PERSONS & FAMILY RELATIONS – 1ST EXAM
“Unless It Is Otherwise Provided” Clause
Xandredg Sumpt L. Latog
I not render the law effective. In Tañada v. Tuvera, where the clause
EFFECT AND APPLICATION OF LAWS
A. EFFECTIVITY OF LAWS
Article 2.  Laws shall take effect after fifteen days following
the completion of their publication either in the Official Gazette or in a
newspaper of general circulation in the Philippines, unless it is
otherwise provided.
1. Publication
When a statute does not explicitly provide for its
effectivity, it shall have effect only after the expiration of the
fifteen-day period following the completion of its publication either
in the Official Gazette or in a newspaper of general circulation in
the Philippines. The publication and the fifteen-day period
requirements are intended to enable the people to become familiar
with the statute. They are necessary requisites and no one shall be
charged with notice of the statute’s provision until the said
publication is completed and the fifteen-day period has expired.
Publication must be in full or it is not publication at all since its
purpose is to inform the public of its contents [Tanada v. Tuvera].
Covered by this rule are presidential decrees and
executive orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by the
legislature, or, at present, directly conferred by the Constitution.
Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant also to a
valid delegation.
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued
by the administrative superiors concerning rules or guidelines to be
followed by their subordinates in the performance of their duties.
Accordingly, even the charter of a city must be published
notwithstanding that it applies to only a portion of the national
territory and directly affects only the inhabitants of that place. All
presidential decrees must be published, including even say, those
naming a public place after a favored individual or exempting him
from certain prohibitions or requirements. The circulars issued by
the Monetary Board must be published if they are meant not
merely to interpret but to “fill in the details” of the Central Bank
Act which that body is supposed to enforce.
However, no publication is required of the instructions
issued by, say, the Minister of Social Welfare on the case studies to
be made in the petitions for adoptions or the rules laid down by the
head of a government agency on the assignments or workload of
his personnel or the wearing of office uniforms. Parenthetically,
municipal ordinances are not covered by this rule but by the Local
Government Code [Tanada v. Tuvera].
Villafuerte v. Cordial, Jr.
Held: In the instant case, what was being assailed is Resolution
No. 13-2013, which provides for the rules of procedure concerning the
conduct of investigation against municipal officials in said province, issued
by the Sangguniang Panlalawigan of Camarines Sur. Clearly, it is neither
penal in nature as it does not provide for any sanction or punishment nor a
tax measure. It is merely interpretative of Title II, Chapter 4 of the LGC,
which outlines the procedure when a disciplinary action is instituted against
an elective local official. Based on the foregoing, Resolution No. 13-2013
need not be published.
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2.
The clause “unless it is otherwise provided” solely refers
to the fifteen-day period and not to the requirement of publication.
Publication is an indispensable requisite the absence of which will
“unless it is otherwise provided” contained in Article 2 of the Civil
Code was interpreted by the Supreme Court, it was stated that:
it is not correct to say that under the disputed clause,
publication may be dispensed with altogether. The reason is that
such omission would offend due process insofar as it would
deny the public of the laws that are supposed to govern it.
Surely, if the legislature could validly provide that a law shall
become effective immediately upon its approval
notwithstanding the lack of publication or after an unreasonable
short period after its publication, it is not unlikely that persons
not aware of it would be prejudiced as a result; and they would
be so not because of a failure to comply with it but simply
because they did not know of its existence. Significantly, this is
not true only of penal laws as is commonly supposed. One can
think of many non-penal measures, like a law on prescription,
which must also be communicated to the persons they may
affect before they can begin to operate.
If the law provides for a different period shorter or longer
than the fifteen-day period provided by Section 1 of Executive
Order No. 200, then such shorter or longer period, as the case may
be, will prevail. If the law provides that it shall take effect
immediately, it means that it shall take effect immediately after
publication with the fifteen-day period being dispensed with.
3. All Laws
Section 1 of Executive Order No. 200 uses the word
“laws.” Hence, the effectivity provision refers to all statutes,
including those local and private laws [Tañada v. Tuvera], unless
there are special laws providing a different effectivity mechanism
for particular statutes.
Supreme Court Decisions
There is no law requiring the publication of the SC
decisions in the OG before they can be binding and as a condition
to their becoming effective. It is the duty of lawyer in active law
practice to keep abreast of decisions [De Roy v. Court of Appeals].
Article 8 of the Civil Code itself states that judicial decisions
applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines.
B. IGNORANCE OF THE LAW
Article 3. Ignorance of the law excuses no one from
compliance therewith. (2)
The legal precept that “ignorance of the law excuses no
one from compliance therewith” is founded not only on expediency
and policy but on necessity [Zulueta v. Zulueta]. That every person
knows the law is a conclusive presumption [Tanada v. Tuvera].
When a law is passed by Congress, duly approved by the
President of the Philippines, properly published, and consequently
becomes effective pursuant to its effectivity clause or to some
provision of a general law on the effectivity of statutes, the public
is always put on constructive notice of the law’s existence and
effectivity. This is true even if a person has no actual knowledge of
such law. To allow a party to set up as a valid defense the fact that
he has no actual knowledge of a law which he has violated is to
foment disorder in society. However, Article 3 applies only to
mandatory and prohibitory laws [Consunji v. Court of Appeals].
Article 3 is a necessary consequence of the mandatory
provision that all laws must be published. Without such notice and
publication, there will be no basis for the application of the maxim
“ignorantia legis non excusat.’’ It would be the height of injustice
to punish or otherwise burden a citizen for the transgression of a
law of which he had no notice whatsoever, not even a constructive
one [Tanada v. Tuvera].
Question of Law vs. Question of Fact
A question of law arises when there is doubt as to what
the law is on a certain state of facts, while there is a question of fact
when the doubt arises as to the truth or falsity of the alleged facts.
For a question to be one of law, the question must not involve an
examination of the probative value of the evidence presented by the
litigants or any one of them. The resolution of the issue must rest
solely on what the law provides on the given set of circumstances
[Caranto v. Caranto].
1. Application to Domestic Laws only
This rule applies to all domestic laws whether penal,
civil, substantive, or procedural. It does not apply to ignorance of
foreign laws because our courts do not take judicial notice of them.
Ignorantia legis neminem excusat.
2. Processual Presumption/Presumed Identity
Approach
A foreign law is a matter of fact which must be proven
with evidence. In the absence of any contrary evidence, it is
presumed to be the same as our domestic law [Miciano v. Brimo].
The party who claims the applicability of foreign law has
the burden of proof and where said party has failed to discharge the
burden, Philippine law applies [Laureano v. Court of Appeals].
C. NON-RETROACTIVE EFFECT OF LAWS
Article 4. Laws shall have no retroactive effect, unless the
contrary is provided. (3)
1. General Rule
Laws have no retroactive effect, unless the contrary is
provided, for it is said that the law looks to the future and has no
retroactive effect unless the legislature may have given that effect
to some legal provisions, and that statutes are to be construed as
having only prospective operation, unless the purpose and intention
of the legislature to give them a retrospective effect is expressly
declared or is necessarily implied from the language used, and that,
in case of doubt, the same must be resolved against the
retrospective effect [Buyco v. PNB].
Thus, in Carolino v. Senga, the Court held that Carolina
is deemed to have acquired vested rights over the payment of
benefits and such is protected by the due process clause. Since PD
1638, which provides the loss of citizenship will mean loss of
benefits, does not provide for retroactive effect, the same cannot be
vested rights, such as that of Carolino. Vested rights include not
only legal or equitable title to the enforcement of a demand but also
an exemption from new obligations after the right has vested.
2. Exceptions
Well-settled is the principle that while the legislature has
the power to pass retroactive laws which do not impair the
obligation of contracts, or affect injuriously vested rights, it is
equally true that statutes are not to be construed as intended to have
a retroactive effect so as to affect the pending proceedings, unless
such intent is expressly declared or clearly and necessarily implied
from the language of the enactment [Espiritu v. Cipriano].
The following are instances when a law may be given
retroactive effect:
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a. When the law expressly provides for retroactivity.
Thus, the Family Code of the Philippines which
became effective on August 3, 1988 specially
provides in Article 256 thereof that the said code
“shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.”
b. When the law is curative or remedial. Since curative
laws are not within constitutional inhibitions or
retrospective legislation impairing the obligation of
contracts or disturbing vested rights, statutes of a
curative nature which are necessarily retrospective
must be given a retrospective operation by the
courts The legislature has power to pass healing acts
which do not impair the obligations of contracts nor
interfere with vested rights. They are remedial by
curing defects and adding to the means of enforcing
existing obligations. The rule in regard to curative
statutes is that if the thing omitted or failed to be
done, and which constitutes the defect sought to be
removed or make harmless, is something which the
legislature might have dispensed with by previous
statutes, it may do so by subsequent ones. If the
irregularity consists in doing some act, or doing it in
the mode which the legislature might have made
immaterial by an express law, it may do so by a
subsequent one [Government v. Municipality of
Binalonan].
c. When the law is procedural. When a statute deals
with procedure only, prima facie, it applies to all
actions — those which have accrued or pending and
future actions. Thus, a law prescribing the form of
pleadings will apply to all pleadings fi led after its
enactment, although the action is begun before that
time (25 RCL 791). Also, it has been held that while
changes in substantive law or Supreme Court
judicial doctrines interpreting the application of a
particular law may not be applied retroactively,
especially when prejudice will result to the party
that has followed the earlier law or judicial doctrine
[People v. Licera], that principle does not obtain in
remedial or procedural law [People v. Sumilang].
Atienza v. Brillantes
Held: Respondent argues that Article 40 (judicial declaration of
nullity of previous marriage) under the Family Code does not apply to him
considering that his first marriage took place in 1965. This is untenable.
Article 40 is applicable to marriages entered into after the effectivity of the
Family Code regardless of the date of the first marriage. Besides, Article
256 provides “retroactive effect insofar as it does not prejudice or impair
vested rights” this is particularly true as Article 40 is a rule of procedure
and respondent has not shown any vested right that was impaired by the
application of Article 40 to his case.
Carlos v. Sandoval
Held: A petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or wife. Exceptions: (1)
Nullity of marriage cases commenced before the effectivity of A.M. No.
02-11-10-SC; and (2) Marriages celebrated during the effectivity of the
Civil Code.
Under the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages, the petition for
declaration of absolute nullity of marriage may not be filed by any party
outside of the marriage. The Rule made it exclusively a right of the spouses
by stating:
SEC. 2. Petition for declaration of absolute nullity of void
marriages. -
 (a) Who may file. - A petition for declaration of absolute nullity
of void marriage may be filed solely by the husband or the wife.
(Underscoring supplied)
Section 2(a) of the Rule makes it the sole right of the husband or
the wife to file a petition for declaration of absolute nullity of void
marriage. The rationale of the Rule is enlightening, viz.:
Only an aggrieved or injured spouse may file a petition
for annulment of voidable marriages or declaration of absolute nullity of
void marriages. Such petition cannot be filed by compulsory or intestate
heirs of the spouses or by the State. The Committee is of the belief that they
do not have a legal right to file the petition. Compulsory or intestate heirs
have only inchoate rights prior to the death of their predecessor, and, hence,
can only question the validity of the marriage of the spouses upon the death
of a spouse in a proceeding for the settlement of the estate of the deceased
spouse filed in the regular courts. On the other hand, the concern of the
State is to preserve marriage and not to seek its dissolution. (Underscoring
supplied)
The new Rule recognizes that the husband and the wife are the
sole architects of a healthy, loving, peaceful marriage. They are the only
ones who can decide when and how to build the foundations of marriage.
The spouses alone are the engineers of their marital life. They are
simultaneously the directors and actors of their matrimonial true-to-life
play. Hence, they alone can and should decide when to take a cut, but only
in accordance with the grounds allowed by law.
The innovation incorporated in A.M. No. 02-11-10-SC sets forth
a demarcation line between marriages covered by the Family Code and
those solemnized under the Civil Code. The Rule extends only to marriages
entered into during the effectivity of the Family Code which took effect on
August 3, 1988.
The advent of the Rule on Declaration of Absolute Nullity of
Void Marriages marks the beginning of the end of the right of the heirs of
the deceased spouse to bring a nullity of marriage case against the surviving
spouse. But the Rule never intended to deprive the compulsory or intestate
heirs of their successional rights.
While A.M. No. 02-11-10-SC declares that a petition for
declaration of absolute nullity of marriage may be filed solely by the
husband or the wife, it does not mean that the compulsory or intestate heirs
are without any recourse under the law. They can still protect their
successional right, for, as stated in the Rationale of the Rules on Annulment
of Voidable Marriages and Declaration of Absolute Nullity of Void
Marriages, compulsory or intestate heirs can still question the validity of
the marriage of the spouses, not in a proceeding for declaration of nullity
but upon the death of a spouse in a proceeding for the settlement of the
estate of the deceased spouse filed in the regular courts.
It is emphasized, however, that the Rule does not apply to cases
already commenced before March 15, 2003 although the marriage involved
is within the coverage of the Family Code. This is so, as the new Rule
which became effective on March 15, 2003 is prospective in its application.
Thus, the Court held in Enrico v. Heirs of Sps. Medinaceli, viz.:
As has been emphasized, A.M. No. 02-11-10-SC covers
marriages under the Family Code of the Philippines, and is prospective in
its application. (Underscoring supplied)
Petitioner commenced the nullity of marriage case against
respondent Felicidad in 1995. The marriage in controversy was celebrated
on May 14, 1962. Which law would govern depends upon when the
marriage took place.
d. When the law is penal in character and favorable to
the accused. Article 22 of the Revised Penal Code
specifically provides that penal laws shall have
retroactive effect insofar as they favor the person
guilty of a felony, who is not a habitual criminal,
although at the time of the publication of such laws
a fi nal sentence has been pronounced and the
convict is serving the same. Article 62 of the
Revised Penal Code provides that a person shall be
deemed a habitual delinquent, if within a period of
ten years from the date of his release or last
conviction of the crime of serious or less serious
physical injuries, Robo, Hurto, Estafa, or
falsification, he is found guilty of any said crimes a
third time or oftener.
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e. Emergency laws intended to meet exigencies which
require immediate action.
f. Tax laws.
g. Laws creation new rights or grant right for the first
time. An example is the rule involving recognition
of illegitimate children.
D. MANDATORY AND PROHIBITORY LAWS
Article 5. Acts executed against the provisions of mandatory
or prohibitory laws shall be void, except when the law itself authorizes
their validity. (4a)
A mandatory provision of law is one the omission of
which renders the proceeding or acts to which it relates generally
illegal or void. Thus, prescriptive periods provided by the law for fi
ling particular suits are mandatory in character. For instance, the
Family Code provides, among others, that the husband, in order to
impugn the legitimacy of a child, must fi le a case within one year
from the knowledge of the birth of the child or its recording in the
civil register, if he should live within the same municipality where
the birth took place or was recorded. Should the husband file the
case beyond the one-year period, such case will be dismissed.
Prohibitory laws are those which contain positive
prohibitions and are couched in the negative terms importing that
the act required shall not be done otherwise than designated
[Brehm v. Republic]. Acts committed in violation of prohibitory
laws are likewise void. Hence, under the Family Code, it is
specifically provided that “No decree of legal separation shall be
based upon a stipulation of facts or a confession of judgment.”
However, if the law expressly provides for the validity of
acts committed in violation of a mandatory or prohibitory provision
of a statute, such act shall be considered valid and enforceable:
a. Article 41, Family Code. – remarriage by a person
whose spouse is declared absent (for purposes of
remarriage) under well-founded belief that the
absent spouse was already dead after summary
proceeding.
b. Invalidity on the decision of the injured party - such
as those invalidity rests on the aggrieved party like
in (a) voidable contracts; or (b) voidable marriages,
where right of action is granted to the aggrieved
party.
c. Invalidating act but recognizing legal effects – the
children of the following void marriages deemed to
be legitimate children a. Article 36 – marriages void
by reason of psychological incapacity; b. Article 54
– void marriages due to failure to comply with
partition, distribution of properties, delivery of
presumptive legitimes and recording thereof
d. Punishing act criminally but contract valid – in case
when the marriage by the widow was made during
the 300 days after the death of the first husband.
E. WAIVER OF RIGHTS
Article 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or good customs,
or prejudicial to a third person with a right recognized by law. (4a)
Waiver is the intentional relinquishment of a known right
[Castro v. Del Rosario]. Waivers are not presumed, but must be
clearly and convincingly shown, either by express stipulation or
acts admitting no other reasonable explanation [Arrieta v. National
Rice and Corn Corporation]. It is essential that a right, in order that
it may be validly waived, must be in existence at the time of the
waiver [Ereneta v. Bezore] and it must be exercised by a duly
capacitated person actually possessing the right to make the waiver.
The following are the requisites of a valid waiver:
a. The waiving party must actually have the right he is
renouncing or must be in Existence at time of
waiver;
b. He must have full Capacity to make the waiver;
c. The waiver must be clear and Unequivocal;
d. The waiver must Not be contrary to law, public
order, morals, or good customs or prejudicial to
third person.
e. Observance of Formalities when required (e.g.
express condonation of debt)
In Famanila v. Court of Appeals, it was held that
permanent and total disability did not amount to a vitiation of his
consent to Receipt and Release (waiver). It is not one of the
grounds that vitiates consent. And even if it was, it does not render
it void it is just voidable. This involved the quitclaim executed by
Mr. Famanila who suffered aneurysm and was paid by the
Shipping Agency.
In Otomias v. Republic, the right to receive retirement
benefits belong to Colonel Otamias and his decision to waive a
portion thereof does not infringe on the right of third persons, but
even protects the right of his family to receive support. It was in
accordance with the provisions of Support in the Family Code.
F. REPEAL
Article 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
When the courts declared a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or the
Constitution. (5a)
Repeal of a law is the legislative act of abrogating
through a subsequent law the effects of a previous statute or
portions thereof. Repeal is either express or implied. An implied
repeal takes place when a new law contains provisions contrary to
or inconsistent with those of a former without expressly repealing
them (25 RCL 911). Repeals and amendments by implications are
not favored [Quimsing v. Lachica].
An express repeal is a repeal which is literally declared
by a new law, either in specifi c terms, as where particular laws and
provisions are named and identifi ed and declared to be repealed, or
in general terms, as where a provision in a new law declares all
laws and parts of laws inconsistent therewith to be repealed.
Revival of Repealed Law
If the first law is expressly repealed by second law, the
repeal of the second law does not revive the first law unless
expressly provided.
If the first is impliedly repealed by the second law, then
the repeal of the second law will revive the first law unless contrary
provided.
G. JUDICIAL CONSTRUCTION AND INTERPRETATION
Article 8. Judicial decisions applying or interpreting the laws
or the Constitution shall form a part of the legal system of the
Philippines. (n)
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Judicial decisions applying and interpreting the law shall
form part of the legal system of the Philippines. In effect, judicial
decisions, although in themselves not laws, assume the same
authority as the statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the
criteria which must control the actuations not only of those called
upon to abide thereby but also those duty bound to enforce
obedience thereto [Caltex v. Palomar].
The application and interpretation placed by the
[Supreme] Court upon a law is part of the law as of the date of the
enactment of the said law since the [Supreme] Court’s application
and interpretation merely established the contemporaneous
legislative intent that the construed law purports to carry into effect
[People v. Licera].
However, in People v. Jabinal, the Supreme Court held
that: when a doctrine of this Court is overruled and a different view
is adopted, the new doctrine should be applied prospectively, and
should not apply to parties who had relied on the old doctrine and
acted on the faith thereof. This is especially true in the construction
and application of criminal laws, where it is necessary that the
punishability of an act be reasonably foreseen for the guidance of
society.
Thus, in the Jabinal case, where the accused was
conferred his appointment as a secret confidential agent and
authorized to possess a firearm in 1964 pursuant to a prevailing
doctrine enunciated by the Supreme Court in two previous cases,
under which no criminal liability attached in connection with the
possession of said fi rearm in spite of the absence of a permit, the
Supreme Court ruled that said accused should be absolved of the
crime charged. This is so even if the said two decisions were
subsequently reversed by the Supreme Court in 1967. The doctrine
laid down in 1967 should be prospectively applied and should not
prejudice persons who relied on the overturned doctrines while the
same were still controlling. Thus, in People v. Licera, it has
likewise been held that where a new doctrine abrogates an old rule,
the new doctrine should operate prospectively only and should not
adversely affect those favored by the old rule, especially those who
relied thereon and acted on the faith thereof.
Decisions of the Court of Appeals and Lower Courts
As a rule, the Court of Appeals and lower court decisions
do not attain the status of doctrine. However, in Miranda v.
Imperial, the court ruled that the CA decision can be a doctrine if:
(a) The appellate court has decided for the first time on a very
novel issue not decided by the SC; and (b) The SC affirmed such
decision.
H. DUTY OF JUDGES
Article 9. No judge or court shall decline to render judgment
by reason of the silence, obscurity or insufficiency of the laws. (6)
Judges are tasked with the dispensation of justice in
accordance with the constitutional precept that no person shall be
deprived of life, liberty, and property without due process of law.
Judges must not evade performance of this responsibility just
because of an apparent non-existence of any law governing a
particular legal dispute or because the law involved is vague or
inadequate. He must always be guided by equity, fairness, and a
sense of justice in these situations. Where the conclusions of a
judge in his decision are not without logic or reason, he cannot be
said to have been incompetent [Corpus v. Cabaluna].
In case of silence, obscurity or insufficiency of the laws,
the courts may make use of
a. Customs of the place;
 b. General principles of the law;
c. Decisions of foreign courts;
d. Opinions of known authors (amicus curiae);
e. Statutory constructive and legal hermeneutics.
Article 9 is, however, not a license for the courts to
engage in judicial legislation. The duty of the courts is to apply and
interpret the law and not to make or amend it. It is for the
legislature, to determine what guidelines should govern the
recognition of the effect of the sex reassignment. The Court cannot
enact a law where no law exists. It can only apply or interpret the
written word of its co-equal branch of government, Congress
[Silverio v. Republic].
I. DOUBTFUL STATUTES
Article 10. In case of doubt in the interpretation or
application of laws, it is presumed that the lawmaking body intended
right and justice to prevail. (n)
J. CUSTOMS
Article 11. Customs which are contrary to law, public order
or public policy shall not be countenanced. (n)
Article 12. A custom must be proved as a fact, according to
the rules of evidence. (n)
The habits and customs of a people, the dogmas and
doctrines of a religion cannot be superior to or have precedence
over laws relating to public policy, because as stated above laws
relating to marriage and its incidents are normal in nature and as
such they affect public policy. This holds true even up to this time.
customs and traditions cannot supplant existing laws unless
specifically provided under said laws. Under the Civil Code, a
subsisting marriage may be dissolved only by death of either
spouse or when the marriage is annulled or declared void. True,
Article 78 of the old Civil Code recognizes the validity of
marriages performed in accordance with the couple's customs,
rites, or practices, but this recognition is limited to the
solemnization of marriage and does not extend to its dissolution
[Anaban v. Anaban-Alfiler].
Even if we are to assume that the constitutional and
statutory right to cultural integrity includes recognition of
indigenous divorce or any other form of indigenous dissolution of
marriages, the record is bereft of evidence that: (i) the culture of
the Ibaloi recognizes divorce or any other form of dissolution of
marriage; (ii) this recognition is a central aspect of their cultural
integrity and not merely peripheral to it; (iii) this recognition has
been a central cultural practice since time immemorial and lasted to
this day in its modern forms; and (iv) the contents of and
procedures for this central cultural practice, if any. Thus, Pedrito's
purported divorce from Virginia cannot be legally recognized. It
follows, therefore, that Pedrito's marriage to Pepang was bigamous,
hence, void. In the eyes of the law, his marriage to Virginia
subsisted [Ibid].
K. LEGAL PERIODS
Article 13. When the laws speak of years, months, days or
nights, it shall be understood that years are of three hundred sixty-five
days each; months, of thirty days; days, of twenty-four hours; and
nights from sunset to sunrise.
If months are designated by their name, they shall be
computed by the number of days which they respectively have.
In computing a period, the first day shall be excluded, and
the last day included. (7a)
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L. TERRITORIALITY PRINCIPLE
Article 14. Penal laws and those of public security and safety
shall be obligatory upon all who live or sojourn in the Philippine
territory, subject to the principles of public international law and to
treaty stipulations. (8a)
Citizens and foreigners are subject to all penal laws and
all other laws designed to maintain public security and safety. The
liability for any violation of the said laws will even attach
regardless of whether or not a foreigner is merely sojourning in
Philippine territory.
Article 2 of the Revised Penal Code enumerates when
crimes even if committed outside Philippine territory are under its
jurisdiction, namely person who:
a. Should commit an offense while on a Philippine
ship or airship;
b. Should forge or counterfeit any coin or currency
note of the Philippine Islands or obligations and
securities issued by the Government of the
Philippine Islands;
c. Should be liable for acts connected with the
introduction into these islands of the obligations
and securities mentioned in the preceding number;
d. While being public officers or employees, should
commit an offense in the exercise of their
functions; or
e. Should commit any of the crimes against national
security and the law of nations, defined in Title One
of Book Two of this Code.
Thus, even if the laws of Netherlands neither enforce a
parent’s obligation to support his child nor penalize
noncompliance, such obligation is still duly enforceable in the
Philippines because it would be of great injustice to the child to be
denied of financial support when entitled thereto. He may be made
liable RA 9262 for unjustly refusing or failing to give support to
his son. Considering he living in Philippines, the territoriality
principle applies [Socorro v. Wilsem].
M. CONFLICT OF LAWS
1. Lex Nationali
Article 15. Laws relating to family rights and duties, or to
the status, condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad. (9a)
Regardless of where a citizen of the Philippines might be,
he or she will be governed by Philippine laws with respect to his or
her family rights and duties, or to his or her status, condition and
legal capacity.
The capacity to enter into an ordinary contract is
governed by the national law of the person, and not by the law of
the place where the contract was entered into (lex loci
celebrationis).
Orion Savings Bank v. Suzuki
Held: Property relations between spouses are governed
principally by the national law of the spouses. However, the party invoking
the application of a foreign law has the burden of proof as the foreign law is
a question of fact to be pleaded and proven as the judge cannot take judicial
notice of a foreign law. Orion, unfortunately failed to prove South Korean
law on the conjugal ownership of property. It merely attached a
“Certification from the Embassy of the Republic of Korea” to prove
existence of Korean Law, it does not comply with Rule 132. Thus, doctrine is the judgment itself.31 The decree purports to be a written act or record of
of processual presumption applies. Under PH Law, the phrase “Kang an act of an officially body or tribunal of a foreign country.32
married to Hyun Sook Jung” is merely descriptive of the civil status of Under Sections 24 and 25 of Rule 132, on the other hand, a
Kang. In other words, import from the certificates of title is that Kang is the writing or document may be proven as a public or official record of a
owner of properties are registered in his name alone, and that he is married foreign country by either (1) an official publication or (2) a copy thereof
to Hyun Sook Jung. attested33 by the officer having legal custody of the document. If the record
is not kept in the Philippines, such copy must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in the
Van Dorn v. Romillo
Philippine foreign service stationed in the foreign country in which the
Held: It is true that owing to the nationality principle embodied
record is kept and (b) authenticated by the seal of his office.34
in Article 15 of the Civil Code, only Philippine nationals are covered by the
The divorce decree between respondent and Editha Samson
policy against absolute divorces the same being considered contrary to our
appears to be an authentic one issued by an Australian family
concept of public police and morality. However, aliens may obtain divorces
court.35 However, appearance is not sufficient; compliance with the
abroad, which may be recognized in the Philippines, provided they are valid
aforemetioned rules on evidence must be demonstrated.
according to their national law. 6 In this case, the divorce in Nevada
Fortunately for respondent's cause, when the divorce decree of
released private respondent from the marriage from the standards of
May 18, 1989 was submitted in evidence, counsel for petitioner objected,
American law, under which divorce dissolves the marriage. As stated by
not to its admissibility, but only to the fact that it had not been registered in
the Federal Supreme Court of the United States in Atherton vs. Atherton, 45
the Local Civil Registry of Cabanatuan City. 36 The trial court ruled that it
L. Ed. 794, 799:
was admissible, subject to petitioner's qualification. 37 Hence, it was
The purpose and effect of a decree of divorce from the bond of
admitted in evidence and accorded weight by the judge. Indeed, petitioner's
matrimony by a court of competent jurisdiction are to change the existing
failure to object properly rendered the divorce decree admissible as a
status or domestic relation of husband and wife, and to free them both from
written act of the Family Court of Sydney, Australia.38
the bond. The marriage tie when thus severed as to one party, ceases to bind
Compliance with the quoted articles (11, 13 and 52) of the
either. A husband without a wife, or a wife without a husband, is unknown
Family Code is not necessary; respondent was no longer bound by
to the law. When the law provides, in the nature of a penalty. that the guilty
Philippine personal laws after he acquired Australian citizenship in
party shall not marry again, that party, as well as the other, is still
1992.39 Naturalization is the legal act of adopting an alien and clothing him
absolutely freed from the bond of the former marriage.
with the political and civil rights belonging to a citizen. 40 Naturalized
Thus, pursuant to his national law, private respondent is no
citizens, freed from the protective cloak of their former states, don the
longer the husband of petitioner. He would have no standing to sue in the
attires of their adoptive countries. By becoming an Australian, respondent
case below as petitioner's husband entitled to exercise control over conjugal
severed his allegiance to the Philippines and the vinculum juris that had tied
assets. As he is bound by the Decision of his own country's Court, which
him to Philippine personal laws.
validly exercised jurisdiction over him, and whose decision he does not
Burden of Proving Australian Law
repudiate, he is estopped by his own representation before said Court from
Respondent contends that the burden to prove Australian
asserting his right over the alleged conjugal property.
divorce law falls upon petitioner, because she is the party challenging the
To maintain, as private respondent does, that, under our laws,
validity of a foreign judgment. He contends that petitioner was satisfied
petitioner has to be considered still married to private respondent and still
with the original of the divorce decree and was cognizant of the marital
subject to a wife's obligations under Article 109, et. seq. of the Civil Code
laws of Australia, because she had lived and worked in that country for
cannot be just. Petitioner should not be obliged to live together with,
quite a long time. Besides, the Australian divorce law is allegedly known
observe respect and fidelity, and render support to private respondent. The
by Philippine courts: thus, judges may take judicial notice of foreign laws
latter should not continue to be one of her heirs with possible rights to
in the exercise of sound discretion.
conjugal property. She should not be discriminated against in her own
We are not persuaded. The burden of proof lies with "the party
country if the ends of justice are to be served.
who alleges the existence of a fact or thing necessary in the prosecution or
defense of an action."41 In civil cases, plaintiffs have the burden of proving
Recio v. Recio the material allegations of the complaint when those are denied by the
Held: Petitioner insists that before a divorce decree can be answer; and defendants have the burden of proving the material allegations
admitted in evidence, it must first comply with the registration requirements in their answer when they introduce new matters. 42 Since the divorce was a
under Articles 11, 13 and 52 of the Family Code. These articles read as defense raised by respondent, the burden of proving the pertinent Australian
follows: law validating it falls squarely upon him.
"ART. 11. Where a marriage license is required, each of the It is well-settled in our jurisdiction that our courts cannot take
contracting parties shall file separately a sworn application for such license judicial notice of foreign laws.43 Like any other facts, they must be alleged
with the proper local civil registrar which shall specify the following: and proved. Australian marital laws are not among those matters that judges
x x x     x x x     x x x are supposed to know by reason of their judicial function. 44 The power of
"(5) If previously married, how, when and where the previous judicial notice must be exercised with caution, and every reasonable doubt
marriage was dissolved or annulled; upon the subject should be resolved in the negative.
x x x      x x x      x x x
"ART. 13. In case either of the contracting parties has been
Perez v. Court of Appeals
previously married, the applicant shall be required to furnish, instead of the
Held: Petitioner claims that her status as the wife and
birth of baptismal certificate required in the last preceding article, the death
companion of Tristan for 17 years vests her with the requisite legal interest
certificate of the deceased spouse or the judicial decree of annulment or
required of a would-be intervenor under the Rules of Court.
declaration of nullity of his or her previous marriage. x x x.
Petitioner’s claim lacks merit. Under the law, petitioner was
"ART. 52. The judgment of annulment or of absolute nullity of
never the legal wife of Tristan, hence her claim of legal interest has no
the marriage, the partition and distribution of the properties of the spouses,
basis.
and the delivery of the children's presumptive legitimes shall be recorded in
When petitioner and Tristan married on July 14, 1984, Tristan
the appropriate civil registry and registries of property; otherwise, the same
was still lawfully married to Lily. The divorce decree that Tristan and Lily
shall not affect their persons."
obtained from the Dominican Republic never dissolved the marriage bond
Respondent, on the other hand, argues that the Australian
between them. It is basic that laws relating to family rights and duties, or to
divorce decree is a public document – a written official act of an Australian
the status, condition and legal capacity of persons are binding upon citizens
family court. Therefore, it requires no further proof of its authenticity and
of the Philippines, even though living abroad.19 Regardless of where a
due execution.
citizen of the Philippines might be, he or she will be governed by Philippine
Respondent is getting ahead of himself. Before a foreign
laws with respect to his or her family rights and duties, or to his or her
judgment is given presumptive evidentiary value, the document must first
status, condition and legal capacity. Hence, if a Filipino regardless of
be presented and admitted in evidence.30 A divorce obtained abroad is
whether he or she was married here or abroad, initiates a petition abroad to
proven by the divorce decree itself. Indeed the best evidence of a judgment
obtain an absolute divorce from spouse and eventually becomes successful

Page 6 of 75
in getting an absolute divorce decree, the Philippines will not recognize
such absolute divorce.20
When Tristan and Lily married on May 18, 1968, their marriage
was governed by the provisions of the Civil Code21 which took effect on
August 30, 1950. In the case of Tenchavez v. Escano22 we held:
(1) That a foreign divorce between Filipino citizens, sought and
decreed after the effectivity of the present Civil Code (Rep. Act No. 386), is
not entitled to recognition as valid in this jurisdiction; and neither is the
marriage contracted with another party by the divorced consort,
subsequently to the foreign decree of divorce, entitled to validity in the
country. (Emphasis added)
Thus, petitioner’s claim that she is the wife of Tristan even if
their marriage was celebrated abroad lacks merit. Thus, petitioner never
acquired the legal interest as a wife upon which her motion for intervention
is based.
California which purportedly show that their marriage was done in
accordance with the said law. As stated in Garcia, however, the Court
cannot take judicial notice of foreign laws as they must be alleged and
proved. 
Therefore, this case should be remanded to the trial court for
further reception of evidence on the divorce decree obtained by Merry Lee
and the marriage of respondent and Felicisimo.
Lavadia v. Heirs of Luna
Held: Divorce between Filipinos is void and ineffectual under
the nationality rule adopted by Philippine law. Hence, any settlement of
property between the parties of the first marriage involving Filipinos
submitted as an incident of a divorce obtained in a foreign country lacks
competent judicial approval, and cannot be enforceable against the assets of
the husband who contracts a subsequent marriage.

San Luis v. San Luis

Noveras v. Noveras
Held: Petitioners cite Articles 15 and 17 of the Civil Code in
Held: The starting point in any recognition of a foreign divorce
stating that the divorce is void under Philippine law insofar as Filipinos are
judgment is the acknowledgment that our courts do not take judicial notice
concerned. However, in light of this Court’s rulings in the cases discussed
of foreign judgments and laws. Justice Herrera explained that, as a rule, "no
above, the Filipino spouse should not be discriminated against in his own
sovereign is bound to give effect within its dominion to a judgment
country if the ends of justice are to be served. In Alonzo v. Intermediate
rendered by a tribunal of another country." This means that the foreign
Appellate Court, the Court stated:
judgment and its authenticity must beproven as facts under our rules on
But as has also been aptly observed, we test a law by its results;
evidence, together with the alien’s applicable national law to show the
and likewise, we may add, by its purposes. It is a cardinal rule that, in
effect of the judgment on the alien himself or herself. The recognition may
seeking the meaning of the law, the first concern of the judge should be to
be made in an action instituted specifically for the purpose or in another
discover in its provisions the intent of the lawmaker. Unquestionably, the
action where a party invokes the foreign decree as an integral aspect of his
law should never be interpreted in such a way as to cause injustice as this is
claim or defense.14
never within the legislative intent. An indispensable part of that intent, in
The requirements of presenting the foreign divorce decree and
fact, for we presume the good motives of the legislature, is to render
the national law of the foreigner must comply with our Rules of Evidence.
justice.
Specifically, for Philippine courts to recognize a foreign judgment relating
Thus, we interpret and apply the law not independently of but in
to the status of a marriage, a copy of the foreign judgment may be admitted
consonance with justice. Law and justice are inseparable, and we must keep
in evidence and proven as a fact under Rule 132, Sections 24 and 25, in
them so. To be sure, there are some laws that, while generally valid, may
relation to Rule 39, Section 48(b) of the Rules of Court.15
seem arbitrary when applied in a particular case because of its peculiar
Under Section 24 of Rule 132, the record of public documents
circumstances. In such a situation, we are not bound, because only of our
of a sovereign authority or tribunal may be proved by: (1) an official
nature and functions, to apply them just the same, in slavish obedience to
publication thereof or (2) a copy attested by the officer having the legal
their language. What we do instead is find a balance between the word and
custody thereof. Such official publication or copy must beaccompanied, if
the will, that justice may be done even as the law is obeyed.
the record is not kept in the Philippines, with a certificate that the attesting
As judges, we are not automatons. We do not and must not
officer has the legal custody thereof. The certificate may be issued by any
unfeelingly apply the law as it is worded, yielding like robots to the literal
of the authorized Philippine embassy or consular officials stationed in the
command without regard to its cause and consequence. "Courts are apt to
foreign country in which the record is kept, and authenticated by the seal of
err by sticking too closely to the words of a law," so we are warned, by
his office. The attestation must state, in substance, that the copy is a correct
Justice Holmes again, "where these words import a policy that goes beyond
copy of the original, or a specific part thereof, asthe case may be, and must
them."
be under the official seal of the attesting officer.
xxxx
Section 25 of the same Rule states that whenever a copy of a
More than twenty centuries ago, Justinian defined justice "as the
document or record is attested for the purpose of evidence, the attestation
constant and perpetual wish to render every one his due." That wish
must state, in substance, that the copy is a correct copy of the original, or a
continues to motivate this Court when it assesses the facts and the law in
specific part thereof, as the case may be. The attestation must be under the
every case brought to it for decision. Justice is always an essential
official seal of the attesting officer, if there be any, or if hebe the clerk of a
ingredient of its decisions. Thus when the facts warrants, we interpret the
court having a seal, under the seal of such court.
law in a way that will render justice, presuming that it was the intention of
Based on the records, only the divorce decree was presented in
the lawmaker, to begin with, that the law be dispensed with justice. 
evidence. The required certificates to prove its authenticity, as well as the
Applying the above doctrine in the instant case, the divorce
pertinent California law on divorce were not presented.
decree allegedly obtained by Merry Lee which absolutely allowed
It may be noted that in Bayot v. Court of Appeals,16 we relaxed
Felicisimo to remarry, would have vested Felicidad with the legal
the requirement on certification where we held that "[petitioner therein] was
personality to file the present petition as Felicisimo’s surviving spouse.
clearly an American citizenwhen she secured the divorce and that divorce is
However, the records show that there is insufficient evidence to prove the
recognized and allowed in any of the States of the Union, the presentation
validity of the divorce obtained by Merry Lee as well as the marriage of
of a copy of foreign divorce decree duly authenticatedby the foreign court
respondent and Felicisimo under the laws of the U.S.A. In Garcia v.
issuing said decree is, as here, sufficient." In this case however, it appears
Recio, the Court laid down the specific guidelines for pleading and proving
that there is no seal from the office where the divorce decree was obtained.
foreign law and divorce judgments. It held that presentation solely of the
Even if we apply the doctrine of processual presumption 17 as the
divorce decree is insufficient and that proof of its authenticity and due
lower courts did with respect to the property regime of the parties, the
execution must be presented. Under Sections 24 and 25 of Rule 132, a
recognition of divorce is entirely a different matter because, to begin with,
writing or document may be proven as a public or official record of a
divorce is not recognized between Filipino citizens in the Philippines.
foreign country by either (1) an official publication or (2) a copy thereof
Absent a valid recognition of the divorce decree, it follows that the parties
attested by the officer having legal custody of the document. If the record is
are still legally married in the Philippines. The trial court thus erred in
not kept in the Philippines, such copy must be (a) accompanied by a
proceeding directly to liquidation.
certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the
record is kept and (b) authenticated by the seal of his office.  Del Socorro v. Wilsem
With regard to respondent’s marriage to Felicisimo allegedly Held: On the other hand, respondent contends that there is no
solemnized in California, U.S.A., she submitted photocopies of the sufficient and clear basis presented by petitioner that she, as well as her
Marriage Certificate and the annotated text  of the Family Law Act of
Page 7 of 75
minor son, are entitled to financial support. Respondent also added that by and good customs shall not be rendered ineffective by laws or judgments
reason of the Divorce Decree, he is not obligated topetitioner for any promulgated, or by determinations or conventions agreed upon in a foreign
financial support. country.
On this point, we agree with respondent that petitioner cannot The public policy sought to be protected in the instant case is the
rely on Article 195 of the New Civil Code in demanding support from principle imbedded in our jurisdiction proscribing the splitting up of a
respondent, who is a foreign citizen, since Article 15 of the New Civil Code single cause of action.
stresses the principle of nationality. In other words, insofar as Philippine
laws are concerned, specifically the provisions of the Family Code on
Simundac-Keppel v. Keppel
support, the same only applies to Filipino citizens. By analogy, the same
Held: Under the Nationality Principle, the petitioner
principle applies to foreigners such that they are governed by their national
cannot invoke Article 36 of the Family Code
law with respect to family rights and duties.
unless there is a German law that allows her to do so
The obligation to give support to a child is a matter that falls
A fundamental and obvious defect of Angelita's petition for
under family rights and duties. Since the respondent is a citizen of Holland
annulment of marriage is that it seeks a relief improper under Philippine
or the Netherlands, we agree with the RTC-Cebu that he is subject to the
law in light of both Georg and Angelita being German citizens, not
laws of his country, not to Philippinelaw, as to whether he is obliged to give
Filipinos, at the time of the filing thereof. Based on the Nationality
support to his child, as well as the consequences of his failure to do so.
Principle, which is followed in this jurisdiction, and pursuant to which laws
In the case of Vivo v. Cloribel, the Court held that –
relating to family rights and duties, or to the status, condition and legal
Furthermore, being still aliens, they are not in position to invoke
capacity of persons are binding upon citizens of the Philippines, even
the provisions of the Civil Code of the Philippines, for that Code cleaves to
though living abroad,7 it was the pertinent German law that governed. In
the principle that family rights and duties are governed by their personal
short, Philippine law finds no application herein as far as the family rights
law, i.e.,the laws of the nation to which they belong even when staying in a
and obligations of the parties who are foreign nationals are concerned
foreign country (cf. Civil Code, Article 15).
In Morisono v. Morisono,8 we summarized the treatment of
It cannot be gainsaid, therefore, that the respondent is not
foreign divorce judgments in this jurisdiction, thus:
obliged to support petitioner’s son under Article195 of the Family Code as
The rules on divorce prevailing in this jurisdiction can be
a consequence of the Divorce Covenant obtained in Holland. This does not,
summed up as follows: first, Philippine laws do not provide for absolute
however, mean that respondent is not obliged to support petitioner’s son
divorce, and hence, the courts cannot grant the same; second, consistent
altogether.
with Articles 15 and 17 of the Civil Code, the marital bond between two (2)
In international law, the party who wants to have a foreign law
Filipino citizens cannot be dissolved even by an absolute divorce obtained
applied to a dispute or case has the burden of proving the foreign law. In
abroad; third, an absolute divorce obtained abroad by a couple who are
the present case, respondent hastily concludes that being a national of the
both aliens may be recognized in the Philippines, provided it is
Netherlands, he is governed by such laws on the matter of provision of and
consistent with their respective national laws; and fourth, in mixed
capacity to support. While respondent pleaded the laws of the Netherlands
marriages involving a Filipino and a foreigner, the former is allowed to
in advancing his position that he is not obliged to support his son, he never
contract a subsequent marriage in case the absolute divorce is validly
proved the same.
obtained abroad by the alien spouse capacitating him or her to remarry.
It is incumbent upon respondent to plead and prove that the
[Bold underscoring supplied for emphasis]
national law of the Netherlands does not impose upon the parents the
Accordingly, the petition for annulment initiated by Angelita
obligation to support their child (either before, during or after the issuance
fails scrutiny through the lens of the Nationality Principle.
of a divorce decree), because Llorente v. Court of Appeals, has already
Firstly, what governs the marriage of the parties is German, not
enunciated that:
Philippine, law, and this rendered it incumbent upon Angelita to allege and
True, foreign laws do not prove themselves in our jurisdiction
prove the applicable German law. We reiterate that our courts do not take
and our courts are not authorized to takejudicial notice of them. Like any
judicial notice of foreign laws; hence, the existence and contents of such
other fact, they must be alleged and proved.
laws are regarded as questions of fact, and, as such, must be alleged and
In view of respondent’s failure to prove the national law of the
proved like any other disputed fact.9 Proof of the relevant German law may
Netherlands in his favor, the doctrine of processual presumption shall
consist of any of the following, namely: (1) official publications of the law;
govern. Under this doctrine, if the foreign law involved is not properly
or (2) copy attested to by the officer having legal custody of the foreign
pleaded and proved, our courts will presume that the foreign law is the
law. If the official record is not kept in the Philippines, the copy must be (a)
same as our local or domestic or internal law. Thus, since the law of the
accompanied by a certificate issued by the proper diplomatic or consular
Netherlands as regards the obligation to support has not been properly
officer in the Philippine foreign service stationed in the foreign country in
pleaded and proved in the instant case, it is presumed to be the same with
which the record is kept; and (b) authenticated by the seal of his
Philippine law, which enforces the obligation of parents to support their
office.10 Angelita did not comply with the requirements for pleading and
children and penalizing the non-compliance therewith.
proof of the relevant German law.
Moreover, while in Pilapil v. Ibay-Somera, the Court held that a
And, secondly, Angelita overlooked that German and Philippine
divorce obtained in a foreign land as well as its legal effects may be
laws on annulment of marriage might not be the same. In other words, the
recognized in the Philippines in view of the nationality principle on the
remedy of annulment of the marriage due to psychological incapacity
matter of status of persons, the Divorce Covenant presented by respondent
afforded by Article 36 of the Family Code might not be available for her. In
does not completely show that he is notliable to give support to his son after
the absence of a showing of her right to this remedy in accordance with
the divorce decree was issued. Emphasis is placed on petitioner’s allegation
German law, therefore, the petition should be dismissed.
that under the second page of the aforesaid covenant, respondent’s
obligation to support his child is specifically stated, which was not disputed
by respondent. Suzuki v. Office of the Solicitor General
We likewise agree with petitioner that notwithstanding that the Held: The RTC erroneously ruled that a foreign judgment of
national law of respondent states that parents have no obligation to support adoption of a Filipino citizen cannot be judicially recognized based on the
their children or that such obligation is not punishable by law, said law view that such recognition would render nugatory the Philippine laws on
would still not find applicability,in light of the ruling in Bank of America, adoption. It bears to emphasize that there are two parties involved in an
NT and SA v. American Realty Corporation, to wit: adoption process: the adopter and the adoptee. The RTC in this case failed
In the instant case, assuming arguendo that the English Law on to consider that Hayashi, the adopter, is a Japanese citizen.
the matter were properly pleaded and proved in accordance with Section 24, Article 15 of the Civil Code states that "[l]aws relating to family
Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee, rights and duties, or to the status, condition and legal capacity of persons
et al. vs. Sy-Gonzales, said foreign law would still not find applicability. are binding upon citizens of the Philippines, even though living abroad."
Thus, when the foreign law, judgment or contract is contrary to Owing to this nationality principle, the Philippine laws on adoption are thus
a sound and established public policy of the forum, the said foreign law, binding on petitioner. However, with respect to the case of Hayashi, who is
judgment or order shall not be applied. a Japanese citizen, it bears stressing that the Philippine courts are:
Additionally, prohibitive laws concerning persons, their acts or precluded from deciding on his "family rights and duties, or on [his] status,
property, and those which have for their object public order, public policy condition and legal capacity" concerning the foreign judgment to which he

Page 8 of 75
is a party. Thus, as to the foreign judgment of adoption obtained by properties. Accordingly, we see no reason to declare as invalid Kang’s
Hayashi, if it is proven as a fact, the Philippine courts are limited to the conveyance in favor of Suzuki for the supposed lack of spousal consent.
determination of whether to extend its effect to petitioner, the Filipino
party. Intestate/Testate Succession
NEEDS TO PROVE FOREIGN JUDGMENT AS A FACT
Article 16, par. 2, and Art. 1039 of the Civil Code, render
(RULE 132 secs 24, 25)
applicable national law of decedent, in intestate or testamentary
successions, with regard to four items:
2. Lex Rei Sitae
a. the order of succession;
Article 16. Real property as well as personal property is
b. the amount of successional rights;
subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with
c. the intrinsic validity of the provisions of the will;
respect to the order of succession and to the amount of successional and
rights and to the intrinsic validity of testamentary provisions, shall be d. the capacity to succeed.
regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and Whatever public policy or good customs may be
regardless of the country wherein said property may be found. (10a) involved in our system of legitimes, Congress has not intended to
extend the same to the succession of foreign nationals. For it has
Property shall be governed by the law of the place where specifically chosen to leave, inter alia, the amount of successional
it is situated. As to real property, it is a universal principle that real rights, to the decedent's national law. Specific provisions must
property is exclusively subject to the laws of the country or state prevail over general ones [Cayetano v. Leonidas].
where it is located. The reason is found in the very nature of
immovable property – immobility. Immovables are part of the Ancheta v. Guersey-Dalaygon
country and so closely connected to it that all rights over them have Held: While foreign laws do not prove themselves in our
their natural center of gravity there jurisdiction and our courts are not authorized to take judicial notice of
them;37 however, petitioner, as ancillary administrator of Audrey’s estate,
Orion Savings Bank v. Suzuki was duty-bound to introduce in evidence the pertinent law of the State of
Maryland.38
Held: It is a universal principle thatreal or immovable property
Petitioner admitted that he failed to introduce in evidence the
is exclusively subject to the laws of the country or state where it is
law of the State of Maryland on Estates and Trusts, and merely relied on the
located. The reason is found in the very nature of immovable property —
presumption that such law is the same as the Philippine law on wills and
its immobility. Immovables are part of the country and so closely connected
succession. Thus, the trial court peremptorily applied Philippine laws and
to it that all rights over them have their natural center of gravity there.
totally disregarded the terms of Audrey’s will. The obvious result was that
Thus, all matters concerning the titleand disposition ofreal
there was no fair submission of the case before the trial court or a judicious
property are determined by what is known as the lex loci rei sitae, which
appreciation of the evidence presented.
can alone prescribe the mode by which a title canpass from one person to
Petitioner insists that his application of Philippine laws was
another, or by which an interest therein can be gained or lost. This general
made in good faith. The Court cannot accept petitioner’s protestation. How
principle includes all rules governing the descent, alienation and transfer of
can petitioner honestly presume that Philippine laws apply when as early as
immovable property and the validity, effect and construction of wills and
the reprobate of Audrey’s will before the trial court in 1982, it was already
other conveyances.
brought to fore that Audrey was a U.S. citizen, domiciled in the State of
This principle even governs the capacity of the person making a
Maryland. As asserted by respondent, petitioner is a senior partner in a
deed relating to immovable property, no matter what its nature may be.
prestigious law firm, with a "big legal staff and a large library."39 He had all
Thus, an instrument will be ineffective to transfer title to land if the person
the legal resources to determine the applicable law. It was incumbent upon
making it is incapacitated by the lex loci rei sitae, even though under the
him to exercise his functions as ancillary administrator with reasonable
law of his domicile and by the law of the place where the instrument is
diligence, and to discharge the trust reposed on him faithfully.
actually made, his capacity is undoubted.
Unfortunately, petitioner failed to perform his fiduciary duties.
On the other hand, property relations between spouses are
Moreover, whether his omission was intentional or not, the fact
governed principally by the national law of the spouses. However, the party
remains that the trial court failed to consider said law when it issued the
invoking the application of a foreign law has the burden of proving the
assailed RTC Orders dated February 12, 1988 and April 7, 1988, declaring
foreign law. The foreign law is a question of fact to be properly pleaded and
Richard and Kyle as Audrey’s heirs, and distributing Audrey’s estate
proved as the judge cannot take judicial notice of a foreign law. He is
according to the project of partition submitted by petitioner. This eventually
presumed to know only domestic or the law of the forum
prejudiced respondent and deprived her of her full successional right to the
In the present case, Orion, unfortunately failed to prove the
Makati property.
South Korean law on the conjugal ownership ofproperty. It merely attached
In GSIS v. Bengson Commercial Bldgs., Inc., 40 the Court held
a "Certification from the Embassy of the Republic of Korea" to prove the
that when the rule that the negligence or mistake of counsel binds the client
existence of Korean Law. This certification, does not qualify as sufficient
deserts its proper office as an aid to justice and becomes a great hindrance
proof of the conjugal nature of the property for there is no showing that it
and chief enemy, its rigors must be relaxed to admit exceptions thereto and
was properly authenticated bythe seal of his office, as required under
to prevent a miscarriage of justice, and the court has the power to except a
Section 24 of Rule 132.
particular case from the operation of the rule whenever the purposes of
Accordingly, the International Law doctrine of presumed-
justice require it.
identity approachor processual presumption comes into play, i.e., where a
The CA aptly noted that petitioner was remiss in his
foreign law is not pleaded or, evenif pleaded, is not proven, the
responsibilities as ancillary administrator of Audrey’s estate. The CA
presumption is that foreign law is the same as Philippine Law.
likewise observed that the distribution made by petitioner was prompted by
Under Philippine Law, the phrase "Yung Sam Kang ‘married to'
his concern over Kyle, whom petitioner believed should equally benefit
Hyun Sook Jung" is merely descriptive of the civil status of Kang. In other
from the Makati property. The CA correctly stated, which the Court adopts,
words, the import from the certificates of title is that Kang is the owner of
thus:
the properties as they are registered in his name alone, and that he is
In claiming good faith in the performance of his duties and
married to Hyun Sook Jung.
responsibilities, defendant Alonzo H. Ancheta invokes the principle which
We are not unmindful that in numerous cases we have held that
presumes the law of the forum to be the same as the foreign law (Beam vs.
registration of the property in the name of only one spouse does not negate
Yatco, 82 Phil. 30, 38) in the absence of evidence adduced to prove the
the possibility of it being conjugal or community property. In those cases,
latter law (Slade Perkins vs. Perkins, 57 Phil. 205, 210). In defending his
however, there was proof that the properties, though registered in the name
actions in the light of the foregoing principle, however, it appears that the
of only one spouse, were indeed either conjugal or community

Page 9 of 75
defendant lost sight of the fact that his primary responsibility as ancillary
administrator was to distribute the subject estate in accordance with the will
of Audrey O’Neill Guersey. Considering the principle established under
Article 16 of the Civil Code of the Philippines, as well as the citizenship
and the avowed domicile of the decedent, it goes without saying that the
defendant was also duty-bound to prove the pertinent laws of Maryland on
the matter.
The record reveals, however, that no clear effort was made to
prove the national law of Audrey O’Neill Guersey during the proceedings
before the court a quo. While there is claim of good faith in distributing the
subject estate in accordance with the Philippine laws, the defendant appears
to put his actuations in a different light as indicated in a portion of his direct
examination, to wit:
xxx
It would seem, therefore, that the eventual distribution of the
estate of Audrey O’Neill Guersey was prompted by defendant Alonzo H.
Ancheta’s concern that the subject realty equally benefit the plaintiff’s
adopted daughter Kyle Guersey.
Well-intentioned though it may be, defendant Alonzo H.
Ancheta’s action appears to have breached his duties and responsibilities as
ancillary administrator of the subject estate. While such breach of duty
admittedly cannot be considered extrinsic fraud under ordinary
circumstances, the fiduciary nature of the said defendant’s position, as
well as the resultant frustration of the decedent’s last will, combine to
create a circumstance that is tantamount to extrinsic fraud. Defendant
Alonzo H. Ancheta’s omission to prove the national laws of the decedent
and to follow the latter’s last will, in sum, resulted in the procurement of
the subject orders without a fair submission of the real issues involved in
the case.41 (Emphasis supplied)
This is not a simple case of error of judgment or grave abuse of
discretion, but a total disregard of the law as a result of petitioner’s abject
failure to discharge his fiduciary duties. It does not rest upon petitioner’s
pleasure as to which law should be made applicable under the
circumstances. His onus is clear. Respondent was thus excluded from
enjoying full rights to the Makati property through no fault or negligence of
her own, as petitioner’s omission was beyond her control. She was in no
position to analyze the legal implications of petitioner’s omission and it was
belatedly that she realized the adverse consequence of the same. The end
result was a miscarriage of justice. In cases like this, the courts have the
legal and moral duty to provide judicial aid to parties who are deprived of
their rights.42
The trial court in its Order dated December 6, 1991 in Special
Proceeding No. M-888 noted the law of the State of Maryland on Estates
and Trusts, as follows:
Under Section 1-301, Title 3, Sub-Title 3 of the Annotated Code
of the Public General Laws of Maryland on Estates and Trusts, "all property
of a decedent shall be subject to the estate of decedents law, and upon his
death shall pass directly to the personal representative, who shall hold the
legal title for administration and distribution," while Section 4-408
expressly provides that "unless a contrary intent is expressly indicated in
the will, a legacy passes to the legatee the entire interest of the testator in
the property which is the subject of the legacy". Section 7-101, Title 7, Sub-
Title 1, on the other hand, declares that "a personal representative is a
fiduciary" and as such he is "under the general duty to settle and distribute
the estate of the decedent in accordance with the terms of the will and the
estate of decedents law as expeditiously and with as little sacrifice of value
as is reasonable under the circumstances".43
In her will, Audrey devised to Richard her entire estate,
consisting of the following: (1) Audrey’s conjugal share in the Makati
property; (2) the cash amount of P12,417.97; and (3) 64,444 shares of stock
in A/G Interiors, Inc. worth P64,444.00. All these properties passed on to
Richard upon Audrey’s death. Meanwhile, Richard, in his will, bequeathed
his entire estate to respondent, except for his rights and interests over the
A/G Interiors, Inc. shares, which he left to Kyle. When Richard
subsequently died, the entire Makati property should have then passed on to
respondent. This, of course, assumes the proposition that the law of the
State of Maryland which allows "a legacy to pass to the legatee the entire
estate of the testator in the property which is the subject of the legacy," was
sufficiently proven in Special Proceeding No. 9625. Nevertheless, the Court
may take judicial notice thereof in view of the ruling in Bohanan v.
Bohanan.44 Therein, the Court took judicial notice of the law of Nevada
despite failure to prove the same. The Court held, viz.:
We have, however, consulted the records of the case in the court
below and we have found that during the hearing on October 4, 1954 of the
Page 10 of 75
motion of Magdalena C. Bohanan for withdrawal of P20,000 as her share,
the foreign law, especially Section 9905, Compiled Nevada Laws, was
introduced in evidence by appellants' (herein) counsel as Exhibit "2" (See
pp. 77-79, Vol. II, and t.s.n. pp. 24-44, Records, Court of First Instance).
Again said law was presented by the counsel for the executor and admitted
by the Court as Exhibit "B" during the hearing of the case on January 23,
1950 before Judge Rafael Amparo (see Records, Court of First Instance,
Vol. 1).
In addition, the other appellants, children of the testator, do not
dispute the above-quoted provision of the laws of the State of Nevada.
Under all the above circumstances, we are constrained to hold that the
pertinent law of Nevada, especially Section 9905 of the Compiled Nevada
Laws of 1925, can be taken judicial notice of by us, without proof of such
law having been offered at the hearing of the project of partition.
In this case, given that the pertinent law of the State of Maryland
has been brought to record before the CA, and the trial court in Special
Proceeding No. M-888 appropriately took note of the same in disapproving
the proposed project of partition of Richard’s estate, not to mention that
petitioner or any other interested person for that matter, does not dispute the
existence or validity of said law, then Audrey’s and Richard’s estate should
be distributed according to their respective wills, and not according to the
project of partition submitted by petitioner. Consequently, the entire Makati
property belongs to respondent.
3. Renvoi Doctrine
Where the conflict rules of the forum (e.g. Philippines)
refer to a foreign law (e.g. USA) but the latter refers it back to the
internal law, the law of the forum shall be applied. The court of the
domicile cannot and should not refer the case back to California;
such action would leave the issue incapable of determination
because the case will then be like a football, tossed back and forth
between the two states, between the country of which the decedent
was a citizen and the country of his domicile. The Philippine court
must apply its own law as directed in the conflict of laws rule of
the state of the decedent [Aznar v. Garcia].
Transmission Theory
If the foreign law refers to a third country, the laws of the
said country should govern; this situation is a variety of the renvoi
doctrine. If B, a national of Canada is a resident of the Philippines
who has properties in Switzerland dies, his estate shall be governed
by the laws of Canada but if the Canada law states that it shall be
the law of the country where property is situated then law of the
third country shall be applied.
4. Lex Loci Celebrationis
Article 17. The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the laws of the country
in which they are executed.
When the acts referred to are executed before the diplomatic
or consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a
foreign country. (11a)
The first paragraph of the Article lays down the rule of
lex loci celebrationis insofar as extrinsic validity (forms and
solemnities) is concerned. Thus, a contract entered into by a
Filipino in Japan will be governed by Japanese law insofar as form
and solemnities of the contract are concerned. Thus also, if a power
of attorney is executed in Germany, German laws and not our Civil
Code should determine its formal validity [German & Co. v.
Donaldson, Sim and Co.].
 Gaspi v. Pacis-Trinidad
Held: Under the nationality principle, Philippine laws continue b. Prohibitive Laws
to apply to Filipino citizens when it comes to their "family rights and The third paragraph gives one exception to the rule that a
duties... status, condition and legal capacity" even if they do not reside in foreign law, contract, or judgment can be given effect. The reason
the Philippines. In the same manner, the Philippines respects the national is that public policy in the Philippines prohibits the same.
personal laws of aliens and defers to them when it comes to succession
issues and "the intrinsic validity of testamentary provisions."
However, the probate of a will only involves its extrinsic
SUMMARY OF CONFLICT OF LAWS RULES
validity and does not delve into its intrinsic validity, unless there are
exceptional circumstances which would require the probate court to touch Subject Matter Governing Law
upon the intrinsic validity of the will.44 Family rights and duties of National law of the person
When it comes to the form and solemnities of wills, which are persons concerned
part of its extrinsic validity, the Civil Code provides that the law of the Status and condition of persons National law of the person
country of execution shall govern: concerned
ARTICLE 17. The forms and solemnities of contracts, wills, and Legal capacity of persons National law of the person
other public instruments shall be governed by the laws of the country in concerned
which they are executed. Except:
When the acts referred to are executed before the diplomatic or a. Capacity to succeed Law of the nation of the decedent
consular officials of the Republic of the Philippines in a foreign country, from the decedent,
the solemnities established by Philippine laws shall be observed in their whether
execution. testate/intestate
b. Capacity of the person lex loci rei sitae
Prohibitive laws concerning persons, their acts or property, and
making a deed relating
those which have for their object public order, public policy and good to immovable
customs shall not be rendered ineffective by laws or judgments property, no matter
promulgated, or by determinations or conventions agreed upon in a foreign what its nature may be
country. Real and personal property Law of the country where it is
Even if we assume that the foreign law applies, it does not situated
necessarily mean that the Philippine court loses jurisdiction. Foreign law, National law of the person whose
Except: in succession, whether
when relevant, must still be proven as a fact by evidence, as Philippine testate/intestate: succession is under consideration.
courts do not take judicial notice of foreign laws.45
Courts, therefore, retain jurisdiction over the subject matter
a. Order of succession;
(probate) and the res, which is the real property in Iriga in this case.
b. Amount of
Moreso, there was no objection with respect to the jurisdiction
successional rights;
of the Regional Trial Court. Thus, respondent committed grave abuse of c. Intrinsic validity of
discretion in motu proprio dismissing the case for lack of jurisdiction. testamentary
provisions; and
Ambrose v. Ambrose d. Capacity to succeed
from decedent
Held: Lex loci celebrationis is a conflict of law principle that
Formalities or solemnities of Law of the country in which they
comes into play when there are substantive issues relating to a contract that
contracts, wills and other public are executed.
is celebrated elsewhere than the place of citizenship of its instruments
parties.21 Philippine courts apply the same, not only with respect to
marriage but to other contracts, in order to determine the law that is to be Except: a joint will executed by
Filipinos in a foreign country shall
applied in resolving disputes that arise as a result thereof.
not be valid in the Philippines,
Applied to this controversy, the marriage between the parties
even though valid in the place of
having been celebrated in the Philippines, is governed by Philippine laws. execution
The same laws holds true with its incidents and consequences. Thus, all Intrinsic validity of contracts, its Law voluntarily agreed upon by
matters relating to the validity of the contract of marriage, such as the nature and construction the parties, or the law intended by
presence or absence of requisites, forms, or solemnities are to be judged in them either expressly or
relation to the law in which it has been celebrated or performed. implicitly.
Along this line, it is useful to state that when the marriage is
celebrated elsewhere, its validity does not depend fully on foreign law.
II
While accepted in the jurisdiction in which it is celebrated, it may be held
invalid in the Philippines when it falls under the instances mentioned in par. HUMAN RELATIONS
1, Article 26 of the Family Code such as incestuous or bigamous marriages.
As well, irrespective of the place of solemnization of marriage, Philippine A. INTRODUCTION
laws bind the contracting Filipino citizen with respect to "family rights and
duties, status, condition, and legal capacity"; any controversy arising
1. Definition
therefrom would then have to be determined in accordance with the same
law.22 Human relations is the interaction or interrelation of one
Herein, it is indubitable that the action relates to the validity of person to another person or persons and vice versa, in accordance
the marriage celebrated in the Philippines. The petitioner's action assails the with mores, habits, customs and public policy not contrary to laws.
psychological incapacity of the respondent to perform the essential marital
obligations. Ultimately, therefore, the result of the action would have an
2. Rationale
effect on the personal status of the respondent. With this, there is no reason
to foreclose the petitioner's right to institute the instant petition for nullity Human beings, in their intercourse with one another,
of marriage. come into certain relations from which some system of social
control becomes a necessity. With human relations comes a
a. Extraterritoriality consciousness of human wants or desires, which may be called
Even if the act be done abroad, still if executed before interests. Society is composed of men, each with interests of his
Philippine diplomatic and consular offi cials, the solemnities of own. In the course of life, the interests of one man conflict with
Philippine laws shall be observed. The theory is that the act is those of many others. It is the primary function of law to create
being done within an extension of Philippine territory (the principle legal protection for these interests. Amidst the continuous clash of
of exterritoriality).
Page 11 of 75
interests, the ruling social philosophy should be that in the ultimate
ideal social order the welfare of every man depends to the welfare
of all. Civil code recognizes that we are simply members of a
greater community and with human relations comes a
consciousness of human wants and desires called interests. Society
is composed of men each with interests of his own in the course of
life the interest of one man conflict with another and it is the role of
law to regulate so that there is protection for these adverse
interests. Welfare of every man depends on the welfare of all.
The following articles are devoted to the regulation of
human relations. In this chapter are formulated basic principles that
are to be observed for the rightful relationship between human
beings and for the stability of the social order. The old Civil Code
merely stated the effects of the law, but failed to draw out the spirit
of the law. This chapter is designed to indicate certain norms that
spring the fountain of good conscience. These guides for human
conduct should run as golden thread through society, to the end that
law may approach its supreme ideal which is the sway and
dominance of justice.
3. Basic Principles
a. It applies equally to the government but is
subject to legitimate exercises of the state’s
sovereign powers.
(i) In other words, we can file a case against the
government and its instrumentalities for violating
the law on human relations
(ii) In contrast, the Bill of Rights affords protection
against possible State oppression against its citizens,
but not against an unjust or repressive conduct by a
private party towards another [People v. Marti].
(iii) The State and its agents are not immune to the
provisions of the law on Human Relations. It applies
equally well to both private and public entities. In
the case of Republic v. Lacap, the Supreme Court
ruled that the rules thereon apply equally well to the
government.
(iv) However, the law on Human Relations must be
deemed limited by legitimate exercises of the state’s
sovereign powers. For instance, Article 19 cannot be
invoked against a police measure so long as the
encroachment upon private interests is justified by
the general welfare.
(v) Also, a tax statute cannot be assailed in the same
manner, for as long as the constitutional parameters
on the exercise of the power of taxation, i.e. Section
28. (1) The rule of taxation shall be uniform and
equitable. The congress shall evolve a progressive
system of taxation. An exercise of the power of
eminent domain is unassailable for as long as the
taking is for a public purpose with payment of just
compensation.
b. The provisions of the law on Human
Relations do not apply to exercises of the so
called “absolute” rights.
(i) While there is no such thing as an absolute
right because all rights are subject to
reasonable limitations, there are ights which
Page 12 of 75
appear to be beyond the ambit of Human
Relations.
(ii) For example, parties between 18 and 21 years
must secure parental consent to get married.
The parents have the right to refuse or deny
their consent to their marriage. They cannot be
compelled to do so even if the reasons beyond
the denial appear to be capricious. They cannot
be sued for violating the law on Human
Relations. Note that the parents have the right
to refuse or deny their consent to the marriage.
They cannot be compelled to do so even if the
reason for the denial is capricious They cannot
be sure for violating the law on human
relations .the right to give or withhold parental
consent appears to be absolute.
(iii) Also, the testator has an absolute right to
dispose of the free portion of his property
however he sees fit, for as long as the legitime
is not impaired. Even if he bequeaths all of his
free property to favor only one child to the
exclusion of the others, his decision cannot be
questioned using the principle of abuse of
rights.
c. The law on Human Relations is part and
parcel of Philippine Tort law.
(i) This means that the defense available for quasi
delicts in general, such as the Doctrine of
Proximate cause and Volenti Non Fit Injuria,
are also available to refute an alleged violation
of it provisions.
(ii) SO do not look at human relations in isolation,
it must be connected with the general law on
torts.
d. The Chapter on Human Relations consists
in mandatory or prohibitory provisions.
This means that Article 5 of the Civil Code, by
implication applies.
Article 5. Acts executed against the provisions of
mandatory or prohibitory laws shall be void, except when the
law itself authorizes their validity.
For example there is a measure that is passed that
violates Art. 19 of the Civil Code, this is not allowed because that
is an act executed against a mandatory or prohibitory law.
e. These provisions are not self-redressing.
The proper cause of action must still be pursued in the
courts of law. Verily, no person is entitled to take the law into his
own hands (Deuteronomy 54:16). The causes of action may consist
in actions for damages, prevention (injunctive relief) and other
relief (such as criminal prosecution).
f.
Violations of the law on Human Relations
can be set up in all forums- civil, criminal
and administrative.
Thus, an action for damages may be pursued
independently based on the provisions of the Chapter [HSBC v.
Catalan] or claimed as an ancillary prayer in a case for breach of
contract [Regino v. Pangasinan Colleges].
Also, damages predicated on Articles 19 to 21 of the
Civil Code can be pursued in the prosecution of a criminal case or
in the reopening of a criminal case otherwise dismissed [Torrijos v.
Court of Appeals].
It was also held in a labor case that if the manner of
termination of an employee was attended by bad faith, damages
can be assessed against the employer for violation of the law on
Human Relations [Globe Mackay v. Court of Appeals].
The law on Human Relations can also be applied in an
administrative case of disbarment of a lawyer [Sps. Olbes v. Atty.
Deciembre].
g. The law on Human Relations pervades the
entire legal system and appears to be catch-
all legislation or proxy legislation.
It is intended to expand the concept of torts by granting
adequate legal remedy for the untold number of moral wrongs
which is impossible for human foresight to provide specifically in
statutory law. As the eminent Civilist Senator Arturo Tolentino
puts it: “With this article (Article 21), combined with articles 19
and 20, the scope of our law on civil wrongs has been very greatly
broadened; it has become much more supple and adaptable than the
Anglo-American law on torts. It is now difficult to conceive of any
malevolent exercise of a right which could not be checked by the
application of these articles.”
The framers of the civil code envisioned that it is
impossible for human beings (the congress) to cover everything.
Therefore, in the absence of a law that would provide an injured
person with redress, then the provisions of human relations can be
applied.
4. Retroactive Effect
Article 2252. Changes made and new provisions and rules
laid down by this Code which may prejudice or impair vested or
acquired rights in accordance with the old legislation shall have no
retroactive effect.
For the determination of the applicable law in cases which
are not specified elsewhere in this Code, the following articles shall be
observed: (Pars. 1 and 2, Transitional Provisions).
Article 2253. The Civil Code of 1889 and other previous laws
shall govern rights originating, under said laws, from acts done or
events which took place under their regime, even though this Code may
regulate them in a different manner, or may not recognize them. But if
a right should be declared for the first time in this Code, it shall be
effective at once, even though the act or event which gives rise thereto
may have been done or may have occurred under prior legislation,
provided said new right does not prejudice or impair any vested or
acquired right, of the same origin. (Rule 1)
The chapter on Human Relations was ruled to impair no
vested rights and can thus be given retroactive. It may be argued
that the aforequoted provisions of the Civil Code only came into
effect on August 30, 1950, and that they cannot be applicable to
acts that took place in 1948, prior to its effectivity. When the new
provisions of the Code does nor prejudice or impair vested or
acquired rights in accordance with the old legislation said new
provisions, like those on Human Relations, can be given retroactive
effect. xxx According to Article 2254, “no vested or acquired right
can arise from acts or omissions which are against the law or which
infringe upon the right of others” [Velayo v. Shell].
Page 13 of 75
B. PRINCIPLE OF ABUSE OF RIGHTS
Article 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith.
The concept of abuse of rights prescribes that a person
should not use his right unjustly or in bad faith; otherwise, he may
be liable to another who suffers injury. The rationale for the
concept is to present some basic principles to be followed for the
rightful relationship between human beings and the stability of
social order.
The recognized Civil Law Commentator, former CA
Justice Eduardo P. Caguioa, explained that through the principle of
abuse of rights, "he incurs in liability who, acting under the aegis
of a legal right and an apparently valid exercise of the same,
oversteps the bounds or limitations imposed on the right by equity
and good faith[,] thereby causing damage to another or to society."
This article (Article 19), known to contain what is
commonly referred to as the principle of abuse of rights, sets
certain standards which must be observed not only in the exercise
of one's rights but also in the performance of one's duties. These
standards are the following: to act with justice; to give everyone his
due; and to observe honesty and good faith. The law, therefore,
recognizes a primordial limitation on all rights; that in their
exercise, the norms of human conduct set forth in Article 19 must
be observed [Globe Mackay v. Court of Appeals].
Article 19 is a mere declaration of standard, it is not by
itself an actionable tort. It can only be redressed by invoking
Article 19 together with the other provisions of the law such as
Articles 20 and 21 [Ona vs. North Star].
There is however no hard and fast rule which can be
applied to determine whether or not the principle of abuse of rights
may be invoked. The question of whether or not the principle of
abuse of rights has been violated resulting to damages under
Articles 20 and 21 or other applicable provisions of law depends on
the circumstances of each case [Globe Mackay v. Court of
Appeals].
Now, when a right is exercised in a manner which does
not conform to the norms enshrined in Article 19 and results in
damage to another, a legal wrong is thereby committed which the
wrongdoer must be held responsible.
Although, the requirements of each provisional are
different, these three articles, 19, 20 and 21 are actually related to
one another. Tolentino provides that these articles combined the
scope of our law on civil wrongs have already been greatly
broadened and it is now difficult to conceive of any malevolent
exercise of a right which could not be checked by the application of
these articles.
Take note, Article 19 lays down a rule of conduct for the
government of human relations and for the maintenance of social
order. But, by its own, it does not provide a remedy for its
violation. Generally, an action for damages under either Article 20
or 21 in general would be proper. However, the redress under
Article 19 is not limited to Articles 20 and 21 only. It can be
predicated on another law.
The mala fide exercise of a right in accordance with
Article 19 is compensable under Article 20 if the act is contrary to
law and under Article 21 if the act is legal but contrary to morals,
good customs or public policy [Tocoms Philippines v. Philips
Electronics].

1. Rejection of Classical Theory
The Classical Theory, with respect to exercise of the
rights, can be summed up using the Latin maxim “Neminem Laedit
Qui Jure Suo Utitur” – He who stands in his own right injures no
one.
Take note that the right given under Article 429 to
counter force with force cannot be exercised in the spirit of
vengeance but only for the purpose of defense. And in recent
jurisprudence, it is also settled that Article 429 of the New Civil
Code, otherwise known as the Doctrine of Self-help, is limited
actually by Article 19.
Other examples of the Classical Theory appear in the
Revised Penal Code:
a. Justifying circumstances under Article 11
b. Article 247 or death or physical injuries inflicted
under exceptional circumstance
2. Requisites
 The elements of an abuse of rights under Article 19 are:
(1) there is a legal right or duty; (2) which is exercised in bad faith;
(3) for the sole intent of prejudicing or injuring another [Navarro-
Banaria v. Banaria].
he law always presumes good faith and any person who
seeks to be awarded damages due to acts of another has the burden
of proving that the latter acted in bad faith or with ill-motive. Good
faith refers to the state of the mind which is manifested by the acts
of the individual concerned. It consists of the intention to abstain
from taking an unconscionable and unscrupulous advantage of
another. Bad faith does not simply connote bad judgment or simple
negligence, dishonest purpose or some moral obliquity and
conscious doing of a wrong, a breach of known duty due to some
motives or interest or ill-will that partakes of the nature of fraud.
Malice connotes ill-will or spite and speaks not in response to duty.
It implies an intention to do ulterior and unjustifiable harm. Malice
is bad faith or bad motive [Far East Bank v. Pacilan, Jr.].
Mercado v. Ongpin
Held: Petitioner has not been able to prove that, at the time she
and respondent married, respondent knew that his divorce from his first
spouse was invalid. There is no proof that, upon the first spouse's
confirmation of her Philippine citizenship at the time she obtained the
divorce decree, respondent concealed this knowledge from petitioner or
allowed her to continue believing that their marriage was valid. The malice
or bad faith necessary to sustain an action based on Article 19 of the Civil
Code has not been shown in this case.
UCPB v. Basco
Held: We agree with the respondent bank that it has the right to
exclude certain individuals from its premises or to limit their access thereto
as to time, to protect, not only its premises and records, but also the persons
of its personnel and its customers/clients while in the premises.
It bears stressing that property rights must be considered, for
many purposes, not as absolute, unrestricted dominions but as an
aggregation of qualified privileges, the limits of which are prescribed by the
equality of rights, and the correlation of rights and obligations necessary for
the highest enjoyment of property by the entire community of proprietors.
Indeed, in Rellosa vs. Pellosis (G.R. No. 138964, August 9, 2001), we held
that:
Petitioner might verily be the owner of the land, with the right to
enjoy and to exclude any person from the enjoyment and disposal thereof,
but the exercise of these rights is not without limitations. The abuse of
Page 14 of 75
rights rule established in Article 19 of the Civil Code requires every person
to act with justice, to give everyone his due, and to observe honesty and
good faith. When right is exercised in a manner which discards these norms
resulting in damage to another, a legal wrong is committed for which the
actor can be held accountable. Rights of property, like all other social and
conventional rights, are subject to such reasonable limitations in their
enjoyment and to such reasonable restraints established by law.
MWSS v. Act Theater
Held: A right is a power, privilege, or immunity guaranteed
under a constitution, statute or decisional law, or recognized as a result of
long usage,[6] constitutive of a legally enforceable claim of one person
against the other. the exercise of rights is not without limitations. Having
the right... should not be confused with the manner by which such right is to
be exercised.
Article 19 of the Civil Code precisely sets the norms for the
exercise of one's rights:
Art. 19. Every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
When a right is exercised in a manner which discards these
norms resulting in damage to another, a legal wrong is committed for which
actor can be held accountable.[9] In this case, the petitioner failed to act
with justice and give the respondent what is... due to it when the petitioner
unceremoniously cut off the respondent's water service connection.
There is, thus, no reason to deviate from the uniform findings
and conclusion of the court a quo and the appellate court that the
petitioner's act was arbitrary, injurious and prejudicial to the respondent,
justifying the award of damages under Article 19 of the Civil Code.
Metroheights v. CMS Construction
Held: Respondents proceeded with the cutting off and
disconnection of petitioner's water connection without the latter's consent
and notification thereby causing prejudice or injury to the petitioner's
members because of the unexpected water loss for three (3) days.
Respondents' actions were done in total disregard of the standards set by
Article 19 of the New Civil Code which entitles petitioner to damages.
The exercise of a right ends when the right disappears, and it
disappears when it is abused, especially to the prejudice of others. The
mask of a right without the spirit of justice which gives it life is repugnant
to the modern concept of social law.
Concededly, the petitioner, as the owner of the utility providing
water supply to certain consumers including the respondent, had the right to
exclude any person from the enjoyment and disposal thereof. However, the
exercise of rights is not without limitations. Having the right should not be
confused with the manner by which such right is to be exercised. Article 19
of the Civil Code precisely sets the norms for the exercise of one's rights.
When a right is exercised in a manner which discards these norms resulting
in damage to another, a legal wrong is committed for which actor can be
held accountable. In this case, the petitioner failed to act with justice and
give respondent what is due to it when the petitioner unceremoniously cut
off the respondent's water service connection.
Far East Bank v. Pacilan, Jr.
Held: Undoubtedly, petitioner bank has the right to close the
account of the respondent based on the following provisions of its Rules
and Regulations Governing the Establishment and Operation of Regular
Demand Deposits:
10) The Bank reserves the right to close an account if the
depositor frequently draws checks against insufficient funds and/or
uncollected deposits.
…
12) …
However, it is clearly understood that the depositor is not
entitled, as a matter of right, to overdraw on this deposit and the bank
reserves the right at any time to return checks of the depositor which are
drawn against insufficient funds or for any other reason.
 The facts, as found by the court a quo and the appellate court, do
not establish that, in the exercise of this right, petitioner bank committed an
abuse thereof. Specifically, the second and third elements for abuse of
rights are not attendant in the present case. The evidence presented by
petitioner bank negates the existence of bad faith or malice on its part in
closing the respondent’s account on April 4, 1988 because on the said date
the same was already overdrawn. The respondent issued four checks, all
due on April 4, 1988, amounting to ₱7,410.00 when the balance of his
current account deposit was only ₱6,981.43. Thus, he incurred an overdraft
of ₱428.57 which resulted in the dishonor of his Check No. 2434886.
Further, petitioner bank showed that in 1986, the current account of the
respondent was overdrawn 156 times due to his issuance of checks against
insufficient funds.13 In 1987, the said account was overdrawn 117 times for
the same
reason.14 Again, in 1988, 26 times.15 There were also several
instances when the respondent issued checks deliberately using a signature
different from his specimen signature on file with petitioner bank. 16 All
these circumstances taken together justified the petitioner bank’s closure of
the respondent’s account on April 4, 1988 for "improper handling."
It is observed that nowhere under its rules and regulations is
petitioner bank required to notify the respondent, or any depositor for that
matter, of the closure of the account for frequently drawing checks against
insufficient funds. No malice or bad faith could be imputed on petitioner
bank for so acting since the records bear out that the respondent had indeed
been improperly and irregularly handling his account not just a few times
but hundreds of times. Under the circumstances, petitioner bank could not
be faulted for exercising its right in accordance with the express rules and
regulations governing the current accounts of its depositors. Upon the
opening of his account, the respondent had agreed to be bound by these
terms and conditions.
Neither the fact that petitioner bank accepted the deposit made
by the respondent the day following the closure of his account constitutes
bad faith or malice on the part of petitioner bank. The same could be
characterized as simple negligence by its personnel. Said act, by itself, is
not constitutive of bad faith.
The respondent had thus failed to discharge his burden of
proving bad faith on the part of petitioner bank or that it was motivated by
ill-will or spite in closing his account on April 4, 1988 and in inadvertently
accepting his deposit on April 5, 1988.
Further, it has not been shown that these acts were done by
petitioner bank with the sole intention of prejudicing and injuring the
respondent. It is conceded that the respondent may have suffered damages
as a result of the closure of his current account. However, there is a material
distinction between damages and injury. The Court had the occasion to
explain the distinction between damages and injury in this wise:
… Injury is the illegal invasion of a legal right; damage is the
loss, hurt or harm which results from the injury; and damages are the
recompense or compensation awarded for the damage suffered. Thus, there
can be damage without injury in those instances in which the loss or harm
was not the result of a violation of a legal duty. In such cases, the
consequences must be borne by the injured person alone, the law affords no
remedy for damages resulting from an act which does not amount to a legal
injury or wrong. These situations are often called damnum absque injuria.
In other words, in order that a plaintiff may maintain an action
for the injuries of which he complains, he must establish that such injuries
resulted from a breach of duty which the defendant owed to the plaintiff – a
concurrence of injury to the plaintiff and legal responsibility by the person
causing it. The underlying basis for the award of tort damages is the
premise that the individual was injured in contemplation of law. Thus, there
must first be a breach of some duty and the imposition of liability for that
breach before damages may be awarded; and the breach of such duty should
be the proximate cause of the injury.
Uypitching v. Quiamco
Held: In this case, the manner by which the motorcycle was
taken at petitioners’ instance was not only attended by bad faith but also
contrary to the procedure laid down by law. Considered in conjunction with
the defamatory statement, petitioners’ exercise of the right to recover the
mortgaged vehicle was utterly prejudicial and injurious to respondent. On
Page 15 of 75
the other hand, the precipitate act of filing an unfounded complaint could
not in any way be considered to be in accordance with the purpose for
which the right to prosecute a crime was established. Thus, the totality of
petitioners’ actions showed a calculated design to embarrass, humiliate and
publicly ridicule respondent. Petitioners acted in an excessively harsh
fashion to the prejudice of respondent. Contrary to law, petitioners willfully
caused damage to respondent. Hence, they should indemnify him.
Ardiente v. Javier
Held: Petitioner insists that she should not be held liable for the
disconnection of respondent spouses' water supply, because she had no
participation in the actual disconnection. However, she admitted in the
present petition that it was she who requested COWD to disconnect the
Spouses Pastorfide's water supply. This was confirmed by COWD and
Gonzalez in their cross-claim against petitioner. While it was COWD which
actually discontinued respondent spouses' water supply, it cannot be denied
that it was through the instance of petitioner that the Spouses Pastorfide's
water supply was disconnected in the first place.
It is true that it is within petitioner's right to ask and even require
the Spouses Pastorfide to cause the transfer of the former's account with
COWD to the latter's name pursuant to their Memorandum of Agreement.
However, the remedy to enforce such right is not to cause the disconnection
of the respondent spouses' water supply. The exercise of a right must be in
accordance with the purpose for which it was established and must not be
excessive or unduly harsh; there must be no intention to harm
another.15 Otherwise, liability for damages to the injured party will
attach.16 In the present case, intention to harm was evident on the part of
petitioner when she requested for the disconnection of respondent spouses’
water supply without warning or informing the latter of such request.
Petitioner claims that her request for disconnection was based on the advise
of COWD personnel and that her intention was just to compel the Spouses
Pastorfide to comply with their agreement that petitioner's account with
COWD be transferred in respondent spouses' name. If such was petitioner's
only intention, then she should have advised respondent spouses before or
immediately after submitting her request for disconnection, telling them
that her request was simply to force them to comply with their obligation
under their Memorandum of Agreement. But she did not. What made
matters worse is the fact that COWD undertook the disconnection also
without prior notice and even failed to reconnect the Spouses Pastorfide’s
water supply despite payment of their arrears. There was clearly an abuse of
right on the part of petitioner, COWD and Gonzalez. They are guilty of bad
faith.
Saladaga v. Astorga
Held: Respondent, as owner of the property, had the right to
mortgage it to complainant but, as a lawyer, he should have seen to it that
his agreement with complainant is embodied in an instrument that clearly
expresses the intent of the contracting parties. A lawyer who drafts a
contract must see to it that the agreement faithfully and clearly reflects the
intention of the contracting parties. Otherwise, the respective rights and
obligations of the contracting parties will be uncertain, which opens the
door to legal disputes between the said parties. Indeed, the uncertainty
caused by respondent’s poor formulation of the "Deed of Sale with Right to
Repurchase" was a significant factor in the legal controversy between
respondent and complainant. Such poor formulation reflects at the very
least negatively on the legal competence of respondent.
Under Section 63 of the Land Registration Act, 19 the law in
effect at the time the PNB acquired the subject property and obtained TCT
No. T-3211 in its name in 1972, where a decree in favor of a purchaser who
acquires mortgaged property in foreclosure proceedings becomes final,
such purchaser becomes entitled to the issuance of a new certificate of title
in his name and a memorandum thereof shall be "indorsed upon the
mortgagor’s original certificate."20 TCT No. T-662, which respondent gave
complainant when they entered into the "Deed of Sale with Right to
Repurchase" dated December 2, 1981, does not bearsuch memorandum but
only a memorandum on the mortgage of the property to PNB in 1963 and
the subsequent amendment of the mortgage.
 Respondent dealt with complainant with bad faith, falsehood,
and deceit when he entered into the "Deed of Sale with Right to
Repurchase" dated December 2, 1981 with the latter. He made it appear that
the property was covered by TCT No. T-662 under his name, even giving
complainant the owner’s copy of the said certificate oftitle, when the truth
is that the said TCT had already been cancelled some nine years earlier by
TCT No. T-3211 in the name of PNB. He did not evencare to correct the
wrong statement in the deed when he was subsequently issued a new copy
of TCT No. T-7235 on January 4, 1982, 21 or barely a month after the
execution of the said deed. All told, respondent clearly committed an act of
gross dishonesty and deceit against complainant.
Cabasal v. BPI Family Savings Bank
Held: The settled rule is bad faith should be established by clear
and convincing evidence since the law always presumes good faith.53 Bad
faith, like fraud, is never presumed since it is a serious accusation that can
be so conveniently and casually invoked.54 Hence, for anyone who claims
that someone is in bad faith, the former has the duty to convincingly prove
the existence of the same.55
Like the CA, the Court sees no intention on the part of
respondent to cause harm to the petitioners. She forewarned Nestor that the
BPI would not acquiesce to the agreement between him and Eloisa because
the bank does not allow assumption of mortgage. Despite that, Nestor
insisted, and even brought Eloisa to her. Respondent may have been blunt
in her response, but it was Nestor who prodded her to explain, even if she
already told him that she would not entertain any queries from Eloisa.
Respondent's remark may have ultimately put Eloisa off only
because it was not what she expected to hear. But it was not respondent's
fault. It was Nestor who put her in that awkward position, and the latter
answered only based on what she understood of the situation.
Further, it cannot even be established from petitioners' evidence
whether Eloisa backed out of the agreement because of the very words
spoken by respondent.ℒαwρhi ৷ Eloisa was not presented in court; hence,
petitioners' asseveration is merely self-serving, unsubstantiated, and
conjectural. It is a fundamental rule that bare allegations, unsubstantiated
by evidence, are not equivalent to proof.56 Charges based on mere
suspicion and speculation cannot be given credence. When the complainant
relies on mere conjectures and suppositions, and fails to substantiate his
allegations, the complaint must be dismissed for lack of merit.57
It may be true that Eloisa was a willing buyer, and she actually
bought another property afterwards. However, there can be a myriad of
reasons which may have prompted her to cancel the deal with Nestor.
Perhaps, it could have been because Eloisa could not be able to pay for
petitioners' properties without a bank loan. Perhaps, too, Eloisa would not
qualify for a bank loan; hence, she only agreed for an assumption of
mortgage. It is also possible that she was poached by another seller or
broker who gave her a better or more affordable deal. As petitioners' own
evidence shows, Eloisa bought a different house and lot, also within
Parañaque, for only Php3,800,000.00, which was evidently much lower
than the purchase price for petitioners' properties, but within the amount she
was willing to shell out as down payment therefor. What is more, Eloisa
was able to conveniently purchase the property on installment basis, which
did not require Eloisa to obtain a bank loan or assume any mortgage.58
Petitioners and the RTC are actually unreasonably passing the
blame for the dissolution of the sale with Eloisa to respondent As the CA
aptly pointed out, respondent was only being honest and, in fact, right when
she told Nestor and Eloisa that BPI would not permit their arrangement. If
petitioners were bent on being able to sell their properties to Eloisa, they
could have instead assisted her in taking out a loan in her own name,
whether with BPI or a different bank. They did not. If, at all, it was
petitioners who were negligent under the circumstances by insisting on a
payment term which may have been favorable for them and their buyer, but
was clearly not viable.
Similarly, petitioners cannot also fault respondent for not being
able to direct them to the proper loan division of BPI. Respondent was
under no obligation to do that. She could have done so as a courtesy to
Nestor, the latter being a client of BPI, but her failure to extend such
assistance at that time is not tantamount to negligence or bad faith on her
part, much less be the proximate cause why the transaction between Nestor
Page 16 of 75
and Eloisa failed to materialize. Nestor, being an engineer and a
businessman of experience, should have known what to do under the
circumstances and where to go after, considering that he already had a
previous real estate transaction presented to BPI for loan approval. And
even assuming for the nonce that he did not know specific BPI division or
office to inquire from, he should have exerted earnest effort to obtain such
information from other BPI employees, not necessarily from respondent.
Verily, a responsible and diligent businessman would go to great
lengths to ensure the consummation of any transaction. Under the
circumstances, however, Nestor clearly failed in this respect. He should
thus not be allowed to pass the blame to other people for his shortcomings.
And since respondent cannot be considered to have acted negligently or in
bad faith, BPI is not vicariously liable.
3. Abuse of Rights in Contractual Relations
The right to enter into contractual relations is absolute.
The right to withdraw, however, must not be exercised whimsically
or arbitrarily otherwise, it could give rise to a damage claim under
Article 19 of the Civil Code [Asuncion v. Court of Appeals].
Chevron Philippines v. Mendoza
Held: The unchallenged factual finding of the CA states
that:cralawred
x x x [I]t is clear that [the Franciscos] were awarded the Virac
dealership not because of the former's relationship with the lessor of the
land where the service station is situated, but because among the three (3)
finalists, the Franciscos ranked first and Mendoza ranked only second.
Mendoza cannot impeach Jose, who is his own witness, under Section 12,
Rule 132 of the Rules of Court Having voluntarily offered Jose to the
witness stand, Mendoza is bound by his testimony.
To recall, Jose, Mendoza's own witness, testified under oath that
Chevron assured the Franciscos that there was absolutely no undue
advantage given to them by Chevron and that they were awarded the
franchise by the latter because of Jose's qualifications as a civil engineer
and his wife's experience as a former marketing manager. There is
absolutely no argument raised by Mendoza in his Petition that belies this
factual finding by the CA.
With respect to Chevron's award of the San Andres dealership to
Cua, as emphasized by the CA, it was stipulated by the parties during the
pre-trial that the site offered by Cua was a two-way street located along the
national highway, making the site obviously and manifestly preferable
compared to Mendoza's site, which was located at a one-way, inner street
not located along the national highway. Again, upon perusal of the
Mendoza Petition, there is undeniably no cogent argument raised that
seriously contradicts the factual finding by the CA that Chevron's act of
awarding a dealership in favor of Cua was perfectly above-board and was
exercised in good faith.
In sum, the Court completely concurs with the CA's assessment
that "Chevron had been more than patient and accommodating to Mendoza
who could not simply accept his defeat." Chevron's act of denying
Mendoza's stubborn and obstinate attempts to obtain something which he
has absolutely no right to acquire is definitely not an actionable wrong.
Arco Pulp and Paper v. Lim
Held: When parties act in bad faith and do not comply faithfully
with their obligations under contract, they also run the risk of violating Art.
1159 which provides that “obligations arising from contracts are the force
of law between the contracting parties and should be complied with in good
faith.”
When a party reneges on his or her obligations arising from
contracts in bad faith, the acts is not only contrary to morals, good customs,
and public policy, it is also a violation of Art. 1159. Breaches of contract
become the basis of moral damages, not only under Art. 2220, but also
under Arts. 19 and 20, in relation to Art. 1159.
Navarro-Banaria v. Banaria
 Held: Petitioner contends that she did not commit any violation
under Article 19 of the Civil Code by alleging that the testimonies of the
respondents were pure surmises and conjectures. Aside from that,
petitioner avers that respondents failed to prove bad faith, malice and ill
motive on her part. Because of this, petitioner posits that there can be no
award of actual, moral and exemplary damages under the principle
of damnum absque injuria or damage without injury since her legal right
was not exercised in bad faith and with no intention to injure another.
Article 19 of the Civil Code provides that every person in the
exercise of his rights and in the performance of his duties must act with
justice, give everyone his due, and observe honesty and good faith. The
principle embodied in this provision is more commonly known as the
"abuse of right principle." The legal consequence should anyone violate this
fundamental provision is found in Articles 20 and 21 of the Civil Code. The
correlation between the two provisions are showed in the case of GF
EQUITY, Inc. v. Valenzona, to wit:
[Article 19, known to contain what is commonly referred to as
the principle of abuse of rights, sets certain standards which must be
observed not only in the exercise of one's rights but also in the performance
of one's duties. These standards are the following: to act with justice; to
give everyone his due; and to observe honesty and good faith. The law,
therefore, recognizes a primordial limitation on all rights; that in their
exercise, the norms of human conduct set forth in Article 19 must be
observed. A right, though by itself legal because recognized or granted by
law as such, may nevertheless become the source of some illegality. When
a right is exercised in a manner which does not conform with the norms
enshrined in Article 19 and results in damage to another, a legal wrong is
thereby committed for which the wrongdoer must be held responsible. But
while Article 19 lays down a rule of conduct for the government of human
relations and for the maintenance of social order, it does not provide a
remedy for its violation. Generally, an action for damages under either
Article 20 or Article 21 would be proper.16 (Emphasis supplied)
While Article 19 of the New Civil Code may have been intended
as a mere declaration of principle, the "cardinal law on human conduct"
expressed in said article has given rise to certain rules, e.g., that where a
person exercises his rights but does so arbitrarily or unjustly or performs his
duties in a manner that is not in keeping with honesty and good faith, he
opens himself to liability. The elements of an abuse of rights under Article
19 are: (1) there is a legal right or duty; (2) which is exercised in bad faith;
(3) for the sole intent of prejudicing or injuring another.17
Consequently, when Article 19 is violated, an action for
damages is proper under Article 20 and 21 of the New Civil Code. Article
20 pertains to damages arising from a violation of law.18
For starters, there is no question that as legal wife and guardian
of Pascasio, who is physically and mentally infirm, Adelaida has the
principal and overriding decision when it comes to the affairs of her
husband including the celebration of the latter's 90th birthday.
However, it must be noted Adelaida's right, as with any rights,
cannot be exercised without limitation. The exercise of this right must
conform to the exacting standards of conduct enunciated in Article 19.
Adelaida was clearly remiss in this aspect.
Glaring is the fact that long before the scheduled date of
Pascasio's 90th birthday celebration, Adelaida was already informed about
the event. As early as February 2003 or a year before the scheduled event,
Adelaida was already reminded of the event by the respondents to which
she confirmed Pascasio's attendance. Even though Adelaida alleges that she
was not privy to any birthday celebration for Pascasio, the fact remains that
she was continuously informed and reminded about the scheduled event.
She even contributed P5,000.00 for the costs.
Following Adelaida's testimony that Pascasio had already
decided not to attend his birthday celebration a day before such event, she
should have contacted the respondents immediately for the respondents to
be able to take appropriate action. Adelaida knew fully well that the
respondents already spent a considerable amount of money and earnest
efforts were already made to ensure the success of the event. The least that
Adelaida could have done was to inform the respondents immediately of
any unforeseen circumstance that would hinder its success and to avert any
further damage or injury to the respondents. Moreover, considering that
Page 17 of 75
numerous guests were invited and have confirmed their attendance, she
placed the respondents in a very embarrassing situation.
Instead of making good on her prior commitment, Adelaida
allegedly followed Pascasio's wish of going to Tarlac and arrived thereat in
the afternoon of February 21, 2004. At that time, Adelaida still had the
opportunity to contact the respondents and inform them that they will not
be able to come, but she did not. Her excuse, that Pascasio grabbed her
cellular phone and caused damage to it, is feeble and unrealistic. We find
incredulous that Pascasio, who was allegedly infirm, would be able to grab
the cellphone from Adelaida and throw it away, when he cannot even move
on his own without any assistance. And even if true, there are certainly
other means of communication aside from her cellphone if she really
wanted to call the respondents.
Adelaida also neglected to contact the respondents immediately
after their return to Manila on February 23, 2004. If she was sincere in
bringing Pascasio to his birthday celebration, then she would have
immediately called the respondents upon returning to Manila to inform
them of their whereabouts and to state the reason for Pascasio non-
attendance.
We find it dubious that Pascasio would refuse to attend his
birthday celebration. Respondents have sufficiently established that it was
an annual tradition for the family to celebrate the birthday of their father
Pascasio. Besides, the allegation that Pascasio refused to attend his birthday
celebration because of an alleged misunderstanding with his two sons was
not duly proven. Common sense dictates that he should have conveyed
about the matter to Reina and Gracia Severa when they visited him on
February 14 and 15, 2004, but he did not.
All in all, the foregoing shows that Adelaida intentionally failed
to bring Pascasio to the birthday celebration prepared by the respondents
thus violating Article 19 of the Civil Code on the principle of abuse of
right. Her failure to observe good faith in the exercise of her right as the
wife of Pascasio caused loss and injury on the part of the respondents, for
which they must be compensated by way of damages pursuant to Article 21
of the Civil Code.
Cebu Country Club v. Elizigaque
Held: In rejecting respondent’s application for proprietary
membership, we find that petitioners violated the rules governing human
relations, the basic principles to be observed for the rightful relationship
between human beings and for the stability of social order. The trial court
and the Court of Appeals aptly held that petitioners committed fraud and
evident bad faith in disapproving respondent’s applications. This is contrary
to morals, good custom or public policy. Hence, petitioners are liable for
damages pursuant to Article 19 in relation to Article 21 of the same Code.
It bears stressing that the amendment to Section 3(c) of CCCI’s
Amended By-Laws requiring the unanimous vote of the directors present at
a special or regular meeting was not printed on the application form
respondent filled and submitted to CCCI. What was printed thereon was the
original provision of Section 3(c) which was silent on the required number
of votes needed for admission of an applicant as a proprietary member.
Petitioners explained that the amendment was not printed on the
application form due to economic reasons. We find this excuse flimsy and
unconvincing. Such amendment, aside from being extremely significant,
was introduced way back in 1978 or almost twenty (20) years before
respondent filed his application. We cannot fathom why such a prestigious
and exclusive golf country club, like the CCCI, whose members are all
affluent, did not have enough money to cause the printing of an updated
application form.
It is thus clear that respondent was left groping in the dark
wondering why his application was disapproved. He was not even informed
that a unanimous vote of the Board members was required. When he sent a
letter for reconsideration and an inquiry whether there was an objection to
his application, petitioners apparently ignored him. Certainly, respondent
did not deserve this kind of treatment. Having been designated by San
Miguel Corporation as a special non-proprietary member of CCCI, he
should have been treated by petitioners with courtesy and civility. At the
very least, they should have informed him why his application was
disapproved.
 The exercise of a right, though legal by itself, must nonetheless
be in accordance with the proper norm. When the right is exercised
arbitrarily, unjustly or excessively and results in damage to another, a legal
wrong is committed for which the wrongdoer must be held responsible. 6 It
bears reiterating that the trial court and the Court of Appeals held that
petitioners’ disapproval of respondent’s application is characterized by bad
faith.
PCIB v. Gomez
Held: Both the RTC and the CA found the acts of the PCIB were
in clear violation of Article 19 of the Civil Code and held the PCIB liable
for damages. While the PCIB has a right to penalize employees for acts of
negligence, the right must not be exercised unjustly and illegally. In... the
instant case, the PCIB made deductions on Josephine's salary even if the
investigation was still pending. Belatedly, the PCIB issued a memorandum
finding Josephine grossly negligent and requiring her to pay the amount
which the bank erroneously paid to Harrington's impostor.
When Josephine asked for legal and factual basis for the finding
of negligence, the PCIB refused to give any. Moreover, the PCIB continued
to make deductions on Josephine's salary, allowances, and bonuses.
4. Articles 19-21 as Source of Obligation
A person who brings suit must be able to anchor his
claim on contract, quasi-contract, delict, or quasi-delict. If not,
Articles 19, 20, and 21 can be the basis [ABS-CBN v. Court of
Appeals].
University of the East v. Jader
Held: Educational institutions are duty-bound to inform the
students of their academic status and not wait for the latter to inquire from
the former. The conscious indifference of a person to the rights or welfare
of the person/persons who may be affected by his act or omission can
support a claim for damages.10 Want of care to the conscious disregard of
civil obligations coupled with a conscious knowledge of the cause naturally
calculated to produce them would make the erring party liable.11 Petitioner
ought to have known that time was of the essence in the performance of its
obligation to inform respondent of his grade. It cannot feign ignorance that
respondent will not prepare himself for the bar exams since that is precisely
the immediate concern after graduation of an LL.B. graduate. It failed to act
seasonably. Petitioner cannot just give out its student's grades at any time
because a student has to comply with certain deadlines set by the Supreme
Court on the submission of requirements for taking the bar. Petitioner's
liability arose from its failure to promptly inform respondent of the result of
an examination and in misleading the latter into believing that he had
satisfied all requirements for the course. Worth quoting is the following
disquisition of the respondent court:
It is apparent from the testimony of Dean Tiongson that
defendant-appellee University had been informed during the deliberation
that the professor in Practice Court I gave plaintiff-appellant a failing grade.
Yet, defendant-appellee still did not inform plaintiff-appellant of his failure
to complete the requirements for the degree nor did they remove his name
from the tentative list of candidates for graduation. Worse, defendant-
appellee university, despite the knowledge that plaintiff-appellant failed in
Practice Court I, again included plaintiff-appellant's name in the "tentative
list of candidates for graduation which was prepared after the deliberation
and which became the basis for the commencement rites program. Dean
Tiongson reasons out that plaintiff-appellant's name was allowed to remain
in the tentative list of candidates for graduation in the hope that the latter
would still be able to remedy the situation in the remaining few days before
graduation day. Dean Tiongson, however, did not explain how plaintiff
appellant Jader could have done something to complete his deficiency if
defendant-appellee university did not exert any effort to inform plaintiff-
appellant of his failing grade in Practice Court I.12
Petitioner cannot pass on its blame to the professors to justify its
own negligence that led to the delayed relay of information to respondent.
When one of two innocent parties must suffer, he through whose agency the
loss occurred must bear it. 13 The modern tendency is to grant indemnity for
damages in cases where there is abuse of right, even when the act is not
Page 18 of 75
illicit.14 If mere fault or negligence in one's acts can make him liable for
damages for injury caused thereby, with more reason should abuse or bad
faith make him liable. A person should be protected only when he acts in
the legitimate exercise of his right, that is, when he acts with prudence and
in good faith, but not when he acts with negligence or abuse.15
However, while petitioner was guilty of negligence and thus
liable to respondent for the latter's actual damages, we hold that respondent
should not have been awarded moral damages. We do not agree with the
Court of Appeals' findings that respondent suffered shock, trauma and pain
when he was informed that he could not graduate and will not be allowed to
take the bar examinations. At the very least, it behooved on respondent to
verify for himself whether he has completed all necessary requirements to
be eligible for the bar examinations. As a senior law student, respondent
should have been responsible enough to ensure that all his affairs,
specifically those pertaining to his academic achievement, are in order.
Given these considerations, we fail to see how respondent could have
suffered untold embarrassment in attending the graduation rites, enrolling
in the bar review classes and not being able to take the bar exams. If
respondent was indeed humiliated by his failure to take the bar, he brought
this upon himself by not verifying if he has satisfied all the requirements
including his school records, before preparing himself for the bar
examination. Certainly, taking the bar examinations does not only entail a
mental preparation on the subjects thereof; there are also prerequisites of
documentation and submission of requirements which the prospective
examinee must meet.
Tan v. Valeriano
Held: The act of filing of numerous cases against a public
officer for partisan political activity and refiling it after it was dismissed for
technicality is not abuse of rights in absence of bad faith.
The existence of malice or bad faith is the fundamental element
in abuse of right. In an action to recover damages based on malicious
prosecution, it must be established that the prosecution was impelled by
legal malice. There is necessity of proof that the suit was patently malicious
as to warrant the award of damages under Articles 19 to 21 of the Civil
Code or that the suit was grounded on malice or bad faith. There is malice
when the prosecution was prompted by a sinister design to vex and
humiliate a person, and that it was initiated deliberately by the defendant
knowing that his charges were false and groundless.
The award of damages arising from malicious prosecution is
justified if and only if it is proved that there was a misuse or abuse of
judicial processes. Concededly, the mere act of submitting a case to the
authorities for prosecution does not make one liable for malicious
prosecution. It is a doctrine well-entrenched in jurisprudence that the mere
act of submitting a case to the authorities for prosecution, of and by itself,
does not make one liable for malicious prosecution, for the law could not
have meant to impose a penalty on the right to litigate.
C. ACTS DONE CONTRARY TO LAW
Article 20. Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify the latter for the
same.
Article 20 is meant to complement all provisions which
may have inadvertently failed to provide for that indemnification of
damage when proper.
Petrophil v. Court of Appeals
Held: In terminating the contract of Cruz without hearing her
side about the strike, the petitioner opened itself to a charge of bad faith.
While Petrophil had the right to terminate the contract, the petitioner could
not act purposely to injure private respondents.
In BPI Express Card Corp vs. CA (1998), we held that there is
an abuse of a right under Art. 19 if the following elements are present: 1)
There is a legal right/duty; 2) Which is exercised in bad faith; 3) For the
sole purpose of prejudicing/injuring another.
 We find all these present in the instant case. Petitioner might not
have deliberately intended to injure private respondent-drivers, but as a
consequence of its willful act directed against Cruz, the drivers lost their
jobs and consequently suffered loss of income. Art. 20 does not require that
the act must be directed at a specific person. It suffices that a person suffers
damage as a consequence of a wrongful act of another in order that
indemnity could be demanded from the wrongdoer.
Banal v. Tadeo
Held: Regardless of whether or not a special law so provides
indemnification of the offended party may be had on account of the
damages loss or injury directly suffered as a consequence of the wrongful
act of another. The indemnity which a person is sentenced to pay forms an
integral part of the penalty imposed by law for the commission of a crime.
Every crime gives rise to a criminal action for the punishment of the guilty
party and also to civil action for the restitution of the thing repair of the
damage and indemnification of the losses.
Surely it could not have been the intendment of the framers of
BP 22 to leave the offended party defrauded and empty-handed by
excluding the civil liability of the offender giving her only the remedy
which in many cases results in a Pyrrhic victory of having to file a separate
civil suit. To do so may leave the offended party unable to recover even the
face value of the check due her thereby unjustly enriching the errant drawer
at the expense of the payee. The protection which the law seeks to provide
would be brought to naught.
Cagayan Valley Enterprises v. Court of Appeals
Held: R.A. 623, as amended, provides for criminal action in case
of violation, but not for civil indemnity. A civil action for damages is
proper under Art. 20. Art, 20 was clearly meant to complement all legal
provisions which may have inadvertently failed to provide for
indemnification or reparation of damages when proper or called for.
Garcia v. Salvador
Held: Section 2 of R.A. 4688 (The Clinical Laboratory Law)
provides: It shall unlawful for any person to be professionally in charge of a
registered clinical laboratory unless he is a licensed physician duly
qualified in laboratory medicine and authorized by the Secretary of Health,
such authorization is renewed annually.
CDC is not administered, directed, and supervised by a licensed
as required by law, but by Calderon, a licensed Medical Technologist.
Garcia may not have intended to cause the consequences which followed
after the release of the test result. However, this failure to comply with the
laws and rules promulgated and issued for the protection of public safety
and interest is a failure to observe that care which a reasonably prudent
health care provider would observe. This act or omission constitutes a
breach of duty.
Indubitably, Maja suffered injury as a direct consequence of
Bang’s failure to comply with the mandate of the laws and rules afore
quoted. She was terminated from service, suffered anxiety, and was
compelled to undergo several more tests. All these could have been avoided
had the proper safeguards been scrupulously followed in conducting the
exam and releasing the report. Even if R.A. 4688 does not provide for civil
indemnity, Art. 20 provides the legal basis for the award of damages.
D. ACTS CONTRA BONUS MORES
Article 21. Any person who wilfully causes loss or injury to
another in manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.
Article 21 talks about act contra bonos mores or acts that
are done contrary to morals, good customs or public policy that can
be the basis for award of damages.
So, to compare, in Article 20 it says, “willfully or
negligently.” But in Article 21, it is only willfully. Article 20 can
Page 19 of 75
be transgressed either willfully or negligently while Article 21 can
be violated only intentionally.
Article 21 was intended to expand the concept of torts in
our jurisdiction by granting adequate legal remedy for the untold
number or moral wrongs which is impossible for human foresight
to specifically provide for in the statutes [PNB v. Court of
Appeals].
Globe Mackay v. Court of Appeals
Held: Art. 21 adopted to remedy the “countless gaps in the
statutes which leave so many victims of moral wrongs helpless even though
they have actually suffered material and moral injury” should “vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is
impossible for human foresight to provide for specifically in the statutes.”
An employer who harbors suspicions that an employee has
committed dishonesty might be justified in taking the appropriate action
such as ordering an investigation and directing the employee to go on a
leave. But the high-handed treatment accorded him by the employer was
certainly uncalled for. The imputation of guilt without basis and the pattern
of harassment during the investigations transgress the standards of human
conduct set forth in Art. 19. SC has already ruled that the right of the
employer to dismiss an employee should not be confused with the manner
in which the right is exercised and the effects flowing therefrom. If the
dismissal is done abusively then the employer is liable for damages to the
employees. According to the principle of damnum absque injuria, damage
or loss which does not constitute a violation of a legal right or amount to a
legal wrong is not actionable. This finds no application in this case. Even
granting that petitioners might have had the right to dismiss the employee
from work the abusive manner in which that right was exercised amounted
to a legal wrong for which the petitioners must be held liable. Moreover,
the damage incurred was not only in connection with the abusive manner in
which he was dismissed but was also the result of several quasi-delictual
acts (letters, etc) committed by petitioners.
1. Elements of Article 21
Article 21 refers to acts contra bonus mores and has the
following elements:
a. There is an act which is legal;
b. But which is contrary to morals, good custom, public
order, or public policy; and
c. It is done with intent to injure [Nikko Hotel v. Reyes].
At the onset, Article 19 is the law violated while Articles
20 and 21 are sources of a cause of action for damages.
Nikko Hotel v. Reyes
Held: As applied to herein case and as earlier discussed, Mr.
Reyes has not shown that Ms. Lim was driven by animosity against him.
These two people did not know each other personally before the evening of
13 October 1994, thus, Mr. Reyes had nothing to offer for an explanation
for Ms. Lim’s alleged abusive conduct except the statement that Ms. Lim,
being "single at 44 years old," had a "very strong bias and prejudice against
(Mr. Reyes) possibly influenced by her associates in her work at the hotel
with foreign businessmen." The lameness of this argument need not be
belabored. Suffice it to say that a complaint based on Articles 19 and 21 of
the Civil Code must necessarily fail if it has nothing to recommend it but
innuendos and conjectures.
Parenthetically, the manner by which Ms. Lim asked Mr. Reyes
to leave was likewise acceptable and humane under the circumstances. In
this regard, we cannot put our imprimatur on the appellate court’s
declaration that Ms. Lim’s act of personally approaching Mr. Reyes
(without first verifying from Mrs. Filart if indeed she invited Mr. Reyes)
gave rise to a cause of action "predicated upon mere rudeness or lack of
consideration of one person, which calls not only protection of human
dignity but respect of such dignity."70 Without proof of any ill-motive on
her part, Ms. Lim’s act of by-passing Mrs. Filart cannot amount to abusive
conduct especially because she did inquire from Mrs. Filart’s companion
who told her that Mrs. Filart did not invite Mr. Reyes. 71 If at all, Ms. Lim is
guilty only of bad judgment which, if done with good intentions, cannot
amount to bad faith.
Not being liable for both actual and moral damages, neither can
petitioners Lim and Hotel Nikko be made answerable for exemplary
damages especially for the reason stated by the Court of Appeals. The Court
of Appeals held –
Not a few of the rich people treat the poor with contempt
because of the latter’s lowly station in life.l^vvphi1.net This has to be
limited somewhere. In a democracy, such a limit must be established.
Social equality is not sought by the legal provisions under consideration,
but due regard for decency and propriety (Code Commission, pp. 33-34).
And by way of example or correction for public good and to avert further
commission of such acts, exemplary damages should be imposed upon
appellees.73
The fundamental fallacy in the above-quoted findings is that it
runs counter with the very facts of the case and the evidence on
hand.l^vvphi1.net It is not disputed that at the time of the incident in
question, Mr. Reyes was "an actor of long standing; a co-host of a radio
program over DZRH; a Board Member of the Music Singer Composer
(MUSICO) chaired by popular singer Imelda Papin; a showbiz Coordinator
of Citizen Crime Watch; and 1992 official candidate of the KBL Party for
Governor of Bohol; and an awardee of a number of humanitarian
organizations of the Philippines."74 During his direct examination on
rebuttal, Mr. Reyes stressed that he had income 75 and nowhere did he say
otherwise. On the other hand, the records are bereft of any information as to
the social and economic standing of petitioner Ruby Lim. Consequently,
the conclusion reached by the appellate court cannot withstand scrutiny as it
is without basis.
All told, and as far as Ms. Lim and Hotel Nikko are concerned,
any damage which Mr. Reyes might have suffered through Ms. Lim’s
exercise of a legitimate right done within the bounds of propriety and good
faith, must be his to bear alone.
Lemorda v. Fudalan
Held: Under the foregoing circumstances, it is clear that
petitioners should be held liable for damages under Article 19, in relation to
Article 21, of the Civil Code. While it appears that petitioners were
engaged in a legal act, i.e., exacting compliance with the requirements for
the installation of respondent's electricity in his farmhouse, the
circumstances of this case show that the same was conducted contrary to
morals and good customs, and were in fact done with the intent to cause
injury to respondent. Petitioners did not only fail to apprise respondent of
the proper procedure to expedite compliance with the requirements, they
also misled him to believe that everything can be settled, extorted money
from him when only a meager amount was due, and worse, publicly
humiliated him in front of many people which ended up in the
disconnection of his electricity altogether. To be sure, the clean hands
doctrine - which was invoked by petitioners herein - should not apply in
their favor, considering that while respondent may have technically failed
to procure the required BAPA certification and proceeded with the tapping,
the same was not due to his lack of effort or intention in complying with the
rules in good faith. As exhibited above, it was, in fact, petitioners' own acts
which made compliance with the rules impossible. Hence, respondent was
actually free from fault, negating the application of the clean hands
doctrine, to wit:34
Parties who do not come to court with clean hands cannot be
allowed to profit from their own wrongdoing.1avvphi1 The action (or
inaction) of the party seeking equity must be "free from fault, and he must
have done nothing to lull his adversary into repose, thereby obstructing and
preventing vigilance on the part of the latter.
Buenaventura v. Court of Appeals
Held: The Court of Appeals and the trial court considered the
acts of the petitioner after the marriage as proof of his psychological
incapacity, and therefore a product of his incapacity or inability to comply
Page 20 of 75
with the essential obligations of marriage. Nevertheless, said courts
considered these acts as willful and hence as grounds for granting moral
damages. It is contradictory to characterize acts as a product of
psychological incapacity, and hence beyond the control of the party because
of an innate inability, while at the same time considering the same set of
acts as willful. By declaring the petitioner as psychologically incapacitated,
the possibility of awarding moral damages on the same set of facts was
negated. The award of moral damages should be predicated, not on the
mere act of entering into the marriage, but on specific evidence that it was
done deliberately and with malice by a party who had knowledge of his or
her disability and yet willfully concealed the same. No such evidence
appears to have been adduced in this case.
For the same reason, since psychological incapacity means that
one is truly incognitive of the basic marital covenants that one must assume
and discharge as a consequence of marriage, it removes the basis for the
contention that the petitioner purposely deceived the private respondent. If
the private respondent was deceived, it was not due to a willful act on the
part of the petitioner. Therefore, the award of moral damages was without
basis in law and in fact.
Article 21 vs. 2220
In situations where the contractual relation is
indispensable to hold a party liable, there must be a finding that the
act or omission complained of was done in bad faith and in
violation of Article 21 of the Civil Code to give rise to an action
based on tort. Article 21 of the Code, it should be observed,
contemplates a conscious act to cause harm. Thus, even if we are to
assume that the provision could properly relate to a breach of
contract, its application can be warranted only when the
defendant's disregard of his contractual obligation is so deliberate
as to approximate a degree of misconduct certainly no less worse
than fraud or bad faith. Most importantly, Article 21 is a mere
declaration of a general principle in human relations that clearly
must, in any case, give way to the specific provision of Article
2220 of the Civil Code authorizing the grant of moral damages in
culpa contractual solely when the breach is due to fraud or bad
faith [Orient Freight v. Keihin-Everett].
Article 20 vs. 21 vs. 2176
In St. Martin Polyclinic v. LWV Construction, it was
held:
Article 20 concerns violations of existing law as
basis for an injury. It allows recovery should the act have been
willful or negligent. Willful may refer to the intention to do the
act and the desire to achieve the outcome which is considered by
the plaintiff in tort action as injurious. Negligence may refer to a
situation where the act was consciously done but without
intending the result which the plaintiff considers as injurious.
Article 21, on the other hand, concerns injuries that
may be caused by acts which are not necessarily proscribed by
law. This article requires that the act be willful, that is, that there
was an intention to do the act and a desire to achieve the
outcome. In cases under Article 21, the legal issues revolve
around whether such outcome should be considered a legal
injury on the part of the plaintiff or whether the commission of
the act was done in violation of the standards of care required in
Article 19 [Ibid].
Article 2176 covers situations where an injury
happens through an act or omission of the defendant. When it
involves a positive act, the intention to commit the outcome is
irrelevant. The act itself must not be a breach of an existing
law or a pre-existing contractual obligation. What will be
considered is whether there is "fault or negligence” attending the
commission of the act which necessarily leads to the outcome
considered as injurious by the plaintiff. The required degree of
 diligence will then be assessed in relation to the circumstances
of each and every case.51 (Emphases and underscoring supplied)
Thus, with respect to negligent acts or omissions, it
should therefore be discerned that Article 20 of the Civil Code
concerns "violations of existing law as basis for an injury",
whereas Article 2176 applies when the negligent act causing
damage to another does not constitute "a breach of an
existing law or a pre-existing contractual obligation."
2. Promise to Marry
Where a man's promise to marry is in fact the proximate
cause of the acceptance of his love by a woman and his
representation to fulfill that promise thereafter becomes the
proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying her
and that the promise was only a subtle scheme or deceptive device
to entice or inveigle her to accept him and to obtain her consent to
the sexual act, could justify the award of damages pursuant to
Article 21 not because of such promise to marry but because of the
fraud and deceit behind it and the willful injury to her honor and
reputation which followed thereafter. It is essential, however, that
such injury should have been committed in a manner contrary to
morals, good customs or public policy [Baksh v. Court of Appeals].
Baksh v. Court of Appeals
Held: It was defendant-appellant's fraudulent and deceptive
protestations of love for and promise to marry plaintiff that made her
surrender her virtue and womanhood to him and to live with him on the
honest and sincere belief that he would keep said promise, and it was
likewise these (sic) fraud and deception on appellant's part that made
plaintiff's parents agree to their daughter's living-in with him preparatory to
their supposed marriage. And as these acts of appellant are palpably and
undoubtedly against morals, good customs, and public policy, and are even
gravely and deeply derogatory and insulting to our women, coming as they
do from a foreigner who has been enjoying the hospitality of our people and
taking advantage of the opportunity to study in one of our institutions of
learning, defendant-appellant should indeed be made, under Art. 21 of the
Civil Code of the Philippines, to compensate for the moral damages and
injury that he had caused plaintiff, as the lower court ordered him to do in
its decision in this case.
In short, the private respondent surrendered her virginity, the
cherished possession of every single Filipina, not because of lust but
because of moral seduction — the kind illustrated by the Code Commission
in its example earlier adverted to.
Prior decisions of this Court clearly suggest that Article
21 may be applied in a breach of promise to marry where the
woman is a victim of moral seduction. Thus, in Hermosisima vs.
Court of Appeals, this Court denied recovery of damages to the
woman because:
... we find ourselves unable to say that petitioner is
morally guilty of seduction, not only because he is
approximately ten (1O) years younger than the complainant -
who was around thirty-six (36) years of age, and as highly
enlightened as a former high school teacher and a life insurance
agent are supposed to be - when she became intimate with
petitioner, then a mere apprentice pilot, but, also, because the
court of first instance found that, complainant "surrendered
herself" to petitioner because, "overwhelmed by her love" for
him, she "wanted to bind" him by having a fruit of their
engagement even before they had the benefit of clergy.
Tanjanco v. Court of Appeals
Held: In holding that the complaint stated a cause of action for
damages, under Article 21 above mentioned, the Court of Appeals relied
Page 21 of 75
upon and quoted from the memorandum submitted by the Code
Commission to the Legislature in 1949 to support the original draft of the
Civil Code. Referring to Article 23 of the draft (now Article 21 of the
Code), the Commission stated:
But the Code Commission has gone farther than the sphere of
wrongs defined or determined by positive law. Fully sensible that there are
countless gaps in the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually suffered material and
moral injury, the Commission has deemed it necessary, in the interest of
justice, to incorporate in the proposed Civil Code the following rule:
"ART. 23. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage."
An example will illustrate the purview of the foregoing norm:
"A" seduces the nineteen-year old daughter of "X". A promise of marriage
either has not been made, or can not be proved. The girl becomes pregnant.
Under the present laws, there is no crime, as the girl is above eighteen years
of age. Neither can any civil action for breach of promise of marriage be
filed. Therefore, though the grievous moral wrong has been committed, and
though the girl and her family have suffered incalculable moral damage, she
and her parents cannot bring any action for damages. But under the
proposed article, she and her parents would have such a right of action.
The Court of Appeals seems to have overlooked that the
example set forth in the Code Commission's memorandum refers to a tort
upon a minor who has been seduced. The essential feature is seduction, that
in law is more than mere sexual intercourse, or a breach of a promise of
marriage; it connotes essentially the idea of deceit, enticement, superior
power or abuse of confidence on the part of the seducer to which the
woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante,
9 Phil. 595).
It has been ruled in the Buenaventura case (supra) that —
To constitute seduction there must in all cases be some
sufficient promise or inducement and the woman must yield because of the
promise or other inducement. If she consents merely from carnal lust and
the intercourse is from mutual desire, there is no seduction (43 Cent. Dig.
tit. Seduction, par. 56). She must be induced to depart from the path of
virtue by the use of some species of arts, persuasions and wiles, which are
calculated to have and do have that effect, and which result in her
ultimately submitting her person to the sexual embraces of her seducer (27
Phil. 123).
And in American Jurisprudence we find:
On the other hand, in an action by the woman, the enticement,
persuasion or deception is the essence of the injury; and a mere proof of
intercourse is insufficient to warrant a recover.
Accordingly it is not seduction where the willingness arises out
of sexual desire or curiosity of the female, and the defendant merely affords
her the needed opportunity for the commission of the act. It has been
emphasized that to allow a recovery in all such cases would tend to the
demoralization of the female sex, and would be a reward for unchastity by
which a class of adventuresses would be swift to profit." (47 Am. Jur. 662)
Bearing these principles in mind, let us examine the complaint.
The material allegations there are as follows:
I. That the plaintiff is of legal age, single, and residing at 56
South E. Diliman, Quezon City, while defendant is also of legal age, single
and residing at 525 Padre Faura, Manila, where he may be served with
summons;
II. That the plaintiff and the defendant became acquainted with
each other sometime in December, 1957 and soon thereafter, the defendant
started visiting and courting the plaintiff;
III. That the defendant's visits were regular and frequent and in
due time the defendant expressed and professed his undying love and
affection for the plaintiff who also in due time reciprocated the tender
feelings;
IV. That in the course of their engagement, the plaintiff and the
defendant as are wont of young people in love had frequent outings and
dates, became very close and intimate to each other and sometime in July,
1958, in consideration of the defendant's promises of marriage, the plaintiff
consented and acceded to the former's earnest and repeated pleas to have
carnal knowledge with him;
 V. That subsequent thereto and regularly until about July, 1959
except for a short period in December, 1958 when the defendant was out of
the country, the defendant through his protestations of love and promises of
marriage succeeded in having carnal knowledge with the plaintiff;
VI. That as a result of their intimate relationship, the plaintiff
started conceiving which was confirmed by a doctor sometime in July,
1959;
VII. That upon being certain of her pregnant condition, the
plaintiff informed the defendant and pleaded with him to make good his
promises of marriage, but instead of honoring his promises and righting his
wrong, the defendant stopped and refrained from seeing the plaintiff since
about July, 1959 has not visited the plaintiff and to all intents and purposes
has broken their engagement and his promises.
Over and above the partisan allegations, the facts stand out that
for one whole year, from 1958 to 1959, the plaintiff-appellee, a woman of
adult age, maintained intimate sexual relations with appellant, with repeated
acts of intercourse. Such conduct is incompatible with the idea of seduction.
Plainly there is here voluntariness and mutual passion; for had the appellant
been deceived, had she surrendered exclusively because of the deceit, artful
persuasions and wiles of the defendant, she would not have again yielded to
his embraces, much less for one year, without exacting early fulfillment of
the alleged promises of marriage, and would have cut chart all sexual
relations upon finding that defendant did not intend to fulfill his promises.
Hence, we conclude that no case is made under Article 21 of the Civil
Code, and no other cause of action being alleged, no error was committed
by the Court of First Instance in dismissing the complaint.
Of course, the dismissal must be understood as without
prejudice to whatever actions may correspond to the child of the plaintiff
against the defendant-appellant, if any. On that point, this Court makes no
pronouncement, since the child's own rights are not here involved.
To summarize, in order for a breach of promise to marry
can be an actionable wrong giving rise to an action for moral
damages, the following must be present:
a. A man's representation to fulfill his promise to
marry must be the proximate cause of the woman
giving herself to him in a sexual congress;
b. There must be proof that he had, in reality, no
intention of marrying her and that the promise was
only a subtle scheme or deceptive device to entice
or inveigle her to accept him and to obtain her
consent to the sexual act;
c. The fraud and deceit employed thereafter caused
willful injury to the woman's honor and reputation;
and
d. Such injury should have been committed in a
manner contrary to morals, good customs or public
policy.
Mere breach of promise to marry is not an actionable
wrong. To be actionable, there must be some act independent of the
breach of promise to marry such as carnal knowledge.
Thus, if there had been carnal knowledge, the aggrieved
party may:
a. Sue for moral damages if there was criminal
seduction (see Article 2219 (3)) or moral seduction
(under Article 21 in relation to the case of BAKSH),
but not if the intercourse was due to mutual lust
[Hermosisima v. Court of Appeals]. If intercourse
was due to mutual lust, there could not be any
recovery based on the principle in pari delicto
nonoritor actio, meaning: Where both are at fault,
noone can found a claim;
Page 22 of 75
b. Sue for actual damages as follows:
(i) If a person gives another P50,000 because the
latter promised to marry the former and the
promise is not fulfilled, the money can be
recovered [Domalagan v. Bolifer].
(ii) If a teacher resigns her position beca o a man's
promise to marry her, she can recover
indemnity for damages if later on the promise
is not fulfilled;
(iii) Wedding expenses may also be recovered; and
c. Sue for recognition of the child, if carnal knowledge
led to impregnation and subsequent birth, and for
support in a addition to compensatory damages.
If there had been no car al knowledge, there can still be
recovery of actual or moral damages if there is an accidental abuse
of a right or if there is a deliberate desire to inflict loss or injury,
asw hen one deliberately fails to appear at the altar despite
elaborate wedding preparations, the intention being merely to cause
embarrassment, humiliation and shame.
Wassmer v. Velez
Held: Surely this is not a case of mere breach of promise to
marry. As stated, mere breach of promise to marry is not an actionable
wrong. But to formally set a wedding and go through all the above-
described preparation and publicity, only to walk out of it when the
matrimony is about to be solemnized, is quite different. This is palpably
and unjustifiably contrary to good customs for which defendant must be
held answerable in damages in accordance with Article 21 aforesaid.
Defendant urges in his afore-stated petition that the damages
awarded were excessive. No question is raised as to the award of actual
damages. What defendant would really assert hereunder is that the award of
moral and exemplary damages, in the amount of P25,000.00, should be
totally eliminated.
Per express provision of Article 2219 (10) of the New Civil
Code, moral damages are recoverable in the cases mentioned in Article 21
of said Code. As to exemplary damages, defendant contends that the same
could not be adjudged against him because under Article 2232 of the New
Civil Code the condition precedent is that "the defendant acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner." The argument is
devoid of merit as under the above-narrated circumstances of this case
defendant clearly acted in a "wanton ... , reckless [and] oppressive manner."
This Court's opinion, however, is that considering the particular
circumstances of this case, P15,000.00 as moral and exemplary damages is
deemed to be a reasonable award.
Pe v. Pe
Held: There is no doubt that the claim of plaintiffs for damages
is based on the fact that defendant, being a married man, carried on a love
affair with Lolita Pe thereby causing plaintiffs injury in a manner contrary
to morals, good customs and public policy. But in spite of the fact that
plaintiffs have clearly established that in illicit affair was carried on
between defendant and Lolita which caused great damage to the name and
reputation of plaintiffs who are her parents, brothers and sisters, the trial
court considered their complaint not actionable for the reason that they
failed to prove that defendant deliberately and in bad faith tried to win
Lolita's affection Thus, the trial court said: "In the absence of proof on this
point, the court may not presume that it was the defendant who deliberately
induced such relationship. We cannot be unmindful of the uncertainties and
sometimes inexplicable mysteries of the human emotions. It is a possibility
that the defendant and Lolita simply fell in love with each other, not only
without any desire on their part, but also against their better judgment and
in full consciousness of what it will bring to both of them. This is specially
so with respect to Lolita, being an unmarried woman, falling in love with
defendant who is a married man."
We disagree with this view. The circumstances under which
defendant tried to win Lolita's affection cannot lead, to any other
conclusion than that it was he who, thru an ingenious scheme or trickery,
seduced the latter to the extent of making her fall in love with him. This is
shown by the fact that defendant frequented the house of Lolita on the
pretext that he wanted her to teach him how to pray the rosary. Because of
the frequency of his visits to the latter's family who was allowed free access
because he was a collateral relative and was considered as a member of her
family, the two eventually fell in love with each other and conducted
clandestine love affairs not only in Gasan but also in Boac where Lolita
used to teach in a barrio school. When the rumors about their illicit affairs
reached the knowledge of her parents, defendant was forbidden from going
to their house and even from seeing Lolita. Plaintiffs even filed deportation
proceedings against defendant who is a Chinese national. Nevertheless,
defendant continued his love affairs with Lolita until she disappeared from
the parental home. Indeed, no other conclusion can be drawn from this
chain of events than that defendant not only deliberately, but through a
clever strategy, succeeded in winning the affection and love of Lolita to the
extent of having illicit relations with her. The wrong he has caused her and
her family is indeed immeasurable considering the fact that he is a married
man. Verily, he has committed an injury to Lolita's family in a manner
contrary to morals, good customs and public policy as contemplated in
Article 21 of the new Civil Code.
Tenchavez v. Escano
Held: Denial of consortium and desertion of her husband by the
wife constitute a wilful infliction of injury upon husband’s feelings in a
manner “contrary to morals, good customs or public policy (Civ. Code, Art.
21)” for which Article 2219(10) authorizes an award of moral damages.
E. UNJUST ENRICHMENT
Article 22. Every person who through an act of performance
by another, or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal ground,
shall return the same to him.
Article 2142. Certain lawful, voluntary and unilateral acts
give rise to the juridical relation of quasi-contract to the end that no
one shall be unjustly enriched or benefited at the expense of another.
The basis of this provision is the maxim Nemo Debet
Locupletari Ex Alterius Incommodo - no person should unjustly
enrich himself at the expense of another.
There is unjust enrichment when a person unjustly retains
a benefit at the loss of another, or when a person retains money or
property of another against the fundamental principles of justice,
equity and good conscience [PR Builders v. Hulst].
There is unjust enrichment under Article 22 of the Civil
Code when (1) a person is unjustly benefited, and (2) such benefit
is derived at the expense of or with damages to another [Filinvest
v. Ngilay].
Moreover, to substantiate a claim for unjust enrichment,
the claimant must unequivocally prove that another party
knowingly received something of value to which he was not
entitled and that the state of affairs are such that it would be unjust
for the person to keep the benefit. Unjust enrichment is a term used
to depict result or effect of failure to make remuneration of or for
property or benefits received under circumstances that give rise to
legal or equitable obligation to account for them; to be entitled to
remuneration, one must confer benefit by mistake, fraud, coercion,
or request. Unjust enrichment is not itself a theory of reconvey.
Page 23 of 75
Rather, it is a prerequisite for the enforcement of the doctrine of
restitution [Yon Mitori v. Union Bank].
Bliss Development v. Diaz
Held: – Notwithstanding the fact that Diaz is not an innocent
purchaser in good faith and for value, BDC is nevertheless liable to return
to him the amortizations which he already paid on the property, applying
unjust enrichment. Allowing BDC to keep the amortizations is tantamount
to unjust enrichment. It would result in BDC receiving amortizations twice
the amount it should have received, that is, the amortizations paid by Diaz
and Arreza. As a direct result of the ruling that Arreza is rightful buyer, the
buyer-seller relationship between Diaz and BDC is null and void. There
remains no valid consideration whatsoever for payments made by Diaz to
BDC.
Filinvest v. Ngilay
Held: Nevertheless, petitioner does not err in seeking the return
of the down payment as a consequence of the sale having been declared
void. The rule is settled that the declaration of nullity of a contract which is
void ab initio operates to restore things to the state and condition in which
they were found before the execution thereof. 17 Petitioner is correct in its
argument that allowing respondents to keep the amount received from
petitioner is tantamount to judicial acquiescence to unjust enrichment.
Unjust enrichment exists "when a person unjustly retains a benefit to the
loss of another, or when a person retains money or property of another
against the fundamental principles of justice, equity and good
conscience."18 There is unjust enrichment under Article 22 of the Civil Code
when (1) a person is unjustly benefited, and (2) such benefit is derived at
the expense of or with damages to another.19 Thus, the sale which created
the obligation of petitioner to pay the agreed amount having been declared
void, respondents have the duty to return the down payment as they no
longer have the right to keep it. The principle of unjust enrichment
essentially contemplates payment when there is no duty to pay, and the
person who receives the payment has no right to receive it. 20 As found by
the CA and undisputed by the parties, the amount or the down payment
made is P14,000,000.00 which shall also be the amount to be returned by
respondents.
1. Accion in Rem Verso
In order that accion in rem verso may prosper, the
essential elements must be present: (1) that the defendant has been
enriched, (2) that the plaintiff has suffered a loss, (3) that the
enrichment of the defendant is without just or legal ground, and (4)
that the plaintiff has no other action based on contract, quasi-
contract, crime or quasi-delict [University of Philippines v. Philab
Industries].
An accion in rem verso is considered merely an auxiliary
action, available only when there is no other remedy on contract,
quasi-contract, crime, and quasi-delict. If there is an obtainable
action under any other institution of positive law, that action must
be resorted to, and the principle of accion in rem verso will not lie
[Ibid].
Frenzel v. Catito
Held: Futile, too, is petitioners reliance on Article 22 of the New
Civil Code which reads:
Art. 22. Every person who through an act of performance by
another, or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal ground, shall
return the same to him.66cräläwvirtualibräry
The provision is expressed in the maxim: MEMO CUM
ALTERIUS DETER DETREMENTO PROTEST (No person should unjustly
enrich himself at the expense of another). An action for recovery of what
has been paid without just cause has been designated as an accion in rem
verso.67 This provision does not apply if, as in this case, the action is
proscribed by the Constitution or by the application of the pari
delicto doctrine.68 It may be unfair and unjust to bar the petitioner from
filing an accion in rem verso over the subject properties, or from recovering
the money he paid for the said properties, but, as Lord Mansfield stated in
the early case of Holman vs. Johnson:69 The objection that a contract is
immoral or illegal as between the plaintiff and the defendant, sounds at all
times very ill in the mouth of the defendant. It is not for his sake, however,
that the objection is ever allowed; but it is founded in general principles of
policy, which the defendant has the advantage of, contrary to the real
justice, as between him and the plaintiff.
Hulst v. PR Builders
Held: Ineluctably, the HLURB Decision resulted in the unjust
enrichment of petitioner at the expense of respondent. Petitioner received
more than what he is entitled to recover under the circumstances.
Article 22 of the Civil Code which embodies the maxim, nemo
ex alterius incommode debet lecupletari (no man ought to be made rich out
of another's injury), states:
Art. 22. Every person who through an act of performance by
another, or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal ground, shall
return the same to him.
The above-quoted article is part of the chapter of the Civil Code
on Human Relations, the provisions of which were formulated as basic
principles to be observed for the rightful relationship between human
beings and for the stability of the social order; designed to indicate certain
norms that spring from the fountain of good conscience; guides for human
conduct that should run as golden threads through society to the end that
law may approach its supreme ideal which is the sway and dominance of
justice.48 There is unjust enrichment when a person unjustly retains a
benefit at the loss of another, or when a person retains money or property of
another against the fundamental principles of justice, equity and good
conscience.49
A sense of justice and fairness demands that petitioner should
not be allowed to benefit from his act of entering into a contract to sell that
violates the constitutional proscription.
This is not a case of equity overruling or supplanting a positive
provision of law or judicial rule. Rather, equity is exercised in this case "as
the complement of legal jurisdiction [that] seeks to reach and to complete
justice where courts of law, through the inflexibility of their rules and want
of power to adapt their judgments to the special circumstances of cases, are
incompetent to do so."50
The purpose of the exercise of equity jurisdiction in this case is
to prevent unjust enrichment and to ensure restitution. Equity jurisdiction
aims to do complete justice in cases where a court of law is unable to adapt
its judgments to the special circumstances of a case because of the
inflexibility of its statutory or legal jurisdiction.51
The sheriff delivered to petitioner the amount of P5,313,040.00
representing the net proceeds (bidded amount is P5,450,653.33) of the
auction sale after deducting the legal fees in the amount
of P137,613.33.52 Petitioner is only entitled to P3,187,500.00, the amount of
the purchase price of the real property paid by petitioner to respondent
under the Contract to Sell. Thus, the Court in the exercise of its equity
jurisdiction may validly order petitioner to return the excess amount
of P2,125,540.00.
LCK Industries v. Planters Development Bank
Held: Petitioner LCK’s obligation with the respondent bank was
already fully satisfied after the mortgaged properties were sold at the public
auction for more than the amount of petitioner LCK’s remaining debt with
the respondent bank. As the custodian of the proceeds from the foreclosure
sale, respondent bank has no legal right whatsoever to retain the excess of
the bid price in the sum of ₱1,893,916.67, and is under clear obligation to
return the same to petitioners.
In any case, this Court would not allow respondent bank to hide
behind the cloak of procedural technicalities in order to evade its obligation
to return the excess of the bid price, for such an act constitutes a violation
of the elementary principle of unjust enrichment in human relations.
Page 24 of 75
Under the principle of unjust enrichment - nemo cum alterius
detrimento locupletari potest - no person shall be allowed to enrich himself
unjustly at the expense of others. 47 This principle of equity has been
enshrined in our Civil Code, Article 22 of which provides:
Art. 22. Every person who through an act of performance by
another, or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal ground, shall
return the same to him.
We have held that there is unjust enrichment when a person
unjustly retains a benefit to the loss of another, or when a person retains the
money or property of another against the fundamental principles of justice,
equity and good conscience.48
Equity, as the complement of legal jurisdiction, seeks to reach
and complete justice where courts of law, through the inflexibility of their
rules and want of power to adapt their judgments to the special
circumstances of cases, are incompetent to do so. Equity regards the spirit
and not the letter, the intent and not the form, the substance rather than the
circumstance, as it is variously expressed by different courts. 49
It is the policy of the Court to afford party-litigants the amplest
opportunity to enable them to have their cases justly determined, free from
constraints of technicalities. Since the rules of procedures are mere tools
designed to facilitate the attainment of justice, it is well recognized that this
Court is empowered to suspend its operation, or except a particular case
from its operation, when the rigid application thereof tends to frustrate
rather promote the ends of justice.
Article 23. Even when an act or event causing damage to
another's property was not due to the fault or negligence of the
defendant, the latter shall be liable for indemnity if through the act or
event he was benefited.
It's another provision which is subsumed in the general
principle of unjust enrichment. This provision is in place because
unless there is a duty to indemnify, unjust enrichment will of
course occur.
Comparing it with Negotiorum Gestio, the latter takes
place when a person voluntarily takes charge of another's
abandoned business or property without the owner's authority.
Reimbursement must be made to the gestor for necessary and
useful expenses.
F. PARENS PATRIAE
Article 24. In all contractual, property or other relations,
when one of the parties is at a disadvantage on account of his moral
dependence, ignorance, indigence, mental weakness, tender age or
other handicap, the courts must be vigilant for his protection.
The provision is grounded upon the principle of parens
patria (father or parent of the country) which refers to the duty of
the state in safeguarding the rights of a person who is at a
disadvantage. Article 24 means that in case of doubt, such doubt
shall be construed and resolved in favor of the underdog.
G. THOUGHTLESS EXTRAVAGANCE
Article 25. Thoughtless extravagance in expenses for
pleasure or display during a period of acute public want or emergency
may be stopped by order of the courts at the instance of any
government or private charitable institution.
According to Tolentino, when the rich indulge in
thoughtless extravagance during a period of acute public want or
emergency, they may unwittingly kindle the flame of unrest in the
hearts of the poor who become more keenly conscious of their
poverty and who may rise against the obvious inequality. Such
display of pomp and frivolity tend to demoralize the suffering
masses and weaken the very structure of the social group.
Article 25 is called “SUMPTUARY LAW”. Sumptuary
laws are those which attempt to regulate habits of consumption.
Mao ganing “sumpt” like sumptuous. Lami kaonon. Lami i-
consume. Black defines them as laws made for the purpose of
restraining luxury or extravagance, particularly against inordinate
expenditures in the matter of apparel, food, furniture, jewelry, or
bags.
H. PROTECTION OF HUMAN DIGNITY
Article 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other
persons. The following and similar acts, though they may not constitute
a criminal offense, shall produce a cause of action for damages,
prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family
relations of another;
(3) Intriguing to cause another to be alienated from his
friends;
(4) Vexing or humiliating another on account of his religious
beliefs, lowly station in life, place of birth, physical defect, or other
personal condition.
The human personality must be exalted. The sacredness
of human personality is a concomitant consideration of every plan
for human amelioration. The touchstone of every system of law, of
the culture and civilization of every country, is how far it dignifies
man. If the statutes insufficiently protect a person from being
unjustly humiliated, in short, if human personality is not exalted —
then the laws are indeed defective. Thus, under this article, the
rights of persons are amply protected, and damages are provided
for violations of a person's dignity, personality, privacy and peace
of mind [Concepcion v. Court of Appeals].
1. Prying into the privacy of another's residence
Privacy is the expectation that confidential personal
information disclosed in a private place will not be disclosed to
third parties, when that disclosure would cause either
embarrassment or emotional distress to a person of reasonable
sensitivities. Information is interpreted broadly to include facts,
images, (e.g. photographs, videotapes) and disparaging opinions.
Take note that there are 2-part test on reasonableness of a
person's expectation of privacy.
a. Whether by his conduct, the individual exhibited an
expectation of privacy; and
b. Whether this expectation is one that society
recognizes as reasonable. The factual circumstances
of the case determines the reasonableness of the
expectation of privacy.
2. Meddling with or disturbing the private life or
family relations of another
The acts referred to in No. 2 are multifarious, and yet
many of them are not within the purview of the law in force.
Alienation of the affection of another's wife or husband, unless it
constituted adultery or concubinage, is not condemned by the law,
much as it may shock society. There are numerous acts, short of
criminal unfaithfulness, whereby the husband or the wife breaks
Page 25 of 75
the marital vows, thus causing untold moral suffering to the other
spouse [MVRS v. Islamic Da’wah].
RCPI v. Verchez
Held: RCPI’s negligence in not promptly performing its
obligation undoubtedly disturbed the peace of mind not only of Grace but
also her co-respondents. As observed by the appellate court, it disrupted the
"filial tranquillity" among them as they blamed each other "for failing to
respond swiftly to an emergency." The tortious acts and/or omissions
complained of in this case are, therefore, analogous to acts mentioned under
Article 26 of the Civil Code, which are among the instances of quasi-delict
when courts may award moral damages under Article 2219 of the Civil
Code.
3. Intriguing to cause another to be alienated from
his friends and Vexing or Humiliating Another.
Take note that there is no hard and fast rule as to what
would fall under this paragraph. what should be considered would
be, if a person's acts would cause alienation that something that
would alienate the feelings of another.
What matters in intentional infliction of mental distress is
what you made another person feel. In intentional infliction of
mental distress, the opinion of the community is immaterial to the
existence of the action although the Court can consider it in
awarding damages. What is material is the disturbance on the
mental or emotional state of the plaintiff who is entitled to peace of
mind. Requirements of libel have no application in intentional torts
under Article 26 where the impression of the public is immaterial
while the impact on the mind or emotion of the offended party is
more important. That is why in American jurisprudence, the tort of
intentional infliction of mental or emotional distress is completely
separate and distinct from libel and slander.
I. REFUSAL OR NEGLECT OF A PUBLIC OFFICER TO
PERFORM HIS OFFICIAL DUTY
Article 27. Any person suffering material or moral loss
because a public servant or employee refuses or neglects, without just
cause, to perform his official duty may file an action for damages and
other relief against the latter, without prejudice to any disciplinary
administrative action that may be taken.
The act referred to here is non-feasance.
J. UNFAIR COMPETITION
Article 28. Unfair competition in agricultural, commercial or
industrial enterprises or in labor through the use of force, intimidation,
deceit, machination or any other unjust, oppressive or highhanded
method shall give rise to a right of action by the person who thereby
suffers damage.
A monopoly is a privilege or peculiar advantage vested
in one or more persons or companies, consisting in the exclusive
right or power to carry on a particular business or trade,
manufacture a particular article, or control the sale or the whole
supply of a particular commodity. It is a form of market structure
in which one or only a few firms dominate the total sales of a
product or service. On the other have, a combination in restraint of
trade is an agreement or understanding between two or more
persons, in the form of a contract, trust, pool, holding company, or
other form of association, for the purpose of unduly restricting
competition, monopolizing trade and commerce in a certain
commodity, controlling its, production, distribution and price, or
otherwise interfering with freedom of trade without statutory
authority. Combination in restraint of trade refers to the means
while monopoly refers to the end.
Coca-Cola Bottlers v. Bernardo
Held: Petitioner cites Tolentino, who in turn cited Colin and
Capitant. According to the latter, the act of "a merchant [who] puts up a
store near the store of another and in this way attracts some of the latter's
patrons" is not an abuse of a right. 55 The scenario in the present case is
vastly different: the merchant was also the producer who, with the use of a
list provided by its distributor, knocked on the doors of the latter's
customers and offered the products at a substantially lower price.
Unsatisfied, the merchant even sold its products at a preferential rate to
another store within the vicinity. Jurisprudence holds that when a person
starts an opposing place of business, not for the sake of profit, but
regardless of Joss and for the sole purpose of driving a competitor out of
business, in order to take advantage of the effects of a malevolent purpose,
that person is guilty of a wanton wrong.
K. VIOLATION OF CIVIL LIBERTIES
Article 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats, violates or in
any manner impedes or impairs any of the following rights and
liberties of another person shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due
process of law;
(7) The right to a just compensation when private property
is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and
effects against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or
societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to
petition the Government for redress of grievances;
(14) The right to be a free from involuntary servitude in any
form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and
counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy and public trial, to meet the witnesses
face to face, and to have compulsory process to secure the attendance
of witness in his behalf;
(17) Freedom from being compelled to be a witness against
one's self, or from being forced to confess guilt, or from being induced
by a promise of immunity or reward to make such confession, except
when the person confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual
punishment, unless the same is imposed or inflicted in accordance with
a statute which has not been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not
the defendant's act or omission constitutes a criminal offense, the
aggrieved party has a right to commence an entirely separate and
distinct civil action for damages, and for other relief. Such civil action
shall proceed independently of any criminal prosecution (if the latter
be instituted), and may be proved by a preponderance of evidence.
Page 26 of 75
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
The responsibility herein set forth is not demandable from a
judge unless his act or omission constitutes a violation of the Penal
Code or other penal statute.
L. REFUSAL OR FAILURE TO RENDER AID OR
PROTECTION BY POLICE
Article 34. When a member of a city or municipal police
force refuses or fails to render aid or protection to any person in case
of danger to life or property, such peace officer shall be primarily
liable for damages, and the city or municipality shall be subsidiarily
responsible therefor. The civil action herein recognized shall be
independent of any criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
III
CIVIL PERSONALITY
A. GENERAL PROVISIONS
1. Juridical Capacity and Capacity to Act
Article 37. Juridical capacity, which is the fitness to be the
subject of legal relations, is inherent in every natural person and is lost
only through death. Capacity to act, which is the power to do acts with
legal effect, is acquired and may be lost. (n)
2. Limitations in Capacity to Act
Article 38. Minority, insanity or imbecility, the state of being
a deaf-mute, prodigality and civil interdiction are mere restrictions on
capacity to act, and do not exempt the incapacitated person from
certain obligations, as when the latter arise from his acts or from
property relations, such as easements. (32a)
Article 39. The following circumstances, among others,
modify or limit capacity to act: age, insanity, imbecility, the state of
being a deaf-mute, penalty, prodigality, family relations, alienage,
absence, insolvency and trusteeship. The consequences of these
circumstances are governed in this Code, other codes, the Rules of
Court, and in special laws. Capacity to act is not limited on account of
religious belief or political opinion.
A married woman, twenty-one years of age or over, is
qualified for all acts of civil life, except in cases specified by law. (n)
Article 38 restricts the capacity to act, while Article 39 is
broader in scope but it enumerates situations which merely modify
the capacity to act. Essentially, however, the objective of the two
codal provisions is the same, namely: to make an overview of the
situation that qualifies a person’s power to undertake acts which
can produce legal effects. The consequences of these restrictions
and modifications in a person’s capacity to act are provided by the
Civil Code itself, other codes, special laws and the Rules of Court.
Also, the two provisions are intended to give people not adept in
the technicalities of law an immediate sense that, since the Civil
Code principally provides rules governing the relationship between
and among men, women, juridical entities and even the
government, there are certain situations which may effectively,
juridically and legally affect such relationships.
B. NATURAL PERSONS
1. Commencement of Civil Personality
 Article 40. Birth determines personality; but the conceived
child shall be considered born for all purposes that are favorable to it,
provided it be born later with the conditions specified in the following
article. (29a)
Article 41. For civil purposes, the foetus is considered born if
it is alive at the time it is completely delivered from the mother's
womb. However, if the foetus had an intra-uterine life of less than
seven months, it is not deemed born if it dies within twenty-four hours
after its complete delivery from the maternal womb. (30a)
In Geluz v. Court of Appeals, the Supreme Court ruled
that a parent cannot invoke the concept of “provisional
personality’’ of a conceived child to obtain damages for and on
behalf of an aborted child considering that the conditions set in
Articles 40 and 41 were not met. However, the Supreme Court said
that the parents can obtain damages in their own right against the
doctor who caused the abortion for the illegal arrest of the normal
development of the spes hominis that was the foetus, i.e., on
account of distress and anguish attendant to its loss and
disappointment of their parental expectations. The parents,
however, must be shown not to have consented or acquiesced to the
abortion.
Continental Steel v. Montano
Held: Life is not synonymous with civil personality. One need
not acquire civil personality first before he/she could die. Even a child
inside the womb already has life. No less than Constitution recognizes the
life of the unborn from conception, that the State must protect equally with
the life of the mother. If the unborn already has life, then the cessation
thereof even prior to the child being delivered, qualifies as death. Since the
CBA did not provide a qualification for the ‘child dependent’ such is
understood in a more general sense which includes unborn fetus
2. End of Civil Personality
Article 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the
deceased is determined by law, by contract and by will. (32a)
3. Proof of Death
Article 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to which of them died
first, 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 shall be no transmission of rights from one to the other.
(33)
Article 43 specifically applies only to persons who are
called to succeed each other. The proof of death must be
established by positive evidence. However, it can likewise be
established by circumstantial evidence derived from facts. If ever
an inference is to be made, it must be derived from an existing fact.
Proof of death can never be established from mere inference arising
from another inference or from presumptions and assumptions.
Thus, in Joaquin v. Navarro, where the death of the mother and her
son occurred during the massacre of civilians in February, 1945
and at the time when Manila was being bombarded during the war,
the Supreme Court upheld the ruling of the trial court (which was
reversed by the Court of Appeals) that, from the evidence
presented, the son died before the mother.
C. JURIDICAL PERSONS
Article 44. The following are juridical persons:
(1) The State and its political subdivisions;
Page 27 of 75
(2) Other corporations, institutions and entities for public
interest or purpose, created by law; their personality begins as soon as
they have been constituted according to law;
(3) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical personality,
separate and distinct from that of each shareholder, partner or
member. (35a)
Article 45. Juridical persons mentioned in Nos. 1 and 2 of
the preceding article are governed by the laws creating or recognizing
them.
Private corporations are regulated by laws of general
application on the subject.
Partnerships and associations for private interest or purpose
are governed by the provisions of this Code concerning partnerships.
(36 and 37a)
Article 46. Juridical persons may acquire and possess
property of all kinds, as well as incur obligations and bring civil or
criminal actions, in conformity with the laws and regulations of their
organization. (38a)
Article 47. Upon the dissolution of corporations, institutions
and other entities for public interest or purpose mentioned in No. 2 of
article 44, their property and other assets shall be disposed of in
pursuance of law or the charter creating them. If nothing has been
specified on this point, the property and other assets shall be applied to
similar purposes for the benefit of the region, province, city or
municipality which during the existence of the institution derived the
principal benefits from the same. (39a)
Artificial persons include (1) a collection or succession
of natural persons forming a corporation; and (2) a collection of
property to which the law attributes the capacity of having rights
and duties. This class of artificial persons is recognized only to a
limited extent in our law. Example is the estate of a bankrupt or
deceased person. From this pronouncement, it can be gleaned that
the estate of the deceased person is a juridical person separate and
distinct from the person of the decedent and any other corporation.
This status of an estate comes about by operation of law. This is in
consonance with the basic tenet under corporation law that a
corporation has a separate personality distinct from its stockholders
and from other corporations to which it may be connected [Mayor
v. Tiu].
IV
MARRIAGE
(E.O. No. 209)
A. CONSTITUTIONAL PROVISIONS
Section 12, Article II of the 1987 Constitution provides:
SECTION 12. The State recognizes the sanctity of family
life and shall protect and strengthen the family as a basic autonomous
social institution. It shall equally protect the life of the mother and the
life of the unborn from conception. The natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the
Government.
Sections 1 and 2 of Article XV also provide:
SECTION 1. The State recognizes the Filipino
family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total
development.
 SECTION 2. Marriage, as an inviolable social
institution, is the foundation of the family and shall be protected
by the State.
B. REQUISITES OF MARRIAGE
Article 1. Marriage is a special contract of permanent union
between a man and a woman entered into in accordance with law for
the establishment of conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to stipulation,
except that marriage settlements may fix the property relations during
the marriage within the limits provided by this Code. (52a)
1. Essential Requisites
Article 2. No marriage shall be valid, unless these essential
requisites are present:
(1) Legal capacity of the contracting parties who must be a
male and a female; and
(2) Consent freely given in the presence of the solemnizing
officer. (53a)
a. Legal Capacity
Article 5. Any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in Articles 37
and 38, may contract marriage. (54a)
In Silverio v. Republic, G, where the petitioner who had a
biological sex change from male to female through sex-
reassignment-surgery and where he sought the amendment of his
birth certificate to reflect the change in sex as a preliminary step to
get married to his partner, the Supreme Court rejected the said
petition and ruled that the sex determined by visually looking at the
genitals of a baby at the time of birth is immutable and that there is
no law legally recognizing sex reassignment.
However in Republic v. Cagandahan, where the
respondent was found out to have Congenital Adrenal Hyperplasia
(CAH) which is a condition where the person afflicted has both
male and female characteristics and organs and where, through
expert evidence, it was shown that the respondent, though
genetically a female, secreted male hormones and not female
hormones, had no breast, and did not have any monthly menstrual
period and where the respondent, in his mind and emotion, felt like
a male person and did not want to have surgery, the Supreme Court
considered the person as an “intersex individual” and granted the
preference of the person to be considered as a male person, thereby
allowing the amendment of the birth certificate of the person from
female to male.
b. Consent
Consent in marriage is simply the personal declaration
made by the groom and the bride during the marriage that they are
taking each other as husband and wife. If such consent is given
during the marriage ceremony and the same is not defective, the
marriage is perfectly valid, regardless of absence of love and the
purpose, intent and motive of the parties in contracting a marriage.
The absence of love does not affect the validity of the marriage.
Likewise, the fact that the marriage was entered into for other
purposes other than what the law or the Constitution declares does
not make the marriage void. In Republic v. Albios, where a citizen
of the Philippines got married to an American citizen solely for the
purpose of acquiring American citizenship in consideration of a
sum oof money, it was alleged that the marriage was void because
it was one made in jest and consent was therefore lacking. In
declaring the marriage to be valid, the Court ruled that there is no
law that declares a marriage void if it is entered into for purposes
Page 28 of 75
other than what the Constitution or law declares, such as the
acquisition of foreign citizenship. Thus, marriages entered into for
other purposes, limited or otherwise, such as convenience,
companionship, money, status and title, provided that they comply
with all the legal requisites, are equally valid. Love, though the
ideal consideration in a marriage contract, is not the only valid
cause for marriage.
The total absence of consent makes the marriage void ab
initio. However, consent in marriage obtained through fraud, force,
intimidation, or undue influence makes such marriage merely
annullable or voidable (valid until annulled). The vitiated manner
by which such consent is obtained merely renders defective such
consent.
In People v. Santiago, defendant-appellant Felipe
Santiago (Santiago) raped his niece, Felicita Masilang (Masilang),
and married her in a wedding ceremony solemnized by a church
minister. This Court considered the marriage "void for lack of
essential consent"26 on the part of either party. Explaining that
Santiago had no bona fide intention of taking Masilang as his wife,
this Court noted that "the marriage ceremony was a mere ruse by
which [Santiago] hoped to escape from the criminal consequences
of his act." It added that "the ceremony cannot be considered
binding on [Masilang] because of duress." 28 Moreover, this Court
noted that the "manner in which [Santiago] dealt with [Masilang]
after the marriage, as well as before," belied intent to marry and
cohabit.
Marriage Contract
A marriage contract is the best documentary evidence of
a marriage. Its existence renders unnecessary the presumption that
“a man and a woman deporting themselves as husband and wife
have entered into a lawful contract of marriage” [Villanueva v.
Court of Appeals].
Its absence is not, however, proof that no marriage took
place because other evidence may be presented to prove the fact of
marriage [Balogbog v. Court of Appeals]. Thus, the mere fact that
no record of the marriage exists in the registry of marriage does not
invalidate said marriage, as long as in the celebration thereof, all
requisites for its validity are present [People v. Borromeo].
Other proof of marriage are: (a) testimony of a witness to
the matrimony; (b) the couple’s public and open cohabitation as
hisband and wife after the alleged wedlock; (c) the birth and
baptismal certificates of children born during such union; and (d)
mention of such nuptials in subsequent documents [Trinidad v.
Court of Appeals].
2. Formal Requisites
Article 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for
in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the solemnizing officer
and their personal declaration that they take each other as husband
and wife in the presence of not less than two witnesses of legal age.
(53a, 55a)
a. Authority of the Solemnizing Officer
Article 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the
court’s jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his church or religious sect and
registered with the civil registrar general, acting within the limits of the
written authority granted by his church or religious sect and provided
that at least one of the contracting parties belongs to the solemnizing
officer’s church or religious sect;
(3) Any ship captain or airplane chief only in the case
mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is
assigned, in the absence of the latter, during a military operation,
likewise only in the cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case
provided in Article 10. (56a)
Article 23. It shall be the duty of the person solemnizing the
marriage to furnish either of the contracting parties the original of the
marriage certificate referred to in Article 6 and to send the duplicate
and triplicate copies of the certificate not later than fifteen days after
the marriage, to the local civil registrar of the place where the
marriage was solemnized. Proper receipts shall be issued by the local
civil registrar to the solemnizing officer transmitting copies of the
marriage certificate. The solemnizing officer shall retain in his file the
quadruplicate copy of the marriage certificate, the copy of the
marriage certificate, the original of the marriage license and, in proper
cases, the affidavit of the contracting party regarding the solemnization
of the marriage in place other than those mentioned in Article 8. (68a)
Article 22. The marriage certificate, in which the parties
shall declare that they take each other as husband and wife, shall also
state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the
marriage;
(4) That the proper marriage license has been issued
according to law, except in marriage provided for in Chapter 2 of this
Title;
(5) That either or both of the contracting parties have
secured the parental consent in appropriate cases;
(6) That either or both of the contracting parties have
complied with the legal requirement regarding parental advice in
appropriate cases; and
(7) That the parties have entered into marriage settlement, if
any, attaching a copy thereof. (67a)
(i) Members of the Judiciary
The members of the judiciary are:
 Justices of the Supreme Court
 Justices of the Court of Appeals
 Justices of the Sandiganbayan
 Judges of the Regional Trial Courts
 Judges of the Court of Tax Appeals
 Judges of the MTCs
They must be incumbent members and must solemnize
the marriage within the court’s jurisdiction.
An appellate court Justice or a Justice of this Court has
jurisdiction over the entire Philippines to solemnize marriages,
regardless of the venue, as long as the requisites of the law are
complied with. However, judges who are appointed to specific
jurisdictions, may officiate in weddings only within said areas and
not beyond. Where a judge solemnizes a marriage outside his
court's jurisdiction, there is a resultant irregularity in the formal
requisite laid down in Article 3, which while it may not affect the
validity of the marriage, may subject the officiating official to
administrative liability [Navarro v. Domagtoy].
In Keuppers v. Murcia, the jurisdiction of the MTCC
judge was only the Island Garden City of Samal but the judge
solemnized the marriage in Davao City, or outside of the court’s
jurisdiction. The Court ruled that a municipal trial court judge who
solemnizes a marriage outside his territorial jurisdiction violates
Article 7 of the Family Code, and is guilty of grave misconduct and
Page 29 of 75
conduct prejudicial to the best of the service and should be
properly sanctioned.
(ii) Priest, Rabbi, Imam and Other Religious
Ministers
The religious ministers:
 Must be duly authorized by his respective
church or sect in writing;
 Must have his written authority duly registered
with the Civil Registrar General;
 Must act within the limits of such written
authority; and
 Must have at least one of the contracting
parties belong to his church or sect.
Tilar v. Tilar
Held: The marriage of petitioner and respondent which was
solemnized by a Catholic priest and was held in a church was in accordance
with the above-quoted provisions. Although, marriage is considered a
sacrament in the Catholic church, it has civil and legal consequences which
are governed by the Family Code. As petitioner correctly pointed out, the
instant petition only seeks to nullify the marriage contract between the
parties as postulated in the Family Code of the Philippines; and the
declaration of nullity of the parties' marriage in the religious and
ecclesiastical aspect is another matter.17 Notably, the proceedings for church
annulment which is in accordance with the norms of Canon Law is not
binding upon the State as the couple is still considered married to each
other in the eyes of the civil law. Thus, the principle of separation of the
church and state finds no application in this case.
(iii) Ship Captain or Airplane Chief
The requisites for the validity of a marriage solemnized
by a ship captain or airplane chief are:
 The marriage must be in articulo mortis
 The marriage must be between passengers
and/or crew members.
Such authority may be exercised not only while the ship
is at sea or the plane is in flight but also during stopovers at ports
of calls.
(iv) Military Commanders of a Unit
The following are the requisites:
 The military commander must be a
commissioned officer, or an officer in the
armed forces holding a rank by virtue of a
commission from the President;
 Assigned chaplain to his unit must be absent;
 Marriage must be in articulo mortis; and
 Marriage must be solemnized within the zone
of military operations.
The contracting parties need not be members of the
armed forces. They can be civilians.
(v) Consul General, Consul or Vice Consul
Article 10. Marriages between Filipino citizens abroad may
be solemnized by a consul-general, consul or vice-consul of the
Republic of the Philippines. The issuance of the marriage license and
the duties of the local civil registrar and of the solemnizing officer with
regard to the celebration of marriage shall be performed by said
consular official. (75a)
 (vi) Mayors
Under the new Local Government Code which took
effect on January 1, 1992, the mayor of a city or municipality is
empowered to solemnize a marriage, any provision of law to the
contrary notwithstanding (Chapter 3, Article 1, Section 444 [xviii]
of the 1991 Local Government Code).
b. Valid Marriage License
Article 9. A marriage license shall be issued by the local civil
registrar of the city or municipality where either contracting party
habitually resides, except in marriages where no license is required in
accordance with Chapter 2 of this Title. (58a)
Article 20. The license shall be valid in any part of the
Philippines for a period of one hundred twenty days from the date of
issue, and shall be deemed automatically canceled at the expiration of
the said period if the contracting parties have not made use of it. The
expiry date shall be stamped in bold characters on the face of every
license issued. (65a)
c. Marriage Ceremony
Article 6. No prescribed form or religious rite for the
solemnization of the marriage is required. It shall be necessary,
however, for the contracting parties to appear personally before the
solemnizing officer and declare in the presence of not less than two
witnesses of legal age that they take each other as husband and wife.
This declaration shall be contained in the marriage certificate which
shall be signed by the contracting parties and their witnesses and
attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at
the point of death is unable to sign the marriage certificate, it shall be
sufficient for one of the witnesses to the marriage to write the name of
said party, which fact shall be attested by the solemnizing officer. (55a)
Article. 8. The marriage shall be solemnized publicly in the
chambers of the judge or in open court, in the church, chapel or
temple, or in the office the consul-general, consul or vice-consul, as the
case may be, and not elsewhere, except in cases of marriages contracted
on the point of death or in remote places in accordance with Article 29
of this Code, or where both of the parties request the solemnizing
officer in writing in which case the marriage may be solemnized at a
house or place designated by them in a sworn statement to that effect.
(57a)
The law sets minimum requirements constituting a
marriage ceremony: first, there should be the personal appearance
of the contracting parties before a solemnizing officer, and second,
their personal declaration in the presence of the solemnizing officer
that they take each other as husband and wife [Ronulo v. People].
There is no marriage ceremony if what transpired was a
mere private act of signing a marriage contract by the contracting
parties, without the presence of the solemnizing officer [Morigo v.
People].
3. Absence, Defect or Irregularity of the Essential
or Formal Requisites
Article 4. The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as stated in
Article 35 (2).
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
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. (n)
a. Absence of Essential or Formal Requisites
Page 30 of 75
Sy v. Court of Appeals
 From the documents she presented, the marriage license was
issued on September 17, 1974, almost one year after the ceremony took
place on November 15, 1973. The ineluctable conclusion is that the
marriage was indeed contracted without a marriage license. Nowhere do we
find private respondent denying these dates on record. Article 80 of the
Civil Code 31 is clearly applicable in this case. There being no claim of an
exceptional character, the purported marriage between petitioner and
private respondent could not be classified among those enumerated in
Articles 72-79 32 of the Civil Code. We thus conclude that under Article 80
of the Civil Code, the marriage between petitioner and private respondent is
void from the beginning.
Sevilla v. Cardenas
Held: At first glance, this case can very well be easily dismissed
as one involving a marriage that is null and void on the ground of absence
of a marriage license based on the certifications issued by the Local Civil
Registar of San Juan. As ruled by this Court in the case of Cariño v. Cariño:
[A]s certified by the Local Civil Registrar of San Juan, Metro
Manila, their office has no record of such marriage license. In Republic v.
Court of Appeals, the Court held that such a certification is adequate to
prove the non-issuance of a marriage license. Absent any circumstance of
suspicion, as in the present case, the certification issued by the local civil
registrar enjoys probative value, he being the officer charged under the law
to keep a record of all date relative to the issuance of a marriage license.
Such being the case, the presumed validity of the marriage of
petitioner and the deceased has been sufficiently overcome. It then became
the burden of petitioner to prove that their marriage is valid and that they
secured the required marriage license. Although she was declared in default
before the trial court, petitioner could have squarely met the issue and
explained the absence of a marriage license in her pleadings before the
Court of Appeals and this Court. But petitioner conveniently avoided the
issue and chose to refrain from pursuing an argument that will put her case
in jeopardy. Hence, the presumed validity of their marriage cannot stand.
It is beyond cavil, therefore, that the marriage between petitioner
Susan Nicdao and the deceased, having been solemnized without the
necessary marriage license, and not being one of the marriages exempt from
the marriage license requirement, is undoubtedly void ab initio.
The foregoing Decision giving probative value to the
certifications issued by the Local Civil Registrar should be read in line with
the decision in the earlier case of Republic v. Court of Appeals,14 where it
was held that:
The above Rule authorized the custodian of documents to certify
that despite diligent search, a particular document does not exist in his
office or that a particular entry of a specified tenor was not to be found in a
register. As custodians of public documents, civil registrars are public
officers charged with the duty, inter alia, of maintaining a register book
where they are required to enter all applications for marriage licenses,
including the names of the applicants, the date the marriage license was
issued and such other relevant data. (Emphasis supplied.)
Thus, the certification to be issued by the Local Civil Registrar
must categorically state that the document does not exist in his office or the
particular entry could not be found in the register despite diligent search.
Such certification shall be sufficient proof of lack or absence of record as
stated in Section 28, Rule 132 of the Rules of Court:
SEC. 28. Proof of lack of record. – a written statement signed by
an officer having the custody of an official record or by his deputy that after
diligent search, no record or entry of a specified tenor is found to exist in
the records of his office, accompanied by a certificate as above provided, is
admissible as evidence that the records of his office contain no such record
or entry.
We shall now proceed to scrutinize whether the certifications by
the Local Civil Registrar of San Juan in connection with Marriage License
No. 2770792 complied with the foregoing requirements and deserved to be
accorded probative value.
The first Certification15 issued by the Local Civil Registrar of
San Juan, Metro Manila, was dated 11 March 1994. It reads:
TO WHOM IT MAY CONCERN:
No Marriage License Number 2770792 were (sic) ever issued by
this Office. With regards (sic) to Marriage License Number 2880792,16 we
exert all effort but we cannot find the said number.
 Hope and understand our loaded work cannot give you our full
force locating the above problem.
San Juan, Metro Manila
March 11, 1994
(SGD)RAFAEL D. ALISCAD, JR.
Local Civil Registrar
The second certification was dated 20 September 1994 and
provides:
TO WHOM IT MAY CONCERN:
This is to certify that no marriage license Number 2770792 were
ever issued by this Office with regards to Marriage License Number
2880792, we exert all effort but we cannot find the said number.
Hope and understand our loaded work cannot give you our full
force locating the above problem.
San Juan, Metro Manila
September 20, 1994
(SGD)RAFAEL D. ALISCAD, JR.
Local Civil Registrar
The third Certification,18 issued on 25 July 2000, states:
TO WHOM IT MAY CONCERN:
This is to certify that according to the records of this office, no
Marriage License Application was filed and no Marriage License No.
2770792 allegedly dated May 19, 1969 was issued by this Office to MR.
JAIME O. SEVILLA and MS. CARMELITA CARDENAS-SEVILLA.
This is to further certify that the said application and license do
not exist in our Local Civil Registry Index and, therefore, appear to be
fictitious.
This certification is being issued upon the request of the
interested party for whatever legal intent it may serve.
San Juan, Metro Manila
July 25, 2000
(SGD)RAFAEL D. ALISCAD, JR.
Local Civil Registrar
Note that the first two certifications bear the statement that
"hope and understand our loaded work cannot give you our full force
locating the above problem." It could be easily implied from the said
statement that the Office of the Local Civil Registrar could not exert its best
efforts to locate and determine the existence of Marriage License No.
2770792 due to its "loaded work." Likewise, both certifications failed to
state with absolute certainty whether or not such license was issued.
This implication is confirmed in the testimony of the
representative from the Office of the Local Civil Registrar of San Juan, Ms.
Perlita Mercader, who stated that they cannot locate the logbook due to the
fact that the person in charge of the said logbook had already retired.
Further, the testimony of the said person was not presented in evidence. It
does not appear on record that the former custodian of the logbook was
deceased or missing, or that his testimony could not be secured. This belies
the claim that all efforts to locate the logbook or prove the material contents
therein, had been exerted.
As testified to by Perlita Mercader:
Q Under the subpoena duces tecum, you were required to bring
to this Court among other things the register of application of/or (sic) for
marriage licenses received by the Office of the :Local Civil Registrar of San
Juan, Province of Rizal, from January 19, 1969 to May 1969. Did you bring
with you those records?
A I brought may 19, 1969, sir.
Q Is that the book requested of you under no. 3 of the request for
subpoena?
A Meron pang January. I forgot, January . . .
Q Did you bring that with you?
A No, sir.
Q Why not?
A I cannot locate the book. This is the only book.
Q Will you please state if this is the register of marriage of
marriage applications that your office maintains as required by the manual
of the office of the Local Civil Registrar?
COURT
May I see that book and the portion marked by the witness.
xxxx
COURT
Why don't you ask her direct question whether marriage license
2880792 is the number issued by their office while with respect to license
no. 2770792 the office of the Local Civil Registrar of San Juan is very
definite about it it was never issued. Then ask him how about no. 2880792
Page 31 of 75
if the same was ever issued by their office. Did you ask this 2887092, but
you could not find the record? But for the moment you cannot locate the
books? Which is which now, was this issued or not?
A The employee handling it is already retired, sir.19
Given the documentary and testimonial evidence to the effect
that utmost efforts were not exerted to locate the logbook where Marriage
License No. 2770792 may have been entered, the presumption of regularity
of performance of official function by the Local Civil Registrar in issuing
the certifications, is effectively rebutted.
According to Section 3(m),20 Rule 131 of the Rules of Court,
the presumption that official duty has been regularly performed is among
the disputable presumptions.
In one case, it was held:
A disputable presumption has been defined as a species of
evidence that may be accepted and acted on where there is no other
evidence to uphold the contention for which it stands, or one which may be
overcome by other evidence. One such disputable/rebuttable presumption is
that an official act or duty has been regularly performed. x x x.21
The presumption of regularity of official acts may be rebutted
by affirmative evidence of irregularity or failure to perform a duty.22
The presumption of regularity of performance of official duty is
disputable and can be overcome by other evidence as in the case at bar
where the presumption has been effectively defeated by the tenor of the first
and second certifications.
Moreover, the absence of the logbook is not conclusive proof of
non-issuance of Marriage License No. 2770792. It can also mean, as we
believed true in the case at bar, that the logbook just cannot be found. In the
absence of showing of diligent efforts to search for the said logbook, we
cannot easily accept that absence of the same also means non-existence or
falsity of entries therein.
Finally, the rule is settled that every intendment of the law or
fact leans toward the validity of the marriage, the indissolubility of the
marriage bonds.23 The courts look upon this presumption with great favor.
It is not to be lightly repelled; on the contrary, the presumption is of great
weight.
Morimoto v. Morimoto
Held: Equally fatal to the registered marriage between petitioner
and respondent Yoshio is how no marriage license was ever issued to them.
The lack of a marriage license is borne by the evidence, most notably the
June 4, 2009 certification of the Office of the Civil Registrar, San Juan City
stating that it "has no record of Marriage License No. 6120159.
However, this Court has abandoned Sevilla's inordinately
stringent application of Republic v. Court of Appeals and Castro. It has
since been clarified that Rule 132, Section 28 of the Rules of Court does not
require a distinct, categorical statement to the effect that a diligent search
was conducted. The presumption of regularity in the performance of official
duty stipulated in Rule 131, Section 3(m) of the Rules of Court works to
create a presumption that concerned officers have made a diligent search.
Only when there is actual countervailing proof should those officers be
taken as having performed their tasks less than diligently.
Moreover, this Court's 2016 Decision in Kho v.
Republic explained the original wisdom of Republic v. Court of Appeals
and Castro, as well as how several subsequent decisions rendered by this
Court have declined to follow Sevilla's rigidity:
As to the sufficiency of petitioner's evidence, the OSG further
argues that, on the basis of this Court's ruling in Sevilla v. Cardenas, 24 the
certification issued by the local civil registrar, which attests to the absence
in its records of a marriage license, must categorically state that the
document does not exist in the said office despite diligent search.
However, in Republic of the Philippines v. Court of Appeals,
this Court considered the certification issued by the Local Civil Registrar as
a certification of due search and inability to find the record or entry sought
by the parties despite the absence of a categorical statement that "such
document does not exist in their records despite diligent search." The Court,
citing Section 28, 26 Rule 132 of the Rules of Court, held that the
certification of due search and inability to find a record or entry as to the
purported marriage license, issued by the civil registrar, enjoys probative
value, he being the officer charged under the law to keep a record of all data
relative to the issuance of a marriage license. Based on said certification,
the Court held that there is absence of a marriage license that would render
the marriage void ab initio.
 Moreover, as discussed in the abovestated case of Nicdao
Cariño v. Yee Cariño, this Court considered the marriage of the petitioner
and her deceased husband as void ab initio as the records reveal that the
marriage contract of petitioner and the deceased bears no marriage license
number and, as certified by the local civil registrar, their office has no
record of such marriage license. The court held that the certification issued
by the local civil registrar is adequate to prove the non-issuance of the
marriage license. Their marriage having been solemnized without the
necessary marriage license and not being one of the marriages exempt from
the marriage license requirement, the marriage of the petitioner and the
deceased is undoubtedly void ab initio. This ruling was reiterated in the
more recent case of Go-Bangayan v. Bangayan, Jr.
Furthermore, in the fairly recent case of Abbas v. Abbas, this
Court echoed the ruling in Republic v. CA that, in sustaining the finding of
the lower court that a marriage license was lacking, this Court relied on the
Certification issued by the local civil registrar, which stated that the alleged
marriage license could not be located as the same did not appear in their
records. Contrary to petitioner's asseveration, nowhere in the Certification
was it categorically stated that the officer involved conducted a diligent
search. In this respect, this Court held that Section 28, Rule 132 of the
Rules of Court does not require a categorical statement to this effect.
Moreover, in the said case, this Court ruled that:
Under Sec. 3(m), Rule 131 of the Rules of Court, it is a
disputable presumption that an official duty has been regularly performed,
absent contradiction or other evidence to the contrary. We held, "The
presumption of regu1arity of official acts may be rebutted by affirmative
evidence of irregu1arity or failure to perform a duty." No such affirmative
evidence was shown that the Municipal Civil Registrar was lax in
performing her duty of checking the records of their office, thus the
presumption must stand....
In all the abovementioned cases, there was clear and
unequivocal finding of the absence of the subject marriage license which
rendered the marriage void.
From these cases, it can be deduced that to be considered void
on the ground of absence of a marriage license, the law requires that the
absence of such marriage license must be apparent on the marriage contract,
or at the very least, supported by a certification from the local civil registrar
that no such marriage license was issued to the parties. (Citations omitted)
To reiterate, here, the Office of the Civil Registrar of San Juan
issued a June 4, 2009 Certificate stating that "no record of Marriage License
No. 6120159 was issued the Parties." 61 During trial, this certification was
presented along with the testimony of Mary Ann C. Chico, Registration
Officer III of the Office of the Civil Registrar, San Juan City. This
certification and testimony are akin to evidence on which turned two of the
cases cited in Kho.
Further, in Cariño v. Yee Cariño,63 the local civil registrar
certified that "their office has no record of such marriage license." 64 In Go-
Bangayan, "Teresita Oliveros (Oliveros), Registration Officer II of the
Local Civil Registrar of Pasig City... testified that the local civil registrar of
Pasig City did not issue Marriage License No. N-07568 to [the parties]
Benjamin and Sally."
Consistent with the standard laid out in Republic v. Court of
Appeals and Castro, applied in Cariño, Go-Bangayan, Abbas v. Abbas, and
clarified in Kho, this Court considers it adequately established that no
marriage license was ever issued in this case to petitioner and respondent
Yoshio. Moreover, it was neither alleged nor established that the marriage
registered between them falls under any of the exceptional marriages,
which Articles 27 to 34 of the Family Code identify as not needing a
marriage license.
Accordingly, in addition to there being no consent to enter into
marriage and no actual marriage ceremony being performed, the registered
marriage further lacks the formal requisite of a marriage license. For a
multiplicity of reasons, such marriage was inexistent. Therefore, the
Regional Trial Court and the Court of Appeals erred in denying Rosario's
Petition for Declaration of Nullity.
Cariaga v. Republic
Held: Hence, lest there be any confusion, the Court here clarifies
that in cases where the absence of a marriage license is sought to be
established through a certification issued by the local civil registrar, courts
must take a holistic approach in resolving the case. To borrow the language
in Vitangcol, the appreciation of the probative value of the certification
cannot be divorced from the purpose of its presentation, the cause of action
in the case, and the context of the presentation of the certification in
Page 32 of 75
relation to the other evidence presented in the case. 52 Accordingly~ courts
must assess the sufficiency of the certification with due regard to applicable
law and procedure, the attendant facts, and the evidence on record.
The 2015 QCCR Certification, taken together with applicable
law and procedure, the attendant facts, and the evidence on record, serves
as sufficient basis to hold that Lovelle and Henry 's marriage was
solemnized without a valid marriage license.
Bearing in mind the duties of the local civil registrar, the rules
governing the registration of applications for marriage license and
certificates of marriage, and the prevailing jurisprudence on the matter, the
Court finds the 2015 QCCR Certification sufficient to establish that Lovelle
and Henry's marriage had been solemnized without a valid marriage
license.
To recall, the first part of the 2015 QCCR Certification states
that "per Registry Records of marriage License files [in the CRD-QC] no
record of Marriage License No. 131078 dated November 9, 2000 allegedly
issued in favor of [Henry] and [Lovelle]"53 appears. This corroborates
Lovelle's testimony to the effect that she never appeared before the CRD-
QC to file an application for marriage license.
Hence, the first part of the 2015 QCCR Certification, when
considered in light of the procedure outlined in the Imp1ementing Rules
and in connection with Lovelle's testimony, confirms that Lovelle and
Henry did not file the required application for marriage license in
connection with Marriage License No. 131078.
The non-filing of the requisite application for marriage license is
rendered even more apparent by the second part of the 2015 QCCR
Certification, which states that the marriage license referred to in Lovelle
and Henry's Certificate of Marriage had acrually been issued to Yambao
and Parado. This statement is further supported by the documentary
evidence formally offered by Lovelle, namely: (i) the Application for
Marriage License filed by Yambao and Parado; (ii) the Marriage License
and Fee Receipt issued in favor of Yambao; (iii) the Sworn Statement that
Advice of Parents or Guardian Has Been Secured executed by Parado; and
(iv) the Notice of Application for Marriage License of Yambao and Parado.
Again, reference to Abbas is proper.
In Abbas, petitioner Syed Azhar Abbas (Syed) presented, as
proof of non-issuance of marriage license, a certification issued by the
Municipal Civil Registrar of Carmona to the effect that "the marriage
license number appearing in the marriage contract [Syed] submitted x xx
was the number of another marriage license issued to a certain Arlindo
Getalado and Myra Mabilangan.”
In addition, the certification stated that no marriage license
appears to have been issued to Syed and his wife Gloria Goo (Gloria) on
January 8, 1993, or the date of issuance indicated on their Certificate of
Marriage. 56 Gloria vehemently challenged the sufficiency of this
certificate, insisting that a marriage license had in fact been issued in their
favor. However, despite Gloria's assertions, the Court ruled in favor of
Syed, as follows:
It is telling that Gloria failed to present their marriage license or
a copy thereof to the court. She failed to explain why the marriage license
was secured in Cannon. Neither could the other witnesses she presented
prove the existence of the marriage license, as none of them applied for the
license in Carmona, Cavite. Her mother, Felicitas Goo, could not even
testify as to the contents of the license, having · admitted to not reading all
of its contents. Atty. Sanchez, one of the sponsors, whom Gloria and
Felicitas Goo approached for assistance in securing the license, admitted
not knowing where the license came from. The task of applying for the
license was delegated to a certain Qualin, who could have testified as to
how the license was secured and thus impeached the certification of the
Municipal Civil Registrar as well as the testimony of her representative. As
Gloria failed to present this Qualin, the certification of the Municipal Civil
Registrar still enjoys probative value.
It is also noted that the solemnizing officer testified that the
marriage contract and a copy of the marriage license were submitted to the
Local Civil Registrar of Manila. Thus, a copy of the marriage license could
have simply been secured from that office and submitted to the court.
However, Gloria inexplicably failed to do so, further weakening her claim
that there was a valid marriage license issued for her and Syed.
In the case of [Carino], following the case of [Castro], it was
held that the certification of the Local Civil Registrar that their office had
no record of a marriage license was adequate to prove the non-issuance of
said license. The case of Carino further held that the presumed validity of
the marriage of the parties had been overcome, and that it became the
burden of the party alleging a valid marriage to prove that the marriage was
valid, and that the required marriage license had been secured. Gloria has
failed to discharge that burden, and the only conclusion that l'.an be reached
is that no valid marriage license was issued. It cannot be said that there was
a simple irregularity in the marriage license that would not affect the
validity of the marriage, as no license was presented by the respondent. No
marriage license was proven to have been issued to Gloria and Syed, based
on the certification of the Mllilicipal Civil Registrar of Cannona, Cavite and
Gloria's failure to produce a copy of the alleged marriage license. 57
(Emphasis and underscoring supplied)
he circumstances in Abbas are strikingly similar to those in the
present case. Like the certificate presented in Abbas, the 2015 QCCR
Certification also states that the marriage license number indicated in
Lovelle and Henry's Certificate of marriage refers to a license issued to a
different couple. As well, similar to Gloria's allegations in Abbas, the
OSG's assertions regarding the insufficiency of the 2015 QCCR
Certification are unsubstantiated.
To recall, the Republic attacks the sufficiency of the 2015
QCCR Certification as it lacks a categorical statement that ACCR Carino
conducted "a diligent search" to find Lovelle and Henry's marriage license
in the records of CRD-QC.58 This argument lacks merit.
As already held in Abbas, the absence of the words "despite
diligent search" in the certification of the local civil registrar does not, on
its own diminish the probative value of the certification. Thus, the fact that
the 2015 QCCR Certification fails to specifically state that the marriage
license in question "does not exist" in their records, or could not be found
"despite diligent search", does not warrant its outright rejection. To
reiterate, the sufficiency of the 2015 QCCR Certification must be assessed
with due regard to applicable law and procedure, the attendant facts, and the
evidence on record.
Here, the allegations made by Lavelle before the CA suggest
that the CRD-QC exerted due diligence in trying to ascertain the existence
of the marriage license in question. As narrated by the CA:
Lovelle further explained that after the [RTC] Decision was
rendered, she returned to the [CRD-QC] purposely to request for the
issuance of another certification that would comply with what was
described in the [RTC Decision]. However, she was allegedly told that "it
could not issue a certification that no marriage license was issued in the
name of [Lavelle and Henry] because they could not retrieve all the
marriage licenses that its office had issued from the beginning and, that,
"there is no basis to search for their file or record because in the first place
they did not apply for a marriage license. What they could only issue is a
certification as to whom marriage license number 13 I 078 was issued as it
is the marriage license number appearing in their Certificate of Marriage."
Lovelle then attached to her brief a Certification dated [November 7, 2017]
issued anew by (Assistant City Civil Regis1rarj Salvador G. Carino, Jr.,
which appears to be similarly worded as the [2015 QCCR Certification]
presented and formally offered as Exhibit E.
b. Defect
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
c. Irregularity
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. In Alcantara v. Alcantara, the petitioner attempted to
demolish the probative value of the marriage license by claiming
that neither he nor the respondent was a resident of Carmona,
Cavite where the marriage license was allegedly obtained. The
Court ruled that the issuance of a marriage license in a city or
municipality which is not the residence of either of the contracting
parties, and the issuance of a marriage license despite the absence
of publication or prior to the completion of the 10-day period for
publication, are mere irregularities in a formal requisite that do not
affect the validity of the marriage.
The solemnizing officer does not even have to investigate
whether or not the license has been properly issued by the local
civil registrar [People v. Janssen]. All the solemnizing officer
needs to know is that the license has been issued by the competent
official, and it may be presumed from the issuance of the license
Page 33 of 75
that said official has fulfilled the duty to ascertain whether the
contracting parties had fulfilled the requirements of law [Alcantara
v. Alcantara].
Where a judge solemnized a marriage outside his court’s
jurisdiction, this is a mere irregularity in the formal requisite,
which while it may not affect the validity of the marriage, may
subject the officiating official to administrative liability [Navarro
v. Domagtoy].
4. When Either or Both Contracting Parties are
Foreign Nationals
Article 21. When either or both of the contracting parties
are citizens of a foreign country, it shall be necessary for them before a
marriage license can be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective diplomatic or
consular officials.
Stateless persons or refugees from other countries shall, in
lieu of the certificate of legal capacity herein required, submit an
affidavit stating the circumstances showing such capacity to contract
marriage. (66a)
The legal capacity to contract marriage is determined by
the national law of the party concerned. The certificate mentioned
in Article 21 of the Family Code would have been sufficient to
establish the legal capacity of respondent, had he duly presented it
in court. A duly authenticated and admitted certificate is prima
facie evidence of legal capacity to marry on the part of the alien
applicant for a marriage license [Garcia-Recio v. Recio].
C. MARRIAGES EXEMPTED FROM LICENSE
REQUIREMENT
1. Marriage in Articulo Mortis
Article 27. In case either or both of the contracting parties
are at the point of death, the marriage may be solemnized without
necessity of a marriage license and shall remain valid even if the ailing
party subsequently survives. (72a)
2. Marriages in Remote Places
Article 28. If the residence of either party is so located that
there is no means of transportation to enable such party to appear
personally before the local civil registrar, the marriage may be
solemnized without necessity of a marriage license. (72a)
Article 29. In the cases provided for in the two preceding
articles, the solemnizing officer shall state in an affidavit executed
before the local civil registrar or any other person legally authorized to
administer oaths that the marriage was performed in articulo mortis or
that the residence of either party, specifying the barrio or barangay, is
so located that there is no means of transportation to enable such party
to appear personally before the local civil registrar and that the officer
took the necessary steps to ascertain the ages and relationship of the
contracting parties and the absence of legal impediment to the
marriage. (72a)
Article 30. The original of the affidavit required in the last
preceding article, together with the legible copy of the marriage
contract, shall be sent by the person solemnizing the marriage to the
local civil registrar of the municipality where it was performed within
the period of thirty days after the performance of the marriage. (75a)
3. Articulo Mortis between Passengers or Crew
Members
 Article 31. A marriage in articulo mortis between passengers
or crew members may also be solemnized by a ship captain or by an
airplane pilot not only while the ship is at sea or the plane is in flight,
but also during stopovers at ports of call. (74a)
4. Articulo Mortis between Persons within the Zone
of Military Operation
Article 32. A military commander of a unit, who is a
commissioned officer, shall likewise have authority to solemnize
marriages in articulo mortis between persons within the zone of
military operation, whether members of the armed forces or civilians.
(74a)
5. Between Muslims and Ethnic Cultural
Communities
Article 33. Marriages among Muslims or among members of
the ethnic cultural communities may be performed validly without the
necessity of marriage license, provided they are solemnized in
accordance with their customs, rites or practices. (78a)
A party to a civil marriage who converts to Islam and
contracts another marriage, despite the first marriage's subsistence,
is guilty of bigamy. Likewise guilty is the spouse in the subsequent
marriage. Conversion to Islam does not operate to exculpate them
from criminal liability [Malaki v. People].
Malaki v. People
Held: Nollora v. People, People v. Ong, and Sayson v.
People, affirmed appellants' conviction for bigamy on defenses invoking
Article 180 of the Muslim Code or the parties' religion.
These cases involved similar facts with the case at hand. The
male party to a subsisting civil marriage converted to Islam and
subsequently married another woman. On charges of bigamy, appellants
invoked Article 180 of the Muslim Code, countering that Muslims may not
be indicted of the crime.
This Court rules in the same manner and maintains its stance.
Sayson echoed Nollora in ruling that "a Muslim man who shall
knowingly contract a subsequent marriage without complying with the
conditions set forth under [the Muslim Code] . . . cannot claim exemption
from liability for the crime of [b]igamy." Ong also ruled the same.
None of the cases which petitioners cited apply here.
Sulu Islamic Association of Masjid Lambayong v. Judge
Malik involved an administrative complaint for immorality and nepotism
against Judge Malik who admitted having two wives. This Court held that
he was not immoral considering that he is a Muslim, and shari'a
conditionally permits polygamy. This Court acknowledged that his first
wife consented to the subsequent marriage, and has no ill feelings about it.
His first wife stated that Judge Malik did not neglect his duties to his
children.
Zamoranos neither applies. Zamoranos, a Muslim, was
exculpated from bigamy since she was previously divorced from her first
husband, who is also a Muslim. This Court upheld the finding that there
was a valid divorce which allowed her to marry Pacasum. The
circumstances surrounding Zamoranos are completely different from this
Petition, as it involved marriages between Muslims.
Artadi-Bondagjy v. Bondagjy must be revisited when a proper
case calls for it. There, petitioner converted to Islam and married a fellow
Muslim under Muslim rites. She reverted to Catholicism upon her
separation from her husband. In granting her custody of their children –
which is merely incidental to the couple's separation – this Court applied
the Family Code, ruling that the Muslim Code no longer governed since
petitioner converted back to Catholicism. This appears to be anomalous. It
is inconsistent with how the Muslim Code governs the nature,
consequences, and incidents of Muslim marriages and divorce. In contracts
of marriage, the applicable law is that which governs at the time of
marriage, and is not dependent on petitioner's religion at the time of filing
the suit.
Page 34 of 75
All told, this Court affirms the Court of Appeals' ruling that
petitioners are guilty of bigamy under Article 349 of the Revised Penal
Code.
The penalty is, however, modified. Petitioners are each
sentenced to an indeterminate penalty of two years and four months
of prisión correccional as minimum to eight years and one day of prisión
mayor as maximum.
Our pluralist society recognizes that legal institutions may not
be subsumed in a homogenous legal system. We enact laws to "preserve
and develop [the] cultures, traditions and institutions" [93] of indigenous
cultural communities and religious minority which come from various
sources. Concomitantly, we enabled a system where these laws co-exist and
simultaneously operate.
However, this Court should not condone practices which
circumvent laws in the guise of preserving culture.
6. Legal Ratification of Marital Cohabitation
Article 34. No license shall be necessary for the marriage of
a man and a woman who have lived together as husband and wife for
at least five years and without any legal impediment to marry each
other. The contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he ascertained the
qualifications of the contracting parties are found no legal impediment
to the marriage. (76a)
For this provision on legal ratification of marital
cohabitation to apply, the following requisites must concur:
a. The man and woman must have been living together
as husband and wife for at least five years before the
marriage;
b. The parties must have no legal impediment to marry
each other;
c. The fact of absence of legal impediment between
the parties must be present at the time of marriage;
d. The parties must execute an affidavit stating that
they have lived together for at least five years [and
are without legal impediment to marry each other];
and
e. The solemnizing officer must execute a sworn
statement that he had ascertained the qualifications
of the parties and that he had found no legal
impediment to their marriage [Manzano v. Sanchez].
The falsity of the affidavit cannot be considered as a
mere irregularity in the formal requisites of marriage. The law
dispenses with the marriage license requirement for a man and a
woman who have lived together and exclusively with each other as
husband and wife for a continuous and unbroken period of at least
five years before the marriage. The aim of this provision is to avoid
exposing the parties to humiliation, shame and embarrassment
concomitant with the scandalous cohabitation of persons outside a
valid marriage due to the publication of every applicant’s name for
a marriage license. In the instant case, there was no "scandalous
cohabitation" to protect; in fact, there was no cohabitation at all.
The false affidavit which petitioner and respondent executed so
they could push through with the marriage has no value
whatsoever; it is a mere scrap of paper. They were not exempt from
the marriage license requirement. Their failure to obtain and
present a marriage license renders their marriage void ab initio [De
Castro v. De Castro].
Santiago v. People
Held: Here, respondent did not dispute that petitioner knew
Santos in more or less in February 1996 and that after six months of
courtship, she married him on 29 July 1997. Without any objection from
the prosecution, petitioner testified that Santos had frequently visited her in
Castellano, Nueva Ecija, prior to their marriage. However, he never
cohabited with her, as she was residing in the house of her in-laws, and her
children from her previous marriage disliked him. On cross examination,
respondent did not question the claim of petitioner that sometime in 1993,
she first met Santos as an agent who sold her piglets.
All told, the evidence on record shows that petitioner and Santos
had only known each other for only less than four years. Thus, it follows
that the two of them could not have cohabited for at least five years prior to
their marriage.
Santiago and Santos, however, reflected the exact opposite of
this demonstrable fact. Although the records do not show that they
submitted an affidavit of cohabitation as required by Article 34 of the
Family Code, it appears that the two of them lied before the solemnizing
officer and misrepresented that they had actually cohabited for at least five
years before they married each other. Unfortunately, subsequent to this lie
was the issuance of the Certificate of Marriage, in which the solemnizing
officer stated under oath that no marriage license was necessary, because
the marriage was solemnized under Article 34 of the Family Code.
The legal effects in a criminal case of a deliberate act to put a
flaw in the marriage
The Certificate of Marriage, signed by Santos and Santiago,
contained the misrepresentation perpetrated by them that they were eligible
to contract marriage without a license. We thus face an anomalous situation
wherein petitioner seeks to be acquitted of bigamy based on her illegal
actions of (1) marrying Santos without a marriage license despite knowing
that they had not satisfied the cohabitation requirement under the law; and
(2) falsely making claims in no less than her marriage contract.
We chastise this deceptive scheme that hides what is basically a
bigamous and illicit marriage in an effort to escape criminal prosecution.
Our penal laws on marriage, such as bigamy, punish an individual's
deliberate disregard of the permanent and sacrosanct character of this
special bond between spouses. In Tenebro v. Court of Appeals, we had the
occasion to emphasize that the State's penal laws on bigamy should not be
rendered nugatory by allowing individuals "to deliberately ensure that each
marital contract be flawed in some manner, and to thus escape the
consequences of contracting multiple marriages, while beguiling throngs of
hapless women with the promise of futurity and commitment."
Thus, in the case at bar, we cannot countenance petitioner's
illegal acts of feigning a marriage and, in the same breath, adjudge her
innocent of the crime. For us, to do so would only make a mockery of the
sanctity of marriage.
Furthermore, it is a basic concept of justice that no court will
"lend its aid to x x x one who has consciously and voluntarily become a
party to an illegal act upon which the cause of action is founded." If the
cause of action appears to arise ex turpi causa or that which involves a
transgression of positive law, parties shall be left unassisted by the
courts. As a result, litigants shall be denied relief on the ground that their
conduct has been inequitable, unfair and dishonest or fraudulent, or
deceitful as to the controversy in issue.
Here, the cause of action of petitioner, meaning her affirmative
defense in this criminal case of bigamy, is that her marriage with Santos
was void for having been secured without a marriage license. But as
elucidated earlier, they themselves perpetrated a false Certificate of
Marriage by misrepresenting that they were exempted from the license
requirement based on their fabricated claim that they had already cohabited
as husband and wife for at least five years prior their marriage. In violation
of our law against illegal marriages, petitioner married Santos while
knowing full well that they had not yet complied with the five-year
cohabitation requirement under Article 34 of the Family Code.
Consequently, it will be the height of absurdity for this Court to allow
petitioner to use her illegal act to escape criminal conviction.
The applicability of People v. De Lara
Petitioner cites De Lara as the relevant jurisprudence involving
an acquittal for bigamy on the ground that the second marriage lacked the
requisite marriage license. In that case, the Court found that when Domingo
de Lara married his second wife, Josefa Rosales, on 18 August 1951, the
local Civil Registrar had yet to issue their marriage license on 19 August
1951. Thus, since the marriage was celebrated one day before the issuance
of the marriage license, the Court acquitted him of bigamy.
Noticeably, Domingo de Lara did not cause the falsification of
public documents in order to contract a second marriage. In contrast,
petitioner and Santos fraudulently secured a Certificate of Marriage, and
petitioner later used this blatantly illicit act as basis for seeking her
Page 35 of 75
exculpation. Therefore, unlike our treatment of the accused in De Lara, this
Court cannot regard petitioner herein as innocent of the crime.
No less than the present Constitution provides that "marriage, as
an inviolable social institution, is the foundation of the family and shall be
protected by the State."  It must be safeguarded from the whims and
caprices of the contracting parties. in keeping therefore with this
fundamental policy, this Court affirms the conviction of petitioner for
bigamy.
D. MARRIAGE SOLEMNIZED ABROAD AND FOREIGN
DIVORCE
Article 26. All marriages solemnized outside the Philippines,
in accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and
38. (17a)
Where a marriage between a Filipino citizen and a foreigner
is validly celebrated and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (As
amended by Executive Order 227)
1. Validity of Marriages Celebrated Abroad
For marriages involving Filipinos celebrated abroad, the
rule is that such marriages are considered valid in the Philippines if
they are valid in the place where they are celebrated. Hence, the
following marriages are valid:
a. Marriages without a marriage license if such is not
required in the place of celebration. However, if the
marriage is celebrated before the Philippine consular
officials pursuant to Article 10, a marriage license is
still necessary.
b. Marriages celebrated by a person who is authorized
to solemnize marriages in the place of celebration
even if he or she is not deemed authorized to
solemnize marriages under Philippine laws.
c. Marriages by proxy, if valid in the place of
celebration.
d. Marriages through video conferencing, if valid in
the place of celebration.
However, the following marriages are void even if they
are celebrated abroad and considered valid in the place of their
celebration:
a. If a party thereto is below 18 and he or she is a
Filipino.
b. If the marriage is bigamous or polygamous.
c. If the marriage is contracted through mistake of one
contracting party as to the identity of the other.
d. If one of the contracting parties in a subsequent
marriage is already a party to a prior marriage which
has been annulled or judicially declared void but
failed to comply with the requirements of Article
52.
e. If one of the parties to such marriage, at the time of
its celebration, is psychologically incapacitated to
comply with the essential marital obligations.
f. If the marriage is incestuous.
g. If the marriage is void by reason of public policy as
enumerated in Article 38 of the Family Code.
2. Foreign Divorce
The rules on divorce prevailing in this jurisdiction can be
summed up as follows: first, Philippine laws do not provide for
absolute divorce, and hence, the courts cannot grant the same;
second, consistent with Articles 15 and 17 of the Civil Code, the
marital bond between two Filipino citizens cannot be dissolved
even by an absolute divorce obtained abroad; third, an absolute
divorce obtained abroad by a couple, who are both aliens, may be
recognized in the Philippines, provided it is consistent with their
respective national laws; and fourth, in mixed marriages involving
a Filipino and a foreigner, the former is allowed to contract a
subsequent marriage in case the absolute divorce is validly
obtained abroad by the alien spouse capacitating him or her to
remarry [Morisono v. Morisono].
a. Divorce Between Filipinos
Philippine law does not provide for absolute divorce;
hence, our courts cannot grant it. A marriage between two Filipinos
cannot be dissolved even by a divorce obtained abroad, because of
Articles 15 and 17 of the Civil Code [Garcia v. Recio]. Such
divorce between Filipinos is void and ineffectual [Lavadia v. Heirs
of Luna] because it is contrary to our public policy and morality
[Bayot v. Court of Appeals]. This rule has remained even under the
Family Code, even if either or both parties are residing abroad
[Lavadia v. Heirs of Luna].
b. Divorce Between a Filipino and a Foreigner
In a mixed marriage involving a Filipino citizen and a
foreigner, the Family Code allows the former to remarry in case the
divorce is “validly obtained abroad by the alien spouse capacitating
him or her to remarry.”
According to Republic v. Orbecido III, the following
elements must concur in order for said law to apply, namely: (a)
that there is a valid marriage celebrated between a Filipino citizen
and a foreigner, and (b) that a valid divorce is obtained abroad by
the alien spouse capacitating him or her to remarry.
However, in the landmark case of Republic v. Manalo,
the Court En Banc extended the application of Article 26(2) of the
Family Code to further cover mixed marriages where it was the
Filipino citizen who divorced his/her foreign spouse. The Court
explained: (1) the letter of the law does not demand that the alien
spouse should be the one who initiated the proceeding wherein the
divorce decree was granted and does not distinguish whether the
Filipino spouse is the petitioner or the respondent in the foreign
divorce proceeding; (2) assuming arguendo that the word
“obtained” should be interpreted to mean that the divorce
proceeding must be actually initiated by the alien spouse, still, the
Court will not follow the letter of the statute when to do so would
depart from the true intent of the legislature or would otherwise
yield conclusions inconsistent with the general purpose of the act;
(3) the purpose of the law is to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after a
foreign divorce decree that is effective in the country where it was
rendered, is no longer married to the Filipino spouse. Thus,
pursuant to Manalo, foreign divorce decrees obtained to nullify
marriages between a Filipino and an alien citizen may already be
recognized in this jurisdiction, regardless of who between the
spouses initiated the divorce; provided, of course, that the party
petitioning for the recognition of such foreign divorce decree –
presumably the Filipino citizen – must prove the divorce as a fact
and demonstrate its conformity with the foreign law allowing it
[Morisono v. Morisono].
This ruling in Manalo was reiterated in Racho v. Tanaka,
Morisono v. Morisono, Juego-Sakai v. Republic, and Nullada v.
Civil Registrar of Manila. In all these cases, the divorce was
obtained by the mutual agreement of the spouses. Recent
jurisprudence, therefore, holds that a foreign divorce may be
recognized in this jurisdiction as long as it is validly obtained,
regardless of who among the spouses initiated the divorce
proceedings.
Page 36 of 75
Thus, in a foreign divorce between a Filipino and an
alien, it is immaterial which spouse initiated the divorce
proceedings abroad in light of the fundamental equality of women
and men before the law. Once a divorce decree is issued by a
competent foreign court, the alien spouse is deemed to have
obtained the divorce as required in Article 26(2) of the Family
Code [Abel v. Rule].
Galapon v. Republic
Held: Based on the records, Cynthia and Park obtained a divorce
decree by mutual agreement under the laws of South Korea. The sufficiency
of the evidence presented by Cynthia to prove the issuance of said divorce
decree and the governing national law of her husband Park was not put in
issue. In fact, the CA considered said evidence sufficient to establish the
authenticity and validity of the divorce in question:
x x x [T]he records show that [Cynthia] submitted, inter alia, the
original and translated foreign divorce decree, as well as the required
certificates proving its authenticity. She also offered into evidence a copy
of the Korean Civil Code, duly authenticated through a Letter of
Confirmation with Registry No. 2013-020871, issued by the Embassy of
the Republic of Korea in the Philippines. These pieces of evidence may
have been sufficient to establish the authenticity and validity of the divorce
obtained by the estranged couple abroad but [the CA agrees] with the OSG
that the divorce cannot be recognized in this jurisdiction insofar as
[Cynthia] is concerned since it was obtained by mutual agreement of a
foreign spouse and a Filipino spouse.41 (Emphasis and underscoring
supplied)
In this light, it becomes unnecessary to delve into the
admissibility and probative value of Abigail's testimony claiming that
Cynthia had been constrained to consent to the divorce. As confirmed
by Manalo, the divorce decree obtained by Park, with or without Cynthia's
conformity, falls within the scope of Article 26(2) and merits recognition in
this jurisdiction.
Abel v. Rule
Held: Here, petitioner and private respondent jointly filed for the
summary dissolution of their marriage and their petition was granted by the
Superior Court of California.
Public respondent avers that the divorce decree cannot be
recognized in our jurisdiction because it was not obtained solely by
petitioner, who was then the foreign spouse, as required by Article 26(2) of
the Family Code.
Public respondent is mistaken.
Adopting public respondent's strained interpretation will
likewise cause this Court to close its eyes to the fact that the laws in some
foreign countries "allow joint filing for a divorce decree to ensure that there
be less incrimination among the spouses, a more civil and welcoming
atmosphere for their children, and less financial burden for the families
affected.
Applying Manalo and the later case of Galapon to the present
case, that the divorce decree was obtained jointly by petitioner, then a
citizen of the United States of America, and private respondent, then a
Filipino citizen, is of no moment. They are deemed to have obtained the
divorce as required in Article 26(2) of the Family Code, capacitating them
to remarry under the Philippine law.
Applicable only to Filipino Spouse
Only the Filipino spouse can invoke the second
paragraph of Article 26 while the alien spouse can claim no right
under said provision. The Court explained that the provision was
included in the law to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse. The legislative
intent is for the benefit of the Filipino spouse, by clarifying his or
her marital status, settling the doubts created by the divorce decree.
Essentially, the second paragraph of Article 26 of the Family Code
provides the Filipino spouse a substantive right to have his or her
marriage to the alien spouse considered as dissolved, capacitating
him or her to remarry. Thus, if the Filipino spouse invokes the
second paragraph of Article 26, the action is not limited to the
recognition of the foreign divorce decree. If the court finds that the
decree capacitated the alien spouse to remarry, the courts can
declare that the Filipino spouse is likewise capacitated to contract
another marriage. No court in this jurisdiction, however, can make
a similar declaration for the alien spouse (other than that already
established by the decree), whose status and legal capacity are
generally governed by his national law. The unavailability of the
second paragraph of Article 26 to aliens does not, however,
necessarily strip the alien spouse of legal interest to petition our
courts for the recognition of his/her foreign divorce decree. The
foreign divorce decree itself, after its authenticity and conformity
with the alien’s national law have been duly proven according to
our rules of evidence, serves as a presumptive evidence of a right
in his/her favor [Corpuz v. Sto. Tomas].
c. Reckoning Point in Determining
Citizenship
A Filipino who is married to another Filipino is not
similarly situated with a Filipino who is married to a foreign
citizen. While a divorce decree obtained abroad by a Filipino
against another Filipino is null and void, a divorce decree obtained
in a mixed marriage is valid even as to the Filipino spouse if made
in accordance with the national law of the foreigner [Republic v.
Manalo]. For purposes therefore of determining the validity of the
divorce decree insofar as the Filipino is concerned, the citizenship
of the parties is important.
In the landmark case of Republic v. Orbecido III, the
Court ruled that the reckoning point is not the citizenship of the
parties at the time of the celebration of the marriage, but their
citizenship at the time a valid divorce is obtained abroad by the
alien spouse capacitating the latter to remarry. Once it is proven
that a party was no longer a Filipino citizen when he obtained the
divorce from his Filipino spouse, the rule in Article 26, paragraph 2
of the Family Code would be applicable. In other words, the
validity of the divorce will be determined based on the law of the
country of which he is a citizen at the time the valid divorce is
obtained [Quita v. Court of Appeals]. In Republic v. Orbecido III,
where the decree of divorce was obtained by a former Filipino
citizen, the Court applied Article 26, paragraph 2 of the Family
Code because at the time that such divorce was obtained, he was
already a naturalized citizen of a foreign country.
In Bayot v. Court of Appeals, the Court also recognized
as valid the absolute divorce obtained by Rebecca Bayot form the
Dominican Republic because it was found that she was still an
American citizen when the divorce decree was obtained, although
she acquired Philippine citizenship thereafter.
d. Divorce and National Law of Foreigner
Spouse
In Fujiki v. Marinay, the Court enunciated that "a petition
to recognize a foreign judgment declaring a marriage void does not
require relitigation under a Philippine court of the case as if it were
a new petition for declaration of nullity of marriage." It is outside
of the province of Philippine courts to conclude what the foreign
laws are, under which the foreign judgment was rendered; neither
can they substitute their judgment on the status, condition, and
legal capacity of the foreign citizen under the jurisdiction of
another State. Necessarily, Philippine courts may only recognize
such foreign judgment as a fact according to the rules of evidence.
The starting point in any recognition of a divorce
judgment is the acknowledgement that our courts do not take
judicial notice of foreign judgments and laws. This means that the
foreign judgment and its authenticity must be proven as facts under
our rules on evidence, together with the alien’s applicable national
law to show the effect of the judgment on the alien himself or
herself. Since both the foreign divorce decree and the national law
of the alien, recognizing his or her capacity to obtain a divorce,
Page 37 of 75
purport to be official acts of a sovereign authority, Section 24 of
Rule 132 of the Rules of Court applies. Thus, what is required is
proof, either by (1) official publications or (2) copies attested by
the officer having legal custody of the documents. If the copies of
official records are not kept in the Philippines, these must be (a)
accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b) authenticated by
the seal of his office [Juego-Sakai v. Republic].
Otherwise stated, to prove the foreign judgment and the
law on which it was based, the Section requires proof, either by (1)
official publications; or (2) copies attested by the officer having
legal custody of the documents. Should the copies of official
records be proven to be stored outside of the Philippines, they must
be (1) accompanied by a certificate issued by the proper diplomatic
or consular officer in the Philippine foreign service stationed in the
foreign country in which the record is kept; and (2) authenticated
by the seal of his office. If copies are offered into evidence, the
attestation: (I) must state that it is a correct copy of the original, or
a specific part thereof; and (2) must be under the official seal of the
attesting officer, or if he be the clerk of a court having a seal, under
such seal of said court [Rivera v. Woo Namsum].
While the law requires the entry of the divorce decree in
the civil registry, the law and the submission of the decree
themselves do not ipso facto authorize the decree’s registration.
The law should be read in relation with the requirement of a
judicial recognition of the foreign judgment before it can be given
res judicata effect. Thus, the registration of the foreign divorce
decree without the requisite judicial recognition is patently void
and cannot produce any legal effect. The recognition of the foreign
divorce decree may be made in a Rule 108 proceeding itself, as the
object of special proceedings is precisely to establish the status or
right of a party or a particular fact [Corpuz v. Sto. Tomas].
Morana v. Republic
Held: Petitioner identified, presented, and formally offered in
evidence the Divorce Report issued by the Office of the Mayor of
Fukuyama City. It clearly bears the fact of divorce by agreement of the
parties.
Both the trial court and the Court of Appeals, nonetheless,
declined to consider the Divorce Report as the Divorce Decree itself.
According to the trial court, the Divorce Report was "limited to the report
of the divorce granted to the parties." On the other hand, the Court of
Appeals held that the Divorce Report "cannot be considered as act of an
official body or tribunal as would constitute the divorce decree
contemplated by the Rules."
The Court is not persuaded. Records show that the Divorce
Report is what the Government of Japan issued to petitioner and her
husband when they applied for divorce. There was no "divorce judgment"
to speak of because the divorce proceeding was not coursed through
Japanese courts but through the Office of the Mayor of Fukuyama City in
Hiroshima Prefecture, Japan. In any event, since the Divorce Report was
issued by the Office of the Mayor of Fukuyama City, the same is deemed
an act of an official body in Japan. By whatever name it is called, the
Divorce Report is clearly the equivalent of the "Divorce Decree" in Japan,
hence, the best evidence of the fact of divorce obtained by petitioner and
her former husband.
Notably, the fact of divorce was also supported by the
Certificate of All Matters issued by the Japanese government to petitioner's
husband Minoru Takahashi, indicating the date of divorce, petitioner's name
from whom he got divorced and petitioner's nationality as well, thus:
[Date of Divorce] May 22, 2012
Divorce
[Name of Spouse] Juliet Moraña Takahashi
[Nationality of Spouse] Republic of the Philippines
More, petitioner submitted below a duly authenticated copy of
the Divorce Certificate issued by the Japanese government. The fact alone
that the document was submitted to the trial court without anyone
identifying it on the stand or making a formal offer thereof in evidence does
not call for dismissal of the petition.
 For one, the State did not question the existence of the Divorce authorization of the Ministry of Justice and the Code of Translation
Report, Divorce Certificate, and more importantly the fact of divorce Committee. At any rate, considering that the fact of divorce was duly
between petitioner and her husband. As Republic v. Manalo[26] proved in this case, the higher interest of substantial justice compels that
pronounced, if the opposing party fails to properly object, as in this case, petitioner be afforded the chance to properly prove the Japanese law on
the existence of the divorce report and divorce certificate decree is rendered divorce, with the end view that petitioner may be eventually freed from a
admissible as a written act of the foreign official body. marriage in which she is the only remaining party. In Manalo,[34] the
For another, petitioner explained that despite repeated prompt Court, too, did not dismiss the case, but simply remanded it to the trial court
requests from the Japanese Embassy, the latter released the Divorce for reception of evidence pertaining to the existence of the Japanese law on
Certificate quite belatedly after petitioner had already terminated her divorce.
testimony and returned to Japan to care for her children.
Still another, the Divorce Report, Certificate of All Matters, and
Rivera v. Woo Namsum
Divorce Certificate were all authenticated by the Japanese Embassy. These
Held: To prove the fact of divorce, petitioner presented
are proofs of official records which are admissible in evidence under
notarized copies of the said judgment with both English and Korean
Sections 19 and 24, Rule 132 of the Rules on Evidence, to wit:
translations. Attached thereto is a letter of confirmation by the Embassy of
Section 19. Classes of Documents. — For the purpose of their
the Republic of South Korea in the Philippines, which was signed by Chin
presentation (in) evidence, documents are either public or private.
Hyun Yong, as counselor and consul, as well as an Authentication
Public documents are:
Certificate by the DF A.
(a) The written official acts, or records of the official acts of the
This Court cannot deny the insufficiency of the evidence
sovereign authority, official bodies and tribunals, and public officers,
presented. While Chin Hyun Yong may be a counselor or consul of South
whether of the Philippines, or of a foreign country;
Korea, his capacity as such cannot be construed by this Court to mean that
xxx xxx xxx
he is an officer having legal custody of the judgment of divorce. In fact, the
Section 24. Proof of official record. — The record of public
Authentication Certificate issued by the DF A only certifies that the latter
documents referred to in paragraph (a) of Section 19, when admissible for
was, at the time of signing, a counselor and consul of the Embassy of the
any purpose, may be evidenced by an official publication thereof or by a
Republic of South Korea. Glaringly, nothing in the submitted documents
copy attested by the officer having the legal custody of the record, or by his
would even lead this Court to assume that he was indeed the legal custodian
deputy, and accompanied, if the record is not kept in the Philippines, with a
of the judgment of divorce as contemplated by the Rules. Woefully, Chin
certificate that such officer has the custody. If the office in which the record
Hyun Yong is, therefore, in no position to attest that the judgment of
is kept is in foreign country, the certificate may be made by a secretary of
divorce as found in the records is a genuine and correct copy of the original,
the embassy or legation, consul general, consul, vice consul, or consular
or a specific part thereof. Contrary to petitioner's insistence that the records
agent or by any officer in the foreign service of the Philippines stationed in
are found in the Philippines, it cannot be denied that the judgment of
the foreign country in which the record is kept, and authenticated by the
divorce is found abroad, being an official record of the Seoul Family Court.
seal of his office.
Being stored outside of the Philippines, the said judgment should have been
Finally, the Court has, time and again, held that the court's
accompanied by a certificate issued by a Philippine diplomatic or consular
primary duty is to dispense justice; and procedural rules are designed to
officer stationed in South Korea, which must be authenticated by his seal -
secure and not to override substantial justice. On several occasions, the
this, petitioner failed to attach.
Court relaxed procedural rules to advance substantial justice.[28] More so
On the other hand, to prove the law of South Korea as a fact,
here because what is involved is a matter affecting the lives of petitioner
petitioner offered in evidence a copy of the Civil Act of South Korea, a
and her children; the case is meritorious; the belated issuance of the
letter of confirmation from the Embassy of the Republic of South Korea in
Divorce Certificate was not due to petitioner's fault; and the relaxation of
the Philippines, and an Authentication Certificate from the DFA. The law
the rules here will not prejudice the State.
suffers the same fate as the judgment. Aside from being authenticated by
True, marriage is an inviolable social institution and must be
Chin Hyun Yong, who to reiterate, is in no position to ensure its existence,
protected by the State. But in cases like these, there is no more "institution"
there is no implication that the signature appearing thereon is genuine. This
to protect as the supposed institution was already legally broken. Marriage,
Court also hastens to point out that what the petitioner offered in evidence
being a mutual and shared commitment between two parties, cannot
was an English translation of the Civil Act of South Korea without further
possibly be productive of any good to the society where one is considered
proof whether such translation truly and accurately reflects the South
released from the marital bond while the other remains bound to it.
Korean law on divorce. Surely, an English translation, absent the original
Law on divorce in Japan
law in the Korean language is less than what is needed to persuade
This brings us to the next question: was petitioner able to prove
Philippine courts of the copy's authenticity.
the applicable law on divorce in Japan of which her former husband is a
In Racho v. Tanaka, 47 this Court affirmed the RTC's admission
national? On this score, Republic v. Manalo[31] ordained:
of the Japanese law as fact via the presentation of a copy of the English
Nonetheless, the Japanese law on divorce must still be proved.
version of the Civil Code of Japan, the translation of which was done under
x x x The burden of proof lies with the "party who alleges the
the authority of the Ministry of Justice and the Code of Translation
existence of a fact or thing necessary in the prosecution or defense of an
Committee. No such evidence was offered of the same manner; neither was
action." In civil cases, plaintiffs have the burden of proving the material
there any manifestation that the said 47 834 Phil. 21 (2018). Decision - 11 -
allegations of the complaint when those are denied by the answer; and
G.R. No. 248355 English translation was sanctioned by the government of
defendants have the burden of proving the material allegations in their
South Korea. Instead, all it mentioned was that the copy had been produced
answer when they introduce new matters. x x x
"within the area of consular authority of ( or seen at) the Korean
It is well-settled in our jurisdiction that our courts cannot take
Embassy"48 _ of Manila. More damning to petitioner's cause was her
judicial notice of foreign laws. Like any other facts, they must alleged and
outright admission of her nonpresentation of any certificate by the
proved. x x x The power of judicial notice must be exercised with caution,
Philippine Embassy in Korea or consular officials stationed in Korea as
and every reasonable doubt upon the subject should be resolved in the
required by Section 24, Rule 132 as proof of official records.
negative.
It bears to mention that the Court concedes to the principle laid
Since the divorce was raised by Manalo, the burden of proving
down in Williamette Iron and Steel Works v. Muzzal, 49 that the
the pertinent Japanese law validating it, as well as her former husband's
requirements under Sections 24 and 25, Rule 132 do not exclude the
capacity to remarry, fall squarely upon her. Japanese laws on persons and
reception of other competent evidence to prove the existence of a foreign
family relations are not among those matters that Filipino judges are
law. In Willamette, the Court considered the testimony under oath of an
supposed to know by reason of their judicial function.
attorney-at-law of San Francisco, California, who quoted verbatim a portion
Here, what petitioner offered in evidence were mere printouts of
of the California Civil Code as sufficient evidence to establish the existence
pertinent portions of the Japanese law on divorce and its English
of said law. No such evidence exists in the instant case. Instead, the Court is
translation.[32] There was no proof at all that these printouts reflected the
hard-pressed to evaluate the evidence as presented by petitioner, whose
existing law on divorce in Japan and its correct English translation. Indeed,
dearth cannot be simply brushed aside or disregarded. In the final analysis,
our rules require more than a printout from a website to prove a foreign
petitioner failed to demonstrate compliance with the Rules, thus, the
law. In Racho,[33] the Japanese law on divorce was duly proved through a
judgment of divorce and the law from which it draws basis may not be
copy of the English Version of the Civil Code of Japan translated under the
considered as facts before the courts.
Page 38 of 75
 Nevertheless, this Court agrees with petitioner and deems it
appropriate to remand the case to the RTC for further proceedings and
reception of evidence. Given that petitioner's marital and family life is at
stake, this Court finds no reason to withhold exercising liberality. After all,
as in the landmark case of Republic of the Philippines v. Manalo, 53 the
judgment of divorce and the corresponding Korean law was not duly
established, the existence of the judgment was not denied, the jurisdiction
of the Seoul Family Court was not impeached, nor the validity of the
foreign proceedings challenged. This action to remand is consistent with
Corpuz v. Sta. Tomas, 54 where the Court, despite having the ability to
dismiss the petition for insufficiency of supporting evidence, remanded the
case to the R TC in order to serve the interests of Article 26 of the Civil
Code.
V
VOID AND VOIDABLE MARRIAGES
A. VOID MARRIAGES
1. General Principles
a. Collateral Attack
A void marriage can be attacked collaterally. Under
ordinary circumstances, the effect of a void marriage, so far as
concerns the conferring of legal rights upon the parties, is as
though no marriage had ever taken place. And therefore, being
good for no legal purpose, its invalidity can be maintained in any
proceeding in which the fact of marriage may be material, either
direct or collateral, in any civil court between any parties at any
time, whether before or after the death of either or both the
husband and the wife, and upon mere proof of facts rendering such
marriage void, it will be disregarded or treated as non-existent by
the courts. Other than for purposes of remarriage, no judicial action
is necessary to declare a marriage an absolute nullity. For other
purposes, such as but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter,
the corut may pass upon the validity of marriage even in a suit not
directly instituted to question the same so long as it is essential to
the determination of the case. This is without prejudice to any issue
that may arise in the case. When such need arises, a final judgment
of declaration of nullity is necessary even if the opurpose is other
than to remarry. The clause “on the basis of a final judgment
declaring such previous marriage void” in Article 40 of the Family
Code connotes that such final judgment need not be obtained only
for purpose of remarriage [Ninal v. Bayadog].
b. No Legal Effect
Void marriages have no legal effects except those
expressly declared by law [Ninal v. Bayadog].
The parties to a void marriage are not in fact spouses.
Hence, they are not obliged to support each other. A trial court has
the jurisdiction to determine the validity of the marriage of the
parties in an action for support because the validity of a void
marriage may be collaterally attacked [De Castro v. De Castro]. If
the marriage is proven void, the surviving party is not a spouse
entitled to successional rights and the absolute nullity of the
marriage can still be raised even after the death of the deceased
spouse [Ninal v. Bayadog]. However, by reason of Article 40, the
marital vinculum of the previous marriage that is void ab initio
subsists for purposes of remarriage, unless the previous marriage is
judicially declared void ab initio by final judgment. Thus, if the
marital vinculum of the previous marriage subsists because of the
absence of judicial declaration of its nullity, the second marriage is
contracted during the existence of the first marriage resulting in a
bigamous marriage, and therefore void.
Page 39 of 75
As to property relations, in void marriages, regardless of
the cause thereof, the property relations of the parties during the
period of cohabitation are governed by Article 147 or 148, as the
case may be, except if the marriage is declared void by reason of
non-compliance of Article 40, the applicable property regime is
absolute community, conjugal partnership, or complete separation,
as the case may be [Valdez v. RTC].
As to effect on the children born to such void marriages,
children born ov void marriages are considered illegitimate [Article
165], but children of void marriages under Articles 36 and 53 are
exceptionally declared as legitimate [Article 54].
2. Marriages Void Ab Initio
Article 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen years of
age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted with either
or both parties believing in good faith that the solemnizing officer had
the legal authority to do so;
(3) Those solemnized without license, except those covered
the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing
under Article 41;
(5) Those contracted through mistake of one contracting
party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article
53.
3. Psychological Incapacity
Article 36. A marriage contracted by any party who, at the
time of the celebration, was psychologically incapacitated to comply
with the essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its solemnization.
(As amended by Executive Order 227)
In the very recent case of Tan-Andal v. Andal, the
Court En Banc revisited the concept of psychological incapacity
and how through the years it was invariably interpreted and applied
as a mere medical condition which hinged on mental incapacity or
personality disorder. Following a series of open, robust, and
studious deliberations, the Court, voting as one, ultimately agreed
on a reconfigured concept of psychological incapacity:
x x x Psychological incapacity is neither a mental
incapacity nor only a personality disorder that must be
proven through expert opinion. There may now be proof of
the durable aspects of a person's personality, called
"personality structure," which manifests itself through clear
acts of dysfunctionality that undermines the family. The
spouse's personality structure must make it impossible for
him or her to understand and, more importantly, to comply
with his or her essential marital obligations.
Proof of these aspects of personality need not be
given by an expert. Ordinary witnesses who have been present
in the life of the spouses before the latter contracted marriage
may testify on behaviors that they have consistently observed
from the supposedly incapacitated spouse. From there, the judge
will decide if these behaviors are indicative of a true and serious
incapacity to assume the essential marital obligations.
In this way, the Code Committee's intent to limit the
incapacity to "psychic causes" is fulfilled. Furthermore, there
will be no need to label a person as having a mental disorder just
to obtain a decree of nullity. x x x
Difficult to prove as it may be, a party to a nullity
case is still required to prove juridical antecedence because it
is an explicit requirement of the law.
xxxx
 Furthermore, not being an illness in a medical
sense, psychological incapacity is not something to be healed
or cured. And even if it were a mental disorder, it cannot be
described in terms of being curable or incurable.
xxxx
Therefore, reading together the deliberations of the
Joint Committee and our rulings in Santos and Molina, we hold
that the psychological incapacity contemplated in Article 36
of the Family Code is incurable, not in the medical, but in
the legal sense; hence, the third Molina guideline is amended
accordingly. This means that the incapacity is so enduring and
persistent with respect to a specific partner, and
contemplates a situation where the couple's respective
personality structures are so incompatible and antagonistic
that the only result of the union would be the inevitable and
irreparable breakdown of the marriage. "An undeniable
pattern of such persisting failure [to be a present, loving,
faithful, respectful, and supportive spouse] must be established
so as to demonstrate that there is indeed a psychological
anomaly or incongruity in the spouse relative to the other."
With respect to gravity, the requirement is
retained, not in the sense that the psychological incapacity must
be shown to be a serious or dangerous illness, but that "mild
characterological peculiarities, mood changes, occasional
emotional outbursts" are excluded. x x x
xxxx
To summarize, psychological incapacity consists
of clear acts of dysfunctionality that show a lack of
understanding and concomitant compliance with one's
essential marital obligations due to psychic causes. It is not a
medical illness that has to be medically or clinically
identified; hence, expert opinion is not required.
As an explicit requirement of the law, the
psychological incapacity must be shown to have been in
existence at the time of the celebration of the marriage, and
is caused by a durable aspect of one's personality structure,
one that was formed before the parties married. To prove
psychological incapacity, a party must present clear and
convincing evidence of its existence.
Notably, Tan-Andal correctly stated the threshold of
evidence in psychological incapacity cases, i.e., the spouse alleging
psychological incapacity is required to prove his or her case
with clear and convincing evidence. This threshold is actually not
new as it is just a reiteration of the legal doctrine
that presumptions established by law are refutable only by clear
and convincing evidence. In the case of marriage,
the presumption strongly upholds the validity of marriage:
Semper praesumitur pro matrimonio. The
presumption is always in favor of the validity of the marriage.
Every intendment of the law or fact leans toward the validity of
the marriage bonds. The Courts look upon this presumption with
great favor. It is not to be lightly repelled; on the contrary, the
presumption is of great weight.[66]
Every case to nullify a marriage positions the
petitioner as invariably standing against this presumption.
Regardless of the appearance or non-appearance of the
respondent, regardless of the absence of any testimonial,
documentary or object evidence of the State, the presumption
stands as an obstacle to every petitioner's ultimate prayer.
There is no other way of surmounting this legal barrier but by
the petitioner successfully discharging their burden of proving
the contrary by clear and convincing evidence [Estella v.
Perez].
Verily, Tan-Andal democratized the forms of evidence
proving psychological incapacity. The Court allowed lay persons to
prove psychological incapacity through evidence of a personality
structure or psychic causes that manifest itself through clear acts of
dysfunctionality that undermine the family. 48 The types of
evidence that a lay person may adduce for this purpose are (i) the
Page 40 of 75
reputation of the incapacitated spouse being psychologically
incapacitated - that is, the view-point of reasonable members of the
spouses' relevant communities; (ii) the character of the
incapacitated spouse relevant to or indicative of such incapacity,
(iii) the everyday behavior, acts or conduct of the incapacitated
spouse, (iv) the offended spouse's own experience of neglect,
abandonment, unrequited love, and infliction of mental distress,
among others [Cuan v. Cuan, Jr.].
These types of evidence may establish circumstances
probative of the dysfunctional acts inimical to the family. The
relevant circumstances to be proven may include (i) instances of
violence against women and their children as defined in Republic
Act No. 9262 (RA 9262), (ii) zero probability of reconciliation
between the spouses, and (iii) failure of the spouse or the spouses
to perform his, her, or their marital duties and obligations in a
manner clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage. so The third
category of circumstances refers to the characterization, i.e., clearly
demonstrative of an utter insensitivity or inability to give meaning
and significance to the marriage, that was once used, to describe
the personality disorder that gave rise to psychological incapacity
[Ibid].
Datu v. Datu
Held: Irene is correct in the sense that psychological incapacity
is not a medical illness. That a person is suffering from a certain psychosis,
such as schizophrenia, will not make them automatically psychologically
incapacitated to comply with the essential marital obligations under Articles
68 to 71 of the Family Code.[71] This was clear in Tan-Andal v.
Andal, where this Court emphatically declared that psychological
incapacity is a legal concept, not a medical one.
The erroneous medical orientation toward defining
psychological incapacity originated from Republic v. Court of Appeals and
Molina, which explicitly required in its second guideline that the root cause
of the psychological incapacity "be identified as a psychological illness[.]"
Tan-Andal, however, clarified that psychological incapacity, as
envisioned by the Family Code Revision Committee, is, again, a legal
concept.[75] Instead of being a medical illness, psychological incapacity is
"[a] durable or enduring [aspect] of a person's personality, called
'personality structure,' which manifests itself through clear acts of
dysfunctionality that undermines the family. The spouse's personality
structure must make it impossible for him or her to understand and, more
important, to comply with his or her essential marital obligations."[76]
As a legal concept, psychological incapacity cannot be
characterized as incurable. Instead, it is permanent relative to a specific
partner. However, psychological incapacity can be grave, not in the sense
that it is a serious or dangerous mental illness, but that it excludes "mild
characterological peculiarities, mood changes, occasional emotional
outbursts[.]" The incapacity must be shown to be due to a genuinely serious
psychic cause. And, as explicitly required by the law, the incapacity must
have existed before or during the celebration of the marriage.
Here, this Court finds that Alfredo is psychologically
incapacitated to comply with his essential marital obligations, not because
he suffers from schizophrenia per se, but because his psychosis has been
found to be an enduring part of his personality structure. This psychosis, in
turn, led him to do clear acts of dysfunctionality that undermined Irene and
their family. As the lower courts found, Alfredo believes himself to be the
son of God. In his mind, his refusal to live with Irene and to provide for the
family was God's will. He also believes that he can have as many wives as
he wants, which is not only illegal but is in utter disrespect and disregard of
his marital vow to Irene. His incapacity is grave, not a "mild
characteriological peculiarity," a ''mood change," or an "occasional
emotional outburst"; his psychosis was grave enough for him to be
discharged from military service.
Irene insinuates that Alfredo might just be faking his illness and,
relatedly, his psychological incapacity, saying that "it is easy to feign and
manipulate insanity on the basis of what one says his beliefs and ideals
are."[80] She also argues that the documentary and testimonial evidence
Alfredo offered did not show that he exhibited the symptoms of
schizophrenia as this Court described in People v. Madarang.
[81]
 In Madarang:
 Medical books describe schizophrenia as a chronic mental
disorder characterized by inability to distinguish between fantasy and
reality and often accompanied by hallucinations and delusions. Formerly
called dementia pracecox, it is the most common form of
psychosis. Symptomatically, schizophrenic reactions are recognizable
through odd and bizarre behavior apparent in aloofness or periods of
impulsive destructiveness and immature and exaggerated emotionality,
often ambivalently directed. The interpersonal perceptions are distorted in
the more serious states by delusions and hallucinations. In the most
disorganized form of schizophrenic living, withdrawal into a fantasy life
takes place and is associated with serious thought disorder and profound
habit deterioration in which the usual social customs are disregarded.
During the initial stage, the common early symptom is aloofness, a
withdrawal behind barriers of loneliness, hopelessness, hatred and fear.
Frequently, the patient would seem preoccupied and dreamy and may
appear "faraway." He does not empathize with the feelings of others and
manifests little concern about the realities of life situations. The
schizophrenic suffers from a feeling of rejection and an intolerable lack of
self-respect. He withdraws from emotional involvement with other people
to protect himself from painful relationships. There is shallowness of affect,
a paucity of emotional responsiveness and a loss of spontaneity. Frequently,
he becomes neglectful of personal care and cleanliness. A variety of
subjective experiences, associated with or influenced by mounting anxiety
and fears precede the earliest behavioral changes and oddities. He becomes
aware of increasing tension and confusion and becomes distracted in
conversation manifested by his inability to maintain a train of thought in his
conversations. Outwardly, this will be noticed as blocks or breaks in
conversations. The schizophrenic may not speak or respond appropriately
to his companions. He may look fixedly away, or he may appear to stare, as
he does not regularly blink his eyes in his attempt to hold his attention.
[82]
 (Emphasis in the original, citations omitted)
Madarang, however, is a criminal case where the accused had to
prove beyond reasonable doubt that he indeed suffered from schizophrenia
to justify his exoneration of parricide. Such strict level of scrutiny is not
required here, where only clear and convincing evidence is the required
quantum of proof.[83] We need not even focus on whether the evidence
presented proved that Alfredo indeed suffered from schizophrenia because,
to reiterate, psychological incapacity need not be identified as a
psychological illness. What is clear, however, is that Alfredo, due to a
genuine psychic cause, failed to comply with his essential marital
obligations. As the trial court said:
The pieces of evidence presented by both parties indicate that
the plaintiff indeed failed to comply with his essential marital obligations,
such as, his failure to live with his wife due to his belief that God ordered
him to leave his wife and that he can have many women to live with him,
like King Solomon. He also failed to observe mutual love, respect, and
fidelity to his wife because of his hallucinations that God has been speaking
to him. He also failed to support his children because he believes that God
ordered him not to work. These facts are bolstered by the testimony of his
wife and the evaluations of the expert witnesses.[84]
Consequently, Alfredo and Irene's marriage is void due to
Alfredo's psychological incapacity.
Laylo v. Ymbang
Held: Thus, the Molina guidelines are reformulated, with the
refinements underscored, as follows:
1. Burden of proof to show the nullity of the marriage, by clear
and convincing evidence, 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 experts and (d) clearly explained in the
decision. "Psychological incapacity" pertains, not just to a mental
incapacity so as to be misconstrued as a vice of consent, nor to a
personality disorder, but to the durable aspects of a person's
personality, called "personality structure," which manifests itself
through clear acts of dysfunctionality that undermine the family. The
spouse's personality structure must make it impossible for him or her
to understand and, more importantly, to comply with his or her
essential marital obligations
3. The incapacity must be proven to be existing at "the time of
the celebration" of the marriage.
4. The incapacity must be legally incurable, meaning that the
incapacity is so enduring and persistent with respect to a specific
partner, whereby the couple's respective personality structures are so
Page 41 of 75
incompatible and antagonistic that the only result of the union would
be the inevitable and irreparable breakdown of the marriage.
5. Such illness must be grave enough, not in the sense of a
serious or dangerous illness, to bring about the disability of the party to
assume the essential obligations of marriage. Mild characterological
peculiarities, mood changes, and occasional emotional outbursts are
excluded.
6. The essential marital obligations must 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. Such non-complied marital obligation(s) must also be stated
in the petition, proven by evidence and included in the text of the decision.
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,
which will be quoted in the decision, briefly stating therein his reasons for
his agreement or opposition, as the case may be, to the petition.
___________________________________________________________________________
On the first Molina guideline, as clarified, clear and convincing
evidence is that which produces in the mind of the trier of fact a firm belief
or conviction as to the allegations sought to be established. [38] Under this
quantum of proof, which is higher than a preponderance of evidence, a
party, in successfully declaring a marriage void, must proffer evidence with
a higher degree of believability than that of an ordinary civil case.[39]
The second Molina guideline, as restated, must be understood in
relation to the "totality of evidence" rule, which the Court has employed in a
number of psychological incapacity cases. With this rule, the judge's scope
of inquiry transcends the misplaced prominence given to expert opinion by
psychologists and psychiatrists, thereby rendering such expert testimony
not indispensable. Ordinary witnesses' testimonies – regarding the root
cause, juridical antecedence, gravity, and incurability of the psychological
incapacity – should be accorded just as much evidentiary weight as expert
testimony in supporting a finding of psychological incapacity.
Thus, in the case of Kalaw v. Fernandez,[40] the Court initially
brushed aside the expert testimony of a psychologist and a canon law
expert, on the ground that they were based solely on therein petitioner's
version of the events. Resolving the motion for reconsideration, the Court
upheld the findings of these experts considering that their testimonies were
largely drawn from admitted case records and undisputed facts, even if
based primarily from the petitioner's own narration, and even while one of
them was not a medical expert. In ruling that "expert opinion should be
considered not in isolation but along with other evidence
presented[,]"[41] this Court elucidated:
Verily, the totality of the evidence must show a link, medical or
the like, between the acts that manifest psychological incapacity and the
psychological disorder itself. If other evidence showing that a certain
condition could possibly result from an assumed state of facts existed in the
record, the expert opinion should be admissible and be weighed as an aid
for the court in interpreting such other evidence on the causation. Indeed, an
expert opinion on psychological incapacity should be considered as
conjectural or speculative and without any probative value only in the
absence of other evidence to establish causation. The expert's findings
under such circumstances would not constitute hearsay that would justify
their exclusion as evidence.[42]
In Azcueta v. Republic,[43] the Court downplayed the OSG's
attempt to discredit the psychiatrist's expert opinion on the ground that she
had not personally examined the respondent spouse. Still, the Court found
that the psychiatrist had formed an expert opinion based on facts
established by the spouse and her relative through their personal testimony
– facts which sufficiently established psychological incapacity:
It should be noted that, apart from her interview with the
psychologist, petitioner testified in court on the facts upon which the
psychiatric report was based. When a witness testified under oath before the
lower court and was cross-examined, she thereby presented evidence in the
form of testimony. Significantly, petitioner's narration of facts was
corroborated in material points by the testimony of a close relative of
Rodolfo. Dr. Villegas likewise testified in court to elaborate on her report
and fully explain the link between the manifestations of Rodolfo's
psychological incapacity and the psychological disorder itself. It is a settled
principle of civil procedure that the conclusions of the trial court regarding
the credibility of witnesses are entitled to great respect from the appellate
courts because the trial court had an opportunity to observe the demeanor of
witnesses while giving testimony which may indicate their candor or lack
thereof. Since the trial court itself accepted the veracity of petitioner's
factual premises, there is no cause to dispute the conclusion of
psychological incapacity drawn therefrom by petitioner's expert witness.[44]
As aptly summarized in Andal, expert testimony is not
indispensable:
Proof of these aspects of personality need not only be given by
an expert. Ordinary witnesses who have been present in the life of the
spouses before the latter contracted marriage may testify on behaviors that
they have consistently observed from the supposedly incapacitated spouse.
From there, the judge will decide if these behaviors are indicative of a true
and serious incapacity to assume the essential marital obligations. [45]
Further expounding on the fourth Molina guideline, as restated,
personality structures that lead to clashes, and marital defects triggered by
these clashes, should not be characterized with permanence that applies to
all kinds of relationships. A finding of psychological incapacity should be
limited to the specific spouse with whom the void marriage was contracted.
[46]
 After all, persons found psychologically incapacitated relative to a
former spouse could very well be capacitated with respect to a different
partner. Not only being an illness in a medical sense, psychological
incapacity is not something to be healed and cured.[47]
In light of the foregoing refinements, the Court finds that only
Rena is psychologically incapacitated, such finding still sufficiently
warrants the declaration of nullity of her and Thomas' marriage.
The Court lends credence to the testimony of Dr. Roque[48] who
prepared his Report after conducting interviews, mental status
examinations, psychological evaluations, and gathering collateral
information. Dr. Roque sourced his information from Rena, her brother,
and a common friend of the spouses. [49] Dr. Roque found that Rena suffered
from Borderline Personality Disorder, thereby exhibiting a pervasive
pattern of mood instability as a result of constant emotional crisis. This
causes her to struggle with real or imagined abandonment, suffer from
identity disturbance and poor self-image leading to insecurity and jealousy,
exhibit affective instability and anger-management issues, impulsiveness,
and chronic depression. While persons with this disorder constantly seek
companionship and develop clinging dependency, such can morph into
expressions of rage once they feel that their needs are left unfulfilled. [50]
On the other hand, Dr. Roque reported Thomas as suffering
from Dependent Personality Disorder, thereby exhibiting a pervasive
pattern of emotional vulnerability, resulting to a submissive and clinging
dependence on nurturing figures, causing him difficulty in making
decisions, in initiating projects, expressing disagreement, and engendering a
feeling of discomfort when alone, and making him weak and passive and
unable to adequately handle positions of responsibility.[51]
Dr. Roque connected these disorders with the couple's marital
dysfunctions, particularly, Rena's Borderline Personality Disorder which
led her to give more time to her peers, rather than resuscitate her
deteriorating marriage; cultivated an abusive attitude towards Thomas; and
encouraged self-mutilating acts such as threats of suicide, and actual self-
infliction such as banging her head on the walls, or intentionally scratching
her arms with sharp objects. Meanwhile, Thomas's Dependent Personality
Disorder induced indecisiveness in essential marital conflicts for which he
would often defer to his sibling for advice on how to address marital issues,
such as confronting Rena about her supposed unfaithfulness, or deciding
where the couple would settle.
Consistent with the interface between expert and personal
testimony, Rena's and Racquel's Judicial Affidavits detailed the various
manifestations of the disorders identified by Dr. Roque. Particularly, Rena
often exhibited extreme jealousy, fighting Thomas whenever the latter
would communicate with his own male friends and family. Rena even
intruded into Thomas' privacy by unauthorizedly accessing his social media
accounts when, according to Racquel, there really was no reason for Rena
to worry since Thomas hardly accessed such accounts, much less had any
meaningful communications with other persons. When faced with long-
distance issues, Rena opted to just spend nights out with her friends, rather
than work through things with Thomas, eventually even accusing him of
being unfaithful.
Corollarily, this Court finds only Rena psychologically
incapacitated to fulfill her marital obligations. While Thomas invited her to
live together in Saudi Arabia, Rena ascribed more weight to her job in
Dubai, thereby defeating their joint obligation to live together [52] and to fix
the family domicile.[53] While economic independence should not
automatically give way to requests for domestic bliss, Rena did not even
Page 42 of 75
extend any understanding or willingness to compromise with Thomas,
exhibiting a failure to grasp the importance of marital cohabitation.
Moreover, instead of supporting each other and pooling their
resources[54] and efforts at managing a household,[55] Rena is more inclined
to spend nights out with her peers, yet at the same time, equivocate between
quarreling with Thomas when he attempted reconciliation, and then faulting
him with indecisiveness.
Indeed, the sanction for marriage is the spontaneous, mutual
affection between husband and wife and not any legal mandate or court
order to enforce consortium.[56] It must be viewed with respect, sacrifice and
a continuing commitment to togetherness, conscious of its value as a
sublime social institution. [57] Clearly, the durable aspects of Rena's
personality, particularly her Borderline Personality Disorder, debilitates her
from grasping these values and fulfilling her marital obligations to Thomas.
The OSG leans heavily on Dr. Roque's supposed failure to
connect Rena's psychological incapacity to any manifested inability to
fulfill her marital obligations. On the contrary, Dr. Roque did identify
various marital dysfunctions as manifestations of Rena's Borderline
Personality Disorder. Contributing to the deterioration of her marriage with
Thomas was her choosing her peers over Thomas, most critically while the
latter sought gainful employment in Saudi Arabia; her abusive nature
towards Thomas which would leave disagreements at a deadlock, as well as
her self-mutilating acts which, apart from aggravating the marriage, also
inflicted psychological and emotional stress on Thomas. At any rate, as
earlier emphasized, expert testimony is not indispensable, and the courts
will appreciate the totality of evidence, with Dr. Roque's Report being duly
complemented by Rena's and Racquel's Judicial Affidavits.
This Court finds no psychological incapacity with Thomas
seeking advice in attempting to resolve their marital woes. If at all, such
behavior demonstrates that he recognizes his and Rena's marital
obligations, and is exerting genuine efforts to fulfill the same. Specifically,
he even asked her to live together with him again in Saudi Arabia. The long
distance between them was wedged, not by any psychological incapacity on
the part of Thomas, but by the circumstance of the non-renewal of his Visa.
It bears stressing that Article 36 of the Family Code still "contemplates
downright incapacity or inability to take cognizance of and assume the
basic marital obligations[,]"[58] and Thomas is not shown to exhibit such
incapacity.
While the Court has previously considered Dependent
Personality Disorder as constitutive of psychological incapacity, [59] this
Court in Azcueta v. Republic[60] enunciated that:
x x x [T]his is not to say that anyone diagnosed with dependent
personality disorder is automatically deemed psychologically incapacitated
to comply with the obligations of marriage. xxx It is the duty of the court in
its evaluation of the facts, as guided by expert opinion, to carefully
scrutinize the type of disorder and the gravity of the same before declaring
the nullity of a marriage under Article 36.
That Rena's incapacity is juridically antedated is established by
Dr. Roque's Report and Rena's own testimony. Being the seventh out of
nine siblings, Rena often had to compete for her parents' attention, which
mostly would only come from her mother as her father worked overseas.
Her Borderline Personality Disorder can be traced to her feeling of
deprivation and rejection throughout her infancy, childhood, and adolescent
years. Between such periods in her life and her marriage with Thomas, she
had exhibited the above-detailed dysfunctions even in their two months of
courtship.
On this requirement, each individual, being unique and having
their respective personality, brought about by the culture, upbringing, and
influence of the environment surrounding them, when paired with another,
does not always result in a utopian partnership. There are personalities that
can easily adopt with each other and bring out the good in each of them,
producing a healthy and harmonious relationship, while others become
oppositely repulsive as they live together as husband and wife. Verily, it is
only when the spouses live together under one roof that the personalities of
each of the spouses are freely exposed and discovered. Consequently, their
reaction towards this new discovery would manifest their respective
personalities, which could either be good for the marriage or may serve as a
trigger to reveal an inherent inability to perform marital obligations.[61]
Being embedded in the individuality of every human being, the
personality structure of a married person is continuously unearthed by the
constant interaction with the marriage itself and with the personality of his
or her spouse. Throughout the interaction, when the personality structures
of each of the spouses result in clashes, leading towards a grave
incompatibility that is equivalent to the inability to perform the essential
obligations of marriage, then it can be said that a defect in the marriage Appreciating the totality of all the foregoing, the Court finds that
exists. The clashes in the personality structures must however be the Petition has surmounted the presumed validity of Rena's and Thomas'
interrelated with behavioral patterns, experiences or actions taken by one of marriage, by clearly and convincingly demonstrating that the marriage is
the spouses, which existed prior to the marriage. Tying these principles void due to Rena's psychological incapacity.
back to the totality of evidence rule, the testimony of relatives, friends, and
neighbors who had an encounter, or observed the spouse alleged to be
De Silva v. De Silva
psychologically incapacitated, will be given sufficient weight. The
Held: Here, Rosanna was found to have discharged the burden
behaviors and actuations of a party to a petition for nullity of marriage may
of proof required to nullify her marriage to Mario. Clear and convincing
thus be examined without the need for an expert testimony.[62]
evidence of her husband's psychological incapacity consisted mainly of
Such juridical antecedence must be the case in order to
testimony on his personality structure and how it was formed primarily
distinguish psychological incapacity, as a ground for nullity of marriage,
through his childhood and adult experiences, manifesting long before his
from divorce. Consistent with Marcos v. Marcos,[63] this Court stated that:
marriage to Rosanna.
Article 36 of the Family Code, we stress, is not to be confused
While it may be true that expert opinion is no longer required, it
with a divorce law that cuts the marital bond at the time the causes therefor
can still be considered; thus, the CA erred in discounting the expert opinion
manifest themselves. It refers to a serious psychological illness afflicting a
of the psychiatrist for being "unscientific and unreliable." Facts reveal that
party even before the celebration of the marriage. It is a malady so grave
the mental evaluation of Mario was not based on collateral information, as
and so permanent as to deprive one of awareness of the duties and
the psychiatrist based her diagnosis on a personal history handwritten by
responsibilities of the matrimonial bond one is about to assume. These
Mario himself. This, aside from interviews from Rosanna, Ma. Samantha,
marital obligations are those provided under Articles 68 to 71, 220, 221 and
and Jocelyn Genevieve, Rosanna's sister, is sufficient to come up with a
225 of the Family Code.[64]
reliable diagnosis. After all, the Court said in Marcos v. Marcos,
On gravity, Rena's behavior clearly exhibits more than sporadic [56]
 "personal examination of the allegedly psychologically incapacitated
refusal, neglect, or difficulty in complying with marital duties. Rena fails to
spouse is not required for a declaration of nullity of marriage due to
grasp the importance of open and honest communication when, at times
psychological incapacity."[57]
that Thomas reached out to her despite their long distance, she just shut him
Hence, as long as the totality of evidence, as in this case,
off and went on nights out with her friends. When confronted about such
sufficiently proves the psychological incapacity of one or both of the
indifference, her affective instability would cause her to lash out at Thomas.
spouses, a decree of nullity may be issued. Justice Marvic Mario Victor F.
In the times that they were together, instead of talking things through with
Leonen, in the words of his ponencia:
Thomas, her anger issues would lead her to inflict self-harm by banging her
Here, the totality of evidence presented by Rosanna clearly and
head on hard surfaces and scratching her arms with sharp objects. Finally,
convincingly proved that Mario's drug abuse was of sufficient durability
Rena's Borderline Personality Disorder leaves her prevaricating between
that antedates the marriage. Admittedly, part of the marriage is accepting a
craving Thomas' attention, yet, also reproaching him when he does reach
person for who he or she is, including his addictions. However, in Mario's
out to her.
case, his persistent failure to have himself rehabilitated, even bringing his
Notably, under the stricter and outdated standard of incurability,
child into a room where he did drugs, indicates a level of dysfunctionality
the instant petition would have failed. The Court would have sustained the
that shows utter disregard not only of his obligations to his wife but to his
Court of Appeals in finding that Rena's incurability was not medical nor
child.
scientific. But, as modified by Andal, incurability is construed in the legal
What is undisputed is that Mario failed to render mutual help
sense, i.e., that, given the utter incompatibility in personalities, the union
and support to his wife, failing to find gainful employment and even driving
faces inevitable decline despite genuine opportunities at rehabilitation.
to bankruptcy the construction firm founded by Rosanna by siphoning its
Concomitant to the concept of personality structure in marriage
funds for his drug use. He failed to exercise his rights and duties as a parent
is its inter-relation which entangles the personality structure of a person
to Ma. Samantha.
towards that of his or her spouse. Two personality structures are involved
With Tan-Andal serving as a guidepost, this Court finds that
and carefully analyzed if the clashes between the two have indeed resulted
respondent is psychologically unfit to discharge the duties expected of him
in the inability of one of the spouses to perform the essential obligations of
as a husband.
marriage. As a specific personality structure is examined based on how one
To recapitulate, the standard of proof in nullity cases is now
interacts with another, this means that any inability of one of the spouses to
clear and convincing evidence. In Riguer v. Mateo,[58] the standard of proof
perform marital obligations came to light because of the interaction of these
is derived from American common law. It is "less than proof beyond
specific personality structures. Any declaration that a person is
reasonable doubt (for criminal cases) but greater than preponderance of
psychologically incapacitated to perform marital obligations must thus be
evidence (for civil cases). The degree of believability is higher than that of
limited to his or her marriage with the specific spouse with whom he
an ordinary civil case."[59] As opined by the ponente in his concurring
contracted the void marriage. It should not be considered as an innate
opinion in Tan-Andal, while it may be true that nullity cases are civil in
inability on the part of the person determined to be psychologically
nature, to provide a higher standard of evidence in other cases that are not
incapacitated to enter into a marriage with another person with a different
otherwise constitutionally protected, is to disregard the sui generis nature of
personality structure. The psychological incapacity under Article 36 of the
marriages vis-a-vis other civil cases.[60]
Family Code must not therefore be characterized with incurability, which is
Here, petitioner has sufficiently overcome the onus probandi to
equated to be medically permanent.[65]
prove the nullity of her marriage with respondent via clear and convincing
It is with the foregoing principles in mind that this Court finds
evidence. To echo Tan-Andal, "ordinary witnesses who have been present
no incurability on the part of Thomas. Rather than displaying incurability,
in the life of the spouses before the latter contracted marriage may testify
his desire to fix their marriage, and exert efforts towards bringing them to
on behaviors that they have consistently observed from the supposedly
live together, actually shows promise. At the very least, it demonstrates a
incapacitated spouse."[61]
clear recognition of his marital obligations to Rena – a personal
Data gathered from the testimonies of petitioner, her mother
circumstance which completely negates psychological incapacity.
Rosalina, expert witness Dr. Tayag, and even respondent himself, reveals
While Thomas' own Dependent Personality Disorder does not
that the latter developed traits such as untrustworthiness, irresponsibility,
afflict him with psychological incapacity, it surely exacerbates Rena's own
aggressiveness, lack of compassion and remorse antedating the marriage.
Borderline Psychological Incapacity. Rena's yearning for affection is
Dr. Tayag recounts "having no good example to influence Donald in a
clearly unmet by Thomas' indecisiveness, and her erratic and harsh attitude
healthy functioning (sic) and straighten his maladaptive manner of going
towards him dwarfs his own insecurities. These incompatibilities lead to
about his expected tasks and roles, he had persisted to be reckless,
outbursts that are far more counterproductive than they are helpful in
immature, rebellious, and insensitive. Since he was a child, and then
resolving their marital conflict. The frictions between the spouses cause
became an adult, respondent failed to change and his irresponsible ways
clear patterns, and not merely isolated instances, of marital dysfunction. It
have become more prominent when he reached the latter stage of his
is no wonder that they only spent two months of marriage together and,
development. With this, his condition is seen to be severe, grave and
thereafter, had been separated for four years when the Petition was filed. So
incurable."[62]
much could have been done to rehabilitate their marriage in those four
Further, petitioner was able to fully substantiate her allegations
years, but Rena's psychological incapacity is so enduring so as to hinder
of their crumbling marital relationship. Documentary evidence confirms
any effort therefor.
that she was confined in a therapeutic hospital in 2011 for around three
Page 43 of 75
months while taking medicine for depression and anxiety due to her
exasperation with respondent.[63] As asserted by Rosalina, a
Certification[64] from the Antipolo City Police Station likewise proves that
on one occasion, respondent threatened to burn down Rosalina's house if
petitioner refused to give respondent money. As admitted by respondent
himself, a BPO[65] was indeed issued on April 25, 2012, against him due to
verbal abuse. Records further prove that respondent had taken out
numerous loans, even pawning his wife's jewelry and selling to Rosalina his
firearm for his selfish endeavors; [66] all this he did without gaining
employment, leaving his wife to fully support their family. Most telling is
the fact that petitioner and respondent have been separated de facto since
2012. Having been apart for almost ten years, absent any clear showing of
an intent to cohabit, there is enough indication to conclude that the marriage
has been so strained that it has long been without peace and harmony –
ideals which the State so aims to protect.
In stark contrast, respondent relied on mere suppositions and
conjectures to bolster his own version of the facts. Aside from bare
allegations that he was financially stable, running a coconut business, and
that he had never abused his wife, he never bothered to present proof or
present witness testimony to refute petitioner's claims. Basic is the rule in
evidence that "bare allegations, unsubstantiated by evidence, are not
equivalent to proof."[67] While this Court commiserates with respondent, it
is hard-pressed to render his testimony as self-serving, possessing no
serious evidentiary value.
Equally significant, this Court now turns to the veracity of Dr.
Tayag's Report as a contributing factor in the determination of respondent's
incapacity.
Reports of psychologists and psychiatrists have undeniably
become an indelible part in deciding nullity cases, having proven to be
helpful in allowing courts to reach an intelligible and informed judgment.
Cognizant that different perspectives should govern the disposition of
petitions for nullity, the Court, in Santos, declared that "the well-considered
opinions of psychiatrists, psychologists, and persons with expertise in
psychological disciplines might be helpful and even desirable."[68]
However, the Court has excessively relied too much on the
assessments of psychiatrists and psychologists, perhaps due to the
misnomer that psychological incapacity has been equated to personality
disorders. Unsurprisingly, despite the pivotal ruling in Marcos that a
"medical examination of the person concerned need not be resorted
to,"[69] the Court, in Tan-Andal, has observed that even as recent as 2019, it
has dismissed a nullity case because the root cause of the spouse's alleged
psychological incapacity "was not sufficiently proven by experts."[70] On the
other hand, the Court, in dismissing petitions for nullity, has also been
known to hastily disregard such reports wholesale for being hearsay, having
been based only on information from the petitioner-spouse. In Republic v.
Tobora-Tionglico,[71] the Court reasoned: "to make conclusions and
generalizations on a spouse's psychological condition based on the
information fed by only one side, as in the case at bar, is, to the Court's
mind, not different from admitting hearsay evidence as proof of the
truthfulness of the content of such evidence."
Thus, courts are once again reminded to decide each case on
the totality of evidence, which must still be sufficient to prove that the
incapacity was grave, incurable, and existing prior to the time of the
marriage.[72] Accordingly, every circumstance that may have some bearing
on the degree, extent, and condition of that incapacity must be evaluated, so
that "no precipitate and indiscriminate nullity is peremptorily
decreed."[73] After all, the adherence to the totality of evidence rule is
consonant to practical realities. This Court is not blind to the near
impossibility of compelling the supposedly incapacitated spouse to undergo
psychological evaluations for purposes of rendering the marriage void. As
already pointed out in Tan-Andal: "while ideally, the person to be
diagnosed should be personally interviewed, it is accepted practice in
psychiatry to base a person's psychiatric history on collateral information,
or information from sources aside from the person evaluated. This is
usually done if the patient is not available, incapable, or otherwise refuses
to cooperate, as in this case."[74]
Similar to the evaluation in Tan-Andal, where the respondent's
personal handwritten history was crucial in lending credence to the
psychiatrist's findings, it is of no question that the report in this case was
not anchored unilaterally on assumed knowledge and indirect information
gathered from petitioner. Here, respondent himself categorically admitted
that he was interviewed personally by Dr. Tayag through the telephone.
[75]
 In casting doubt on the report's credibility, respondent offers nothing
more than the flimsy argument that he only spoke with Dr. Tayag briefly,
Page 44 of 75
without even mentioning the content of their conversation to prove what
information she actually received. To be clear, it was through interviews
from both parties and Rosalina, who intimately knew respondent before and
after the inception of the marriage, that Dr. Tayag was able to trace the
history of respondent's psychological condition and relate it to his existing
incapacity at the time of the celebration of the marriage. Glaringly, the CA
committed a reversible error in brushing aside the opinions tendered by Dr.
Tayag and concluding that the information collated in her report were
obtained mainly from petitioner and Rosalina.
Unlike the CA's assertion that the report lacked specificity, the
report identified the tests administered on the petitioner. It also explained
that respondent's incapacity was rooted in his upbringing long before his
marriage to petitioner. Verily, it was his hostile family environment that
deprived him of his awareness of the duties and responsibilities of the
matrimonial bond he assumed:
The culprit behind the development of these antisocial traits of
the respondent are seen to be the kind of parenting style that he was raised
to (sic) and the home environment that he was exposed to during the early
years of his life. Being from a broken family and the kind of modeling that
he has seen from his parents during the early years of his life have molded
him into the kind of person that he is at present.[76]
In fine, there is no reason to completely disregard the report and
the findings arrived therein. Besides, given the qualifications of Dr. Tayag
as expert, having been a clinical psychologist since 1976 [77] and having been
presented in numerous nullity cases as witness, there is sufficient
justification to rely on her methodology. As enunciated in Castillo v.
Republic,[78] "the probative force of the testimony of an expert does not lie
in a mere statement of her theory or opinion, but rather in the assistance that
she can render to the courts in showing the facts that serve as a basis for her
criterion and the reasons upon which the logic of her conclusion is
founded."
All told, the psychological report, taken together with the
documentary and testimonial evidence presented, warrant the declaration
that respondent is psychologically incapacitated to perform his essential
marital obligations at the time of his marriage to petitioner. The
characteristics he exhibited before and during the marriage are more than
just a mere difficulty, refusal, or neglect on his part. The parties having
been living separately for almost 10 years likewise shows an already
impaired relationship that is beyond repair; neither do the facts demonstrate
the capacity of the spouses to accept the other which is indispensable to the
marital relationship.
As a final note, this Court cites the principle in Kalaw that "the
fulfillment of the obligations of marriage depends, according to Church
decisions, on the strength of this interpersonal relationship. A serious
incapacity for interpersonal sharing and support is held to impair the
relationship and consequently, the ability to fulfill the essential marital
obligations. The marital capacity of one spouse is not considered in
isolation but in reference to the fundamental relationship to the other
spouse."
7. Incestuous Marriages
Article 37. Marriages between the following are incestuous
and void from the beginning, whether relationship between the parties
be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half
blood. (81a)
8. Void Marriages for Reasons of Public Policy
Art. 38. The following marriages shall be void from the
beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or
illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and
the adopted child;
(6) Between the surviving spouse of the adopted child and
the adopter;
 (7) Between an adopted child and a legitimate child of the
adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry
the other, killed that other person’s spouse, or his or her own spouse.
(82)
9. Absence of Declaration of Presumptive Death
Article 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void, unless before
the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a well-
founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances
set forth in the provisions of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must institute a
summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (83a)
A subsequent marriage celebrated during the effectivity
of the Family Code by reason of the presumptive death of one of
the spouses in a prior marriage now requires a judicial declaration
of presumptive death; otherwise, the subsequent marriage is void
for being bigamous and the spouse present is liable for bigamy
[Manuel v. People].
In Manuel v. People, the accused contracted another
marriage in 1996, 21 years after the absence of his first wife, but
the subsequent marriage was celebrated without judicial
declaration of presumptive death of the absentee spouse. When he
was prosecuted for the crime of bigamy, the accused posited the
theory that the requirement of a judicial declaration of presumptive
death under Article 41 is only a requirement for the validity of the
subsequent or second marriage but its absence does not make him
liable for the crime of bigamy. In upholding his conviction, the
Court explained that Article 41 of the Family Code was enacted to
harmonize civil law and Article 349 of the Revised Penal Code and
to put to rest the confusion spawned by the previous rulings of the
Court and comments of eminent authorities on criminal law.
Hence, under existing laws and jurisprudence, in a case where a
spouse is absent for the requisite period, the spouse present may
contract a subsequent marriage only after securing a judgment
declaring the presumptive death of the absent spouse to avoid being
charged and convicted of bigamy.
a. Remedy if Subsequent Marriage is
Bigamous
The remedy is for the aggrieved spouse to file a petition
for the declaration of nullity of the subsequent marriage.
In Santos v. Santos, the husband was able to obtain a
judicial declaration of presumptive death of his spouse even if he
knew that the wife was actually alive and he thereafter contracted a
subsequent marriage. When the wife discovered the existence of
the second marriage and the reason why the husband was able to
contract another marriage, she filed a petition for the annulment of
the judgment declaring her presumptively dead. The Court ruled
that the remedy of recording an affidavit of reappearance will only
be applicable if the subsequent marriage is perfectly valid because
all three requisites enumerated in Article 41 of the Family Code are
complied with before the celebration of the subsequent marriage.
Since the subsequent marriage is void for being a bigamous
marriage, the proper remedy of the aggrieved spouse is to file a
petition for declaration of the nullity of the subsequent marriage on
the ground of bigamy and she has the personality to file such
petition.
Page 45 of 75
b. Purpose of Remarriage
Article 41 is only applicable for purpose of contractive a
valid subsequent marriage. Article 390 or 391 of the Civil Code is
the applicable law if the presumption of death is for purposes other
than remarriage. Under prevailing case law, courts are without any
authority to take cognizance of a petition that only seeks to have a
person declared presumptively dead under the Civil Code. Such a
petition is not authorized by law [Tadeo-Matias v. Republic].
c. Requisites
There are four essential requisites for the declaration of
presumptive death: (1) that the absent spouse has been missing for
four consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under the
circumstances laid down in article 391 of the Civil Code; (2) that
the present spouse wishes to remarry; (3) that the present spouse
has a well founded belief that the absentee is dead; and (4) that the
present spouse files a summary proceeding for the declaration of
presumptive death of the absentee [Republic v. Catubag].
The well-founded belief in the absentee’s death requires
the present spouse to prove that his/belief was the result of diligent
and reasonable efforts to locate the absent spouse and that based on
these efforts and inquiries, he/she believes that under the
circumstances, the absent spouse is already dead. It necessitates
exertion of active effort, not a mere passive one. Mere absence of
the spouse even if beyond the period required by law, lack of any
news that the absentee spouse is still alive, mere failure to
communicate or general presumption of absence under the Civil
Code would not suffice. The premise is that Article 441 places
upon the present spouse the burden of complying with the stringent
requirement of “well-founded belief” which can only be discharged
upon a showing of proper and honest-to-goodness inquiries and
efforts to ascertain not only the absent spouse’s whereabouts but,
more importantly, whether the absent spouse is still alive or is
already dead [Republic v. Villanueva].
Republic v. Quinonez
Held: To recall, Remar's efforts to locate Lovelyn are marked by
the following acts:
1. Remar travelled to several places where his wife had been
reportedly seen particularly, Bislig City and the Municipality of Lingig in
the province of Surigao del Sur, Metro Manila, Batangas and Cavite; and
2. Remar constantly communicated with Lovelyn's relatives for
a period of ten (10) years in order to ascertain Lovelyn's whereabouts.
Unfortunately, Remar failed to allege, much less prove, the
extent of the search he had conducted in the places where he claims to have
gone. This leaves the Court with no way to ascertain the extent of Remar's
search.
Remar also failed to identify which of Lovelyn's relatives he had
communicated with, and disclose what he learned from these
communications. Again, this leaves the Court with no basis to determine
whether the information Remar learned is sufficient to engender a well-
founded belief that Lovelyn is dead.
Moreover, much like the respondent in Cantor, Remar never
sought the help of the authorities to locate Lovelyn in the course of her ten
(10)year disappearance. Remar was given ample opportunity to explain his
failure to report Lovelyn 's disappearance, considering that the Republic
first noted such failure when it filed its Petition for Certiorari with the CA.
Curiously, however, Remar chose not to address the matter.
Finally, the allegations in Remar's Petition for Declaration of
Presumptive Death37 suggest that he is aware of the true cause of Lovelyn
's disappearance, thus:
In the first three (3) months that his wife was in Manila[,] [there]
was x x x constant communication through cellphone calls and [texts].
[Remar] relayed to [Lovelyn] that he is x x x working in Surigao City as a
security guard in the Hall of Justice. x x x
 Then the calls and [texts] got fewer and fewer until [they]
stopped. He thought that the cell phone of his wife was just lost so he
started inquiries from his and her relatives in [Bislig] City. One confess[ed]
that his wife is now [cohabiting] with another man and will not be going
home because of shame. He could not believe and refuse[d) to believe the
devastating news.
The Court commiserates with Remar's plight. Nevertheless, the
Court cannot uphold the issuance of a declaration of presumptive death for
the purpose of remarriage where there appears to be no well-founded belief
of the absentee spouse's death, but only the likelihood that the absentee
spouse does not want to be found.
Republic v. Ponce-Pilapil
Held: The third requirement of a "well-founded belief" proves
most difficult to establish in seeking to declare an absent spouse
presumptively dead. While this term enjoys flexible meanings and depends
heavily on the circumstances unique to each particular case, 18 the Court
in Republic v. Orcelino-Villanueva (Orcelino-Villanueva)19 has highlighted
the exercise of "diligent efforts" in determining whether the present
spouse's belief that the absent spouse is already dead was well-founded or
not:
Jurisprudential precedents demonstrate the following efforts
expended by the petitioning parties therein:
In Republic v. Catubag, the present spouse, who was working
abroad, received news that his wife left their house and never returned.
Worried for his wife and children, the present spouse flew back to the
Philippines on an emergency vacation. The present spouse claimed to have
inquired about the absent spouse's whereabouts with friends and relatives
and in places where they had lived and where the absent spouse was born.
The present spouse also availed of the assistance of Bombo Radyo
Philippines, a well-known radio broadcast network in the country, to
publicize the disappearance of the missing spouse. He likewise sought
information from various hospitals and funeral parlors, but still failed to
locate his missing wife.
In Republic v. Sareñogon, the spouses were both overseas
Filipino workers. Only months into their marriage but away from each
other, the husband lost all communication with his wife. He also failed to
contact his wife's parents, who had allegedly left their residence that was
last known to the husband. When his contract expired, he returned home.
His ensuing inquiries as to his wife's whereabouts from his wife's relatives
and friends, however, yielded negative results.
In Republic v. Cantor, the husband left the conjugal home after a
violent quarrel with the wife, and such was allegedly the last time the latter
had heard anything from the former. During the four years that the husband
had been missing, the wife had asked her husband's family, neighbors, and
friends, who all offered only their lack of knowledge concerning his
whereabouts. The wife also claimed that she had made sure to check
patients' directories in the hospitals she went to, under the hope of finding
her husband.
Also in Orcelino-Villanueva, the present spouse therein returned
to the Philippines from working overseas to search for her husband who
allegedly had been missing for 15 years. She inquired with her husband's
relatives and their common friends, who all gave her negative responses
regarding her missing husband's whereabouts.
All these aforecited efforts, however, had been stamped by
the Court as merely passive and unexacting of the jurisprudential
standards that would qualify such efforts as diligent. The particular
circumstances of the present case, unfortunately, pale in comparison to and
prove no better than those of the foregoing. Josephine's efforts to search for
Agapito only consisted of inquiries not even done personally but by mere
letter-correspondence facilitated by another person.
Moreover, Josephine's pursuit of Agapito is evidently
lackadaisical based on the following circumstances:
First, her personal knowledge of a growing cyst on Agapito's
jaw does not produce an inevitable conclusion that the latter was already
suffering from some terminal illness prior to his disappearance. No medical
document or expert testimony on Agapito's physical ailment was submitted
by Josephine for the courts' assessment to prove such circumstance.
Second, while Josephine attempted to find Agapito, her
supposed informers and their information were unreliable. The "friends"
whom Josephine allegedly contacted were unnamed. The letters written by
Josephine and Agapito's sister, Lydia Bueno Pilapil (Lydia), were never
presented as evidence before the court. Lydia did not even take the witness
stand to testify to the veracity of the contents of her purported letter as
Page 46 of 75
alleged by Josephine. Marites Longakit Toong (Marites), Josephine's letter-
courier to Lydia, did appear as a witness before the trial court; however, the
truth behind Marites' statements that Lydia had told her of Agapito's
absence remain hearsay and unconfirmed.
Third, Josephine could have resorted to police assistance in
seeking out her husband. While the act of seeking investigative aid from
authorities will not automatically secure a positive conclusion of a "diligent
search,"26 official documents could still have been procured to attest that
she had assiduously investigated the disappearance of Agapito. Josephine
never did so. This further weakened the seriousness of her efforts to find
her missing husband and blurred the possibility of the latter's death.
Withal, the pieces of evidence on record were too bare and self-
serving. Mere allegation is not proof. Moreover, Josephine's acts fail to
convince the Court that she indeed went out of her way to locate Agapito,
and her search for Agapito's whereabouts cannot be said to have been
diligently and exhaustively conducted. In all, Josephine's efforts were just
too flimsy to serve as concrete basis of a well-founded belief that Agapito is
indeed dead.
A declaration of presumptive death must be predicated upon a
wellfounded fact of death. The fact that the absent spouse is merely
missing, no matter how certain and undisputed, will never yield a judicial
presumption of the absent spouse's death. Josephine in this case only
successfully established that the whereabouts of Agapito are
indeterminable. As circumstances that definitely suggest Agapito's death
remain to be seen, the Court cannot consider Josephine's civil status as that
of a widow.
d. Effect of Reappearance
Article 42. The subsequent marriage referred to in the
preceding Article shall be automatically terminated by the recording of
the affidavit of reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the residence of
the parties to the subsequent marriage at the instance of any interested
person, with due notice to the spouses of the subsequent marriage and
without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. (n)
The termination of the subsequent marriage by affidavit
provided by Article 42 does not preclude the filing of an action in
court to prove the reappearance of the absentee and obtain a
declaration ro termination of the subsequent marriage. Thus, there
are two ways of terminating the valid subsequent marriage, to wit:
(1) by the recording of affidavit of reappearance; or (2) by judicial
declaration of dissolution or termination of the subsequent
marriage [SSS v. Vda. De Ballon].
If the absentee reappears, but no step is taken to
terminate the subsequent marriage, either by affidavit or by court
action, such absentee’s mere reappearance, even if made known to
the spouses in the subsequent marriage, will not terminate such
marriage. Since the second marriage has been contracted because
of a presumption that the former spouse is dead, such presumption
continues in spite of the spouse’s physical reappearance, and by
fiction of law, he or she must still be regarded as legally an
absentee until the subsequent marriage is terminated as provided by
law [Ibid].
In Santos v. Santos, the Court held that reappearance of
the absent spouse does not always immediately cause the
subsequent marriage’s termination. The reappearance will cause
the termination only when all the conditions enumerated in Article
42 are present, as follows: (1) the non-existence of a judgment
annulling the previous marriage or declaring it void ab initio; (2)
recording in the civil registry of the resident of the parties to the
subsequent marriage of the sworn statement of the fact and
circumstances of reappearance; (3) due notice to the spouses of the
subsequent marriage of the fact of reappearance; and (4) the fact of
reappearance must either be undisputed or judicially determined.
Hence, the subsequent marriage may still subsist despite the absent
or presumptively dead spouse’s reappearance: (1) if the first
marriage has already been annulled or has been declared a nullity;
(2) if the sworn statement of the reappearance is not recorded in the
civil registry of the subsequent spouses’ resident; (3) if there is no
notice to the subsequent spouses; or (4) if the fact of reappearance
is disputed in the proper courts of law, and no judgment is yet
rendered confirming such fact of reappearance.
e. Effects of Termination of Valid Subsequent
Marriage
Article 43. The termination of the subsequent marriage
referred to in the preceding Article shall produce the following effects:
(1) The children of the subsequent marriage conceived prior
to its termination shall be considered legitimate;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and liquidated, but
if either spouse contracted said marriage in bad faith, his or her share
of the net profits of the community property or conjugal partnership
property shall be forfeited in favor of the common children or, if there
are none, the children of the guilty spouse by a previous marriage or in
default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the
other spouse who acted in bad faith as beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in
bad faith shall be disqualified to inherit from the innocent spouse by
testate and intestate succession. (n)
Article 44. If both spouses of the subsequent marriage acted
in bad faith, said marriage shall be void ab initio and all donations by
reason of marriage and testamentary dispositions made by one in favor
of the other are revoked by operation of law. (n)
If the subsequent marriage is not terminated by
registration of an affidavit of reappearance of by judicial
declaration but by death of either spouse, the effects provided for in
Article 43(3), (4), and (5) will not apply. Instead the effects of
dissolution of valid marriages shall arise [SSS v. Vda de. Bailon].
As a consequence, the bad faith of the second spouse in
contracting the subsequent marriage may no longer be raised and
he or she will thus be entitled to inherit from the spouse present,
whether the succession be testate or intestate.
10. Failure to Comply with Article 40
Article 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void. (n)
Under existing jurisprudence, one must first secure a
final judicial declaration of nullity of his previous marriage before
he can validly contract another marriage and failure to do so shall
make him liable for the crime of bigamy if he contracts a
subsequent marriage [Mercado v. Tan]. In other words, if the
marital vinculum of the previous marriage subsists because of the
absence of judicial declaration of its nullity, the second marriage is
contracted during the existence of the first marriage resulting in the
crime of bigamy [Abunado v. People].
Article 40 applies and a judicial declaration of nullity of
a void marriage is necessary in cases where a marriage, at least
ostensibly, had taken place, although later declared void ab initio.
But if no marriage ceremony at all was performed by a duly
authorized solemnizing office, there is no marriage that took place,
Page 47 of 75
even ostensibly, hence there is no need to comply with the
requirement of Article 40 [Morigo v. People].
In Morigo v. People, it was held that if what transpired
was a mere signing of a marriage contract by the parties, without
the presence of the solemnizing office, then there is no marriage to
speak of because there is no actual marriage ceremony that was
performed by a duly authorized solemnizing officer. There is no
need in this case for a judicial declaration of nullity. Hence, even if
a party to such signing of a marriage contract enters into another
marriage without complying with the requirements of Article 40 of
the Family Code, no crime of bigamy is committed, and the second
marriage is considered valid.
In determining the necessity of a judicial declaration of
nullity of a void marriage, it is the date of the celebration of the
second marriage that needs to be considered, regardless of the date
of the first marriage.
If the second marriage is celebrated prior to the
effectivity of the Family Code, the rule in People v. Mendoza,
People v. Aragon, and Odayat v. Amante that no judicial decree
was necessary to establish the invalidity of void marriages under
Article 80 of the Civil Code.
If the second marriage is celebrated during the effectivity
of the Family Code, the rule in Article 40 is the one applicable.
Came the Family Code which settled once and for all the
conflicting jurisprudence on the matter. A declaration of the
absolute nullity of a marriage is now explicitly required either as a
cause of action or a ground for defense. Where the absolute nullity
of a previous marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable in law for
said projected marriage be free from legal infirmity is a final
judgment declaring the previous marriage void [Domingo v. Court
of Appeals]. Thus, Article 40 is applicable to remarriages entered
into after the effectivity of the Family Code on August 3, 1988
regardless of the date of the first marriage [Atienza v. Brillantes]. 
De Guzman v. People
Held: Prudencio cannot claim to have been in good faith in
assuming that there was no legal impediment for him to remarry based
merely on the National Statistics Office's issuance of a Certificate of No
Marriage Record. Based on Prudencio and Arlene's Marriage Certificate,
along with the photos of the wedding ceremony, they were married on April
8, 1994. Thus, the Certificate of No Marriage Record is not enough for
Prudencio to assume that his previous marriage with Arlene has been
voided.
Moreover, Prudencio claims that the prosecution's failure to
offer a copy of the marriage license is fatal to its case. This contention lacks
merit. As the Court of Appeals noted, "[t]he presentation of the marriage
license is not a sine qua non requirement to establish the existence of a
marriage as the certified true copy of the [M]arriage [Certificate is
sufficient for such purpose."
Prudencio also claims that the absence of the solemnizing
officer's signature in the Marriage Certificate renders the marriage void. It
is worth noting that based on the trial court's findings, the discrepancy was
merely inadvertent since a copy of the Marriage Certificate under the Local
Civil Registry had been signed. The trial court explained:
The marriage contract between the accused and the complainant
that was presented by the prosecution bears the signature of the solemnizing
officer (Exhibit "C"). Upon the other hand, the NSO copy of the marriage
contract secured by the accused does not have the signature of the
solemnizing officer but after a careful scrutiny, it is shown that the two (2)
marriage contracts contain the same details of the civil wedding ceremony
between the accused and the complainant. Even the signatures of the parties
and their witnesses have a striking resemblance to the naked eye. The only
logical explanation for this is that the duplicate original that must have been
forwarded by the local civil registry to the NSO was not signed by the
solemnizing officer but the other duplicate original on file with the local
civil registry is duly signed.
Pulido v. People
 Held: Plainly, Article 40 of the Family Code does not
categorically withhold from the accused the right to invoke the defense of a
void ab initio marriage even without a judicial decree of absolute nullity in
criminal prosecution for bigamy. To adopt a contrary stringent application
would defy the principle that penal laws are strictly construed against the
State and liberally in favor of the accused. Granted, the State has the right
to preserve and protect the sanctity of marriage; this should not, however,
be done at the expense of the presumption of innocence of the accused.
What is penalized under Article 349 of the RPC is the act of contracting a
subsequent marriage while the prior marriage was valid and subsisting. This
simply connotes that this provision penalizes contracting of a voidable or
valid marriage and not a void ab initio marriage.
Nothing in Article 40 mentions the effect thereof on the criminal
liability of the accused in bigamy cases. It would indeed be unfair to
withhold from the accused in a bigamy case the right and the opportunity to
raise the defense of nullity of a void ab initio marriage when the law does
not explicitly say so. Thus, to borrow Justice Caguioa5 s opinion, even with
the enactment of Article 40, a void ab initio marriage remains a valid
defense in bigamy, and a prior and separate judicial declaration of absolute
nullity is not indispensable to establish the same.
We cannot simply disregard the effects of a void, ab
initio marriage and penalize the accused, for bigamy despite the clear
absence of a valid prior marriage on the mere speculation that this
interpretation may be subject to abuse by those parties who deliberately and
consciously enter into multiple marriages knowing them to be void and
thereafter, evade prosecution on the pretext of a void ab initio marriage. It
must be pointed out and emphasized that these deliberate acts are already
penalized under Article 350 of the RPC which reads:
ART. 350. Marriage contracted against provisions of laws. –
The penalty of prision correccional in its medium and maximum periods
shall be imposed upon any person who, without being included in the
provisions of the next preceding article, shall contract, marriage
knowing that the requirements of the law have not, been complied with
or that the marriage is in disregard of a legal impediment.
If either of the contracting parties shall obtain the consent of the
other by means of violence, intimidation, or fraud, he shall be punished by
the maximum period of the penalty provided, in the next preceding
paragraph. (Emphasis supplied.)
Thus, the dilemma sought to be prevented as reflected in several
cases is nothing more but a mere speculation and should not be considered
sufficient ground to sustain the erroneous conclusion that to allow the
accused to collaterally attack a void ab initio marriage in bigamy cases
would render nugatory Article 349 of the RPC. To reiterate, Article 349 of
the RPC penalizes parties who contracted a valid or voidable second
marriage when the first marriage, which may be valid or voidable, is still
subsisting. In contrast, Article 350 of the RPC penalizes those who without
being included in Article 349, contract a marriage knowing that the
requirements of the law have not been complied with or in disregard of a
legal impediment.
Thus, an accused who contracts a void ab initio marriage may
escape liability under Article 349 as it strictly encompasses valid or
voidable first and second marriages. However, the accused in contracting a
marriage knowing that the requirements of the law have not been complied
with or in disregard of a legal impediment may be covered and penalized
under Article 350 which addresses the predicament that to permit the
accused to use the defense of a void ab initio marriage or to present a
judicial declaration of nullity in criminal prosecution for bigamy would
make a mockery of the sanctity of marriage by entering into multiple
marriages knowing it to be void and thereafter escape punishment under
Article 349.
Furthermore, it bears noting that in Tenebro, it was held that
void ab initio marriages retroact to the date of the celebration of marriage
but also produce legal effects and consequences as expressly provided
under the statute such as on property relations, inheritance, donations,
insurance beneficiary, legitimacy of children, custody of children, and
support of common children. Tenebro included the incurring of criminal
liability for bigamy as one of the legal effects and consequences despite the
fact that there is no express, mention thereof in the Family Code or, any
statute. It is, thus, supercilious to hold that these legal effects and
consequences include incurring criminal liability for bigamy without
violating a fundamental principle in criminal law, that is, penal statues are
strictly construed against the State and in favor of the accused. To hold
otherwise would amount to judicial legislation which is obviously
proscribed.
Page 48 of 75
Santiago v. People
Held: Here, the cause of action of petitioner, meaning her
affirmative defense in this criminal case of bigamy, is that her marriage
with Santos was void for having been secured without a marriage license.
But as elucidated earlier, they themselves perpetrated a false Certificate of
Marriage by misrepresenting that they were exempted from the license
requirement based on their fabricated claim that they had already cohabited
as husband and wife for at least five years prior their marriage. In violation
of our law against illegal marriages,44 petitioner married Santos while
knowing full well that they had not yet complied with the five-year
cohabitation requirement under Article 34 of the Family Code.
Consequently, it will be the height of absurdity for this Court to allow
petitioner to use her illegal act to escape criminal conviction.
The applicability of People v. De Lara
Petitioner cites De Lara as the relevant jurisprudence involving
an acquittal for bigamy on the ground that the second marriage lacked the
requisite marriage license. In that case, the Court found that when Domingo
de Lara married his second wife, Josefa Rosales, on 18 August 1951, the
local Civil Registrar had yet to issue their marriage license on 19 August
1951. Thus, since the marriage was celebrated one day before the issuance
of the marriage license, the Court acquitted him of bigamy.
Noticeably, Domingo de Lara did not cause the falsification of
public documents in order to contract a second marriage. In contrast,
petitioner and Santos fraudulently secured a Certificate of Marriage, and
petitioner later used this blatantly illicit act as basis for seeking her
exculpation. Therefore, unlike our treatment of the accused in De Lara, this
Court cannot regard petitioner herein as innocent of the crime.
Article 40 vs Article 35(4)
There are two kinds of bigamous marriages under the
Family Code: (a) Bigamous marriage under Article 35(4) and (b)
Bigamous marriage under Article 40.
In Article 35(4), the prior marriage is either perfectly
valid or voidable and another marriage is contracted during its
subsistence. Here, there is a true impediment. Thus, the property
regime of the bigamous marriage in Article 35(4) is that provided
in Article 148.
In Article 40, on the other hand, the prior marriage must
be void ab initio. Article 40 of the Family Code considers the
marital vinculum of the previous void marriage to subsist “for
purposes of remarriage,” unless the previous marriage is judicially
declared void by final judgment. Thus, if the marital vinculum of
the previous marriage subsists because of the absence of judicial
declaration of its nullity, the second marriage is contracted during
the existence of the first marriage resulting in a bigamous marriage.
But the bigamous marriage in Article 40 is governed either by
absolute community of property or conjugal partnership of gains
unless the parties agree to a complete separation of property in a
marriage settlement entered into before the marriage [Dino v.
Dino].
11. Non-Compliance with Article 52
Article 52. The judgment of annulment or of absolute nullity
of the marriage, the partition and distribution of the properties of the
spouses and the delivery of the children’s presumptive legitimes shall
be recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)
Article 53. Either of the former spouses may marry again
after compliance with the requirements of the immediately preceding
Article; otherwise, the subsequent marriage shall be null and void.
If either of the former spouses remarries without
complying with the provisions of Article 52, the following are the
effects:
 f. The subsequent marriage is void, even if the
same is celebrated abroad and valid there as
such;
g. The children conceived or born of such
subsequent void marriage are legitimate; and
h. The property relations of such subsequent void
marriage shall be governed by Article 147.
Article 52 is referring to the requirement of partition and
distribution of properties of the spouses in the second paragraph of
Article 50 and the delivery of the presumptive legitime required in
Article 51. Such being the case, it is clear from Article 50 of the
Family Code that Article 52 applies only to voidable marriages
and, exceptionally, to void marriages under Article 40 of the
Family Code, i.e., the declaration of nullity of a subsequent
marriage contracted by a spouse of a prior void marriage before the
latter is judicially declared void. In short, Article 52 does not apply
to marriages which are declared void for reasons other than Article
40.
B. EFFECTS OF JUDICIAL DECLARATION OF
NULLITY OF MARRIAGE
1. Status of Children
Article 165. Children conceived and born outside a valid
marriage are illegitimate, unless otherwise provided in this Code. (n)
Even if the marriage is void ab initio, the children are
still considered legitimate:
a. If the marriage is void by reason of psychological
incapacity;
b. If the marriage is void by reason of non-compliance
with the requirements of Article 52.
2. Property Relations
If the marriage is void, regardless of the cause thereof,
the property relations of the spouses during the period of
cohabitation are governed by the provisions of Article 147 or 148,
as the case may be [Valdez v. RTC].
Article 147 applies to unions of parties who are legally
capacitated and not barred by any impediment to contract marriage,
but whose marriage is nonetheless void [Mercado-Fehr v. Fehr],
such as when the marriage is declared void on the ground of
psychological incapacity [Valdez v. RTC] or when it was celebrated
without a valid married license [Carino v. Carino].
Article 148, on the other hand, applies to void marriages
where the parties are incapacitated to marry each other, such as
when the marriage is bigamous or one of the parties thereto is
below 18 years of age.
However, if the subsequent marriage is void by reason of
non-compliance with Article 40, the property relations of the
parties to the subsequent marriage would still be absolute
community or conjugal partnership of gains, as the case may be, or
even complete separation [Dino v. Dino].
3. Donation Propter Nuptias
If the marriage is judicially declared void, donations
propter nuptias are revocable at the instance of the donor [Article
86(1)].
If the subsequent marriage is judicially declared void by
reason of Article 40, the donation remains valid except if the done
spouse contracted the marriage in bad faith, in which case, the
donation is revoked by operation of law [Article 50 in relation to
Article 43(3)].
Page 49 of 75
If the marriage is void under Article 44, all donations
made by one in favor of the other are revoked by operation of law.
4. Designation as Beneficiary in Insurance Policy
If the designation of a spouse is beneficiary in the other’s
insurance policy is irrevocable, the insured cannot change such
designation even if the marriage between the spouses be void
[Section 11, Insurance Code].
If the subsequent marriage is judicially declared void by
reason of Article 40, the innocent spouse may revoke such
designation if the beneficiary spouse acted in bad faith, even if
such designation be stipulated [Article 50, in relation to Article
43(4)].
5. Right to Inherit
In intestate succession, since the parties are not spouses,
they cannot inherit from each other by way of intestate succession
(as spouses), unless they are relatives by consanguinity within the
fifth degree and the surviving spouse is the only relative of the
decedent.
In testamentary succession, any testamentary disposition
by one in favor of the other shall remain valid except:
a. If the subsequent marriage is judicially declared
void by reason of Article 40, the spouse who
contracted the subsequent marriage in bad faith
is disqualified to inherit from the innocent
spouse by testate and intestate succession
[Article 50 in relation to Article 43(5)].
b. If the marriage is void under Article 44, all
testamentary dispositions made by one in favor
of the other are revoked by operation of law
[Article 44]. Note, however, that the parties are
not disqualified to institute each other as a
voluntary heir in their respective wills to be
executed after the judicial declaration of nullity.
6. Parental Authority and Custody of Children
If the marriage is judicially declared void, the children of
said void marriage are considered illegitimate [Article 165], in
which case, they shall eb under the parental authority and custody
of their mother [Article 176]. The illegitimate father, as a
consequence is not entitled to custody, even if he admits paternity
[Briones v. Miguel]. Such recognition could be a ground for
ordering the latter to give support to, but not custody of, the
illegitimate children [David v. Court of Appeals]. But the
illegitimate father is entitled to visitation rights in view of the
constitutionally protected inherent and natural right of parents over
their children [Silva v. Court of Appeals].
If the marriage is judicially declared void by reason of
psychological incapacity under Article 36 or non-compliance with
the requirements of Article 52, the children of said void marriage
are legitimate [Article 54] but parental authority and custody shall
be exercised by the parent designated by the court [Article 213, 1 st
paragraph]. However, if the child is under seven years of age, the
law presumes that the mother is the best custodian [Article 213, 2 nd
paragraph], unless the court finds compelling reasons to deprive
her of custody. The non-custodial parent is entitled, however, to
visitation rights [Silva v. Court of Appeals].
C. VOIDABLE MARRIAGES
1. Grounds for Annulment
Article 45. A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
 (1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but below twenty-
one, and the marriage was solemnized without the consent of the
parents, guardian or person having substitute parental authority over
the party, in that order, unless after attaining the age of twenty-one,
such party freely cohabited with the other and both lived together as
husband and wife;
(2) That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with the other as
husband and wife;
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as husband and
wife;
(4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having disappeared or
ceased, such party thereafter freely cohabited with the other as
husband and wife;
(5) That either party was physically incapable of
consummating the marriage with the other, and such incapacity
continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-
transmissible disease found to be serious and appears to be incurable.
(85a)
a. Fraud
Article 46. Any of the following circumstances shall
constitute fraud referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless
of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage. (86a)
(i) Concealment of Pregnancy
To constitute fraud that warrants annulment under Article
46(2): 1) the wife must have been pregnant by a man other than her
husband at the time of the marriage and 2) the wife must have
fraudulently concealed the same [Republic v. Villacorta].
The concealed pregnancy, which vitiates consent, must
have existed at the time of the marriage. Justice Eduardo Caguioa
explains that "[t]he essence of the fraud in this case is the non-
disclosure of the present pregnancy of the wife x x x the pregnancy
must exist at the time of the celebration of the marriage, thus, if the
wife had previous relations with other men and as a consequence of
which she became pregnant or bore a child previously, the
concealment thereof will not be a ground for annulling the
marriage if at the time the marriage was celebrated the wife was
not pregnant." It is the concealment of the fact of pregnancy by
another man at the time of marriage that constitutes fraud as a
ground for annulment [Ibid].  petitioner’s evidence and even cross-examined the expert witness
(ii) Article 46(3) vs Article 45(6)
In Article 45(6), the ground is the existence fo the STD
itself; in Article 46(3), the ground is concealment of the STD.
In Article 45(6), the STD is required to be serious and
incurable; in Article 46(3), regardless of its nature.
(iii) Concealment of Homosexuality
In Almelor v. RTC, the Court emphasized that it is the
concealment of homosexuality, and not homosexuality per se, that
vitiates the consent of the innocent party and such concealment
Page 50 of 75
presupposes bad faith and intent to defraud the other party in
giving consent to the marriage.
b. Impotence
The ground refers to impotency or the physical inability
to perform the act of sexual intercourse, not sterility or the inability
to procreate [Menciano v. San Jose]. Article 45(5) refers to the lack
of power to copulate. Incapacity to consummate denotes the
permanent inability on the part of the psouses to perform the
complete act of sexual intercourse. Non-consummation of a
marriage may be on the part of the husband or the wife and may be
caused by a physical or structural defect in the anatomy of one of
the parties, or it may be due to chronic illness and inhibitions or
fears arising in whole or in part from psychophysical conditions. It
may be caused by psychogenic causes, where such mental block or
disturbance has the result of making the spouse physically
incapable of performing the marriage act [Alcazar v. Alcazar].
2. Prescriptive Period
Article 47. The action for annulment of marriage must be
filed by the following persons and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the
party whose parent or guardian did not give his or her consent, within
five years after attaining the age of twenty-one, or by the parent or
guardian or person having legal charge of the minor, at any time
before such party has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the
same spouse, who had no knowledge of the other’s insanity; or by any
relative or guardian or person having legal charge of the insane, at any
time before the death of either party, or by the insane spouse during a
lucid interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by the
injured party, within five years after the discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by the
injured party, within five years from the time the force, intimidation or
undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by
the injured party, within five years after the marriage. (87a)
D. APPEARANCE OF PROSECUTING ATTORNEY
Article 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order the prosecuting
attorney or fiscal assigned to it to appear on behalf of the State to take
steps to prevent collusion between the parties and to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or confession of
judgment. (88a)
In Corpuz v. Ochotorena, the Court held that the
participation of the public prosecutor was not sufficient compliance
with the foregoing mandatory requirement. In this case, the
respondent did not file an answer in corut and the prosecutor
entered his appearance during the ex parte presentation of
of the petitioner. The Court held that the court order to the public
prosecutor for the investigation of whether collusion exists between
the parties must be made before the trial could proceed and nto
after the trial on the merits had already been had.
In Ancheta v. Ancheta, the Court granted the petition or
the annulment of judgment rendered by the trial court granting the
petition for declaration of nullity of a marriage on the ground of
psychological incapacity where the wife (respondent) was declared
in default, the petitioner was allowed to adduce evidence ex parte
and the public prosecutor appeared for the State but did not object
to the motion of the petitioner to declare the respondent in default.
E. EFFECTS IF MARRIAGE IS ANNULLED UNDER
ARTICLE 45 OR DECLARED VOID UNDER ARTICLE
40
Article 50. The effects provided for by paragraphs (2), (3),
(4) and (5) of Article 43 and by Article 44 shall also apply in the proper
cases to marriages which are declared ab initio or annulled by final
judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the spouses,
the custody and support of the common children, and the delivery of
third presumptive legitimes, unless such matters had been adjudicated
in previous judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it
is situated, shall be adjudicated in accordance with the provisions of
Articles 102 and 129.
Article 51. In said partition, the value of the presumptive
legitimes of all common children, computed as of the date of the final
judgment of the trial court, shall be delivered in cash, property or
sound securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian or the trustee of their
property may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of the
children accruing upon the death of either of both of the parents; but
the value of the properties already received under the decree of
annulment or absolute nullity shall be considered as advances on their
legitime. (n)
The presumptive legitimes of children shall be delivered
in form of cash, property or sufficient securities unless agreed and
judicially approved. An action to enforce such delivery may be
made. In one case, the legitime of legitimate children and
descendants consists of one-half (1/2) of the hereditary share of
father and the mother. The children are therefore entitled to half of
the share of each spouse in the net assets of the absolute
community, which shall be annotated on the titles/documents
covering the same [Noveras v. Noveras].
VI
LEGAL SEPARATION
A. GROUNDS FOR LEGAL SEPARATION
Article 55. A petition for legal separation may be filed on
any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of the
petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
Page 51 of 75
For purposes of this Article, the term “child” shall include a
child by nature or by adoption. (9a)
B. GROUNDS FOR DENIAL
Article 56. The petition for legal separation shall be denied
on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or
act complained of;
(2) Where the aggrieved party has consented to the
commission of the offense or act complained of;
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground for legal
separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to obtain
decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
C. PERIOD TO FILE AND TRIAL
Article 57. An action for legal separation shall be filed within
five years from the time of the occurrence of the cause. (102)
Article 58. An action for legal separation shall in no case be
tried before six months shall have elapsed since the filing of the
petition. (103)
Article 61. After the filing of the petition for legal
separation, the spouses shall be entitled to live separately from each
other.
The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to administer
the absolute community or conjugal partnership property. The
administrator appointed by the court shall have the same powers and
duties as those of a guardian under the Rules of Court. (104a)
D. APPEARANCE OF PROSECUTING ATTORNEY
Article 60. No decree of legal separation shall be based upon
a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney
or fiscal assigned to it to take steps to prevent collusion between the
parties and to take care that the evidence is not fabricated or
suppressed. (101a)
E. RECONCILIATION
Article 59. No legal separation may be decreed unless the
Court has taken steps toward the reconciliation of the spouses and is
fully satisfied, despite such efforts, that reconciliation is highly
improbable. (n)
Article 65. If the spouses should reconcile, a corresponding
joint manifestation under oath duly signed by them shall be filed with
the court in the same proceeding for legal separation. (n)
Article 66. The reconciliation referred to in the preceding
Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but
the separation of property and any forfeiture of the share of the guilty
spouse already effected shall subsist, unless the spouses agree to revive
their former property regime.
The court’s order containing the foregoing shall be recorded
in the proper civil registries. (108a)
 Article 67. The agreement to revive the former property
regime referred to in the preceding Article shall be executed under
oath and shall specify:
(1) The properties to be contributed anew to the restored
regime;
(2) Those to be retained as separated properties of each
spouse; and
(3) The names of all their known creditors, their addresses
and the amounts owing to each.
The agreement of revival and the motion for its approval
shall be filed with the court in the same proceeding for legal separation,
with copies of both furnished to the creditors named therein. After due
hearing, the court shall, in its order, take measure to protect the
interest of creditors and such order shall be recorded in the proper
registries of properties.
The recording of the ordering in the registries of property
shall not prejudice any creditor not listed or not notified, unless the
debtor-spouse has sufficient separate properties to satisfy the creditor’s
claim. (195a, 108a)
F. EFFECTS OF LEGAL SEPARATION
Article 63. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending spouse shall have no
right to any share of the net profits earned by the absolute community
or the conjugal partnership, which shall be forfeited in accordance
with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of Article 213 of this
Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of the
innocent spouse shall be revoked by operation of law. (106a)
Article 64. After the finality of the decree of legal separation,
the innocent spouse may revoke the donations made by him or by her
in favor of the offending spouse, as well as the designation of the latter
as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where the properties
are located. Alienations, liens and encumbrances registered in good
faith before the recording of the complaint for revocation in the
registries of property shall be respected. The revocation of or change in
the designation of the insurance beneficiary shall take effect upon
written notification thereof to the insured.
The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal separation
become final. (107a)
In Siochi v. Gozon, it was held that among the effects of
the decree of legal separation is that the conjugal partnership is
dissolved and liquidated and the offending spouse would have no
right to any share of the net profits earned by the conjugal
partnership. It is only Alfredo’s share in the net profits which is
forfeited in favor of Winifred. Article 102(4) of the Family Code
provides that "[f]or purposes of computing the net profits subject to
forfeiture in accordance with Article 43, No. (2) and 63, No. (2),
the said profits shall be the increase in value between the market
value of the community property at the time of the celebration of
the marriage and the market value at the time of its dissolution."
Clearly, what is forfeited in favor of Winifred is not Alfredo’s
share in the conjugal partnership property but merely in the net
profits of the conjugal partnership property.
Quiao v. Quiao
Page 52 of 75
Held: The petitioner inquires from us the meaning of "net
profits" earned by the conjugal partnership for purposes of effecting the
forfeiture authorized under Article 63 of the Family Code. He insists that
since there is no other provision under the Family Code, which defines "net
profits" earned subject of forfeiture as a result of legal separation, then
Article 102 of the Family Code applies.
What does Article 102 of the Family Code say? Is the
computation of "net profits" earned in the conjugal partnership of gains the
same with the computation of "net profits" earned in the absolute
community?
Now, we clarify.
First and foremost, we must distinguish between the applicable
law as to the property relations between the parties and the applicable law
as to the definition of "net profits." As earlier discussed, Article 129 of the
Family Code applies as to the property relations of the parties. In other
words, the computation and the succession of events will follow the
provisions under Article 129 of the said Code. Moreover, as to the
definition of "net profits," we cannot but refer to Article 102(4) of the
Family Code, since it expressly provides that for purposes of computing the
net profits subject to forfeiture under Article 43, No. (2) and Article 63, No.
(2), Article 102(4) applies. In this provision, net profits "shall be the
increase in value between the market value of the community property at
the time of the celebration of the marriage and the market value at the time
of its dissolution."72 Thus, without any iota of doubt, Article 102(4) applies
to both the dissolution of the absolute community regime under Article 102
of the Family Code, and to the dissolution of the conjugal partnership
regime under Article 129 of the Family Code. Where lies the difference? As
earlier shown, the difference lies in the processes used under the dissolution
of the absolute community regime under Article 102 of the Family Code,
and in the processes used under the dissolution of the conjugal partnership
regime under Article 129 of the Family Code.
Let us now discuss the difference in the processes between the
absolute community regime and the conjugal partnership regime.
On Absolute Community Regime:
When a couple enters into a regime of absolute community,
the husband and the wife becomes joint owners of all the properties of the
marriage. Whatever property each spouse brings into the marriage, and
those acquired during the marriage (except those excluded under Article 92
of the Family Code) form the common mass of the couple's properties. And
when the couple's marriage or community is dissolved, that common mass
is divided between the spouses, or their respective heirs, equally or in the
proportion the parties have established, irrespective of the value each one
may have originally owned.73
Under Article 102 of the Family Code, upon dissolution of
marriage, an inventory is prepared, listing separately all the properties of
the absolute community and the exclusive properties of each; then the debts
and obligations of the absolute community are paid out of the absolute
community's assets and if the community's properties are insufficient, the
separate properties of each of the couple will be solidarily liable for the
unpaid balance. Whatever is left of the separate properties will be delivered
to each of them. The net remainder of the absolute community is its net
assets, which shall be divided between the husband and the wife; and for
purposes of computing the net profits subject to forfeiture, said profits shall
be the increase in value between the market value of the community
property at the time of the celebration of the marriage and the market value
at the time of its dissolution.74
Applying Article 102 of the Family Code, the "net profits"
requires that we first find the market value of the properties at the time of
the community's dissolution. From the totality of the market value of all the
properties, we subtract the debts and obligations of the absolute community
and this result to the net assets or net remainder of the properties of the
absolute community, from which we deduct the market value of the
properties at the time of marriage, which then results to the net profits. 75
Granting without admitting that Article 102 applies to the instant
case, let us see what will happen if we apply Article 102:
(a) According to the trial court's finding of facts, both husband
and wife have no separate properties, thus, the remaining properties in the
list above are all part of the absolute community. And its market value at
the time of the dissolution of the absolute community constitutes the
"market value at dissolution."
(b) Thus, when the petitioner and the respondent finally were
legally separated, all the properties which remained will be liable for the
debts and obligations of the community. Such debts and obligations will be
subtracted from the "market value at dissolution."
 (c) What remains after the debts and obligations have been paid
from the total assets of the absolute community constitutes the net
remainder or net asset. And from such net asset/remainder of the petitioner
and respondent's remaining properties, the market value at the time of
marriage will be subtracted and the resulting totality constitutes the "net
profits."
(d) Since both husband and wife have no separate
properties, and nothing would be returned to each of them, what will be
divided equally between them is simply the "net profits." However, in the
Decision dated October 10, 2005, the trial court forfeited the half-share of
the petitioner in favor of his children. Thus, if we use Article 102 in the
instant case (which should not be the case), nothing is left to the petitioner
since both parties entered into their marriage without bringing with them
any property.
On Conjugal Partnership Regime:
Before we go into our disquisition on the Conjugal Partnership
Regime, we make it clear that Article 102(4) of the Family Code applies in
the instant case for purposes only of defining "net profit." As earlier
explained, the definition of "net profits" in Article 102(4) of the Family
Code applies to both the absolute community regime and conjugal
partnership regime as provided for under Article 63, No. (2) of the Family
Code, relative to the provisions on Legal Separation.
Now, when a couple enters into a regime of conjugal
partnership of gains under Article 142 of the Civil Code, "the husband and
the wife place in common fund the fruits of their separate property and
income from their work or industry, and divide equally, upon the
dissolution of the marriage or of the partnership, the net gains or benefits
obtained indiscriminately by either spouse during the marriage." 76 From the
foregoing provision, each of the couple has his and her own property and
debts. The law does not intend to effect a mixture or merger of those debts
or properties between the spouses. Rather, it establishes a complete
separation of capitals.77
Considering that the couple's marriage has been dissolved under
the Family Code, Article 129 of the same Code applies in the liquidation of
the couple's properties in the event that the conjugal partnership of gains is
dissolved, to wit:
Art. 129. Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
(1) An inventory shall be prepared, 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 as an asset thereof.
(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 spouse, 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
shall constitute 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 unless there has been a voluntary waiver or
forfeiture of such share as provided in this Code.
(8) The presumptive legitimes of the common children shall be
delivered upon the partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling and
the lot on which it is situated shall, unless otherwise agreed upon by the
parties, be adjudicated to the spouse with whom the majority of the
common children choose to remain. Children below the age of seven years
are deemed to have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall decide, taking
into consideration the best interests of said children.
Page 53 of 75
In the normal course of events, the following are the steps in the
liquidation of the properties of the spouses:
(a) An inventory of all the actual properties shall be made,
separately listing the couple's conjugal properties and their separate
properties.78 In the instant case, the trial court found that the couple has
no separate properties when they married. 79 Rather, the trial court
identified the following conjugal properties, to wit:
1. coffee mill in Balongagan, Las Nieves, Agusan del Norte;
2. coffee mill in Durian, Las Nieves, Agusan del Norte;
3. corn mill in Casiklan, Las Nieves, Agusan del Norte;
4. coffee mill in Esperanza, Agusan del Sur;
5. a parcel of land with an area of 1,200 square meters located in
Tungao, Butuan City;
6. a parcel of agricultural land with an area of 5 hectares located
in Manila de Bugabos, Butuan City;
7. a parcel of land with an area of 84 square meters located in
Tungao, Butuan City;
8. Bashier Bon Factory located in Tungao, Butuan City.80
(b) Ordinarily, the benefit received by a spouse from the
conjugal partnership during the marriage is returned in equal amount to the
assets of the conjugal partnership; 81 and if the community is enriched at the
expense of the separate properties of either spouse, a restitution of the value
of such properties to their respective owners shall be made.82
(c) Subsequently, the couple's conjugal partnership shall pay the
debts of the conjugal partnership; while the debts and obligation of each of
the spouses shall be paid from their respective separate properties. But if
the conjugal partnership is not sufficient to pay all its debts and obligations,
the spouses with their separate properties shall be solidarily liable.83
(d) Now, what remains of the separate or exclusive properties of
the husband and of the wife shall be returned to each of them. 84 In the
instant case, since it was already established by the trial court that the
spouses have no separate properties,85 there is nothing to return to any
of them. The listed properties above are considered part of the conjugal
partnership. Thus, ordinarily, what remains in the above-listed properties
should be divided equally between the spouses and/or their respective
heirs.86 However, since the trial court found the petitioner the guilty party,
his share from the net profits of the conjugal partnership is forfeited in
favor of the common children, pursuant to Article 63(2) of the Family
Code. Again, lest we be confused, like in the absolute community regime,
nothing will be returned to the guilty party in the conjugal partnership
regime, because there is no separate property which may be accounted
for in the guilty party's favor.
In the discussions above, we have seen that in both instances,
the petitioner is not entitled to any property at all.
VII
GENERAL PROVISIONS ON PROPERTY
RELATIONS BETWEEN HUSBAND AND WIFE
Article 74. The property relationship between husband and
wife shall be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)
A. MARRIAGE SETTLEMENT
1. Matrimonial Property Regime That May Be
Agreed Upon in the Marriage Settlement
Article 75. The future spouses may, in the marriage
settlements, agree upon the regime of absolute community, conjugal
partnership of gains, complete separation of property, or any other
regime. In the absence of a marriage settlement, or when the regime
agreed upon is void, the system of absolute community of property as
established in this Code shall govern. (119a)
A marriage settlement is a contract entered into by the
future spouses fixing the matrimonial property regime that should
govern during the existence of the marriage
 2. Modification
Article 76. In order that any modification in the marriage
settlements may be valid, it must be made before the celebration of the
marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136.
(121)
Article 77. The marriage settlements and any modification
thereof shall be in writing, signed by the parties and executed before
the celebration of the marriage. They shall not prejudice third persons
unless they are registered in the local civil registry where the marriage
contract is recorded as well as in the proper registries of properties.
(122a)
Any modification in the marriage settlements may be
deemed valid. However, such must be made before the celebration
of the marriage, subject to the following provisions:
a. Art. 66 (on consequences of reconciliation of the
spouses in legal separation);
b. Art. 67 (on conditions for revival of the former
property regime in legal separation);
c. Art. 128 (on petition for sole administratorship
of the conjugal partnership in case of
abandonment by a spouse or failure to comply
with his or her obligations to the family);
d. Art. 135 (grounds for judicial separation of
property); and
e. Art. 136 (joint petition of spouses for dissolution
of property regime governing their relations).
3. Minors
Article 78. A minor who according to law may contract
marriage may also execute his or her marriage settlements, but they
shall be valid only if the persons designated in Article 14 to give
consent to the marriage are made parties to the agreement, subject to
the provisions of Title IX of this Code. (120a)
4. Civil Interdictees
Article 79. For the validity of any marriage settlement
executed by a person upon whom a sentence of civil interdiction has
been pronounced or who is subject to any other disability, it shall be
indispensable for the guardian appointed by a competent court to be
made a party thereto. (123a)
B. GOVERNING LAW
Article 80. In the absence of a contrary stipulation in a
marriage settlement, the property relations of the spouses shall be
governed by Philippine laws, regardless of the place of the celebration
of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines and executed in the
country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered
into in the Philippines but affecting property situated in a foreign
country whose laws require different formalities for its extrinsic
validity. (124a)
C. EFFECTS IF MARRIAGE DOES NOT TAKE PLACE
Article 81. Everything stipulated in the settlements or
contracts referred to in the preceding articles in consideration of a
future marriage, including donations between the prospective spouses
made therein, shall be rendered void if the marriage does not take
Page 54 of 75
place. However, stipulations that do not depend upon the celebration of
the marriages shall be valid. (125a)
VIII
DONATIONS BY REASON OF MARRIAGE
A. DONATIONS PROPTER NUPTIAS
Article 82. Donations by reason of marriage are those which
are made before its celebration, in consideration of the same, and in
favor of one or both of the future spouses. (126)
Article 83. These donations are governed by the rules on
ordinary donations established in Title III of Book III of the Civil
Code, insofar as they are not modified by the following articles. (127a)
B. LIMITATIONS; DONATION OF FUTURE PROPERTY
Article 84. If the future spouses agree upon a regime other
than the absolute community of property, they cannot donate to each
other in their marriage settlements more than one-fifth of their present
property. Any excess shall be considered void.
Donations of future property shall be governed by the
provisions on testamentary succession and the formalities of wills.
(130a)
C. DONATIONS SUBJECT TO ENCUMBRANCES
Article 85. Donations by reason of marriage of property
subject to encumbrances shall be valid. In case of foreclosure of the
encumbrance and the property is sold for less than the total amount of
the obligation secured, the donee shall not be liable for the deficiency.
If the property is sold for more than the total amount of said
obligation, the donee shall be entitled to the excess. (131a)
D. REVOCATION BY DONOR
Article 86. A donation by reason of marriage may be
revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared
void ab initio except donations made in the marriage settlements,
which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the
parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in
bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is
complied with;
(6) When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on donations in general.
(132a)
E. VOID DONATIONS
Article 87. Every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the marriage shall be
void, except moderate gifts which the spouses may give each other on
the occasion of any family rejoicing. The prohibition shall also apply to
persons living together as husband and wife without a valid marriage.
(133a)
This provision refers to donation inter vivos. It is dictated
by the principle of unity of personality of the spouses during the
marriage, and is intended to avoid possible transfer of property
from one spouse to the other due to passion or avarice. The
intimate relations of the spouses during the marriage places the
weaker spouse under the will of the stronger, whatever the sex, so
that the former might be obliged, either by abuse of affection or by
threats of violence, to transfer some properties to the latter. The
law seeks to prevent such exploitation in marriages which might
have been contracted under this stimulus of greed [Perez v. Perez-
Senerpida].
The term "cohabitation" or "living together as husband
and wife" means not only residing under one roof, but also having
repeated sexual intercourse. Cohabitation, of course, means more
than sexual intercourse, especially when one of the parties is
already old and may no longer be interested in sex. At the very
least, cohabitation is public assumption by a man and a woman of
the marital relation, and dwelling together as man and wife, thereby
holding themselves out to the public as such. Secret meetings or
nights clandestinely spent together, even if often repeated, do not
constitute such kind of cohabitation; they are merely
meretricious In this jurisdiction, this Court has considered as
sufficient proof of common-law relationship the stipulations
between the parties, a conviction of concubinage, or the existence
of legitimate children [Arcaba v. Tabancura].
IX
SYSTEM OF ABSOLUTE COMMUNITY OF
PROPERTY
A. GENERAL PROVISIONS
1. When Commenced
Article 88. The absolute community of property between the
spouses shall commence at the precise moment that the marriage is
celebrated. Any stipulation, express or implied, for the commencement
of the community regime at any other time shall be void.
In the absence of a marriage settlement providing for
another kind of matrimonial property regime, the spouses shall be
governed by the absolute community regime [Family Code]. For
marriages celebrated prior to the effectivity of the Family Code, the
regime of conjugal partnership of gains shall govern the property
relations between the spouses.
2. Waiver
Article 89. No Waiver of rights, interests, shares, and effects
of the absolute community of property during the marriage can be
made except in case of judicial separation of property.
When the waiver takes place upon a judicial separation of
property, or after the marriage has been dissolved or annulled, the
same shall appear in a public instrument and shall be recorded as
provided in Article 77. The creditors of the spouse who made such
waiver may petition the court to rescind the waiver to the extent of the
amount sufficient to cover the amount of their credits.
The waiver my be done appropriately before the marriage
in the marriage settlements.
General rule: There should be no waiver of rights, shares,
and effects of the absolute community of property.
Exceptions: Waiver of one spouse is allowed in the
following cases:
a. With the marriage subsisting, in case of a judicial
separation of property, which includes the
dissolution of the absolute community or conjugal
partnership as a result of legal separation; and
b. In case the marriage is dissolved by death or
annulled.
In cases where waiver is allowed:
Page 55 of 75
a. The waiver must appear in a public instrument to
effect third persons, an oral waiver is void; and
b. The waiver must be recorded in the office of the
local civil registrar, where the marriage contract is
recorded and in the proper registries of property.
3. Suppletory Rules
Article 90. The provisions on co-ownership shall apply to the
absolute community of property between the spouses in all matters not
provided for in this Chapter.
Rules on co-ownership are suppletory to the provision of
this Chapter on the system of absolute community of property
between the spouses.
B. WHAT CONSTITUTES COMMUNITY PROPERTY
Article 91. Unless otherwise provided in this Chapter or in
the marriage settlements, the community property shall consist of all
the property owned by the spouses at the time of the celebration of the
marriage or acquired thereafter.
All properties belonging to the spouses before and
acquired after the marriage except those under Article 92 are
automatically converted into the community property of the
spouses without need of any judicial act on the part of the owner-
spouse transferring the same to the community.
1. Exclusions
Article 92. The following shall be excluded from the
community property:
(1)Property acquired during the marriage by gratuitous title
by either spouse, and the fruits as well as the income thereof, if any,
unless it is expressly provided by the donor, testator or grantor that
they shall form part of the community property;
(2)Property for personal and exclusive use of either spouse;
however, jewelry shall form part of the community property;
(3)Property acquired before the marriage by either spouse
who has legitimate descendants by a former marriage, and the fruits as
well as the income, if any, of such property.
Gratuitous title means by donation, or testate or intestate
succession, there is no consideration given. Onerous means that
there is consideration given.
Personal properties for exclusive use pertain to the
spouse who personally and exclusively uses them such as clothes,
shoes, and the like. Pieces of jewelry are the exception except if
such jewelry was acquired by gratuitous title.
Ante-nuptial properties of one spouse are excluded if
said spouse has legitimate descendants from a former marriage.
This is to protect the rights or legitimes of the children or other
descendants of the prior marriage. Said children and other
descendants must be legitimate.
2. Presumption
Article 93. Property acquired during the marriage is
presumed to belong to the community, unless it is proved that it is one
of those excluded therefrom.
Presumption applies to all properties during the marriage.
It is however a condition sine qua non that the party who invokes
the presumption must first prove that the subject property was
acquired during the marriage [Camia v. Reyes].
 The presumption not being conclusive is rebuttable but
only by clear, satisfactory and convincing evidence [Ahern vs.
Julian].
This presumption does not apply to properties excluded
from the absolute community under Article 92.
C. CHARGES UPON AND OBLIGATIONS OF THE
ABSOLUTE COMMUNITY
1. Obligations Chargeable
Article 94. The absolute community of property shall be
liable for:
(1) The support of the spouses, their common children, and
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 administrator-spouse for the benefit of the
community, or by both spouses, or by one spouse 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
been benefited;
(4) All taxes, lien, charges and expenses, including major or
minor repairs, upon the community property;
(5) All taxes and expenses for mere preservation made
during marriage upon the separate property of either spouse used by
the family.
(6) Expenses to enable either spouse to commence or
complete a professional or vocational course, or other activity for self-
improvement;
(7) Antenuptial 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 favour of their common legitimate children for the exclusive
purpose of commencing or completing a professional or vocational
course or other activity for self-improvement;
(9) Ante-nuptial debts of either spouse other than those
falling under paragraph (7) of this Article, the support of illegitimate
children of either spouse, and liabilities incurred by either spouse by
reason of a crime or quasi-delict in case of absence or insufficiency of
the exclusive property of the debtor-spouse, the payment of which shall
be considered as advances to be deducted from the share of the debtor-
spouse upon liquidation of the community; and
(10) Expenses and litigation between the spouses unless the
suit is found to be groundless.
If the community property is insufficient to cover the
foregoing liabilities, except those falling under paragraph (9) the
spouses shall be solidarily liable for the unpaid balance with their
separate properties.
(a) Support. The children of either spouse must be
legitimate for the support to be charged against the absolute
community. Support of illegitimate children of either spouse is
governed by Paragraph (9).
(b) All debts and obligations contracted during the
marriage by (a) both spouses, or (b) either of them with the
consent of the other, or (c) by the administrator-spouse shall be
chargeable to the community property. Since both spouses
consented, creditors need not prove that such debts redounded to
the family benefit.
(c) Debts and obligations contracted without the consent
of the other spouse. The community property, in this instance, is
liable only up to the extent of the benefit received by the family.
Example: if a wife borrowed 100k from a creditor without the
consent of the husband and only 50k was actually extended to the
family and the other 50k was gambled by the wife which she lost,
the community property is liable only for the 50k.
Page 56 of 75
(d) Minor repairs are those for mere preservation of the
property or those caused by ordinary wear and tear. Major repairs
are those caused by extraordinary events such as storms, floods,
earthquakes, fire, etc., affecting the substance and not just the
enjoyment of the property.
(e) Taxes and expenses for mere preservation of separate
property during the marriage only applies to those separate
property used by the family. Expenses are limited to mere
preservation or for minor repairs.
(f) Self-improvement courses include speech power
lessons, cooking lessons, health improvement courses etc.
(g) Ante-nuptial debts of either spouse benefiting the
family must be paid by the absolute community. Example: A
prospective husband borrowed money from bank to buy a house
for the family and the house became a community property after
the marriage.
(h) Value of what is donated or promised by both
spouses to the common legitimate children. (a) both spouses made
the donation or the promise to donate; (b) the recipients are
common children; and (c) purpose is exclusively for
commencement or completion of a professional, vocational, or
other activity for self-improvement.
(i) Advance made by the community property for acts
which it is not originally liable. Amounts to be paid by the
absolute community for the above obligations are considered as
advances. There is no need to prove on the part of the claimant that
the responsibilities in the preceding paragraph have been paid
unlike in the case of conjugal partnership under Article 122.
(j) Litigation expenses between the spouses shall be
chargeable to the community property except when the suit is
groundless. Example: legal separation, annulment, judicial
separation of property. If the spouse who files the case loses, the
absolute community is not liable for the expenses of litigation.
If the community properties are not sufficient to pay for
all the liabilities under this Article except those falling under
Paragraph 9 thereof, the spouses shall be solidarily lible to
creditors with their separate properties. The spouse who pays the
creditor with his or her property may, however, get reimbursement
from the absolute community at the time of liquidation.
2. Gambling
Article 95. Whatever may be lost during the marriage in any
game of chance, betting, sweepstakes, or any other kind of gambling,
whether permitted or prohibited by law, shall be borne by the loser
and shall not be charged to the community but any winnings therefrom
shall form part of the community property.
D. OWNERSHIP, ADMINISTRATION, ENJOYMENT,
AND DISPOSITION OF THE COMMUNITY
PROPERTY
1. Joint Administration; Disagreement
Article 96. The administration and enjoyment of the
community property shall belong to both spouses jointly. In case of
disagreement, the husband’s decision shall prevail, subject to recourse
to the court by the wife for a proper remedy, which must be availed of
within five years from the date of the contract implementing such
decision
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the common properties,
the other spouse may assume sole powers of administration. These
powers do not include the powers of disposition or encumbrance which
must have the authority of the court or the written consent of the other
spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting spouse
and the third person, any may be perfected as a binding contract upon
the acceptance by the other spouse or authorization by the court before
the offer is withdrawn by either or both offerors.
General rule: join administration and enjoyment by both
the husband and wife.
Exception: in case of disagreement the husband will
prevail, subject to recourse to the court by the wife for the proper
remedy within 5 years from the date of the contract implementing
the husband’s decisions. Third persons who deal with the spouse
cannot complain if the contract is set aside by the court for reasons
that the other spouse did not give a written consent.
Assumption of sole powers of administration may be
exercised by one spouse if the other is not able to participate or is
incapacitated. Disposition or encumbrance needs (a) written
consent of the other spouse or (b) authorization by the court.
Absence of the aforementioned requirements renders the contract
void without prejudice to future consent or judicial authorization.
Nobleza v. Nuega
Held: Actual contribution is not relevant in determining whether
a piece of property is community property for the law itself defines what
constitutes community property. The marriage was celebrated in 1990
without marriage settlements. Thus, the property regime of the spouses
would automatically be the absolute community. The act of the husband in
disposing the subject property while legal separation proceedings are still
pending is null and void for lack of consent of the wife. Since the husband
is in bad faith, the wife alone should be entitled to the net profits earned by
the absolute community property.
2. Disposition by Will
Article 97. Either spouse may dispose by will of his or her
interest in the community property.
Disposition by will of interest in community property is
allowed, a specific property to be disposed is void. A spouse may
not dispose a specific property of the community property without
the consent of the other. The right to one’s interest in the
community property is still inchoate. It becomes a vested right only
upon the termination of the community property. While the
community subsists, either spouse may not dispose inter vivos of
his interests to the extent of ½ of the community property unless
otherwise stipulated in the marriage settlements.
3. Donation
Article 98. Neither spouse may donate any community
property without the consent of the other. However, either spouse may,
without the consent of the other, make moderate donations from the
community property for charity or on occasions of family rejoicing or
family distress.
Donation of communal property is prohibited except if it
is for charity or on occasions of family rejoicing or distress. What
is moderate depends upon the financial and social standing of the
family and must not at all substantially affect the value of the
communal assets.
Prohibition against the spouses to donate any community
property without the consent of the other should also apply with
equal force to those who are living as husband and wife without
benefit of marriage or under a void marriage.
E. DISSOLUTION OF ABSOLUTE COMMUNITY
REGIME
Article 99. The absolute community terminates:
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(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
marriage under Articles 134 to 138.
Effects:
(1) See Article 103
(2) Article 63
(3) Article 43 in relation to Article 50
(4) Sufficient cause (Article 135) or Voluntary (136).
137 and 138.
1. Effect of Separation in Fact
Article 100. The separation in fact between the husband and
wife shall not affect the regime of absolute community except that:
(1)The spouse who leaves the conjugal home or refuses to
live therein, without just cause, shall not have the right to be
supported;
(2)When the consent of one spouse to any transaction of the other is
required by law, judicial authorization shall be obtained in a summary
proceeding;
(3)In the absence of sufficient community property, the
separate property of both houses shall be solidarily liable for the
support of the family. The spouse present shall, upon proper petition in
a summary proceeding, be given authority to administer or encumber
any specific separate property of the other spouse and use the fruits or
proceeds thereof to satisfy the latter’s share.
De facto separation is the cessation of cohabitation. The
spouses no longer live together as husband and wife but there is no
decree of legal separation.
Rules:
(a)The separation de facto does not affect their absolute
community of property.
(b)Deserter loses the right to be supported. His
obligations to support the other spouse and the children is not
extinguished.
(c) Judicial authorization obtainable in lieu of
unobtainable consent, whether by refusal or unavailability.
(d) Support of the family will be taken from the absolute
community property. If insufficient, the spouses are solidarily
liable.
(e) Judicial authorization to administer or encumber
specific property belonging to the other spouse may be obtained by
the spouse present and use the fruits of said property or the
proceeds thereof as the case may be, to collect and satisfy the
latter’s share or contribution for support of the family.
2. Abandonment
Article 101. If a spouse without just cause abandons the
other or fails to comply with his other obligations to the family, the
aggrieved spouse may petition the court for receivership, for judicial
separation of property or for the authority to be the sole administrator
of the absolute community, subject to such precautionary conditions as
the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when he or
she has left the conjugal dwelling without any intention of returning.
The spouse who has left the conjugal dwelling for a period of three
months or has failed within the same period to give any information as
to his or her whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling.
Abandonment is the desertion of the conjugal dwelling
without intention of returning. There must be an absolute cessation
of marital relations, duties and rights with intention of perpetual
separation. It must not only be physical estrangement but also
amounts to financial and moral desertion [Dela Cruz v. Dela Cruz].
2 instances of prima facie presumption of abandonment
are: (1) when the spouse has left the conjugal dwelling for a period
of no less than three months, or (2) when within the same period he
or she failed to give any information as to his r her whereabouts.
The presumption is rebuttable by the presentation of clear, strong,
and convining evidence that the absent spouse did not intend to
leave the present spouse and the family.
F. LIQUIDATION OF THE ABSOLUTE COMMUNITY
ASSETS AND LIABILITIES
Article 102. Upon dissolution of the absolute community
regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive properties of
each spouse.
(2) The debts and obligations of the absolute community
shall be paid out of its assets. In case of insufficiency of said assets, the
spouses shall be solidarily liable for the unpaid balance with their
separate properties n accordance with the provisions of the second
paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be divided equally
between husband and wife, unless a different proportion or division
was agreed upon in the marriage settlements, or unless there has been
a voluntary waiver of such share as provided in this Code. For purpose
of computing the net profits subject to forfeiture in accordance with
Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase
in the value between the market value of the community property at
the time of the celebration of the marriage and the market value at the
time of its dissolution.
(5) The presumptive legitimes of the common children shall
be delivered upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon the parties, in the partition
of the properties, the conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with whom the majority of
the common children choose to remain. Children below the age of
seven years are deemed to have chosen the mother, unless the court has
decided otherwise. In case there is no such majority, the court shall
decide, taking into consideration the best interests of said children.
The liquidation under the article applies in termination of
marriage due to annulment, declaration of nullity, legal separation
or judicial separation. If the reason is death, 103 applies.
In the inventory, there shall be a separate listing of (a)
absolute community and (b) exclusive properties of each spouse.
Payment of debts and obligations of absolute community
shall be paid from the (a) assets of the ACP or if insufficient, (b)
exclusive properties of the spouses.
Forfeiture
Articles 43 (2) and 63 (2) speak of forfeiture of shares of
spouses in the net profits, and not of the capital of either spouse.
Articles 147 and 148 mention also forfeitures when a
partner acted in bad faith. What is to be forfeited however is not net
profits because there is no conjugal partnership or community
property in such unions. What is forteitable is the share of the
errant partner in the co-ownership.
Adjudication of the conjugal dwelling and lot:
(a)To the spouse agreed upon in the marriage settlement
(b)If there is no agreement, it shall be adjudicated to the
spouse with whom the majority of the common children chose to
remain;
(c)Children below 7 yrs old are deemed to have chosen
the mother, unless the court decides otherwise; and
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(d) in case there is no such majority among the children,
the court shall decide the matter, taking into consideration the best
interests of the children.
3. Termination of Marriage by Death
Article 103. Upon the termination of the marriage by death,
the community property shall be liquidated in the same proceeding for
the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the
surviving spouse shall liquidate the community property either
judicially or extrajudicially within one year from the death of the
deceased spouse. If upon the lapse of the said period, no liquidation is
made, any disposition or encumbrance involving the community
property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage,
without compliance with the foregoing requirements, a mandatory
regime of complete separation of property shall govern the property
relations of the subsequent marriage.
The procedure to follow is different from Article 102
when the absolute community is terminated by reasons other than
death. The community property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased spouse.
Liquidation may be extrajudicial settlement or an
ordinary action for partition, in both cases if there are no debts to
be paid. Extrajudicial settlement operates when all the heirs
voluntarily execute an Extra-Judicial Partition of the Estate of the
Deceased and divide the estate among themselves. If there are
debts, the surviving spouse has no choice but to file proceeding for
the settlement of the estate of the deceased spouse, and the
community property would be liquidated in the same proceeding.[
Consequences of failure to liquidate: (1) Any disposition
or encumbrance of the community property shall be void; (2) If the
surviving spouse contracts a subsequent marriage, a mandatory
regime of complete separation of property (145-146) shall govern
the family relations of the subsequent marriage.
4. Marriages Contracted Before the Family Code
Article 104. Whenever the liquidation of the community
properties of two or more marriages contracted by the same person
before the effectivity of this Code is carried out simultaneously, the
respective capital, fruits and income of each community shall be
determined upon such proof as may be considered according to the
rules evidence, In case of doubt as to which community the existing
properties belong, the same shall be divided between or among the
different communities in proportion to the capital and duration of
each.
The article is applicable only to those marriages
contracted BEFORE the effectivity of the Family Code. After the
effectivity of the Family Code, it is no longer possible to have
unliquidated community properties of two or more marriages
because Article 103 of the Family Code provides that if the
surviving spouse contracts a subsequent marriage without
liquidating the dissolved community of the terminated marriage,
the regime of complete separation of property shall automatically
apply to the property relations of the spouses in the subsequent
marriage. Hence, there is segregation of property from the start.
In the event of a simultaneous liquidation, the respective
capital, fruits, incomes of each community shall be segregated or
determined to effect a fair and just liquidation based upon such
proofs as may be competent and admissible in accordance with the
rules of evidence In the absence of such competent and admissible
proofs resulting in doubt or failure or determination, the properties
shall be divided between the different communities on the basis of
a double proportion, that is, in proportion to the (1) capital, and (2)
duration of each community.
X indebtedness. Nonetheless, if the conjugal partnership is
CONJUGAL PARTNERSHIP OF GAINS
A. GENERAL PROVISIONS
Article 105. In case the future spouses agree in the marriage
settlements that the regime of conjugal partnership of gains shall
govern their property relations during marriage, the provisions in this
Chapter shall be of supplementary application.
The provisions of this Chapter shall also apply to conjugal
partnership of gains already established between the spouses before the
effectivity of this Code, without prejudice to vested rights already
acquired in accordance with the Civil Code or other laws, as provided
in Article 256.
Conjugal property is that formed by a husband and his
wife whereby they place in a common fund the fruits of their
separate property, and income from their work or industry, the
same to be divided between them equally upon the dissolution of
the marriage or partnership whether by death, annulment, legal
separation or judicial separation of property.
The regime must be agreed in the marriage settlements to
govern the property relations of the future spouses.
Provisions of Chapter 4 shall be applicable to conjugal
partnership of gains already existing before the effectivity of the
Code. This is without prejudice to vested rights acquired in
accordance with law (256). The principle of immutability of
matrimonial property is followed, that is, the original regime of
property relations is maintained.
1. Properties Covered
Article 106. Under the regime of conjugal partnership of
gains, the husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and those
acquired by either or both spouses through their joint efforts, or by
chance, and, upon dissolution of the marriage or of the partnership, the
net gains or benefits obtained by either or both spouses shall be divided
equally between them, unless otherwise agreed in the marriage
settlements.
Properties covered by the conjugal partnership are:
a. Proceeds, products, fruits, and income from the
separate properties of the spouse;
b. Those acquired by either or both spouses by their
efforts or by chance.
The spouses are not co-owners of the conjugal properties
during the marriage and cannot alienate the supposed one-half
interest of each in said properties. The interest of the spouses in the
conjugal properties is only the 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.
2. Rules Applicable
Article 107. The rules in Articles 88 and 89 shall also apply
to the conjugal partnership of gains.
Article 108. The conjugal partnership shall be governed by
the rules on the contract of partnership in all that is not in conflict with
what is expressly determined in this Chapter or by the spouses in their
marriage settlements.
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As may be applicable to the conjugal partnership,
partners are liable pro rata in the satisfaction of the partnership’s
insufficient to cover liabilities, the spouses shall be solidarily liable
for the unpaid balance with their separate properties [PNB v.
Quintos].
B. EXCLUSIVE PROPERTY OF EACH SPOUSE
Article 109. The following shall be the exclusive property of
each spouse:
(1) That which is brought to the marriage as his or her own;
(2) That which each acquired during the marriage by
gratuitous title;
(3) That which is acquired by right of redemption, by barter,
or by exchange with property belonging to only one of the spouses; and
(4) That which is purchased with exclusive money of the wife
or of the husband.
Article 110. The spouses retain the ownership, possession,
administration and enjoyment of their exclusive properties.
Either spouse may, during the marriage, transfer the
administration of his or her exclusive property to the other by means of
a public instrument, which shall be recorded in the registry of property
of the place where the property is located.
Property acquired during the marriage is presumed to be
conjugal unless the contrary is proved. In this case, clear evidence
that the wife inherited the lot from her father has sufficiently
rebutted this presumption of conjugal ownership. Consequently,
the residential lot is the wife’s exclusive paraphernal property
[Munoz, Jr. v. Carlos].
Administration may be transferred to a third person.
1. Property Donated or Left by Will
Article 113. Property donated or left by will to the spouses,
jointly and with designation of determinate shares, shall pertain to the
donee-spouses as his or her own exclusive property, and in the absence
of designation, share and share alike, without prejudice to the right of
accretion when proper.
Accretion is a right by virtue of which, when two or more
persons are called to the same inheritance, devise or legacy, the
part assigned to the one who renounces or cannot receive his share
or who died before the testator, is added or incorporated to that of
his co-heirs, co-devisees, or co-legatees [Article 1015, NCC].
Thus, if a friend donates to a married couple a parcel of
land, the land will not be conjugal, but separate property ½ for each
spouse. This is acquisition by gratuitous title. If a different
proportion or designation of share is made, such will be followed.
a. Onerous Donations
Article 114. If the donations are onerous, the amount of the
charges shall be borne by the exclusive property of the done spouse,
whenever they have been advanced by the conjugal partnership of
gains.
The property donated is still the exclusive property of the
done-spouse, but he or she has an obligation to reimburse the
amount advanced by the conjugal partnership for the charges on the
property at the time of liquidation of the partnership.
Example: a donation of a piece of land with the
obligation on the part of the done-spouse to put up a waiting shed.
If the expenses are advanced by the conjugal partnership, the same
shall be paid by the exclusive property of the donee-spouse upon
liquidation of the partnership.
b. Retirement Benefits and Other Benefits
Article 115. Retirement benefits, pensions, annuities,
gratuities, usufructs and similar benefits shall be governed by the rules
on gratuitous or onerous acquisitions as may be proper in each case.
If they are gratuitous, they are the exclusive property of
the spouse to whom they are given. If they are onerous, then such
benefits are conjugal. If the benefits are being given by reason of
payments from the conjugal property, these shall pertain to the
conjugal partnership like annuities or proceeds of insurance.
2. Right to Mortgage, Encumber, Alienate, Dispose
Exclusive Property
Article 111. A spouse of age may mortgage, encumber,
alienate or otherwise dispose of his or her exclusive property, without
the consent of the other spouse, and appear alone in court to litigate
with regard to the same.
Article 112. The alienation of any exclusive property of a
spouse administered by the other automatically terminates the
administration over such property and the proceeds of the alienation
shall be turned over to the owner-spouse.
Under RA 6809, promulgated on December 13, 1989, the
legal age is now reduced to 18 years. Consequently, a spouse even
if below 21 is now free to mortgage, encumber, alienate or
otherwise dispose of his or her exclusive property without the
consent of the other.
While the administration of the exclusive property of a
spouse may be transferred to the other, the right of the former to
dispose his or her property is not affected. The delegated
administration is however automatically terminated upon the
alienation of the property under administration and the proceeds
thereof must be turned over to the spouse-owner if paid to the
designated administrator.
C. CONJUGAL PARTNERSHIP OF PROPERTY
1. Properties Belonging to the Conjugal
Partnership
Article 116. 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.
Article 117. The following are conjugal partnership
properties:
(1) Those acquired by onerous title during the marriage at
the expense of the common fund, whether the acquisitions be for the
partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or
profession of either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received
during the marriage from the common property, as well as the net
fruits from the exclusive property of each spouse;
(4) The share of either spouses in the hidden treasure which
the law awards to the finder or owner of the property where the
treasure is found;
(5) Those acquired through occupation such as fishing or
hunting;
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(6) Livestock existing upon the dissolution of the partnership
in excess of the number of each kind brought to the marriage by either
spouse; and
(7) Those which are acquired by chance, such as winnings
from gambling or betting. However, losses therefrom shall be borne
exclusively by the loser-spouse.
The presumption is overcome only by strong, clear, and
convincing evidence. Proof of acquisition during the coverture is a
condition sine qua non to the operation of the presumption in
favour of the conjugal partnership [Pintiano-Anno vs. Anno].
Acquisitions by onerous title must be acquired during the
marriage at the expense of the common funds and not of the
exclusive funds of either spouse. The test is the origin of the money
invested in the purchase; if it came from the conjugal funds, the
property acquired is conjugal.
Number 2 includes 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.
In number 3, only the net income or fruits of exclusive
property of the spouses become conjugal.
Treasure is understood as any hidden or unknown
deposit of money, jewelry, or other precious objects, the lawful
ownership of which does not appear. The law speaks of share of
either spouse in hidden treasure whether as finder or owner of the
property where the treasure is found, or whether as finder in his or
her own separate property.
The theory is that animals in the forest and fished 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.
Livestock refers to mammalian animals, and poultry, the
avian animals which are domesticated and kept or raised in
backyards or on farms. The term includes horses, cattle, carabaos,
sheep, goats, swine, rabbits, poultry and similar animals and birds.
The law is simple: all that exceed the number brought to the
marriage of each kind shall be conjugal property.
All property acquired by chance such as winnings in
gambling or betting whether prohibited or not, shall be conjugal
property.
2. Property Bought on Installments
Article 118. Property bought on instalments paid partly
from exclusive funds of either or both spouses and partly from
conjugal funds belongs to the buyer or buyers if full ownership was
vested before the marriage and to the conjugal partnership if such
ownership was vested during the marriage. In either case, any amount
advanced by the partnership or by either or both spouses shall be
reimbursed by the owner or owners upon liquidation of the
partnership.
This article applies to property bought on instalments by
the husband or wife before the marriage. Ownership is transferred
upon the delivery of the property. Delivery may be actual,
constructive, or may be made by execution of legal instrument.
The determinative factor in considering the ownership is
the time when the full ownership is vested. If it was vested before
the marriage, the owner is the buyer-spouse or both of them as the
case may be; if it was vested during the marriage, the conjugal
partnership is the owner. However, any among advanced by the
partnership or by either or both of them shall be REIMBURSED by
the owner or owners upon liquidation
3. Collectible Credits

Article 119. Whenever an amount or credit payable within a
period of time belongs to one of the spouses, the sums which may be
collected during the marriage in partial payments or by instalments on
the principal shall be the exclusive property of the spouse. However,
interests falling due during the marriage on the principal shall belong
to the conjugal partnership.
If a spouse has some collectible credits, the sums paid
during the marriage in partial payments or by instalments on the
principal shall be exclusive property. But the interests falling due
and collected during the marriage shall belong to the conjugal
partnership. Example is in the TSN.
4. Improvements
Article 120. The ownership of improvements, whether for
utility or adornment, made on the separate property of the spouses at
the expense of the partnership or through acts or efforts of either or
both spouses shall pertain to the conjugal partnership or to the original
owner-spouse, subject to the following rules:
When the cost of improvement made by the conjugal
partnership and any resulting increase in value are more than the
value of the property at the time of the improvement, the entire
property of the spouses shall belong to the conjugal partnership,
subject to reimbursement of the value of the property of the owner-
spouse at the time of the improvements; otherwise, said property shall
be retained in ownership by the owner-spouse, likewise subject to
reimbursement of the cost of the improvement.
In either case, the ownership of the entire property shall be
vested upon the reimbursement which shall be made at the time of the
liquidation of the conjugal partnership.
What is important is to note which is bigger or greater:
(a) the value of the property just before the improvement was made
or (b) the resulting increase in value of the property after the
improvement including the cost.
If (a) is greater, the whole thing belongs to the owner-
spouse, without prejudice to reimbursements of the conjugal
partnership. If (b) is greater, the whole thing belongs to the
conjugal partnership, but the owner-spouse must be reimbursed at
the time of the liquidation.
D. CHARGES UPON AND OBLIGATIONS OF THE
CONJUGAL PARTNERSHIP
1. Liabilities of the Conjugal Partnership
Article 121. The conjugal partnership shall be liable for:
(1) The support of the spouses, 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 administrator-spouse 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
been benefited;
(4) All taxes, liens, charges and expenses, including major or
minor repairs upon the conjugal partnership property;
(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;
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(8) The value of what is donated or promised by both
spouses in favour of their common legitimate children for the exclusive
purpose of commencing or completing a professional or vocational
course or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit
is found to be 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.
The liabilities of the conjugal partnership under this
article are the same as those of the absolute community enumerated
in Article 94, with the exception of Paragraph 5 and 9 of Article
94. Article 94 Paragraph 9 (ante-nuptial personal debts of either
spouse other than par. 7 thereof) is not reproduced. The counterpart
of Par. 9, Article 94 is Art. 122 in conjugal partnership. In Article
122, paragraph 3, before the conjugal partnership assets may be
made liable for antenuptial personal debts of either spouse, fines,
indemnities, support of illegitimate children, the responsibilities
enumerated in Article 121 must have been covered first. This is not
required in Article 94 paragraph 9.
If the suit is groundless, the spouse suing shall bear his or
her expenses from his or her separate property.
In Ayala Investment v. Court of Appeals, PBM obtained a
50 million loan from Ayala. The husband is an Executive VP of
Ayala Investments and executed a security agreement making
himself jointly and severally answerable of another company’s
indebtedness to Ayala. PBM failed to pay the loan and so the
sheriff served notice of sale on 3 of the conjugal properties of the
Ching spouses. The Supreme Court held that the liability cannot be
paid by the conjugal partnership. The subject security loan in the
case at bad is a corporate loan extended to PBM and did not in any
way benefit the family.
In Ching v. Court of Appeals, which involves the same
party, the petitioner Alfredo Ching executed a continuing guaranty
binding himself to be jointly and severally liable for the payment of
a 9-million peso loan obtained by PBM from Allied Banking
Corporation. The Supreme Court held that for the conjugal
partnership to be liable for a loan that should appertain to the
husband alone, there must be a showing that some advantages
accrued to the spouses and the family.
In Francisco v. Gonzales, an unlawful detainer case was
filed against the mother of the petitioner. Consequently, an order
by the lower court was rendered for the execution and auction sale
of the Taal property for the settlement of their mother’s debt.
Petitioners raised the issue to the Supreme Court arguing that the
Taal property cannot be sold to answer for the debts of their
mother. The Supreme Court held that a wife may only purchase
things necessary for the support of the family, or when she borrows
money for that purpose. Failure to establish such circumstance, the
conjugal assets cannot be bound to answer for the wife’s personal
obligation. By no stretch of imagination can it be concluded that
the debt/obligation was incurred for the benefit of the conjugal
partnership or that some advantage accrued to the welfare of the
family.
2. Personal Debts
Article 122. The payment of personal debts contracted by
the husband or the wife before or during the marriage shall not be
charged to the conjugal partnership except insofar as they redounded
to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed
upon them be charged to the partnership.
However, the payment of personal debts contracted by
either spouse before the marriage, that of fines and indemnities
imposed upon them, as well as the support of illegitimate children of
either spouse, may be enforced against the partnership assets after the
responsibilities enumerated in the preceding Article have been covered,
if the spouse who is bound should have no exclusive property or if it
should be insufficient; but at the time of the liquidation of the
partnership, such spouse shall be charged for what has been paid for
the purposes above-mentioned.
The conjugal partnership shall be liable for the payment
of personal debts of either spouse before the marriage which
redounded to the benefit of the family and only up to that extent
including the fines and indemnities imposed upon them and
support of illegitimate children of either spouse provided the
following conditions are present: (a) the nine liabilities mentioned
in Article 121 have been satisfied first and (b) the debtor-spouse
has no exclusive property, or the same is insufficient.
Upon liquidation, the debtor-spouse shall be charged in
his or her share in the conjugal assets for the payments made by the
conjugal partnership for the purposes mentioned above.
In Buado v. Nicol, respondent Erlinda Nicol was charged
and held liable for the crime of slander. Article 122 explicitly
provides that payment of personal debts contracted by the husband
or the wife before or during the marriage shall not be charged to
the conjugal partnership except insofar as they redounded to the
benefit of the family. Unlike the system of absolute community
where liabilities incurred by other spouse by reason of a crime or
quasi-delict is chargeable to the absolute community of property, in
the absence or insufficiency of the exclusive property of the debtor-
spouse, the same advantage is not accorded in the system of
conjugal partnership of gains. The conjugal partnership of gains
has no duty to make advance payments for the liability of the
debtor-spouse. To reiterate, conjugal property cannot be held liable
for the personal obligation contracted by one spouse, unless some
advantage or benefit is shown to have accrued to the conjugal
partnership.
In Pana v. Heirs of Juanete, petitioner Melecia was
convicted of murder. Since the facts have established that Melecia
had no exclusive property to satisfy the civil obligation arising
from the criminal liability, a writ of execution on the petitioner
spouses was issued to satisfy the judgement. The Court held that
the payment of personal debts contracted by either spouse before
the marriage, that of fines and indemnities imposed upon them,
may be enforced against the conjugal asset after the responsibilities
enumerated in Article 121 has been covered. The Supreme Court
held that since Melecia has no exclusive property of her own, the
civil indemnity of the decision in the murder case imposed on her
may be enforced against the conjugal assets after the
responsibilities in Article 121 of the Family Code have been
covered.
3. Gambling
Article 123. Whatever may be lost during the marriage in
any game of chance or in betting, sweepstakes, or any other kind of
gambling whether permitted or prohibited by law, shall be borne by
the lose and shall not be charged to the conjugal partnership but any
winnings therefrom shall form part of the conjugal partnership
property.
E. ADMINISTRATION OF THE CONJUGAL
PARTNERSHIP PROPERTY
Article 124. The administration and enjoyment of the
conjugal partnership property shall belong to both spouses jointly. In
case of disagreement, the husband’s decision shall prevail, subject to
recourse to the court by the wife for a proper remedy, which must be
availed within five years from the date of the contract implementing
such decision.
Page 62 of 75
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal properties,
the other spouse may assume sole powers of administration. These
powers do not include the powers of disposition or encumbrance which
must have the authority of the court or the written consent of the other
spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting spouse
and third person, and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors.
Article 125. Neither spouse may donate any conjugal
partnership property without the consent of the other. However, either
spouse may, without the consent of the other, make moderate
donations from the conjugal partnership property for charity or on
occasions of family rejoicing or family distress.
Articles 124 and 96 have the same provisions. They are
not applicable to the regime of complete separation of property
because in the latter the spouses are expressly authorized to dispose
or encumber their separate properties without the consent of the
other. The sale of the conjugal property without the consent of the
other is void. It cannot be ratified by compromise.
However, it is important to note dispositions or
encumbrances made prior to the effectivity of the Family Code.
Under the Civil Code, consent is not needed to be in writing and
the sale or encumbrance without the consent of the other spouse is
merely voidable.
Two kinds of Diligence to be observed by a buyer of a
conjugal property – Article 124 categorically requires the consent
of both spouses before the conjugal property may be disposed of by
sale, mortgage or other modes of disposition. In Bautista v. Silva,
the Court erected the standard to determine the good faith of the
buyers dealing with a seller who had title to and possession of the
land but whose capacity to sell was restricted, in that the consent of
the other spouse was required before the conveyance, declaring that
in order to prove good faith in such a situation, the buyers must
show that they inquired not only into the title of the seller but also
into the seller’s capacity to sell. Thus, the buyer of the conjugal
property must observe two kinds of requisite diligence, name: (a)
the diligence in verifying the validity of the title covering the
property; and (b) the diligence in inquiring into the authority of the
transacting spouse to sell the conjugal property in behalf of the
other spouse.
1. Cases Under The Civil Code
In BA Finance v. Court of Appeals, two months after
private respondent Yulo abandoned his family, he secured a loan
from the petitioner and failed to pay the same. The Trial court then
attached the conjugal properties. The Supreme Court ordered the
release of the attachment of the said property. For the said property
to be held liable, the obligation contracted by the respondent must
have redounded to the benefit of the conjugal partnership. In the
case at bar, it is found that respondent contracted it for his own
benefit only since at the time the loan was contracted, he had
already left his family, and thus, the conjugal partnership must not
be held liable for the obligation.
In Heirs of Ayuste v. Court of Appeals, petitioners
assailed the validity of the deed of sale executed by the late Rafael
Ayuste on February 27, 1987. Petitioners contend that their mother
did not consent to the disposition of the property and therefore is
null and void. The Court held that under Article 173 of the Civil
Code, a sale of real property of the conjugal partnership made by
the husband without the consent of his wife is VOIDABLE. The
action for annulment must be brought during the marriage and
within ten years from the questioned transaction by the wife. The
deed of sale was executed on February 1987. Rafael died on
October 13, 1987. The action for annulment was filed only on
March 2, 1990. It was not brought during the existence of the
marriage and beyond the prescribed time. Thus, the petition must
be dismissed.
In Heirs of Reyes v. Mijares, petitioners’ mother, Ignacia,
found out that her husband sold their conjugal lot and the
apartments built thereon to the Mijares spouses. Thereafter, Ignacia
filed a complaint for the annulment of sale. The trial court ruled
that the sale is void with respect to the share of Ignacia, but later
declared it void in its entirety upon motion for modification of the
petitioners. The trial court correctly annulled the voidable sale in
its entirety. The husband could not alienate or encumber any
conjugal real property without the consent, express or implied, of
the wife, otherwise, the contract is voidable. The wife could, during
the marriage and within 10 years from the question transaction,
seek its annulment.
In Pelayo v. Perez, the Court clarified whether a
signature an implied consent to the contract of sale. It was held that
by affixing her signature to the Deed of Sale on the space provided
for witnesses is deemed to have given her implied consent to the
contract of sale. A wife’s consent to the husband’s disposition of
conjugal property does not always have to be explicit or set forth in
any particular document, so long as it is given. Thus, her act of
signing the deed of sale point to the fact that she was fully aware of
the sale of their conjugal property and consented to the sale.
In Aguete v. PNB, where the husband contracts
obligations on behalf of the family business, the law presumes, and
rightly so, that such obligation will redound to the benefit of the
conjugal partnership. No actual benefit may be proved, it is enough
that the benefit to the family is apparent at the signing of the
contract. It is immaterial if in the end, his business or profession
fails or does not succeed; such may still be charged against the
conjugal property of the spouses.
In Ko v. Aramburo, the husband sold a conjugal property
in 1974 without the consent of the wife. However, the wife filed
the action for annulment only and 1993. Hence, the Court declared
the action to have been filed outside of the 10-year prescriptive
period.
2. Cases Under The Family Code
 It is required that any disposition or encumbrance of the
conjugal property must have the written consent of the other
spouse; otherwise, such disposition is void. 68 The new law provides
that the administration of the conjugal partnership is now a joint
undertaking of the husband and the wife. In all instances, the
present law specifically requires the written consent of the other
spouse or authority of the court for the disposition or encumbrance
of the conjugal property, without which the disposition or
encumbrance shall be void. Thus, even on the supposition that the
wife Bernardita encumbered her respective share in the property,
such encumbrance is still void for the right of the husband or the
wife to one-half of the conjugal assets does not vest until
liquidation of the conjugal partnership. All told, the Amended
Compromise Agreement entered into by Bernardita with
respondent over the conjugal properties of the spouses was void for
having been executed without the participation and consent of
Tomas. [Sps. Hofer v. Yu].
In Guing v. Court of Appeals, petitioners appealed the
decision of the CA in declaring the contract of sale between them
and the husband of the private respondent to be null and void.
Private respondent’s argument is that she gave her objections to the
petitioners because she did not consent to the sale of the property
that is conjugal. The Court held that the contract of sale of the
conjugal property does not bear the private respondent’s consent,
and thus it is void. Powers of administration of one spouse do not
Page 63 of 75
include disposition or encumbrance of the conjugal property
without the authority of the court or the written consent of the other
spouse.
In Manalo v. Camaisa, the disposition of a conjugal
property by the husband as administrator in appropriate cases must
be with the written consent of the wife, otherwise, the disposition is
void. Even granting that the wife actually participated in
negotiating for the sale of the properties, her written consent to the
sale is required by law for its validity. Being merely aware of a
transaction is not consent.
In Homeowners Savings Bank v. Dailo, the aforequoted
provision does not qualify with respect to the share of the spouse
who makes the disposition or encumbrance in the same manner that
the rule on co-ownership under the Civil Code does. Where the law
does not distinguish, Courts should not distinguish. In applying
Article 124 of the Family Code, this Court declared that the
absence of the consent of one renders the entire sale null and void
including the portion of the conjugal property pertaining to the
husband who contracted the sale. The exception is that the husband
may dispose of the conjugal property without the consent of the
wife if such sale is necessary to answer for conjugal liabilities
mentioned in Articles 161 and 162 of the Civil Code [Abalos v.
Macatangay].
In Fuentes v. Roca, the husband sold the subject property
to the petitioner spouses on January 1989, a few months after the
Family Code took effect, without the consent of his estranged wife.
Although the husband and the wife got married under the Civil
Code in 1950, the conjugal property was sold to the Fuentes
spouses in 1989, and thus, the provisions of the Family Code
applies on the sale of the subject property applies. The Court found
that the signature of the wife had been forged, and therefore
consent is absent making the entire sale of the conjugal property
void.
Sps. Anastacio, Sr. v. Colama
Held: Under Article 1323 of the Civil Code, an offer becomes
ineffective upon the death, civil interdiction, insanity, or insolvency of
either party before acceptance is conveyed. When Juan died on August 26,
2006, the continuing offer contemplated under Article 124 of the Family
Code became ineffective and could not have materialized into a binding
contract. It must be remembered that Juliana even died earlier on August
17, 2006 and there is no evidence that she consented to the sale of the
subject property by Juan in favor of petitioners.
The fact that Juan and Juliana were separated from bed and
board (a mensa et thoro) at the time of the supposed sale of the subject
property by Juan to petitioners did not exempt the disposition from the
requirement of obtaining the other spouse's consent under Article 116 of the
Family Code.30 Juan was not without any recourse, he should have gotten
the required authority from the court.
F. DISSOLUTION OF CONJUGAL PARTNERSHIP
REGIM
1. When Terminated
Article 126. The conjugal partnership terminates:
(1) Upon the death of either spouse
(2) When there is a decree of legal separation
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
marriage under Articles 134 and 138.
See Article 99.
2. Effect of Separation in Fact
Article 127. The separation in fact between husband and
wife shall not affect the regime of conjugal partnership, except that:
 (1) The spouse who leaves the conjugal home or refuses to
live therein, without just cause, shall not have the right to be
supported;
(2) When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be obtained in a
summary proceeding;
(3) In the absence of sufficient conjugal partnership
property, the separate property of both spouses shall be solidarily
liable for the support of the family.
The spouse present shall, upon propert petition in a
summary proceeding, be given judicial authority to administer or
encumber any specific separate property of the other spouse and use
the fruits or proceeds thereof to satisfy the latter’s share.
See Article 100.
3. Abandonment Without Just Cause
Article 128. If a spouse without just cause abandons the
other or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for judicial
separation of property, or for authority to be the sole administrator of
the conjugal partnership property subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when he or
she has left the conjugal dwelling without any intention of returning.
The spouse who has left the conjugal dwelling for a period of three
months or has failed within the same period to give any information as
to his or her whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling.
See Article 101.
G. LIQUIDATION OF THE CONJUGAL
PARTNERSHIP’S ASSETS AND LIABILITIES
Article 129. Upon the dissolution of the Conjugal
partnership regime, the following procedure shall apply:
(1) An inventory shall be prepared, 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 as an asset thereof.
(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 has been indemnified from whatever
source, the loss or deterioration of movables used for the benefit of the
family, belonging to either spouse, 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
shall constitute 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 unless there has been a voluntary
waiver or forfeiture of such share as provided in this Code.
(8) The presumptive legitimes of the common children shall
be delivered upon partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling
and the lot on which it is situated shall, unless otherwise agreed upon
by the parties, be adjudicated to the spouse with whom the majority of
the common children choose to remain. Children below the age of
Page 64 of 75
seven years are deemed to have chosen the mother, unless the court has
decided otherwise. In case there is no such majority, the court shall
decide, taking into consideration the best interest of said children.
The present article provides for a 9-step procedure for the
liquidation of conjugal property, Procedures in numbers 1, 4, 5, 7
(first part only), 8, and 9 are common with the procedures in the
regime of absolute community. See Article 102
Procedures in numbers 2, 3, 6, 7 (second part only) are
modified.
If the conjugal partnership made advances for the
payment of the personal debts and obligations of either spouse the
same shall be credited to the conjugal partnership as asset thereof.
There is no need for reimbursement, but there will be a
corresponding deduction from the shares of the debtor-spouse upon
liquidation of the partnership.
There is reimbursement in the following: (a) if the
exclusive funds of a spouse are used for the acquisition of property;
(b) if the ownership of an exclusive property has been vested by
law in the conjugal partnership. In the first, the amount of the funds
will be reimbursed while in the second, the value of the exclusive
property.
The loss or deterioration of movables used for the benefit
of the family belonging to either spouse shall be paid from
conjugal fund, if any, even if the cause thereof is a fortuitous
(accident or chance) event. Exception: If the spouse had already
been paid from other sources, the conjugal funds shall not be liable.
The second paragraph of 102 par 4 is omitted. The
omission which must be through inadvertence did not alter
anything. The omitted procedure or computation of net profits still
applies considering Article 63 par. 2 refers to both the absolute
community and conjugal partnership.
In Ferrer v. Ferrer, ptitioner is the widow of Alfredo
Ferrer, the owner of the subject property which he bought prior to
the marriage but paid the loan and improvements of the subject
property during the marriage using conjugal funds. The
respondents, half-brothers of the late Alfredo, bought the subject
property. Petitioner demands reimbursement for the costs of
improvement from the respondents. The obligation to reimburse
rests on the spouse who owns the property. There is no obligation
to the respondents because they are strangers to the conjugal
partnership. To reiterate, the obligation to reimburse the petitioner
for the costs of improvement is rested on the owner-spouse, not to
the subsequent owners who bought the subject exclusive property
of the husband.
In Muller v. Muller, respondent husband who is an alien
demands reimbursement on the 2.3 million peso house he bought in
the Philippines and registered it in the name of her wife, the
petitioner. Respondent cannot seek reimbursement on the ground
of equity where it is clear that he willingly and knowingly bought
the property despite the constitutional prohibition against aliens
acquiring private lands in the Philippines. To allow reimbursement
would in effect permit respondent to enjoy the fruits of a property
that he is not allowed to own.
Neither can there be a grant of reimbursement based on
unjust when it is proscribed by the Constitution. However, the ban
does not apply to the improvements built upon the land, houses are
co-owned [Beumer v. Beumer].
1. Nature Of Disposition After Death Without
Liquidation
Article 130. Upon the termination of the marriage by death,
the conjugal partnership property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
 If no judicial settlement proceeding is instituted, the
surviving spouse shall liquidate the conjugal partnership property
either judicially or extrajudicially within one year from the death of
the deceased spouse. If upon the lapse of said period no liquidation is
made, any disposition or encumbrance involving the conjugal
partnership property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage
without complying with the foregoing requirements, a mandatory
regime of complete separation of property shall govern the property
relations of the subsequent marriage.
See Article 103.
After the death of either spouse, no complaint for the
collection of indebtedness chargeable against the conjugal
partnership can be brought against the surviving spouse [Alipio v.
CA]. The claim shall be pursued in the testate or intestate
proceedings.
In case the cause of dissolution is death of one spouse,
liquidation is made by (a) testate or intestate proceedings of the
deceased spouse or (b) extrajudicial partition between the surviving
spouse and the heirs of the deceased spouse, provided that there are
no debts and provided, furthermore, that all concerned are of age,
or are duly represented by their judicial guardians in the case of the
minors; or (c) an ordinary judicial action for partition. This is
proper because in said action for partition the liquidation of the
conjugal partnership is already implied.
When a spouse dies, the conjugal property must be
liquidated by the administrator appointed in his testamentary or
intestate proceedings and not necessarily by the surviving spouse.
If husband and wife are living under the regime of
complete separation of property, or if during the marriage, there
was judicial separation of property, there is no more necessity of
making an inventory when the marriage is at last dissolved, for
then there will be no more conjugal partnership to liquidate.
In Heirs of Go, Sr. v. Servacio, the mother of the
petitioners died in 1987. Subsequently, petitioners’ father and
brother sold a portion of the subject property to the respondent.
Petitioners demanded the return of the property and sued for the
annulment of the sale because the subject property was sold
without prior liquidation. There should have been a partition first
prior to the sale of the entire property. Any disposition of the
conjugal property after the dissolution of the conjugal partnership
must be made only after the liquidation. Otherwise, the disposition
is void. Upon the death of the mother in 1987, the conjugal
partnership was dissolved. Thus, an implied ordinary co-ownership
ensued among the father and the other heirs of the mother with
respect to her share in the assets of the conjugal partnership
pending liquidation. Since there is no allocation among the heirs of
their specific shares in the mother’s estate, judicial partition must
be commenced. Servacio can still be considered as a co-owner of
the undivided share or interest sold to her.
In Domingo v. Molina, the Court held that a co-owner
has a right to freely sell and dispose of his undivided interest, but
not the interest of his co-owners. Thus, Anastacio’s sale to the
respondents without the consent of the other co-owners was not
totally void, for Anastacio’s rights or a portion thereof were
thereby effectively transferred. It is now a settled rule that the
appropriate recourse of co-owners in cases where their consent
were not secured in a sale of the entire property as well as in a sale
merely of the undivided shares of some of the co-owners is an
action for partition.
In Uy v. Estate of Fernandez, when Vipa Hernandez died
in 1994, the conjugal partnership was automatically terminated.
Thus, if no judicial settlement proceeding is instituted, the
surviving spouse shall liquidate the conjugal partnership property
either judicially or extrajudicially within six months from the death
of the deceased spouse. If upon the lapse of the six-month period
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no liquidation is made, any disposition or encumbrance involving
the conjugal partnership property of the terminated marriage shall
be void. Since Levi was the co-owner, his sale of his one-half
undivided share in the subject property was not necessarily void,
for his right as a co-owner thereof was effectively transferred,
making the buyer, Rafael, a co-owner of the subject property. The
binding force of a contract must be recognized as far as it is legally
possible to do so.
Carlos v. Tolentino
Held: In the present case, while it has been settled that the
congruence of the wills of the spouses is essential for the valid disposition
of conjugal property, it cannot be ignored that Mercedes' consent to the
disposition of her one-half interest in the subject property remained
undisputed. It is apparent that Mercedes, during her lifetime, relinquished
all her rights thereon in favor of her grandson, Kristoff.
Furthermore, Mercedes' knowledge of and acquiescence to the
subsequent sale of the subject property to Spouses Carlos is evidenced by
her signature appearing in the MOA dated April 12, 2011 and the Deed of
Absolute Sale dated September 12, 2011. We are also mindful of the fact
that Spouses Carlos had already paid a valuable consideration in the amount
of Two Million Three Hundred Thousand Pesos (P2,300,000.00) for the
subject property before Juan's adverse claim was annotated on Kristoffs
title. The said purchase and acquisition for valuable consideration deserves
a certain degree of legal protection.
Given the foregoing, the Court is disinclined to rule that the
Deed of Donation is wholly void ab initio and that the Spouses Carlos
should be totally stripped of their right over the subject property. In
consonance with justice and equity, We deem it proper to uphold the
validity of the Deed of Donation dated February 15, 2011 but only to the
extent of Mercedes' one half share in the subject property. And rightly so,
because why invalidate Mercedes' disposition of her one-half portion of the
conjugal property that will eventually be her share after the termination of
the conjugal partnership? It will practically be absurd, especially in the
instant case, since the conjugal partnership had already been terminated
upon Mercedes' death.
Heirs of Caburnay v. Heirs of Sison
Held: With Perpetua's death, the liquidation of the conjugal
partnership between her and Teodulo should have ensued. Pursuant to
Article 129 of the Family Code, after inventory, mutual restitution and
payment of debts, the net remainder of the conjugal properties,
constituting the profits of the conjugal partnership, shall be divided
equally between the spouses and/or their respective heirs, unless a
different proportion has been agreed upon in their marriage settlements,
or unless the surviving spouse or the heirs of the deceased renounce their
shares, and the presumptive legitimes of the common children shall be
then delivered, to be taken from the total properties (the share in the
conjugal properties and the balance of separate properties) pertaining to
each spouse in proper cases in accordance with Article 51 of the Family
Code.36 In the case, however, of the dissolution of the marriage due to
the death of a spouse, the common children are entitled to their
respective shares as legal heirs in the estate of the deceased spouse.
In many instances, however, the surviving spouse and the heirs
of the deceased spouse do not liquidate the conjugal properties and they
keep them undivided. In such case, a co-ownership is deemed established
for the management, control and enjoyment of the common property. Since
the conjugal partnership no longer subsists, the fruits of the common
property are divided according to the law on co-ownership; that is, in
proportion to the share or interest of each party.37 That share or part of the
co-heir in the co-ownership prior to partition is pro indiviso, undivided or
abstract, not specific, delineated or demarcated by metes and bounds.
As far as the conjugal partnership property of Teodulo and
Perpetua, subject matter of the conflict herein, 1/2 undivided interest
therein pertained to Teodulo as his conjugal share and the other half, which
was Perpetua's conjugal share, pertained to her legal heirs. Based on the
facts, there is no mention of conjugal debts at the time of Perpetua's death.
There is likewise no mention of any conjugal property other than the
subject property. Thus, the subject property became co-owned property of
Teodulo and the heirs of Perpetua upon Perpetua's death.
 Pending liquidation of the conjugal partnership, the alienations
and encumbrances of the parties or co-owners must be considered limited to
their respective undivided interests, and cannot involve any particular or
specific property or physical part of it. This means that the alienation or
encumbrance may be valid as to the undivided interest of the vendor but not
as to the corpus or body or physical portion of the property; and the vendee
will get the property that may be adjudicated in the partition to the vendor,
but not any portion of what may be allotted to the other co-owners.
XI
JUDICIAL SEPARATION OF PROPERTY
DURING THE MARRIAGE
A. NEED OF JUDICIAL ORDER
Article 134. In the absence of an express declaration in the
marriage settlements, the separation of property between the spouses
during the marriage shall not take place except by judicial order. Such
judicial separation of property may either be voluntary or for
sufficient cause.
In case of voluntary separation of property, the same is
not perfected by mere consent but upon the decree of the court
approving the same. Without judicial approval, the contract or
agreement for separation of property is void.
Article 134 is applicable where the property regime of
the spouse is other than a complete separation of property.
B. CAUSES FOR JUDICIAL SEPARATION OF
PROPERTY
Article 135. Any of the following shall be considered
sufficient cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a
penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially
declared an absentee;
(3) That loss of parental authority of the spouse of petitioner
has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the
latter or failed to comply with his or her obligations to the family as
provided for in Article 101.
(5) That the spouse granted the power of administration in
the marriage settlements has abused that power; and
(6) That 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 case provided for in numbers (1), (2) and (3), the
presentation of the final judgement against the guilty or absent spouse
shall be enough basis for the grant of the decree of judicial separation
of property.
(1) The reason for this cause is that the convicted spouse
is deprived of his right to manage property among other
deprivations imposed by law.
(2) During the period of absence, the absentee cannot
manage even his own exclusive property such that the
administration thereof may upon proper petition to the court be
transferred to the other spouse or any other suitable person.
(3) The law applies to loss of parental authority under
Articles 231 and 232 of the Family Code
(4) A spouse is deemed to have abandoned the other
when the former has left the conjugal dwelling without the
intention of returning. There is a prima facie presumption of
abandonment when the leaving spouse left the conjugal dwelling
for a period of at least three months or has failed within the same
period to give any information as to his whereabouts.
Page 66 of 75
(5) The power to administer must have been stipulated in
the marriage settlements, and this power has been abused such as
by alienation of communal or conjugal property for purposes not
beneficial to the family, unreasonable donations to the damage and
prejudice of the community or conjugal partnership.
(6) Example would be one of the spouses is already
living with another partner.
In cases (4) to (6), there must be proof of the cause or
ground for separation of property.
In Noveras v. Noveras, Petitioner husband and
respondent wife acquired properties in the USA and in the
Philippines. According to the wife, David abandoned his family
and lived with another woman. After a divorce decree was issued
in California, USA, the wife Leticia filed for judicial separation of
the conjugal property in the Philippines based on Paragraphs (4)
and (6) of Article 135 of the Family Code. Abandonment was not
sufficiently proven. However, there was sufficient evidence as to
the separation in fact of the spouses and the improbability of
reconciliation.
C. VOLUNTARY SEPARATION
Article 136. The spouses may jointly file a verified petition
with the court for the voluntary dissolution of the absolute community
or the conjugal partnership of gains, and for the separation of their
common properties.
All creditors of the absolute community or of the conjugal
partnership of gains, as well as the personal creditors of the spouse,
shall be listed in the petition and notified of the filing thereof. The
court shall take measures to protect the creditors and other persons
with pecuniary interest.
This article speaks of voluntary judicial separation of
property. There must be a joint verified petition.
D. EFFECT OF DECREE OF SEPARATION
Article 137. Once the separation of property has been
decreed, the absolute community or the conjugal partnership of gains
shall be liquidated in conformity with this Code.
During the pendency of the proceedings for separation of
property, the absolute community or conjugal partnership shall pay
for the support of the spouses and their children.
Article 138. After dissolution of the absolute community or
of the conjugal partnership, the provisions on complete separation of
property shall apply.
Article 139. The petition for separation of property and the
final judgement granting the same shall be recorded in the proper civil
registries and registries of property.
Upon the finality of the decree of separation of property,
the absolute community or conjugal partnership of gains shall be
liquidated in accordance with the procedure laid down in Articles
102 or 129 of the Family Code.
Effects of Separation of property between the spouses:
(1) AC or CP is dissolved and liquidated
(2) Each spouse shall thereafter have exclusive
ownership of all his earnings, and fruits of his or her
separate property.
(3) The liability of the spouses to creditors shall be
solidary with their separate properties
(4) The mutual obligation of the spouse to support each
other continues except when there is legal
separation
 (5) Rights previously acquired by creditors are not
prejudiced
Rights of Creditors
Article 140. The separation of property shall not prejudice
the rights previously acquired by creditors.
The rights of creditors acquired previous to the decree of
separation of property shall not be prejudiced.
If before the judicial separation, the husband mortgaged a
communal lot to a third person and later in the decree of judicial
separation this property was adjudicated to the wife, the mortgage
remains valid and enforceable against the property. Conversely, if
the lot was adjudicated to the wife, and after registration of the
decree, the husband mortgaged the lot to a third person without the
authority of the wife, the mortgage shall be void.
E. MOTION TO REVIVE
Article 141. The spouses my, in the same proceedings where
separation of property was decreed, file a motion in court for a decree
reviving the property regime that existed between them before the
separation of property in any of the following instances:
(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) Wen 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 spouse who had been separated in fact for at
least one year, reconcile and resume common life; or
(7) When after voluntary dissolution of the absolute
community of property or conjugal partnership has been judicially
decreed upon the join petition of the spouses, they agreed to the revival
of the former property regime. No voluntary separation of property my
thereafter be granted.
The article enumerates the instances when the spouses
may file a motion in a court for a decree reviving their previous
property regime prior to the separation of property.
Revival of the original property regime may be subject of
a motion in the same proceedings where the separation of property
was granted. But the reconciliation between the parties does not
mean automatic revival of their former regime. Once the spouses
agree to revive their former regime, no voluntary separation of
property may be granted to them again thereafter.
If there is legal separation between the spouses and for
sufficient causes justifying judicial separation of property, there
can still be separation of property between the spouses, but this is
no longer voluntary or contractual separation of property but for
sufficient cause.
F. TRANSFER OF ADMINISTRATION OF EXCLUSIVE
PROPERTY
Article 142. The administration of all classes of exclusive
property of either spouse may be transferred by the court to the other
spouse:
(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; or;
(4) When one spouse becomes a fugitive from justice or is in
hiding as an accused in a criminal case.
Page 67 of 75
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.
Read this provision with Article 110.
This article deals with administration by one spouse
alone of the separate properties of the other spouse.
While the present spouse is preferred to take over the
management of the other spouse, the court is not precluded from
appointing another suitable person as administrator if the other
spouse is incompetent or suffers from conflict of interest or there
are other valid reasons.
The difference between this article and the sole
administration under Article 96 Paragraph 2, applicable to Article
124, is that the latter needs no judicial intervention unlike in the
instant Article 142.
XII
REGIME OF SEPARATION OF PROPERTY
Article 143. Should the future spouses agree in the marriage
settlements that their property relations during the marriage shall be
governed by the regime of separation of property, the provisions of this
Chapter shall be of suppletory application.
See Article 145.
The regime of separation of property is governed
primarily by provisions of the marriage settlements.
In Maquilan v. Maquilan, the Court held that under
Article 143 of the Family Code, separation of property may be
effected voluntarily or for sufficient cause, subject to judicial
approval. The questioned Compromise Agreement which was
judicially approved is exactly such a separation of property allowed
under the law. This conclusion holds true even if the proceedings
for the declaration of nullity of marriage was still pending.
However, the Court must stress that this voluntary separation of
property is subject to the rights of all creditors of the conjugal
partnership of gains and other persons with pecuniary interest
pursuant to Article 136 of the Family Code.
A. TYPES OF SEPARATION OF PROPERTY
Article 144. Separation of property may refer to present or
future property or both. It may be total or partial. In the latter case,
the property not agreed upon as separate shall pertain to the absolute
community.
B. EXCLUSIVE ADMINISTRATION
Article 145. Each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate, without need of
the consent of the other. To each spouse shall belong all earnings from
his or her profession, business, or industry, and all fruits, natural,
industrial or civil due or received during the marriage from his or her
separate property.
The wife can dispose of the fruits of her separate
property unlike in conjugal partnership of gains where she needs
the consent of her husbands as fruits are considered conjugal
property.
C. FAMILY EXPENSES
Article 146. Each spouse shall bear the family expenses in
proportion to their income, or, in case of insufficiency or default
thereof, to the current market value of their separate properties.
 The liability of the spouses to creditors for family expenses
shall, however, be solidary.
Illustration: Suppose the income of the husband is 10k
and the wife is 5k. The monthly family expenses amount to 12k.
The husband will share 8k while the wife is 4k. The spouses are
however solidarily liable to creditors for family expenses. Creditors
may sue both or anyone of them alone for the payment of family
expenses as the liability is solidary.
XIII
PROPERTY REGIME OF UNIONS WITHOUT
MARRIAGE
A. COHABITATION BETWEEN MAN AND WOMAN
CAPACITATED TO MARRY EACH OTHER
Article 147. When a man and a woman who are capacitated
to marry each other, live exclusively as husband and wife without the
benefit of marriage or under a void marriage, their wages and salaries
shall be owned by them in equal shares and the property acquired by
both of them through their work or industry shall be governed by the
rules on co-ownership.
In the absence of proof to the contrary, the properties
acquired while they live together shall be presumed to have been
obtained by their joint efforts, work, or industry, and shall be owned
by them in equal shares. For purposes of this article, a 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 former’s efforts consisted in the care and maintenance of the family
and of the household.
Neither party can encumber or dispose by acts inter vivos of
his or her share in the property acquired during the cohabitation and
owned in common without the consent of the other until after the
termination of their cohabitation.
When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the co-ownership shall be
forfeited in favour of their common children. In case of default of or
waiver by any or all of the common children or their descendants, each
vacant share shall belong to the respective surviving descendants. In
the absence of descendants, such share shall belong to the innocent
party. In all cases, the forfeiture shall take place upon termination of
the cohabitation.
. income or work or industry [Barrido v. Nonato].
This particular kind of co-ownership applies when a man
and a woman, suffering no illegal impediment to marry each other,
exclusively live together as husband and wife under a void
marriage or without the benefit of marriage. It is clear, therefore,
that for Article 147 to operate, the man and the woman: (I) must be
capacitated to marry each other; (2) live exclusively with each
other as husband and wife; and (3) their union is without the
benefit of marriage or their marriage is void [Barrido v. Nonato].  presumed to have been obtained by their joint efforts, work or
The reason for the invalidity of the marriage must not be
one for lack of legal capacity or presence of diriment impediment.
Thus, it has been held that the contracting parties must not be
barred by any legal impediment [Malang v. Moson].
The informal civil relationship of the live-in partners
terminates upon their actual separation.
The term COHABITATION means more than sexual
intercourse. It is the public assumption by a man and a woman of a
marital relation, and dwelling together as man and wife, thereby
holding themselves out to the public as such. Evidence that a man
merely came at night to the dwelling of the woman, had sex with
her, then went away, even if repeatedly done, does not establish
cohabitation [Parco v. Salamillos]. The same goes to secret
meetings or night clandestinely spent together [Arcaba v. Vda. De
Batocael].
There is no prohibition on disposition mortis causa.
Page 68 of 75
In Valdez v. RTC, petitioner husband and private
respondent wife got married but got the marriage subsequently
declared void under Article 36 of the Family Code. In a void
marriage under Article 36, the property relations of the parties
during the period of cohabitation are governed by the provisions of
Article 147 of the Family Code.
In Buenaventuae v. Court of Appeals, the case does not
involve the annulment of a bigamous marriage, the provisions of
Article 50 in relation to Articles 41, 42, and 43 of the Family Code
providing dissolution of the absolute community or conjugal
partnership do not apply. Unlike the conjugal partnership, the fruits
of the couple’s separate property are not included in the co-
ownership. Properties acquired during the union of the parties
would be covered by the co-ownership.
In Dino v. Dino, the trial court rendered a judgement
declaring the marriage between petitioner and respondent to be
void under Article 36 of the Family. But as a condition, the decree
of nullity shall only be issued after liquidation, partition, and
distribution of the parties’ properties under Article 147. The rules
on co-ownership apply and the properties of the spouses should be
liquidated in accordance with the Civil Code provisions on co-
ownership. Partition may be made by agreement between the
parties or by judicial proceedings.
1. Wages and Salaries
Wages and salaries earned by either party during the
cohabitation shall be owned by them in equal shares and will only
be divided equally between them, even if only one party earned the
wages and the other did not contribute thereto [Carino v. Carino].
2. Property Acquired During Cohabitation
Under this property regime, property acquired by both
spouses through their work and industry shall be governed by the
rules on equal co-ownership. Any property acquired during the
union is prima facie presumed to have been obtained through their
joint efforts. A party who did not participate in the acquisition of
the property shall be considered as having contributed to the same
jointly if said party's efforts consisted in the care and maintenance
of the family household. Efforts in the care and maintenance of the
family and household are regarded as contributions to the
acquisition of common property by one who has no salary or
 
In Ocampo v. Ocampo, it was held that failure to prove
that the properties were acquired solely by her own efforts would
uphold the presumption that the shares of the former partners
would be 50-50.
In Perez, Jr. v. Perez-Senerpida, the subject property was
registered in the names of Eliodoro and Adelita, as spouses, and
there being no proof to the contrary, the subject property is
industry, and was owned in equal shares by them pursuant to
Article 147.
In Abing v. Waeyan, under Article 147, proof is
necessary to claim that property acquired during cohabitation is
exclusive. Other than John’s bare allegation that he alone, thru his
own funds and money he borrowed from his relatives, spent for the
construction of the annex structure, evidence is insufficient. The
law is clear, in the absence of proofs to the contrary, any property
acquired by common-law spouses during their period of
cohabitation is presumed to have been obtained thru their joint
efforts and is owned by them in equal shares. Their property
relationship is governed by the rules on co-ownership. Being
herself a coowner, Juliet may not be ejected from the structure in
question. She is as much entitled to enjoy its possession and
ownership as John. Juliet’s failure to pay John the balance could at
best give rise to an action for a sum of money against Juliet, or for occupation of both or either of them. And the same thing may be said of
rescission of the said agreement and not for ejectment. those whose marriages are by provision of law declared void ab
initio. While it is true that these requisites are fully met and satisfied in the
case at bar, We must remember that the deceased and herein appellee were
Paterno v. Paterno
already estranged as of March, 1950. There being no provision of law
Held: While the parties concede that their property regime is
governing the cessation of such informal civil partnership, if it ever existed,
governed by co-ownership, they do not agree on the properties covered
[the] same may be considered terminated upon their separation or
therein. For the respondent, all properties acquired by them, before the
desistance to continue said relations.39
judicial decree of nullity of their marriage, including the time they were
This Court's earlier pronouncement in G.R. No. 180226 that
already separated, form part of the co-ownership. On the other hand, for the
Article 147 of the Family Code applies only to properties acquired by the
petitioner, only those properties acquired by them while they were living
parties during the period of their cohabitation is thus binding in this case.
together are common assets. Thus, petitioner theorizes that since the
The question now that comes to the fore is the proper application of the said
amortizations for the Ayala Alabang and Rockwell properties were paid by
ruling with respect to the Ayala Alabang and Rockwell properties.
him after the parties stopped living together, the payments made should not
It is not disputed that the Ayala Alabang and Rockwell
form part of the co-ownership but must belong solely to him. It is for this
properties that were acquired during the period of the parties' cohabitation
reason that he insists that the Supreme Court must first be allowed to rule
had not yet been fully paid at the time they separated. From the arguments
on G.R. No. 180226 before the trial court should have ruled on the motion
advanced by the petitioner, it can be inferred that he made much of the term
for the partial distribution of the above-listed properties because the
"acquired" in that he distinguished portions of the disputed property to that
decision of the High Court therein would have determined whether such
which had been paid for during the period of cohabitation, and to the
contributions form part of the co-ownership.
portion which was yet unpaid when the parties separated. For him, only the
In disposing of the issues raised for its consideration and
paid portion should be encompassed in the term "acquired" and thus, be
resolution, the CA correctly applied the law and its relevant jurisprudence,
presumed to belong to the parties in equal shares.
as the following exposition clearly indicates:
The Court does not agree. In the construction of the term
The parties do not argue that co-ownership of properties
"acquired," this Court must be guided by the basic rule in statutory
acquired during the union governs them under Article 147 of the Family
construction that when the law does not distinguish, neither should the
Code. x x x
court.40 A reading of Article 147 of the Family Code would show that the
xxxx
provision did not make any distinction or make any qualification in terms
So what are the common properties included in the dissolution
of the manner the property must be acquired before the presumption of co-
of the co-ownership?
ownership shall apply. As such, the term "acquired" must be taken in its
[Respondent's] argument implies that despite already being
ordinary acceptation. For as long as the property had been purchased,
separated de facto, as long as a couple remains married (in paper), pending
whether on installment, financing or other mode of payment, during the
a court declaration of nullity of their union, all the properties gained by
period of cohabitation, the disputable presumption that they have been
each in the meantime before the judicial declaration will be included in the
obtained by the parties' joint efforts, work or industry, and shall be owned
co-ownership regime.
by them in equal shares, shall arise. Applied in this case, since the Ayala
[Respondent] however should be reminded of the legal effect of
Alabang and Rockwell properties were purchased while the petitioner and
a confirmation of a void ab initio marriage: it is retroactive to the time
the respondent were living together, it is presumed that both parties
when the marriage ceremony transpired. In short, after the trial court
contributed in their acquisition through their joint efforts (which includes
declared her marriage to [petitioner] void in 2005 because of both parties'
one's efforts in the care and maintenance of the family and of the
psychological incapacity, the marriage ceremony on December 27, 1987
household), work or industry. Thus, the properties must be divided between
was invalidated as if no marriage took place. This means then that during
them equally.
their ten-year cohabitation, [respondent] and [petitioner] lived together
The fear of the petitioner that the respondent will get more than
merely as common-law spouses. This is where Article 147 comes in,
her just share in the properties is unfounded.41 It must be borne in mind
dealing with those "properties acquired while they lived together...obtained
that the presumption that the properties are co-owned and thus must be
by their joint efforts, work or industry..." and the joint effort includes "the
shared equally is not conclusive but merely disputable. The petitioner may
care and maintenance of the family and of the household."
rebut the presumption by presenting proof that the properties, although
Her insistence of the common ownership of the moneys and
acquired during the period of their cohabitation, were not obtained through
properties accumulated subsequent to the de facto separation would have
their joint efforts, work and industry. In such a case, the properties shall
been correct if the prope1iies had to be liquidated (such as in a spouse's
belong solely to the petitioner. If the respondent is able to present proof that
death) and an official declaration of nullity of marriage was never secured.
she contributed through her salary, income, work or industry in the
Her stand would have been supplied by the case of Cariño v.
acquisition of the properties, the parties' share shall be in proportion to their
Cariño wherein two women were fighting over the government death
contributions. In the event that the respondent had not been able to
benefits of the man they married. The first wife was married to the deceased
contribute through her salary, income, work or industry, but was able to
in 1969 but in 1992, without having his previous marriage nullified for lack
show that she cared for and maintained the family and the household, her
of a marriage license, the husband still married another woman with whom
efforts shall be deemed the equivalent of the contributions made by the
he cohabited in 1982. The High Court refused to award the death benefits to
petitioner. However, equal sharing of the entire properties is not possible in
the second wife and gave the monetary benefits to the first one. Although
this scenario since the Ayala Alabang and Rockwell properties were still
Article 147 applies to the first wife, the Court awarded the benefits to her in
being amortized when the parties' separated. As such, respondent's equal
full because the presumption of a valid marriage stood in her favor by
share shall only pertain to the paid portion before their separation, for in
reason of a lack of a judicial declaration of nullity. To stress, in the case at
this peculiar kind of co-ownership, and in keeping with the pronouncement
bar, there was a judicial declaration of nullity, and Cariño cannot apply to
in G.R. No. 180226, the partnership is considered terminated upon the
her.
parties' separation or desistance to continue said relations. Hence, from the
As adverted to earlier, after the judicial declaration, [petitioner]
moment of separation, there is no more family or household to speak of that
and [respondent's] relationship has relegated to a common-law marriage,
the respondent could have cared for or maintained. If the allegation of the
and their cohabitation, i.e., living together exclusively as husband and wife,
respondent that the payments for the amortizations of these properties were
was only for a period of ten years. Obviously, the 'cohabitation' of the
taken from their common funds, then the respondent would have an equal
parties will definitely not include the years since [petitioner] left
share in such portions because the payments made therefor were actually
[respondent] and the family home. The period of cohabitation of a couple
taken from the co-ownership.
without the benefit of marriage or under a void marriage has been
sufficiently explained and has been applied by the Supreme Court in the
case of Aznar x x x. Expounding on Article 144 of the Civil Code, the 3. Encumbrance or Disposition of Property
provision which Article 147 of the Family Code is based, the Court said: In Metrobank v. Pascual, the validity of an encumbrance
It must be noted that such form of co-ownership requires that the of the entire property made by one of the parties without the other’s
man and the woman thus living together must not in any way be consent was upheld with respect only to the share of the consenting
incapacitated to contract marriage and that the properties realized during co-owner, applying the provisions of Article 493 of the Civil Code.
their cohabitation be acquired through the work, industry, employment or

Page 69 of 75
In this case, the encumbrance was made after the termination of the
cohabitation (or after the finality of the judgment declaring the
marriage void by reason of psychological incapacity).
4. Forfeiture
If the cohabitation is by reason of a void marriage and
only one of the parties acted in bad faith, the share of the latter in
the co-ownership shall be forfeited in favor of the following, which
forfeiture shall take place upon the termination of cohabitation:
a. The common children, any;
b. In default of common children, the surviving
descendants of the party who acted in bad faith;
c. In the absence of descendants, the innocent party.
B. COHABITATION OF PARTIES NOT CAPACITATED
TO MARRY EACH OTHER
Article 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both of the paties
through their actual joint contribution of money, property, or industry
shall be owner by them in common in proportion to their respective
contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be equal. The
same rule and presumption shall apply to joint deposits of money and
evidences of credit.
If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute community or
conjugal partnership existing in such valid marriage. If the party who
acted in bad faith is not validly married to another, his or her share
shall be forfeited in the manner provided in the last paragraph of the
preceding Article.
Article 148 applies in cases where the parties in union are
incapacitated to marry each other [Allilin, Jr. v. Castillo]. It refers
to the property regime of bigamous marriages, adulterous
relationships, relationships in a state of concubinage, relationshops
where both man and woman are married to other persons, and
multiple alliances of the same married man [Carino v. Carino].
For Article 148 to operate, the man and the woman:
a. Must be incapacitated to marry each other, or they
do not live exclusively with each other as husband
and wife [Valdez v. RTC]; and
b. Their union is without the benefit of marriage or
their marriage is void.
Article 148 of the Family Code now provides for a
limited co-ownership in cases where the parties in union are
incapacitated to marry each other. It applies as all but one property
were acquired after the Family Code took effect on August 3, 1988.
With respect to the property acquired under the regime of the Civil
Code, then it should be excluded. The legal relation of the parties is
already specifically covered by Article 148 of Family Code under
which all properties acquired out of their actual joint contribution
of property or industry shall constitute a co-ownership [Malillin v.
Castillo].
1. Retroactive Application
In Atienza v. De Castro, although the cohabitation of the
petitioner and respondent commenced in 1983, Article 148 still
applies because this provision was intended to precisely to fill up
the hiatus in Article 144 of the Civil Code. Co-ownership will only
be up to the extent of the proven actual contribution of money,
property or industry. Absent of proof of the extent thereof, their
contributions and corresponding shares shall be presumed to be
equal. The respondent was able to present preponderant evidence
Page 70 of 75
of her sole ownership. There can clearly be no co-ownership when
Yolanda sufficiently established that she derived the funds used to
purchase the property from her earnings not only as an accountant,
but also as a businesswoman engaged in foreign currency trading,
money lending, and jewelry retail. The petitioner, on the other
hand, failed to substantiate his alleged contribution in the purchase
thereof.
In Saguid v. Court of Appeals, it is not disputed that Gina
and Jacinto were not capacitated to marry each other because the
former was validly married to another man at the time of her
cohabitation with the latter.  Their property regime therefore is
governed by Article 148, which applies to bigamous marriages,
adulterous relationships, relationships in a state of concubinage,
relationships where both man and woman are married to other
persons, and multiple alliances of the same married man.  Although
the adulterous cohabitation commenced in 1987, which is before
the effectivity of the Family Code, Article 148 still applies because
these provisions was intended precisely to fill up the hiatus in
Article 144 of the Civil Code. There was no provision governing
property relations of couple living in a state of adultery or
concubinage. Hence, even if the cohabitation or the acquisition of
the property occurred before the FC, Article 148 applies.
2. Wages and Salaries
Wages and salaries earned by each party belong to him or
her exclusively [Carino v. Carino].
3. Property Acquired During Cohabitation
Only properties acquired by both of the parties through
their actual joint contribution of money, property and industry shall
be owned by them in common in proportion to their respective
contributions [Valdez v. RTC]. Hence, mere cohabitation without
proof of contribution will not result in a co-ownership [Tumulos v.
Fernandez]. Such contributions and corresponding shares were
prima facie presumed to be equal [Lavadia v. Heirs of Luna].
However, for this presumption to arise, proof of actual contribution
is required [Atienza v. De Castro].
Properties acquired through their actual contributions of
money, property or industry shall become their common property
in proportion to their respective contributions. The facts of
contribution must be proved. Under Article 148, only the properties
acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned by
them in common in proportion to their respective contributions. It
must be stressed that proof of actual contributions is required by
this provision, in contrast to Article 147 which states that efforts in
the care and maintenance of the family and household, are regarded
as contributions to the acquisition of common property by one who
has no salary or income or work or industry. If the actual
contribution of the party is not proved there will be no co-
ownership and no presumption of equal shares. Since the petitioner
failed to prove that she contributed money to the purchase price of
the riceland, we find no basis to justify her co-ownership with
Miguel over the same. Consequently, the riceland should revert to
the conjugal partnership property of the deceased Miguel and
private respondent. The transaction was properly a donation by
Miguel to Erlinda, but one which is clearly void and inexistent by
provision of law because it was made between persons guilty of
adultery and concubinage at the time of the donation. Article 87
expressly provides that the prohibition against donations between
spouses applies to donations between persons living together as
husband and wife without a valid marriage [Agapay v. Palang].
In Saguid v. Corut of Appeals, while there is no question
that both parties contributed in their joint account deposit, there is,
however, no sufficient proof of the exact amount of their respective
shares therein. Absence of proof of the extent of the contribution, them through their work and of them through their actual join
the share will be presumed equal. industry are governed by the rules contribution shall be owned in
on co-ownership. Even if the common in proportion to their
In Borromeo v. Descallar, respondent did not contribute
contribution is not actual but respective contributions
a single centavo in the acquisition of the properties. She had no consists only of efforts exerted in
income of her own at that time, nor did she have any savings. She the care and maintenance of the
and her two sons were then fully supported by Jambrich. Therefore, family and household, the same is
co-ownership does not apply in this case. still considered joint contribution
(5) Neither party can encumber or There is no prohibition in the law.
In Lavadia v. Heirs of Luna, the father of the respondents
dispose by acts inter vivos his or
executed an agreement for separation and property settlement with her share in the property acquired
his wife. Subsequently, he obtained a divorce abroad and then during cohabitation without the
married the petitioner. The subsequent marriage is void for being consent of the other or until after
bigamous. The marriage of Atty. Luna with his first wife Eugenia termination of the cohabitation
(6) Upon termination of the union, Upon termination of the union,
was still subsisting because the divorce was not validly obtained,
the share of a party shall accrue to the share of a party who is validly
both spouses being Filipino citizens. Moreover, the Agreement for him or her married shall accrue to the
Separation and Property Settlement is void for lack of court absolute community or conjugal
approval and thus did not in any way sever the property relations partnership existing in said
between Atty. Luna and Eugenia. Since petitioner was not able to marriage
(7) There can be no forfeiture of There can be no forfeiture if the
prove that she contributed in the acquisition over the condominium
share of a party in favour of the party in bad faith is validly
unit and law books, co-ownership in this case does not apply. The common children if there is no married to another.
property in the name of Juan Luna married to Soledad Luna was no void marriage and said party acted
proof that she was a co-wner of the condo unit. The phrase married in bad faith
to preceding Soledad Luna is merely descriptive of the civil status
of Atty. Luna. Void marriages Applicable provision
Article 35 (1) Age 148
Article 35 (2) Authority of the 147
Vda. de Canada v. Baclot solemnizing officer
Held: In this case, as aptly observed by the CA, the subject Article 35 (3) Marriage without 147
properties were registered in the name of Cresencia alone, except for the license
property in the name of Sanchito, who is the son of Cresencia and Sancho. Article 35 (4) Bigamous or 148
While it is true that a certificate of title is not a conclusive proof of polygamous marriage
ownership as its issuance does not foreclose the possibility that such Article 35 (5) Mistake in identity 147
property may be co-owned by persons not named therein, the claimant must Article 35 (6) Void under Article 147
nonetheless prove his/her title in the concept of an owner. As it is, 53
respondents failed to put forth evidence that Sancho is a co-owner. That Article 36 Psychological 147
Cresencia is a mere dressmaker who cannot afford the subject properties is incapacity
a scorch to her industry and a condescending presumption. Article 37 Incestuous marriage 148
Neither can respondents find refuge in the case of Adriano v. Article 38 Void marriages for Article 148
Court of Appeals to bolster their claim. In said case, the claimed property reasons of public policy
was registered under the names of a man who was incapacitated to marry at Article 40
the time of the acquisition and a woman who was his paramour. In the
absence of proof that the woman contributed in the acquisition of the
XIV
property, the Court held that between the two, the man was declared as
owner of the property. Consequently, the same was considered as conjugal THE FAMILY AS AN INSTITUTION
property of the man and his wife.
In fact, a holistic reading of Adriano even establishes the Article 149. The Family, being the foundation of the nation,
decision of the Court to declare Cresencia as the sole owner of the subject is a basic social institution which public policy cherishes and protects.
properties. Consequently, the family relations are governed by law and no custom,
Here, the subject properties were under the name of Cresencia practice or agreement destructive of the family shall be recognized or
alone. Failure to show that Sancho made actual contributions in the given effect.
purchase of the same, the Court is bound to declare that Cresencia is the
exclusive owner of the subject properties.
The State recognizes the Filipino family as the
In obvious terms, the burden of proof rests upon the party who,
as determined by the pleadings or the nature of the case, asserts an foundation of the nation. Accordingly, it shall strengthen its
affirmative issue.30 Thus, contrary to the assertions of petitioner, she has solidarity and actively promote its total development [Section 1,
the burden of proving their claim over the subject properties, registered in Article XV of 1987 Constitution].
the name of Cresencia.  The State recognizes the sanctity of family life and shall
In the absence of evidence which would demonstrate that protect and strengthen the family as a basic autonomous social
Sancho had contributed in the acquisition of the properties registered in the institution. It shall equally protect the life of the mother and the life
name of Cresencia, the Court cannot declare petitioner and her children as of the unborn from conception. The natural and primary right and
entitled thereto.
duty of parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the support of the
SUMMARY Government [Section 12, Article II, 1987 Constitution].

Article 147 Article 148 A. EXTENT OF FAMILY RELATIONS

(1) Parties live exclusively with
each other without marriage or
under a void marriage.
(2) Parties are capacitated to
marry each other
(3) Wages and salaries are owned
in equal shares
(4) Properties acquired by both of
Parties do not live exclusively
with each other as both or one of
them is married to another
Both or one of them is not
capacitated to marry
Ownership and salaries is not
provided
Only properties acquired by both
Article 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half-
blood.

Page 71 of 75

Family relations are exclusive among the relatives
aforementioned even if they are not living together. The
enumeration of brothers and sisters do not comprehend sisters-in
law and brothers-in-law. The relationship between the husband nd
the wife must be a legitimate one.
Paragraph 2 does not distinguish between legitimate and
illegitimate children.
B. SUIT BETWEEN FAMILY MEMBERS
Article 151. No suit between members of the same family
shall prosper unless it should appear from the verified complaint or
petition that earnest efforts toward a compromise have been made, but
the same have failed. If it is shown that no such efforts were in fact
made, the same case must be dismissed.
Reason: It is difficult to imagine a sadder spectacle than
litigation between the members of the same family. It is necessary
that every effort should be made toward a compromise before
litigation is allowed to breed hate and passion in the family.
The impediment arising from this provision is limited to
suits between members of the family as enumerated in Article 150.
The following matters may not be subject of
compromise:
(a) civil status of persons;
(b) validity of a marriage or legal separation
(c) any ground for legal separation
(d) future support
(e) jurisdiction of courts
(f) future legitime
It must appear from the verified complaint or petition
that earnest efforts toward a compromise have been made but that
the same have failed. The above allegation is jurisdictional, and if
there is no such allegation in the verified complaint or petition, the
court can dismiss the case outright for lack of jurisdiction over the
same.
If the suit between members of the same family, a
stranger is also a party, there is no need to allege earnest efforts at
compromise [Magbaleta v. Gonong].
No suit between members of the same family shall
prosper unless it should appear from the verified complaint or
petition that earnest efforts toward a compromise have been made.
However, the failure of a party to comply with this condition
precedent is not a jurisdictional defect. If the opposing party fails to
raise such defect in a motion to dismiss, such defect is deemed
waived [Romero v. Singson].
In Moreno v. Moreno-Kahn, it was made clear that a
failure to allege earnest but failed efforts at a compromise in a
complaint among members of the same family, is not a
jurisdictional defect but merely a defect in the statement of a cause
of action. The defect may however be waived by failing to make
seasonable objection, in a motion to dismiss or answer, the defect
being a mere procedural imperfection which does not affect the
jurisdiction of the court. No motion to dismiss the complaint based
on the failure to comply with a condition precedent was filed in the
trial court; neither was such failure assigned as error in the appeal
that respondent brought before the Court of Appeals. The court a
quo unquestionably did not have any authority or basis to motu
propio order the dismissal of petitioner’s complaint.
In O’Laco v. Co Cho Chit, it is well-settled that the
attempt to compromise as well as the inability to succeed is a
condition precedent to the filing of a suit between members of the
same family. Hence, the defect in the complaint is assailable at any
Page 72 of 75
stage of the proceedings, even on appeal, for lack of cause of
action. if the cause of action was originally within that court's
jurisdiction. In such case, the amendment is only to cure the
perceived defect in the complaint, thus may be allowed. In this
case, while respondent-spouses did not formally amend their
complaint, they were nonetheless allowed to introduce evidence
purporting to show that earnest efforts toward a compromise had
been made, that is, respondent O Lay Kia importuned Emilia
O'Laco and pressed her for the transfer of the title of the Oroquieta
property in the name of spouses O Lay Kia and Valentin Co Cho
Chit, just before Emilia's marriage to Hugo Luna.
In Guerrero v. RTC, petitioner and respondent are
brothers by affinity. The case presents no occasion for the
application of the above-quoted provisions. As early as two
decades ago, we already ruled in Gayon v. Gayon that the
enumeration of "brothers and sisters" as members of the same
family does not comprehend "sisters-in-law."
In Hiyas Savings Bank v. Acuna, Respondent filed a case
against the petitioner and his wife and children. These
considerations do not, however, weigh enough to make it
imperative that such efforts to compromise should be a
jurisdictional pre-requisite for the maintenance of an action
whenever a stranger to the family is a party thereto, whether as a
necessary or indispensable one. It is not always that one who is
alien to the family would be willing to suffer the inconvenience of,
much less relish, the delay and the complications that wranglings
between or among relatives more often than not entail. Besides, it
is neither practical nor fair that the determination of the rights of a
stranger to the family who just happened to have innocently
acquired some kind of interest in any right or property disputed
among its members should be made to depend on the way the latter
would settle their differences among themselves. Hence, once a
stranger becomes a party to a suit involving members of the same
family, the law no longer makes it a condition precedent that
earnest efforts be made towards a compromise before the action
can prosper.
Gaw Chin Ty v. Chua
Held: In relation to questions that may not be the subject of
compromise, Article 2035 of the New Civil Code provides:
Article 2035. No compromise upon the following questions
shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
The petition to annul the new/owner's duplicate title was among
members of the same family. The petitioners are the mother and siblings of
the respondent who, being the registered owner, obtained the new/owner's
duplicate title. The petition did not allege that earnest efforts toward a
compromise have been made. However, the petitioners claim that there was
actual compliance with the condition precedent, through: (i) the court-
annexed mediation in the LRC case (involving the same parties and the
same property), and (ii) the barangay conciliation proceeding between
Antonio Gaw Chua and Vicente Gaw Chua, involving the former's
complaint for physical injury, where the issue on the family dispute over
the property was raised.
We rule that the validity of a reconstituted title is not subject to
compromise. Therefore, Article 151 of the Family Code, as a ground for
dismissal without prejudice under Section 1(j) of Rule 16, is not
applicable.
C. THE FAMILY HOME
Article 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a family, is the
dwelling house where they and their family reside, and the land on
which it is situated.
Article 156. The family home must be part of the properties
of the absolute community or the conjugal partnership, or of the
exclusive properties of either spouses with latter’s consent. It may also
be constituted by an unmarried head of a family on his or her own
property.
Nevertheless, property that is the subject of a conditional
sale on instalments where ownership is reserved by the vendor only to
guarantee payment of the purchase price may be constituted as a
family home.
A house built on rented land cannot be made a family
home because the house and the lot must be owned by the person
who constitutes it. It is in the nature of the family home to be
permanent. It can be established by the spouses jointly or by an
unmarried head of the family. A widower or widow falls under the
last category. To constitute it, there must be actual occupancy with
the intention of dedication the premises for such purpose [Holden
v. Pinney]. The family home cannot be constituted upon premises
permanently used for business purposes. Thus, if the property is
utilized primarily for business as a merchandise store or as a hotel
for the public, it cannot be regarded as a family home even if the
family stays there for the purpose of attending to the business
[Benjoro v. Ventura].
The rules on Family Home apply not only to valid and
voidable mariages, but also to common-law spouses under the the
circumstances set forth in Articles 147 and 148 [Valdes v. RTC].
1. Constitution of the Family Home
Article 153. The family home is deemed constituted on a
house and lot from the time it is occupied as a family residence. From
the time of its constitution and so long as any of its beneficiaries
actually resides therein, the family home continues to be such and is
exempt from execution, forced sale, or attachment except as
hereinafter provided and to the extent of the value allowed by law.
It is the actual occupation of the house as a family
residence which creates the family home, without judicial
proceedings or public instrument. If a public instrument declaring
the house and lot as the family home is recorded in the registry of
property, this is to give notice to third persons of the constitution of
the family home. But the actual occupancy for the family residence
is legally sufficient to constitute the family home. And even if there
is such recording in the registry of property but there is no actual
occupancy of the property as family residence, the family home is
not legally constituted.
There is no need to constitute the family home judicially
or extrajudicially, as required in the Civil Code. Its constitution as
provided in the Civil Code creates a real right; hence, the need for
registration. And when it is dissolved, it is not the property itself
that is divided’ it is the real right that is distinguished.
2. Beneficiaries of a Family Home
Article 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is
the head of the family; and
(2) Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or illegitimate, who are
living in the family home and who depend upon the head of the family
for legal support.
Article 161. For purposes of availing of the benefits of a
family home as provided for in this Chapter, a person may constitute,
or be the beneficiary of, only one family home.
Page 73 of 75
Article 162. The provisions in this Chapter shall also govern
existing family residences insofar as said provisions are applicable.
The beneficiaries of a family home are:
(a) Husband and the wife
(b) An unmarried person as head of the family
(c) Their parents
(d) Ascendants
(e) Descendants
(f) Brothers and sisters – whether the relationship is
legitimate or illegitimate.
In Patricio v. Dario III, it was held that to be a
beneficiary of the family home, three requisites must concur: (1)
they must be among the relationships enumerated in Article 154 of
the Family Code; (2) they live in the family home (animus
revertendi); and (3) they are dependent for legal support upon the
head of the family. As to the first requisite, the private respondent’s
minor son, who is also the grandchild of the deceased Marcelino
Dario satisfies the first requisite. As to the second, minor
beneficiaries must be actually living in the family home to avail of
the benefits derived from Article 159. The son of private
respondent and grandson of the decedent has been living in the
family home since 1994, or within 10 years from the death of the
decedent, hence, he satisfies the second requisite. However, as to
the third requisite, Marcelino IV cannot demand support from his
paternal grandmother if he has parents who are capable of
supporting him. The liability for legal support falls primarily on
Marcelino IV’s parents, especially his father, herein private
respondent who is the head of his immediate family. Despite
residing in the family home and being a descendant of Marelino
Dario, Marcelino IV cannot be considered as beneficiary
contemplated under Article 154.
3. Continuation of the Family Home
Article 159. The 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 for as long as there is a minor beneficiary, and
the heirs cannot partition the same unless the court finds compelling
reasons therefor. This rule shall apply regardless of whoever owns the
property or constituted the family home.
Under this Article, the family home shall continue
despite the death of one or both spouses or of the head of the
family:
a. As long as there is a minor beneficiary still living
in the home
b. Even if there is no more minor beneficiary, for a
period of ten years. In this case, the heirs cannot
partition the same unless the court finds
compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or
constituted the family home.
Requisites for a Minor Beneficiary to be Entitled to the
Benefits of Article 159 [Patricio v. Dario III]:
a. Relationship enumerated in Article 154
b. Actually living in the home
c. Dependent for legal support upon the head of the
family
 The rule under the Civil Code is that the family home
shall be dissolved in case of legal separation or annulment of
marriage. In the Family Code, the home will continue to exist as
such subject to the provisions of Article 159.
4. Exemption from Execution
Article 155. The family home shall be exempt from
execution, forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the Family
home;
(3) For debts secured by mortgages on the premises before
or after such constitution; and
(4) For debts due to laborers, mechanics, architects,
builders, materialmen and others who have rendered service or
furnished material for the construction of the building.
Under Article 153, the family home is exempted from
execution, forced sale, and attachment under the conditions set
forth in the Rules of Court.
In the Philippines, failure to pay taxes is a ground for the
sale of the property by the government to satisfy the taxes due.
The creditor may pursue such legal remedies to protect
his claims or to enforce his cause of action by attaching the
property for debts incurred prior to the constitution of the family
home.
Similarly, if the property is mortgaged to secure an
indebtedness whether incurred before or after such constitution, the
creditor for non-payment of obligations can foreclose the mortgage
and have the property sold at public auction.
Those who rendered service or furnished material for the
construction of the home including repairs or improvements after
its construction may attach and sold the property by authority of
the Court to satisfy such claims. These claims are known as
mechanic’s lien.
Exemption must be claimed by the debtor himself, and
not by the Sheriff. The right to exemption or forced sale under
Article 153 of the Family Code is a personal privilege granted to
the judgement debtor and as such, it must be claimed not by the
sheriff, but by the debtor himself before the sale of the property at
public auction.
5. Alienation or Encumbrance of the Family Home
Article 158. The family home may be sold, alienated,
donated, assigned, or encumbered by the owner or owners thereof with
the written consent of the person constituting the same, the latter’s
spouse, and a majority of the beneficiaries of legal age. In case of
conflict, the court shall decide.
6. Maximum Value of the Family Home
Article 157. The actual value of the family home shall not
exceed, at the time of its constitution, the amount of three hundred
thousand pesos in urban areas, and two hundred thousand pesos in
rural areas, or such amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes after the
adoption of this Code, the value most favourable for the constitution of
a family home shall be the basis of evaluation.
For purposes of this Article, urban areas are deemed include
chartered cities and municipalities whose annual income at least equal
that legally required for chartered cities. All others are deemed to be
rural areas.
Artile 160. When a creditor whose claims is not among those
mentioned in Article 155 obtains a judgement in his favour, and he has
reasonable grounds to believe that the family home is actually worth
Page 74 of 75
more than the maximum amount fixed in Article 157, he may apply to
the court which rendered the judgement for an order directing the sale
of the property under execution. The court shall also order if it finds
that the actual value of the family home exceeds the maximum amount
allowed by law as of the time of its constitution. If the increase actual
value exceeds the maximum allowed in Article 157 and results from
subsequent voluntary improvements introduced by the person or
persons constituting the family home, by the owner or owners of the
property, or by any of the beneficiaries, the same rule and procedure
shall apply.
At the execution sale, no bid below the value allowed for a
family home shall be considered. The proceeds shall be applied first to
the amount mentioned in Article 157, and then to the liabilities under
the judgement and the costs. The excess, if any, shall be delivered to the
judgement debtor.
Creditors or lienholders mentioned in Article 155 must
be paid out of the proceeds first before the judgement creditor is
paid. Therefore, the actual value of the home must not only exceed
the maximum amount fixed in Article 157, but the excess must also
be over and above all claims under 155.
The increase in the value of the home over and above
that fixed in Article 157 might have been due to improvements
introduced thereto after the home has been constituted. This will
not preclude the judgement creditor from asking for the sale of the
home as long as the original value plus improvements, exceeds the
amount fixed in Article 157.
Thus, the article applies only if there is a concurrence of
the following: (1) creditor’s claim is not among those enumerated
in Article 155; (2) he obtained a favourable judgement against the
owner or owners of the family home; (3) he has valid proofs that
the family home is worth more than the maximum value fixed
under Article 157 at the time of its constitution or as a result of
subsequent voluntary improvements.
In Modequillo v. Breva, it was held that Article 162
simply means that all existing family residences at the time of
the effectivity of the Family Code, are considered family homes
and are prospectively entitled to the benefits accorded to a family
home under the Family Code.  Article 162 does not state that the
provisions of Chapter 2, Title V have a retroactive effect. Is the
family home of petitioner exempt from execution of the money
judgment aforecited?  No.  The debt or liability which was the
basis of the judgment arose or was incurred at the time of the
vehicular accident on March 16, 1976 and the money judgment
arising therefrom was rendered by the appellate court on January
29, 1988.  Both preceded the effectivity of the Family Code on
August 3, 1988.  This case does not fall under the exemptions from
execution provided in the Family Code.
In Taneo, Jr. v. Court of Appeals, the judgment
obligation of the petitioners against Abdon Gilig arose on June 24,
1964. The properties were levied and sold at public auction with
Abdon Gilig as the highest bidder on February 12, 1966. On
February 9, 1968, the final deed of conveyance ceding the subject
property to Abdon Gilig was issued after the petitioners failed to
redeem the property after the reglementary period. Pablo Taneo's
application for free patent was approved only on October 19, 1973.
The sequence of the events leads us to the inescapable conclusion
that even before the application for homestead had been approved,
Pablo Taneo was no longer the owner of the land. The instrument
constituting the family home was registered only on January 24,
1966. The money judgment against Pablo Taneo was rendered on
January 24, 1964. Thus, at that time when the "debt" was incurred,
the family home was not yet constituted or even registered. The
applicable law, therefore, in the case at bar is still the Civil Code
where registration of the declaration of a family home is a
prerequisite. Apparently, the constitution of a family home by
Pablo Taneo in the instant case was merely an afterthought in order
to escape execution of their property but to no avail.
 In Cabang v. Basay, the Court held that a family home It bears emphasis that it is imperative that her claim must be
must be established on the properties of (a) the absolute backed with evidence showing that the home was indeed (i) duly
community, or (b) the conjugal partnership, or (c) the exclusive constituted as a family home, (ii) constituted jointly by the husband
property of either spouse with the consent of the other. It cannot be and wife or by an unmarried head of a family, (iii) resided in by the
established on property held in co-ownership with third family (or any of the family home's beneficiaries), (iv) forms part
persons. However, it can be established partly on community of the properties of the absolute community or the conjugal
property, or conjugal property and partly on the exclusive property partnership, or of the exclusive properties of either spouse with the
of either spouse with the consent of the latter. The most important latter's consent, or property of the unmarried head of the family,
phase of any proceeding is the execution of judgment. Once a and (v) has an actual value of Php 300,000.00 in urban areas, and
judgment becomes final, the prevailing party should not, through Php 200,000.00 in rural areas. Undoubtedly, Felicitas' argument
some clever maneuvers devised by an unsporting loser, be deprived that the property subject of the writ of execution is a family home,
of the fruits of the verdict. is an unsubstantiated allegation that cannot defeat the binding
In Eulogio v., Bell, Sr., in reply, Judge Diy opined that nature of a final and executory judgment.
the above Article is intended to cover a situation where the family
home is already worth P500,000 or P1M. Justice Reyes stated that
it is possible that a family home, originally valued at P300,000.
later appreciated to almost P1M because of improvements made,
like roads and plazas. Justice Caguioa, however, made a distinction
between voluntary and involuntary improvements in the sense that
if the value of the family home exceeded the maximum amount
because of voluntary improvements by the one establishing the
family home, the Article will apply; but if it is through an
involuntary improvement, like the conversion into a residential
area or the establishment of roads and other facilities, the one
establishing the family home should not be punished by making his
home liable to creditors. He suggested that the matter be clarified
in the provision. Any subsequent improvement or enlargement of
the family home by the persons constituting it, its owners, or any of
its beneficiaries will still be exempt from execution, forced sale or
attachment provided the following conditions obtain: (a) the actual
value of the property at the time of its constitution has been
determined to fall below the statutory limit; and (b) the
improvement or enlargement does not result in an increase in its
value exceeding the statutory limit. Otherwise, the family home
can be the subject of a forced sale, and any amount above the
statutory limit is applicable to the obligations under Articles 155
and 160 To warrant the execution sale of respondents' family home
under Article 160, petitioners needed to establish these facts: (1)
there was an increase in its actual value; (2) the increase resulted
from voluntary improvements on the property introduced by the
persons constituting the family home, its owners or any of its
beneficiaries; and (3) the increased actual value exceeded the
maximum allowed under Article 157.
In De Mesa v. Acero, Jr., the subject property became a
family residence sometime in January 1987. There was no
showing, however, that the same was judicially or extrajudicially
constituted as a family home in accordance with the provisions of
the Civil Code. Still, when the Family Code took effect on August
3, 1988, the subject property became a family home by operation
of law and was thus prospectively exempt from execution. The
petitioners were thus correct in asserting that the subject property
was a family home. While it is true that the family home is
constituted on a house and lot from the time it is occupied as a
family residence and is exempt from execution or forced sale under
Article 153 of the Family Code, such claim for exemption should
be set up and proved to the Sheriff before the sale of the property at
public auction. Failure to do so would estop the party from later
claiming the exemption. Well-settled that the right of exemption is
a personal privilege granted to the judgment debtor and as such, it
must be claimed not by the sheriff, but by the debtor himself at the
time of the levy or within a reasonable period thereafter.
In Salazar v. Felias, the Court held that the movant's
claim that his/her property is exempt from execution for being the
family home is not a magic wand that will freeze the court's hand
and forestall the execution of a final and executory ruling. It is
imperative that the claim for exemption must be set up and proven.

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