory of the Conjugal Partnership of Gains assets

2.     Restitution of advances made to each spouse

3.     Payment of debts to each spouse

4.     Payment of obligations to third parties

5.     Delivery of exclusive properties

6.     Payment of losses and deterioration of movables belonging to each spouse

7.     Delivery of presumptive legitimes

8.     Division of the net conjugal partnership properties

NOTE: Property bought on installments paid partly from exclusive funds of the spouses and partly form
conjugal funds:
 1. If full ownership was vested before the marriage – it shall belong to the buyer-spouse
2. If full ownership was vested during the marriage - it shall belong to the conjugal partnership

Charges Upon and Obligations Of AC and CP:

1.    Support for family except for illegitimate children of either spouse;

2.    Debts and obligations which must have been contracted:

a.     by administrator-spouse for the benefit of the family;

b.    by both spouses; or

c.     by one spouse with the consent of the other;

3.    Debts and obligations without marital consent provided the family was benefited;

4.    All taxes, liens, charges and expenses including major or minor repairs upon the community or
conjugal property;

NOTE: However, in conjugal partnership, actual use need not be proved because it is presumed.

5.    All taxes and expenses for mere preservation made during the marriage upon the exclusive
property of either spouse used by the family;

6.    Expenses for education or self-improvement of either spouse;

7.    Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;

8.    The value of what is donated or promised by both spouses in favor of their common legitimate
children for education or self-improvement; and

9.    Expenses of litigation between spouses unless found to be groundless.

NOTES:

 The separate properties shall be solidarily and subsidiarily liable for the obligations if the
community or conjugal properties are insufficient.

 The absolute community property shall also be liable for ante-nuptial debts mentioned above,
support of illegitimate children, and liabilities incurred by either spouse by reason of a crime or
quasi-delict in case of insolvency of the exclusive property of the debtor-spouse. Payment of which
shall be advanced by the absolute community property, subject to deduction from the share of the
debtor-spouse.
  The conjugal partnership property shall likewise be liable for the payment of the personal debts
of either spouse insofar as they have redounded to the benefit of the family.

 Indirect benefits that might accrue to a husband in his signing a surety or guarantee agreement
not in favor of the family but in favor of his employer corporation are not the benefits that can be
considered as giving a direct advantage accruing to the family. Hence, the creditors cannot go
against the conjugal partnership property of the husband in satisfying the obligation subject of the
surety agreement. A contrary view would put in peril the conjugal partnership property by allowing
it to be given gratuitously as in cases of donation of conjugal partnership property, which is
prohibited. (Ayala Investment Corp. vs. CA)

Grounds For Termination Of Absolute Community And Conjugal Partnership: (LADS)

1.    decree of legal separation

2.    annulment or declaration of nullity of   marriage

3.    death of either spouses

4.    judicial separation of property

REGIME OF SEPARATION OF PROPERTY

  Causes: (CLAAPS)

a.    petitioner’s spouse has been sentenced with a penalty which carries with it civil interdiction;

b.    loss of parental authority of the petitioner’s spouse as decreed by the court;

c.     petitioner’s spouse has been judicially declared an absentee;

d.    abandonment by the petitioner’s spouse and failure to comply with the obligations to the
family;

e.    spouse granted power of administration in marriage settlement abused such power; and

f.     at the time of the petition, spouses are separated in fact for at least 1 year and the possibility
for reconciliation is highly improbable.

NOTE: The spouses contribute to the family expenses proportionately with their income and the value
of their properties. However, the liability of the spouses to the creditors for family expenses
is solidary. 

 
PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

  Art. 147 Art. 148

Applica- 1. Without 1. With legal
bility impediment to
legal marry
  impediment
to marry 2. Adulterous
  relationships

2. Void marriages
3. Bigamous or
due to absence of
polygamous
formal requisite
marriages

4. Incestuous
void marriages
under Art. 37

5. Void
marriages by
reason of
public policy
under Art. 38
Salaries & Owned in equal Separately
Wages shares owned by the
parties

 
Property Belongs to Belongs to
Acquired such party
Exclusively such party
by Either provided
Party
there is proof
that he/she
acquired it by
exclusive
funds

 
Property Governed by the Owned by
Acquired rules on co- them in
by Both ownership common in
Parties proportion to
their
respective
contributions
Presump- Presumption of joint No
tion acquisition and equal presumption of
(prima sharing as to joint
facie) property acquired acquisition.
while they live When there is
together. evidence of
joint
acquisition but
none as to
 the extent of
actual
contribution,
there is a
presumption of
equal sharing.
Forfeitur When only one of If one of the
e the parties is in good parties is
faith, the share of validly married
the party in bad to another,
faith in the co- his/her share
ownership shall be in the co-
forfeited: ownership
shall accrue to
a. in favor of their the absolute
common children; or community or
conjugal
partnership
b. in default of or in existing in
case such valid
marriage.

If the party
who acted in
of waiver by any or bad faith is
  all of the common not validly
children or their married to
descendants, in another or if
favor of the innocent both parties
party. are in bad
faith, such
share shall be
forfeited in
the manner
provided in
the last
paragraph of
Article 147.

NOTE: Under Art. 148, only the properties acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned by them in proportion to their respective
contributions. It must be stressed that actual contribution is required by this provision, in contrast to
Art. 147 which state that efforts in the care and maintenance of the family and household, are
regarded as contributions to the acquisition of common property by one who has no salary or income
or work or industry. If the actual contribution of the party is not proved, there will be no co-
ownership and no presumption of equal shares. (Agapay vs. Palang). Hence, mere cohabitation
without proof of contribution will not result in a co-ownership. (Tumlos vs. Fernandez).

THE FAMILY

  Basic social institution which public policy cherishes and protect hence, no suit between
members of the family shall prosper unless the compromise between the parties have failed
 

FAMILY RELATIONS INCLUDE:

1. between husband and wife

2. between parents and children
3. among ascendants  and descendants
4. among brothers and sisters whether full or half-blood

FAMILY HOME

GENERAL RULE: The family home is exempt from execution, forced sale or attachment.

EXCEPTIONS: (PLMN)

1. debts incurred prior to constitution

2. debts due to laborers, mechanics, architects, builders, material men and others who have
rendered service or furnished materials for the construction of the building
3. debts secured by mortgages
4. non-payment of taxes

  Guidelines:

1.    deemed constituted from time of actual occupation as a family residence

2.    must be owned by person constituting it

3.    must be permanent

4.    rule applies to valid and voidable and even to common-law spouses under Articles 147 and 148

5.    continues despite death of one or more spouses or unmarried head of the family for 10 years, or
as long as a minor beneficiary lives

6.    can constitute one (1) family home only

PATERNITY AND FILIATION

 

Rule on Children Conceived as a Result of Artificial Insemination

  Status is legitimate child, provided both husband and wife authorized or ratified the
insemination in a written instrument which they executed and signed before the birth of the child

Legitimate Children

GENERAL RULE:           Only those who are conceived or born during a valid marriage

EXCEPTIONS: (CAVALAC)

Those children who are

1.    Conceived as a result of artificial insemination

2.    Born of a voidable marriage before decree of annulment

3.    Conceived or born before judgment of annulment or absolute nullity under Art. 36 has
become final & executory

4.    Conceived or born of subsequent marriage under Art. 53

5.    Of mothers who may have declared against its legitimacy or was sentenced as an adultress

6.    Legally adopted

7.    Legitimated, conceived and born outside of wedlock of parents without impediment at the
time of conception and had subsequently married

Illegitimate Children

GENERAL RULE: Those conceived and born outside a valid marriage are illegitimate.

EXCEPTIONS: Children who are:

1.    born of marriages which are void ab initio such as bigamous and incestuous marriages and
marriage was declared void for being contrary to law and public policy

2.    of voidable marriages born after the decree of annulment

Rules on Impugning Legitimacy

A.  Grounds (PBA)

1.    physical impossibility of the husband to have sexual intercourse with his wife within the 1 st 120
days of the 300 days immediately preceding the child’s birth, due to:

a.    physical incapacity of the husband;

b.    husband and the wife were living separately; or

c.     serious illness of the husband which absolutely prevented sexual intercourse

2.    biological or scientific proof that the child could not have been that of the husband; and

3.    written authorization or ratification of either parent for artificial insemination was obtained

through mistake, fraud, violence, intimidation or undue influence.

B.  Prescriptive periods

1.    one year, from knowledge of birth or recording in the civil register, if husband or heirs lives in
the SAME city/municipality

2.    two years, if resides in the Phils.

3.    three years, if abroad

C. Parties

GENERAL RULE: Only the husband may impugn

EXCEPTION: The heirs, if the husband dies before the end of the prescription of the action, or after
filing complaint, or child was born after death

NOTE: The question of legitimacy cannot be collaterally attacked, it can be impugned only in a direct
action.

Rule on the Status of Children born after 300 days following Termination of Marriage

A.    Requisites (TS-WBN)

1.    first marriage terminated

2.    mother contracted subsequent marriage

 3.    subsequent marriage was contracted within 300 days after termination of previous marriage

4.    child was born

5.    no evidence as to status of child

B.    Rules as to whom the child belongs

1.    to first marriage, if child was born before the lapse of 180 days after celebration of
2nd marriage provided born within 300 days after termination of the 1 st marriage.

2.    to second marriage, if child was born after 180 days following celebration of 2 nd marriage
whether born within 300 days after termination of 1st marriage or afterwards.

Proof of Filiation

GENERAL RULE: Filiation of legitimate (or illegitimate) children is established by any of the following:

1. The record of birth appearing in the civil registrar or a final judgment

2. An admission of legitimate (or illegitimate) filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

EXCEPTION: In the absence of any of the foregoing evidence, such legitimate or illegitimate filiation
shall be proved by:

1. Open and continuous possession of the status of a legitimate or illegitimate child;

2. Any other means allowed by the Rules of Court and special laws.

NOTES:

 Continuous does not mean that the concession of status shall continue forever but only that it
shall not be of an intermittent character while it is continuous. The possession of such status
means that the father has treated the child as his own, directly and not through others,
spontaneously and without concealment though without publicity. There must be a showing of
permanent intention of the supposed father to consider the child as his own by continuous and
clear manifestation of paternal affection and care. (Mendoza vs. CA). The paternal affection and
care must not be attributed to pure charity. “Such acts must be of such a nature that they reveal
not only the conviction of paternity, but also the apparent desire to have and treat the child as
such in all relations in society and in life, not accidentally, but continuously.” (Jison vs. CA)

 The SC in Lim vs. CA, ruled that petitioner was the father of his illegitimate children because
the evidences convincingly show this. Hence, it was the petitioner who paid the bills for the
hospitalization of the mother when she gave birth. He was the one who caused the registration of
 the name of the child using his surname in the birth certificate. He also wrote handwritten letters
to the mother and the child stating his promise “to be a loving and caring husband and father to
both of you.” There were also pictures of the petitioner on various occasions cuddling the child.

 In view of the fact that filiation may be proved by “any means allowed by the Rules of Court and
special laws” this may consist of baptismal certificate, a judicial admission, a family bible in which
his name has been entered, common reputation respecting his pedigree, admission by silence, the
testimony of witnesses and such other kinds of proof admissible under Rule 130 of RC. (Mendoza vs.
CA) For a baptismal certificate to be proof of filiation under the Rules of Court, it must be shown
that the father therein participated in the preparation of the same. A birth certificate not signed
by the alleged father indicated in said certificate is not competent evidence of
paternity. (Fernandez vs. CA)

 Proof of filiation of petitioners to the late Enrique Baluyut is not sufficient to confer upon them
any hereditary right in the estate of the deceased. What is necessary to be established by an
illegitimate not natural child in order that he may be entitled to successional rights under Art 887
of NCC, is not the fact of his bare filiation but a filiation acknowledged by the putative parent.
(Baluyut vs. Baluyut)

Rights of the Children

LEGITIMATE ILLEGITIMATE
Use of father & Use of mother‘s
mother’s surname surname

NOTE:  However, RA
9255 amended
Article 176, FC
Receive support Receive support
from parents according to FC
Entitled to the Legitime is ½ of the
legitime & other legitime of a
successional rights legitimate child

R.A. No. 9255

  An Act Allowing Illegitimate Children to use the surname of their Father, amending for the
purpose Article 176 of EO No. 209, otherwise known as the "FAMILY CODE OF THE PHILIPPINES":
  Approved February 24, 2004

Illegitimate children may use the surname of their father if:

1.    their filiation has been expressly recognized by the father through the record of birth appearing
in the civil register, or

2.    when an admission in a public document or private handwritten instrument is made by the

father
 

LEGITIMATION

  Requisites: (NIM)

a.    The child is illegitimate

b.    The parents at the time of the child’s conception are not disqualified from marrying each other

c.     There is a valid marriage subsequent to the child’s birth

ADOPTION

A.    Domestic Adoption Act of 1998

(R.A. NO. 8552)

Who may adopt: (LPG-CANE)

1.    Filipino Citizen:

a.     of legal age

b.    in a position to support and care for his/her children in keeping with the means of the
family

c.     good moral character

d.    in possession of full civil capacity or legal rights

e.     at least 16 years older than the adoptee, except when:

1)    adopter is the biological parent of the adoptee

2)    adopter is the spouse of the  adoptee’s parent

f.     has not been convicted of any crime involving moral turpitude

g.    emotionally and psychologically capable of caring for children

2.    Alien:

a.     same qualifications as a Filipino

 b.    country has diplomatic relations with the Phil.

c.     has been living in the Phil. for at least three (3) continuous years prior to the application
for adoption and maintains such residence until the adoption decree is entered, except when

1)    former Filipino citizen who seeks to adopt a relative within the 4 th degree of
consanguinity or affinity

2)    one who seeks to adopt the legitimate or illegitimate child of his/her Filipino spouse

3)    one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a
relative within the 4th degree of consanguinity or affinity of the Filipino spouse

d.    certified to have legal capacity to adopt by his/her diplomatic or consular office

e.     certified by said office that his government allows the adoptee to enter his/her country as
his/her adopted child

3.    Guardian – with respect to the ward after termination of the guardianship and clearance of
his/her financial accountabilities

Pre-Adoption Services

  the DSWD shall provide for the following services:

1. counselling services for the biological parents, prospective adoptive parents and prospective
adoptee
2. exhaust all efforts to locate the biological parents, if unkown

Rule on Adoption by Spouses

GENERAL RULE: The husband and the wife shall JOINTLY adopt.

EXCEPTIONS:

1.    one spouse seeks to adopt the legitimate child of the other

2.    one spouse seeks to adopt his/her own illegitimate child

3.    the spouses are legally separated

Who may be adopted:

 1.    any person below 18 years of age who has been voluntarily committed to the DSWD under P.D.
603 or judicially declared available for adoption

2.    legitimate stepchild

3.    illegitimate stepchild

4.    qualified adult, who, prior to the adoption, has been consistently considered by the adopter as
his/her own child since minority;

5.    child whose adoption has been previously rescinded

6.    child whose biological or adoptive parents have died, provided that no proceedings shall be
initiated within 6 months from the time of death of said parents

Consent in Adoption (BAILAS)

The WRITTEN CONSENT to the adoption is required in the following cases: 

1.    the adoptee, if 10 years of age or over

2.    biological parents or government instrumentality

3.    the legitimate/adopted children, 10 years old or over, of the adopter and adoptee

4.    the illegitimate children, 10 years old or over, of the adopter if living with the adopter and the
latter's spouse

5.    spouse of the adopter and adoptee

Effectivity of Decree of Adoption

    a decree of adoption shall be effective as of the date the original petition was filed. It applies also
in case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of
the adoptee.

NOTE: Where the petition for adoption was granted after the child had shot and killed a girl, the SC did
not consider the retroactive effect to the decree of adoption so as to impose a liability upon the
adopting parents accruing at the time when the adopting parents had no actual or physical custody
over the adopted child. Retroactive effect may perhaps be given to the granting of the petition for
adoption where such is essential to permit the accrual of some benefit or advantage in favor of the
adopted child. To hold that parental authority had been retroactively lodged in the adopting parents so
as to burden them with liability for a tortious act that they could not have foreseen and which they
could have prevented would be unfair and unconscionable. (Tamargo vs. CA 209 S 518)

Effects of Adoption: (SAL)

1.    Severance of legal ties between the biological parents and the adoptee and the same shall be
vested in the adopters.

EXCEPTION: if the biological parent is the spouse of the adopter

2.    Adoptee shall be considered as a legitimate child of the adopter(s) for all intents and purposes.

3.    In legal or intestate succession, the adoptee and the adopter(s) shall have reciprocal rights of
succession without distinction from legitimate filiation. However, if there is a will, the rules on
testamentary succession shall be followed.

Rescission of Adoption

  Grounds: (ASAR)

1.    attempt on the life of the adoptee

2.    sexual assault or violence

3.    abandonment and failure to comply with parental obligations

4.    repeated physical or verbal maltreatment by the adopter

NOTES:

 Only the adoptee is given the right to rescind the decree of adoption

 The adopter can NOT rescind the decree of the adoption but he or she may disinherit the adoptee.

  Effects:

a.            Parental authority of adoptee’s biological parents or legal custody of DSWD shall be restored if
adoptee is still a minor or incapacitated.

b.            Reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall
be extinguished.
c.             The amended certificate of birth of the adoptee shall be cancelled and its original shall be
restored.

d.            Succession rights shall revert to its status prior to the adoption, but vested rights shall not be
affected.

B. Inter-Country Adoption Act of 1995 (R.A. No. 8043)

Inter-Country Adoption

  The socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree
of adoption is issued outside the Philippines.

Who may be adopted:

a.    Only a “legally-free child” may be the subject of inter-country adoption

NOTE: “Legally-free Child” - a child who has been voluntarily or involuntarily committed to the DSWD
of the Philippines, in accordance with the Child Youth and Welfare Code.

b.    No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child
cannot be adopted locally.

Who may adopt:

  Any alien or Filipino citizen permanently residing abroad may file an application for inter-
country adoption of a Filipino child if he/she:

1.    is at least 27 years of age and at least 16 years older than the child to be adopted, at the
time of the application unless the adopter is the parent by nature of the child to be adopted or
the spouse of such parent

2.    if married, his/her spouse must jointly file for the adoption

3.    has the capacity to act and assume all rights and responsibilities of parental authority under
his national laws, and has undergone the appropriate counselling from an accredited counsellor in
his/her country

4.    has not been convicted of a crime involving moral turpitude

5.    is eligible to adopt under his/her national law

 6.    is in a position to provide the proper care and support and to give the necessary moral values
and example to all his children, including the child to be adopted

7.    agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N.
Convention on the Rights of a Child, and to abide by the rules and regulations issued to implement
the Inter-Country Adoption Act

8.    comes from a country with whom the Philippines has diplomatic relations and whose
government maintains a similarly authorized and accredited agency and that adoption is allowed
under his/her national laws

9.    possesses all the qualifications and none of the disqualifications under the Inter-Country
Adoption Act and other applicable Philippine laws

Inter-Country Adoption Board

  acts as the central authority in matters relating to inter-country adoption.

  The Board shall ensure that all possibilities for the adoption of the child under the Family Code
have been exhausted and that inter-country adoption is in the best interest of the child.

Trial Custody:

  6 months from the time of placement

1.    starts upon actual physical transfer of the child to the applicant who, as actual custodian, shall
exercise substitute parental authority over the person of the child.

2.    the adopting parent(s) shall submit to the governmental agency or authorized and accredited
agency, which shall in turn transmit a copy to the Board, a progress report of the child’s
adjustment.

NOTES:

 If the pre-adoptive relationship is found unsatisfactory by the child or the applicant or both, or
if the foreign adoption agency finds that the continued placement of the child is not in the child’s
best interest, said relationship shall be suspended by the Board and the foreign adoption agency
shall arrange for the child’s temporary care.

 If a satisfactory pre-adoptive relationship is formed between the applicant and the child, the
Board shall submit the written consent to the adoption to the foreign adoption agency within 30
days after receipt of the latter’s request.
   A copy of the final decree of adoption of the child, including certificate of
citizenship/naturalization whenever applicable, shall be transmitted by the foreign adoption
agency to the Board within 1 month after its issuance.

NOTE: For a comprehensive discussion of the procedural aspects of adoption, please refer to A.M. No.
02-06-02-SC or the Remedial Law Memory Aid

SUPPORT

everything indispensable for sustenance, dwelling, clothing, medical attendance, education and
transportation in keeping with the financial capacity of the family

Kinds: (LJC)

1.    Legal – that which is required or given by law

2.    Judicial – required by the court to be given whether pendente lite or in a final judgment

3.    Conventional – given by agreement

Characteristics: (PIN-ERV)

1.    Personal

2.    Intransmissible

3.    Not subject to waiver or compensation

4.    Exempt from attachment or execution

5.    Reciprocal on the part of those who are by law bound to support each other

6.    Variable

Persons obliged to support each other:

1.    spouses

2.    legitimate ascendants and descendants

 3.    parents and their legitimate children and the legitimate and illegitimate children of the latter

4.    parents and their illegitimate children and the legitimate and illegitimate children of the latter

5.    legitimate brothers and sisters whether full or half-blood

NOTE: Support shall be in proportion to the resources or means of the giver and to the necessities of
the recipient.

Order of liability if several persons are obliged to give support:

1.    spouse

2.    descendants in the nearest degree

3.    ascendants in the nearest degree

4.    brothers and sisters

NOTES:

 When the obligation to give support falls upon 2 or more persons payment shall be divided
between them in proportion to the resources of each, but in case of urgent need and special
circumstances, the court may order one of them to furnish the support provisionally subject to the
right to claim from the other obligors the share due them

 When two or more recipients at the same time claim for support and the obligor does not have
sufficient means to satisfy all claims:

1. the order of liability provided by law shall be followed

2. if the concurrent obligees should be the spouse and child subject to parental authority, the
child shall be preferred

PARENTAL AUTHORITY (PA)

Rules as to the exercise of PA:

1.    The father and the mother shall JOINTLY exercise parental authority over the persons of their
common children. In case of disagreement, the father’s decision shall prevail UNLESS there is a
judicial order to the contrary
 2.    If the child is illegitimate, parental authority is with the mother.

Parental Preference Rule

  the natural parents, who are of good character and who can reasonably provide for the child are
ordinarily entitled to custody as against all persons

Rule in case of legal separation of parents:

  parental authority is exercised by the parent designated by the court.

GENERAL RULE: No child under 7 years of age shall be separated from the mother.

EXCEPTION: When the court finds compelling reason to order otherwise.

NOTE: Paramount consideration in matters of custody of a child is the welfare and well-being of the

child. (Tonog vs. CA)

Persons Exercising Substitute PA:

1.    surviving grandparent

2.    oldest brother or sister over 21 years of age unless unfit or disqualified

3.    actual custodian unless unfit or disqualified

Persons Exercising Special PA:

1.    school

2.    administrators and teachers

3.    individual, entity or institution engaged in child care

NOTES:

 Parental authority and responsibility are inalienable and may not be transferred and renounced
except in cases authorized by law.

 Parents may exercise parental authority over their child’s property

 

Kinds of Properties of a Minor

ADVENTITIOUS PROFECTITIOUS
1. earned or acquired 1. property given by
by the child through the parents to the
his work or industry by child for the latter to
onerous or gratuitous administer
title
2. owned by the child 2. owned by the
parents
3. child is also the 3. parents are the
usufructuary, but the usufructuary
child’s use of the
property shall be
secondary to the
collective daily needs
of the family
4. property 4. property
administered by the administered by the
parents child

Termination of PA

PERMANENT TEMPORARY
1. death of the 1. adoption of the
parents child

2. death of the 2. appointment of a

child general guardian

3. emancipation of 3. judicial
the child declaration of
abandonment
4. subjected child
to sexual abuse 4. final judgment
  divesting the
parents of parental
authority

5. judicial
declaration of
absence or inca-
pacity of the
parents exercising
parental authority
over the child

Grounds for suspension of PA (CHOBAN)

1.    conviction of a crime with the penalty of civil interdiction

 2.    harsh or cruel treatment against the child

3.    orders, counsel and example which are corrupting, given by the person exercising authority

4.    begging is compelled of the child

5.    acts of lasciviousness, allowed for the child to be subjected to, or himself subjects the child to

6.    negligence, which is culpable, committed by the person exercising authority

FUNERALS

GENERAL GUIDELINES

1.    duty and right to make arrangement in funerals in accordance with Article 199, FC

2.    the funeral shall be in keeping with the social position of the deceased

3.    the funeral shall be in accordance with the expressed wishes of the deceased

a.    in the absence of the expressed wishes, his religious beliefs or affiliation shall determine

b.    in case of doubt, the persons in Article 199, FC shall decide

4.    any person who disrepects the dead or allows the same shall be liable for damages

Grounds for Change of First Name or Nickname under  R.A. No. 9048 (An act authorizing City or
Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry
and/or Change of First Name or Nickname in the Civil Registrar Without need of a Judicial Order,
Amending for this Purpose Articles 376 and 412 of the Civil Code))

1.    The petitioner finds the first name or nickname to be ridiculous, tainted with dishonour or
extremely difficult to write or pronounce

2.    The new first name or nickname has been habitually and continuously used by the petitioner
and he has been publicly known by that first name or nickname in the community

3.    The change will avoid confusion

NOTE: Please refer to Remedial Law Memory Aid for a comprehensive discussion of the procedural
aspects of change of name.

ABSENCE
 

DECLARATION OF ABSENCE

WITHOUT WITH
ADMINISTRATOR ADMINISTRATOR
2 years from the 5 years from the
lapse of time without lapse of time without
news about the news about the
absentee or since the absentee or since the
receipt of the last receipt of the last
news news

PRESUMPTION OF DEATH

   

ORDINARY EXTRAORDINARY/
ABSENCE QUALIFIED
ABSENCE
   

a. 7 YEARS, person For all purposes

presumed dead for all including those of
purposes except for opening succession, a
those of opening period of 4 YEARS, and
succession for purposes of
remarriage of the
b.   10 YEARS, person spouse present, a
presumed dead for period of 2 YEARS, is
purposes of opening sufficient under the
succession except if he following
disappeared after the circumstances:
age of 75, in which
case, a period of 5 a. person on board a
years is sufficient vessel lost during a sea
voyage or an aeroplane
c.  4 YEARS, person which is missing;
presumed dead for period is counted from
purposes of remarriage the loss of the vessel
of the spouse present or aeroplane

b. person in the armed

forces who has taken
part in war

c. person in danger of
death under other
circumstances and his
existence has not been
known