You are on page 1of 39

Persons and Family Relations

BarOps Head Acads Head Subject Head Faculty Adviser

I I I I

PY Caunan Beth Liceralde Jas Gapatan

TABLE OF CONTENTS
I. PERSONS ....................................................................................................................................................................................................... 1
PERSON ................................................................................................................................................................. 1 KINDS OF CAPACITY ..................................................................................................................................................... 1 LIMITS ON CAPACITY TO ACT ............................................................................................................................................ 1 KINDS OF PERSONS ..................................................................................................................................................... 1

II. CITIZENSHIP AND DOMICILE .............................................................................................................................................................2


WHO ARE FILIPINO CITIZENS? ............................................................................................................................................................................................2 DOMICILE ..........................................................................................................................................................................................................................2

III. MARRIAGE ........................................................................................................................................................................................2


MARRIAGE .........................................................................................................................................................................................................................2 BREACH OF PROMISE TO MARRY .........................................................................................................................................................................................2 ESSENTIAL REQUISITES OF MARRIAGE .................................................................................................................................................................................2 FORMAL REQUISITES OF MARRIAGE ....................................................................................................................................................................................2 MARRIAGES CELEBRATED ABROAD (ART. 26) ......................................................................................................................................................................3 VOID MARRIAGES...............................................................................................................................................................................................................4 VOIDABLE MARRIAGES .......................................................................................................................................................................................................5 LEGAL SEPARATION ...........................................................................................................................................................................................................6

IV. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE .......................................................................................................... 8


OBLIGATIONS OF SPOUSES .................................................................................................................................................................................................8 RIGHTS OF SPOUSES .........................................................................................................................................................................................................8 USE OF SURNAME ..............................................................................................................................................................................................................8

V. PROPERTY RELATIONS BETWEEN SPOUSES ..................................................................................................................................... 9


A. DONATIONS BY REASON OF MARRIAGE ...........................................................................................................................................................................9 B. ABSOLUTE COMMUNITY OF PROPERTY ..........................................................................................................................................................................10 C. CONJUGAL PARTNERSHIP OF GAINS .............................................................................................................................................................................12 D. SEPARATION OF PROPERTIES DURING MARRIAGE ..........................................................................................................................................................17 E. REGIME OF SEPARATION OF PROPERTY .........................................................................................................................................................................18 F. UNIONS WITHOUT MARRIAGE ........................................................................................................................................................................................18

VI. THE FAMILY ....................................................................................................................................................................................20


THE FAMILY HOME ...........................................................................................................................................................................................................20

VII. PATERNITY AND FILIATION ............................................................................................................................................................21


A. DEFINITION..................................................................................................................................................................................................................21 B. LEGITIMATE CHILDREN .................................................................................................................................................................................................21 C. IMPUGNING LEGITIMACY ...............................................................................................................................................................................................22 D. ILLEGITIMATE CHILDREN ...............................................................................................................................................................................................23 E. LEGITIMATED CHILDREN ...............................................................................................................................................................................................24

VIII. ADOPTION ...................................................................................................................................................................................25


A. DEFINITION..................................................................................................................................................................................................................25 B. WHO MAY ADOPT .........................................................................................................................................................................................................25 C. WHO MAY BE ADOPTED ................................................................................................................................................................................................27 D. PRE-ADOPTION ...........................................................................................................................................................................................................28 E. ADOPTION PROCEDURE................................................................................................................................................................................................29

IX. SUPPORT ....................................................................................................................................................................................... 31


KINDS OF SUPPORT..........................................................................................................................................................................................................31 CHARACTERISTICS OF SUPPORT........................................................................................................................................................................................31 WHO ARE OBLIGED TO SUPPORT EACH OTHER (ART. 195) ................................................................................................................................................31 ORDER OF SUPPORT (ART. 199).......................................................................................................................................................................................31

X. PARENTAL AUTHORITY....................................................................................................................................................................32
DEFINITION ......................................................................................................................................................................................................................32 SUBSTITUTE PARENTAL AUTHORITY EXERCISED BY (IN ORDER) ..........................................................................................................................................33 SPECIAL PARENTAL AUTHORITY EXERCISED BY (ART. 218) ................................................................................................................................................33 RIGHTS AND DUTIES OF PARENTS .....................................................................................................................................................................................33 RIGHTS AND DUTIES OF CHILDREN ....................................................................................................................................................................................33 EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILD (ART. 225)..............................................................................................................34 GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY (ART. 231) .....................................................................................................................................34

TERMINATION OF PARENTAL AUTHORITY (ART. 228)...........................................................................................................................................................34

I. Persons

Persons and Family Relations


GENERAL RULE Birth determines personality (CC Art 40). Death extinguishes civil personality (CC Art 42). EXCEPTION A conceived child shall be considered born for all purposes that are FAVORABLE to it, provided it be born later (Art 40, 2nd clause) with the following circumstances: 1. From the time it is completely delivered from the mother's womb. 2. But if the fetus had an intra-uterine life of less than seven months, it should survive for at least 24 hours after its complete delivery. (Art. 41, CC) [Test of life: complete respiration] TOLENTINO: Birth means complete removal of the fetus from the mothers womb. PROF. BALANE: Modern medicine cannot as of yet determine if the intra-uterine life is 7 months or less in terms of number of days. Modern medicine cannot determine the exact time when fertilization took place. Modern medicine estimates the fetus age in weeks. In Geluz v CA, The Supreme Court held that the father cannot file charges on behalf of the aborted fetus because it never acquired a civil personality, because it was not alive when it was delivered from the mothers womb. The baby thus did not acquire any legal rights. The father could have filed for moral damages on his own capacity, had he suffered anguish from the loss of the baby, but it appears from the facts that he did not suffer from any pain or anguish. Thus, he cannot claim any damages. EFFECT OF DEATH The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will (Art 42, par. 2). However, the Civil Code does not define death, nor can doctors precisely pinpoint the exact moment when death occurs. DOUBT ON THE ORDER OF DEATH If they are called to succeed each other, whoever alleges the death of one prior to the other, shall prove the same. In the absence of proof, it is presumed that they died at the same time, and there will be no transmission of rights from one to the other. (Art. 43, CC) In Joaquin v Navarro, the rule on Art. 43 was not applied in determining whether the mother or the son died first. There were eyewitnesses who can give evidence as to who died first, so there is no reason for applying the presumption. It is only when it is impossible to determine who died first that the presumption applies. 2. JURIDICAL PERSONS a. The State and its Political subdivisions; b. Other Corporations, Institutions and Entities

I. PERSONS
Person
Any being, natural (CC Art. 40) or juridical (CC Art. 42), susceptible to legal rights and obligations, and can be a subject of legal relations.

Kinds of Capacity
1. JURIDICAL CAPACITY 37) Fitness to be subject of legal relations (CC Art.

RULE Inherent to all natural persons, and can only be extinguished by death. On juridical persons, they gain juridical capacity from the moment they are created. Juridical capacity is just one, indivisible, irreducible, and essentially the same for all men; it is an inherent and ineffaceable attribute of man, and attaches to him by the mere fact of his being a man. 2. CAPACITY TO ACT Power to do acts with legal effect (CC Art. 37) RULE They are acquired, and may be lost. They are also subjects to certain restrictions. Mere existence of a human being does not confer upon him/her a capacity to act. No one has 100% capacity to act, nor does anyone have absolutely no capacity to act. Even though one may have full capacity to act, one still does not reach 100% capacity to act but only close to it. As to infants, though they still have not acquired a capacity to act, this does not mean that they have 0% capacity to act.

Limits on Capacity to Act


Insanity, Imbecility, State of being deaf-mute, Penalty, Prodigality, Family Relations, Alienage, Absence, Insolvency, Trusteeship, (CC Arts. 38, 39CC) and other limits spread throughout the Code. Art. 39(2), or rule on married women 21 years and over, has been amended by RA 6809, which lowers the age of majority to 18 year old.

Kinds of Persons
1. NATURAL PERSONS Human beings

UP LAW BAROPS 2007 ONE UP LAW


1 of 39

I. Persons
for public interest or purpose, created by law; c. Corporations, Partnerships, and Associations for private interest or purpose to which the law grants a juridical personality. (CC Art 44) GOVERNING LAWS:
Juridical Person State Governed by Constitution (Defines its organization and limits its rights vis-vis citizens) Charter Charter Corporation Code, Articles Incorporation and By-Laws of

Persons and Family Relations

II. CITIZENSHIP AND DOMICILE


Who Are Filipino Citizens?
1. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution; 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4. Those who are naturalized in accordance with law. (Art IV, 1, 1987 Philippine Constitution) These have superseded the rules on citizenship enumerated in the Civil Code.

Political subdivision Public corporation Private corporation Partnerships

Domicile
For Natural Persons: the place of their habitual residence (CC Art. 50). For Juridical Persons: the place where their legal representation is established, or where they exercise their primary functions, unless there is a law or other provision that fixes the domicile (CC Art. 51). DOMICILE VS. RESIDENCE While domicile is permanent (there is intent to remain), residence is temporary and may be changed anytime (there is no necessary intent to remain). REQUISITES VERA) OF DOMICILE (CALLEGO VS.

Stipulations of the parties and suppletorily by the general provisions on partnership

RULES Juridical persons may acquire and possess property of all kinds, incur obligations, and bring civil or criminal actions (CC Art. 46) Upon dissolution of corporations or institutions and other entities for public interest, their property and assets shall be disposed of in pursuance of the law or charter creating them. (CC Art. 47)

1. Physical Presence 2. Intent to remain permanently KINDS OF DOMICILE 1. Domicile of Origin Domicile of parents of a person at the time he was born. 2. Domicile of Choice Domicile chosen by a person, changing his domicile of origin. A 3rd requisite is necessary intention not to return to ones domicile as his permanent place. 3. Domicile by Operation of Law (i.e., Article 69, domicile of minor)

UP LAW BAROPS 2007 ONE UP LAW


2 of 39

III. Marriage

Persons and Family Relations


and their personal declaration that they take each other as husband and wife). (Art 3, FC) ABSENCE, DEFECT, OR IRREGULARITY IN THE REQUISITES ABSENCE of any of the essential or formal requisites shall render the marriage VOID AB INITIO, (FC Art 4, par. 1) except when it is solemnized by an unauthorized person with either or both contracting parties having good faith that he had authority to do so (FC Art 35, par. 2) A DEFECT in any of the ESSENTIAL REQUISITES shall render the marriage VOIDABLE (FC Art 4, par. 2). An IRREGULARITY in the FORMAL REQUISITES shall NOT AFFECT the validity of the marriage, but the party or parties responsible for the irregularity shall be civilly, criminally, and administratively liable (FC Art 4, par. 3).

III. MARRIAGE
Marriage
Is: 1. 2. 3. 4. 5. 6. 7. 8. 9. a Special Contract of Permanent Union Between a Man and a Woman entered into in Accordance with law for the Establishment of Conjugal and Family life. It is the Foundation of the Family and an Inviolable Social Institution whose Nature, Consequences, ,and Incidents are governed by Law and not subject to Stipulation, except that Marriage settlements may Fix property relations during the marriage within the Limits provided by this Code. (Art 1, Family Code)

Breach of Promise to Marry


In Tanjanco v CA, the Supreme Court held that breach of promise to marry is not an actionable wrong. The fact that the Santos, the woman, agreed to have sexual intercourse with Tanjanco for a year does not constitute seduction but mutual passion. However, in Wassmer v Velez, Velez was held liable for the cost of the wedding preparations spent by Wassmer, because he disappeared two days before the marriage. The Supreme Court said that while mere breach is not an actionable wrong, Velez is still liable under Art. 21 of the Civil Code because he abused his right, thereby causing moral and material damages, which should be compensated.

A. MARRIAGE CEREMONY There is no particular form or religious rite required by law. MINIMUM REQUIREMENTS BY LAW 1. The contracting parties appear personally before the solemnizing officer 2. They declare in the presence of at least two witnesses of legal age, 3. That they take each other as husband and wife; 4. The declaration shall be contained in the marriage certificate, 5. Which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. (Art. 6, FC) In a marriage in articulo mortis, when one or both parties are unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to write the name of said party, which shall be attested by the solemnizing officer. (Art 6, par. 2) PLACES WHERE MARRIAGE MAY BE CELEBRATED 1. Chambers of the judge or in open court; 2. Church, chapel, or temple 3. Office of the Consul-general, consul, or viceconsul, as the case may be. (Art. 8, FC) Exceptions Marriage in articulo mortis, in a remote place (the barrio or barangay should be so located that there is no means of transportation to enable such party to appear personally before the local civil registrar Art. 29), or where both of the parties request the solemnizing officer in writing, in which case the marriage may be solemnized at a house or place designated by then in a sworn statement.

Essential Requisites of Marriage


1. Legal Capacity of contracting parties who must be Male and Female; and 2. Consent freely given in the presence of the solemnizing officer. (Art. 2, FC) In People v Santiago (51 Phil 68), the marriage between Santiago and his niece was declared void for lack of consent on the part of Santiago. He only got married to her to avoid prosecution because he raped her the same morning that the marriage was solemnized by a Protestant minister. The Supreme Court held that it was a mere ruse for him to escape criminal liability.

Formal Requisites Of Marriage


1. Authority of the solemnizing officer; 2. A valid Marriage License except in cases under Chapter 2 of this Title; 3. Marriage Ceremony (i.e. appearance of contracting parties before solemnizing officer

UP LAW BAROPS 2007 ONE UP LAW


2 of 39

III. Marriage
B. AUTHORITY OF SOLEMNIZING OFFICERS MARRIAGE MAY BE SOLEMNIZED BY: 1. Any incumbent member of the judiciary within the courts jurisdiction (Art. 7, par. 1); 2. Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect; He/she must be registered with the civil registrar general (CRG). He/she must be acting within the limits of the written authority granted by the church At least one of the parties must be a member of the church or religious sect to which the solemnizing officer belongs (FC Art. 7, par. 2). 3. Ship captain or airplane chief (FC Art 7, par. 3); Can only solemnize marriages in articulo mortis (when there one or both parties are at the point of death), while the ship is at sea or the plane is in flight, or at stopovers or ports of call (FC Art 31). 4. Any military commander of a unit to which a chaplain is assigned, in the absence of the latter (FC Art 7, par. 4); Can only solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians (Art 32, FC). 5. Consul-general, consul, or vice consul (Art. 7, par. 5) Can solemnize marriages between Filipino citizens abroad. The issuance of the marriage license and the duties of the local civil registrar shall also be performed by said consular official. (Art. 10, FC) 6. Mayors (under the Local Government Code, not found in the Family Code) C. MARRIAGE LICENSE REQUIREMENTS FOR MARRIAGE LICENSE APPLICATION 1. Full name of the contracting party; 2. Place of birth; 3. Age and date of birth; 4. Civil status; 5. If previously married, how, when and where the previous marriage was dissolved or annulled; 6. Present residence and citizenship; 7. Degree of relationship of the contracting parties; 8. Full name, residence and citizenship of the father; 9. Full name, residence and citizenship of the mother; and 10. Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years (Art. 11, FC)

Persons and Family Relations


MARRIAGES EXEMPT LICENSE REQUIREMENT: 1. 2. FROM MARRIAGE

3. 4.

5.

6.

In case one or both contacting parties are at the point of death (in articulo mortis). (Art. 27) If the residence of either party is so located that there is no means of transportation to enable them to personally appear before the local civil registrar. (Art. 28) Marriage in articulo mortis between passengers or crew members. [May be solemnized by the ship captain or airplane pilot.] (Art. 31) Marriage in articulo mortis between persons within the zone of military operation. [May be solemnized by the military commander of the unit] (Art. 32) Marriages among Muslims or among members of cultural communities, provided they are solemnized in accordance with their customs, rites, or practices. (Art. 33) Marriage between a man and a woman who have lived together as husband and wife for at least five years, without legal impediment to marry each other.

In Ninal v Badayog, the Supreme Court held that there must be no legal impediment during the entire five or more years that the parties are living as husband and wife. Since there is only a difference of one year and eight months since the death of the first wife and the execution of their affidavit, the five-year requirement is not met, even if they have cohabited during the subsistence of the previous marriage. In Madridejo v De Leon, where the parties were married in articulo mortis, the Supreme Court held that the marriage is still valid even if the priest who solemnized the marriage failed to send a copy of the marriage certificate to the municipal secretary. The marriage certificate is not a requisite of marriage but a mere proof that the marriage really existed. And since the marriage was solemnized under exceptional circumstances, there is no need for a marriage license.

Marriages Celebrated Abroad (Art. 26)


GENERAL RULE: Marriages solemnized outside the RP in accordance with the law of the foreign country shall be valid in the Philippines (lex loci celebrationis) EXCEPTIONS: 1. Marriage between persons below 18 years old Art. 35(1) 2. Bigamous or polygamous marriage Art. 35(4) 3. Mistake in identity Art. 35 (5) 4. Marriages void under Article 53 Art. 35 (6) 5. Psychological incapacity Art. 36 6. Incestuous marriages Art. 37 7. Marriage void for reasons of public policy Art. 38

UP LAW BAROPS 2007 ONE UP LAW


3 of 39

III. Marriage
If a Filipino married to a foreigner and the latter subsequently obtains a valid divorce abroad capacitating him./her to remarry, the Filipino spouse shall likewise have the capacity to remarry under the Philippine law (Art 26(2)).

Persons and Family Relations


18.Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. An action for declaration of nullity of marriage is imprescriptible. (Art. 39) *For purposes of remarriage, the nullity of a previous marriage may be invoked solely on the basis of a final judicial declaration of nullity (JDN) of the previous marriage. (Art. 40) In Domingo v CA, the husband opposed the filing of judicial declaration of nullity (JDN) filed by the wife Domingo because the marriage is already void ab initio because of the husbands previous marriage. The Supreme Court held that the JDN can be invoked for other purposes than remarriage. The wording of Art. 40 about JDN being the sole basis for remarriage does not mean that JDN can only be invoked for purposes of remarriage. Separation of Property, the reason cited in this case, is also a valid reason for filing for JDN. In Republic v Molina, 1997 (268 SCRA 198), the Supreme Court held that the actions of the wife, described by the wife as highly immature and habitually quarrelsome who thought himself as a king to be served, does not amount to psychological incapacity. It held that what existed are mere irreconcilable differences. It also laid down in this case the guidelines to be followed by the courts in interpreting Art. 36. GUIDELINES FOR INTERPRETATION ARTICLE 36 (REPUBLIC V MOLINA): OF

Void Marriages
MARRIAGE IS VOID AB INITIO WHEN: I. UNDER FC ART. 35 1. Contracted by anyone below 18 years old, even with consent of parents 2. Solemnized by anyone not authorized to do so, except when one or both parties believe that the solemnizing officer had authority to do so. 3. There is no marriage license, except in marriage under exceptional circumstances 4. It is bigamous or polygamous, except when first spouse has been absent for four years, or two years under extraordinary circumstances, and the remaining spouse has a well-founded belief that the absent spouse is dead, and is judicially declared presumptively dead. (Art. 41) 5. There is a mistake in identity of the other contracting party 6. The subsequent marriage is void under Art. 53: Marriage is void when Art. 52 is not complied with: There must be a partition and distribution of property after the judgment of annulment of declaration of nullity. The presumptive legitimes of the children must also be delivered and recorded in the appropriate civil registry. II. UNDER FC ART. 36 7. Any contracting party is, at the time of the celebration of the marriage, psychologically incapacitated to comply with the essential marital obligations. III. UNDER FC ART. 37 (INCESTUOUS RELATIONSHIPS) 8. Between ascendants and descendants of any degree, legitimate or illegitimate. 9. Between brothers and sisters, whether full or half-blood, legitimate or illegitimate. IV. UNDER FC ART. 38 (FOR REASONS OF PUBLIC POLICY): 10.Between collateral blood relatives, legitimate or illegitimate, up to the fourth civil degree. 11.Between step-parents and step-children. 12.Between parents-in-law and children-in-law. 13.Between adopting parent and adopted child. 14.Between the surviving spouse of the adopting parent and the adopted child. 15.Between the surviving spouse of the adopted child and the adopter. 16.Between an adopted child and a legitimate child of the adopter. 17.Between adopted children of the same adopter.

1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. 2. The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts, (d) clearly explained in the decision. 3. The incapacity must be proven to be existing at the time of the celebration of the marriage. 4. Such incapacity must also be shown to be medically or clinically permanent of incurable. 5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. 6. The essential marital obligations mist be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children. 7. Interpretations given by the national Appellate Matrimonial tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. 8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification.

UP LAW BAROPS 2007 ONE UP LAW


4 of 39

III. Marriage
RULE ON BIGAMOUS MARRIAGE (ART. 41): GENERAL RULE Marriage contracted by any person during the subsistence of a previous marriage is VOID EXCEPTION If the first spouse has been absent for four consecutive years, or two years under extraordinary circumstances, and the surviving spouse has a well-founded belief that the spouse is dead, and there is a judicial declaration of presumptive death, without prejudice to the effect of the reappearance of the absent spouse. Exception to the exception When both parties in the subsequent marriage acted in bad faith, the marriage is still void (Art. 44). In People v Mendoza, Mendoza contracted three marriages. He contracted the second marriage during the subsistence of the first marriage. He contracted the third marriage after the death of his first wife. He was prosecuted for bigamy on his third marriage. The Supreme Court held that he is not guilty for bigamy for his third marriage, since his prior subsisting marriage has already been extinguished by the death of his first wife. It is the second marriage that is bigamous. EFFECTS OF TERMINATION OF BIGAMOUS MARRIAGE (FC ART 43): 1. Children considered legitimate 2. Property Regime dissolved and liquidated (party in bad faith shall forfeit his/her share in favor of the common children or children by a previous marriage, and in case there are none, to the innocent spouse) 3. Donation propter nuptias remains valid, (but if the donee contracted marriage in bad faith, donations will be revoked) 4. Insurance benefits innocent spouse may revoke designation of guilty party as beneficiary, even if such designation is irrevocable 5. Succession Rights Party in bad faith disqualified to inherit from innocent spouse, whether testate or intestate 6. Donations - If both parties of subsequent marriage acted in bad faith, any donations and testamentary dispositions made by one party to the other by reason of marriage will be revoked (Art. 44)

Persons and Family Relations


a. Through non-disclosure of a previous conviction of a crime involving moral turpitude; b. Through concealment of the wife of the fact that she was pregnant by another man; c. Through concealment of a sexuallytransmitted disease, even if not serious or incurable; d. Through concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism. (Art.46) 4. The consent of either party was obtained through force, intimidation, or undue influence. 5. Either party is physically unable to consummate the marriage (impotence) (different from sterility). 6. Either party has a serious and incurable sexually-transmissible disease, even if not concealed. In Buccat v Buccat, the Supreme Court refused to grant annulment filed by the husband because his wife gave birth to a baby a mere 89 days after their marriage. It held that it is unbelievable that the wife could have concealed the fact that she was 6 months pregnant at the time of the marriage. However, in Aquino v Delizo, the Supreme Court granted annulment because the wife concealed the fact that she was 4 months pregnant during the time of the marriage. It argued that since Delizo was naturally plump, Aquino could hardly be expected to know, by mere looking, whether or not she was pregnant at the time of the marriage.
Ground For Annulment (Art. 45) Lack parental consent of Who Can File (Art. 47) 1. Underage party Prescription (Art. 47) 1. 5 years after attaining 21. How To Ratify (Art. 45) Free cohabitation after attaining age of 21

2. Parent or guardian

2. Before child reaches 21.

Insanity

1. Sane spouse with no knowledge of the others insanity 2. Legal guardian of insane party 3. Insane party

1. Any time before the death of insane party Free cohabitation of insane party after coming to reason

Voidable Marriages
MARRIAGE MAY BE ANNULLED, WHEN (FC ART 45): 1. One of the parties is 18 or above but below 21, and there is no parental consent. 2. Either party was of unsound mind (insanity). 3. The consent of either party was obtained through fraud (different from mistake in identity):

2. During lucid interval or after regaining sanity, and before death

UP LAW BAROPS 2007 ONE UP LAW


5 of 39

III. Marriage
Fraud Injured party (defrauded party) Five years after discovery of fraud Free cohabitation after having full knowledge of fraud Free cohabitation after the force has ceased or disappeared Deemed ratified when action prescribes Deemed ratified when action prescribes

Persons and Family Relations


previous marriage (Art. 53), children are considered LEGITIMATE. 5. How impugn to May be attacked DIRECTLY or COLLATERALLY, except for purpose of remarriage (there must be JDN) May still be impugned after death of parties Can only be attacked DIRECTLY (there must be annulment decree)

Force, intimidation, undue influence

Injured party

Five years after disappearance of force or intimidation

6. Effect of death of parties

Impotence

Healthy party

Five years after marriage

Can no longer be impugned after death of parties

Legal Separation
BED AND BOARD SEPARATION MAY DECREED WHEN THERE IS (ART. 55): BE

STD

Healthy party

Five years after marriage

DURING PENDENCY OF ACTION: 1. The court shall provide for the support of the spouses, 2. The custody of the common children, giving paramount consideration to their moral and material welfare, their choice of parent with whom they wish to remain. 3. The court shall also provide for visitation rights of other parent. (Art. 49) To prevent collusion between the parties, fabrication or suppression of evidence, the prosecuting attorney or fiscal shall appear on behalf of the State. (Art. 48) EFFECTS OF DECLARATION OF NULLITY OR ANNULMENT: The same as effects of termination of bigamous marriage (Arts. 43, 44), except in the status of children. VOID MARRIAGES VS. VOIDABLE MARRIAGES (SEMPIO-DIY):
Void Marriage 1. Nature 2. Co-validation INEXISTENT from the beginning CANNOT covalidated be Voidable Marriage VALID until annulled by court CAN be covalidated by prescription or free cohabitation ACP exists unless another system is instituted through marriage settlement Children are LEGITIMATE if conceived before decree of annulment

1. Repeated violence or grossly abusive conduct directed against petitioner, a common child, or a child of the petitioner. 2. Physical violence or moral pressure to compel petitioner to change religious or political affiliation. 3. Attempt of respondent to corrupt or induce petitioner, a common child, or child of petitioner, to engage in prostitution or connivance in such corruption or inducement. 4. Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned (executive pardon, not pardon from offended party). 5. Drug addiction or habitual alcoholism of respondent. When it existed from the time of celebration, and concealed from petitioner, can be a ground for annulment of marriage. When it occurred only after the marriage, it is only a ground for legal separation, whether concealed or not. 6. Lesbianism or homosexuality of respondent. Ditto on rules on drug addiction. 7. Contracting by respondent of a subsequent bigamous marriage, whether in the Philippines of abroad. 8. Sexual infidelity or perversion. 9. Attempt on the life of petitioner by respondent. There is no need for criminal conviction. 10.Abandonment of petitioner by respondent without justifiable cause for more than one year. In Gandioco v Pearanda, the Supreme Court held that in sexual infidelity as a ground for legal separation, there is no need for prior conviction for concubinage, because legal separation only requires a preponderance of evidence, as opposed to proof beyond reasonable doubt required in concubinage. In fact, a civil action for legal separation based on infidelity may proceed ahead or simultaneously with the criminal action for concubinage, GROUNDS FOR DENYING LEGAL SEPARATION (ART. 56):

3. Effect property

on

No Community Property, only Coownership

4. Legitimacy of children

General rule: Children are ILLEGITIMATE (Art. 165) Exception: In void marriages by reason of psychological incapacity (Art. 36) or non-partition of properties in a

UP LAW BAROPS 2007 ONE UP LAW


6 of 39

III. Marriage
1. Condonation by aggrieved party 2. Consent by aggrieved party to the commission of the offense 3. Connivance between parties in the commission of the offense 4. Mutual guilt in ground for legal separation 5. Collusion between parties to obtain decree of legal separation 6. Prescription of action for legal separation OTHER GROUNDS FOR DENYING LEGAL SEPARATION 7. Death of either party during pendency of action (Lapuz-Sy v Eufemio) 8. Reconciliation of parties during pendency of action (Art. 66 par.1) RULES ON PROCEEDINGS: LEGAL SEPARATION

Persons and Family Relations


party in the will of the innocent spouse shall also be revoked by operation of law. OTHER EFFECTS OF LEGAL SEPARATION 5. Donation propter nuptias in favor of the guilty spouse may be revoked (Art. 64) 6. Innocent spouse may also revoke designation of guilty spouse as beneficiary in an insurance policy, even if such stipulations are irrevocable (Art. 64). 7. Obligation for mutual support ceases, but the court may order the guilty spouse to support the innocent spouse. (Art. 198) 8. The wife shall continue to use the surname of the husband even after the decree for legal separation. AGUILING-PANGALANGAN: The option to revoke of the designation of guilty spouse as beneficiary in an insurance policy should prevail, notwithstanding contrary provisions in the Insurance Code. RULE ON RECONCILIATION: Should the spouses reconcile, they should file a corresponding joint manifestation under oath of such reconciliation (Art. 65). PROF. BALANE: It is not the reconciliation per se but the filing of the required manifestation that produces the effects enumerated in Art. 66. EFFECTS OF RECONCILIATION (ART. 66): 1. Proceedings for legal separation shall be terminated at whatever stage. 2. If there is a final decree of legal separation, it shall be set aside. 3. The separation of property and forfeiture of share of guilty spouse shall subsist, unless the spouses agree to revive their former property regime or to institute another property regime (cf. Art. 67). OTHER EFFECTS OF RECONCILIATION 4. Joint custody of children is restored. 5. The right to intestate succession by guilty spouse from innocent spouse is restored. 6. The right to testamentary succession depends on the will of the innocent spouse.

1. Prescription Action prescribes in five years from occurrence of cause (Art. 57) 2. Reconciliation period Action cannot be tried before six months have elapsed since the filing of the petition (Art. 58) 3. Attempts on reconciliation Action cannot be tried unless the court has attempted to reconcile the spouses, and determined that despite such efforts, reconciliation is highly improbable (Art. 59) 4. Confession No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment (Art. 60, par. 1) 5. Collusion The court shall assign the prosecuting attorney or fiscal to make sure that there is no collusion between the parties, and that evidence is not fabricated or suppressed (Art. 60, par. 2) 6. After filing the petition for legal separation, the spouses are entitled to live separately (Art. 61, par. 1). 7. Administration of Community or Conjugal Property If there is no written agreement between the parties, the court shall designate one of them or a third person to administer the ACP or CPG. (Art. 61, par. 2) 8. Custody of children The court shall give custody of children to one of them, if there is no written agreement between the spouses. It shall also provide for visitation rights of the other spouse. (Art. 62, cf. Art. 49) EFFECTS OF DECREE FOR LEGAL SEPARATION (ART. 63): 1. Spouses can live separately, but cannot remarry (marriage bonds are not severed). 2. The ACP of CPG shall be dissolved and liquidated, and the share of the guilty spouse shall be forfeited in favor the common children, previous children, or innocent spouse (cf. Art. 42, par. 2). 3. Custody of the minor children shall be awarded to the innocent spouse 4. Guilty spouse shall be disqualified from inheriting from innocent spouse by intestate succession. The provisions in favor of the guilty

UP LAW BAROPS 2007 ONE UP LAW


7 of 39

IV. Rights and Obligations Between Husband and Wife

Persons and Family Relations

IV. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE


Obligations of Spouses
1. Live together (Art. 68) 2. Observe mutual love, respect, and fidelity (Art. 68) 3. Render mutual help and support (Art. 68) 4. Fix the family domicile. In case of disagreement, the court shall decide. (Art. 69) 5. Jointly support the family. (Art. 70) 6. Manage the household. (Art. 71)

B. WIDOWS: A widow may use the deceased husbands surname as though he were still living. (Art. 373, CC) C. MISTRESSES: In Legamia v IAC, the Supreme Court allowed the mistress to use her live-in partners name, since everyone already knew that she was a mistress, so as to avoid confusion.

Rights of Spouses
1. In case the other spouse neglects his or her duties or commit acts which tend to bring danger, dishonor or injury to the family, the aggrieved party may apply the court for relief. (Art. 72) 2. Either spouse may exercise any legitimate profession, without need for consent of the other. The other spouse may only object on valid, serious, and moral grounds. (Art. 73) In case of disagreement, the Court shall decide whether (1) the objection is proper, and (2) benefit has accrued to the family before the objection.

Use of Surname
A. MARRIED WOMEN: A married woman may use: 1. Her maiden first name and surname and add her husband's surname, or 2. Her maiden first name and her husband's surname or 3. Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs. (Art. 370, CC) The wife has the option to choose which among these names she should use. Should she decide to keep her maiden name, the use of the word may in the provision indicates that she may do so.. (A US Case allowed a woman to keep her maiden name especially because many of her professional relations already know her by that name.) In Yasin v Sharia District Court, the Supreme Court, by way of obiter dictum, said that the woman only has an option and not a duty to use the surname of her husband, as provided for in Art. 370, CC. It also said that when her husband dies, the woman can revert to her old name without need for judicial declaration.

UP LAW BAROPS 2007 ONE UP LAW


8 of 39

V. Property Relations Between Spouses

Persons and Family Relations


same, and in favor of one or both of the future spouses. (Art. 82) REQUISITES: 1. Made before the celebration of marriage 2. Made in consideration of the marriage 3. In favor of one or both spouses DONATIONS EXCLUDED: 1. ordinary wedding gifts given after the celebration of the marriage 2. donations in favor of future spouses made before marriage but not in consideration thereof 3. donations made I n favor of persons other than the spouses even if founded on the intended marriage WHO MAY DONATE? 1. spouses to each other 2. parents of one or both spouses 3. 3rd persons to either or both spouses DISTINGUISHED DONATIONS:
Donations Propter Nuptias Does not require express acceptance May be made by minors (Art. 78) May include future property

V. PROPERTY RELATIONS BETWEEN SPOUSES


ORDER TO BE FOLLOWED (ARTS. 74, 75) 1. Marriage settlements before marriage spouses can agree to whatever regime they want, be it ACP, CPG, or complete separation. 2. Provisions of the Civil Code If there are no marriage settlements, the Absolute Community of Property will be followed 3. Local Customs The rule that ACP is the default mode of property relations absent any marriage settlement applies to all Filipinos, regardless of the place of the marriage and their residence Art. 80 REQUIREMENTS FOR SETTLEMENTS (ART. 77) MARRIAGE

1. Must be in writing (public or private) 2. Signed by the parties 3. Executed before the celebration of the marriage 4. If party needs parental consent, parent/guardian must be a party to the settlement 5. If party is under civil interdiction or other disability (not including insanity), court appointed guardian must be a party 6. Must be registered in local civil registry to affect third persons (If not registered, will not prejudice third persons, ACP will apply) GENERAL RULE: All modifications to the marriage settlement must be made before the marriage is celebrated. EXCEPTIONS: 1. Legal Separation (Art. 63 (2)) In such an instance, the property regime is dissolved. 2. Revival of the former property regime upon reconciliation if the spouses agree (Art. 66 (2)) 3. A spouse may petition the court for: a. Receivership b. Judicial separation of property, or c. The authority to be the sole administrator of the conjugal partnership If the other spouse abandons the other without just cause or fails to comply with his or her obligations to the family. (Art. 128) 4. Judicial Dissolution (Arts. 135 and 136)

FROM

ORDINARY

Ordinary Donations Express acceptance necessary Cannot be made by minors Cannot include future property

If present property is No limit to donation of present property provided legitimes donated and property is not are not impaired absolute community, limited to 1/5 Grounds for revocation - In Art. 86 Grounds for revocation - in donation laws

RULES BEFORE MARRIAGE General Rule Future spouses cannot donate to each other more than 1/5 of their present property (excess shall be considered void) (Art. 84) Exception If they are governed by ACP. DURING MARRIAGE General Rule Spouses cannot donate to each other, directly or indirectly (donations made by spouses to each other during the marriage are void) (Art. 87)

A. Donations By Reason Of Marriage


DEFINITION Donations which are made before the celebration of the marriage, in consideration of the

UP LAW BAROPS 2007 ONE UP LAW


9 of 39

V. Property Relations Between Spouses


Exception Moderate gifts on the occasion of any family rejoicing. In Matabuena v Cervantes, the Supreme Court ruled that Art. 87 is applicable even to common-law spouses. REASONS FOR REVOCATION OF DONATION PROPTER NUPTIAS (ART. 86): 1. If the marriage is not celebrated or judicially declared void ab initio, except donations made in settlements. 2. When the marriage takes place without the consent of the parents or guardians, as required by law. 3. When the marriage is annulled, and the donee acted in bad faith. 4. Upon legal separation, if the donee is the guilty spouse. 5. If there is a resolutory condition, and it is not complied with. 6. When donee has committed an act of ingratitude, such as: a. An offense against person or property of donor, or his wife or children under parental authority b. An imputation to the donor of any criminal offense, or any act involving moral turpitude, even if proven, unless the crime is committed against the donee, his wife or children under his authority. c. Refusing to support the donor, if he/she is legally required to do so. The donee may choose to waive his/her right to revoke the donation, in which case the donee will keep the property. The action for filing for revocation of donation prescribes.

Persons and Family Relations


WHAT IT CONSISTS: All the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (Art. 91) Under the ACP, spouses cannot specific properties from the regime. exclude

WHAT IS EXCLUDED (RESERVED PROPERTY): 1. Properties acquired by a gratuitous title, i.e. donation, inheritance by testate and intestate succession, including the fruits of such properties Exception: When it was expressly provided by the donor or testator that the property shall form part of the ACP); 2. Properties for personal use, e.g. clothes, toilet articles, books Exception: Pieces of jewelry - they form part of the ACP 3. Properties acquired before the marriage, for those with legitimate descendants with a former marriage (to protect rights of children by a former marriage). PRESUMPTION All properties acquired during the marriage form part of the ACP, unless it be proven that they are excluded. (Art. 93) CHARGES UPON THE ACP (ART. 94): 1. Support a. Support of illegitimate children of either spouse governed by (9) b. Support shall be given to spouses even if they are not living together, except when a spouse leaves the conjugal home without just cause c. Support shall be given to the spouses during pendency of action for legal separation (Art 61) or for annulment of marriage (Art. 49) 2. Debts and Obligations Contracted During Marriage a. Either by both spouses or one of them, with the consent of the other. b. In (2) and (3), creditors need not prove that the debts benefited the family. 3. Debts Contracted by one Spouse Without Consent of the other a. ACP liable only to the extent that the debt benefited the family. b. Reason: spouses are joint administrators of community property, and one should not act without the consent of the other. 4. Tax, Liens, Repairs on Community Property a. Taxes on property itself and its fruits, including any surcharges on real estate taxes. b. Minor repairs are those for mere preservation of property or those caused by ordinary wear and tear; Major repairs include those caused by extraordinary events such as storms , floods, etc.

B. Absolute Community Of Property


WHEN IT COMMENCES: At the precise moment of the celebration of the marriage (Art. 88), not just at the day of the celebration. However, if the marriage is celebrated before the Family Code took effect (1988), the default property regime is the Conjugal Partnership of Gains (CPG). WAIVER OF RIGHTS: GENERAL RULE NOT ALLOWED (Art. 89) EXCEPTIONS 1. with the marriage subsisting, in case of a judicial separation of property, which includes dissolution of absolute community or conjugal partnership as a result of legal separation. 2. in case the marriage is dissolved (by death of one of the spouses) or annulled.

UP LAW BAROPS 2007 ONE UP LAW


10 of 39

V. Property Relations Between Spouses


5. Taxes and Expenses for Mere preservation of Separate properties a. Applies only to separate properties by either spouse being used by the family, not those that do not benefit the family. b. Expenses limited to minor repairs. 6. Expenses for professional, Vocational, or Self-Improvement Course of Spouses a. Intention of the law is to encourage the spouses to improve themselves for the benefit not just of their family but of the whole nation as well. 7. Ante-nuptial Debts that Benefited the Family a. If the ante-nuptial debt did not benefit the family, applicable rule is (9). b. e.g. loans incurred by husband prior to marriage to purchase conjugal home 8. Donations by Spouses to Common Legitimate Children a. Beneficiaries should be common legitimate children of spouses. b. Donation should be made by both spouses; otherwise, the ACP is not liable. 9. Ante-Nuptial Debts not under (7), Support of Illegitimate Children, Liabilities of Either Spouse Arising from Quasi-Delict a. If the debtor-spouse has no exclusive property or his or her property is insufficient. b. Under Art. 205 of CC, guilty spouse has no obligation to reimburse to the ACP indemnities paid by ACO on account of a crime or quasi-delict committed by him or her. Under the Family Code, however, the ACP is considered merely to have advanced these indemnities; they shall be deducted from the share of the guilty spouse at the time of the liquidation of the absolute community. 10.Expenses of Litigation between Spouses a. Expenses of these litigations are actions for support by one spouse against the other or for support and custody of children, legal separation, and annulment of marriage. b. If the spouse who files the case loses, the ACP is not liable for the expenses incurred during litigation. ADMINISTRATION OF PROPERTY: Belongs to both spouses jointly. If they disagree the husbands decision prevails. However, the wife has five years from the date of the decision to go to court for recourse. Otherwise, it is presumed that she agreed with the husbands decision. (Art. 96) EXCEPTION When the other spouse is incapacitated, or unable to participate in the administration (e.g. when abroad). DISPOSITION OF PROPERTY: Either spouse may, through a will, dispose his/her interest in the community property. (Art.

Persons and Family Relations


97) However, the will should refer only to his/her own share in the community property. DONATION OF PROPERTY: Donation of one spouse without the consent of the other is not allowed (Art. 98, following logic of Art. 96). EXCEPTIONS 1. Moderate donations to charity due to family rejoicing or distress; 2. Moderate gifts by each spouse to the other due to family rejoicing. Note: Whats moderate depends on the socioeconomic status of the family ACP TERMINATES UPON (ART. 99): 1. Death of either spouse follow rules in Art. 103 2. Legal Separation follow rules in Arts. 63 and 64 3. Annulment or judicial declaration of nullity follow rules in Arts. 50 to 52 4. Judicial separation of property during marriage follow rules in Arts. 134 to 138 RULES 100): ON DE FACTO SEPARATION (ART.

GENERAL RULE De facto separation does not affect the ACP. EXCEPTIONS 1. Spouse who leaves the conjugal home without just cause shall not be entitled to support. He/She, however, is still required to support the other spouse and the family. 2. If consent is necessary for transaction but is withheld or otherwise unobtainable, authorization may be obtained from the court. 3. Support for family will be taken from the ACP. 4. If ACP is insufficient, spouses shall be solidarily liable. 5. If it is necessary to administer or encumber separate property of spouse who left, spouse present may ask for judicial authority to do this. 6. If ACP is not enough and one spouse has no separate property, spouse who has property is liable for support, according to provisions on support. IN CASE OF ABANDONMENT (ART. 101): Present spouse may petition the court for: a. receivership; b. judicial separation of property; or c. authority to be the sole administrator of the absolute community, subject to precautionary conditions that the court may impose. Spouse is prima facie considered to have abandoned the other spouse and the family if:

UP LAW BAROPS 2007 ONE UP LAW


11 of 39

V. Property Relations Between Spouses


1. he/she has left for a period of three months, 2. he/she has failed to inform his/her whereabouts for a period of three months. PROCESS OF LIQUIDATION OF ACP (ART. 102): 1. Inventory of assets of ACP and of spouses, with market values. 2. Obligations are paid with community property, and separate obligations not charged to ACP paid by respective assets of spouses. 3. Balance, or net remainder is divided equally between the spouses, irrespective of how much each brought into the community. 4. If obligations exceed the assets of the ACP, nothing is divided. Creditors can go after the separate properties of the spouses, which are solidarily liable for the deficiency. 5. If personal obligations of a spouse exceed his/her separate property, creditor can go after the share of the spouse on the net remainder of the ACP, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes. 6. After covering all community obligations and obligations of spouses, balance of separate properties shall be delivered to respective spouses or their heirs, and they will also divide into two equal shares whatever is left of the community assets, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes. RULES IN CASE OF MARRIAGE BY DEATH SPOUSES (ART. 103): TERMINATION OF OF ONE OF THE

Persons and Family Relations


C. Conjugal Partnership Of Gains
WHERE IT APPLIES: 1. For marriages before the implementation of the Family Code. 2. For marriages after the Family Code, if agreed to by the parties through a marriage settlement.

HUSBAND AND WIFE PLACE IN FUND: 1. 2. 3.

COMMON

The proceeds, products, fruits, and income of their separate properties; Everything acquired by them within marriage through their own efforts; Everything acquired by them by chance

Each spouse has his/her own property and his/her own debts. Upon dissolution of marriage or partnership, the net gains or benefits from the partnership shall be divided equally between the spouses, unless they have agreed on another manner of division in their marriage settlement. In De Ansaldo v Sheriff of Manila, the Supreme Court ruled that the spouses are not coowners of the conjugal properties during the marriage and cannot alienate the supposed interest of each in the said properties. The interest of the spouses in the conjugal properties is only inchoate or a mere expectancy and does not ripen into title until it appears after the dissolution and liquidation of the partnership that there are net assets

1. The community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased spouse. 2. If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate the community property either judicially or extra-judicially within one year from the death of the deceased spouse. PROCEDURE FOR LIQUIDATION COMMUNITY PROPERTIES OF MARRIAGES (ART. 104): OF TWO

1. Determine the capital, fruits, and income of each community upon such proof as may be considered according to the rules of evidence. 2. In case of doubt as to which community the existing properties belong, they shall be divided between two communities in proportion to the capital and duration of each.

UP LAW BAROPS 2007 ONE UP LAW


12 of 39

V. Property Relations Between Spouses


CPG VS. ACP:
CPG 1. Property acquired before marriage. 2. Property acquired during marriage 3. Upon dissolution of marriage 4. Basis Each spouse retains his/her property; only fruits part of conjugal property Part of conjugal property Separate properties are returned; net profits divided equally between spouses or heirs. Capital and properties of spouses kept separate and distinct from benefits; insurmountable obstacle to presumption of solidarity Exclusive properties will have to be identified and returned, and sometimes, identification is difficult.

Persons and Family Relations

ACP Properties become property part of community

Becomes conjugal property. Net remainder of ACP divided equally between spouses or heirs. Mutual trust and confidence between spouses; fosters oneness of spouses

5. Liquidation

Easier to liquidate because net remainder of community properties are simply divided between spouses or heirs

CPG VS. ORDINARY PARTNERSHIP:


CPG 1. Existence Exists with the mere fact of marriage Ordinary partnership Comes into existence according agreement between parties to

2. Purpose, duration, Predetermined by legislator, the law fixing Determined by will of partners. and rules its conditions. 3. Profits Divided equally between spouses, Depends upon respective capitals irrespective of the amount of capital that partners, or upon their agreement they bring into marriage of

4. Equality

No equality between spouses in control, General rule is that all partners have equal management, and disposition, because the rights in administration, management, and law grants the husband some control of partnership. predominance. No juridical personality At precise marriage By law Not particularly for profit moment of celebration Considered a juridical person of At the time agreed upon by partners By agreement of parties; subsidiarily, by law For profit

5. Personality 6. Commencement 7. Regulation 8. Purpose 9. Causes dissolution

for Death, legal separation, annulment, JDN, Death, insolvency, civil interdiction, judicial separation of property termination of term, express will of any partner, etc. (Arts 1830-1931) Surviving partners may choose to continue partnership There can be division of profits without dissolution

10. Effect of death of a Dissolution of partnership partner 11. Division properties 12. Management of Only upon dissolution

Joint; in case of disagreement, the Same as individual partners, except when husbands decision shall prevail, wife has one or more partners designated as recourse to courts managers.

UP LAW BAROPS 2007 ONE UP LAW


13 of 39

V. Property Relations Between Spouses


EXCLUSIVE PROPERTIES OF THE SPOUSES: PROPERTY BY DIRECT ACQUISITION, OR PROPERTY THAT IS ORIGINALLY EXCLUSIVE 1. Property brought into marriage by each spouse as his/her own Art. 109(1) 2. Property acquired by either spouse during the marriage by gratuitous title Art 109 (2) PROPERTY BY SUBSTITUTION 3. Property acquired by right of redemption, by barter, or by exchange with property belonging to either spouse Art. 109 (3) 4. Property purchased with exclusive money of either spouse- Art. 109 (4) OTHER SEPARATE PROPERTY 5. Collection of credits belonging to one spouse exclusively 6. Sale of separate property of a spouse 7. Indemnity paid in cash of expropriation of separate property or under an insurance policy covering separate property. 8. Possession does not affect ownership of separate property. Spouses retain ownership, possession, administration, and enjoyment of their exclusive properties (Art. 110). Either spouse may transfer administration of his/her exclusive property to the other, provided that it is: 1. In a public instrument 2. Recorded in the registry of property of the place where the property is located. Rights to mortgage, encumber, alienate, or dispose of his/her property belong to the ownerspouse and are consequences of his/her right of ownership. (Art. 111) Owner-spouse can also appear alone in court to litigate with respect to his/her exclusive property. (Art. 111) Alienation of exclusive property administered by the other automatically terminates and the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. (Art. 112) PRESUMPTION All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. (Art. 116) PROPERTIES THAT COMPOSE CPG: PROPERTIES ACQUIRED BY ONEROUS TITLE DURING THE MARRIAGE AT EXPENSE OF COMMON FUND (A RT. 117 (1)) The test is the origin of the money invested in the purchase; if it came from conjugal funds, the property acquired is conjugal. 1.

Persons and Family Relations


2. PROPERTIES ACQUIRED THROUGH THE LABOR, INDUSTRY, WORK, PROFESSION OF EITHER OR BOTH SPOUSES (ART. 117 (2)) Include all income from work, labor or industry, of either or both spouses, whether in the form of wages, salaries, honoraria, practice of a profession, income from business even if the capital comes from the exclusive property of one of the spouses, commissions, bonuses, etc. 3. FRUITS FROM COMMON PROPERTY, AND NET FRUITS OF E XCLUSIVE PROPERTY OF EACH SPOUSE (ART. 117 (3)) All kinds of fruits from conjugal properties as well as the exclusive properties of the spouses, whether natural, industrial, or civil, like young of animals, produce of land, earnings from business, etc. But only net income or fruits of exclusive property of the spouses become conjugal. The expenses for production, administration, and preservation should be taken from the gross fruits, and the owner-spouse is entitled to retain the gross income until these expenses are paid If fruits were pending on separate, property of a spouse at.the time of the marriage, the harvest collected during the marriages is conjugal, and the conjugal partnership is not bound to pay the expenses, of cultivation to the spouse who owns the property from which the fruits were harvested, because the right of the conjugal partnership is a real right of usufruct and therefore, the law on usufruct should apply 4. SHARE OF EITHER SPOUSE IN HIDDEN TREASURE, WHETHER AS FINDER OR OWNER OF PROPERTY WHERE TREASURE IS FOUND (ART. 117(4)) Hidden treasure found by -the. spouses on the property of either of them is conjugal. If the owner of the property where the treasure is found is one of the spouses and the treasure is found by a stranger, the one-half share of the owner of the property goes to, the conjugal partnership. If the property where the treasure is found belongs to -a stranger and the treasure is found by one of the spouses, the one-half share of the finder is conjugal. 5. PROPERTIES ACQUIRED THROUGH OCCUPATION SUCH AS FISHING OR HUNTING (ART. 117 (5)) These include wild animals caught by the husband in the forest while hunting, and all kinds of marine life caught while fishing. The theory is that animals in the forest and fishes in the ocean are res nullius and do not belong to anyone, and if one of the spouses catches any of them, the benefit is not his alone but for the conjugal partnership.

UP LAW BAROPS 2007 ONE UP LAW


14 of 39

V. Property Relations Between Spouses

Persons and Family Relations


similar kinds of property are, however, merely accessories to some commercial establishment or product, so that if such establishment or product is separate property of one spouse, then the business property is separate property, the same being an accessory that follows the principal; but all benefits or earnings derived from these different kinds of property during the marriage should belong to the conjugal property (Tolentino, id., citing the same authority). PROPERTIES PURCHASED BY INSTALLMENT If the property was bought on installment by a spouse before the marriage and the contract of sale is such that ownership was already vested on the buyer-spouse at the time of the execution of the contract, the property is EXCLUSIVE PROPERTY of said buyer-spouse, even if installments on the price up to full payment came from the conjugal funds. The amounts paid by the conjugal partnership shall, however, be reimbursed to it by the owner-spouse at the time of the liquidation of the partnership. If, however, the contract of sale on installment is such that ownership did not vest on the buyer at the time of the execution of the sale and ownership vested only after the whole price was paid during the marriage and out of conjugal funds, the PROPERTY IS CONJUGAL but the partnership shall reimburse the buyer-spouse the installments paid by him or her before the marriage. In Lorenzo v. Nicolas, it was held that property bought on installment by either spouse before the marriage and was fully paid only after the marriage but ownership had vested on the buyer spouse before the marriage, is separate property of the buyer-spouse, although the installments paid by the conjugal partnership during the marriage must be reimbursed to it upon liquidation. CHARGES UPON CPG CHARGES TO ACP]: (ART. 121) [CF.

6. LIVESTOCK EXISTING AT DISSOLUTION OF PARTNERSHIP IN EXCESS OF WHAT IS BROUGHT BY EITHER SPOUSE TO THE MARRIAGE (ART. 117 (6)) While Art. 159 of the Civil Code classifies as conjugal all animals existing at the dissolution of the partnership "exceeding" that brought to the marriage by each spouse, this particular provision of the Family Code considers, as conjugal all "livestock existing at the dissolution of the partnership in excess of each kind brought to the marriage by either spouse." 7. PROPERTIES ACQUIRED BY CHANCE, SUCH AS WINNINGS FROM GAMBLING OR BETTING (ART. 117 (7)) If a winning lottery or sweepstakes ticket is bought by a spouse with his or her own money or the ticket was given gratuitously by a friend, the prize will be separate property of the spouse who owns the ticket. If, however, the ticket is purchased with conjugal funds, the prize will be conjugal. Presumption A lottery or sweepstakes ticket acquired during the marriage was bought with conjugal funds, and the prize is therefore, conjugal. SPECIAL CASES NOT INCLUDED IN ART. 117 Land obtained by either spouse or by both through a loan is conjugal, and so is the loan, and the spouses will be solidarily liable for said loan with their separate properties if later, the community property is not enough to pay for the same. Where property' belonging to one spouse is converted into another kind totally different in nature from its original form (e.g.; when, a nipa 'swamp is converted into a fishpond), during the marriage the converted property is conjugal in the absence of proof that the expenses of conversion were exclusively for the account of the original owner-spouse. But said owner-spouse is entitled to reimbursement of the value of the original property from the conjugal partnership Money received under the Social Security Act is not conjugal, although-the employeespouse contributes to the SSS with his salaries, but belongs to the designated beneficiary under the Social Security Law Intellectual property, like copyright or patent, should, according to Tolentino, citing Planiol and Ripert, be considered separate property of the spouse who produces or invents or discovers it, this property being of a special type, almost a part of one's person or taken from his personality and the physical or external manifestation of his intellect or genius, that it is not simply a product of one's work or industry but should be considered as pertaining exclusively to its creator Business property like trade-marks, trade names, service marks, business goodwill, and

1. The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; 2. All debts and obligations contracted during the marriage by the designated administratorspouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; 3. Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited; 4. All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property;

UP LAW BAROPS 2007 ONE UP LAW


15 of 39

V. Property Relations Between Spouses


5. All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse; 6. Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement; 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 the exclusive purpose of commencing or completing a professional or vocational course or other activity for selfimprovement; and 9. Expenses of litigation between the spouses unless the suit is found to groundless. If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties. ADMINISTRATION OF THE CPG: Husband and wife are joint administrators of the family properties and exercise joint authority over the persons and properties of their children Same provisions as those of Art. 96 (admin. of the ACP) WHEN ONE SPOUSE IS INCAPACITATED OR UNABLE TO PARTICIPATE IN ADMINISTRATION The other spouse may assume sole powers of administration in the event that one spouse is incapacitated or otherwise unable to participate in the administration of the CPG. However, these sole powers of administration do not include disposition or encumbrance (as these are acts of ownership or dominion) To be able to dispose or encumber properties of the CPG, either of the following is necessary: a. authority of the court; or b. written consent of the other spouse. In the absence of said judicial authority or written consent, the disposition or encumbrance shall be void. ENJOYMENT OF THE CPG: 1. The enjoyment of the CPG shall belong to both spouses jointly. 2. Either spouse may enjoy or use the properties of the CPG like a beach house or a family car as long as the use is in accordance with the purpose of the thing without injuring it and the other spouse is not prevented from likewise using it.

Persons and Family Relations


DISPOSITION CPG: OR ENCUMBRANCE OF THE

DISPOSITION OF PROPERTY Alienation of said property in any form, such as sale, donation, or assignment. ENCUMBRANCE OF PROPERTY Includes a real estate mortgage of immovable property or a chattel mortgage or pledge of personal property of the CPG. Disposition or encumbrance of conjugal property requires the consent or approval by both spouses. Mere awareness of a transaction is NOT consent If the consent cannot be obtained or unjustly withheld, then the other spouse may bring the matter to court and secure judicial authority for said disposition or encumbrance. If there is no consent of the other spouse nor judicial authority, the disposition or encumbrance shall be void. DISPOSITION BY WILL Same rule as Art. 97: Either spouse may dispose by will of his interest in the ACP. (but there is no provision specifically for CPG). DISSOLUTION OF CPG (ART. 128): 1. Prepare inventory, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse. 2. Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership. 3. Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. 4. The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph 2 of Article 121. 5. Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. 6. Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouses, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any. 7. The net remainder of the conjugal partnership properties, or the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or

UP LAW BAROPS 2007 ONE UP LAW


16 of 39

V. Property Relations Between Spouses


unless there has been a voluntary waiver or forfeiture of such share as provided in this Code. EFFECTS OF DISSOLUTION Whatever is acquired by the surviving spouse after the termination of the CPG forms part of his or her exclusive property. An obligation incurred by a surviving spouse after the death of the other spouse, can no longer be charged against the property of the CPG which has been terminated by such death. ALIENATION BY SURVIVORS If it becomes necessary to pay outstanding obligations of the CPG after the death of one of the spouses, a sale may be made of a portion of the CPG, provided the sale is made in the manner and with the formalities established by the Rules of Court for the sale of property of deceased persons. Such disposition cannot include the half that may be adjudicated to heirs of the deceased spouse. This rule applies not only to sale, but also to mortgages. RIGHTS OF THIRD PERSONS Dissolution of the conjugal property must be recorded in the registry of property in order to affect third persons dealing with registered property. When third persons are in connivance with the surviving husband or knowingly lend their aid, directly or indirectly to the commission of fraudulent acts by the husband, the court will see to it that they do not profit by their misconduct, and the fraud to which they are parties will vitiate and annul all their transactions. The purchaser in good faith must be held to take a good and valid title which cannot be set aside thereafter upon proof that in making the sale, or in the use made of the proceeds, the husband acted in fraud of the rights of the heirs. The heirs must seek their remedy against the husband.

Persons and Family Relations


METHODS OF LIQUIDATION 1. by extra-judicial partition between the husband and wife or their heirs 2. by an ordinary action for partition 3. by testate and intestate proceedings

D. Separation Marriage

of

Properties

During

When there is no stipulation between the parties, Separation of Properties takes place only upon judicial order. (Art. 134). Judicial separation of properties may voluntary or because of a sufficient cause. be

SUFFICIENT CAUSES FOR JUDICIAL SEPARATION OF PROPERTIES (ART. 135): 1. Spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction. 2. Spouse of the petitioner has been judicially declared an absentee. 3. Loss of parental authority of the spouse of petitioner has been decreed by the court. 4. Spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family. 5. The spouse granted the power of administration in the marriage settlements has abused that power. 6. At the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable. In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. In cases provided for in numbers (4), (5), and (6), a preponderance of evidence is required to secure a judicial separation of property.

UP LAW BAROPS 2007 ONE UP LAW


17 of 39

V. Property Relations Between Spouses


AFTER JUDICIAL SEPARATION OF PROPERTY ACP or CPG will be liquidated, according to the provisions of the Family Code. (Art. 137) REVIVAL OF PROPERTY REGIME IN THE FF. INSTANCES (ART. 141): 1. When the civil interdiction terminates. 2. When the absentee spouse reappears. 3. When the court, being satisfied that the spouse granted the power of administration in the marriage settlements will not again abuse that power, authorizes the resumption of said administration. 4. When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other; 5. When parental authority is judicially restored to the spouse previously deprived thereof; 6. When the spouses who have separated in fact for at least one year, reconcile and resume common life. 7. When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted. TRANSFER OF ADMINISTRATION OTHER SPOUSE WHEN (ART. 142): TO THE

Persons and Family Relations


CPG Absolute Community What gets Only the net Entire common mass of divided profits property which remains after the payments of between the spouses? the debts and obligations of the absolute community Why? Spouses retain their separate properties which do not become part of the conjugal properties All the separate properties of the spouses before the marriage become part of the community property. - each spouse loses ownership of whatever properties he/she brought to the marriage.

ADMINISTRATION: Each spouse shall own, dispose, possess, administer, and enjoy his/her own estate, without need for consent of the other. (Art. 145) FAMILY EXPENSES: Each spouse shall contribute to the family expenses, in proportion to their income. In case of insufficiency, the market value of their separate properties. (Art. 146) Liability of spouses to the creditors of the family shall be SOLIDARY. (Art. 146, par. 2)

1. When one spouse becomes the guardian of the other. 2. When one spouse is judicially declared an absentee. 3. When one spouse is sentenced to a penalty which carries with it civil interdiction. 4. When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case. If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator.

F. Unions Without Marriage


UNIONS GOVERNED BY ARTICLE 147: 1. When a man and a woman capacitated to marry each other live exclusively with each other as husband and wife without the benefit of marriage 2. A man and a woman living together under a void marriage (inapplicable to bigamous marriage) REQUISITES 1. The man and the woman must have capacity to marry each other. 2. The man and the woman cohabit. 3. The cohabitation is exclusive. 4. The man and the woman are not married to each other or are married to each other but the marriage is void. CO-OWNERSHIP IN 1. Wages and salaries earned by either spouse during the cohabitation. 2. Properties acquired by them through their joint work or industry during the cohabitation. Presumption properties acquired during the cohabitation are presumed to have been acquired through their joint efforts, work or industry

E. Regime of Separation of Property


GOVERNED BY: Marriage settlements; provisions of the Code are only suppletory. (Art. 143) KINDS OF SEPARATION (ART. 144): 1. Present Property, Future Property, Both 2. Total separation, Partial separation (remaining property is considered part of the absolute community)

UP LAW BAROPS 2007 ONE UP LAW


18 of 39

V. Property Relations Between Spouses


Party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the forgers efforts consisted in the care and maintenance of the family and of the household If the partner did not acquire the property directly, that partner's efforts must consist of the care and maintenance of the family and of the household in order for such party to own 1/2 of the acquired property. In Maxey vs. CA, the Supreme Court said that the co-ownership arises even if the commonlaw wife does not work is not gainfully employed. The common-law wife is still a co-owner since she ran the household and held the family purse even if she did not contribute thereto RULES Parties cannot encumber or dispose by acts inter vivos their share in the property acquired during their cohabitation until termination In case of void marriage if only one party is in good faith, the share of the spouse who is in bad faith shall be forfeited 1. In favor of their common children 2. In case of default of or waiver by any or all of the common children or their descendants each vacant share shall belong to the respective surviving descendants 3. In the absence of such descendants, such share belongs to the innocent party UNIONS GOVERNED BY ARTICLE 148 People incapacitated to marry each other 1. Bigamous marriages 2. Adulterous relationships 3. Relationships in a state of concubinage 4. Relationships where both man and woman are married to other persons 5. Multiple alliances of the same married man RULES Only properties acquired by the parties through their actual joint contribution of money, property or industry shall be owned in common in proportion to their respective contributions. Presumption Contributions and share of the parties to the properties acquired during the cohabitation are equal. If one party is validly married to another: 1. His/her share in the co-owned properties will accrue to the ACP/CPG of his/her existing valid marriage 2. If the party who acted in bad faith is not validly married to another, his/her share shall be forfeited in the same manner as that provided in Art 147

Persons and Family Relations


The same rules on forfeiture shall apply if both parties are in bad faith.

UP LAW BAROPS 2007 ONE UP LAW


19 of 39

VI. The Family

Persons and Family Relations


2. The family home can be constituted only on the dwelling place and therefore in the locality where the family has its domicile. 3. The value of the family home must not exceed the limit fixed by law HEAD OF THE FAMILY: Every person who is residing in the dwelling house with him or her, and under his or her care and maintenance, any of the following: 1. His or her minor child, grandchild or child of his or her deceased wife or husband; 2. A minor brother or sister or a minor child of a deceased brother or sister; 3. The father, mother, grandfather, grandmother of a deceased husband or wife 4. An unmarried sister or any other of the relatives mentioned who has attained the age of majority but is unable to take care or support himself. BENEFICIARIES OF THE FAMILY HOME (ART. 154): 1. The husband and wife, or an unmarried person who is the head of the family. 2. Their parents, ascendants, descendants, brothers and sisters, legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. REQUISITES TO BE A BENEFICIARY 1. The relationship is within those enumerated 2. They live in the family home 3. They are dependent for legal support on the head of the family EXCEPTIONS IN THE EXEMPTION OF THE FAMILY HOME FROM EXECUTION (ART. 156): 1. Nonpayment of taxes. 2. Debts incurred prior to the constitution of the family home. 3. Debts secured by mortgages on the premises before or after such constitution. 4. Debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. OTHER RULES The family home must be part of the properties of the ACP or CPG, or of the exclusive properties of either spouse. (Art. 156) Property that is the subject of a conditional sale on installments where ownership is reversed by the vendor only to guarantee payment of the purchase price may be constituted as a family home (Art. 156 (2)). Value: shall not exceed P300,000 for urban areas, P200,000 for rural areas, at the time of the constitution (Art. 157) Urban Areas: chartered cities and municipalities whose annual income at

VI. THE FAMILY


FAMILY RELATIONS INCLUDE THOSE: 1. Between husband and wife; 2. Between parents and children; 3. Among brothers and sisters, whether of the full or half-blood. GENERAL RULE: For a suit between members of the same family shall prosper, the following are required: 1. Earnest efforts towards a compromise have been made 2. Such efforts have failed 3. Such earnest efforts and the fact of failure must be alleged Without these 3, the case will be dismissed. EXCEPTION: Cases which cannot be compromised. (Article 2035): 1. civil status of persons, 2. validity of marriage or a legal separation, 3. any ground for legal separation, 4. future support, 5. jurisdiction of courts, 6. future legitime

The Family Home


DEFINITION Dwelling place of a person and his family A real right, which is gratuitous, inalienable, and free from attachment, constituted over the dwelling place and the land on which it is situated, which confers upon a particular family the right to enjoy such properties, which must remain with the person constituting it and its heirs The house and lot must be owned by the person who constitutes it as it ins in the nature of the family home to be permanent To constitute the family home, there must be actual occupancy with the intention of dedicating the premises for such purpose Cannot be constituted upon permanently used for business purposes premises

Exempted from execution, forced sale, and attachment LIMITATIONS: 1. Each family can have only one family home. No other family home can be established without first dissolving the existing one.

UP LAW BAROPS 2007 ONE UP LAW


20 of 39

VI. The Family


least equals that legally required chartered cities. Rural Areas: all other municipalities. for

Persons and Family Relations

VII. PATERNITY AND FILIATION


A. Definition

SELLING THE FAMILY HOME (ART. 158) Family home may be sold, alienated, donated, assigned, or encumbered by the owners. REQUIREMENTS 1. the written consent of the person constituting it, 2. his/her spouse, and 3. majority of the beneficiaries of legal age. 4. If there is a conflict, the Court will decide. IN CASE OF DEATH (ART. 159): Family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years, or as long as there is a minor beneficiary. The heirs cannot partition the home unless the court finds compelling reasons therefor. REQUISITES FOR CREDITOR TO AVAIL OF THE RIGHT UNDER ARTICLE 160: 1. He must be a judgment creditor; 2. His claim is not among those excepted under Article155, and 3. He has reasonable grounds to believe that the family home is worth more than the maximum amount fixed in Article 157 PROCEDURE TO ARTICLE 160: AVAIL OF RIGHT UNDER

PATERNITY The relationship or status of a person with respect to his or her child (paternity includes maternity). FILIATION The status of a person with respect to his or her parents. TYPES OF FILIATION 1. Natural a. Legitimate (Art. 164) b. Illegitimate (Arts.165, 175, 176) c. Legitimated (Arts. 167-172) 2. By Adoption (R.A. No. 8552 (Domestic Adoption Act) and R.A. No. 8043 (Intercountry Adoption Act)) 3 TYPES OF LEGITIMATE CHILDREN 1. Legitimate proper 2. Legitimated 3. Adopted 2 TYPES OF ILLEGITIMATE CHILDREN 1. Children of parents disqualified to marry each other at conception and marriage. 2. Children of parents qualified to marry each other Only this kind can be legitimated by subsequent marriage.

B. Legitimate Children
DEFINITION conceived conceived conceived conceived OR born DURING marriage during, born after before, born during AND born during

1. The creditor must file a motion in the court proceeding where he obtained a favorable for a writ of execution against the family home. 2. There will be a hearing on the motion where the creditor must prove that the actual value of the family home exceeds the maximum amount fixed by the FC either at the time of its constitution or as a result of improvements introduced thereafter its constitution. 3. If the creditor proves that the actual value exceeds the maximum amount the court will order its sale in execution. 4. If the family home is sold for more than the value allowed, the proceeds shall be applied as follows: a. First, the obligation enumerated in Article 155 must be paid b. Then the judgment in favor of the creditor will be paid, plus all the costs of execution c. The excess, if any, shall be delivered

Any child born conceived or born during marriage of parents (Art. 160) ARTIFICIAL INSEMINATION Impregnation of a female with the semen from a male without sexual intercourse It may be: 1. of the husband (AIH homologous artificial insemination) - LEGITIMATE 2. of a donor (AID heterologous artificial insemination) LEGITIMATE IF RULES ARE FOLLOWED 3. combination of the husbands and a donors (AIC confused or combined artificial insemination) TOLENTINO: If the consent is not written, favor of legitimacy; written consent not essential, other

UP LAW BAROPS 2007 ONE UP LAW


21 of 39

VII. Paternity and Filiation


evidence is OK (analogous to marriage certificates) FOR CHILD BORN THROUGH AID TO BE LEGITIMATE (ART. 160): 1. Both must authorize/ratify 2. in a written instrument 3. signed before birth of child 4. Registered in civil registry together with certificate. IN VITRO FERTILIZATION An ovum of another woman is used. NOT covered by the Family Code. PROF. AGUILING-PANGALANGAN: AI provides a remedy for impotent men. There is no remedy for women as surrogacy is forbidden.

Persons and Family Relations


3. Consent in artificial insemination is defectively secured The only person who can impugn the legitimacy of the child on this ground is only the husband. Wife is barred because of Articles 167, 170, and 171. RULE UNDER THE CIVIL CODE (IMPUGNING LEGITIMACY OF A CHILD) There is only one kind of proof (same 120-300 day rule) It does not take into account the modern advances in science and technology. THE CHILD ALTHOUGH: IS CONSIDERED LEGITIMATE

C. Impugning Legitimacy
GROUNDS TO IMPUGN LEGITIMACY OF A CHILD: 1. PHYSICAL IMPOSSIBILITY It was impossible for the husband to have sex with his wife within the first 120 days (period of conception) of the 300 days which immediately preceded the birth of the child because of: a. Physical incapacity impotence, not sterility. This presumption is so strong that evidence must be so convincing to justify the bastardization (there really is this term) of the child. In the case of Tarleton v. Thompson, the guys penis was cut off but the court still declared him to be the father since even if cut, it was still 3 inches long (long enough to be able to copulate). b. Living Separately Mere remoteness is not sufficient. c. Serious Illness Illness must be serious to absolutely prevent him from having sex. WHY? Because if it is impossible for the husband to have sex with his wife during the said period of 120 days, the child could not be his legitimate child. 2. Biological or other scientific grounds a. Blood grouping tests can determine nonpaternity but not paternity (ex. A-B-O test). b. Human Leukocyte Antigen Test (HLA) can prove identity between child and father with a probability exceeding 98%. c. DNA test d. Vasectomy SEMPIO-DIY: A double vasectomy, together with other pieces of evidence, can show the impossibility of the alleged father siring his supposed child. STA. MARIA: The fact that the husband has undergone vasectomy is not enough proof to rebut the presumption of legitimacy (Cocharan v. Cocharan).

The mother may have declared against its legitimacy; The mother may have been sentenced as an adulteress (Art. 167)

REASONS FOR RULE 1. The mother, in a fit of anger or to arouse jealousy on the part of the husband, might have declared against the childs legitimacy, even if such declaration is untrue. 2. Even the wife, who has had carnal knowledge with her husband and with her paramour, would not be able to tell with certainty who is the real father of her child. 3. The husband, whose honor is offended, might have been able to obtain from his wife through coercion a confession of her guilt of adultery, but this does not mean that the child begotten by her is not that of her husband. TOLENTINO: This provision applies to the child of a wife who was raped. IN CASE OF TWO MARRIAGES OF MOTHER (ART. 168):
Termination of 1st marriage Celebration of 2nd marriage 180 days after celebration of 2nd marriage 300 days after termination of 1st marriage

Child of the 1st marriage

Child of the 2nd marriage

For the child to be considered the child of the 1st husband, the following requisites must concur: 1. The mother must have married again within 300 days from the termination of her first marriage 2. The child was born within the same 300 days after the termination of the former marriage of its mother 3. The child was born before 180 days after the solemnization of its mother's 2nd marriage For the child to be considered the child of the 2nd husband, the following requisites must concur:

UP LAW BAROPS 2007 ONE UP LAW


22 of 39

VII. Paternity and Filiation


1. The mother must have married again within 300 days from the termination of the marriage 2. The child was born within the same 300 days after the termination of its mother's first marriage 3. The child was born after 180 days following the solemnization of its mother's second marriage The first marriage must be terminated either by death or annulment. There is no presumptive rule on the status of a child born after 300 days following the termination of the marriage. (Art. 169) Reason: 300 days is the longest period of gestation. WHO CAN IMPUGN THE LEGITIMACY OF A CHILD? Only the HUSBAND. His heirs can only impugn the legitimacy of a child born to his wife when: 1. The husband died before the expiration of the period fixed for bringing his action; 2. He died after the filing of the complaint without having desisted therefrom; or 3. The child was born after the death of the husband (Art. 171) REASON To allow other people, especially those not belonging to the family where the child was born, to bring an action to impugn the legitimacy of such child, would be to invite other actions, with or without basis, by those whose only purpose is to break up a family to satisfy a jealous or revengeful feeling. In Sayson v CA, the Court held that the legitimacy of a child cannot be attacked collaterally or by way of defense to any action or proceeding filed for a different purpose. The status of a child can be questioned only in a direct action or proceeding filed under this Article WHEN TO IMPUGN THE LEGITIMACY OF A CHILD (ART. 170): 1. Within 1 year from knowledge of the birth or its recording in the civil register, if the impugner resides in the city or municipality where the birth took place or was recorded; 2. Within 2 years from knowledge of the birth or its recording in the civil register, if the impugner resides in the Philippines other than in the city or municipality where the birth took place or was recorded; 3. Within 3 years from knowledge of the birth or its recording in the civil register, if the impugner resides abroad, If the birth of the child has been concealed or was unknown to the husband or his heirs, the above periods shall be counted: 1. From the discovery or knowledge of the birth of the child

Persons and Family Relations


2. From the discovery or knowledge of the fact of registration of the birth, whichever is earlier. Article 170 is not applicable if the action is not to impugn the legitimacy of a child but to have the child declared not a child of the alleged mother and not her legal heir. PROOFS OF FILIATION (ART. 172): 1. The record of birth appearing in the civil register or a final judgment. 2. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. Or, in their Absence: 1. The open and continuous possession of the status of a legitimate child; or 2. Any other means allowed by the Rules of Court and special laws. A child can claim legitimacy anytime in his life. In case of insanity or when the child dies as a minor, the right shall be transmitted to the heirs. In this case they have five years to institute action. (Art. 173) RIGHTS 174): OF LEGITIMATE CHILDREN (ART.

1. To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; 2. To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and 3. To be entitled to the legitimate and other successional rights granted to them by the Civil Code.

D. Illegitimate Children
Children born outside of a valid marriage are illegitimate. (Art. 165) PROOF OF FILIATION The same as legitimate children (Art. 175) RIGHTS OF ILLEGITIMATE CHILDREN (ART. 176) 1. To bear the surname of their mother and FATHER(the right to use the fathers surname is granted to them through RA 9255, thereby amending Art. 176) Requirement to use fathers Surname Acknowledgement from father through: The birth certificate; A public document; or A private handwritten instrument; 2. To receive support from their parents, ascendants, and in proper cases, their brothers and sisters; and 3. To the legitime and other successional rights granted by law to legitimate children.

UP LAW BAROPS 2007 ONE UP LAW


23 of 39

VII. Paternity and Filiation


The decision in Mossesgeld v CA, decided in 1998, where the Court ruled that the child should be registered in the civil registry under the surname of the mother, regardless of the acknowledgement of the father, cannot now be followed because of the right granted to illegitimate children by RA 9255.

Persons and Family Relations


4. IMPUGNING: Only those who are prejudiced by their rights, within five years from the time of the cause of action accrues. (Art. 182)

E. Legitimated Children
LEGITIMATION: Remedy by means of which those who in fact were not born in lawful wedlock and should therefore be considered illegitimate children are BY FICTION considered legitimate children, it being supposed that they were born when their parents were validly married. It is an act by which the quality of a legitimate child is conferred upon an illegitimate child. A product of NATURE AND LAW. Legitimation takes place by a subsequent valid marriage between the parents. Annulment in the future does not affect legitimacy.(Art. 178) COMPARED TO ADOPTION Adoption Law merely creates by fiction a relation which did not in fact exist. Legitimation Law merely makes legal what exists by nature. WHO CAN BE LEGITIMATED (ART. 177): 1. Child who is conceived and born outside of wedlock; and 2. At the time of conception, the parents were not disqualified by any impediment to marry each other. i.e. children those who are not disqualified by any impediment to marry each other CHILDREN OF FOLLOWING CANNOT BE LEGITIMATED (BECAUSE OF IMPEDIMENT) 1. Adulterous relationships 2. Incestuous relationships 3. Bigamous relationships 4. Void marriages by reasons of public policy under Art. 38 RULES: 1. RIGHTS: Legitimated children shall enjoy the same rights as legitimate children (Art. 179) 2. RETROACTIVITY: The effects of legitimation shall retroact from the time of the childs birth. (Art. 180) 3. DEATH OF CHILD: When the child dies before the celebration of the marriage, their legitimation shall benefit their descendants. (Art. 181)

UP LAW BAROPS 2007 ONE UP LAW


24 of 39

VIII. Adoption

Persons and Family Relations

VIII. ADOPTION
*Provisions of the Family Code have been amended by RA 8049 (Inter-Country Adoption Act0 and RA 8552(Domestic Adoption Act)

A. Definition
A juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. ADOPTION VS. LEGITIMATION: SIMILARITIES Both are given status of a child born in lawful wedlock of the parents adopting or legitimizing it. DIFFERENCES
LEGITIMATION Persons affected Only children ADOPTION

natural Generally applies to strangers by judicial

Procedure Extrajudicial acts of Always parents decree Who applies Effect Only by parents

both By one parent alone Creates a rel. only between the child and the adopting parent

Same status and rights as a legitimated child not only in rel. to the legitimizing parents but also to other relatives

ADOPTION ONLY BY JUDICIAL DECREE: It is a juridical act, a proceeding in rem Only an adoption made through the court or in pursuance with procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. Cannot be granted administratively. A mere agreement between adopter and parents is neither a valid adoption, nor the mere fact that child has lived with the alleged adopter who has treated him like his own child sufficient to establish a valid adoption. Fact of adoption is not presumed but must be affirmatively proved by the person claiming its existence (through the juridical decree).

B. Who may adopt


Under the Civil Code, persons who have already children of their own cannot adopt anymore, unless they are adopting their own illegitimate children in order to elevate their status, the reason being that, the old concept of adoption considered it mainly for the benefit of persons who have not been blessed with children or who have lost them.

NOTE: texts in bold indicate provisions which are changed by RA 8552)

UP LAW BAROPS 2007 ONE UP LAW


25 of 39

VIII. Adoption
FAMILY CODE

Persons and Family Relations


RA 8522

Art. 183 Sec. 7 1. person of age (18) a) Any Filipino citizen: o of legal age 2. in possession of fully civil capacity & legal o in possession of full civil capacity & legal rts rights o of good moral character* 3. in a position to support & care for his kids in o not been convicted of any crime involving keeping w/means of the family moral turpitude 4. at least 16yrs older than person to be adopted unless the adopter is the parent by nature or o emotionally & psychologically capable of sp of legitimate parent of person to be caring for children* o in a position to support & care for his/her adopted kids in keeping w/means of the family 5. spouses jointly/married person w/consent of o at least 16 yrs older than adoptee and who is sp except: in a position to support and care for a. when 1 seeks to adopt his own illegit child his/her children in keeping with the b. when 1 sp seeks to adopt the legit child of means of the family. 16 years difference other may be waived when adopter is biological 6. not disqualified under FC 184 parent or is the sp of the adoptees parent Full civil rights b) Any alien possessing the same qualification as must have no curtailment of civil rights so that he above stated for Filipino nationals, provided that: could fully exercise parental authority 1. his country has diplomatic relations w/ RP 2. living in the Phil for at least 3yrs prior to must not be suffering from limitations on capacity filing until decrees entered to act such as minority, insanity or imbecility, deaf3. certified by his diplomatic/consular office mutism, prodigality, and civil interdiction. No prohibition for relatives to adopt one another, except or any appropriate agency that he has leg in cases enumerated capacity to adopt in his country Permits the adoption of illegitimate children by their 4. his govt allows adoptee to enter his own parents because if the latter want to make country as his adopted child amends, they should be encouraged. It shall raise the 5. conditions may be waived for ff: child to a legitimate status. a. former Filipino citizen seeks to adopt relative w/in 4th degree of Art. 184. The following persons may not adopt: consanguinity/affinity* b. one who seeks to adopt legitimate (1) The guardian with respect to the ward prior to the child of his/her Filipino sp* approval of the final accounts rendered upon the c) guardian with respect to the ward after termination of their guardianship relation; termination of guardianship & clearance of his financial accountabilities (2) Any person who has been convicted of a crime involving moral turpitude; Husband &Wife shall jointly adapt except in the ff cases: (3) An alien, except: a.if 1 sp seeks to adopt legit child of other b.if 1 sp seeks to adopt his own illegitimate (a) A former Filipino citizen who seeks to adopt a child w/consent of other spouses relative by consanguinity; * c. spouses are legally separated* In case husband and wife jointly adopt, or one (b) One who seeks to adopt the legitimate child of his spouse adopts the illegitimate son/daughter of or her Filipino spouse; or * the other, joint parental authority shall be exercised by the spouses. (c) One who is married to a Filipino citizen and seeks The adopted or adopter may be single or married, to adopt jointly with his or her spouse a relative by but if married, the consent to the adoption of his or consanguinity of the latter.* her spouse is needed. Age difference of 16 years Aliens not included in the foregoing exceptions may - to give assurance that adopter has the sufficient adopt Filipino children in accordance with the rules on maturity to fill the role of a parent to the inter-country adoptions as may be provided by law. adopted child. Also, to approximate natural (28a, E. O. 91 and PD 603) filiation as much as possible. -

UP LAW BAROPS 2007 ONE UP LAW


26 of 39

VIII. Adoption
Aliens stricter in adoption by aliens compared to PD 603 because children adopted by aliens suffered cultural and psychological shock and could not adjust to their new lives in the foreign countries Some pedophiles simply abandoned the children after they had satisfied their sexual desires on them in their foreign homes Alleged cases where children were killed for organ transplants in the foreign countries. By restricting, there is some assurance that adopted children will receive love, care and protection

Persons and Family Relations


No conviction of crime involving moral turpitude adopter should be morally qualified to do so. Conviction is necessary bec. Of the presumption of innocence. Pardon does not remove disqualification. Emotionally and psychologically capable and in a position to support family in keeping with the means parent assumes all duties and responsibilities of rearing, caring, educating, supporting and molding the character of child for the development of his character and well-being. A person who is rich but too old or too week should not be allowed. Aliens - Liberalized the restrictions on adoption by aliens imposed by the Family Code. - Aliens may now adopt subject to the conditions/provided that qualifications are satisfied. Adoption by H & W - one spouse adopts the illegitimate child of the other in this case, only one is the adopter, although with the consent of the other spouse. - If spouses are legally separated, no need for joint adoption and the consent of the other is not necessary. Guardians - may adopt both under FC and RA 8522 provided that guardianship is terminated and he has been cleared of his financial accountabilities. Reason: to prevent guardian who has misused or misappropriated the funds or properties of his ward to resort to adopting his ward to avoid an accounting of such funds or properties and possible criminal action.

Art. 185 H & W must jointly adopt except: a. when 1 sp seeks to adopt his own illegit child b. when 1 sp seeks to adopt legit child of the other Art. 186 in case sps jointly adopt or 1 sp adopts legit child of other, joint parental authority shall be exercised in accordance w/FC Husband and wife may jointly adopt a child. However, it is not obligatory. One spouse can adopt alone, but the consent of the other is required. If they adopt jointly, they shall have joint parental authority over the adopted child. Reason: to prevent dissension between spouses. TOLENTINO: Legal separation terminates the common life between spouses and the reason for requiring the consent of one spouse for the adoption made by the other no longer exists

C. Who may be adopted


FAMILY CODE RA 8522

UP LAW BAROPS 2007 ONE UP LAW


27 of 39

VIII. Adoption
Art. 187. The following may not be adopted: (1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person has been consistently considered and treated by the adopter as his or her own child during minority. (2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and (3) A person who has already been adopted unless such adoption has been previously revoked or rescinded. (30a, E. O. 91 and PD 603) Plurality of Adoption A person cannot have two adopting fathers/mothers. But the adoption of a child by a married man will not bar a subsequent adoption of the same child by the wife of the adopting parent (jointly adopted). Upon the death, or when adoption was rescinded or revoked, only then can the child be adopted again by another. Adoption of an adult is not allowed: - he is old enough to take care of himself and does not have to depend on anyone else to do so. If the reason is to share material advantages with the adopted, he can do so by simply giving the latter financial assistance and leaving him something in his will. - The rationale of adoption is to give poor, orphaned, abandoned children the advantages and blessings of having parents who would love, support, protect, rear and educate them until old enough Enumerated who MAY NOT be adopted instead of MAY BE adopted.

Persons and Family Relations


SECTION 8. Who May Be Adopted. The following may be adopted: a. Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; b. The legitimate son/daughter of one spouse by the other spouse; c. An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy d. A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; e. A child whose adoption has been previously rescinded; or f. A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s).administratively or judicially declared available for adoption voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his/her biological parent(s) or guardian or adopter(s) in case of rescission of adoption. "Voluntarily committed child" is one whose parent(s) knowingly and willingly relinquishes parental authority to the Department. "Involuntarily committed child" is one whose parent(s), known or unknown, has been permanently and judicially deprived of parental authority due to abandonment; substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parental responsibilities.

D. Pre-Adoption
PRE-ADOPTION counseling services for the biological parents of adoptee, prospective adoptive parents, and prospective adoptee. Section 4 under Art. 111 of Rules and Regulation to implement RA 8552: 1. Biological Parent(s) a. Biological Parents shall be counseled regarding their options: i. to keep the child and avail of services and assistance; ii. avail of temporary child care arrangements such as foster care; or iii. relinquish the child for adoption b. Topics to focus on: i. the loss of parental rights over the child and as a rule, not having further contact with the child; ii. the importance of providing relevant information on the child, their own medical history and family background; iii. the possibility that the child may be placed for adoption within the Philippines or in a foreign country; iv. the possibility that in the future, there may be communication with the child at their or the childs initiative.

v. the right to reconsider his/her decision to relinquish his/her child within six (6) months from signing the Deed of Voluntary Commitment (DVC) subject to assessment by the Department. c. Continuing services shall be provided after relinquishment to cope with feelings of loss, etc. and other services for his/her reintegration to the community. d. The biological parent(s) who decided to keep the child shall be provided with adequate services and assistance to fulfill parental responsibilities. 2. Prospective Adoptive Parent(s) a. Biological Parents shall be counseled regarding their options: i. to disseminate basic information about adoption including the adoption process and procedures and the effects of adoption. ii. to inform them of the general background of children in need of adoptive homes including children with special needs; iii. to develop among prospective adoptive parents a respect for the childs biological origin and an awareness of the importance of telling the child that he/she is adopted. iv. To provide a support group for adoptive parents which shall give them a venue

UP LAW BAROPS 2007 ONE UP LAW


28 of 39

VIII. Adoption
b. for sharing their adoption experiences. A certificate shall be issued by the Department to the prospective adoptive parents attesting that they have undergone pre-adoption services. The certificate shall be made a pre-requisite of the homestudy.

Persons and Family Relations


the immediate community who have known the applicant(s) for at least three (3) years; 3x5 sized pictures of the applicant(s) and his/her immediate family taken within the last three (3) months; Certificate of attendance to pre-adoption fora or seminars. In addition, foreign nationals shall submit the following: Certification that the applicant(s) have legal capacity to adopt in his/her country and that his/her country has a policy, or is a signatory of an international agreement, which allows a child adopted in the Philippines by its national to enter his/her country and permanently reside therein as his/her legitimate child which may be issued by his/her countrys diplomatic or consular office or central authority n intercountry adoption or any government agency which has jurisdiction over child and family matters; or in the absence of any of the foregoing, the Philippine Intercountry Adoption Board may also certify that the Philippines and the applicants country have an existing agreement or arrangement on intercountry adoption whereby a child who has been adopted in the Philippines or has a preadoption placement approved by the Board is allowed to enter and remain as permanent resident in the applicants country as his/her legitimate child. Certificate of Residence in the Philippines issued by the Bureau of Immigration or Department of Foreign Affairs, as appropriate; Two (2) character references from a nonrelatives who knew the applicant(s) in the country of which he/she is a citizen or was a resident prior to residing in the Philippines, except for those who have resided in the Philippines for more than fifteen (15) years; Police Clearance from all places of residence in the past two years immediately prior to residing in the Philippines.

8. 9.

3. Prospective Adoptee a. A prospective adoptee shall be provided with counseling and other support services appropriate to his/her age and maturity, and in a manner and language that the child comprehends, especially to enable him/her to understand why he/she has been relinquished for adoption. b. In the case of a prospective adoptee whose consent to his/her own adoption is necessary, the social worker/counselor shall consider the childs wishes and opinions, ensure that his/her consent is voluntary and duly inform him/her of the effects of such consent.

10.

E. Adoption Procedure
Article 5, Rules and Regulations to implement RA 8552: Steps 1 and 2 for prospective adopters. Step 3 and 4 for prospective adoptees 1) Application for Adoption. Prior to this, prospective adopters should attend adoption fora and seminar. Reasonable fees and charges are also imposed to adopters. After which, they shall file his/her application for adoption with the Department directly or with a social service office of a local government unit, or with any licensed accredited child placing agency. Spouses shall file their application jointly. 2) Preparation of Home Study Report. Department representatives shall conduct home visits to the applicants to determine whether they have capacity to adopt or not. The following documents/certifications are required: 1. Authenticated birth certificate 2. Marriage Contract or Divorce, Annulment, Declaration of Nullity, or Legal Separation documents; 3. Written consent to the adoption by the legitimate and adopted sons/daughters, and illegitimate sons/daughters if living with the applicant, who are at least ten (10) years old; 4. Physical and medical evaluation by a duly licensed physician and psychological evaluation by a psychologist; 5. NBI/Police Clearance 6. Latest income tax return or any other documents showing financial capability, e.g. Certificate of Employment, Bank Certificate or Statement of Assets and Liabilities; 7. Three (3) character references, namely from the local church/minister, the employer, and a non-relative member of

11.

12.

13.

In the case of an applicant who is residing abroad, but is otherwise qualifies to adopt in the Philippines under the provisions of the Act, the Homestudy report shall be prepared by an accredited foreign adoption agency. However, a certification from the Intercountry Adoption Board shall be required to ensure that said agency is accredited. Disapproval of Adoption Application. Except when found by the social worker that such application can no longer be considered, there shall be no prejudice to future application of said applicants. 3) Certificate Of Availability Of Child For Adoption. No child shall be placed for adoption unless a clearance has been obtained from the

UP LAW BAROPS 2007 ONE UP LAW


29 of 39

VIII. Adoption
Department adoption. that said child is available for

Persons and Family Relations


during the regular matching conference by the Matching Committee otherwise called the Child Welfare Specialist Group (CWSG) in the regional level where the social workers of the child and family are present. If records of children and approved adoptive parent/s are not matched within thirty (30) days in the regional level, it shall be forwarded to the Departments Central Office for interregional matching The matching proposal made by the CWSG shall be approved by the Department. 7) Placement. The physical transfer of a child from a child caring agency or foster home to the prospective adoptive parents who shall be responsible for his/her care and custody shall be made after the necessary form are accomplished and the Pre-Adoption Placement Authority (PAPA) has been issued after approval of the Regional Director for placement within the region or by the Department Secretary or his/her duly authorized representative in cases of interregional placements. 8) Supervised Trial Custody. The placement of the child shall take effect upon issuance of the PAPA by the Department after which the supervised trial custody shall commence. During the supervised trial custody, the social worker shall conduct monthly home visits to monitor adjustment of the prospective adopter(s) and child to each other and submit progress report to the Department. A copy of these reports shall be given to the child caring agency where the child came from. The court may upon its own motion or on motion of the petitioner, reduce or dispense with the trial period if it finds that it is to the best interest of the child. In such case, the court shall state its reasons for reducing said period. Disruption of Pre-Adoptive Placement. If the placement/relationship is found unsatisfactory by the child or the adopter(s), or both, or if the social worker finds that the continued placement of the child is not in the childs best interest, said relationship/placement shall be suspended by the Department which shall recommend to the Adoption Resource and Referral Office to consider another possible placement. New Placement. In the event of the pre-adoptive placement, shall arrange without delay a new child, or, if inappropriate, other term care. of the disruption the Department placement of the alternative long

The Department shall issue the Certificate of Availability for Adoption not later than fifteen (15) days after expiration of the six (6) month period after execution of Deed of Voluntary Commitment by the childs parents or legal or after receipt of entry of judgement in case of involuntary commitment. Copy of the Certificate of Availability for Adoption and Child Study Report shall be sent to the Child Welfare Specialist Group (CWSG) for purpose of placement of the child for adoption. * FOR BIOLOGICAL PARENTS: In all proceedings for adoption, a comprehensive study report prepared by a licensed social worker shall be submitted to the court as proof that the biological parent(s) has been properly counseled and provided other support services: 1. to exhaust all measures to strengthen family ties and keep the child; 2. to ensure that their decision to relinquish their child for adoption is not caused by stress, anxiety or pressure; and to ascertain that such decision does not result in improper financial gain for those involved in it. 4) Supporting Documents Of Child Study Report. The child study report shall be prepared only by a licensed and accredited social worker of the Department or child caring agency not involved in child placement. The following documents shall accompany the child report: 1. Authenticated birth or foundling certificate, when appropriate; 2. Written Consent to adoption by the biological parent(s) or the legal guardian and the written consent of the child if at least ten (10) years old, signed in the presence of the social worker of the Department or child caring agency after proper counseling as prescribed in Section III of these Rules; 3. Death Certificate of biological parents, Decree of abandonment or Deed of Voluntary Commitment, as appropriate; 4. Medical evaluation of the child and his/her parent(s), if available; 5. Psychological Evaluation when appropriate; 6. Picture of the child

5) Submission Of Case Records Of Prospective Adoptees and Prospective Adoptive Parents. Case Records of prospective adoptees and prospective adoptive parents shall be submitted to the concerned Adoption Resource and Referral Office (ARRO) which was established according to Section 23 of the Act for matching. 6) Matching. The matching of the child to an approved adoptive parent(s) shall be carried out

9) Consent to Adoption. If the adjustment of the child/adopter(s) is satisfactory, the social worker shall forward to the Department the final supervisory report which shall include the recommendation for the issuance of the written consent to adoption to be executed by the Department.

UP LAW BAROPS 2007 ONE UP LAW


30 of 39

VIII. Adoption
10) Filing Of Petition For Adoption. the prospective adoptive parent(s) shall initiate judicial proceeding by filing the petition to adopt not later than 30 days from date of receipt of the Departments written consent to adoption. Issuance of Decree of Adoption and Entry of Judgement. If, after considering the recommendation and reports of the social worker and other evidence, the Court is satisfied that the adopter(s) are qualified to adopt, then an adoption decree and an Entry of Judgement shall be issued. A copy of the decree of adoption shall be forwarded to the Department. Travel Authority of Adopted Child. No adoptee shall be issued a travel authority unless a decree of adoption has already became final and executory. In this respect, the amended birth certificate shall be presented. If for any valid reason the same cannot be presented, the following is required: a. copy of the decree of adoption and entry of judgement b. a certification from the Office of the Solicitor General that the decision is final and executory and that no appeal there from has been filed by the said office. Recording Of The Court Decision. court decision on adoption and the finality of decision shall be submitted to the following not later that thirty (30) days after the court decision has become final and executory: a. b. Local Civil Registry Office of the City/municipality where the court issuing the same is situated Register of Court Decrees

Persons and Family Relations

IX. SUPPORT
SUPPORT everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family (Art. 194)

Kinds of Support
1. Legal that which is required to be given by law 2. Judicial that which is required to be given by court order whether pendente lite or in a final judgment 3. Voluntary or Conventional by agreement An example of conventional support is as follow. X donates land to Y. However X imposes a mode Y has to support Xs mother.

Characteristics of Support
1. Personal 2. Intransmissible 3. Not subject to waiver or compensation with regard to future support Support in arrears can be waived. 4. Exempt from attachment or execution (Art. 205) 5. Reciprocal on the part of those who are by law bound to support each other (Art. 195) 6. Variable (Arts. 201 and 202)

Who Are Obliged To Support Each Other (Art. 195)


1. The 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; and 5. Legitimate brothers and sisters, whether of full or half-blood.

After which, Local Civil Registry Office shall submit one copy of the court decision to the Local Civil Registrar of the city or municipality where the birth of the adopted child was registered. The latter office shall have the duty to prepare the amended certificate of live birth of the adopted child. Then, a copy of of the new birth certificate shall be transmitted by the local civil registrar to the National Statistics Office within 30 days from registration 11) Post Adoption Services. Post Adoption Services which shall include counseling shall be made available by the social workers of the Department, social services unit of the local government, child placing and child caring agencies to develop the adoptee, adopter and the biological parents.

Order of Support (Art. 199)


1. 2. 3. 4. Spouses Descendants, nearest in degree Ascendants, nearest in degree Brothers and Sisters

RULES: When two or more are obliged to give support, the payment shall be divided between them in proportion to their resources (Art. 200) The amount of support shall be in proportion to the resources or means of the giver and the necessities of the recipient (Art. 201) Support shall be reduced or increased proportionately according to the reduction or increase in the necessities of the recipient

UP LAW BAROPS 2007 ONE UP LAW


31 of 39

IX. Support
and resources of the one giving support (Art. 202) Obligation to give support is demandable from the time the person who has a right to receive needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand (Art. 203) The person obliged to give support has the option to either pay the allowance fixed or receive and maintain in the family dwelling the person who has the right to receive support (Art. 204) The right to receive support and the money or property obtained as support shall not be levied upon on attachment or execution. (Art. 205) When support is given by a stranger without knowledge of the person obliged to give support, the one who paid has the right to be reimbursed, unless it appears that he gave it without intention of being reimbursed (Art. 206) When person obliged to give support unjustly refuses or fails to give support when urgently needed, a third person may furnish support, with a right of reimbursement (Art. 207) In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. (Art. 208) Contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond contemplation of the parties. (Art. 209)

Persons and Family Relations

X. PARENTAL AUTHORITY
Definition
PARENTAL AUTHORITY (Patria Potestas) the mass of rights and obligations which parents have in relation to the person and property of their children until their emancipation, and even after this under certain circumstances. (Manresa) Parental authority under the Family Code includes parental responsibility. It is the right and duty of parents to protect their children, to care for the in sickness and health, and do whatever may be necessary for their care, maintenance, and preservation. Purpose: The physical preservation and development of children, as well as the cultivation of their intellect, and education of their heart and senses. PARENTAL AUTHORITY INCLUDES: 1. the caring for and rearing of children for civic consciousness and efficiency; 2. the development of the moral, mental and physical character and well-being of said children PARENTAL AUTHORITY MAY ONLY BE WAIVED IN CASES OF: 1. adoption, 2. guardianship, 3. commitment of the child in an entity or institution engaged in child care or in a childrens home. Both parents exercise joint authority over their children In case of disagreement, the fathers decision shall prevail, unless there is judicial order TOLENTINO: wifes authority is subordinated, although subsidiary, to that of the father. WHY FATHERS DECISION? Based on tradition. TOLENTINO: If the child is adopted by only one spouse, then he is under the parental authority of such adopter. Illegitimate children are under the parental authority of the mother (Art. 176, FC) WHO EXERCISES AUTHORITY IN CASES OF DEATH, ABSENCE, REMARRIAGE, OR SEPARATION OF PARENTS? In case one parent is absent or already dead, the present parent (Art. 212). Remarriage shall not affect the parental authority over the children. In case of separation of parents, the parent designated by the court. (Art. 213)

UP LAW BAROPS 2007 ONE UP LAW


32 of 39

X. Parental Authority
Innocent spouse gets custody of minor children. (Art 63) The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

Persons and Family Relations


DISTINCTION BETWEEN SUBSTITUTE PARENTAL AUTHORITY AND SPECIAL PARENTAL AUTHORITY:
Substitute Parental Authority It is exercised in case of death, absence, or if unsuitability of parents. Hence, it is not exercised by the parents of parental authority over the minor children. Special Parental Authority It is exercised concurrently with the parental authority of the parents and rest on the theory that while the child is in the custody of the person exercising special parental authority, the parents temporarily relinquish parental authority over the child to the latter

TENDER YEARS PRESUMPTION: NO child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Examples of compelling reasons are: When the mother is insane; with a communicable disease that might endanger the life or health of the child; or is maltreating the child. Prostitution or infidelity to husband does not make a mother unfit as parent. The court may award custody to third persons, if it is in the best interest of the child. In case of death, absence, or unsuitability of both parents, a surviving grandparent shall exercise substitute parental authority. (Art. 214) If there are several grandparents, the one designated by the court (pursuant to considerations in Art. 212, FC) shall exercise substitute parental authority. Only in case of the parents death, absence, or unsuitability may substitute parental authority be exercised by the surviving grandparent.

Rights and Duties Of Parents


RIGHTS OF PARENTS UPON THEIR CHILDREN (ART. 220): 1. To have them in their custody 2. To represent them in all matters affecting their interests 3. Demand respect and obedience and impose discipline on them 4. Administer their property and income to support the child and the family 5. To give or withhold consent on marriage, prenuptial, donation propter nuptias, adoption, and employment 6. To disinherit them for just cause DUTIES OF PARENTS UPON THEIR CHILDREN (ART. 220): 1. support and upbringing in accordance to their means 2. educate, instruct, and provide them with moral and spiritual guidance, and love and understanding 3. defend them against unlawful aggression 4. answer for damages caused by their fault or negligence, and for civil liability for crimes committed by them 5. give their lawful inheritance

Substitute Parental Authority Exercised By (In Order)


The surviving grandparent, as provided in Art. 214 Oldest brother or sister, over 21 years old, unless unfit or unqualified. Childs actual custodian, over 21 years old, unless unfit or unqualified. (Art. 216).

In case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency. (Art. 217)

Rights and Duties of Children


RIGHTS OF CHILDREN (ART.356 CC) 1. parental care 2. receive at least elementary education 3. be given moral and civil training by parents or guardian 4. live in an atmosphere conducive to his physical, moral, and intellectual development (ART.3 PD603) 5. to be born well 6. right to a wholesome family life

Special Parental Authority Exercised By (Art. 218)


1. School, its administrators and teachers, or 2. The individual, entity or institution engaged in child care.

UP LAW BAROPS 2007 ONE UP LAW


33 of 39

X. Parental Authority
7. right to a well-rounded development 8. right to a balanced diet, adequate clothing, shelter, proper medical attention, and all basic physical requirements of a healthy life 9. raised in an atmosphere of morality and rectitude 10.education commensurate to his abilities 11.full opportunities for a safe and wholesome recreation 12.protection against exploitation and other bad influences 13.right to the care, assistance and protection of the State 14.right to an efficient and honest government 15.right to grow up as a free individual DUTIES OF CHILDREN (ART.357 CC) 1. obey and honor his parents or guardian 2. respect old relatives and persons holding substitute parental authority 3. exert his utmost for his education and training 4. cooperate with the family in matters for his own good (ART.4 PD603) 5. strive to live an upright and virtuous life 6. love, obey, respect his parents and cooperate with them in strengthening the family 7. extend his love to his brothers and sisters 8. exert his utmost to develop his potentials 9. respect elders, our customs and traditions, the memory of our heroes, duly constituted authorities, the law, and principles of democracy 10.participate actively in civic affairs for his development 11.help in observance of human rights, strengthen freedom everywhere, and world peace DUTIES OF CHILDREN TOWARDS PARENTS (UNDER FAMILY CODE): THEIR

Persons and Family Relations


If the market value of the property or the annual income of the child exceeds P50,000, the parent is required to furnish a bond of not less than 10% of the value of the childs property or income

Grounds for Suspension Authority (Art. 231)

of

Parental

1. Conviction of parent for crime without civil interdiction 2. Treats child with excessive harassment and cruelty 3. Gives corrupting orders, counsel or example 4. Compels child to beg 5. Subjects or allows acts of lasciviousness

Termination of Parental Authority (Art. 228)


1. Death of parents 2. Death of child 3. Emancipation of child If the parents exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, he shall be permanently deprived of parental authority.

1. to always observe and respect reverence toward their parents 2. to obey their parents as long as they are under their parental authority. Other responsibilities of children may be found in Art 4. of PD 603 (Child and Youth Welfare Code) TOLENTINO: The duty to honor the parents does not mean that children are to be deprived of the exercise of any right or prevented from fulfilling any legal, moral, or social obligation.

Effect of Parental Authority Upon the Property of the Child (Art. 225)
The Father and Mother shall jointly exercise legal guardianship over the property of the minor child without court appointment In case of disagreement, the fathers decision shall prevail, unless there is judicial order to the contrary

UP LAW BAROPS 2007 ONE UP LAW


34 of 39

special thanks to:


Office of the College Secretary UP College of Law UP Law Center UP College of Law Library UP Law BarOps 2006
Review Committee

Subject Committee [Subject]

Information Management Committee

I I I

Armi Bayot [head] . Keisie Marfil . Paulyne Regalado Theresa Roldan . Lem Arenas Chino Baybay . Tristan Tresvalles . Al Siason