Ateneo de Manila University

Reviewer in Law school is tough enough as it is. Let’s lift each

other up. A candle loses nothing by lighting another
PERSONS AND FAMILY candle.
---
RELATIONS It’s not about the big things that you do the week or
the night before the exams, but the little things that
you do patiently and consistently every day.

- Joval
Joanne Marie R. Valles, CPA

References:
1. Civil Code of the Philippines
2. Persons and Family Relations Commentary- Melencio Sta. Maria
3. Torts Syllabus of Atty. Jess Raymund Lopez PAY IT FORWARD.

Last edit: 30 November 2021

 Table of Contents
.................................................................................................................................................................................... 1
PRELIMINARY TITLE ...................................................................................................................................................... 1
CHAPTER 1: EFFECT AND APPLICATION OF LAWS................................................................................................................................1
CHAPTER 2: HUMAN RELATIONS.....................................................................................................................................................5
BOOK I: PERSONS ........................................................................................................................................................13
TITLE I: CIVIL PERSONALITY ..................................................................................................................................................... 13
CHAPTER 1: General Provisions .......................................................................................................................................... 13
CHAPTER 2 Natural Persons ............................................................................................................................................... 13
CHAPTER 3 Juridical Persons .............................................................................................................................................. 14
TITLE II: CITIZENSHIP AND DOMICILE ...................................................................................................................................... 15
FAMILY CODE ..............................................................................................................................................................17
TITLE 1: MARRIAGE ................................................................................................................................................................. 17
CHAPTER 1: REQUISITES OF MARRIAGE ............................................................................................................................. 17
CHAPTER 2: MARRIAGES EXEMPT FROM LICENSE ............................................................................................................. 26
CHAPTER 3: VOID AND VOIDABLE MARRIAGES.................................................................................................................. 27
TITLE 2: LEGAL SEPARATION ................................................................................................................................................... 41
TITLE 3: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE..................................................................................... 46
TITLE 4: FAMILY RELATIONS BETWEEN HUSBAND AND WIFE ................................................................................................. 48
CHAPTER 1: GENERAL PROVISIONS .................................................................................................................................... 48
CHAPTER 2: DONATIONS BY REASON OF MARRIAGE ......................................................................................................... 49
CHAPTER 3: SYSTEM OF ABSOLUTE COMMUNITY ............................................................................................................. 52
CHAPTER 4: CONJUGAL PARTNERSHIP OF GAINS .............................................................................................................. 56
CHAPTER 5: SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY ONE
SPOUSE DURING THE MARRIAGE ....................................................................................................................................... 64
CHAPTER 6: REGIME OF SEPARATION OF PROPERTY ......................................................................................................... 66
CHAPTER 7: PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE .................................................................................. 67
TITLE 5: THE FAMILY................................................................................................................................................................ 70
CHAPTER 1. THE FAMILY AS AN INSTITUTION .................................................................................................................... 70
CHAPTER 2. THE FAMILY HOME ......................................................................................................................................... 71
TITLE 6: PATERNITY AND FILIATION ........................................................................................................................................ 74
CHAPTER 1: LEGITIMATE CHILDREN ................................................................................................................................... 74
CHAPTER 2. PROOF OF FILIATION....................................................................................................................................... 77
CHAPTER 3. ILLEGITIMATE CHILDREN ................................................................................................................................ 78
CHAPTER 4. LEGITIMATED CHILDREN................................................................................................................................. 79
TITLE 7: ADOPTION ................................................................................................................................................................. 80
TITLE 8: SUPPORT.................................................................................................................................................................... 81
TITLE 9: PARENTAL AUTHORITY .............................................................................................................................................. 84
Chapter 1: General provisions ............................................................................................................................................ 84
Chapter 2. Substitute and special parental authority ........................................................................................................ 85
Chapter 3. Effect of parental authority upon the persons of the children ......................................................................... 87
Chapter 4. Effect of parental authority upon the property of the children ........................................................................ 88
Chapter 5. Suspension or termination of parental authority ............................................................................................. 89
TITLE 10: EMANCIPATION AND AGE OF MAJORITY................................................................................................................. 91
TITLE 11: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW ....................................................................................... 92
Chapter 1. Prefatory provisions .......................................................................................................................................... 92
Chapter 2. Separation in fact between husband and wife ................................................................................................. 92
Chapter 3. Incidents involving parental authority .............................................................................................................. 92
Chapter 4. Other matters subject to summary proceedings .............................................................................................. 92
TITLE 12: FINAL PROVISIONS................................................................................................................................................... 93
CIVIL CODE ..................................................................................................................................................................94
TITLE X: FUNERALS .................................................................................................................................................................. 94
TITLE XII: CARE AND EDUCATION OF CHILDREN................................................................................................................................ 94
TITLE XIII: USE OF SURNAMES ...................................................................................................................................................... 94
TITLE XIV: ABSENCE................................................................................................................................................................. 96
CHAPTER 1: Provisional Measures in Case of Absence....................................................................................................... 96
CHAPTER 2: Declaration of Absence ................................................................................................................................... 96
CHAPTER 3: Administration of the Property of the Absentee ............................................................................................ 96
CHAPTER 4: Presumption of Death ..................................................................................................................................... 96
CHAPTER 5: Effect of Absence Upon the Contingent Rights of the Absentee .................................................................... 97
TITLE XVI: CIVIL REGISTER ....................................................................................................................................................... 98
JO VALLES Honor and Excellence. Honor before Excellence. 2
SPECIAL LAWS .............................................................................................................................................................99
RA 7610 ................................................................................................................................................................................... 99
RA 9262 ................................................................................................................................................................................. 100

JO VALLES Honor and Excellence. Honor before Excellence. 3

Cc: Preliminary title
PRELIMINARY TITLE
CHAPTER 1: Effect and Application of Laws
Article 1. This Act shall be known as the "Civil Code of the
Philippines." (n)
Full title. Republic Act 386: An act to Ordain and Institute the Civil
Code of the Philippines
Date of enactment. January 26, 1949
Date of effectivity. August 30, 1950
Article 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette or in a
newspaper of general circulation in the Philippines, unless it is
otherwise provided. This Code shall take effect one year after such
publication. (1a)
Effectivity of laws.
General rule; if the law is silent. We follow Art 2 of the Civil Code.
It takes effect after 15 days following the completion of its publication
in the Official Gazette or a newspaper of general circulation.
• Publication must be complete. The publication must be
complete; otherwise, there is no publication at all since the
purpose is to inform the public of its contents. Such
publication shall operate as a constructive notice to the general
public and all persons are conclusively presumed to have read
it. Hence, no one may raise the defense of ignorance of the
law. (Sec 3)
Exception; if the law designates an effectivity date. If the law has
an effectivity date expressly stated, we follow such date, be it longer or
shorter than the 15-day period.
• But the publication of the law is an indispensable
requisite. What may be waived is the 15-day period, and not
the publication; the absence of which will not render the law
effective. The unless it is otherwise provided clause refers to the
15-day period and not the publication requirement.
Effect of amendment by EO 200. Before EO 200 dated June 18, 1987
amended Art 2, the publication was limited only to the Official Gazette.
JO VALLES
ad majorem dei gloriam
It was recognized in Tanada vs Tuvera that its release was erratic and it
had limited readership. Hence, Art 2 was amended to include
publication in a newspaper of general circulation in the Philippines.
Covered issuances. Covered by this rule are:
1. Presidential decrees and executive orders
2. Administrative rules and regulations if the purpose is to
implement a law pursuant to a valid delegation
3. Charter of a city
4. Circulars issued by the Monetary Board if they are intended
not merely to interpret but fill in the details of the Central
Bank Act. Tanada vs Tuvera
Issuances not required to be published. The following need not be
published:
1. Interpretative regulations and those merely internal in nature
2. Letters of instructions issued by the administrative superiors
concerning rules to be followed by subordinates. Tanada vs
Tuvera
Article 3. Ignorance of the law excuses no one from compliance
therewith. (2)
Rationale. To allow a party to set up as a valid defense the fact that he
has no knowledge of a law which he has violated is to foment disorder
in the society.
Ignorance of the law; mandatory and prohibitory laws only. Article
3 applies only to mandatory and prohibitory laws. It does not apply to
directory laws. Consunji vs CA
Article 4. Laws shall have no retroactive effect, unless the contrary is
provided. (3)
General rule; prospective. The laws have prospective application. Any
doubt shall be resolved against retroactive application.
Exceptions to the general rule:
1. When the law expressly provides retroactivity. However,
in no case may a law be given retroactive effect if it would be
prejudicial to the accused in a criminal case.
2. When the law is curative or remedial. Curative or remedial
statutes reach back on past events to correct errors or
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
irregularities to render valid and effective such acts that would
have otherwise been ineffective. DBP vs CA
3. When the law is procedural. Procedural laws or statues
apply to all actions-those which have accrued and are pending
as of enactment, and future actions.
4. When the law is penal in nature and favorable to the
accused. This does not apply to habitual delinquents.
Habitual delinquent. Under Article 62 of the RPC, a
habitual delinquent is a person who, within ten years from the
date of his or her last conviction or release due to the crimes
below, is convicted for the same offense for the third time or
oftener. (SHERF)
1. Serious or less serious physical injuries
2. Hurto
3. Estafa
4. Robo
5. Falsification
Article 5. Acts executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law itself authorizes
their validity. (4a)
1. Mandatory laws are those which, when omitted, render the
proceeding acts to which they relate null and void.
2. Prohibitory laws are positive prohibitions couched in
negative terms importing that the act required not be done
otherwise than designated.
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. Waiver is an intentional relinquishment of a known right.
Castro vs Del Rosario
General Rule. Rights may be waived.
Exceptions
a. Waiver is contrary to law, morals, good customs, public
order, and public policy. The rationale behind is that when
the object of the statute it to protect larger public interests,
such may not be defeated by private stipulation
b. Waiver is prejudicial to the rights of a third person
1
Cc: Preliminary title
Requisites. For it to be valid, the following requisites must concur:
a. Existence of a right at the time of waiver
b. Waiver must be exercised by a duly capacitated person.
c. The waiver must be knowing and intelligent:
i. The person knows the right exists
ii. The person has adequate knowledge upon which to
make an intelligent decision. Consunji vs CA
Requisites of a valid waiver. For there to be a valid waiver, the
following requisites are essential:
a. that the person making the waiver possesses the right,
b. that he has the capacity and power to dispose of the right,
c. that the waiver must be clear and unequivocal although it
may be made expressly or impliedly, and
d. that the waiver is not contrary to law, public policy, public
order, morals, good customs or prejudicial to a third person
with a right recognized by law. Sanico v. Colipano, G.R. No.
209969, September 27, 2017
Application; waiver was in a language not known; not valid. For
the waiver to be clear and unequivocal, the person waiving the right
should understand what she is waiving and the effect of such waiver.
Colipano was not able to understand English and that there was no
proof that the documents and their contents and effects were explained
to her. Colipano could not have clearly and unequivocally waived her right to claim
damages when she had no understanding of the right she was waiving and the extent
of that right. Worse, she was made to sign a document written in a
language she did not understand. Here, Colipano testified that she did
not understand the document she signed. She also did not understand
the nature and extent of her waiver as the content of the document was
not explained to her. The waiver is therefore void because it is contrary
to public policy. Sanico v. Colipano, G.R. No. 209969, September 27, 2017
Requisite; must have knowledge of the right. The person waiving
the right must have knowledge, actual or constructive, of all material
facts upon which they depend. Ignorance of a material fact negates
waiver and waiver cannot be established by consent given under a
mistake or misapprehension of fact. Consunji vs CA
Waiver must be clear and unequivocal; dizzy and pressured. A
waiver, to be valid and effective, must in the first place be couched in
clear and unequivocal terms which leave no doubt as to the intention
of a person to give up a right or benefit which legally pertains to him.
A waiver may not casually be attributed to a person when the terms
JO VALLES
ad majorem dei gloriam
thereof do not explicitly and clearly evidence an intent to abandon a
right vested in such person. In this case, the waiver was obtained when
the victim was still dizzy and reeling from the vehicular accident. Waiver
not valid. Gatchalian v. Delim, 203 SCRA 126 (1991)
Waiver of an action for future fraud is void; there was also gross
negligence here. The obvious continued failure of respondent to look
after the roadworthiness and safety of the bus, coupled with the driver's
refusal or neglect to stop the mini-bus after he had heard once again the
"snapping sound" and the cry of alarm from one of the passengers,
constituted wanton disregard of the physical safety of the passengers,
and hence gross negligence on the part of respondent and his driver.
Hence, the action cannot be waived. Gatchalian v. Delim, 203 SCRA 126
(1991)
Any waiver of an action for future fraud is void. Banaga and
Damalerio agreed to honor the findings of DENR’s survey of their lots.
The latter found that a portion of Banaga’s lot encroached on
Damalerio’s lot. She objected to the results, and the SC upheld the same
notwithstanding the prior agreement to be bound by the results because
allegations of fraud, involving alterations in the technical descriptions
used as basis of the survey, were raised. While it is correct that petitioner
bound herself to abide by the findings of the survey team, the waiver
does not include future fraud. Responsibility arising from fraud is
demandable in all obligations. Any waiver of an action for future fraud
is void. Petitioner brought up allegations of discrepancy and alterations
in the lot data computations used in the survey when compared to data
found in DENR records. Petitioner's waiver cannot be taken to cover
allegations of fraud. Banaga v. Majaducon, G.R. No. 149051, June 30,
2006
Gross negligence precludes the application of the Warsaw
Convention. Under the Warsaw Act, saying that items of value are
required to be hand-carried by the passenger and that the liability of the
airlines would be limited to only US$20.00 per kilo unless a higher value
is declared in advance and corresponding additional charge are paid
thereon. In this case, the said provision was not applied because of the
gross negligence of the airlines in losing the baggage 2x. The Warsaw
Convention denies to the carrier availment 'of the provisions which
exclude or limit his liability, if the damage is caused by his willful
misconduct or by such default on his part as is considered to be
equivalent to willful misconduct,' or 'if the damage is (similarly) caused
. . . by any agent of the carrier acting within the scope of his
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
employment.' Sabena Belgian World Airlines v. Court of Appeals, G.R. No.
104685, March 14, 1996
Not all waivers and quitclaims are against public policy. It is only
where there is clear proof that the waiver was wangled from an
unsuspecting or gullible person, or the terms of the settlement are
unconscionable on its face, that the law will step in to annul the
questionable transaction. But where it is shown that the person making
the waiver did so voluntarily, with full understanding of what he was
doing, and the consideration for the quitclaim is credible and
reasonable, the transaction must be recognized as a valid and binding
undertaking. Spouses Dalen v. Mitsui O.S.K. Lines, G.R. No. 194403, July
24, 2019
Waiver of liability of private carriers is allowed. In a contract of
private carriage, the parties may validly stipulate that responsibility for
the cargo rests solely on the charterer, exempting the shipowner from
liability for loss of or damage to the cargo caused even by the negligence
of the ship captain. Pursuant to Article 1306 of the Civil Code, such
stipulation is valid because it is freely entered into by the parties and the
same is not contrary to law, morals, good customs, public order, or
public policy. In a contract of private carriage, the parties may freely
stipulate their duties and obligations which perforce would be binding
on them. Valenzuela Hardwood and Industrial Supply, Inc. v. Court of Appeals,
G.R. No. 102316, June 30, 1997
Example; waiver contrary to public policy:
1. Agreement to receive less compensation than one is entitled
to recover under the law. Franklin Baker Co v Aillana
2. Acceptance of benefits such as separation pay and terminal
leave benefits would not amount to estoppel or waiver of right
to contest the employee’s illegal dismissal. San Miguel
Corporation v Cruz
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by
1. disuse, or
2. custom or
3. practice to the contrary.
When the courts declare 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)
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Cc: Preliminary title
Repeal of laws. Repeal of a law is a legislative act of abrogating the
effects of a previous statute or its portions through a subsequent law.
1. Express repeal. One which is literally declared by a new law,
either in specific terms, as where particular laws and provisions
are named and identified 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.
• But note the court’s ruling in Iloilo Palay and Corn
Planters v Feliciano that a provision which says that “all
laws and parts inconsistent with the provisions of
this act are repealed/modified accordingly” I not an
express repeal because it fails to identify or designate
the act or acts that are intended to be repealed.
2. Implied repeal. This takes place when a new law contains
provisions contrary to or inconsistent with those of a former
without expressly repealing them.
• Repeals and amendments by implications are not
favored. Quimsing v Lachica
“All laws inconsistent therewith are repealed” not an
express repeal. A repealing clause which provides that all
laws and parts thereof inconsistent with the provisions of this
Act are hereby repealed or modified accordingly is not an
express repealing clause because it fails to identify or designate
the Act or Acts that are intended to be repealed. Such being
the case, the presumption against implied repeals and the rule
against strict construction regarding implied repeals apply.
Iloilo Palay and corn Planters Association, Inc. v Feliciano
Special statutes not repealed by general ones. A special
statute, providing for a particular case or class of cases, is not
repealed by a subsequent statute general in its terms,
provisions and applications, unless the intent to repeal or alter
is manifest, although the terms of the general law are broad
enough to include the cases embraced in the special law.
Manila Railroad Co. v. Rafferty
Unconstitutionality of statutes. In deciding the validity of a statute
every presumption favors the validity of the same and whenever
possible, statutes should be given a meaning that will not bring them in
conflict with the Constitution. Noblejas v. Teehankee
General rule; constitutional portion stands. Where a portion of
a statute is rendered unconstitutional and the remainder valid, the
parts will be separated and the constitutional portion upheld.
JO VALLES
ad majorem dei gloriam
o To do his, the valid portion must be so far independent
of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself had supposed
that they could not constitutionally enact the other.
Barrameda vs Moir
Exceptions to the general rule. The whole law or statute is
void if the parts of the statute are so mutually dependent and
interconnected as to warrant a belief that the legislative
intended them as a whole and that if all could not be carried
into effect, the legislature would not pass the residue
independently. In this case, all the provisions which are thus
dependent, conditional or connected, must fall with them.
Lidasan vs COMELEC
Administrative rules and regulations. A rule is binding on the courts
so long as the procedure fixed for its promulgation is followed, and its
scope is within the statutory authority granted by the legislature, even if
the courts are not in agreement with the policy stated therein or its
innate wisdom. Victorias Milling Company, Inc. vs Social Security Commission
Article 8. Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines. (n)
Construction. This is the art or process of discovering and expounding
the meaning and intention of the authors of the law with respect to its
application to a given case, where that intention I rendered doubtful,
among others by reason of the fact that the given case is not explicitly
provided for in the law. Black, Interpretations of Laws
Decisions not laws; same authority as laws. Decisions of the
Supreme Court are not laws, but they assume the same authority as the
statute itself. Said decisions form part of the legal system of the
Philippines.
SC vs lower courts. The judicial decisions of the Supreme Court are
authoritative and precedent-setting while those of the inferior courts
and the Court of Appeals are merely persuasive. It is the duty of the
judges to apply the law as interpreted by the Supreme Court. Secretary of
Justice v. Catolico
Prospective application. 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
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
doctrine and acted on the faith thereof. Thus, in this case, the accused
was absolved of the crime charged against him because at the time, no
criminal liability attached in connection with the possession of a firearm
in spite of the absence of a permit. People v. Jabinal
Article 9. No judge or court shall decline to render judgment by reason
of the silence, obscurity or insufficiency of the laws. (6)
General rule. The judicial branch cannot legislate as it would encroach
upon the legislative sphere.
Exception to the general rule. Article 9 is an exception. No judge or
court shall decline by reason of silence, obscurity, or insufficiency of
laws. The existing laws do not anticipate all situations.
o Courts do and must legislate to fill in the gaps on the law;
because the mind of the legislator, like all human beings, is
finite and therefore cannot envisage all possible cases to which
the law may apply. Justice Holmes
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)
Construction. Construction is the art and process of discovering and
expounding the meaning and the intention of the authors of the law
with respect to its application in a given case.
Construction must be in line with the intent of the law. If there is
ambiguity in the law, the interpretation of the law requires fidelity to the
legislative purpose. What congress intended is not to be frustrated. Its
objective must be carried out. Even if there be doubt as to the meaning
of the language employed, the interpretations should not be at war with
the end sought to be attained. Republic Flour Mills, Inc. v. Commissioner of
Customs
If the statutes are clear. The primary task of a judge is to apply and
interpret the law as it is. The literal interpretation is to be applied.
If the statutes are vague/doubtful
a. The secondary task of judges is construction and
interpretation, only when the meaning of the statutes is not
clear.
b. The literal interpretation is to be rejected if it would be unjust
or lead to absurd results. Bello vs CA
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Cc: Preliminary title
Article 11. Customs which are contrary to law, public order or public
policy shall not be countenanced. (n)
Custom. A rule of conduct formed by repetition of acts, uniformly
observed (practiced) as a social rule, legally binding and obligatory.
Article 12. A custom must be proved as a fact, according to the rules
of evidence. (n)
Customs must be proved as a fact. A local custom as a source of
right cannot be considered by a court of justice unless such custom is
properly established by competent evidence like any other fact. Merely
because something is done as a matter of practice does not mean that
courts can rely on the same for purposes of adjudication as a juridical
custom.
Juridical vs social custom. Juridical customs can supplement
statutory law, but social customs cannot.
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)
Amended by Section 31 of the Administrative Code of 1987. Year
shall be understood to be twelve calendar months; month of thirty
days, unless it refers to a specific calendar month in which case it shall
be computed according to the number of days the specific month
contains; day, to a day of twenty-four hours and; night from sunrise to
sunset.
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)
Note: This is the general characteristic of criminal law.
JO VALLES
ad majorem dei gloriam
General rule. Citizens and foreigners are subject to 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
a foreigner is merely sojourning in Philippine Territory.
Exception. Foreigners may be immune from suit and therefore, cannot
be criminally prosecuted in the PH in certain cases where the PH
government has waived its criminal jurisdiction on them on the basis of
the principles of PIL and treaties.
1. The person of the diplomatic agent shall be inviolable and he
shall not be liable to any form of arrest or detention (Article
29, Vienna Convention)
2. Heads of state who are officially visiting in the PH are immune
from PH criminal jurisdiction
Article 15. Laws relating
(1) to family rights and duties, or
(2) to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even though living abroad.
(9a)
Article 16. Real property as well as personal property is subject to the
law of the country where it is situated.
However, intestate and testamentary successions, both with respect
(1) to the order of succession and to the amount of successional rights
and
(2) to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose succession
is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found. (10a)
Rules on real and personal property; general rule. Real and personal
properties are governed by the laws of the country where they are
located.
Exception to the general rule. The nature and location of the
properties shall not be considered when it comes to successions
(whether testamentary or intestate) because the national law of the
decedent governs the following:
a. Order of succession
b. Amount of successional rights
c. Intrinsic validity of the testamentary provisions
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
d. Capacity to succeed (Article 1039)
Testamentary succession happens when the decedent dies with a
legally valid will. The succession to his properties is determined in
accordance with the provisions of such will.
Intestate succession happens when the decedent dies without a will.
In this case, the general provisions of the law concerning succession
shall govern.
Stipulation that laws of other country shall apply not effective. A
provision in a foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his national
law, is illegal and void, for his national law cannot be ignored in regard
to those matters that now Article 16 of the Civil Code states said
national law should govern. Hence, since the decedent was a citizen of
Texas, USA, the PH law on legitimes cannot be applied. Bellis vs Bellis
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)
Extrinsic validity of public instruments; general rule. The forms
and solemnities of contracts, wills, and other public instruments are
governed by the laws of the country in which they are executed
Exception to the general rule; when executed before diplomatic
and consular officials. Regardless of the country where such public
document is executed, the Philippine laws shall prevail if it is executed
before diplomatic or consular officials of the Philippines in a foreign
country.
4
Cc: Preliminary title
o Rationale. Diplomatic and consular officials are
representatives of the state. Hence, any act or contract made
in a foreign country before the diplomatic and consular
officials must conform to the solemnities under Philippine
law. This is so because the host country waives its jurisdiction
over the premises of the diplomatic office of another country
located in the said host country, pursuant to the rules of
international law.
Article 18. In matters which are governed by the Code of Commerce
and special laws, their deficiency shall be supplied by the provisions of
this Code. (16a)
Example; suppletory application in the Insurance Code. The
Supreme Court in this case applied the rules on contracts under the
Civil Code in view of the absence of any provision in the Insurance Act
relative to the manner by which the contract is perfected. Thus, the SC
held that there was no perfection of the life annuity because there was
it has not been proved that the acceptance of the application ever came
to the knowledge of the applicant. Insular v. Sunlife
CHAPTER 2: Human Relations
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.
Abuse of rights. Articles 19, 20, and 21 enunciate the abuse of right
doctrine. The law recognizes the primordial limitation on all rights; that
in their exercise the norms of human conduct set forth in Article 19
must be observed. It can be inferred that a right, though legal in itself,
may be a source of illegality when exercised in a manner inconsistent
with the norms in Art 19.
Elements of abuse of right:
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. Abenson
Enterprises Corp. v. CA
Malice or bad faith essential. Malice or bad faith is at the core of the
provision. Good faith is presumed and he who alleges bad faith has the
duty to prove the same.
• Good faith is the intention to abstain from taking
unscrupulous and unconscionable advantage of another.
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ad majorem dei gloriam
• Bad faith does not simply connote bad judgment or simple
negligence; it connotes a 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 a nature of fraud.
• Malice is bad faith or bad motive; it implies an intention
to do ulterior and unjustifiable harm
Article 19 is the general rule which governs the conduct of human
relations. By itself, it is not the basis of an actionable tort. Article 19
describes the degree of care required so that an actionable tort may arise
when it is alleged together with Article 20 or Article 21. St. Martin
Polyclinic, Inc. v. LWV Construction Corp., G.R. No. 217426, December 4,
2017
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. St. Martin Polyclinic, Inc. v. LWV Construction Corp., G.R. No.
217426, December 4, 2017
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. St. Martin Polyclinic, Inc. v. LWV Construction Corp., G.R. No. 217426,
December 4, 2017
Example; abuse of rights. Ricardo filed an application for proprietary
membership in CCCI. He bought a share amounting to P3M and he
was issued a certificate of proprietary ownership. During the board
meetings, his application was voted upon by a black ball mechanism
whereby a white ball signifies approval and the black ball represents
disapproval. The requirement for grant of application was unanimous
approval. However, there was one dissent, hence, he was informed that
his application was disapproved. He then sued for damages. SC said
liable under abuse of rights.
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
• Legal right can be source of illegality. Obviously, the
CCCI Board of Directors, under its Articles of Incorporation,
has the right to approve or disapprove an application for
proprietary membership. 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.
• Article 19 is the general rule which governs the conduct of
human relations. By itself, it is not the basis of an actionable
tort. Article 19 describes the degree of care required so that an
actionable tort may arise when it is alleged together with
Article 20 or Article 21.
• Application. In this case, the court found that CCCI
committed fraud and evident bad faith in disapproving the
application of Ricardo, which is contrary to morals, good
customs, or public policy. Thus, they are liable for damages
pursuant to Article 19 and 21.
• Badges of bad faith. The amendment of 3(c) of CCCI’s
Articles of Incorporation which provides for a unanimous
vote requirement was NOT PRINTED on the application
form that Ricardo filled and submitted to CCCI. What was in
the form was the original 3(c) which was silent on the vote
requirement. Ricardo was thus left in the dark as to why his
application form was denied. 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. [Note that application was in 1996
and amendment of Articles was only in 1978] Cebu Country
Club, Inc., v. Elizagaque, G.R. No. 160273, January 18, 2008
Example; abuse of rights. In this case, a government employee was
singled out by the deputy administrator and strictly subjected to the
rules for obtaining benefits after retirement while employees similarly
situated were liberally granted their benefits for as long as the rules were
substantially complied with. The SC said that damages re due to the
employee under Article 19. The Court was convinced that the
administrator unjustly discriminated against Mr. Curio. It is not defense
that he was merely complying with legal procedures since he was not
strict with respect to the three other retiring employees. Llorente v.
Sandiganvayan, 202 SCRA 309
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Example; abuse of rights. Velez and Wassmer were engaged to be
married. Then Velez ghosted 2 days before the wedding. Wassmer sued
for damages and RTC granted. Proper? Yes.
A mere breach of a promise to marry is not an actionable
wrong. Congress deliberately eliminated from the draft of the
new Civil Code the provisions that would have it so. It must
not be overlooked, however, that the extent to which acts not
contrary to law may be perpetrated with impunity is not
limitless, for Article 21 of said Code provides that "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."
Exception; when damages may be awarded. The record
reveals that
1. on August 23, 1954 plaintiff and defendant applied
for a license to contract marriage, which was
subsequently issued.
2. Invitations were printed and distributed to relatives,
friends and acquaintances.
3. The bride-to-be's trousseau, party dresses and other
apparel for the important occasion were purchased.
4. Dresses for the maid of honor and the flower girl
were prepared. A matrimonial bed, with accessories,
was bought.
5. Bridal showers were given and gifts received.
And then, with but two days before the wedding, defendant,
who was then 28 years old, simply left a note for plaintiff
stating: "Will have to postpone wedding — My mother
opposes it . . ." He enplaned to his home city in Mindanao,
and the next day, the day before the wedding, he wired
plaintiff: "Nothing changed rest assured returning soon". But
he never returned and was never heard from again.
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.
Wassmer v. Velez, 12 SCRA 648 (1964)
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ad majorem dei gloriam
Note: General rule is that no damages can be recovered between
spouses during the marriage. Exception: Injury to the wife under RA
9262 gives rise to moral damages. Araza vs People, GR No 247429,
Sept 8, 2020
Article 20. Every person who, contrary to law, wilfully or negligently
causes damage to another, shall indemnify the latter for the same.
Article 20; general sanction. Article 20 is a general sanction for all
other provisions of law which do not provide their own sanction. Take
note that it redresses actions that are contrary to law, whether done
willfully or negligently. Abenson Enterprises Corp. v. CA
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; acts contra bonus mores. Article 21, on the other hand,
redresses actions that are willfully done and are Contra bonus mores:
a. Actions that are legal
b. But they are contrary to morals, good customs, or public
policy
c. They are done with the intent to injure
In relation to criminal law. It is a principle in RPC that when there is
no law defining and punishing an act, there is no crime- no matter how
morally wrong or inacceptable that act is. While the aggrieved party
may not institute a criminal action, a civil action may be instituted under
Article 21 of the CC.
Promise of marriage as bait to have sex. Where 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. In this case, it is clear that he harbors a condescending, if
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
not sarcastic, regard for the private respondent on account of the latter's
ignoble birth, inferior educational background, poverty and, as
perceived by him, dishonorable employment. Obviously then, from the
very beginning, he was not at all moved by good faith and an honest
motive. Marrying with a woman so circumstanced could not have even
remotely occurred to him. Thus, his profession of love and promise to
marry were empty words directly intended to fool, dupe, entice, beguile
and deceive the poor woman into believing that indeed, he loved her
and would want her to be his life partner. His was nothing but pure lust
which he wanted satisfied by a Filipina who honestly believed that by
accepting his proffer of love and proposal of marriage, she would be
able to enjoy a life of ease and security. Petitioner clearly violated the
Filipino's concept of morality and so brazenly defied the traditional
respect Filipinos have for their women. It can even be said that the
petitioner committed such deplorable acts in blatant disregard of Article
19 of the Civil Code. Gashem Shookat Baksh v. CA
No damages if consensual sex; no damages for mere breach of
promise to marry. Boy and girl (10 yrs older) had sex. Girl got preggy.
Boy promised marriage but married another. Girl sued for moral
damages for breach of promise to marry. RTC and CA awarded moral
damages. SC reversed.
No damages for breach of promise to marry. The Civil
Code of Spain permitted the recovery of damages for breach
of promise to marry, but these articles were never in force in
the PH. There was an attempt to deal with the matter in the
Proposed Civil Code but the articles were eliminated in
congress. The reason was that the breach of promise to marry
is not actionable as decided definitely in De Jesus vs Syquia
where the SC said that the action for breach of promise to
marry has no standing in the civil law, apart from the right to
recover money or property advanced . . . upon the faith of
such promise. Another reason is that these so called Balm
suits were abused by designing women and unscrupulous
men. Hermosisima v. Court of Appeals, 109 Phil. 628 (1960)
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.
Elements. There is unjust enrichment when:
1. A person is unjustly benefited; and
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2. Such benefit is derived at the expense of or with damages to
another.
Prohibition on unjust enrichment applies to the government as
well. A person, believing in good faith that the timberland was his own,
invested money to develop and grow fruit-bearing trees on the land.
However, the land belonged to the State. The SC recognized the
ownership of the State but ordered it to pay the person the value of the
actual improvements he made based on the doctrine of unjust
enrichment. To order the farmer to simply surrender all of the fruit-
bearing trees in favor of the State would inequitably result in unjust
enrichment of the State at the expense of such planter in good faith.
Republic v. Ballocanog, G.R. No. 163794, November 28, 2008
Example; unjust enrichment. Ferrer was contracted by SBTC to
construct the building of SBTC in Davao City. Ferrer was able to
complete the construction of the building within the contracted period
but he was compelled by a drastic increase in the cost of construction
materials to incur expenses of about P300,000.00 on top of the original
cost. The additional expenses were made known to petitioner SBTC.
Respondent Ferrer made timely demands for payment of the increased
cost. SBTC refused to pay, relying on a provision in the contract that
any adjustment in the price shall be made by mutual agreement. SC said
SBTC should pay.
Application. Article 22 of the Civil Code which embodies the
maxim, Nemo ex alterius incommodo debet lecupletari (no man ought
to be made rich out of another's injury). In the present case,
petitioners’ arguments to support absence of liability for the
cost of construction beyond the original contract price are not
persuasive. It cannot be denied that petitioner bank derived
benefits when private respondent completed the construction
even at an increased cost. Hence, to allow petitioner bank to
acquire the constructed building at a price far below its actual
construction cost would undoubtedly constitute unjust
enrichment for the bank to the prejudice of private
respondent. Such unjust enrichment, as previously discussed,
is not allowed by law. Security Bank & Trust Company v. Court of
Appeals, G.R. No. 1170170.09, October 11, 1995
Discussion: Whenever there is another remedy in law or in equity, one
cannot avail of this doctrine. Example: A made an overpayment to B,
but upon accounting it turns out that A made underpayments in prior
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ad majorem dei gloriam
transactions.. The doctrine on unjust enrichment will not apply. The
proper remedy is compensation.
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.
Article 24. In all contractual, property or other relations, when one of
the parties is at a disadvantage on account of his
[M.I.M.I.T.O.]
(1) moral dependence,
(2) ignorance,
(3) indigence,
(4) mental weakness,
(5) tender age or
(6) other handicap,
the courts must be vigilant for his protection.
Example; liberal construction of remedial laws. The pauper
litigants were aggrieved parties in a collision case that had dragged on
for years. They appealed the decision of the lower court, but not the
issue on interest, which they believed should be granted to them. The
SC decided to adopt a liberal view and decided even the issue on interest
even if it was not appealed. The Court takes note of the fact that
petitioner are litigating as paupers. Although they did not appeal, they
filed their MR but was not acted upon by the court of origin. Pleadings
as well as remedial laws should be construed liberally in order that the
litigants may have ample opportunity to pursue their respective claims
and that a possible denial of substantial justice due to legal technicalities
may be avoided. De Lima v. Laguna Tayabas Company, 160 SCRA 70
Court vigilance does not mean always deciding for the
disadvantaged. The SC rejected that one of the parties to the contract
was disadvantaged pursuant to Article 24 because it was proven that the
parties undertook lengthy negotiations before the contract was finalized
and that the said party was good in business. Furthermore, the contract
was implemented for a lengthy period of time and the parties have
already benefited from the same. Sps. Domingo v. Astorga, G.R. No.
130982
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
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
1. government or
2. private charitable institution.
Extravagance during emergency. Extravagance during national
emergencies may be stopped by the courts at the instance of any:
a. Government charitable institution
b. Private charitable institution
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:
[VIMP]
a. Prying into the privacy of another's residence;
b. Meddling with or disturbing the private life or family relations
of another;
c. Intriguing to cause another to be alienated from his friends;
d. Vexing or humiliating another on account of his religious
beliefs, lowly station in life, place of birth, physical defect, or
other personal condition.
Example; meddling with family relations. Editha was confined at
the Sorsogon Provincial Hospital. Her daughter, Grace, sent a telegram
to her other daughter, Zenaida, via RCPI. Three days passed but Grace
got no response so Grace sent a letter via JRS. When Zenaida received
it, she left immediately to go to Sorsogon. When she arrived the family
had a little argument as to why Zenaida was late but Zenaida claimed
she received no telegram. They transferred Editha to QC Veteran’s
Memorial Hospital. The telegram arrived 25 days later. Verchez
inquired and RCPI said it was due to problems with the radio links
interfering with points of communication which led to the telegram not
initially registering in the machine. Editha died. Verchez family filed a
complaint for damages against RCPI, claiming the delay in delivery led
to the early demise of Editha. Liable under Article 26(2).
Article 26(2) Meddling with or disturbing the private life or family
relations of another. 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
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under Article 2219 of the Civil Code. Radio Communications of the
Philippines, Inc., v. Verchez, G.R. No. 164349, January 31, 2006
The phrase prying into the privacy of another’s residence does not
mean that only the residence is entitled to privacy. An individual’s
right to privacy under Article 26(1) of the Civil Code should not be
confined to his house or residence as it may extend to places where
he has the right to exclude the public or deny them access. The
phrase “prying into the privacy of another’s residence,” therefore,
covers places, locations, or even situations which an individual
considers as private. And as long as his right is recognized by society,
other individuals may not infringe on his right to privacy. In this day
and age, video surveillance cameras are installed practically everywhere
for the protection and safety of everyone. The installation of these
cameras, however, should not cover places where there is
reasonable expectation of privacy, unless the consent of the
individual, whose right to privacy would be affected, was
obtained. In this case, the operation by respondents of a revolving
camera, even if it were mounted on their building, violated the right of
privacy of petitioners, who are the owners of the adjacent lot. The
camera does not only focus on respondents’ property or the roof of the
factory at the back (Aldo Development and Resources, Inc.) but it
actually spans through a good portion of the land of petitioners. Spouses
Hing v. Choachuy, Sr., G.R. No. 179736, June 26, 2013
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.
Principle of personal liability; general rule. Public officers are
immune from liability with respect for acts performed in the
ordinary course of their duties.
• Exception. Such public official is not immune from
liability for torts or wrongful acts performed in excess of
their functions. He/she becomes personally liable for
his/her actions. This is the principle of personal liability.
Example; refusing to graduate a student. The Director of the
Office of the Bureau of Schools had already issued a decision
allowing the student to graduate with honors, but despite this,
petitioner refused to enforce such decision and refused to allow
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Delmo to graduate or include her name in the commencement
program. Being a public officer, he should have acted with
circumspection and due regard to the rights of Miss Delmo.
Inasmuch as he exceeded the scope of his authority by defiantly
disobeying the lawful directive of his superior, Director Bernardino,
he is liable for damages in his personal capacity. Ledesma vs CA
Purpose of the provision. It has been remarked that one purpose of
this article is to end the "bribery system, where the public official, for
some flimsy excuse, delays or refuses the performance of his duty until
he gets some kind of pabagsak." Official inaction may also be due to
plain indolence or a cynical indifference to the responsibilities of public
service. Tuzon v. Court of Appeals, G.R. No. 90107, August 21, 1992
Article 27 presupposes that the refusal or omission of a public
official to perform his official duty is attributable to malice or
inexcusable negligence. The Sangguniang Bayan of Camalaniugan,
Cagayan adopted a resolution that authorized the municipal treasurer to
enter into an agreement with all thresher operators who apply for a
Permit to Thresh Palay to donate 1% of all the palay threshed by them.
Thus, the Mayor refused to issue business permit until Jurado complied
with the above Resolution. Jurado filed with the CFI of Cagayan for
damages under Article 27, and another with the same court for
judgement against the said resolution. SC said no dereliction of duty
here. In the present case, it has not even been alleged that the Mayor
Tuzon’s refusal to act on the private respondent’s application was an
attempt to compel him to resort to bribery to obtain approval of his
application. It cannot be said either that the mayor and the municipal
treasurer were motivated by personal spite or were grossly negligent in
refusing to issue the permit and license to Jurado. There was no
evidence offered to show that petitioners singled out respondents for
persecution. Neither does it appear that the petitioners stood to gain
personally from refusing to issue the mayor’s permit and license.
Moreover, the resolution was uniformly applied to all the threshers in
the municipality without preference. In the absence of a judicial
decision declaring said Resolution invalid, its legality would have to be
presumed. As executive officials of the municipality, they had the duty
to enforce it. An erroneous interpretation of an ordinance does not
constitute nor amount to bad faith. Tuzon v. Court of Appeals, G.R. No.
90107, August 21, 1992
Article 28. Unfair competition in
1. agricultural,
2. commercial or
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
3. industrial enterprises or
4. in labor
through the use of
1. force,
2. intimidation,
3. deceit,
4. machination or
5. any other unjust, oppressive or highhanded method
shall give rise to a right of action by the person who thereby suffers
damage.
Example of unfair competition. Jesichris is engaged in the
manufacture and distribution of plastic and metal products. Willaware
is engaged in the manufacture and distribution of kitchenware items
made of plastic and metal has its office near that of respondent. Jesichris
alleged that in view of the physical proximity of Willaware's office to its
office, and in view of the fact that some of the respondent's employees
had transferred to petitioner, Willaware had developed familiarity with
respondent's products, especially its plastic-made automotive parts.
That sometime in November 2000, Willaware had been manufacturing
and distributing the same automotive parts with exactly similar design,
same material and colors but was selling these products at a lower price
as respondent's plastic-made automotive parts and to the same
customers. SC said that Willaware committed the tort of unfair
competition. Willaware Products Corp. v. Jesichris Manufacturing Corp., G.R.
No. 195549, September 3, 2014
• Note. Case is not covered by unfair competition under RA
8293 because the present suit is a damage suit and the
products are not covered by patent registration.
Unfair competition; malicious interference in another’s business.
The concept of "unfair competition" under Article 28 is very much
broader than that covered by intellectual property laws. Under the
present article, which follows the extended concept of "unfair
competition" in American jurisdictions, the term covers even cases of
discovery of trade secrets of a competitor, bribery of his employees,
misrepresentation of all kinds, interference with the fulfillment of a
competitor's contracts, or any malicious interference with the latter's
business. Willaware Products Corp. v. Jesichris Manufacturing Corp., G.R. No.
195549, September 3, 2014
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• Law seeks to prohibit unfair competition; not just
competition. What is being sought to be prevented is not
competition per se but the use of unjust, oppressive or high-
handed methods which may deprive others of a fair chance to
engage in business or to earn a living. Plainly, what the law
prohibits is unfair competition and not competition where the
means used are fair and legitimate. Willaware Products Corp. v.
Jesichris Manufacturing Corp., G.R. No. 195549, September 3,
2014
Elements of unfair competition. In order to qualify the competition
as "unfair," it must have two characteristics:
1. it must involve an injury to a competitor or trade rival, and
2. it must involve acts which are characterized as “contrary to
good conscience,” or “shocking to judicial sensibilities,” or
otherwise unlawful; in the language of our law, these include
force, intimidation, deceit, machination or any other unjust,
oppressive or high-handed method. Willaware Products Corp. v.
Jesichris Manufacturing Corp., G.R. No. 195549, September 3,
2014
The public injury or interest is a minor factor; the essence of the
matter appears to be a private wrong perpetrated by
unconscionable means.
Application. First, both parties are competitors or trade rivals, both
being engaged in the manufacture of plastic-made automotive parts.
Second, the acts of the petitioner were clearly "contrary to good
conscience" as petitioner admitted having employed respondent's
former employees, deliberately copied respondent's products and even
went to the extent of selling these products to respondent's customers.
Mere fact of starting an opposing business is not unfair
competition. When a person starts an opposing place of business, not
for the sake of profit to himself, but regardless of loss and for the sole
purpose of driving his competitor out of business so that later on he
can take advantage of the effects of his malevolent purpose, he is guilty
of wanton wrong.
Summary: when action for damages may be filed
1. Art 20- when one, contrary to law, willfully or negligently
causes damage to another
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2. Art 21- when one willfully causes damage or injury to
another in a manner that is contra bonus mores
3. Art 22- when one benefits at the expense of another
4. Art 23- when one benefits through the act or event that
caused damage to another’s property
5. Art 24- MIMITO
6. Art 26- VIMP
7. Art 27- when a person suffers moral or material loss
because a public servant refuses or neglects without just
cause to perform his/her duties
8. Art 28- Unfair competition
Article 29. When the accused in a criminal prosecution is acquitted on
the ground that his guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same act or omission may be
instituted. Such action requires only a preponderance of evidence.
Upon motion of the defendant, the court may require the plaintiff to
file a bond to answer for damages in case the complaint should be found
to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable
doubt, the court shall so declare. In the absence of any declaration to
that effect, it may be inferred from the text of the decision whether or
not the acquittal is due to that ground.
Quantum of proof
Criminal cases Proof beyond reasonable doubt
Civil cases Preponderance of evidence
Administrative cases Sufficiency of evidence
Proof beyond reasonable doubt. That amount of proof which forms
an abiding moral certainty that the accused committed the crime
charged.
Preponderance of evidence. evidence adduced by one side outweighs
that of the other party. Sarmiento v. Court of appeals, G.R. No. 96740,
March 25, 1999
Acquittal in a criminal prosecution does not bar civil action for
the same offense. The accused was acquitted of the charge of estafa,
and a civil case was thereafter filed against the accused based on the
same transaction. The lower court dismissed the civil action, but the SC
reversed. The acquittal of the accused on the charge of estafa predicated
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
on the conclusion that the guilt of the defendant has not been
satisfactorily established is equivalent to one on reasonable doubt and
does not preclude a suit to enforce the civil liability for the same act or
omission. Nowhere in the decision is found an express declaration that
the fact from which civil action might arise did not exist. Mendoza v.
Alcala, 2 SCRA 1032
This shows that just because the accused has been acquitted, it does not necessarily
follow that he did not commit an act that will give rise to a civil action for damages.
It could also be the case that the prosecution was merely unable to prove the guilt
beyond reasonable doubt. Hence, a judgment of acquittal is not
admissible in evidence to prove that he was not guilty of the
crime.
Article 30. When a separate civil action is brought to demand civil
liability arising from a criminal offense, and no criminal proceedings are
instituted during the pendency of the civil case, a preponderance of
evidence shall likewise be sufficient to prove the act complained of.
Rule: filing of criminal and civil actions
Rule 111, Section 1, ROC
General rule. When a criminal action is instituted, the civil action for
the recovery of civil liability arising from the offense charged is deemed
instituted as well.
Exception. Civil action is not instituted if the offended party:
a. waives the civil action
b. reserves his right to institute it separately
c. institutes the civil action prior to the criminal action.
Note; reservation must be prior to prosecution’s presentation of
evidence. Reservation under (b) must be made before the prosecution
starts presenting its evidence after affording the offended party the
reasonable opportunity to make such reservation. No such reservation
may be allowed for criminal actions in violation of BP 22 or
Bouncing Checks Law.
The civil action may be instituted:
a. before the criminal action is instituted
b. together with the criminal action
c. after the criminal action is instituted
When civil action is suspended
9
Cc: Preliminary title
Rule 111, Section 2, ROC
After the criminal action has been commenced, the civil action shall be
suspended until the final determination of judgment in the criminal
proceedings. The suspension shall last until final judgment has been
entered in the criminal action.
Consolidation. Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon motion of the offended
party, be consolidated with the criminal action in the court trying the
criminal action.
Extinction of penal action not equal to extinction of civil action.
The extinction of the penal action does not carry wit hit the extinction
of the civil action. However, the civil action based on delict may be
deemed extinguished of there is a finding in a final judgment in the
criminal action that the act or omission from which the civil liability
may arise did not exist.
a. Defendant convicted- there is an automatic claim for civil
liability
b. Defendant acquitted- it depends on the mode of acquittal
There are two types of acquittal:
1. Prosecution totally failed to prove the guilt of the
accused
2. Prosecution failed to prove the guilt of the accused
beyond reasonable doubt
Acquitted because prosecution totally failed to prove his guilt.
This shall be a bar to the defendant’s civil liability based upon the same
criminal act.
Acquitted because prosecution failed to prove his guilt beyond
reasonable doubt. Civil action for the damages for the same act may
be instituted. (Art 29)
When civil action may proceed independently
Rule 111, Section 3, ROC
In the following instances, the civil action may proceed independently
of the criminal action, regardless of the outcome of the latter:
a. Art 32. Violation of civil and political rights
b. Art 33. In cases of defamation, fraud, and physical injuries
JO VALLES
ad majorem dei gloriam
c. Art 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. In this case, the police
officer is primarily liable, and the city or municipality is
subsidiarily liable.
d. Art 2176. Quasi-delicts
Effect of death on civil actions
Rule 111, Section 4, ROC
The accused dies after arraignment and during the pendency of
the criminal action
1. On civil liability arising from the crime. This liability is
extinguished
2. On civil liability arising from an independent civil action.
This may be continued against the estate or legal
representative of the accused after proper substitution. Such
representative shall appear and be substituted within 30 days
from notice by Court.
The accused dies before arraignment. The case shall be dismissed
without prejudice to any civil action the offended party may file against
the deceased.
Article 31. When the civil action is based on an obligation not arising
from the act or omission complained of as a felony, such civil action
may proceed independently of the criminal proceedings and regardless
of the result of the latter.
Action may proceed independently if source of obligation is not
the offense complained of. The following are the sources of
obligations (Art 1157 of Civil Code.)
a. Laws
b. Contracts
c. Quasi-contracts
d. Delicts (crime)
e. Quasi-delict
Article 31 not an independent civil action but a separate one.
Article 31 of the NCC does not provide for an independent civil action.
An independent civil action is an action that is based upon the same
criminal act as the case of Articles 32, 33, and 34. When the civil action
is based on the obligation not arising from the act or omission
complained of as a felony, such civil action being based upon an
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
obligation not arising from the criminal act but from a different source
is not an independent civil action. It is an action separate and distinct
from the delict. Corpus v. Page, see opinion of Justice Capistrano
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.
10
Cc: Preliminary title
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.
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.
The 2-fold duty of public officials
1. Duty to the public. This is owing to the community at large
or the public in general
a. General rule: When what is involved is duty owing to
the public in general, an individual cannot have a cause
of action for damages against a public officer. In this
case, there is damage to one, but no injury.
b. Exception: An individual may hold a public officer
liable for damages on account of an act or omission
that violates constitutional right ONLY IF it results to
particular or special injury on the individual. This is
the principle of personal liability above.
In order for a cause of action to arise, the following
must be present:
i. Right of plaintiff
ii. Obligation of defendant to respect such right
iii. Violation of such right by defendant
2. Duty to individuals. This is owing to a particular individual
on account of his or her employment
Bad faith not necessary under Article 32; good faith not a defense.
The very nature of Article 32 is that the wrong may be civil or criminal.
It is not necessary therefore that there should be malice or bad faith. To
make such a requisite would defeat the main purpose of Article 32
which is the effective protection of individual rights. Public officials in
the past have abused their powers on the pretext of justifiable motives
or good faith in the performance of their duties. Precisely, the object of
the Article is to put an end to official abuse by plea of the good faith.
JO VALLES
ad majorem dei gloriam
In the United States this remedy is in the nature of a tort. MHP
Garments, Inc., v. Court of Appeals, 236 SCRA 227 (1994)
Bad faith not necessary as long as there is a violation of the
constitutional right of plaintiff. Direct and open violations of the
Penal Code trampling upon the freedoms named are not so frequent as
those subtle, clever and indirect ways which do not come within the
pale of the penal law. It is in these cunning devices of suppressing or
curtailing freedom, which are not criminally punishable, where the
greatest danger to democracy lies. The injured citizen will always have,
under the new Civil Code, adequate civil remedies before the courts
because of the independent civil action, even in those instances where
the act or omission complained of does not constitute a criminal
offense. The Code Commission thus deemed it necessary to hold not
only public officers but also private individuals civilly liable for violation
of rights enumerated in Article 32 of the Civil Code. That is why it is
not even necessary that the defendant under this Article should have
acted with malice or bad faith, otherwise, it would defeat its main
purpose, which is the effective protection of individual rights. It
suffices that there is a violation of the constitutional right of the
plaintiff. In the present case, petitioners had, by their own claim,
already received reports in late 1987 of illegal activities allegedly
undertaken in the union office and Maniego conducted surveillance of
the union officers. Yet, in the morning of January 11, 1988, petitioners
and their companions barged into and searched the union office
without a search warrant, despite ample time for them to obtain one,
and notwithstanding the objection of Babay. The course taken by
petitioners and company stinks in illegality, it not falling under any of
the exceptional instances when a warrantless search is allowed by law.
Petitioners' violation of individual respondents' constitutional right
against unreasonable search thus furnishes the basis for the award of
damages under Article 32 of the Civil Code. Silahis International Hotel v.
Soluta, G.R. No. 163087, February 20, 2006
(Helloo it doesn’t make sense to allow a public official to abuse the
constitutional rights as long as such abuse is made in good faith)
Judicial immunity of judges. Judges cannot be subjected to civil,
criminal, or administrative liability for any of their acts performed in
good faith. However, they are not exculpated from liability if their
acts are tainted with malice, bad faith, or gross ignorance of the law.
Esguerra v. Gonzales-Asdala, G.R. No. 168906
Honor and Excellence. Honor before Excellence.
PERSONS AND FAMILY RELATIONS
Article 33. In cases of defamation, fraud, and physical injuries a civil
action for damages, entirely separate and distinct from the criminal
action, may be brought by the injured party. Such civil action shall
proceed independently of the criminal prosecution, and shall require
only a preponderance of evidence.
Rationale. To allow the citizen to enforce his rights in a private action
brought by him, regardless of the action of the State attorney.
Understood in their ordinary sense. The terms fraud, defamation,
and physical injuries must be understood in their ordinary sense. Hence,
fraud can include estafa; defamation can include libel. Physical injuries
can include homicide. Dyogi v. Yatco, G.R. No. L-9623, January 22, 1957
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.
Article 35. When a person, claiming to be injured by a criminal offense,
charges another with the same, for which no independent civil action is
granted in this Code or any special law, but
1. the justice of the peace finds no reasonable grounds to believe
that a crime has been committed, or
2. the prosecuting attorney refuses or fails to institute criminal
proceedings,
the complaint may bring a civil action for damages against the alleged
offender. Such civil action may be supported by a preponderance of
evidence. Upon the defendant's motion, the court may require the
plaintiff to file a bond to indemnify the defendant in case the complaint
should be found to be malicious.
If during the pendency of the civil action, an information should be
presented by the prosecuting attorney, the civil action shall be
suspended until the termination of the criminal proceedings.
Article 36. Pre-judicial questions, which must be decided before any
criminal prosecution may be instituted or may proceed, shall be
governed by rules of court which the Supreme Court shall promulgate
and which shall not be in conflict with the provisions of this Code.
11
Cc: Preliminary title ad majorem dei gloriam PERSONS AND FAMILY RELATIONS

Prejudicial question. A question that arises in a case, the resolution of

which is a logical antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal.

Elements. Its elements are:

a. The civil action involves an issue similar or intimately related
to the issue raised in the criminal action
b. The resolution of such issue determines whether or not the
criminal action may proceed

Rule. Where both a civil and criminal case arising from the same facts
are filed in court, the criminal case takes precedence. An exception
would be
a. if there exist prejudicial questions which should be resolved
first before action should be taken in a criminal case and
b. when the law provides that both civil and criminal case can be
instituted simultaneously.

JO VALLES Honor and Excellence. Honor before Excellence. 12

Family Code: title 1 ad majorem dei gloriam PERSONS
BOOK I: PERSONS 9. absence, child should be subsequently born alive: "provided it be born later with
10. insolvency and the condition specified in the following article". In the present case,
11. trusteeship. there is no dispute that the child was dead when separated from its
TITLE I: CIVIL PERSONALITY The consequences of these circumstances are governed in this Code, mother's womb. Geluz vs CA
CHAPTER 1: General Provisions other codes, the Rules of Court, and in special laws. Capacity to act is
not limited on account of religious belief or political opinion. Article 41. For civil purposes, the foetus is considered born if it is alive
Article 37. Juridical capacity, which is the fitness to be the subject of at the time it is completely delivered from the mother's womb. However,
legal relations, is inherent in every natural person and is lost only A married woman, twenty-one years of age or over, is qualified for all if the foetus had an intra-uterine life of less than seven months, it is not
through death. Capacity to act, which is the power to do acts with legal acts of civil life, except in cases specified by law. (n) deemed born if it dies within twenty-four hours after its complete
effect, is acquired and may be lost. (n) delivery from the maternal womb. (30a)
Significance. Article 38 restricts capacity to act, while Article 39 is
Juridical capacity Capacity to act broader in scope but enumerates situations that merely modify the Birth certificate is the best evidence of birth. The birth certificate is
Inherent in every natural person Not inherent (acquired) capacity to act. However the objective of the 2 is the same: to make an the best evidence of the fact of birth. However, the entries therein are
Lost only through death Lost by valid causes provided for overview of the situation that qualifies a person’s power to undertake only prima facie evidence of the facts contained therein pursuant to
by law act that can produce legal effects. Article 410. Sta Maria (2015), p. 78.
General Rule: This is acquired
upon birth Birth certificate are public records but confidential. Once registered
CHAPTER 2 with the Office of the Civil Registrar, it becomes a public document. But
Exception: An unborn child is
Natural Persons birth records, including a birth certificate are strictly confidential and the
Article 40. The civil personality of the child shall commence from the contents therein cannot be revealed except in the cases provided by law.
given a provisional
time of his conception for all purposes favorable to him, subject to the The mere filing with the OCR does not serve as constructive notice to
personality that entitles him to
requirements of Article 41. As amended by Article 5 of PD 603 all persons of such documents or the facts contained therein.
be supported or to receive Nevertheless, they still maintain their nature as public documents
donation. because following the proper legal procedure, they can be obtained by
Provisional personality of an unborn child; no need to allege that
the child has been born in order to be entitled to support. A those interested. Sta Maria (2015), p. 79.
conceived child, although as yet unborn, is given by law a provisional
Article 38. MIDPC personality of its own for all purposes favorable to it, as explicitly Article 42. Civil personality is extinguished by death.
(1) Minority, provided in Article 40 of the Civil Code. The unborn child, therefore, The effect of death upon the rights and obligations of the deceased is
(2) insanity or imbecility, has a right to support from its progenitors, even if the said child is only determined by law, by contract and by will. (32a)
(3) the state of being a deaf-mute, "en ventre de sa mere". It is true that the child must later on be born in
(4) prodigality and accordance with Article 41. However, said proviso is not a condition Section 6, RA 3753. Death certificate and register. – No human
(5) civil interdiction precedent to the right of the conceived child; if it were, the first part of body shall be buried unless the proper death certificate has been
are mere restrictions on capacity to act, and do not exempt the Article 40 would become entirely useless. Quimiguing v Icao presented and recorded in the office of the local civil registrar. The
incapacitated person from certain obligations, as when the latter arise physician who attended the deceased or, in his default the health officer
from his acts or from property relations, such as easements. (32a) But a child must not be aborted; cannot invoke provisional concerned, or in default of the latter, any member of the family of the
personality to obtain damages on behalf of an aborted child. Since deceased or any person having knowledge of the death, shall report the
Article 39. The following circumstances, among others, modify or limit an action for pecuniary damages on account of personal injury or death same to the local health authorities, who shall issue a death certificate
capacity to act: I PAID PAFITA pertains primarily to the one injured, then if no action for such damages and shall order the same to be recorded in the office of the local civil
could be instituted on behalf of the unborn child on account of the registrar. The death certificate, which shall be issued by the attending
1. age, injuries it received, no such right of action could derivatively accrue to physician of the deceased or, in his default, by the proper health officer,
2. insanity, its parents or heirs. In fact, even if a cause of action did accrue on behalf shall contain the following data be furnished by the person reporting the
3. imbecility, of the unborn child, the same was extinguished by its pre-natal death, death; (a) date and place of death; (b) full name, (c) age, (d) sex, (e)
4. the state of being a deaf-mute, since no transmission to anyone can take place from on that lacked occupation or profession, (f) residence; (g) status as regards marriage,
5. penalty, juridical personality. It is no answer to invoke the provisional personality (h) nationality of the deceased, and (i) probable cause of death.
6. prodigality, of a conceived child under Article 40, because that same article expressly
7. family relations, limits such provisional personality by imposing the condition that the
8. alienage,
JO VALLES Honor and Excellence. Honor before Excellence. 13
Family Code: title 1
During epidemics, bodies may be buried provided the proper death
certificates have been secured, which shall be registered not later than
five days after the burial of the body.
Regulation by contract, will, or law.
1. Contract- creditors can claim from the estate of the deceased
before the estate can be partitioned in favor of the heirs.
2. Will- testator can disinherit under any of the grounds provided
by law
3. Any person who shows disrespect to the dead, or wrongfully
interferes with a funeral shall be liable to the family of the
deceased for damages, material and moral. Article 309
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)
When there is doubt as to order of death between two or more
persons called to succeed each other. No presumption: 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. This
rule applies only to cases involving succession between two persons
This provision is applicable only in case of doubt. Joaquin Navarro,
Jr. (son) was killed, while running in front of, and 15 meters from, the
German Club. The mother, on the other, made frantic efforts to
dissuade her husband and son from leaving the place and exposing
themselves to gun fire. This lends credence to Mr. Lopez' (witness)
statement that the collapse of the clubhouse occurred about 40 minutes
after Joaquin Navarro the son was shot in the head and dropped dead,
and that it was the collapse that killed Mrs. Angela Navarro. The CA
said the interval between Joaquin Navarro's death and the breaking
down of the edifice was "minutes", long enough to warrant the inference
that Mrs. Angela Joaquin was still alive when her son expired. In
conclusion the presumption that Angela Joaquin de Navarro died before
her son is based purely on surmises, speculations, or conjectures without
any sure foundation in the evidence. the opposite theory — that the
mother outlived her son — is deduced from established facts which,
weighed by common experience, engender the inference as a very strong
probability. Joaquin v Navarro
CHAPTER 3
Juridical Persons
JO VALLES
ad majorem dei gloriam
Article 44. The following are juridical persons:
(1) The State and its political subdivisions;
(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)
(1) State and its political subdivisions
State. A sovereign person with the people composing it viewed as an
organized corporate society under a government with the legal
competence to exact obedience of its commands. Philippine Law
Dictionary
General Rule: The state cannot be sued without its express or implied
consent.
Exceptions: When the state consents expressly or impliedly.
1. Express consent. This may be given thru a general or special
law.
2. Implied consent
a. When the state enters into a business contract, it descends
to the level of the other contracting party, allowing itself
to be sued.
b. When the State files a complaint, it makes itself vulnerable
to a counterclaim.
But suability is not liability. Suability depends on the consent of the
state to be sued; liability depends on the applicable law and the
established facts. The express or implied consent of the State to be sued
is only an opportunity for the plaintiff to present his case and prove the
liability of the State. Suability does not automatically result to liability on
the part of the State. The state may never be liable if it does not consent
to be sued. United States v Guinto
Judgment cannot automatically be enforced against the state.
Even if the State has been adjudged liable in a suit to which it consented,
such judgment may not necessarily be enforced for execution against the
State, especially when monetary claims are concerned. The reason for
this is because every disbursement of public funds must first be covered
by a corresponding appropriation passed by the legislation. Philrock v
Board of Liquidators
Dual capacity of municipal corporations
1. Political and governmental
Honor and Excellence. Honor before Excellence.
PERSONS
o This is the exercise of rights that spring from sovereignty.
Officers, employees, and agents act on behalf of the State.
o Employees are not liable for torts committed by them in
the discharge of their functions. In the absence of
evidence to the contrary, regularity of the performance of
official duty is presumed.
2. Proprietary
o In exercising private, proprietary or corporate rights,
municipal corporations act in their capacities as legal
persons and not as public agencies.
o If it can be shown that they are acting in the municipal
corporation’s proprietary capacity, employees may be held
liable for torts committed by them. City of Kokomo v Loy
Municipal corporations suable only in its proprietary character.
Municipal corporations are suable because their charters grant them the
competence to sue and be sued. Nevertheless, they are generally not
liable for torts committed by them in the discharge of governmental
functions and can be held answerable only if it can be shown that they
were acting in a proprietary capacity. Here the driver was on the way to
the Naguilian river to get a load of sand for the repair of San Fernando’s
streets. Regularity of performance of official duty is presumed in the
absence of contrary evidence. Municipality of San Fernando vs Judge Firme
(2) Corporations
General Rule: The law confers to the corporation a personality
separate and distinct from that of its shareholders, board of directors,
and other individuals comprising it. The acts of its members are not the
acts of the corporation, vice versa. This is the veil.
Exception: If it is shown that the corporation is used to:
a. Defeat public convenience
b. Justify wrong
c. Protect fraud
d. Defend crime
e. Confuse legitimate legal or judicial issues
f. Perpetrate deception
g. Circumvent the law,
the corporate fiction is disregarded, and the shareholders and the BOD
are treated as the single unit. The corporation will be treated merely as
associations of people, with one liable for the act of the other. This is
how you pierce the veil.
Article 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding
article are governed by the laws creating or recognizing them.
14
Family Code: title 1
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)
TITLE II: CITIZENSHIP AND DOMICILE
Article 48. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption
of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law. Replaced by Article
IV, Section 1 of the 1987 Constitution
Jus sanguinis jurisdiction. By providing that those whose fathers or
mothers are citizens of the Philippines, the Constitution highlights that
we follow the concept of jus sanguinis or citizenship by blood, and not
jus soli or citizenship by place of birth.
Article 49. Naturalization and the loss and reacquisition of citizenship
of the Philippines are governed by special laws. (n)
NATURALIZATION. This is governed by the Commonwealth Act
No. 473. The law provides that a foreigner who wants to be naturalized
must first file a proper petition to the proper Court, which will issue the
certificate of naturalization after due hearing.
Section 2. Qualifications.
JO VALLES
ad majorem dei gloriam
First. He must be not less than twenty-one years of age on the day of the
hearing of the petition;
Second. He must have resided in the Philippines for a continuous period
of not less than ten years;
Third. He must be of good moral character and believes in the principles
underlying the Philippine Constitution, and must have conducted
himself in a proper and irreproachable manner during the entire period
of his residence in the Philippines in his relation with the constituted
government as well as with the community in which he is living.
Fourth. He must own real estate in the Philippines worth not less than
five thousand pesos, Philippine currency, or must have some known
lucrative trade, profession, or lawful occupation;
Fifth. He must be able to speak and write English or Spanish and any
one of the principal Philippine languages; and
Sixth. He must have enrolled his minor children of school age, in any of
the public schools or private schools recognized by the Office of Private
Education of the Philippines, where the Philippine history, government
and civics are taught or prescribed as part of the school curriculum,
during the entire period of the residence in the Philippines required of
him prior to the hearing of his petition for naturalization as Philippine
citizen.
Section 3. Special qualifications. The ten years of continuous residence
required under the second condition of the last preceding section shall
be understood as reduced to five years for any petitioner having any of
the following qualifications:
1. Having honorably held office under the Government of the
Philippines or under that of any of the provinces, cities,
municipalities, or political subdivisions thereof;
2. Having established a new industry or introduced a useful
invention in the Philippines;
3. Being married to a Filipino woman;
4. Having been engaged as a teacher in the Philippines in a public
or recognized private school not established for the exclusive
instruction of children of persons of a particular nationality or
race, in any of the branches of education or industry for a
period of not less than two years;
5. Having been born in the Philippines.
Section 4. Who are disqualified. - The following cannot be naturalized as
Philippine citizens:
a. Persons opposed to organized government or affiliated with
any association or group of persons who uphold and teach
doctrines opposing all organized governments;
b. Persons defending or teaching the necessity or propriety of
violence, personal assault, or assassination for the success and
predominance of their ideas;
Honor and Excellence. Honor before Excellence.
PERSONS
c. Polygamists or believers in the practice of polygamy;
d. Persons convicted of crimes involving moral turpitude;
e. Persons suffering from mental alienation or incurable
contagious diseases;
f. Persons who, during the period of their residence in the
Philippines, have not mingled socially with the Filipinos, or
who have not evinced a sincere desire to learn and embrace the
customs, traditions, and ideals of the Filipinos;
g. Citizens or subjects of nations with whom the United States
2and the Philippines are at war, during the period of such war;
h. Citizens or subjects of a foreign country other than the United
States 3whose laws do not grant Filipinos the right to become
naturalized citizens or subjects thereof.
LOSS OF CITIZENSHIP. Loss and reacquisition of citizenship are
governed by Commonwealth Act No. 63 as amended by RA No. 106.
Section 1. How citizenship may be lost. A Filipino citizen may lose his
citizenship in any of the following ways and/or events: robles virtual
1. By naturalization in foreign country;
2. By express renunciation of citizenship;
3. By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining
twenty-one years of age or more:
- Provided, however, That a Filipino may not divest himself of
Philippine citizenship in any manner while the Republic of the
Philippines is at war with any country;
4. By rendering services to, or accepting commission in, the
armed forces of a foreign country: Provided, That the
rendering of service to, or the acceptance of such commission
in, the armed forces of a foreign country, and the taking of an
oath of allegiance incident thereto, with the consent of the
Republic of the Philippines, shall not divest a Filipino of his
Philippine citizenship if either of the following circumstances
is present:
- The Republic of the Philippines has a defensive and/or
offensive pact of alliance with the said foreign country;
- The said foreign country maintains armed forces on Philippine
territory with the consent of the Republic of the Philippines:
• Provided, That the Filipino citizen concerned, at the
time of rendering said service, or acceptance of said
commission, and taking the oath of allegiance
incident thereto, states that he does so only in
connection with his service to said foreign country:
• And provided, finally, That any Filipino citizen who
is rendering service to, or is commissioned in, the
15
Family Code: title 1
armed forces of a foreign country under any of the
circumstances mentioned in paragraph (a) and (b),
shall not be permitted to participate nor vote in any
election of the Republic of the Philippines during the
period of his service to, or commission in, the armed
forces of said foreign country. Upon his discharge
from the service of the said foreign country, he shall
be automatically entitled to the full enjoyment of his
civil and political rights as a Filipino citizen;
5. By cancellation of the certificates of naturalization;
6. By having been declared by competent authority, a deserter of
the Philippine armed forces in time of war, unless
subsequently, a plenary pardon or amnesty has been granted;
and
7. In the case of a woman, upon her marriage to a foreigner if, by
virtue of the laws in force in her husband's country, she
acquires his nationality."
ad majorem dei gloriam PERSONS
a. What the law creating or organizing them provides
b. If it does not fix the domicile:
i. The place where their legal representation is
established
ii. Or where they exercise their principal functions.
Residence is a place of abode, whether permanent or temporary.
Change of domicile. A change of domicile occurs when the following
requisites are present:
1. actual removal or an actual change of domicile
2. bona fide intent of abandoning the former place of residence
and establishing a new one
3. acts which correspond to the purpose. Romualdez-Marcos vs
COMELEC

REACQUISITION OF CITIZENSHIP
Section 2 of Commonwealth Act No. 63. How citizenship may be reacquired.
– Citizenship may be reacquired:
1. By naturalization
- Provided, That the applicant possess none of the
disqualification's prescribed in section two of Act Numbered
Twenty-nine hundred and twenty-seven
2. By repatriation of deserters of the Army, Navy or Air Corp
- Provided, That a woman who lost her citizenship by reason of
her marriage to an alien may be repatriated in accordance with
the provisions of this Act after the termination of the marital
status
3. By direct act of the National Assembly.

Article 50. For the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is the place of their habitual
residence. (40a)

Article 51. When the law creating or recognizing them, or any other
provision does not fix the domicile of juridical persons, the same shall
be understood to be the place where their legal representation is
established or where they exercise their principal functions. (41a)

Domicile is the fixed permanent residence to which, when absent, one

has the intention of returning.
• Domicile; natural. The domicile of natural persons is the
place of their habitual residence. (Art. 50)
• The domicile of juridical persons shall be: (Art. 50)
JO VALLES Honor and Excellence. Honor before Excellence. 16
Family Code: title 1
FAMILY CODE
TITLE 1: MARRIAGE
CHAPTER 1: 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)
Parties in the marriage
1. The 2 willing spouses
2. The approving state. Manuel v People
The state is an interested party because the marital relation between
spouses is regarded by the law as the basis of the social organization.
Marriage is vested with public interest. The relations, duties,
obligations, and consequences flowing from the marriage are so
important as to have placed it under the control of special municipal
regulations, independent of the will of the parties.
Marriage as a status. Whenever a particular status is assigned by
law to members of any particular class of persons, affecting their
general position in or with regard to the rest of the community, no
one may vary by any contract the rights and liabilities incident to this
status. That status is too much a matter of public concern to allow
the parties to tinker with it according to their own notions of what is
expedient and proper. Rayray vs Chae Kyung Lee
Marriage contract vs ordinary contracts. Both require consent of
the parties for their perfection. In ordinary civil contracts, the
relations of the parties in the contract may be extinguished by their
mutual consent. But in a marriage contract, a relation between the
parties is created which they cannot change. Once such relation is
formed, the law steps in and holds the parties to various obligations
and liabilities. (Maynard v Hill) Marriage creates a social relation that
arises not from the consent of concurring minds, but is the creation
of the law itself. (Adams v Palmer)
JO VALLES
ad majorem dei gloriam
Marriage is not an ordinary contract. This is highlighted under
Art 350 of RPC which imposes prision correccional in its medium
and maximum periods for a person who, not committing bigamy:
1. Shall contract marriage knowing that the requirements of
the law have not been complied with
2. Shall contract marriage in disregard of a legal impediment.
Marriage as a special contract cannot be restricted by
discriminatory policies of private individuals or corporations.
The company policy where a woman worker who contracts marriage
is disqualified to work runs afoul to the constitutional policy of the
state toward marriage. It strikes at the very essence, ideals, and
purpose of marriage as an inviolable social institution and, ultimately,
of the family as the foundation of the nation. PTT vs NLRC
• Valid; policy requiring the resignation of an employee
who marries an employee of a competitor. The
prohibition against personal or marital relationships with
employees of competitor companies upon Glaxo’s
employees is reasonable under the circumstances because
relationships of that nature might compromise the interests
of the company. In laying down the assailed company
policy, Glaxo only aims to protect its interests against the
possibility that a competitor company will gain access to its
secrets and procedures. Duncan v Glaxo
Mail order bride. The following, when performed directly or
indirectly, are crimes:
a. To carry on a business which has for its purpose the
matching of Filipino women for marriage to foreign
nationals
b. To advertise or promote the prohibited act in (a).
c. To induce any Filipino woman to become a member of an
organization with the same purpose in (a).
d. To use the postal service to promote the prohibited act in
(a). RA 6955, Section 2
Trafficking in women
a. To introduce or match for consideration any Filipino
woman to a foreign national for the purpose of acquiring,
buying, offering, or selling her to engage in prostitution,
pornography, sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage.
Honor and Excellence. Honor before Excellence.
PERSONS
b. To offer or contract marriage, real or simulated, for the
purpose of acquiring, buying, offering, or selling her to
engage in prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt
bondage.
Marriage between rapist and victim
• Rape first: A subsequent valid marriage extinguishes the
criminal action or the penalty imposed for rape
• Married first: If the parties were already married when the
husband raped the wife, the subsequent forgiveness by the
wife as the offended party shall extinguish the criminal
action or the penalty.
Except: There shall be no extinguishment if the marriage is void
ab initio.
Marriage in international law. The international law recognizes
Marriage as a fundamental human right. It also declared that the
family is the natural fundamental unit of society and is entitled to
protection by society and the state. Under Art 2, Sec 2 of the
Constitution, such international law principles are considered part of
our laws.
• Art 16 of the Universal Declaration of Human Rights:
men and women of full age, without any limitation due to
race, nationality, or religion, have the right to marry and
found a family.
• International Covenant on Economic, Social, and
Cultural Rights and International Covenant on Civil
and Political Rights likewise embody similar provisions.
Constitutional protection
• Section 12, Art II: The state recognizes the sanctity of
family life and shall protect and strengthen the family as a
basic social institution.
• Section 2, Art XV: Marriage is an inviolable social
institution and the foundation of the family and shall be
protected by the State.
• The right to marry, establish a home, and bring up children
is an essential part of liberty protected by the due process
clause.
• The right to enter into a marriage is also within the ambit of
the constitutional right of association.
17
Family Code: title 1
• Under the Equal Protection Clause, the legislative cannot
forbid certain types of marriages based on race or political
inclinations.
But the constitutional protection on marriage does not bar
congress from legalizing divorce. The state recognizes the family
as the foundation of the nation. Nevertheless, this is not a bar for
the legislative body to enact laws that allow an absolute divorce.
There are cases wherein the parties get married, but subsequently, no
functional marital life could exist. In this case, there is no marriage
to preserve at all.
Legislative control of marriage. It remains in the province of the
legislature to:
a. Define all legal aspects of marriage
b. prescribe the strategy and the modalities to protect it
c. put into operation the constitutional provisions that protect
it Ong v Ong
The state is concerned not only with the validity of the marriage, but
also with the sustainability and the maintenance of a harmonious and
healthy family life brought about by such marriage.
Parties do not shed their integrity/privacy as individuals. A
lawful marriage does not take away the respective spouses’ integrity
or privacy as an individual. Hence, evidence obtained in violation of
the constitutional right of privacy is inadmissible in courts. Zulueta vs
CA
Property relations. Marriage settlements or any modifications shall
be:
a. In writing
b. Signed by the parties
c. Executed before the celebration of the marriage.
The parties may choose which property regime (Conjugal
Partnership of Gains or Absolute Community of Property) will
govern their marriage. However, they cannot dictate when such
property regime will commence. It commences at the precise
moment the marriage was celebrated.
Determining the validity. In determining the validity of marriage,
it is to be tested by the law in force at the time the marriage was
contracted. A marriage void in toto at the time it is made cannot
be made voidable (or valid) by a subsequent statute.
JO VALLES
ad majorem dei gloriam
• Example: Under the Civil Code of 1950, a marriage between
a stepbrother and a step sister is void. But under the Family
Code, there is no such prohibition. Nevertheless, marriages
between a stepbrother and a stepsister celebrated before
August 3, 1988 are still void.
• Under the Civil Code, mistake in identity is a ground to
make the marriage annullable. But under the family code,
mistake in identity is ground to make the marriage void.
Annullable marriages celebrated before the effectivity of the
Family Code are not converted into a marriage which is void
ab initio.
Retroactivity of the family code
• General Rule: It shall have a retroactive effect in so far as
it does not prejudice or impair vested rights in accordance
with the Civil Code and other laws.
o Example: Art 36 of the Family Code. The
psychological incapacity of either or both spouses
shall render the marriage void. Even if the marriage
was contracted before the effectivity of the Family
Code, a spouse may file an action for the
declaration of the nullity of the marriage. This is an
exception to the rule above that the determination
of the validity of a marriage depends upon the laws
effective during the time the marriage was
contracted.
• Exception: It cannot expressly and directly validate a
previously void marriage under the Civil Law.
Art. 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)
(1) Legal capacity of the contracting parties who must be a
male and a female
• The marrying age is 18 and above. Marriage contracted by
parties below 18 is void.
o A man or a woman should be considered as such
at the time of the marriage when the parties
themselves assert their own gender identities.
(Human rights perspective)
Honor and Excellence. Honor before Excellence.
PERSONS
• The parties must not be related to each other in the manner
provided for in Art 37 (incestuous marriages) and Art
38(void marriages for reason of public policy).
• The parties must be of opposite sex
o Sex determined by visually looking at the genitals
of a baby at the time of birth is immutable. Silverio
vs Republic
o If the person is biologically intersex, the
determining factor of the gender classification
would be what the individual, having reached the
age of majority, with good reason thinks of his or
her sex. Republic vs Cagandahan
(2) Consent freely given in the presence of the solemnizing
officer
a. The parties must have willingly and deliberately entered into
the marriage. Teter v Teter
b. At the time of celebration, they were capable of intelligently
understanding the nature and consequences of the act.
c. Consent does not have to be expressed in a particular
manner. It is enough that there is a manifestation that the
contracting parties take each other as husband and wife. Id
d. The reason why it has to be given in the presence of a
solemnizing officer is so that it may have due publication in
front of a third person or persons, for the sake of notoriety
and the certainty of its being made. Dyer v Brannoc
e. Proxy marriages are prohibited in the Philippines.
Marriage by way of jest is void because there is no genuine
consent on the contracting parties. Mere words, without any
intention corresponding to them, will not make a marriage or any
other civil contract. But the words are the evidence of such intention
and it must be clearly shown that both parties intended and
understood that they were not to have effect. McClurg v Terry
But a marriage solemnized for financial consideration is valid.
The parties only married to enable Albios to acquire American
citizenship in consideration of USD 2, 000. Albios later sought to
declare the marriage void for lack of consent, saying that the marriage
was just in jest. SC denied this because consent was not lacking. They
willingly and deliberately contracted the marriage to acquire
citizenship. The marriage here is not one in jest as the parties had the
intention to be bound in order to create the very bond necessary to
allow Albios to acquire American citizenship. Republic vs Albios
18
Family Code: title 1
Art. 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)
(1) Authority of the solemnizing officer
General Rule: The officer either has authority, or he has none. If he
has authority, the marriage is valid. If he does not have authority, this
requisite is absent and the marriage is void.
• Under the LGC, the mayor is empowered to solemnize a
marriage
Exception: If either of or both the contracting parties believed in
good faith that an officer had the authority, the marriage shall be
valid. (Art 35, par 2)
Criminal penalties are imposable against a person who solemnizes a
marriage without authority:
a. A person not authorized by the civil registrar general (formerly
Director of the Philippine National Library)
b. A person who refuses to exhibit his authorization when called
upon to do so by the parties
c. A person who authorizes the immediate authorization of the
marriage that is subsequently declared illegal.
d. Any person who solemnizes a marriage in violation of the Family
Code.
e. Any person who publicly advertises himself as authorized even if
he is not.
Penalty: Imprisonment of 1 month to 2 years OR a fine of P200 to
P2000.
Presumption of legal performance of marriage. When a marriage
ceremony is shown, every presumption will be indulged that it was
legally performed. Gaines v New Orleans
Solemnizer need not investigate on the issuance of the license
as long as there is a license. The solemnizing officer has no duty
to investigate whether the marriage license has been duly and
regularly issued by the registrar. All he needs to know is that the
license has been issued by the competent official, and it may be
JO VALLES
ad majorem dei gloriam
presumed form the issuance of the license that said official has
fulfilled the duty to ascertain whether the contracting parties had
fulfilled the requirements of the law. People v Janssen
(2) A valid marriage license except in cases provided for in
Chapter 2 of this title
Mandatory requirements:
1. Issued by LCR. A valid marriage license is issued by the
local civil registrar of the place where the marriage
application was filed. [But Art 9 says place where either
parties reside]
2. Effective for 120 days. If unused by the parties within 120
days from issuance, it shall automatically be ineffective.
3. Valid only in the PH. It is not effective if it will be used
to solemnize a marriage abroad.
All other requirements are merely directory; non-compliance
results in irregularity. Their non-observance will not render the
marriage void or voidable.
• When a license is issued in the name of a person which is
not his true name, the name wrongly spelled does not affect
the validity of the marriage. People v Janssen
• When the name of the party was misspelled in the license,
this did not invalidate a marriage solemnized on the
authority of said license. Matturo v Matturo
• A marriage license obtained through misrepresentation of
age (above 18) in order to avoid the requirement of parental
consent did not invalidate the marriage. It is annullable
because one of the parties is at least 18 but below 21. Teagae
v Allred
When marriage license is excused. The following are legally
excused from obtaining a marriage license:
1. Those marriages contracted at the point of death
2. Those when the parties have no means of transportation to
go to the local civil registrar because they live in a remote
area.
3. Persons who are capacitated to marry, and who have been
living together as husband and wife, for at least 5 years
without the benefit of marriage
(3) Ceremony
Honor and Excellence. Honor before Excellence.
PERSONS
Only ceremonial marriages are recognized in the Philippines.
Common law marriages are not recognized.
• A common-law marriage is a non-ceremonial or informal
marriage by agreement, entered into between a man and a
woman having capacity to marry, without compliance with
the statutory formalities pertaining to marriage license.
• Such agreement must be coupled by consummation, which
includes at least cohabitation as husband and wife, and
reputation in such a way that the public will recognize
marital status.
Requisites. A marriage ceremony which takes place
a. with the appearance of the contracting parties before the
solemnizing officer
b. and their personal declaration that they take each other as
husband and wife
c. in the presence of not less than 2 witnesses of legal age.
Absence of ceremony = void; absence of witnesses =
irregularity. The general rule is that the absence of this requisite
renders the marriage void. However, the absence of 2 witnesses of
legal age is only an irregularity not enough to invalidate a marriage.
The reason for this is because in marriage, it is the agreement itself
of the contracting parties in the presence of the solemnizing officer,
which constitutes the contract. Sta. Maria (2015), p. 126.
Art. 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 not affect the validity of the
marriage but the party or parties responsible for the irregularity shall be
civilly, criminally and administratively liable. (n)
Defects in consent. Vitiated consent, or consent obtained by violence,
intimidation, mistake, undue influence or fraud falls under defective
consent.
Defect in essential requisite. This makes the marriage voidable.
Irregularity in the formal requisite. Does not affect the validity of the
marriage.
Art. 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)
Art. 6. No prescribed form or religious rite for the solemnization of the
marriage is required. It shall be necessary, however, for the contracting
19
Family Code: title 1
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)
Marriage certificate not an essential/formal requisite. While the
law requires that the declaration be contained in the marriage
certificate, the marriage certificate itself is neither an essential nor a
formal requisite of marriage. Failure to sign a marriage certificate or
absence of the marriage certificate itself does not render the marriage
void or annullable. Madridejo v De Leon
Marriage license v marriage certificate. A marriage license is
different from a marriage certificate. The latter is neither an essential
nor a formal requisite, and its absence does not render the marriage
void or annullable.
Signing the marriage contract before solemnization is
improper. Requiring the parties to sign the marriage contract before
the solemnization of the marriage is highly improper and irregular.
The parties are supposed to be asked first to declare that they take
each other as husband and wife in the presence of 2 witnesses before
signing. Cosca v Palaypayon
BUT SEE: Personal declaration; solemnizer need not ask the
parties WON they take each other as husband and wife. The
failure of the solemnizing officer to ask WON they take each other
as husband and wife is not a fatal omission, it being sufficient that
they declared and signed the marriage contract and that they were
taking each other as husband and wife. A declaration by word of
mouth of what the parties had already stated in writing would be a
mere repetition. Karganilla v Familiar
Art. 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
JO VALLES
ad majorem dei gloriam
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)
Who may solemnize. Marriage may be solemnized by:
(1) Incumbent member of the judiciary within the court’s
jurisdiction
• They must be incumbent, not retired
• Judges can solemnize marriages only within their
jurisdiction
• The jurisdiction of the CTA, CA and Sandiganbayan is
national.
(2) Priest, rabbi, imam, or minister of the church or religious
sect. The following requisites must concur in order that the authority
may be valid:
a. He must be duly authorized by the church or religious sect
b. He must act within the written authority granted to him
c. He must be registered with the civil registrar general
d. At least one of the contracting parties is a member of the
church or religious sect
(3) Ship captain or airplane chief
The following requisites must concur in order that the authority may
be valid:
a. The marriage must be in articulo mortis
b. The marriage must be between passengers or crew members
c. The ship must be at sea or the plane must be in flight. (A
marriage may be solemnized during stopovers at ports of
call)
Note: The assistant pilot has no authority to solemnize a marriage.
(4) Any military commander of a unit to which a chaplain is
assigned. The following requisites must concur in order that the
authority may be valid:
Honor and Excellence. Honor before Excellence.
PERSONS
a. He must be a military commander of a unit. The
commander may solemnize a marriage even if the
contracting parties do not belong to his unit.
b. He must be a commissioned officer (rank starting from
second lieutenant)
c. A chaplain must be assigned to the unit
d. Such chaplain is absent at the time of marriage
e. The marriage must be in articulo mortis
f. The contracting parties must be within the zone of military
operation (implies widespread military activity over an area
and requires absence of civilian authorities)
Note: A military commander may solemnize a marriage even if the
contracting parties do not belong to his or her unit.
(5) Any consul-general, consul, or vice-consul in the case
provided for in Art 10. The following requisites must concur in
order that the authority may be valid:
a. The marriage must be celebrated abroad
b. Both contracting parties must be Filipinos
A marriage between a Filipino and a foreigner in front of a
consul is void.
The contracting parties must appear personally in the office of
the consul general. They must declare that they take each other as
husband and wife in the presence of not less than 2 witnesses. If they
desire to have their marriage solemnized in another place, they shall
request the said official in writing and designate their desired place.
(6) Mayor. In his absence or incapacity to perform this duty, the vice
mayor or the next highest ranking sangguniang bayan member may
exercise this function. Laxamana vs Baltazar
• The authority of the mayor is from the Local Government
Code effective January 1, 1992.
• The power to suspend, appoint, or dismiss employees can
only be exercised if the period of temporary capacity
exceeds 30 days.
Effect of lack of authority; void. When the one solemnizing the
marriage does not have authority, there is an absence of a formal
requisite, hence, the marriage is void. The only exception is when the
parties believed in good faith that such solemnizing officer had the
authority. See Article 35(2)
20
Family Code: title 1
Article. 8. The marriage shall be solemnized publicly in the
(1) chambers of the judge or in open court,
(2) in the church, chapel or temple, or
(3) in the office the consul-general, consul or vice-consul, as the case
may be, and not elsewhere, except
(1) in cases of marriages contracted on the point of death or
(2) in remote places in accordance with Article 29 of this Code, or
(3) 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)
General rule: The proper venue of solemnizing marriage may be in
any of the following depending on the type of solemnizing officer:
a. Publicly in the chambers of the judge
b. In open court
c. In the church, chapel or temple
d. Office of the consul-general, vice-consul, or consul
Exception: Marriages contracted:
a. At the point of death
b. In remote places in accordance with Article 29
• There is no means of transportation for the contracting
parties to appear personally before the local civil
registrar
• The officer took necessary steps to ascertain the ages
and relationship of the contracting parties and the
absence of a legal impediment to the marriage
c. When the parties request the solemnizing officer in writing
and in a sworn statement that the venue be changed.
Merely directory. Article 8 on venue is directory in nature and its
non-observance will not invalidate a marriage but can subject the
person who causes the violation to civil, criminal or administrative
liability.
ARTICLES 9-21: ALL ABOUT MARRIAGE LICENSE
Art. 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)
Issued by LCR where either resides. It shall be issued by the local
civil registrar of the city or municipality where either contracting party
JO VALLES
ad majorem dei gloriam
habitually resides, except in marriages where no licenses are required in
accordance with Chapter 2, Title 1 of the Family Code.
Certificate of compliance by Family Planning Office. RA 10354 or
The Responsible Parenthood and Reproductive Health Act of 2012
provides that no marriage license shall be issued unless the applicants
present a certificate of compliance issued by the local Family Planning
Office, certifying that they duly received adequate instructions and
information on responsible parenthood, family planning, breastfeeding
and infant nutrition.
This is neither a formal nor essential requisite. Non-compliance
does not affect the validity of the marriage. But an official who issues
the license in the absence of this will be liable civilly, administratively, or
criminally.
Art. 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
Their 2-fold duties are:
1. Solemnizer of marriages
2. Issuer of marriage licenses (which is normally the duty of the
local civil registrar)
Note: Solemnities established by the Philippine laws must be observed
in marriages celebrated before a consul abroad. Art 17, NCC
Art. 11. Where a marriage license is required, each of the contracting
parties shall file separately a sworn application for such license with the
proper local civil registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous marriage
was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person
having charge, in case the contracting party has neither father nor
mother and is under the age of twenty-one years.
Honor and Excellence. Honor before Excellence.
PERSONS
The applicants, their parents or guardians shall not be required to exhibit
their residence certificates in any formality in connection with the
securing of the marriage license. (59a)
Application. Each of the contracting parties shall file separately a sworn
application with the proper local civil registrar.
• The applicants, their parents or guardians shall not be required
to exhibit their residence certificate in connection with the
securing of the marriage license.
• Once the application is signed and sworn to by the parties and
thereafter filed, the local civil registrar has no choice but to
accept the application and process the same.
Art. 12. The local civil registrar, upon receiving such application, shall
require the presentation of
(1) the original birth certificates or, in default thereof,
(2) the baptismal certificates of the contracting parties or
(3) copies of such documents duly attested by the persons having
custody of the originals.
These certificates or certified copies of the documents by this Article
need not be sworn to and shall be exempt from the documentary stamp
tax. The signature and official title of the person issuing the certificate
shall be sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his birth or
baptismal certificate or a certified copy of either because of the
(1) destruction or loss of the original or
(2) if it is shown by an affidavit of such party or of any other person that
such birth or baptismal certificate has not yet been received though the
same has been required of the person having custody thereof at least
fifteen days prior to the date of the application, such party may furnish
in lieu thereof his current residence certificate or an instrument
drawn up and sworn to before the local civil registrar concerned or any
public official authorized to administer oaths. Such instrument shall
contain the sworn declaration of two witnesses of lawful age, setting
forth the full name, residence and citizenship of such contracting party
and of his or her parents, if known, and the place and date of birth of
such party. The nearest of kin of the contracting parties shall be
preferred as witnesses, or, in their default, persons of good reputation in
the province or the locality.
The presentation of birth or baptismal certificate shall not be required if
the parents of the contracting parties appear personally before the local
civil registrar concerned and swear to the correctness of the lawful age
of said parties, as stated in the application, or when the local civil
registrar shall, by merely looking at the applicants upon their personally
appearing before him, be convinced that either or both of them have
the required age. (60a)
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Family Code: title 1
Receipt of application. Upon receipt of application, the local civil
registrar shall require the presentation of original:
1. Birth certificates
2. Baptismal certificates (in absence of #1)
3. Copies of such document duly attested by the persons having
custody of the original may also be accepted.
• These shall be exempt from DST.
• The signature of the official issuing the same shall be
sufficient proof of its authenticity. These certificates
need not be sworn to.
When either parties unable to produce such documents: In case
either of the parties is unable to produce his birth or baptismal certificate
because of:
1. Destruction or loss of the original
2. It is shown by an affidavit that such birth or baptismal
certificate has not yet been received even though the same has
been required of the person having custody thereof at least 15
days prior to the date of application
Such party may furnish:
1. His current residence certificate or
2. An instrument drawn up and sworn to before
a. The local civil registrar concerned or
b. Any public official authorized to administer oaths.
Such instrument shall contain:
a. A sworn declaration of 2 witnesses of lawful age
• Nearest of kin of the contracting parties shall be
preferred as witnesses
• In their default, persons of good reputation or
the locality.
b. Full name, residence, and citizenship of such contracting
party and his or her parents
c. Place and date of birth of such party.
When birth/baptismal certificate not required:
a. The parents of the contracting parties appear personally before
the local civil registrar concerned and swear to the correctness
of the lawful age of said parties, or
b. If the local civil registrar, by merely looking at the applicants
upon their personally appearing before him, shall be convinced
that either or both of them have the required age.
Art. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the birth
or baptismal certificate required in the last preceding article, the death
JO VALLES
ad majorem dei gloriam
certificate of the deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration of nullity of
his or her previous marriage.
In case the death certificate cannot be secured, the party shall make an
affidavit setting forth this circumstance and his or her actual civil status
and the name and date of death of the deceased spouse. (61a)
When either of the parties have been previously married. Instead of
the birth or baptismal certificate, the applicant shall present:
a. Death certificate of the deceased spouse
b. Decree of absolute divorce of the previous marriage
c. Judicial decree of annulment or declaration of nullity of the
previous marriage.
Art. 14. In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of eighteen
and twenty-one, they shall, in addition to the requirements of the
preceding articles, exhibit to the local civil registrar, the consent to their
marriage of their father, mother, surviving parent or guardian, or
persons having legal charge of them, in the order mentioned. Such
consent shall be manifested in writing by the interested party, who
personally appears before the proper local civil registrar, or in the form
of an affidavit made in the presence of two witnesses and attested before
any official authorized by law to administer oaths. The personal
manifestation shall be recorded in both applications for marriage license,
and the affidavit, if one is executed instead, shall be attached to said
applications. (61a)
Parental consent to marriage. When either or both of the parties are
between the ages 18-21, the parties shall present:
1. The requirements of the preceding articles and
2. in order of priority, consent to their marriage of the following:
a. Father
b. Mother
c. Surviving parent or guardian
d. Persons having legal charge of them
Form of consent. The consent shall be:
a. In writing by the interested party who personally appears
before the proper local civil registrar, or
b. In the form of an affidavit made in the presence of 2 witnesses
and attested before any authorized by law to administer oaths.
The personal manifestation shall be recorded in both applications for
marriage license. If an affidavit is executed, it shall likewise be attached
to said application.
Honor and Excellence. Honor before Excellence.
PERSONS
Lack of parental consent; annullable. Non-compliance with these
requirements is merely an irregularity. It renders the marriage annullable
as though it were a defect in an essential requisite. Article 45(1)
• Parental consent is one of the statutory requirements not
owing to the capacity of the parties, but only to the formalities
of a lawful marriage under the statute. It is only a requirement
needed in relation to the procurement of a formal requisite,
which is the marriage license.
Art. 15. Any contracting party between the age of twenty-one and
twenty-five shall be obliged to ask their parents or guardian for advice
upon the intended marriage. If they do not obtain such advice, or if it
be unfavorable, the marriage license shall not be issued till after three
months following the completion of the publication of the application
therefor. A sworn statement by the contracting parties to the effect that
such advice has been sought, together with the written advice given, if
any, shall be attached to the application for marriage license. Should the
parents or guardian refuse to give any advice, this fact shall be stated in
the sworn statement. (62a)
Parental advice to marriage. Any contracting party between the ages
21-25 shall be obliged to ask their parent or guardian for advice
regarding the intended marriage.
When advice obtained
a. Sworn statement by the contracting parties to the effect that it
has been sought shall be attached to the application for
marriage license
b. The written advice, if any, shall likewise be attached
When advice not obtained/ advice is unfavorable
a. The marriage license shall not be issued until after 3 months
following the completion of the publication of the application
b. If the parent or guardian refuses to give advice, this fact shall
be stated in the sworn statement.
Absence of parental advice; no effect on validity. The absence of the
parental advice does not affect the validity of the marriage. It does not
make it void or annullable. The only effect is the postponement of the
issuance of the marriage license.
Art. 16. In the cases where parental consent or parental advice is needed,
the party or parties concerned shall, in addition to the requirements of
the preceding articles, attach a certificate issued by a priest, imam or
minister authorized to solemnize marriage under Article 7 of this Code
or a marriage counselor duly accredited by the proper government
22
Family Code: title 1
agency to the effect that the contracting parties have undergone
marriage counseling. Failure to attach said certificates of marriage
counseling shall suspend the issuance of the marriage license for a period
of three months from the completion of the publication of the
application. Issuance of the marriage license within the prohibited
period shall subject the issuing officer to administrative sanctions but
shall not affect the validity of the marriage.
Should only one of the contracting parties need parental consent or
parental advice, the other party must be present at the counseling
referred to in the preceding paragraph. (n)
Marriage counseling. In addition to the requirements previously
mentioned, a certificate showing that the parties underwent marriage
counseling shall be submitted if:
a. Parental consent is needed; or
b. Parental advice is needed
Both contracting parties must be present at the counseling even if only
one of the parties need parental consent or advice.
Who may issue:
a. Priest, imam, or minister authorized to solemnize a marriage
under Article 7.
b. Marriage counselor duly accredited by the proper government
agency
Failure to attach; suspend issuance of license for 3 months; no
effect on validity. Failure to attach the certificate of marriage
counseling shall suspend the issuance of the marriage license for 3
months from the completion of the publication of the application. It
does not affect the validity of the marriage. Issuance of the marriage
license within the prohibited period shall subject the issuing officer to
administrative sanctions.
Art. 17. The local civil registrar shall prepare a notice which shall contain
the full names and residences of the applicants for a marriage license and
other data given in the applications. The notice shall be posted for ten
consecutive days on a bulletin board outside the office of the local civil
registrar located in a conspicuous place within the building and
accessible to the general public. This notice shall request all persons
having knowledge of any impediment to the marriage to advise the local
civil registrar thereof. The marriage license shall be issued after the
completion of the period of publication. (63a)
JO VALLES
ad majorem dei gloriam
Duties of the local civil registrar. After the marriage application has
been properly filled up and submitted, the LCR shall prepare a notice. It
shall contain:
a. Names of the applicants
b. Residences of the applicants
c. Other data given in the applications
Notice
a. Posted for 10 consecutive days
b. On a bulletin board outside the office of the LCR, located in a
conspicuous place, and accessible to the general public
c. It shall request persons having knowledge of impediment to
marriage to advise the LCR thereof
Issuance of license. The marriage license shall be issued after the
completion of the period for publication. The issuance shall be deferred
for three months if:
a. Parental advice is not obtained (age 21-25)
b. Certificate of marriage counseling not attached (only in cases
when it is required)
Art. 18. In case of any impediment known to the local civil registrar or
brought to his attention, he shall note down the particulars thereof and
his findings thereon in the application for marriage license, but shall
nonetheless issue said license after the completion of the period of
publication, unless ordered otherwise by a competent court at his own
instance or that of any interest party. No filing fee shall be charged for
the petition nor a corresponding bond required for the issuances of the
order. (64a)
When impediments to marriage arise. In case of any impediment
known to the LCR or brought to his attention:
a. He shall note down the particulars thereof and his findings
thereon.
b. He shall issue the license after the completion of the
publication, unless ordered otherwise by a competent court.
LCR must issue license even if has knowledge of impediments.
Regardless of the fact that impediments are known to the LCR and
regardless of whether or not they are true, such LCR has the duty under
the law to issue the marriage license. Only the court may say otherwise
at the instance of:
a. The LCR or
b. Other interested parties (parent, brothers, sisters, or existing
spouse)
Honor and Excellence. Honor before Excellence.
PERSONS
The purpose of this is to eliminate any opportunity for extortion and
graft.
No filing fees. No filing fee shall be charged for filing of the petition
nor corresponding bond be required for the issuance of the order.
Marriage application; obtained by anyone. A marriage application
may be filed by anyone. Once signed and sworn to by the parties and
thereafter filed, the LCR has no choice but to accept If the application
and process the same until issuance of the marriage license. If the LCR
has knowledge of legal impediments, he/she cannot discontinue the
processing, but must note down such legal impediments and issue the
license unless otherwise stopped by the court. Sta Maria (2015), p. 148.
When LCR issues license despite court injunction. Only court
intervention directing the non-issuance of the marriage license can
empower the LCR to validly refuse the issuance of a license. But if the
LCR nevertheless issues the license despite an injunction and marriage
is solemnized on the basis of such license, the validity of the marriage is
not affected by the violation of the injunction.
Criminal laibility of the LCR:
(1) Misdemeanor. When he directly or indirectly attempts to influence
any contracting to marry or refrain from marrying in any church, sect,
religion, or before any civil authority.
Penalty: imprisonment of not more than 1 month and fine of not more
than 200 pesos.
(2) Illegal issuance or refusal of license
When he refuses or fails to issue the license within 24 hours from the
time it was due, he shall face imprisonment for not less than one
month to not more than 2 years or a fine of not less than 200 pesos
nor more than 2000 pesos.
Art. 19. The local civil registrar shall require the payment of the fees
prescribed by law or regulations before the issuance of the marriage
license. No other sum shall be collected in the nature of a fee or tax of
any kind for the issuance of said license. It shall, however, be issued free
of charge to indigent parties, that is those who have no visible means of
income or whose income is insufficient for their subsistence a fact
established by their affidavit, or by their oath before the local civil
registrar. (65a)
License fees
a. Only those fees prescribed by law or regulations before the
issuance of the marriage license shall be required.
23
Family Code: title 1
o No sums in the nature of fees or tax shall be
connected
b. The marriage license shall be issued free of charge to
indigent parties
o These are people who have no visible means of
income or whose income is insufficient for their
subsistence
o This shall be established by their affidavit or by
their oath to the LCR.
Art. 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)
Validity of the license
a. Valid in any part of the Philippines
o Not valid for solemnizing marriage abroad
b. Valid for only 120 days and shall be deemed cancelled at the
expiration of said period if the contracting parties have not
made use of it
o The expiry date shall be stamped in bold characters
at the face of every license issued.
Art. 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)
Stateless persons; affidavit. For stateless persons or refugees from
other countries, shall, in lieu of the certificate of legal capacity, submit
an affidavit stating the circumstances showing such capacity to contract
marriage.
Rationale; nationality rule. This shall be issued by their respective
diplomatic or consular officials. This is necessary because in so far as
marriage is concerned, we adhere to the NATIONALITY RULE. The
national law of the contracting parties with respect to their capacity to
contract marriage. Without this certificate, the license will not be issued.
JO VALLES
ad majorem dei gloriam
Absence of certificate of legal capacity; registrar will not issue
marriage license. Without this certification of legal capacity, the
LCR will not issue the marriage license as this is a requisite before
the marriage license can be obtained. This is an exception to the rule
that the LCR must nevertheless issue the licenses even if he finds an
impediment in the impending marriage.
ARTICLES 22-23: MARRIAGE CERTIFICATE
Art. 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)
Art. 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)
Duty of the solemnizing officer:
a. Furnish either of the contracting parties the original marriage
certificate
b. Send the duplicate and triplicate copies to the LCR where the
marriage was solemnized in not later than 15 days after the
marriage
c. Retain in his file the quadruplicate copy of the marriage
certificate
d. In proper cases, retain in his file the affidavit of the contracting
parties regarding the solemnization of the marriage in the place
other than those mentioned in Art 8.
Honor and Excellence. Honor before Excellence.
PERSONS
Marriage certificate; best evidence of marriage; must be certified
by LCR. Also known as the marriage contract, the marriage certificate
is the best evidence of the marriage. Unless it comes from the Office of
the LCR and duly certified by the LCR as the authentic copy, it is a
worthless piece of paper. Vda de Chua v CA
a. When issued many years after marriage, it is inadmissible,
especially when there was no record of the marriage in the
official records. Gaines v Relf
b. When photostat copies uncertified by the LCR are presented
as evidence but not objected to, they are admissible and can
prove marriage. Sy v CA
May be proved by parol evidence. Like any other contract, marriage
may be proved by parol evidence or testimonies by either or both of the
contracting parties, their witnesses, or the person who solemnized the
marriage. Watson v Lawrence; Pugeda v Triass
• Testimony must be credible and must proceed from a credible
party.
• Public and open cohabitation as husband and wife after the
alleged marriage, birth, and baptismal certificates of children
borne by the alleged spouses and a statement of such marriage
in subsequent documents pare sufficient. Pugeda v Trias
Presumption of marriage. SEMPER PRESUMITUR PRO
MATRIMONIO. Always presume marriage. Every intendment of the
law leans toward legalizing matrimony as it is the basis of human society.
When it comes to the legitimacy of children, the law presumes morality
and not immorality; marriage not concubinage; legitimacy and not
bastardity. The evidence to repel this presumption must be strong,
distinct, and satisfactory.
• Thus, failure to present a marriage certificate is not fatal in
cases where a marriage is in dispute because the parties can rely
on the presumption of marriage. Rivera vs IAC
Destroying the presumption; certificate of no record. An official
certification issued by the LCR of a municipality, where a particular
marriage license has been issued as indicated in the marriage contract,
stating that, after earnest effort to locate and verify the existence of the
particular marriage license or is issued to another couple, or is fabricated,
is convincing evidence to destroy the validity of a marriage on the basis
of the absence of a marriage license. Republic v CA and Castro
• Must state that earnest efforts were conducted but the
license cannot be found. But the SC did not allow the
marriage to be declared void when the LCR certified that there
was no marriage license despite the exertion of all efforts but
24
Family Code: title 1
with an admission that it cannot give full force in locating the
marriage license because of the workload of said office. The
certification does not categorically and with absolutely
certainty show that there were earnest efforts to look. Sevilla v
Cardenas
ARTICLES 24-25: DUTIES OF THE LCR
Art. 24. It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The documents and
affidavits filed in connection with applications for marriage licenses shall
be exempt from documentary stamp tax. (n)
Art. 25. The local civil registrar concerned shall enter all applications for
marriage licenses filed with him in a registry book strictly in the order in
which the same are received. He shall record in said book the names of
the applicants, the date on which the marriage license was issued, and
such other data as may be necessary. (n)
It shall be the duty of the LCR to:
a. Prepare the documents required. The documents and
affidavits filed in connection with the applications for marriage
license shall be exempt from DST. This shall be free of charge
b. Administer oaths to all interested parties. This shall be free
of charge
c. The LCR shall enter all applications for marriage licenses
filed with him in a registry book strictly in the order which the
same are received. He shall record in the registry book (or
marriage register) the following:
o names of the applicants
o the date on which the marriage license was issued
o such other data as may be necessary
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)
JO VALLES
ad majorem dei gloriam
Principle of lex loci celebrationis. All marriages solemnized outside
the Philippines, in accordance with the laws in force in the country
where they are solemnized, and valid there as such, shall also be valid in
this country. This is a matter if international comity.
Marriages celebrated abroad exceptionally considered as valid in
the PH:
1. Marriages without a license celebrated abroad is valid in the PH
as long as they are valid in the place where they are celebrated
2. Same thing with marriage by proxy
3. Same with marriages solemnized by a professor
But follow PH laws if solemnized in PH consulate abroad. Ig the
foreign marriage is to be solemnized inside the PH Consulate abroad,
such marriage must observe the forms and solemnities established by
PH laws.
Exceptions: No state is bound to give effect in its courts to laws which
are repugnant to its own laws and policy. The following are void:
1. Art 35(1)- contracted by any party below 18 years of age, even
with parental consent
a. Blanket prohibition against both parties
b. Note: This results to an absurd situation where a
marriage celebrated in the PH where there foreigner
is below 18 but his country allows it is valid in the
PH, while a marriage in the same circumstances but
celebrated abroad is void because of Article 26. Sta.
Maria (2015), p. 170.
2. Art 35(4)- bigamous or polygamous marriage
3. Art 35(5)- contracted through the mistake of one contracting
party as to the identity of the other
4. Art 35(6)- those subsequent marriages that are void under Art
53.
a. This is annulment or nullity of a marriage and
contracting another marriage without recording the
judicial decree with the LCR, partition properties of
1st marriage, and deliver presumptive legitimes.
5. Art 36- related to psychological incapacity
6. Art 37- incestuous marriage
7. Art 38- contrary to public policy
Common-law marriages not recognized in the PH. Common-law
marriages obtained abroad are not valid here even if valid where such
marriages were obtained, because Art 26 speaks of marriages
solemnized, that is, ceremonial marriages.
Honor and Excellence. Honor before Excellence.
PERSONS
Same sex marriage of Pinoys abroad invalid. Same sex marriage of
Filipinos abroad invalid in the Philippines for public policy
consideration. This is true whether the Pinoy marries another Pinoy or
a foreigner. Also, Art 15 applies. The nationality rule is followed when
it comes to the legal capacity of a Filipino. Article 17 of the Civil Code
applies as well.
Doctrine of processual presumption. It is necessary to prove the
foreign law as a question of fact and to prove that the celebration of the
marriage pursuant to such law by convincing evidence. Our courts do
not take judicial notice of foreign judgments and laws. If such law of the
other state is not pleaded nor proved for purposes of determining its
applicability or validity in the Philippines, the Courts will presume that
the laws of such country are the same with Philippine laws.
How to prove foreign divorce:
1. Present the divorce decree, proven as a public or official record
of a foreign country by either:
a. An official publication; or
b. A copy thereof attested by the officer having legal
custody of the document
2. If the record is not kept in the Philippines, such copy must be:
a. Accompanied by a certificate issued by the proper or
consular officer in the PH foreign service stationed
in the foreign country in which the record is kept; and
b. Authenticated by the seal of his office
3. Prove the conformity of the decree to the foreign law. Garcia
v. Recio
Judicial recognition of foreign judgment of divorce is necessary
before recording in the civil registry. A judgment of divorce is a
judicial decree, although a foreign one, affecting a person’s legal capacity
and status that must be recorded as required by Act No 3753. But while
the law requires the entry of the divorce decree in the civil registry, the
law and the submission of the decree by themselves do not ipso facto
authorize the decree’s registration. The law should be read in relation
with the requirement of a judicial declaration of foreign judgment before
it can be given res judicata effect. Thus, the registration of the foreign
divorce decree without the requisite judicial recognition is void. Corpus
vs Sto. Tomas
• Either alien spouse or Pinoy spouse can file a judicial
recognition of divorce in the PH. The direct involvement or
being the subject of the foreign judgment is sufficient to clothe
a party with the requisite interest to institute an action before
our courts for the recognition of foreign judgment. The ruling
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Family Code: title 1
of the lower court that only the Pinoy spouse can do this is
reversed. Corpus vs Sto. Tomas
But a petition for judicial recognition of foreign judgment not the
proper proceeding for cancellation of entries in the civil registry.
Article 412 provides that no entry in the civil register shall be changed
or corrected without judicial order. The procedure is laid down in Article
108 of the Rules of Court, which requires a verified petition to be filed
in the RTC of the province where the LCR is located. However, this
must not be construed as to require 2 separate proceedings for the
registration of a foreign divorce decree—one for the recognition and
another for the cancellation of entry. The recognition may be made in a
Rule 108 proceedings itself, which will also serve as the appropriate
adversarial proceeding by which the applicability of the foreign
judgment can be measured. Corpus vs Sto. Tomas
The PH recognizes divorces of aliens obtained in other states as a
matter of international comity. A divorce obtained by an alien abroad
is recognized in the PH so long as such divorce is valid in the country
from which it is obtained. As to legal capacity, the law of the country of
the person shall determine such status or legal capacity. This is the
nationality rule.
Absolute divorce between Pinoys not allowed. A marriage between
2 Filipinos cannot be dissolved even by a divorce obtained abroad,
because of Articles 15 and 17 of the Civil Code. Garcia vs Recio; Such
divorce between Filipinos is void and ineffectual because it is contrary
to our public policy and morality. Bayot vs CA
But if one of them becomes a foreign citizen, absolute divorce is
recognized and allows a divorced Filipino spouse to remarry.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and divorce is hereafter validly obtained by the alien spouse
capacitating him or her to remarry, the Filipino spouse shall likewise
have capacity to marry under the Philippine law. (Art 26, paragraph 2)
• This provision applies when at the time of marriage, both
parties were Filipino citizens but at the time of the divorce, the
PETITIONER is already a citizen of a foreign country that
allows divorce.
Old rule; only foreign spouse can file for divorce. An absolute
divorce, to be recognized as valid in the PH, must be obtained by the
alien spouse. Divorce initiated by a Filipino is against public policy. If,
however, at the time of the divorce, the Filipino spouse has already
acquired the citizenship of his or her spouse, the former may initiate the
divorce and such divorce is valid under the Philippine laws in accordance
with the nationality principle.
JO VALLES
ad majorem dei gloriam
• Therefore, as between a Filipino spouse and a foreign spouse,
and the Filipino spouse obtains a valid divorce abroad and
thereafter has sex with another man, the foreign spouse cannot
file a criminal action against the Filipino spouse. This is
because he has no legal standing in this case. As to him (a
foreign citizen), the divorce is considered valid and the PH
laws consider him a divorced man and not a spouse who can
file the case of adultery. Nevertheless, as to the Filipino spouse,
the divorce is not valid and she is still deemed married under
PH laws.
Manalo rule; either contracting party may file for divorce.
Paragraph 2 of Article 26 speaks of a divorce x x x validly obtained
abroad by the alien spouse capacitating him or her to remarry. Based on
a clear and plain reading of the provision, it only requires that there be
a divorce validly obtained abroad. 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. It does not distinguish whether
the Filipino spouse is the petitioner or the respondent in the foreign
divorce proceeding. The Court is bound by the words of the statute;
neither can We put words in the mouth of lawmakers. Verba legis non
est recedendum, or from the words if a statute there should be
departure. Repuvlic vs Manalo
• Rationale. To reiterate, the purpose of Paragraph 2 of Article
26 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.
• Court’s response to the argument that the nationality rule
does not recognize divorce obtained by Filipinos abroad.
Conveniently invoking the nationality principle is erroneous.
Such principle, found under Article 15 of the City Code, is not
an absolute and unbending rule. In fact, the mere existence of
Paragraph 2 of Article 26 is a testament that the State may
provide for an exception thereto. Moreover, blind adherence
to the nationality principle must be disallowed if it would cause
unjust discrimination and oppression to certain classes of
individuals whose rights are equally protected by law. The
courts have the duty to enforce the laws of divorce as written
by the Legislature only if they are constitutional.
Reckoning point of citizenship is the time of obtaining the divorce
decree. Article 26 applies to the situation where both spouses were
Filipinos at the time of marriage but later the other became a naturalized
Honor and Excellence. Honor before Excellence.
PERSONS
foreigner who obtained a divorce decree in such foreign country. The
reckoning point is not the citizenship of the parties at the time of the
celebration of marriage, but their citizenship at the time valid divorced
obtained abroad by the alien spouse capacitating the latter to remarry.
Republic vs Orbecido III
But divorce law of foreign country must be proved. The burden of
proof lies with the party who alleges the existence of a fact or thing
necessary in the prosecution or defense of an action. It is well-settled in
our jurisdiction that our courts cannot take judicial notice of foreign
laws. Like any other facts, they must alleged and proved. The power of
judicial notice must be exercise d with caution, and every reasonable
doubt upon the subject should be resolved in the negative. RP vs Manalo
CHAPTER 2: MARRIAGES EXEMPT FROM
LICENSE
Summary; marriages exempt from marriage license:
1. Either or both are at the point of death
a. between passengers or crew members may also be
solemnized by a ship captain or by an airplane pilot
b. military commander of a unit, who is a commissioned
officer, between persons within the zone of military
operation, whether members of the armed forces or
civilians
2. No means of transportation to appear before LCR
3. Muslims or among members of the ethnic cultural
communities in accordance with customs, rites or practices.
4. Man and a woman who have lived together as husband and
wife for at least 5 years without any legal impediment to marry
each other.
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)
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
26
Family Code: title 1 ad majorem dei gloriam PERSONS
1. that the marriage was performed in articulo mortis or that the 1. In articulo mortis 1. The contracting parties shall state the aforementioned facts in
residence of either party, specifying the barrio or barangay, is so located 2. Commissioned officer (2nd Lt., ensign and above) an affidavit before any person authorized by law to administer
that there is no means of transportation to enable such party to appear 3. Members of the armed forces or civilians oaths
personally before the local civil registrar and 4. Commander of a unit (at least a battalion) 2. The solemnizing officer shall also state under oath that he
2. that the officer took the necessary steps to ascertain the ages and 5. Within the zone of military operation ascertained the qualifications of the contracting parties and
relationship of the contracting parties and the absence of legal 6. During such military operation found no legal impediment to the marriage.
impediment to the marriage. (72a) 3. In case it is shown that the parties did not cohabit for 5 years
Article 33. Marriages among Muslims or among members of the ethnic or more, the marriage shall be null and void. De Castro vs
Article 30. The original of the affidavit required in the last preceding cultural communities may be performed validly without the necessity of Assidao-De CAstro
article, together with the legible copy of the marriage contract, shall be marriage license, provided they are solemnized in accordance with their
sent by the person solemnizing the marriage to the local civil registrar of customs, rites or practices. (78a)
the municipality where it was performed within the period of thirty days CHAPTER 3: VOID AND VOIDABLE
after the performance of the marriage. (75a) Except for Muslims who are governed by the Code of Muslim Personal
Laws (signed Feb 4, 1977), the various ethnic groups must comply with
MARRIAGES
Duties of the solemnizer officer. In solemnizing marriages exempt the essential and formal requisites. The solemnizing officer must also be
Putative marriage. A matrimonial union which has been solemnized
from marriage license, the solemnizing officer must: authorized
in due form and in good faith on the part of one or both contracting
1. Prepare the affidavit saying parties but which, by reason of some legal infirmity, is either void or
a. Performed in articulo mortis/no transportation There is also RA 6766 or The Organic Act for the Cordillera
voidable. The essential basis of such marriage is the belief that it is valid.
b. Ascertained age, relationship, and absence of legal Autonomous Region (CAR), which governs the marriages of tribal
Estate of Foz
impediment groups or cultural community that are involved.
2. Send original of the affidavit + copy of the marriage contract Void vs voidable marriages
to the LCR 30 days after performance of marriage All other groups are governed by the Family Code. This is because
Suntay vs Cojuangco-Suntay
they do not have a separate law like Code of Muslim Personal Laws or
VOID VOIDABLE
Directory requirements of solemnizer. The procedure laid down in the Organic Act for the CAR.
A void marriage is not valid A voidable marriage is valid
Articles 29 and 30 of the FC relative to the duties of the solemnizing
from its inception. from the start, and it subsists
officer with respect to the affidavit he or she has to execute is merely Article 34. No license shall be necessary for the marriage of a man and
until it is terminated through
directory in character. Non-observance of the requirements will not a woman who have lived together as husband and wife for at least five
court action.
render the marriage void or annullable. Loria vs Felix years and without any legal impediment to marry each other. The
The action to declare a marriage The action for a voidable
contracting parties shall state the foregoing facts in an affidavit before
void is called DECLARATION marriage is ANNULLMENT.
Article 31. A marriage in articulo mortis between passengers or crew any person authorized by law to administer oaths. The solemnizing
OF NULLITY. When granted,
members may also be solemnized by a ship captain or by an airplane officer shall also state under oath that he ascertained the qualifications
is as if no marriage took place.
pilot not only while the ship is at sea or the plane is in flight, but also of the contracting parties are found no legal impediment to the marriage.
There is no marriage to speak of.
during stopovers at ports of call. (74a) (76a)
It is merely a declaration of a
status that already exists from the
Ship pilot and chief captains: Requisites: beginning.
1. In articulo mortis 1. They must live as such for 5 years characterized by exclusivity This is not susceptible of This is susceptible of ratification,
2. Only among passengers or crew members and continuity that is unbroken. Republic vs Dayot ratification; estoppel not as when the parties cohabit as
3. When the ship is at sea or the plane is in flight 2. No legal impediment AT TIME OF MARRIAGE applicable husband and wife
4. During stopovers at ports of call This is not subject to The action for annulment
Reference point of absence of legal impediment is at the time of
prescription. Hence, the action prescribes. Hence, this can be
Article 32. A military commander of a unit, who is a commissioned marriage. As long as there is no legal impediment at the tie of the
may be brought even after the assailed only during the lifetime
officer, shall likewise have authority to solemnize marriages in articulo marriage ceremony, the parties can avail of the exception. Manzano vs
death of either contracting of the parties
mortis between persons within the zone of military operation, whether Sanchez
parties.
members of the armed forces or civilians. (74a) This can be attacked collaterally This cannot be attacked
Notes:
collaterally; only through a direct
Military commander proceeding
JO VALLES Honor and Excellence. Honor before Excellence. 27
Family Code: title 1
Can be attacked after death of Assailed only during the lifetime
either party of parties
Any proper interested party Only the parties to a voidable
may attack a void marriage marriage may bring an action
Void marriage. A marriage that is not valid from its inception. Only
marriage declared by legislature should be treated as such; there can be
no other void marriages outside of those provided by the law.
Good faith and bad faith in void marriages
General Rule: In void marriages, the good faith or bad faith of the
parties is immaterial. Once any of the grounds are present, an action for
the declaration of nullity may be filed. The DOCTRINE OF
UNCLEAN HANDS is inapplicable.
Exception: In the 2 proceeding cases, the good faith of even just one
of the contracting parties is sufficient to make the marriage valid.
1. Art 35(2)- Even when the solemnizing officer had no authority
to solemnize a marriage but the contracting parties believed in
good faith that he had the authority to do so, the marriage is
valid.
2. Art 41- when the other spouse disappears for 2 years or 4 years,
the present spouse may subsequently contract a valid marriage
if such spouse:
a. Had a well-founded belief that the other spouse is dead
b. Procures a judicial declaration of presumptive death
c. At the time of the subsequent marriage, such spouse and
the subsequent spouse are in good faith.
Bad faith affecting property disposition. Property regime in void
marriages: co-ownership under Article 147 or 148.
• Exception. But subsequent marriages under Article 40 are
governed by ACP/CPG. See Article 50 in relation to Article 43
(2); See also Valdes vs RTC
Article 147 or 148. During the disposition of properties at liquidation,
when one of the contracting parties is in bad faith, the share of such
party will be forfeited in favor of:
a. The common children
b. In case of waiver or default by (a) and their descendants, each
share shall belong to the respective surviving descendants
c. In the absence of descendants, the share shall belong to the
surviving party.
This forfeiture shall take place upon termination of the cohabitation.
JO VALLES
ad majorem dei gloriam
Collateral attack
General rule: Void marriages may be attacked collaterally, that is, its
nullity can be asserted even if it is not the main principal issue of a case.
No previous judicial declaration of nullity is required so that the party
may enjoy the benefits provided by the law.
Exception: In the following cases, a direct attack on the nullity must
first be undertaken so that the proper effects provided by law may apply:
1. Art 40- before a person may validly re-marry such person must
first seek a judicial declaration of nullity of the prior marriage.
2. For purposes other than remarriage, no judicial declaration of
nullity is required, but this is without prejudice to any issue that
may arise during the proceedings. Hence, when the need arises,
a final judgment on the declaration of nullity is necessary even
if the purpose is other than to remarry. Ninal vs Badayog
3. If the donor desires to revoke a donation propter nuptias
(donation in consideration of marriage), the judicial declaration
of nullity of marriage is important to give such donor a cause
of action. See Article 50 in relation to Article 43(3) and 86(1)
Summary of void marriages:
1. Article 35
2. Article 36- psychological incapacity
3. Article 37- incestuous marriages
4. Article 38- against public policy
5. Article 40- 2nd marriage w/o JDOM
6. Article 41- 2nd marriage w/o JDOPD
7. Article 44
8. Article 53- 2nd marriage w/o recording, settling, legitime
A petition may contain multiple grounds for the nullity of the
marriage; but one cause of action only. That is, the grounds for a
void marriage may co-exist in once case. Nevertheless, there is only one
cause of action: the nullity of the marriage. Hence, when petitioner filed
one action for psychological incapacity (denied) and another for lack of
marriage license, the SC said that different grounds did not mean
different causes of action. Dismissed. Mallion v Alcantara
But the ruling above is contrary to the notion that void marriages
cannot be ratified. Sta. Maria (2015), p. 209.
• Jo: I think the above ruling should be accepted only insofar as
it says that a petition for declaration of nullity can have multiple
grounds.
Article 35. The following marriages shall be void from the beginning:
Honor and Excellence. Honor before Excellence.
PERSONS
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 by 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;
6. Those subsequent marriages that are void under Article 53.
(1) Those contracted by any party below eighteen years of age even
with the consent of parents or guardians
• This is void because it lacks the essential requisite of legal
capacity.
• The subsequent consent of the parents will not make the
marriage valid because void marriages are not susceptible of
ratification.
(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;
• The solemnizing officer must be any of those enumerated in
Art 7 of the Family Code, or a mayor as authorized by the
Local Government Code effective January 1, 1992. Otherwise,
it is void.
o If the parties go to a person not enumerated under
the law as having the authority to solemnize a
marriage, the marriage shall be void. There is
ignorance of the law, and ignorance of the law
excuses no one from compliance therewith. Good
faith may not be invoked
o On the other hand, if the parties go to any person
who has authority to solemnize a marriage under the
law, but in fact such person does not have the
authority, there is only mistake of fact and good
faith applies.
• The good faith referred to in this paragraph is the good faith
of the parties as regards the authority of the solemnizing
officer, and not in any other requisite.
• There must be a declaration by the law regarding its validity.
Otherwise, it will be considered a putative marriage.
28
Family Code: title 1
• Good faith is presumed until the contrary is shown. In relation
to marriage, good faith means an honest and reasonable belief
that the marriage was valid at inception, and that no legal
impediment exists to impair validity.
(3) Those solemnized without license, except those covered by the
preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under
Article 41;
• Bigamy is committed when a person contracts a second
marriage before the first marriage has been legally dissolved
• Polygamy is committed when a person marries another while
knowing that he/she has two or more spouses.
(5) Those contracted through mistake of one contracting party as
to the identity of the other;
• What is contemplated by the law is mistake pertaining to the
actual physical identity of the other contracting party because
there is complete absence of consent.
• It does not contemplate mistake in the name, character, or
other attributes.
• Hence, mistake of identity may not be a ground for the
declaration of nullity when the husband believed that he was
marrying a virtuous woman who was in fact scandalous or
immoral.
(6) Those subsequent marriages that are void under Article 53.
For persons whose prior marriage has been declared null and void to be
able to validly marry again, they must undertake:
1. Liquidation, partition, and distribution of properties
2. In proper cases, delivery of the children’s presumptive
legitimes
3. These requirements shall be recorded in the appropriate civil
registry and the registries of property.
Otherwise, the subsequent marriage is void.
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)
Requisites:
1. Psychological incapacity to perform essential marital
obligations
JO VALLES
ad majorem dei gloriam
2. It exists at the time of marriage
3. It may become manifest after the celebration
Elements: To be void under Article 36, the following must concur:
1. Gravity
2. Juridical antecedence
3. Incurability
Psychological incapacity. Psychological incapacity was intentionally
left undefined under the law because the situations contemplated by the
law differ from one case to another. The determination is left solely with
the courts on a case-to-case basis.
What incapacity refers to. The incapacity refers to the incapacity to
comply with the essential marital obligations. This is different from
insanity or imbecility.
• Mental disposition. The mental disposition of one or both
contracting parties must such as to seriously and effectively
prevent them from having a functional and normal marital life,
clearly conducive to bringing up a healthy personal inter-
marital relationship within the family which is necessary for its
growth. Perez-Ferraris vs Ferraris
• Senseless and constant refusal to perform. This involves
senseless, protracted, and constant refusal to comply with the
essential marital obligation despite the fact that such person is
physically able to perform. Chi Ming Tsoi vs CA. But it cannot
be mere refusal or neglect to comply with the obligations.
Republic vss Cabantug-Baguio
o A workaholic who spends the whole day working and
not minding his or her family. Tongol vs Tongol
o Failure or refusal to comply with the rights, duties,
and liabilities of parents relative to their parental
authority over their children. Toring vs Toring
o Unreasonable attachment to the family (parent and
siblings) or barkada in such a way that the importance
given to the children or spouse is made subordinate
• Incapacity is limited to the performance of essential
marital obligations. Hence, while a person may be truly very
efficient and mentally capable in undertaking a particular
profession in life, he or she can still be considered as a
completely irresponsible person vis-à-vis the married life.
Tongol vs Tongol
• The following do not prove psychological incapacity:
o Separation or abandonment alone. RP vs Quintero
o Sexual infidelity alone. Ligeralde vs Patalinghug
Honor and Excellence. Honor before Excellence.
PERSONS
o Mere incompatibility or irreconcilable differences.
Aspillaga vs Aspillaga
• It should be noted that bearing of children and cohabitation
should not be a sign that psychological incapacity has been
cured.
Insanity and psychological incapacity. Insanity may be considered a
form of psychological incapacity. But why is the former only a ground
for annulment and the latter a ground for nullity? Psychological
incapacity does not refer to mental faculties and has nothing to do
with consent; it refers to obligations attendant to marriage.
According to Justice Caguioa, in insanity, there is a defect in mental
faculties and gives an appearance of consent when in fact there was a
defect in the same (vitiated consent), which is why it is a ground for
annulment. Psychological incapacity, on the other hand, does not refer
to consent but to the very essence of marital obligations. While it may
be argued that in psychological capacity consent is also affected, it is
principally not a vitiation of consent. There is still valid consent.
Moreover, the former is curable and there are lucid intervals but the
latter is incurable.
Old rule; psychological illness. Psychological incapacity must be
attributed to a psychological illness and not merely physical illness. ier vs
Bier
• Old rule; psychological incapacity is a personality
disorder. The intendment of the law has been to confine the
meaning of psychological incapacity to the most serious cases
of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the
marriage. This psychological condition must exist at the time
the marriage is celebrated. Santos vs CA
Expert testimony. The Court may or may not accept such testimony
because the judgment must be based on the totality of evidence. Paras vs
Paras. Nevertheless, such testimony, if credible and consistent with the
totality of evidence, must be given great weight.
• Personal examination is not required. The personal medical
or psychological examination of respondent is not a
requirement for a declaration of psychological incapacity.
Republic vs Tayag
Guidelines in invoking and proving psychological incapacity
under art 36. The following are the jurisprudential guidelines developed
throughout the years. For the longest time, the Court adhered to the
Molina guidelines until they were modified in Tan-Andal
29
Family Code: title 1
Republic vs CA & Molina
(1997)
(1) The burden of proof to show
the nullity of the marriage
belongs to the plaintiff.
(2) The root cause of the
psychological incapacity must be:
a. Medically or clinically
identified
b. Alleged in the
complaint
c. Proved sufficiently by
experts
d. Clearly explained in the
decision
The root cause must be
identified as a psychological
illness and its incapacitating
nature explained.
(3) Incapacity must be proven to
have existed at the time of the
celebration of the marriage
(4) Such incapacity must be
medically or clinically permanent
or incurable (But it may be
relative to the other spouse only
and not against everyone)
(5) It must be grave enough to
bring about the disability of the
party to assume essential
obligations of marriage
JO VALLES
Tan vs Tan-Andal (2021)
Burden of proof belongs to
plaintiff.
New: Standard is now clear and
convincing evidence.
Second guideline is now
abandoned.
Psychological incapacity is not a
personality disorder nor is it a
mental incapacity. Incapacity is
limited to psychic causes.
There must be proof that
enduring aspects of a person’s
personality (personality
structure) which manifests itself
through clear acts of
dysfunctionality. This need not
be given by an expert.
Juridical antecedence retained.
Incurability is now in a legal
(not medical) sense. This
means that the incapacity is so
enduring and persistent with
respect to a specific partner.
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
Modified. It must be shown that
the incapacity is caused by a
genuinely serious psychic cause.
ad majorem dei gloriam PERSONS
The gravity need not be an • Such unions often result to deficient and degenerate
illness, but mild characterological offsprings, which, if occurring to any great extent, would
peculiarities, mood changes, and amount to serious deterioration of the race. Gould vs Gould
occasional emotional outbursts
are included. Article 38. The following marriages shall be void from the beginning
(6) The essential marital Retained. for reasons of public policy:
obligations must be those 1. Between collateral blood relatives whether legitimate or illegitimate,
embraced by Articles 68-71 as up to the fourth civil degree;
regards husband and wife; and 2. Between step-parents and step-children;
Articles 220, 221, and 225 as 3. Between parents-in-law and children-in-law;
regards parents and children 4. Between the adopting parent and the adopted child;
5. Between the surviving spouse of the adopting parent and the adopted
(7) Interpretations of National Retained. child;
Appellate Matrimonial Tribunal 6. Between the surviving spouse of the adopted child and the adopter;
of the Catholic Church in the Note: Canonical decisions are 7. Between an adopted child and a legitimate child of the adopter;
Philippines must be given great merely persuasive and not 8. Between adopted children of the same adopter; and
respect by the courts. binding on secular courts. 9. Between parties where one, with the intention to marry the other,
(8) The trial court must order the killed that other person's spouse, or his or her own spouse.
prosecuting attorney or fiscal and
the solicitor general to appear as #1. Collateral relatives. Aunts uncles, niece, nephews, and first cousins
counsel of the state. are covered in the prohibition.
• DEAN MEL’S OPINION: But 38(1) does not include
half-blood relatives. Marriage between uncle and niece by the
In dissolving the marital bonds on account of psychological incapacity, the Court is half blood is not incestuous or void.
not demolishing the foundation of the family. It is actually protecting the sanctity of • Example: After your mom died, your dad married again.
marriage y by refusing to allow a person afflicted with psychological disorder from Tapos nagkaanak sila ng second wife niya. Yung relationship
remaining in that sacred bond. ship mo with the child is legitimate, but you are merely half-
blood siblings kay magkapatid kayo sa Tatay lang.
No moral and exemplary damages under Article 36. In cases o Note: But while this marriage between the siblings is
involving psychological incapacity, the SC disallows the award of moral, not void under 38(1), it is incestuous under 37(2).
exemplary, and attorney’s fees because the very nature of psychological
• Note: Legitimacy/illegitimacy is different from full/half-
incapacity, which is one’s non-cognizance of one’s essential marital
blood. Relationship can be half-blood and legitimate at the
obligation at the time of marriage ceremony, negates bad faith.
same time.
Buenaventura vs CA
#2 and #3. Relationship by affinity. Affinity is a relation that arises
Article 37. Marriages between the following are incestuous and void from marriage through which spouses become related to the consanguinei
from the beginning, whether relationship between the parties be of the other party to the marriage, but these respective consanguinae do
legitimate or illegitimate not become related by affinity to each other.
(1) Between ascendants and descendants of any degree Only the following marriages by affinity are void:
(2) Between brothers and sisters, whether of the full or half blood. 1. Step-parents and step-children
2. Parents-in-law and children-in-law
Incestuous marriages have been universally condemned as grossly
• If the marriage that produces the affinity is subsequently
indecent, immoral, and inimical to the purity and happiness of the family annulled or declared void, the relationship by affinity is likewise
and welfare of future generations.
terminated.
• Incestuous unions create a special problem of social placement • Civil law 2 views: If the marriage is terminated by the death
(example: one’s mother may also be one’s sister) of either spouse, the relationship by affinity is terminated IF
Honor and Excellence. Honor before Excellence. 30
Family Code: title 1
there are no children. The other view is that the affinity
relationship survives regardless of WON there was an issue.
• However, in criminal law, regardless of the existence of
children, affinity relation subsists even after the death of the
spouse.
#4,5,6,7,8. Adoptive relationship. This is provided in 4,5,6,7 and 8
above.
1. The adopting parent cannot marry the following:
a. The adopted child
b. The surviving spouse of the adopted child
The term surviving spouse presupposes termination of
previous marriage through death. Hence, if marriage is
terminated due to nullity, this prohibition will not apply
2. The adopted child cannot marry the following:
a. The adopting parent
b. The surviving spouse of the adopting parent
c. The adopted/ legitimate child of the adopting parent
#9. Killing with intent to marry. Note that the guilty party must be
animated by an intention to marry another person. Otherwise, this
prohibition will not apply. (intention may be unilateral or not shared by
the other spouse)
• Prior conviction for killing is NOT required. In fact, mere
preponderance of evidence is required
• Example, if A killed his spouse because he caught her
having sex with another man in their bedroom and
thereafter married B, the subsequent marriage between A
and B is valid. A’s purpose of killing his previous spouse
was obviously not for remarrying.
Enumeration exclusive. The enumeration above is exclusive,
following the general rule that only those declared by law as void are
void. Hence, the following may marry:
1. Guardian and ward
2. Principal and agent
Article 39. The action or defense for the declaration of absolute nullity
of a marriage shall not prescribe.
No prescriptive period. The time within which to file an action of
nullity of a marriage or to invoke such nullity as a defense, whether in a
direct or collateral manner, does not prescribe.
But death terminates cause of action for declaration of nullity. The
old rule in Ninal vs Badayog that a petition may be filed even after the
JO VALLES
ad majorem dei gloriam
death of the contracting parties is now superseded by AM No. 02-11-
10:
• Section 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. (n)
• Section 24. Effect of death of a party; duty of the Family Court or
Appellate Court. - (a) In case a party dies at any stage of the
proceedings before the entry of judgment, the court shall order
the case closed and terminated, without prejudice to the
settlement of the estate in proper proceedings in the regular
courts.
(b) If the party dies after the entry of judgment of nullity or
annulment, the judgment shall be binding upon the parties and
their successors in interest in the settlement of the estate in the
regular courts.
No dissolution; just declaration of inexistence. The judicial decree
merely declares or confirms the voidness, non-existence, or incipient
invalidity of the marriage. The judicial decree technically does not
dissolve a marriage because such marriage is invalid from the beginning,
and therefore, being non-existent, it cannot be dissolved.
• EO 227 amended this by inserting the phrase "However, in case
of marriage celebrated before the effectivity of this Code and falling under
Article 36, such action or defense shall prescribe in ten years after this
Code shall take effect.
• However this has been deleted by Republic Act No. 8533
[Approved February 23, 1998]).
Who may file the petition; general rule: Only the spouses can file a
court case declaring the marriage void.
• Doctrine of unclean hands not applicable. Even the
wrongdoer-spouse may file a petition for the declaration of the
nullity of the marriage, without prejudice to the damages that
may be claimed by the injured spouse.
• Parents cannot file a case for nullity in relation to the marriage
of their children (starting March 15,2003)
• The heirs cannot file a case for the nullity of the marriage of
their parents with a step-parent. starting March 15,2003 in SC
Resolution)
Exception: A void marriage may be collaterally attacked by any
interested party in any proceeding where the determination of the
validity of the marriage is necessary to give rise to certain rights or to
negate certain rights.
Honor and Excellence. Honor before Excellence.
PERSONS
• For example, certain children can attack the validity of the
marriage of a deceased parent so that the children of such
parent can be considered illegitimate for purposes of
inheritance.
• Only the spouses in the subsisting first marriage can file a case
for the declaration of nullity of a subsequent bigamous
marriage. The other spouse in the subsequent marriage cannot
file the case since their marriage is void. Fujiki vs Marinay
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.
JDNOM required before remarrying. Even if the marriage is void ab
initio, the parties cannot validly contract into a subsequent marriage
without the judicial declaration of nullity of the previous void marriage.
• The party cannot assume or declare for himself that the
marriage is void.
• It is necessary that the nullity of the marriage should be
ascertained and declared by the decree of court of competent
jurisdiction for the good order of society and for the peace of
mind of all persons concerned.
• The status of the subsequent marriage depends upon the time
of the solemnization of the subsequent marriage.
Other requirements. Even if there is JDNOM, the 2nd marriage may
still be declared void if the following requisites under Article 52 are not
met:
1. Registration with the proper civil registry.
2. Liquidation, partition, and distribution of properties
3. Delivery of presumptive legitime
“Solely”. The word solely qualifies the phrase final judgment declaring the
previous marriage void
• Hence, it follows the remarriage is not the only purpose
for which such declaration must be obtained.
o Other purposes include an action for liquidation,
partition, distribution and separation of property
o Action for custody of children and delivery of their
presumptive legitimes
• What the law contemplates by adding the qualifying word solely
is that a person who wishes to enter into another marriage
contract may do so ONLY after the previous marriage has
been judicially declared to be void. The only acceptable proof
of the nullity of a previously contracted marriage for purposes
of remarriage is a judicial declaration of nullity. Domingo vs CA
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Family Code: title 1
• If this judicial declaration is not obtained, the first marriage
remains to be void, and the subsequent marriage is void as well.
o This is different from bigamy. The subsequent
marriage is void NOT BECAUSE OF BIGAMY, but
because of non-compliance with Art 40 of the Family
Code (and consequently Art 52 and 53).
o There is no bigamy when the first marriage is void.
• The decree of absolute nullity of marriage shall be issued only
after:
a. Registration of the approved partition and
distribution of properties of the spouses in the proper
Registry of Deeds
b. Delivery of presumptive legitime
Bigamy. Bigamy exists when the second marriage is contracted while
the first marriage is valid and subsisting. Bigamy may also exist when the
prior marriage is annullable. (Take note that annullable marriages are
valid until annulled)
• In bigamy, the existence of a prior void marriage may be raised
as a defense, with or without the judicial declaration of nullity.
Requisites: The following are the requisites for bigamy to exist:
1. The offender has been legally married
2. The marriage has not been legally dissolved or the spouse
cannot yet be presumed to be dead
3. The offender contracts a subsequent marriage
4. The subsequent marriage has all the essential requisites for
validity
For marriages contracted against provision of law: Prison correccional
in its medium and maximum periods is the penalty for entering into a
marriage contract when the requirements of the law have not been
complied with or the legal impediments are disregarded.
Void marriage is a defense in a bigamy charge even without
JDNOM. The parties are not required to obtain a judicial declaration of
absolute nullity of a void ab initio of a prior or subsequent marriage in
order to raise it as a defense in a bigamy case. Consequently, a judicial
declaration of abolute nullity of the 1st/2nd marriages obtained by the
accused in a separate proceeding, irrespective of the time within which
they are secured, is a valid defense in the criminal prosecution for
bigamy. Pulido vs People, G.R. No. 220149 (2021).
• Note: Take note of this rule. This overturned the doctrine that
JDNOM is required even in bigamy cases.
JO VALLES
ad majorem dei gloriam
Pulido full case. While B was married to W1 (prior to FC), he
contracted another marriage with W2 (FC already effective). W1, hurt
by the betrayal, sued B for bigamy. B’s defense was that there could have
been no bigamy because both marriages were void—the first one
because of lack of marriage license and the second one because of lack
of marriage ceremony. The 2nd marriage was also already declared void
before the bigamy Information was even filed RTC convicted him. CA
upheld the same. Meanwhile, the marriage between B and W1 was
declared void as well. Upon review on certiorari, the SC acquitted him.
It abandoned its earlier pronouncement that the JDNOM of the first
marriage is required before a prior void ab initio marriage can be
considered as a valid defense in bigamy. Now, the rule is that a void ab
initio marriage is a valid defense in a bigamy case even without a judicial
declaration of absolute nullity. A judicial declaration of nullity is
required, but only for purposes of remarriage. Pulido vs People, G.R.
No. 220149 (2021).
• Note: The SC categorically stated that the foregoing rule
applies to all marriages uder the CC and the FC.
Retroactive application of Article 40. When the prior marriage was
contracted prior to the effectivity of the FC while the subsequent
marriage was contracted during the effectivity of the FC, Article 40 can
retroactively apply but only insofar as it does not prejudice or impair
vested rights. A judicial declaration of nullity is required for prior
marriages contracted before the effectivity of the Family Code, but
only for purposes of remarriage. In other words, in order to remarry,
a judicial declaration of nullity is required for prior marriages contracted
before the effectivity of the Family Code. Without said declaration, the
2nd marriage is void even if the 1st marriage is also void. Pulido vs People,
G.R. No. 220149 (2021).
Is a subsequent declaration of the nullity of the first marriage a
defense against bigamy? YES. Here, the 1st marriage was voided only
after the 2nd marriage was already contracted. Nevertheless, the SC
abandoned its previous ruling and held that from the date of the
declaration of the 1st marriage as void ab initio retroactive to the date of
celebration of the 1st marriage, the accused was considered never
married under the eyes of the law. Consequently, the 1 st element of
bigamy is lacking. Acquitted. Pulido vs People, G.R. No. 220149 (2021).
Is a subsequent declaration of the nullity of the second marriage a
defense against bigamy? YES. Here, the 2nd marriage was voided
before the bigamy charge was filed. Nevertheless, the SC abandoned
its previous ruling and held that a judicial declaration of ullity is not
necessary to prove a void ab initio prior and subsequent marriages in a
bigamy case. Consequently, a judicial declaration of the 1 st and/or 2nd
Honor and Excellence. Honor before Excellence.
PERSONS
marriages presented by the accused in the prosecution for bigamy is a
valid defense, irrespective of the time within which they were secured.
Pulido vs People, G.R. No. 220149 (2021).
Summary of Pulido: The requirement in Article 40 is merely for
purposes of remarriage and does not affect the accused’s right to
collaterally attack the validity of a void ab initio marriage in a criminal
prosecution of bigamy. It did not amend the RPC.
Void marriage under Article 40 vs bigamous marriage
Article 40 Bigamous
Prior marriage is void Prior marriage is perfectly valid
or at least annullable
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)
Exception to the rule that a bigamous marriage is void. Generally,
any subsequent marriage celebrated during the subsistence of another
marriage is void and bigamous. An exception to this rule is a marriage
contracted under Article 41. But of course, this marriage is without
prejudice to the reappearance of the prior spouse.
Requisites for a valid bigamous marriage:
1. Prior spouse has been absent for the period required by law
2. Present spouse has a well-founded belief that the prior spouse is
already dead.
3. Present spouse obtains a judicial declaration of presumptive death
via summary proceeding in a court of competent jurisdiction.
#1: Period of absence. The general rule is that he has been absent for
a period of 4 consecutive years. But when there is danger of death
under the circumstances in Art 391 of the Civil Code , the period is
shortened to 2 years.
1. A person on board a vessel, which is lost during a sea voyage
32
Family Code: title 1
2. Spouse was on an airplane and plane went missing
3. The spouse is a member of the AFP who took part in the war.
4. A person has been in danger of death
#2: Well-founded belief of death of prior spouse. This must be a
result of proper and honest to goodness inquiries and efforts to ascertain
the whereabouts of the absent spouse and whether the absent spouse is
still alive or is already dead. Republic vs Court of Appeals and Alegro
• Determined by circumstances. Whether or not the spouse
present acted on a well-founded belief of death of the absent
spouse depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the
disappearance of the absent spouse and the nature and
extent of the inquiries made by present spouse. Republic vs
Tampus
• No well-founded belief. When it was shown that the spouse
seeking to obtain a judicial declaration of presumptive death
reported his wife’s disappearance to the local police and also
to the NBI only after the OSG had filed a motion to dismiss
the petition, the SC ruled that the search for the wife was a
mere afterthought and that the husband did not really intend
to find his allegedly absent wife. Republic vs CA and Alegro
• Example; no well-founded belief. When the wife sought the
judicial declaration of presumptive death of her husband from
whom she had not heard in over 0 years after the latter went
to Taiwan to seek employment, but failed to seek information
from the Taiwanese Consular Office or assistance from other
government agencies in Taiwan or the PH the SC ruled that
she did not initiate a diligent search to look for her absent
husband. Republic vs Granada
#3. Summary proceeding. As a consequence of the action being
summary in nature, the Family Code provides that the judgment of the
court finding that there has or has not been a well-founded belief that
the absent spouse is already dead, or the decision granting or denying
the petition for judicial declaration of presumptive death is immediately
final and executory. Article 247
When properties of the prior marriage were liquidated. The parties
may agree in the marriage settlements as to what type of property regime
will govern. In the absence of such agreement or when the parties come
up with a void agreement, the subsequent marriage shall be governed by
absolute community of property.
JO VALLES
ad majorem dei gloriam
When properties of the prior marriage were not liquidated. If the
previous marriage is valid, the subsequent marriage will be governed by
complete separation of property.
If the 2nd marriage is void, the subsequent marriage will be governed
by co-ownership.
Opening the succession of the absent spouse
• For purposes of opening his succession, he shall not be
presumed dead unless he missing for 10 years
• If he went missing at the age of 75 or higher, 5 years is
sufficient
• If risk of death is high when he went missing, 4 years
Penalty. A penalty of prision mayor shall be imposed upon a person
who shall contract a second or subsequent marriage before the former
marriage has been legally dissolved or before the absent spouse has been
declared presumptively dead by means of a judgment rendered in the
proper proceeding.
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.
Mere reappearance does not overcome the presumption of death;
recording of affidavit required. 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. SSS vs
Vda de Bailon
Requisites for the termination of the subsequent marriage under
Article 41:
1. The non-existence of a judgment annulling the previous
marriage or declaring it void ab initio;
2. Recording of the sworn statement of fact and circumstances of
reappearance in the civil registry of the residence of the parties
to the subsequent marriage;
Honor and Excellence. Honor before Excellence.
PERSONS
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. Santos vs Santos
Note: This is the only instance when the marriage may be terminated
extra-judicially.
Who may submit affidavit. This may be submitted at the instance of
the prior spouse or any interested party (parents, children, present
spouse or subsequent spouse)
Effects when the affidavit not executed. If the affidavit is not
executed nor filed, then there exist 2 valid marriages. If the marriage
with the prior spouse is valid, there exist 2 valid bigamous marriages.
However, under the law, the State shall continue to protect the second
marriage rather than the first. Nevertheless, the statutory requirement of
filing a sworn statement of reappearance is proof that the state is willing
to return the preference to the first marriage and consider it as the only
marriage allowable under the law. Sta. Maria (2015), p. 300.
• If the marriage with the prior spouse is not valid, the second
marriage cannot be considered bigamous. In this case, the
discussion in Art 40 will apply.
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)
33
Family Code: title 1 ad majorem dei gloriam PERSONS
#1: The children of the subsequent marriage conceived prior to its Article 45. A marriage may be annulled for any of the following causes, Insanity Sane spouse Before the death
termination shall be considered legitimate. The legitimate status of existing at the time of the marriage: who had no of the other party
the children shall be retained even if one of the contracting parties in the (1) That the party in whose behalf it is sought to have the marriage knowledge of
subsequent marriage acted in bad faith. The subsequent marriage is void annulled was eighteen years of age or over but below twenty-one, and insanity
only if BOTH parties acted in bad faith. the marriage was solemnized without the consent of the parents, (estopped if w/
guardian or person having substitute parental authority over the party, knowledge) Free cohabitation
#2: The absolute community of property or the conjugal in that order, unless after attaining the age of twenty-one, such party after insane
partnership, as the case may be, shall be dissolved and liquidated, freely cohabited with the other and both lived together as husband and Relative, Any time before spouse regains
but if either spouse contracted said marriage in bad faith, his or her share guardian, or the death of either sanity
wife;
of the net profits of the community property or conjugal partnership person having party
(2) That either party was of unsound mind, unless such party after legal charge of
property shall be forfeited in favor of: coming to reason, freely cohabited with the other as husband and wife; insane spouse
a. The common children (3) That the consent of either party was obtained by fraud, unless such
b. If there are none, the children of the guilty spouse by a party afterwards, with full knowledge of the facts constituting the fraud, Insane spouse During lucid
previous marriage freely cohabited with the other as husband and wife; interval or after
c. In default of children, the innocent spouse; (4) That the consent of either party was obtained by force, intimidation regaining sanity
or undue influence, unless the same having disappeared or ceased, such also before death
#3: Donations by reason of marriage shall remain valid. This is party thereafter freely cohabited with the other as husband and wife; of other party
because donation is essentially gratuitous. If the donee contracted the (5) That either party was physically incapable of consummating the
marriage in bad faith, such donations made to said donee are revoked marriage with the other, and such incapacity continues and appears to Fraud Within 5 years Free cohabitation
by operation of law. If the donor acted in bad faith, the donation shall after discovery of with full
be incurable; or
likewise be valid. Only the bad faith of the parties affects the validity of fraud knowledge of
(6) That either party was afflicted with a sexually-transmissible facts constituting
the donation. disease found to be serious and appears to be incurable. (85a) the fraud
Injured Party
#5. The spouse who contracted the subsequent marriage in bad Voidable marriage. This is valid until annulled. Vitiated Within 5 years Free cohabitation
faith shall be disqualified to inherit from the innocent spouse. The consent from time force, after the cause
law provides that there can be succession up to the 5 th civil degree. If Nature of annulment. This is an action in rem, meaning it is intimidations or (force,
there is a subsequent marriage and they are within the 5th degree and enforceable against the whole world. This is because it is concerned with undue influence intimidation,
there is bad faith, the guilty spouse cannot inherit from the innocent the status of the parties, and status binds the whole world. Jurisdiction disappeared or undue influence)
spouse, but the innocent spouse may inherit from the guilty spouse ceased disappeared or
depends on the nationality or domicile of the parties, and not the place ceased.
. of celebration of the marriage. Thus, where plaintiff is a Filipino
Article 44. If both spouses of the subsequent marriage acted in bad domiciled in the PH, the PH has jurisdiction to annul his marriage to a Intimidation can
faith, said marriage shall be void ab initio and all donations by reason Korean girl contracted by him in Korea. Rayray vs Chae Kyung Lee be on the person
of marriage and testamentary dispositions made by one in favor of or the property of
the other are revoked by operation of law. (n) Summary for voidable marriages the injured party
and his/her
GROUNDS WHO (Art. 47) PRESCRIPTIV RATIFICATIO immediate family
Both spouses must be in bad faith to void 2 nd marriage, For a (Art. 45) E (Art. 47) N
subsequent marriage (where the previous spouse disappears) to be (Art. 45) Incapability Within 5 years No ratification
considered void, BOTH contracting parties must have acted in bad faith.
to after the marriage since defect is
The marriage nevertheless remains valid if only one of them acted in bad No parental Underage party Within 5 years consummate ceremony permanent, but
faith. consent (18-21 years old) after turning 21 / STD right of action may
Free cohabitation prescribe
Must be in good faith until celebration. This good faith must be after reaching 21
present up to the time of the solemnization of the marriage, regardless Parent/guardian Before child
of the time when the judicial declaration of presumptive death was / substitute PA reaches 21 Public policy; strict in dissolving marriage. The fundamental policy
issued. of the state, which regards marriage as indissoluble and sacred, being the
foundation upon which society rests, is to be cautious and strict in
granting annulment of marriage. This is for public policy consideration,
JO VALLES Honor and Excellence. Honor before Excellence. 34
Family Code: title 1
because the preservation of the marriage relation is deemed essential for
public welfare.
Relief. But when the object of marriage is defeated by rendering the
continuance intolerable to one of the parties and productive of no
possible good to the community, relief in some way should be
obtainable. This relief is annulment or declaration of nullity.
Grounds for annulment. The grounds are exclusive. Any other
grounds not expressly provided for by law cannot not be invoked for
the annulment of the marriage
#1: 18 and above but below 21. Although people of ages 18-21 are
legally capacitated to enter into a contract of marriage, the law sees them
as not possessing the degree of maturity to be able to comprehend
thoroughly the consequences and serious responsibilities of marital
relations, hence, parental consent is necessary.
#2: Unsound mind. There must be such derangement of the mind to
prevent the party from comprehending the nature of the contract and
from giving to it his free and intelligent consent. Mental incapacity must
relate specifically to the contract of marriage.
• Mental incapacity must relate to the inability to
understand the duties of marriage. Here, the action for
annulment was dismissed because the plaintiff failed to prove
clearly that she was, at the time of marriage, incapable of
understanding the nature of the act, that she had insufficient
mental incapacity to enter into the status and understand the
nature, effect, duties and obligations of the marriage contract,
and that she was mentally incapable of giving an intelligent,
understanding consent xxx Larson vs Larson
• Unsound mind vs psychological incapacity. Take note that
an unsound mind has something to do with the ability of an
individual to posit consent, as opposed to psychological
incapacity, which has something to do with the ability of an
individual to posit the object of the consent.
• Mental disease must affect understanding. Mental disease
that does not render the afflicted party incapable of
understanding or assenting to the marriage contract cannot be
used as basis for attacking the validity of the marriage.
• Generally, burden of proof rests on one who alleges
insanity unless prior insanity is proved. The burden of
proof of insanity rests upon him who alleges insanity. The
burden of is shifted to him who asserts that the act was done
while the person was sane if a previous state of insanity is
proved.
JO VALLES
ad majorem dei gloriam
• Sane spouse seeking annulment must have no knowledge
of insanity. If the sane spouse new that his or her spouse has
been insane previous to the marriage, such sane spouse cannot
file the suit for annulment as he or she is already estopped.
#3: Fraud. Fraud is the non-disclosure or concealment of cerain
circumstances which materially affect the essence of marriage. See
discussion in next provision.
#4: Force, intimidation, undue influence.
• Intimidation. There is intimidation when one of the parties is
induced by a reasonable and well-grounded fear of imminent
and grave evil upon his person or property or upon the person
or property of his spouse, ascendants, or descendants to give
his consent. For intimidation to be ground, it must arise from
an unlawful act, and not from an exercise of a right (such as
threatening to sue a criminal)
• Undue influence. There is undue influence when one takes
advantage of a position or power over another person to
induce the latter to give consent.
• The vices of consent must be proven with preponderance
of evidence.
• When consent is obtained by violence, intimidation or fraud,
such person obtaining the consent shall be punished by prision
correccional in its maximum term.
#5: Continuous and incurable physical incapacity of
consummating the marriage. This is the permanent inability on the
part of one of the spouses to perform the complete act of sexual
intercourse. This highlights all types of causes of non-consummation
such as psychological or physical. It may be due to:
1. a structural defect in the anatomy of one of the parties
2. due to chronic illness and inhibitions or fears arising in whole
or in part from psychophysical conditions.
3. It may also be caused by psychogenic causes, where such
mental block or disturbance has the result of making the
partner incapable of performing the marriage act. Alcazar vs
Alcazar
4. But if a husband can attain erection but is psychologically
inhibited in having sex, this will not fall under #5.
• Applicable to both spouses. This may be on the part of
either the man or the woman, which is why the word impotency
was removed, because it is only applicable to men.
• Not mere refusal. Note that what is required is physical
incapability and not mere refusal.
Honor and Excellence. Honor before Excellence.
PERSONS
• The incapacity must be continuous and incurable. When
the firmness or rigidity of the woman’s vagina cannot be
opened by natural means but can be opened through surgery,
it cannot be a valid ground for annulment because it is curable.
Devanbagh vs Devanbagh
• Must exist at the time of marriage. This ground may be
invoked even if the other party was aware prior to the marriage
ceremony. This is because the ground is not defective consent,
but incurability.
• Incapacity need not be universal. When impotence is
psychological in origin, the condition may exist only as to the
present spouse and not as to others. Vanden Berg vs Vanden Berg
• Sterility is not a ground for annulment. Sterility is not
impotency and a person, though sterile, is still capable of
engaging in sexual relations. Menciano vs San Jose
o Sterility is infertility
o Impotency is erectile dysfunction
• Burden of proof. The burden of proof falls upon the person
who alleges incapacity.
• Exception; rule of triennial cohabitation. If the wife
remains a virgin for at least 3 years from the time the spouses
started cohabiting, the husband must show that he was not
impotent during the said period and the burden of overcoming
the presumption of impotence.
#6: Serious and incurable STD. This ground may be invoked even if
the other party was aware prior to the marriage ceremony.
• If std concealed at the time of marriage ceremony, the
marriage is annullable on the grounds of fraud
• If it is not concealed, the marriage is still annullable if it is
serious and incurable.
• Can be availed of even if the disease was known by the injured
party prior to the marriage. This is because the ground is not
based on defective consent but the incurability of the disease.
Ratification of a voidable marriage. Ratification is the curing of the
defects in a contract. In voidable marriages, ratification is manifested by
the free cohabitation of the injured party with the guilty party in the
proper situations provided by law.
Where cohabitation is not ratification. Cohabitation does not ratify a
marriage otherwise void in the following instances:
1. Incurable physical incapacity to consummate the marriage
existing at the time of marriage
2. Affliction of either party with an incurable STD existing at the
time of marriage
35
Family Code: title 1
Hence, despite cohabitation, the spouses may file an action for
annulment. However, if the action is not filed within 5 years after the
marriage ceremony, they are barred forever from annulling the marriage.
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.
#1: Non-disclosure of a previous conviction by final judgment of
a crime involving moral turpitude. Although final judgment is
necessary, it is not necessary for the other party to have conducted an
investigation in order to determine whether the latter has a criminal
record. Failure to investigate will not bar a case for annulment.
Generally, crimes punishable under the RPC are crimes involving moral
• Moral turpitude. Moral turpitude includes everything that is
contrary to justice, honesty, or good morals.
#2: Concealment of pregnancy by another man. The law pertains
only to the wife because the husband would be misled in devoting all his
attention and care on somebody else’s child. Maternity is always certain.
Deliberations of the Family Code
• The concealment must be done in bad faith. If there is no
bad faith, then this cannot be a ground for annulment.
• Pregnancy must not be apparent. Even if the woman did
not inform the man that she was pregnant, but her physical
condition was readily apparent to the man, the latter cannot
claim lack of knowledge. Annulment will not prosper. Buccat vs
Buccat
• There must be concealment. If a woman misrepresented to
her fiancé that she was pregnant to induce him to marry her,
there is no concealment of pregnancy and therefore the
marriage cannot be annulled on this ground because there was no
pregnancy to conceal.
• Never applicable to the husband. This does not pertain to
the husband because the concealment by the husband of a
JO VALLES
ad majorem dei gloriam
child in a prior relationship is speculative and is difficult to
prove. Paternity may be disputed. WTF. Sexist much????
#3: Concealment of STD. Nature or gravity is irrelevant.
#4: Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the marriage.
Since we are talking about concealment, bad faith is an essential element.
Alcoholism. These terms are not susceptible to an exact meaning, but
they nevertheless have been defined as the persistent habit of becoming
intoxicated, and that the nature and extent of the drunkenness must be
such that the person may be said to have a fixed and irresistible habit of
drunkenness, whereby he lost the power or will to control his appetite
for intoxicating liquor. Lewis vs Lewis
• It is not necessary that the spouse is drinking all the time
or that he has more drunk than sober hours. It is enough
that he has the habit so firmly fixed upon him that he becomes
drunk periodically, or that he is unable to resist when the
temptation is presented. Page vs Page
• Rationale. It renders a person unfit for the duties of marital
relation and disqualifies him from properly rearing and caring
for the children born of the marriage.
What is prohibited by law is not homosexuality or lesbianism per
se, but the concealment thereof. Hence, when the other spouse finds
out about this, the defect in the marriage may be cured by ratification in
the form of cohabitation.
The law should not have lumped these 4 together. The first 2 deal
with mental state that is detrimental to one’s social and personal well-
being as well as to the society as a while. The latter deal with sexual
orientation and do not deal with one’s mental state.
Exclusive grounds. 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.
• Non-disclosure of husband’s pre-marital relationship with
another woman not allowed as ground. Anaya vs Palaroan
STD as ground for annulment STD as kind of fraud
Does not have to be concealed Concealed
Must be serious and must appear Need not be serious and need
to be incurable not appear incurable
Honor and Excellence. Honor before Excellence.
PERSONS
STD itself is a ground for It is the concealment which
annulment constitutes the ground for
annulment
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
See tabular summary in Article 45.
#1. Guardian has standing only before child reaches 21. It is not
enough for a parent to allege a cause of action in favor of someone; he
or she must show that it exists in favor of himself or herself. Siman vs
Leus
#4. If the consent of one party was vitiated and such injured party
thereafter becomes insane, his/her parents/guardians may not institute
a case in his or her behalf.
Note that letters (a) to (d) are subject to ratification. Hence, even if
the action for annulment was filed prior to the expiration of the
prescriptive period, but it is shown that during the 5-year period such
person freely cohabited with the other as husband and wife, there can
be no annulment anymore.
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.
36
Family Code: title 1
In the cases referred to in the preceding paragraph, no judgment shall
be based upon a stipulation of facts or confession of judgment. (88a)
Procedure in annulment and in declaration of nullity cases: AM
No. 00-11-01-SC
1. File the complaint with the proper RTC
2. The defendant shall be given 15 days from receipt of summons
and a copy of the complaint within which to file an answer.
3. If the defendant fails to answer, he cannot be declared in
default. The court will order a full-blown hearing of the case
o If however, the court erroneously renders a default
judgment, this would not prevent the decree from
having legal effect. An erroneous judgment is not a void
judgment. De Ls Cruz vs Ejercity
o If the party fails to answer, the court shall order the
prosecuting attorney to investigate regarding
collusion or fabrication of evidence.
4. If the defendant answers, the issues of the case are considered
joined and the Court shall order the hearing of the case.
5. The decision becomes final after 15 days, unless it is appealed.
6. After its finality, the Entry of Judgment shall be issued.
7. The decree of annulment or nullity shall be issued.
8. But only after registration of (6) in the proper LCR
Full-blown hearing always. In all cases, a full-blown hearing must be
undertaken and the parties must prove their grounds by preponderance
of evidence. No summary proceedings are allowed.
Fiscal’s duty. During the hearing, the fiscal shall appear on behalf of
the state to ensure that:
1. There is no collusion between the parties
2. The evidence is not fabricated or suppressed
3. Expose an invalid marriage
Role of the SolGen. The solicitor general appears as counsel for the
state in the capacity of a defensor vinculi or defender of the marital bond.
The Solicitor General may participate even if there was no express
mention in the law because the case is vested with public interest.
Republic vs Iyoy
Dismissal; non-appearance of plaintiff. If the petitioner, upon being
subpoenaed by the Fiscal, does not appear claiming that she does not
want to reveal her evidence prematurely to the fiscal, the annulment case
may be dismissed by the Court upon motion of the fiscal. Tolentino vs
Villanueva
JO VALLES
ad majorem dei gloriam
No suspension of the case can be made for the purpose of
discussing the validity of the marriage. No valid compromise is
legally possible on the issue of the validity of the marriage. Mendoza v CA
• Exception; partial voluntary separation of property.
However, the partial voluntary separation of property agreed
upon by the parties via compromise agreement duly approved
by the court prior to the judicial declaration of nullity of
marriage is valid. Maquilan vs Maquilan
Examples when participation of solgen/fiscal is not needed:
1. In case of voluntary separation of the properties of the spouses
before declaration of nullity if marriage. Maquilan vs Maquilan
2. No-holds-barred contest. When it is clearly shown that there
is no collusion or that evidence is not fabricated, as when the
case was characterized by no-holds-barred contest and strongly
opposed and heatedly contested by counsel who filed several
proceedings and actively participated in the case. Tuason vs CA
Collusion. Collusion occurs when, for purposes of getting an
annulment or declaration of nullity:
a. The parties come up with an agreement making it appear that
the marriage is defective due to existence of any grounds (and
such grounds do not exist)
b. The parties agree to represent such false or non-existent cause
of action before the proper court
Agreement to terminate not always a collusion. The agreement of
the spouses to file an annulment or nullity is not of itself an evidence of
collusion if the grounds exist and are not concocted by the parties. There
will be collusion only if the parties had arranged to make it appear that
a ground existed or had been committed although it was not, or if the
parties had connived to bring about a matrimonial case even in the
absence of grounds. Ocampo vs Florenciano
Administrative sanction. A judge who does not order an investigation
for collusion when the situation falls squarely within the rules for him to
order such investigation can be subject to administrative sanction. Corpus
v Pchotorenaa
No judgment on basis solely of stipulation of facts. An annulment
decree or nullity decree cannot be issued by the Court solely on the basis
of a stipulation of facts or a confession of judgment. This stresses that
marriage is more than a mere contract between the parties. Cardenas vs
Cardenas and RInen
Honor and Excellence. Honor before Excellence.
PERSONS
• Stipulation of facts. This is the admission by both parties
made in court agreeing to the existence of the act constituting
the ground for annulment or for the declaration of nullity.
• Confession of judgment. Admission made in court by the
respondent or defendant admitting fault as invoked by the
plaintiff, in order to sever the marriage ties.
Exception; if corroborated. If sufficiently proven or corroborated by
other independent substantial evidence, it may warrant the annulment
or declaration of nullity. What the law prohibits is a judgment solely
based on confession.
Notes:
1. Failure to answer in relation to circumstances in court is not of
itself evidence of collusion. However, if the defendant agrees
that he shall withdraw opposition or that he shall not defend
action may be an indication of collusion.
2. In Republic vs CA, where during the pendency of the case the
wife received 50,000 from the husband, the SC held that this is
not collusion. The chances of the husband willingly giving her
such amount due to unquestionable entitlement thereto was
very high, notwithstanding the previous stance of the wife not
opposing the petition for nullity of marriage.
Article 49. During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses, the
Court shall provide for the support of the spouses and the custody and
support of their common children. The Court shall give paramount
consideration to the moral and material welfare of said children and their
choice of the parent with whom they wish to remain as provided to in
Title IX. It shall also provide for appropriate visitation rights of the
other parent. (n)
Incidental issues. The law allows the determination of other issues
incidental to the declaration of absolute nullity of the marriage or its
annulment. Examples include:
a. support
b. custody,
c. property issues, and
d. visitation rights.
When allowed. The determination of these issues is allowed:
a. After the trial court renders a decision granting the petition
b. Or upon entry of judgment granting the petition
c. Or before the decree of annulment or nullity is issued
37
Family Code: title 1
General Rule: Governed by the stipulation of the parties. Principally
the spouse and the children shall be supported from the properties of
the ACP or the CPG during the pendency of the annulment or nullity
suit.
Exception; inadequate or no agreement. Should the court find the
agreement inadequate, it may disregard the same and make the necessary
provisions which would be adequate under the circumstances.
Support to spouse; no reimbursement in annulment. The support
given to the spouse during the pendency of the annulment proceedings
need not be reimbursed because the marriage is valid up until the time
it is dissolved
Support to spouse; reimburse in declaration of nullity. However, if
the courts provisionally give support to the spouse, who, at the end of
the case, has been found out to be not entitled to support because the
marriage was void ab initio, then the amounts paid shall be returned,
with legal interests from the time of actual payment.
Custody of children
1. The Court shall take into account a number of factors such as
the age and sex of children, various needs of the child,
characteristics of those seeking custody, the relationship
between the child and the parent, recommendation of expert
witnesses or other independent investigators, etc.
2. Art 213 of the Family Code provides that no child under 7
years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise.
Visitation rights
1. Even if custody has been awarded to the other parent, the
other parent is not deprived of his or her visitation rights
2. He may be deprived by the court upon presentation of
compelling reasons such as real, grave, and imminent threat to
the well-being of the child.
3. Even if such parent is deprived of his visitation rights, it may
still be reinstated if it can be shown that the grounds for
deprivation have become too harsh or are not anymore
present.
4. In Silva vs CA, it was held that this is an authority that may not
be unduly denied from nor renounced by the parents.
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.
JO VALLES
ad majorem dei gloriam
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.
Final judgment on nullity or annulment. The judgment on nullity or
annulment of marriage shall state the legal and factual basis for its
dispositive conclusion.
Judgment must always be in conformity with pleadings; coram-
non-judice. The court cannot grant a relief which is not based on the
allegation or petition unless issues related to the main case were
presented without objection from any of the party. Should the court
render a judgment which is not in conformity with the allegations in a
pleading or which grants a relief which is not based on the pleadings, the
judgment is void for being coram-non-judice. Such void judgment
shall continue to be effective unless assailed in a motion for
reconsideration.
Finality; 15 days from receipt. The judgment becomes final upon the
expiration of 15 days from receipt of the parties of the decision, unless
in the meantime it has been appealed to a higher court
Issuance of decree. The Decree of Absolute Nullity of Marriage or
Decree of Annulment of Marriage is the best evidence of nullity or
annulment, as the case may be. Such decree may be issued only after:
a. Registration of the Entry of Judgment in the proper LCR.
b. In the case of subsequent void marriage under Art 40, The
decree of absolute nullity of marriage shall be issued only after:
a. Registration of the approved partition and
distribution of properties of the spouses in the proper
Registry of Deeds
b. Delivery of presumptive legitime
Effects of declaration of nullity under 40 or annulment under 45.
When
1. the marriage is judicially declared to be void for failure to
obtain a judicial declaration of a void prior marriage before
contracting into a subsequent marriage, thereby making the
subsequent marriage void for violating Art 40; or
Honor and Excellence. Honor before Excellence.
PERSONS
2. when the marriage is annulled by final judgment based on the
grounds set forth in Art 45
the effects are same as Articles 43 (2),(3),(4), and (5), and 44 as follows:
1. Liquidation and dissolution of ACP/CPG; guilty spouse
forfeits his share
2. Donations by reason of marriage remain valid except to that
of the guilty spouse;
3. Innocent spouse may revoke designation of guilty spouse as
insurance beneficiary.
4. Guilty spouse cannot inherit from innocent spouse.
The rule in Art 50 does not apply to marriages which are void on
some different ground. This means that:
1. If a marriage is void for other reasons, the liquidation shall be
governed by rules on co-ownership. This is the general rule.
2. If a marriage is void for violating Art 40, the conjugal
partnership of gains or absolute community of property
shall govern the liquidation of properties. This is the
exception to the general rule. Dino vs Dino
Judgment of declaration of nullity under 40 or annulment. The final
judgment in such cases shall provide for
1. the liquidation, partition and distribution of the properties of
the spouses,
2. the custody and support of the common children, and
3. the delivery of their presumptive legitimes,
unless such matters had been adjudicated in previous judicial
proceedings.
• If void marriage, presumptive legitimes shall be delivered
only if the ground is Article 40. Section 19(1) of A.M. No.
02-11-10-SC provides: If the court renders a decision granting
the petition, it shall declare therein that the decree of absolute
nullity or decree of annulment shall be issued by the court only
after compliance with Articles 50 and 51 of the Family Code
as implemented under the Rule on Liquidation, Partition and
Distribution of Properties. It is clear from Article 50 of the
Family Code that Section 19(1) of the Rule applies only to
marriages which are declared void ab initio or annulled by final
judgment under Articles 40 and 45 of the Family Code. In
short, Article 50 of the Family Code does not apply to
marriages which are declared void ab initio under Article 36 of
the Family Code, which should be declared void without
waiting for the liquidation of the properties of the parties. Dino
vs Dino
38
Family Code: title 1
• Rule on co-ownership applies for all other void marriages.
In other cases of a void marriage, the above provision is not
applicable. The rull that will apply is co-ownership. Valdes vs
RTC
Partition of dwelling. 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.
1. The conjugal dwelling shall be adjudicated to the spouse with
whom the majority common children choose to remain
2. In case there is no such majority, the court shall decide taking
into consideration the best interest of the children.
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.
Form of presumptive legitimes. In said partition, the value of the
presumptive legitimes of all common children shall be delivered in:
a. Cash
b. Property, or
c. Sound securities
Computation as of date of final judgment. The value of the
presumptive legitimes shall be computed as of the date of the final
judgment of the trial court.
It need not be provided in the partition if the parties had already
provided for such matters by a judicially approved mutual agreement.
Children can ask for enforcement of judgment of
annulment/nullity. The children are not parties to the annulment case
or nullity case, but they are given legal standing to seek the enforcement
of judgment because they are materially affected by the nullity or
annulment in so far as presumptive legitime is concerned.
JO VALLES
ad majorem dei gloriam
Legitime. Legitime is the part of the testator’s property which he
cannot dispose of because the law has reserved it for compulsory heirs.
Presumptive legitime. It is not a real legitime, but only a presumption.
The basis of presumption is that the properties of the persons involved
at the time of this particular situation would be the same as when they
die, which is obviously not a fact.
• The purpose of this is to protect the legitime of the children
against the result of subsequent marriages that might be
contracted after an annulment or its declaration as void.
Actual legitime is that legitime that is present at the time of death.
Presumptive legitime in annulment vs in nullifying
Annulment Declaration of nullity
the presumptive legitime of the presumptive legitime not
common children, if any, is required to be delivered,
required to be delivered to them. EXCEPT in void subsequent
marriages under Article 40.
Petition for the correction of entries. SC held that the proper remedy
in the case below is petition for correction of entries and not a petition
for the Declaration of Nullity of Marriage.
1. Where the petitioner proved by convincing evidence that:
a. Entries in a marriage certificate showing that she was
married to a particular man was absolutely false,
b. That her signature was forged,
c. That she did not know the man appearing as her
husband,
d. That she had no knowledge of the marriage
ceremony, and
e. That the alleged bride was an impostor and not the
petitioner. Republic vs Olaybar
2. There was no actual marriage to speak of where the petitioner
participated as a bride.
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.
Procedure under A.M. No. 012-11-10-SC for the issuance of decree:
Section 19. Decision. - (1) If the court renders a decision granting the
petition, it shall declare therein that the decree of absolute nullity or
Honor and Excellence. Honor before Excellence.
PERSONS
decree of annulment shall be issued by the court only after compliance
with Article 50 and 51 of the Family Code as implemented under the
Rule on Liquidation, Partition and Distribution of Properties.
Section 21. Liquidation, partition and distribution, custody, support of common
children and delivery of their presumptive iegltimes. - Upon entry of the
judgment granting the petition, or, in case of appeal, upon receipt of the
entry of judgment of the appellate court granting the petition, the Family
Court, on motion of either party, shall proceed with the liquidation,
partition and distribution of the properties of the spouses, including
custody, support of common children and delivery of their presumptive
legitimes pursuant to Articles 50 and 51 of the Family Code unless such
matters had been adjudicated in previous judicial proceedings.
Section 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of
Marriage."
(a) The court shall issue the Decree after;
1. Registration of the entry of judgment granting the petition
for declaration of nullity or annulment of marriage in the Civil
Registry where the marriage was celebrated and in the Civil
Registry of the place where the Family Court is located;
2. Registration of the approved partition and distribution of
the properties of the spouses, in the proper Register of Deeds
where the real properties are located; and
3. The delivery of the children's presumptive legitimes in
cash, property, or sound securities.
(b) The court shall quote in the Decree the dispositive portion of the
judgment entered and attach to the Decree the approved deed of
partition.
Except in the case of children under Articles 36 and 53 of the Family
Code, the court shall order the Local Civil Registrar to issue an
amended birth certificate indicating the new civil status of the children
affected.
Duty of petitioner. It shall be the duty of the successful petitioner to
send the copy of the final decree of Court to the proper LCR.
Duty of COC. It shall be the duty of the clerk of court which issued the
decree
a. To ascertain whether the same has been registered
b. If it has not been done, to send a copy of the said decree to the
civil registry or municipality where the court is functioning.
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.
39
Family Code: title 1 ad majorem dei gloriam PERSONS
of the properties of the prior marriage, the rules on complete separation
Requisites: of property will govern the property relations of the subsequent
1. Registration of the entry of judgment marriage.
2. Registration of the approved partition and distribution of
3. The delivery of the children's presumptive legitimes

Required for the validity of 2nd marriage if 1st marriage void under
40 or annulled under 45. Otherwise, the failure to liquidate will only
be determinative of the property regime that will govern the subsequent
marriage. That is, Articles 03 and 130 provide that mandatory separation
of property will govern the 2nd marriage.

Article 54. Children conceived or born before the judgment of

annulment or absolute nullity of the marriage under Article 36 has
become final and executory shall be considered legitimate. Children
conceived or born of the subsequent marriage under Article 53 shall
likewise be legitimate.

Status of children; legitimate

1. Born or conceived inside a valid marriage
2. Born or conceived inside a voidable or annullable marriage

Status of children; illegitimate

1. Born and conceived outside a valid marriage
2. Born before the marriage ceremony
3. If the child is born at the time when the parents do not suffer
any legal impediment to marry, the subsequent marriage of the
parents legitimizes the children
4. Born inside a void marriage

When children are legitimate even if born inside a void marriage:

1. Article 36. The children born inside a void marriage where one
of the parties is incapacitated under Art 36, before the
judgment of absolute nullity of the marriage has become final
and executory.
2. Article 53. Those children born inside a void marriage where
Art 53 is violated (subsequent marriage without liquidation of
property of the prior marriage or delivery of the presumptive
legitime of the children, and without recording of the same),
before the judgment of absolute nullity of the marriage has
become final and executory.

Note: These requirements are necessary only if the previous marriage

has been judicially nullified or annulled in accordance with law. They are
not required when the first marriage was terminated by the death of
the other spouse. If the surviving spouse remarries without liquidation

JO VALLES Honor and Excellence. Honor before Excellence. 40

Family Code: title 2
TITLE 2: 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.
For purposes of this Article, the term “child” shall include a child by
nature or by adoption. (9a)
Legal separation; no severance of marital ties. A decree of legal
separation or relative divorce does not affect marital status, there being
no severance of vinculum. Our laws do not recognize absolute divorce.
It does not dissolve the marriage. Involves nothing more than bed-and-
board separation of the spouses. The decree is terminable at the will of
the parties by merely filing a manifestation in court.
Exclusive. These grounds are exclusive and they need not exist at the
time of marriage. They usually occur after the marriage ceremony,
although they may or may not exist at the time of celebration.
#1. Repeated physical violence or grossly abusive conduct against
the petitioner, a common child, or a child of the petitioner
• This does not include violence inflicted upon the child of
a guilty spouse. Violence inflicted upon the respondent’s
own son may suspend or terminate parental authority over the
latter
• Physical violence. This connotes infliction of bodily harm.
As a ground for legal separation, the determinative factor is the
frequency and not the severity of the injury. It must be inflicted
with malice
JO VALLES
ad majorem dei gloriam
• Grossly abusive conduct. This has no exact definition and
therefore must be determined on a case to case basis.
Squeezing of neck, pulling of hair, and the likes may fall under
this; Continued manifestation by one spouse of indifference or
aversion to the other, coupled with persistent neglect of duties
may also be included in this phrase; Continual use of offensive
language towards the other spouse is also a ground
o Grossly abusive conduct need not be repeated.
#2: Physical violence or moral pressure to compel the petitioner
to change religious or political affiliation. One incident of physical
violence or moral pressure to compel the change in religious affiliation
or the change in political affiliation can be a ground for legal separation.
#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.
• The only immoral act referred to in this paragraph is
prostitution. It cannot be any other act.
• A mere attempt is a ground for legal separation
• This provision is not applicable to the child of the guilty
spouse. However, if done to the spouse’s own child, this may
be a ground to may suspend or terminate parental authority
over the latter.
#4. Final judgment sentencing the respondent to imprisonment of
more than six years, even if pardoned. The offense referred to need
not be directed against the spouse, the children of the spouse,
petitioner’s children, or their common children.
• Must be final. The judgment must be final in order that it may
be invoked as a ground. While the case is still on appeal, the
said spouse shall be presumed innocent.
• This ground can be invoked even if the respondent has been
pardoned.
#5. Drug addiction or habitual alcoholism of the respondent. This
is the same as those referred to in article 45, except that the grounds can
exist even after the marriage ceremony.
#6. Lesbianism or homosexuality of the respondent;
#7. Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad. Whether the
marriage was solemnized in the PH or abroad is immaterial. So long as
there has been a bigamous marriage, a legal separation decree may be
issued.
Honor and Excellence. Honor before Excellence.
legal ethics
• However, if the bigamous marriage was celebrated abroad, the
guilty party may not be criminally prosecuted because our
penal laws are territorial in nature.
#8. Sexual infidelity or perversion
• Sexual infidelity. Other acts of sexual infidelity short of
adultery and concubinage are enough as long as the said acts
committed by one spouse would constitute a clear betrayal of
the trust of his or her spouse by having intimate love affairs
with another person. In Tenchavez v Escano, it was held that a
Filipina who obtains an absolute divorce abroad and
subsequently marries a foreigner and cohabits with the same,
has technically committed “intercourse with a person other
than her husband”. The divorce abroad is not recognized in
the PH and therefore, her subsequent marriage is bigamous.
Concubinage. This is done in any of the following manner
a. Maintaining a mistress in conjugal dwelling
b. Sexual intercourse with another woman under scandalous
circumstances
c. Cohabiting with her in any other place
• Perversion. This would include sexual perversion with one’s
spouse (and to 3rd persons as well) and other sexual practices
like oral sex. If one condones sexual infidelity or perversion,
he is estopped from raising it as a ground for legal separation
because it is tantamount to consent.
#9. Attempt by the respondent against the life of the petitioner.
This must proceed from an evil design and not from any justifiable cause
like self-defense or when the spouse caught the other in flagrante delicto
having sex with another person.
• To invoke this ground, there is no need for a prior
criminal conviction. Only preponderance of evidence is
needed to prove an attempt on the life of the petitioner. Legal
separation is a civil case.
• If the innocent spouse had made provisions in a will in favor
of the guilty spouse, the legal separation decree will have the
effect of revoking by operation of law such provision.
• If the guilty spouse is convicted, the innocent spouse and the
children can disinherit the guilty spouse, unless there has been
reconciliation between them.
#10. Abandonment of petitioner by respondent without justifiable
cause for more than one year. The spouse is deemed to have
abandoned the other when he or she has left the conjugal dwelling
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Family Code: title 2
without the intention of returning. There is a prima facie presumption
of abandonment when the spouse leaves the conjugal dwelling for 3
months, or has failed within the same period to give any information as
to his or her whereabouts.
• Period of insanity not counted. The abandonment must be
for more than one year. In computing this period, the time
during which the offending spouse became insane cannot be
included. The desertion must continue to be willful or
intentional. It is not willful if the spouse is insane. Wright vs
Wright
• The abandonment must be willful. It is willful when there
is a design to forsake the other spouse intentionally, or without
cause, and therefore, breakup the marital union.
• Abandonment implies a total renunciation of duties.
There must be absolute cessation of marital relations, duties,
and rights, with the intention of perpetual separation. Hence,
if the husband, despite voluntary departure neither neglects the
management of the conjugal partnership nor ceases to give
support to his wife or her husband, there is no abandonment.
Dela Cruz vs Dela Crz
• It must be wrongful, such that there is no reasonable excuse
for the one who separated.
• Mere severance of the relation is not sufficient. Physical
separation alone is not enough to invoke this ground if the
spouse, despite voluntary departure, neither neglects the
management of the conjugal partnership nor ceases to give
support to the other spouse.
• A separation in which both parties concur willingly does not
constitute willful desertion. Smyhte vs Smyhte
Child. For purposes of this Article, the term “child” shall include a child
by nature or by adoption.
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)
JO VALLES
ad majorem dei gloriam
CO-CO-CO-BO-CO-PRE
#1. Condonation. This is the act of forgiving the offense after its
commission.
• This is conditional upon the future good behavior by the
offending spouse. Subsequent offense on the part of the
offending spouse revokes or nullifies the condonation and
revives the original offense. Brown v Brown
o Example: Where condonation of adultery has been
obtained on a false pretense of repentance, the
original offense may be revived, although there is
only a presumption and no strict proof of a
matrimonial offense. Jordan vs Jordan
o Example: Condonation does not require sexual
intercourse; it may be express or implied. Giving
money to an erring wife and the fact that no action
was taken against her are sufficient acts of forgiveness
of an offense which he knows he has committed. Sex
is not required for forgiveness. Almacen vs Baltazar
• Failure of the husband to look actively for his adulterous wife
after she left the conjugal home does not constitute
condonation. Ocampo v Florenciano
#2. Consent. There is consent when either of the spouses agreed to or
did not object, despite full knowledge, to the act giving rise to a ground
for legal separation, before such act was committed.
• Void agreement is still an expression of consent. Hence,
when the spouses agree to live separately from each other and
that they will not object to the other’s act of sexual infidelity,
adultery, or concubinage, it is an expression of consent. SC
held that such agreement is void. Nevertheless it is consent.
People vs Scheneckenburger
• Consent may be express or implied or deduced from the
acts of the spouses. When the husband, knowing that his wife
resumed living with his paramour, did nothing to interfere or
assert his rights as a husband, but instead left for Hawaii and
remained there for 7 years, the SC ruled that this is an example
of consent. He cannot file a case of adultery against his wife.
People v Sensano
#3. Connivance. Connivance or procurement denotes direction,
influence, personal exertion or other action with knowledge and belief
that such action would produce certain results and which results are
produced.
Honor and Excellence. Honor before Excellence.
legal ethics
• The basis is the maxim that one is not legally injured if he has
consented to the act complained of or was willing that should
occur.
• Example: An example of this is when the husband employed
agents to induce, persuade, and coerce his wife into
participating in illicit sexual activities. Witherspoon vs Witherspoon
#4. Recrimination or equal guilt. He who comes to the court must
come with clean hands. When two persons are in bad faith, they are in
pari delicto. In this case, one cannot invoke the guilt of another if there is
equal guilt
• Therefore, the SC held in Ong v Ong that there was no equal
guilt between the spouses when the battered wife abandoned
the husband. The law provides that to invoke abandonment as
aground for annulment, it must be without justifiable reason.
The husband cannot move for the dismissal of the legal
separation case on the basis of equal guilt.
#5. Collusion. This is an agreement between the spouses to commit,
or appear to commit, or to be represented in court as having committed
a matrimonial offense, or to suppress evidence of a valid defense, for
the purpose of obtaining a valid legal separation. Griffith vs Griffith
• Collusion and connivance are related
• Collusion is corrupt agreement, while connivance is corrupt
consenting
#6. Prescription. See next article.
Article 57. An action for legal separation shall be filed within five years
from the time of the occurrence of the cause.
The time of discovery of the cause is immaterial in legal
separation. Hence, if the wife commits sexual infidelity and such was
discovered by the husband only after 6 years from such time, the
husband cannot anymore file an action for legal separation.
Old provision in 1950 Civil Code. The action for legal separation must be
filed within one year from the discovery of the cause, but not later than 5 years from
the occurrence of the cause.
• This was revised to avoid shortening the prescriptive period in
case the discovery of the cause was made before the 5-year
period.
• The law intends to protect marriage. The law assumes that if
the offense was discovered after 5 years, forgiveness is already
the order of the day and no longer recrimination.
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Family Code: title 2
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.
Cooling-off period. An action for legal separation shall in no case be
tried before six months shall have elapsed since the filing of the petition.
This is the cooling-off period, during which the court is precluded from
acting.
• Only with respect to the merits. What is prohibited from
being heard during this period is the hearing on the merits with
respect to the validity or invalidity of the grounds for legal
separation. Any other incidents such as the determination of
the custody of the children, alimony, and support pendent lite, may
be heard during this period.
• Motion to dismiss may also be filed during the cooling off
period if there are grounds to do so
• Rationale. This period is designed to give the parties enough
time to further contemplate their positions with the end view
of attaining reconciliation between them.
• Non-compliance. Non-compliance with this is a ground for
dismissal of granting the legal separation
Exception; VAWC. Cooling-off period may be dispensed with if the
ground for legal separation is VAWC. In this case, the courts shall
proceed on the main case and other incidents of the case as soon as
possible. See Section 19, RA 9262
Violence against women and children. This refers to any act or a
series of acts committed by any person against:
1. a woman who is his
a. wife
b. former wife,
c. or against a woman with whom he has or had a dating
relationship,
d. or with him he has a common child
2. or against her child, whether legitimate or illegitimate
within or without the family abode, which result in or is likely to result
in physical, sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion, harassment or
arbitrary deprivation of liberty.
Covered acts. Considering the coverage and definition of the VAWC
law, the grounds enumerated under Art 55, except for (4), (5), (6) could
qualify as acts of violence under the VAWC law.
JO VALLES
ad majorem dei gloriam
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.
Unlike in annulment cases or in cases of declaration of absolute nullity
of the marriage wherein the objective is the complete severance of the
marriage ties, a legal separation decree will not sever such marital ties
but will merely separate the husband and wife from bed and board.
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.
What is prohibited is judgment on the basis solely of such
stipulation or confession. In Ocampo v Florenciano, wife admitted to
having had sexual relations with another man not her husband, thus
committing adultery. The SC held that although this constituted
practically a confession of judgment, the decree may and should be
granted because there is evidence of adultery independent of such
statement. What the law prohibits is a judgment based exclusively or
mainly on defendant’s confession
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
Procedure legal separation
1. File the complaint with the proper RTC
2. The defendant shall be given 15 days from receipt of summons
and a copy of the complaint within which to file an answer.
a. If the defendant fails to answer, he cannot be
declared in default. The court will order a full-blown
hearing of the case
b. If the party fails to answer, the court shall order the
prosecuting attorney to investigate regarding
collusion or fabrication of evidence.
3. If the defendant answers, the issues of the case are considered
joined and the Court shall order the hearing of the case.
a. The hearing shall be in no less than 6 months.
Honor and Excellence. Honor before Excellence.
legal ethics
b. In all cases, a full-blown hearing must be
undertaken and the parties must prove their
grounds by preponderance of evidence. No summary
proceedings are allowed.
4. During the hearing, the fiscal shall appear on behalf of the
state to ensure that:
a. There is no collusion between the parties
b. The evidence is not fabricated
When petition is denied. When the petition is denied by the court, it
cannot compel the parties to live together as cohabitation is a personal
choice. Arroyo v Vasquez.
Quantum of proof. Only proof by preponderance of evidence is
required to substantiate the ground for legal separation. This is not a
criminal case. Gandionco vs Penaranda
Separate civil action. The civil action for legal separation may proceed
ahead of, or simultaneously with a criminal action. The reason for this
is because said civil action is not one to enforce liability arising from the
offense.
• In Gandionco v Penaranda, it was held that the civil action for
legal separation on the grounds of concubinage may proceed
ahead of, or simultaneously with the criminal action for
concubinage.
• The civil action for legal separation is one intended to obtain
the right to live separately with the legal consequences thereof
such as:
a. Dissolution of ACP or CPG
b. Custody of offspring
c. Support and disqualification from inheriting from
innocent spouse
Death terminates legal separation case. Death settles the question of
separation beyond all controversy and deprives the court of jurisdiction,
both over the persons of the parties to the action and over the subject
matter of the action itself. Lapuz v Eufemio
• Rationale; action is personal. An action for legal separation,
which involves nothing more than the bed-and-board
separation of the spouses, is purely personal. Being personal in
character, it follows that the death of one party to the action is
the death of the action itself. Lapuz v Eufemio
• Property rights do not survive death of either of the
parties. Changes in property relations between spouses are
mere effects of the decree of legal separation; they cannot
survive the death of the plaintiff if such death occurs prior to
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Family Code: title 2
the decree. Without the decree such rights do not come to
existence. Before the finality of the decree, these claims are
merely rights in expectation. The death of one party would
mean rights are unborn. (Examples of property rights in
relation to legal separation: disqualification to inherit by
intestacy from the innocent spouse or revocation of
testamentary provisions,)
Article 62. During the pendency of the action for legal separation, the
provisions of Article 49 shall likewise apply to the support of the spouses
and the custody and support of the common children.
Article 49. During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses, the
Court shall provide for the support of the spouses and the custody and
support of their common children. The Court shall give paramount
consideration to the moral and material welfare of said children and their
choice of the parent with whom they wish to remain as provided to in
Title IX. It shall also provide for appropriate visitation rights of the
other parent
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.
Finality of the separation; after lapse of period to appeal. When the
decree of legal separation is issued, its finality is not yet complete. It only
becomes complete after the lapse of the period within which to file the
appeal the decision to a higher court. This is true even if the effects listed
above, such as liquidation of the ACP/CPG, have not yet been
commenced nor terminated. Macadangdang vs CA
LI.DI.CU.SU.RE
JO VALLES
ad majorem dei gloriam
#1. Live separately from each other, but the marriage bonds shall
not be severed. Even if the spouses legally live apart, they can still be
held criminally liable for bigamy, concubinage, or adultery if they
commit such acts. The reason for this is because they are still legally
married.
#2. Dissolve and liquidate ACP/CPG; erring spouse forfeits share.
The offending spouse shall have no right to any share in net profits
earned by the ACP or CPG. His or her share of the net profits of the
community property or conjugal partnership property shall be forfeited
in favor of:
1. The common children
2. If there are none, the children of the guilty spouse by a
previous marriage
3. In default of children, the innocent spouse
#3. Custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code. In case
of separation of the parents, parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all
relevant considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit. The Court may even
award custody of the children to a third person if it believes that neither
parent is fit to take care of the child.
#4. Succession; erring spouse cannot inherit. The offending spouse
is disqualified from inheriting via intestate succession. The offending
spouse is likewise disqualified from inheriting via testamentary
succession because the provisions made in favor of such spouse in the
will of the innocent spouse are revoked by operation of law.
• Under Art 921 (4) of the Civil Code, not repealed by the Family
Code, a person can disinherit his or her spouse in the will if the
latter has given cause for legal separation even if he has not
yet been found guilty of committing such.
• Under Art 922, such disinheritance shall be set aside by the
court upon manifestation that the parties have reconciled.
#5. Revocation. See next article.
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
Honor and Excellence. Honor before Excellence.
legal ethics
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.
What may be revoked: After the finality of the decree of legal
separation, the innocent spouse has the option to revoke:
#1. The donations in favor of the offending spouse.
• Prescriptive period. 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. However, in case
of void donations under Art 87, the right to bring an action to
declare the nullity if the donation does not prescribe. Under
Art 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.
• Revocation of donation must be recorded. The revocation
of the donations shall be recorded in the registries of property
in the places where the properties are located.
• Encumbrances registered prior shall be respected.
Alienations, liens and encumbrances registered in good faith
before the recording of the complaint for revocation in the
registries of property shall be respected
• Revocations remain revoked despite reconciliation. The
law does not provide that such revocation by operation of law
will be rendered ineffectual in case the legal separation decree
is set aside by the court upon manifestation of the parties that
they have reconciled.
#2. Designation as beneficiary in any insurance policy. The
revocation of or change in the designation of the insurance beneficiary
shall take effect upon written notification thereof to the insured.
• There is a discrepancy between the final version of the
provision and the one signed by the President into law. The
final version used the word INSURER. The one signed by the
president used the word INSURED
• However, notification to the INSURER is more practical
because it is the insurer who, at the end of the day, when the
proceeds of the insurance policy are claimed, will be liable.
Hence it is important to inform the insurer regarding the
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Family Code: title 2
revocation so that there will be no way for the insured or the
beneficiary to get the proceeds of the insurance policy.
Rationale. The reason why the law allows revocation of donations and
designation as beneficiary is because these acts are essentially acts of
liberality on the part of the spouse doing such actions, and hence the
law reserves the option to revoke the same.
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.
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.
If pending; terminate. In case the legal separation case is still pending
when the parties reconcile, it shall be terminated. The order containing
the termination of the case shall be recorded in the proper civil registries.
If decree already issued; set aside. If the decree has already been
issued, whether final or not, it shall be set aside. The order containing
the setting aside of the decree shall be recorded in the proper civil
registries.
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.
JO VALLES
ad majorem dei gloriam legal ethics
The recording of the ordering in the registries of property shall not b. If it is recorded. It shall prejudice those creditors listed in the
prejudice any creditor not listed or not notified, unless the debtor- order or those who have been notified of the motion of the
spouse has sufficient separate properties to satisfy the creditor’s claim. revival and of the order. It shall not prejudice those creditors
not in the order or those who have not been notified of the
General rule; separation of properties subsist. The separation of motion of the revival and of the order
properties which, in the meantime, had been made, shall subsist. • Creditors not listed or not notified shall be prejudiced
by the recording of the order if the debtor-spouse has
Exception: The parties may enter into an agreement, which should be sufficient separate properties to satisfy the creditor’s
approved by the Court, reviving the previous property regime. claims.
1. It shall also contain the names and addresses of the creditors
and the amounts of the credit. Intestate succession; disinheritance ineffectual. If the innocent
2. The creditors must be furnished the motion seeking the spouse disinherited the guilty spouse, their subsequent reconciliation
approval of the agreement renders ineffectual any disinheritance that may have been made.
3. After due hearing, the court shall take measures to protect the
interest of the creditors. Testate succession; innocent spouse has the option WON to
4. The order of the court shall be recorded in the proper registry reinstate. Nothing in the Family Code provides for the revival of the
of the property. It shall not prejudice any creditor not listed revoked provisions in a will originally made in favor of the offending
nor notified. spouse as a result of the legal separation decree. This gives the innocent
spouse an option of reinstating the revoked provisions.
Can opt for different regime. The spouses are also allowed to adopt
another regime of property relations different from that which they had
prior to the filing of the petition for legal separation. Section 23(e) SC En
Banc Resolution AM 02-11-12.
There are conflicting views on this:
a. The law only allows revival of the old property regime.
Had it been the intention of the framers of the Family Code,
they would have expressly included the adoption of a new
property regime.
b. Art 66 is not restrictive. It does provide for the adoption of
a new regime, and neither does it provide that a new regime
cannot be adopted. Therefore the provision must be construed
to allow what they do not restrict.
• However, it cannot allow a from CPG to ACP, vv.
Because it will violate Art 88, which says that a stipulation
providing for the commencement of the ACP or CPG at
any other time than the precise moment of celebration of
the marriage is void. The rule can only allow a change to
a different property regime other than the ACP/CPG.
c. Provided there is court approval, the parties may adopt a
new regime.
Recording of order of revival. The order of revival shall be recorded
in the appropriate civil registry.
a. If it is not at all recorded. Creditors will not be prejudiced
whether they are listed in the order or they have been notified
Honor and Excellence. Honor before Excellence. 45
Family Code: title 3
TITLE 3: RIGHTS AND OBLIGATIONS
BETWEEN HUSBAND AND WIFE
Article 68. The husband and wife are obliged to:
a. Live together
b. Observe mutual love, respect and fidelity, and
c. Render mutual help and support.
Procreation. In addition, procreation is also an essential marital
obligation. Procreation of children through sexual cooperation is the
basic end of marriage. Chi Ming Tsoi vs CA
General rule; personal obligation and courts cannot compel
performance. The court cannot validly issue a decision compelling the
spouses to comply with their obligations as enumerated in this article,
because they are personal and voluntary acts. Only the moral obligation
of the spouses constitutes the motivating factor for making them
observe said duties and obligations. Ramirez-Cuaderno vs Cuaderno
Exception; support. An exception would be for support. The court
may validly issue an order to compel support.
No damages for breach of marital obligation. A prayer for damages
will result in an absurd situation where one spouse will pay the other
spouse damages using the common funds in ACP or CPG. Ty vs CA
• Note that the said doctrine may only be invoked if the
property regime is separation of property.
One may invoke the abuse of rights doctrine under Articles 19-21 of
the Civil Code.
Rape in marriages. In marriages, the husband may be held liable for
raping his wife. This is an act of violence against a woman in the VAWC
law.
• The forgiveness by the wife as the offended party shall
extinguish the criminal action or the penalty.
• The penalty shall not be extinguished if the marriage is void ab
initio.
Rape. Rape is committed:
a. By a man who shall have carnal knowledge of a woman
through force, threat, or intimidation
b. When the offended party is deprived of reason or otherwise
unconscious
JO VALLES
ad majorem dei gloriam
c. By means of fraudulent machinations or grave abuse of
authority
d. When the woman is under 12 years or is demented, in the
absence of the abovementioned circumstances are absent
e. An act of sexual assault by inserting one’s penis into another
person’s mouth or anal orifice, or any instrument into the
genital or anal orifice of another.
Matrimonial exemption; no longer effective. Matrimonial exemption
is the principle that even when the husband uses force to have sexual
intercourse with the wife, there can be no rape. This is anchored on the
following:
a. Upon marriage, the separate legal existence of the man and the
woman is unified
b. Upon marriage, the woman is implied to give consent to sexual
intercourse and the law does not allow her to retract said
consent.
Article 69. The husband and wife shall fix the family domicile. In case
of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter
should live abroad or there are other valid and compelling reasons for
the exemption. However, such exemption shall not apply if the same is
not compatible with the solidarity of the family.
General Rule: The husband and wife shall fix the family domicile.
o In the old provision of the Civil Code, the husband had the
sole power of determining where the family domicile will be.
o However, this new provision recognizes revolutionary changes
in the concept of women’s rights.
Exception: In case of disagreement, the court shall decide.
o The proceedings shall be summary in nature.
o When the court exempts one spouse from living with the
other, the proceedings shall also be summary in nature.
When spouse can be exempted from living with the other. The
court may exempt one spouse from living with the other if:
a. The latter should live abroad or
b. There are other valid and compelling reasons for the
exemption.
• Other valid and compelling reasons. An example
will be where the spouse has to work in the mines in
the Mountain Province and the like. Minutes of the 161st
Joint meeting of the Civil Code and Family Code Committees
However, such exemption shall not apply if the same is not compatible
with the solidarity of the family.
Honor and Excellence. Honor before Excellence.
legal ethics
Article 70. The spouses are jointly responsible for the support of the
family. The expenses for such support and other conjugal obligations
shall be paid from the community property and, in the absence thereof,
from the income or fruits of their separate properties. In case of
insufficiency or absence of said income or fruits, such obligations shall
be satisfied from the separate properties.
Where support and conjugal obligations can be charged.
a. The community property
b. The income or fruits of their separate properties.
c. Separate properties.
Article 71. The management of the household shall be the right and
the duty of both spouses. The expenses for such management shall be
paid in accordance with the provisions of Article 70.
- This provision applies regardless of the property involved in
the marriage
- Even if the family house is separately owned by the other
spouse, the other spouse still has the right and duty relative to
the management of the household.
Article 72. When one of the spouses neglects his or her duties to the
conjugal union or commits acts which tend to bring danger, dishonor or
injury to the other or to the family, the aggrieved party may apply to the
court for relief.
Relief. Relief may be any of the following:
a. Filing of a case for legal separation
b. Nullifying the marriage on the ground of Art 36, if such may
be applicable
c. Petitioning the court for receivership
d. Asking for judicial authority for separation of property
e. Asking for judicial authority to be the sole administrator of the
CPG or ACP
Article 73. Either spouse may exercise any legitimate profession,
occupation, business or activity without the consent of the other. The
latter may object only on valid, serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the objection or thereafter.
If the benefit accrued prior to the objection, the resulting obligation
shall be enforced against the community property. If the benefit accrued
46
Family Code: title 3
thereafter, such obligation shall be enforced against the separate
property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who
acted in good faith.
General rule; exercise of a profession redounds to family benefit.
It is a general rule that an obligation incurred as a result of a spouse’s
exercise of his or her legitimate profession or occupation or as a result
of a spouse’s undertaking of his or her own legitimate business,
especially a family business, is an obligation redounding to or for the
benefit of the family and, therefore, are chargeable to the ACP or CPG.
Ayala Invesment vs CA
Isolated activity; personal liability of the spouse. It was proved that
it was only the wife who entered into a video contract with the aggrieved
parties and who was the only one responsible for the contract. The SC
ruled that the husband cannot be solidarily liable with the wife for the
resulting damages because under the law, any of the spouses may
exercise any legitimate activity without the consent of the spouse, which
actually happened in the case. Moreover, this is pursuant to the principle
that contracts produce effect only as between the parties who execute
them. Go vs CA
o Here, the video contract was an isolated activity
Objection only on valid, serious, and moral grounds. It is natural
for the spouses to consult each other, but the law does not require prior
consent of the other spouse. The latter may object only on valid, serious,
and moral grounds.
• The court shall decide if the objection is valid. The proceeding
shall be summary in nature.
ad majorem dei gloriam legal ethics
CPG or ACP. This means that the creditors may be able to collect from
the common properties
Exception: Even if the benefits redounded to the benefit of the family,
the separate property of the erring spouse shall be liable if the
following requisites concur:
1. The profession or business from which such benefits were
derived were seriously invalid or immoral and
2. The benefits accrued after the objection of the other spouse
to such business.
o If there is no objection from the other spouse or if
the benefits accrued before such objection, the
obligation is chargeable against the common
properties.
- The innocent spouse must have no knowledge of the other
spouse’s engagement in an immoral activity prior to his or her
objection.
The foregoing provisions shall not prejudice the rights of creditors
who acted in good faith. Regardless of good faith or bad faith, the
creditor may collect what is due him. The only difference is that when
he is in bad faith, he may collect only from the separate property of the
erring spouse. If he is in good faith, he may collect from common
properties.

Compulsion. If the husband compels the wife from pursuing a

profession or any other conduct the wife has right to enter into, it shall
be considered a violation of the VAWC Law.

Charging of obligations for disagreement in profession:

a. If the benefit accrued prior to the objection, the resulting
obligation shall be enforced against the community property.
b. If the benefit accrued thereafter, the obligation shall be
enforced against the separate property of the spouse who has
not obtained consent.

General Rule: Debts and obligations of whatever nature and regardless

of the time they were incurred (before or after marriage), but redounding
to the benefit of the family, are chargeable to the common properties

JO VALLES Honor and Excellence. Honor before Excellence. 47

Family Code: title 4
TITLE 4: FAMILY RELATIONS BETWEEN
HUSBAND AND WIFE
CHAPTER 1: GENERAL PROVISIONS
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.
#1. By marriage settlements executed before the marriage. The
parties can stipulate or agree on any agreement in their marriage
settlement so long as such agreement is:
1. Not contrary to law or public policy
2. Within the limits prescribed by the Family Code
#2. By the provisions of this Code. In the absence of marriage
settlement, the regime shall be ACP.
#3. By the local custom. Custom is defined a rule of conduct formed
by repetition of acts uniformly observed as a social rule, legally binding
and obligatory.
Examples of void stipulations:
1. Agreement to sell to each other. Art 1490
Except if:
a. Separation of property was agreed upon in marriage
settlements
b. There has been a judicial separation of property.
2. Agreement that the CPG or ACP shall commence at any date
other than the precise moment of the celebration of the
marriage. Art 88 and 107.
3. Agreement that spouses may make substantial donations to
each other during the marriage. Art 87.
4. In case of a marriage terminated through the death of one of
the spouses and there has been no liquidation of properties of
the previous marriage, the surviving spouse cannot agree that
the property regime governing the subsequent marriage is
other than complete separation of property. Art 103 and
130.
• This is actually an exception to the rule that in the absence
of a marriage settlement or if it is void, the default regime
is ACP.
JO VALLES
ad majorem dei gloriam
• This is likewise an exception to the rule that the marriage
settlements shall be in writing.
Fairness in marriage settlement. The pre-nuptial agreement shall be
deemed valid. The burden of proof of its invalidity rests on the one who
alleges such invalidity. However, if the contract is unreasonable in its
face and creates a presumption of concealment, the burden of proving
its validity is shifted to the other party who alleges its validity.
Article 75. The future spouses may, in the marriage settlements, agree
upon the:
(1) Regime of absolute community
(2) Conjugal partnership of gains
(3) Complete separation of property
(4) 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.
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.
General Rule: Modifications must be made
• before the marriage celebration,
• in writing, and
• signed by the parties. See Article 1 and 77
Exception: post-marriage modification is allowed if there is a judicial
approval, and refers only to the instances in Articles 66, 67, 128, 135.
• Art 66- Effect of reconciliation of spouses
• Art 67- Agreement to revive former property regime
• Art 128- Relief when one spouse abandons the other
• Art 135- Grounds for judicial separation of property
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.
#1. In writing; requirement for validity. This requirement is
important not only for enforceability, but for its validity. Hence, an oral
marriage settlement is void and cannot be ratified by partial execution
or absence of objection.
Honor and Excellence. Honor before Excellence.
legal ethics
If it is not in writing, it shall be unenforceable. This is in accordance
with the Statute of Frauds, which says that an agreement in
consideration of marriage shall be in writing.
Requisites to bind 3rd parties. They shall not prejudice third persons
unless they are registered in the:
1. Local civil registry where the marriage contract is recorded as
well as in the
2. Proper registries of properties.
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.
• This provision has already been impliedly repealed.
• At present, minors (meaning below 18 years old) cannot
validly marry, and therefore cannot execute marriage
settlements
• An 18 year old who decides to get married can validly
execute a marriage settlement without obtaining consent.
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.
Effects of civil interdiction. This deprives an offender during the time
of his sentence the following rights:
a. Parental authority or guardianship
b. Marital authority
c. Right to manage property
d. Right to dispose of such property inter vivos, meaning during his
lifetime.
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
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Family Code: title 4
(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.
Laws that govern property relations:
1. Stipulations in the marriage settlements
2. PH laws
When not applicable:
1. Both spouses are aliens
2. Extrinsic validity of contracts affecting property outside the
PH
a. Entered where the property is situated
b. Entered in the PH
#1. Where both spouses are aliens. If the spouses are both Filipino
citizens, their property relations will be governed by PH laws, even if
they were married abroad or they reside abroad.
• However, pursuant to Art 16 of the Civil Code, the
extrinsic validity of contracts shall be governed by the
laws of the country wherein the contracts were executed.
Note for easy memorization:
Number 1: We have no pakialam to aliens.
Numbers 2 and 3 are properties outside the PH, therefore not governed
by our laws in accordance to Article 16 of the Civil Code.
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 place. However,
stipulations that do not depend upon the celebration of the marriages
shall be valid.
Rationale. This is because the consideration of a marriage is the
marriage itself. If the marriage does not take place, there is want or
absence of consideration. Hence, the stipulation is rendered void.
Provisions in a marriage settlement separable; stipulations that do
not depend upon the celebration of the marriage valid. Only those
invalid provisions will be rendered ineffectual, while the rest will remain
in force. Hence, a provision to support the common children of the
contracting parties for a particular amount will be valid regardless of
whether or not the marriage takes place. This provision is independent
of the fact of marriage. A parent is obliged to support his child, whether
legitimate or illegitimate.
JO VALLES
ad majorem dei gloriam
CHAPTER 2: DONATIONS BY REASON OF
MARRIAGE
Article 82. Donations by reason of marriage are those which are:
- made before its celebration
- in consideration of the same (marriage), and
- in favor of one or both of the future spouses.
Donation propter nuptias. This is also known as donation in
consideration or by reason of marriage.
• This is made without onerous consideration, the liberality of
the donor being the consideration or cause
• The marriage is merely the occasion or motive for donation.
• This remains subject to reduction for inofficiousness upon the
donor’s death, if it should infringe the legitime of compulsory
heirs.
The following are not in consideration of marriage:
a. Made in favor of spouses after the celebration of marriage
b. Executed in favor of future spouses but not in consideration
of marriage
c. Granted to persons other than the spouses even if founded on
the marriage.
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.
Requisites for validity of donation; movable
a. If the value is 5,000 or less
• It may be made orally or in writing.
• If made in orally, there must be simultaneous delivery of
the thing or the document evidencing the right donated.
• There must be acceptance personally or through an
authorized person
b. If the value exceeds 5,000
• The donation must be in writing
• The acceptance of donation must be in writing
Requisites for validity of donation; immovable
• The donation must be in a public instrument to be valid.
It is not valid if it is merely in writing and not in a public
instrument
Honor and Excellence. Honor before Excellence.
legal ethics
o It must specify the property donated and the value of
the charges which the done must satisfy
• The acceptance may be made in the same deed of donation or
in a separate instrument
o If it is made in a separate instrument, the donor shall
be notified thereof in an authentic form and this step
shall be noted in both instruments.
Donations propter nuptias of future property. These are governed
by the provisions on testamentary succession and the formalities of a
will.
• If this is handwritten, it must be entirely handwritten, dated,
and signed by the donor.
• If it is not handwritten it may either be:
o Subscribed at the end by the donor himself
o The donor’s name be written by some other person
in his presence, and y his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the donor and of one
another
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.
Donations between future spouses. The following requisites must
concur:
#1. There must be a valid marriage settlement. It would be useless
if there is no marriage settlement because if there is none, it is automatic
that ACP shall govern. The property donated will still be co-owned by
the spouses after marriage.
#2. The marriage settlement must stipulate a property regime
other than the ACP. It would be useless of the property regime is ACP
because the property donated will still be co-owned by the spouses after
marriage.
#3. The donation contained in the marriage settlement must not
be more than 1/5 of his or her present property. The rationale behind
this rule is that exerting undue influence by one future spouse is a
possibility during the discussions about the marriage settlement.
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Family Code: title 4
• Rationale. The subtle hazards and the undue influence
attendant in the negotiation of marriage settlement are
generally absent in donations done in a separate deed. It is free
from interference of the donee-spouse. This is a compromise
provision to allow the donor to make generous acts in the
marriage settlement but also prevent the donee spouse from
unduly capitalizing on this act of generosity.
• It is ideal and proper that the giving of a donation propter
nuptias should not be discussed to prevent it from becoming a
bargaining point.
• This requirement is applicable only if the donation propter
nuptias is included in the marriage settlement.
• This is not applicable if the donation is embodied in a
separate deed. In this case, the general provisions on
donation shall apply.
• The donation may comprehend all the present property of the donor or part
thereof, provided he reserves in full ownership or in usufruct, sufficient
means for the support of himself, and allrelatives who, at the time of
acceptance of donation, are by law entitled to be supported by the donor.
Without such reservation, the donation shall be reduced on petition of any
person affected. Art 750.
• No person may give or receive, by donation, more than he may
give or receive by will.
#4. The donation must be accepted by the would-be spouse.
Acceptance is required for the validity of donations.
#5. It must comply with the requisites of donation as previously
discussed.
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.
The donee is not liable for deficiency. The rationale behind this is
because the donation did not make the donee a solidary debtor of the
donor with respect to the principal obligation incurred by the donor.
The donee is entitled to excess or to profits. As the new owner of
the property, the donee is entitled to whatever value of the property
which can be obtained. Also, as the owner, he cannot seek
reimbursement from the donor for the amount which was taken by the
creditor as a result of the foreclosure sale.
JO VALLES
ad majorem dei gloriam
GROUNDS FOR REVOCATION
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.
#1a. If the marriage is not celebrated
General Rule: The donation is not automatically revoked. The donor
has the option to revoke or maintain the donation.
• Prescriptive period; 5 years from the time the right of
action accrues. The Family Code does not provide for a
prescriptive period within which the right to revoke may be
exercised. Article 1149 of the Civil Code provides that all
actions whose period are not fixed in the Family Code or other
laws shall be brought within 5 years from the right of action
accrues. The right of action shall accrue from the moment the
marriage is not solemnized from the fixed date.
Exception: donations made in the marriage settlements before the
marriage shall be void if the marriage does not take place, as governed
by Article 81. The period within which to declare the donation void shall
not prescribe.
#1b. Marrige judicially declared void. There must first be a judicial
declaration that the marriage is void before the option to revoke will
arise.
There are 5 situations that can arise:
a. Subsequent marriage void because it was contracted by a
spouse who did not obtain judicial declaration of nullity of a
previous void marriage (Art 40, 52, and 53)
- Donation will be revoked if the donee-spouse
contracted the subsequent void marriage in bad faith.
(See Art 4, par3)
- If the donee refuses to return the donated property, the
donor should file an action to recover the same.
Honor and Excellence. Honor before Excellence.
legal ethics
o For movables, the right to recover shall
prescribe after 8 years from the finality of
the judicial declaration of nullity.
o For immovable, the right to recover shall
prescribe after 30 years from the finality of
the judicial declaration of nullity.
b. If there is bad faith on both of a the contracting parties to a
subsequent marriage where one of them obtained a declaration
of presumptive death under Art 41 to be able to remarry, such
subsequent marriage is void and all donations shall be revoked
by operation of law.
c. For other grounds that make a marriage void (other than those
in Art 40 and Art 44), this provision shall likewise apply. Good
faith or bad faith is not relevant in this case.
d. For bigamous marriages:
- Donation propter nuptias made by the second spouse
of the previously-married spouse may not be revoked
after the finality of the judicial declaration of the
bigamous marriage.
- However, donation propter nuptias made by the
previously-married spouse to the second spouse shall
be void if:
o They were already guilty of adultery or
concubinage at the time of donation or
o They were already living together as husband
and wife without the benefit of marriage
e. If both the contracting parties are in good faith, the donor,
after the finality of judicial declaration of nullity, is given the
option to revoke the donation.
- The donor shall have 5 years from the time of the
finality of the judicial declaration of nullity.
Note that if the donor is one of the spouses and not a third
person, then there can be no revocation since they were both
in good faith.
#2. When the marriage takes place without the consent of the
parents or guardian, as required by law. Lack of consent when one
of the parties is aged 18-21 makes the marriage annullable. However, no
prior judicial declaration of annulment is required.
• Prescriptive period. The donor has 5 years from the time
he had knowledge that consent was not given to revoke
the donation.
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Family Code: title 4
- However, if the donor knew before the celebration of
the marriage that there was no consent, he may not yet
revoke the donation because the parents may still give
their consent.
#3. When the marriage is annulled, and the donee acted in bad
faith
Inconsistency. There is an irreconcilable difference between Article 43
paragraph 3 and Article 83 paragraph 3. Neither also specify whether the
donor is the innocent spouse or the guilty spouse. The former gives the
donor the option to revoke the donation. The latter says that donation
is revoked by operation of law in case of annulment.
• There is a provision of statutory construction that says that the
provision last in the order will prevail because it is the latest
expression of the legislative will. Following this principle, Art
86 should govern. However, this principle is not to be followed
if the prior provision is more harmonious with the general
purpose of the act.
• Hence, it would be more consistent with the purpose of the
law if the donation in consideration of marriage is revoked by
operation of law in case the marriage is annulled and the
donee acted in bad faith. The spouse in bad faith cannot be
allowed to profit or gain in such bad faith when the innocent
spouse chooses not to revoke the donation.
• Also, giving the innocent spouse the option to revoke the
donation might give rise to a situation wherein the guilty party
bargains with the innocent party, saying that the former will
not oppose the annulment case as long as the donation her is
not revoked.
#4. Upon legal separation, the donee being the guilty spouse. The
donor shall have 5 years from the finality of the decree of legal
separation to revoke the donation. However, donations made between
persons guilty of concubinage or adultery at the time of donation shall
be void.
#5. If it is with a resolutory condition and the condition is
complied with. In the case of happening of the condition, the donor
shall have 5 years from the time of the happening of said condition
to revoke the donation.
However, if the donation is made by one spouse in favor of the
other spouse, there shall be no prescriptive period. Article 1109 of
the Civil Code provides that prescription does not run between husband and wife,
even though there be a separation of property agreed upon in the marriage settlement.
JO VALLES
ad majorem dei gloriam
Resolutory condition. This is a condition that the happening of some
future or uncertain event will extinguish the right or obligation.
Example: A promises to give B an allowance of 50k per month until B
graduates. Thee resolutory condition is the graduation of B. The
happening of that future and uncertain event will extinguish the
obligation of A to give an allowance to B. Likewise, it will extinguish the
right of B to receive an allowance from A.
#6. When the donee has committed an act of ingratitude. The
following are acts of ingratitude according to Art 765:
a. If the donee should commit an offense against the person,
honor, or property of the donor, his spouse, or children under
his parental authority
b. If the donee imputes to the donor any criminal offense, or any
act involving moral turpitude, even though he should prove it,
unless the crime has been committed against the donee
himself, his wife, or children under his parental authority.
c. If he unduly refuses him support when the donee is legally or
morally bound to give support to the donor.
The donor shall make the revocation within 1 year from the time the
donor had knowledge of the fact of ingratitude.
Additional effect; ipso facto revocation upon termination 2 nd
marriage in under Article 41 when donee is in bad faith. Under
Article 43(2), donations by reason of marriage shall remain valid upon
termination of the subsequent marriage due to the recording of the
affidavit of reappearance. However, if the donee contracted the marriage
in bad faith, such donations made to said donee are revoked by
operation of law.
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.
Rationale. The reason for this provision is because of fear of undue
and improper pressure or influence upon the donor.
Consequence. The donation is immediately void, and the intended
benefit does not have to be proven
Moderate. The term moderate will depend on the financial capacity of
the donor.
Honor and Excellence. Honor before Excellence.
legal ethics
Indirect donations covered by art 87
1. To a stepchild who has no compulsory and/legal heir
2. To a common child who has no compulsory and/legal heirs
other than the other spouse
3. To parents of the other spouse
4. To the other spouse’s adopted child and who has not heirs, in
cases when, at the time of the donation, the only surviving
relative of the adopted is the other spouse (parent of the
adopted)
5. To a common adopted child who has no other
compulsory/legal heirs.
Reason for those indirect donations being void. They are indirect
donations to the spouse of the donor-spouse because once they die, the
spouse of the donor will inherit from the donee. Even if the donee gives
birth to an heir, the donation remains void. A void donation cannot be
ratified.
Note: Donations by both spouses in favor of their common children
for the exclusive purpose of commencing or completing professional or
vocational course or other activity for self-improvement are valid. The
amount shall be chargeable against the CPG or ACP.
Persons who can challenge validity of transfer. Only those whose
rights or interests are affected may challenge the validity of the transfer.
The validity of the donation or transfer cannot be challenged by those
who:
a. Bore absolutely no relation to the parties to the transfer at the
time it occurred
b. Had no rights or interests inchoate, present, remote, or
otherwise, in the property in question at the time transfer
occurred
Reserva troncal. An ascendant who inherits from his descendant any
property which the latter may have acquired by gratuitous title from
another ascendant, or a brother or sister, is obliged to reserve such
property he may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong to the line
from which said property came. The reason is to keep the property
within the same blood line.
Example: X and A are married, with Y as their only child. 1 and 2 are
siblings of X. X donated a property to Y before X died. Y also died
without an heir. A succeeds to the property acquired by Y gratuitously.
If A dies, the property will not go to her other heirs, but to 1 and 2 who
are relatives of X within the 3rd civil degree. This is reserva troncal.
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Family Code: title 4
CHAPTER 3: SYSTEM OF ABSOLUTE
COMMUNITY
Section 1: General provisions
Article 88. The absolute community of property between 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.
Aliens cannot own public or private land in ACP or CPG; cannot
recover. In both CPG and ACP, an alien absolutely cannot have an
interest in the community or partnership property consisting of real
estate or land. Alien cannot even recover such land as his or her share
in the ACP or CPG. Beumer vs Amores
No reimbursement for value. The alien spouse bought land and titled
it in the name of the Filipina wife. When their properties were separated,
the SC refused to reimburse the cost of the land. No implied trust as
well. Muller vs Muller
Article 89. No waiver of rights, 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.
General rule: No waiver of rights, shares and effects of the absolute
community of property during the marriage can be made. Waiver made
in contravention of this provision shall be considered void.
Exception: Such waiver may be made in case of the following:
1. Judicial separation of property
2. Dissolved or annulled marriage
Rules for the waiver in judicial separation:
1. 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
2. It shall be recorded as provided in Article 77.
JO VALLES
ad majorem dei gloriam
Article 77 provides that it shall not prejudice 3rd persons unless they are
registered in:
a. LCR where the marriage is contracted
b. Proper registries of property, where the properties are
recorded.
Creditors can ask for rescission. 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.
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.
Rationale. The reason for this is that ACP is a special type of co-
ownership. Note that the rules on co-ownership apply only in suppletory
character
Rules of co-ownership on use. Each co-owner may use the thing
owned in common provided they:
a. Do so in accordance for the intended purpose
b. Do so in such a way that does not injure the interest of the co-
ownership
c. Do so in such a way that does not prevent the other co-owner
from enjoying the use thereof.
Civil Code co-ownership merely suppletory. Under the CC, no co-
owner shall make alterations in the thing owned in common without the
consent of the others, even though benefits for all would result
therefrom. However, under the Family Code, if the alteration redounds
to the benefit of the family, the ACP will be liable even if the said
alteration was done without the consent of the other spouse. The Family
Code prevails.
Section 2. 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.
General rule: All properties acquired before the celebration of the
marriage and all those that may be acquired thereafter shall be
community property.
Exceptions: The law admits only the following 4 exceptions:
Honor and Excellence. Honor before Excellence.
legal ethics
1. Those agreed in the marriage settlements that belong
exclusively to either spouses
2. Those enumerated in Article 92 below.
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.
#1 Gratuitous title property and fruits. The property must be
acquired through a valid gratuitous acquisition during the marriage.
Munoz v Ramirez; Hence, it cannot pertain to property donated by one
spouse to the other.
• Donor may provide otherwise. The unless clause covers the
property and the fruits.
#2. Property for personal and exclusive use of either spouse. These
properties may have been acquired before or during the subsistence of
the marriage
• This rule must be interpreted in terms of value. Hence, for
a billionaire, a Porsche may still be considered property for
personal and exclusive use.
#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.
• The law uses the word descendants to include children,
grandchildren, and all other descendants.
• The descendants must also be legitimate. If they are
illegitimate, the properties shall belong to the ACP.
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.
Everything except gratuitous; presumed community. All properties
acquired during the marriage either by purchase, exchange, barter, or by
any other means aside from donation and inheritance, belong to the
52
Family Code: title 4
community. This is true even if the exclusive property of either spouse
was used to acquire the new property.
Property acquired during marriage using separate property; ACP.
Under the CPG, whenever property is acquired using exclusive funds,
said property is also exclusive property. However, there is no
counterpart provision in the ACP. Hence, under the ACP regime,
properties acquired using exclusive funds are conjugal. This is consistent
with Articles 91 and 93.
Section 3. Charges and obligations of the absolute
community property
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, liens, 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) Ante-nuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive purpose
of commencing or completing a professional or vocational course
or other activity for 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 a 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 of litigation between the spouses unless the suit is
found to be groundless.
JO VALLES
ad majorem dei gloriam
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.
#1. Support. This comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education, and transportation, in
keeping with the financial capacity of the family.
• Rule for support of illegitimate children. In supporting
illegitimate children, the separate property of the parent shall
be charged. In case of insufficiency, such amount may be
charged against the community property, but the amount shall
be considered as an advance to be deducted from such
spouse’s share in the community property upon liquidation.
#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. If administration has been delegated to one of the spouses
as administrator, the consent of the other spouse is not necessary in
contracting obligations that benefit the family. However, proof must be
shown that there was indeed benefit to the family. Community property
shall be liable but only to the extent of the benefit provided to the family.
#3. Debts and obligations contracted by either spouse without the
consent of the other to the extent that the family may have been
benefited;
• General rule: The community property is liable only for
obligations contracted for the benefit of the family.
• Exception: The community property may be held liable for
obligations not redounding to the benefit of the family if such
obligation was contracted with the consent of the other
spouse.
#4. Taxes, liens, charges, ordinary and extraordinary repairs.
These can all be done even without the consent of the other spouse,
following the rules on co-ownership.
#5. Taxes and expenses for preservation of exclusive property.
This is premised on the fact that such exclusive property is used by the
family.
#8. The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement;
Honor and Excellence. Honor before Excellence.
legal ethics
• BOTH spouses must donate. If only one spouse donates, it
is void for being an indirect donation between spouses in
violation of Article 87
#9. Obligations arising from insufficiency of exclusive property.
a. Ante-nuptial debts of either spouse:
b. other than those falling under paragraph (7) of this Article,
c. the support of illegitimate children of either spouse, and
d. liabilities incurred by either spouse by reason of a crime or
a quasi-delict
Charge against the ACP but considered as advances. The
community property is liable only in case of absence or insufficiency of
the exclusive property of the debtor-spouse. The payment of such shall
be considered as advances to be deducted from the share of the debtor-
spouse upon liquidation of the community;
#10. Expenses of litigation between the spouses unless the suit is
found to be groundless. Community property may be held liable for
suits not involving the husband and the wife as long as the suit benefits
the family.
Insufficiency of ACP; solidary liability. 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.
Solidary obligation. This arises when any of the creditors may seek
reimbursement of the full amount of the debt from either or all
creditors.
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.
Rule: Losses borne by loser, winnings go to ACP.
Scenario. A stranger, without any consideration, gave the wife a
sweepstakes ticket. Later, the ticket won P100B. To whom do the
winnings belong? Exclusive property of wife. The ticket was given
gratuitously to the wife, therefore, it is exclusive property. The winnings
are fruits of such property acquired gratuitously, which under Article
92(1), is also exclusive unless otherwise provided by the donee.
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Section 4. Ownership, administration, enjoyment and
disposition of the community property
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 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 disposition or encumbrance without 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, 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.
Effect of insolvency. The ownership, administration, possession, and
enjoyment of common property belong to both spouses jointly.
However, the right of the insolvent spouse may be legally curtailed the
court, thereby making the solvent spouse the sole administrator of the
community property.
Joint does not mean always acting together. Joint management or
administration does not require that the husband and the wife always act
together. Each spouse may validly exercise full power of management
alone, subject to the intervention of the courts in proper cases.
In case of disagreement, the husband’s decision shall prevail;
modus vivendi. This is to prevent from arising a void or vacuum. This
is subject to recourse to the court by the wife for proper remedy, which
must be availed of within five years from the date of the contract
implementing such decision. If the wife insists on her methods despite
disapproval of the husband, the husband may also go to the courts for
proper relief.
Administration can be delegated to the other spouse. However, the
administration of the property may be validly delegated to only one
spouse in a marriage settlement executed prior to the marriage.
One spouse incapacitated. In the event that one spouse is
incapacitated or otherwise unable to participate in the administration of
JO VALLES
ad majorem dei gloriam
the common properties, the other spouse may assume sole powers of
administration.
Administration does not include disposition or encumbrance.
There must be 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.
Article 97. Either spouse may dispose by will of his or her interest in
the community property.
Will. A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his
estate, to take effect after his death. The testator may make dispositions
as he may seem fit provided that the provisions do not encroach on the
legitimes of his compulsory heirs
• The legitime is that portion of the testator’s property which
cannot be disposed of because the law has reserved it for the
compulsory heirs.
Disposition of properties not allowed; only interests. Either spouse
may dispose of his or her specific separate properties in a will. In APC,
a spouse may dispose only of his or her interest in the community
property, and not specific property.
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.
General rule on donation. Neither spouse may donate any community
property without the consent of the other. The reason for this
prohibition is to protect the other spouse from the prodigality of a
reckless or faithless spouse.
Exception: However, either spouse may, without the consent of the
other, make moderate donations from the community property for:
a. Charity or on
b. occasions of family rejoicing or
c. on occasions of family distress.
Whether the donation is moderate or not depends on the financial
condition of the spouses and the ACP.
Effect of alienation and encumbrance. Disposition of community
property by one spouse without the knowledge and consent of the other
is null and void.
Honor and Excellence. Honor before Excellence.
legal ethics
• There is no prescriptive period for the declaration of nullity of
this transaction.
Alternative; turnover proceeds to ACP. If the disposition of the
property is not voided because the rights of the 3 rd person are protected
by law, the remedy of the aggrieved spouse is to have the erring spouse
account for the proceeds as part of ACP.
Purchaser in good faith. This is a person who buys the property of
another without notice that some other person has a right or interest in
such property, and pays the full and fair amount for said property at the
time of purchase or before he has notice of the claim or interest of
another person in such property. He must inquire as to:
a. The validity of the title of the seller
b. The authority of the seller to sell. Aggabao vs Parulan
Section 5. Dissolution of absolute community regime
The termination of the ACP does not automatically mean the
termination of the marriage. However, the termination of the marriage
simultaneously results in the dissolution of the ACP.
Article 99. The absolute community 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 to 138.
DE.LE.AN.JU
#1. Upon the death of either spouse. The liquidation shall be made
in the same proceeding as the settlement of the estate of the deceased.
#2. When there is a decree of legal separation. This is one of the
effects of a legal separation decree. The offending spouse shall have no
right to share in the net profits.
#3. When the marriage is annulled or declared void. Generally, the
rules on co-ownership govern void marriages. There is no ACP to speak
of when the marriage is void. The exceptions are subsequent marriages
that are void for violating Art 40, which are governed by ACP or CPG.
The offending spouse shall have no right to share in the net profits.
#4. In case of judicial separation of property during the marriage
under Articles 134 to 138.
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Article 100. The separation in fact between 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 spouses shall be solidarily liable for the support
of the family. The spouse present shall, upon proper 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.
General rule. The ACP is not affected by the separation in fact of the
parties. The ACP is still liable for all obligations incurred by either
spouse for the benefit of the family and may be held liable for the
charges under Article 94.
Exceptions:
LE.CO.SUF.
#1. Leaving the conjugal home w/o just cause; no support. This is
only applicable if the spouse leaves without just cause. If so, he shall be
denied support, but the ACP may still be liable for the expenses that
such spouse might have incurred for the benefit of the family.
#2. Consent through judicial authorization. Either spouses, may it
be the one who leaves without just cause, may ask for this relief.
#3. Insufficient community property; judicial authority to
administer/encumber property of the other spouse. Only the
present spouse is given the standing to file this petition.
Article 101. 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 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.
JO VALLES
ad majorem dei gloriam
A spouse is deemed to have abandoned the other when her or she has
left the conjugal dwelling without 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.
Fails to comply; gross negligence. If the negligence of inefficiency is
not merely isolated, but so gross that it is likewise constantly done
without any effort or only with a token of effort to improve, this is also
failure to comply with marital obligations.
Abuse. Abuse connotes willful and utter disregard of the interest of the
partnership, evidenced by repetition of deliberate acts or omissions
prejudicial to the latter.
• Mere refusal or failure of the administrator of the property to
inform the other spouse of the progress of the family business
does not by itself constitute abuse. Dela Cruz vs Dela Cruz
Abandonment. Abandonment includes both physical estrangement
and financial and moral desertion. Dela Cruz vs Dela Cruz
Section 6. Liquidation of the absolute community
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 in 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 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 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.
Honor and Excellence. Honor before Excellence.
legal ethics
(6) Unless otherwise agreed upon by 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 in no such majority, the court shall
decide, taking into consideration the best interests of said children.
INDEX NET LEG CON
Upon dissolution of the absolute community regime, the following
procedure shall apply:
#1. An inventory shall be prepared. The properties are itemized and
valued. In the appraisal, we use the market value. In its absence, we use
the assessed value. Such values may be updated from time to time.
#3. Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them. This refers to those
properties stipulated in the marriage settlement as exclusive and those
enumerated under Article 92.
#4. The net remainder of the properties shall be divided equally
between husband and wife, unless:
a. A different proportion or division was agreed upon in the
marriage settlements
b. There has been a voluntary waiver of such share provided in
this Code.
Net profits. 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 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.
• In nullifying marriages (except under Article 40), annulment,
and legal separation, the share of the offending spouse is
forfeited.
• Forfeiture shall take place upon termination of cohabitation.
#5. The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51. This is
always required in annulment. In nullity, this is required only for
subsequent void marriages under Art 40, in relation to Art 52 and 53.
The children, guardian or their trustee may ask for reinforcement of the
judgment.
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Family Code: title 4
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
extra-judicially 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
complying with the foregoing requirements, a mandatory regime of
complete separation of property shall govern the property relations
of the subsequent marriage. (n)
When one spouse dies. Properties will be liquidated in the testate or
intestate proceedings of the deceased spouse. In this case, the ACP or
the CPG evolves in to a co-ownership between the spouse and the other
heirs.
When both spouses die. Properties will be liquidated in the testate or
intestate proceedings of either spouses
Claims against the estate. Upon death of either spouse, the ACP or
the CPG shall be terminated or dissolved. All debts chargeable against
the CPG or the APC shall be claimed in the settlement of estate
proceedings of the deceased spouse
• The heirs cannot be held liable for more than what they inherit
• No complaint for the collection of indebtedness chargeable to
the ACP or the CPG shall be brought against the surviving
spouse. Alipio vs CA
• Unless such spouse has committed herself to be solidarily liable
for the claims against the ACP/CPG. Imperial Insurance vs David
In case estate is not judicially settled, surviving spouse shall
liquidate 1 yr from death. If no judicial settlement proceeding is
instituted, the surviving spouse shall liquidate the community property
either judicially or extra-judicially within 1 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.
• Disposition before lapse of 1 yr also void. Note also that the
disposition of any of the properties before the lapse of the one-
year period is likewise void for being premature.
• Upon the death of the decedent and before liquidation and
partition, only the interest to the property and not any physical
and definite property is vested to the heirs.
JO VALLES
ad majorem dei gloriam legal ethics
a. The interest of an heir may be attached for purposes Note that the duration of the marriage is the only basis in the absence
of execution even if the estate is in the process of of the value of the assets of each marriage. Hence, 2/5 or 40%
settlement before the courts. (P6,000) will go to marriage 1 heirs, and 3/5 or 60% (P9,000) will go to
b. This attachment is subject to the administration of the heirs of marriage 2.
the estate.
c. Until division is effected, each one is a co-owner of a #3. Equal duration of marriage, assets of each marriage different
share which is abstract and not concretely • Marriage 1 and 2: 5 years each
determined. • Asset in Marriage 1: 1,000
• Asset in Marriage 2: 2,000
Mandatory regime of separation of property for next marriage. Note that in this problem, there are 2 bases for computation- the
Should the surviving spouse contract a subsequent marriage without duration and the value of the assets. But since the duration of the
compliance with the foregoing requirements, a mandatory regime of marriage is the same in both marriages, this factor becomes immaterial
complete separation of property shall govern the property relations of in our computation. Therefore, the computation is based on the value
the subsequent marriage. Stipulation that ACP or CPG shall govern is of the assets alone. The first marriage gets 1/3 or P5, 000. The second
void for being contrary to law. marriage gets 2/3 or P10, 000.
Article 104. Whenever the liquidation of the community properties of #4. Unequal duration of marriage, assets of each marriage equal
two or more marriages contracted by the same person before the • Marriage 1: 2 years
effectivity of this Code is carried out simultaneously, the respective
• Marriage 2: 3 years
capital, fruits and income of each community shall be determined upon
such proof as may be considered according to the rules of evidence. In • Assets in marriage 1 and 2: 10,000 each
case of doubt as to which community the existing properties Note that in this problem, there are 2 bases for computation- the
belong, the same shall be divided between the different communities in duration and the value of the assets. But since the value of assets is the
proportion to the capital and duration of each. same in both marriages, this factor becomes immaterial in our
computation. Only the duration is considered. The effect therefore is
the same as when the value of the assets is unknown. 2/5 or 40%
Note: This pertains to at least 2 marriages contracted by the same
(P6,000) will go to marriage 1 heirs, and 3/5 or 60% (P9,000) will go to
person prior to August 3, 1988.
the heirs of marriage 2.
There are 5 possible scenarios as seen below.
#5. Unequal duration of marriage, assets of each marriage
• Data: Fair market value of the assets at the time of liquidation is different
P15,000.
• Marriage 1: 2 years; 1,000
• Required: Compute the amount to be distributed to the heirs
• Marriage 2: 3 years; 2,000
of both marriages.
Now there are two different bases which are relevant for our
computation.
The law provides that the properties shall be pro-rated based on
Duration Assets Total Proportion Share
the capital and duration of each marriage.
2 years x 1,000 2,000 2/8 3, 750
#1. Equal duration of marriage, assets of each marriage unknown. 3 years 2,000 6,000 6/8 11,250
Note that the duration is the only factor available in the problem. Hence,
the properties are to be divided equally. 7,500 will be given to the heirs CHAPTER 4: CONJUGAL PARTNERSHIP OF
of the first marriage and the second marriage. GAINS
#2. Unequal duration of marriage, assets of each marriage Section 1: general provisions
unknown.
• Marriage 1: 2 years Article 105. In case the future spouses agree in the marriage
• Marriage 2: 3 years settlements that the regime of conjugal partnership gains shall govern
Honor and Excellence. Honor before Excellence. 56
Family Code: title 4
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 partnerships
of gains already established between 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
No automatic conversion to CPG for marriages celebrated before
FC. The property regime of spouses married before August 3, 1988 is
not automatically converted into ACP upon the effectivity of the FC.
• CPG but governed by FC. The CGP regime is retained, if
such was the prevailing property regime, and the spouses shall
be governed by the provisions of CPG under the Family Code,
and not the old provisions of CPG under the Civil Code.
• Unless vested rights will be impaired. If vested rights
already acquired, the provisions of the Civil Code govern.
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 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.
What constitutes conjugal property:
a. The proceeds, products, fruits and income from their separate
properties
• Note that in ACP, it is not just the fruits that are
brought into the common fund. The principal is
included as well.
b. Those acquired by either or both spouses through their efforts
or by chance
• Effort- an activity or undertaking which may or may
not be rewarded
• Chance- activities like gambling or betting
The proof of acquisition during the marriage suffices to render the
statutory presumption of conjugality to attach. This means that as
long as it is proved that a particular property was acquired during the
marriage, it is presumed to be conjugal.
Those acquired by gratuitous title during the marriage are
exclusive. Note that only those acquired by efforts or chance are
included. Therefore, properties acquired by gratuitous title during the
marriage are not included.
JO VALLES
ad majorem dei gloriam
Equal division upon dissolution unless otherwise agreed. 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.
Article 107. The rules provided in Articles 88 and 89 shall also apply to
conjugal partnership of gains.
Article 88; The CPG between spouses shall commence at the
precise moment that the marriage is celebrated. What is considered
is the hour, not the date of marriage. Any stipulation, express or implied,
for the commencement of the community regime at any other time shall
be void.
• In both CPG and ACP, an alien cannot have an interest in the
community or partnership property consisting of real estate or
land.
Article 89; no waiver unless separation of property. No waiver of
rights, shares and effects of the CPG during the marriage can be made.
Waiver made in contravention of this provision shall be considered void,
except in case of judicial separation of property, such waiver may be
made.
Rules for the waiver:
1. Public instrument. 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
2. Recorded in LCR and RD. It shall be recorded as provided
in Article 77, which provides that it shall not prejudice 3rd
persons unless they are registered in:
a. LCR where the marriage is contracted
b. Proper registries of property, where the properties are
recorded.
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.
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.
FC > CC. In case of conflict between Civil Code and Family Code,
Family Code will govern. Homeowners Savings & Loan Bank vs Dailo
Honor and Excellence. Honor before Excellence.
legal ethics
Example of partnership provisions applicable to CPG:
• Article 1799. A stipulation which excludes one or more
partners from any share in the profits or losses is void.
• Article 1811. A partner is co-owner with his partners of
specific partnership property.
• Article 1807. Every partner must account to the partnership
for any benefit and hold as trustee for it any profits derived by
him without the consent of the other partners from any
transaction connected with the formation, conduct, or
liquidation of the partnership or from any use by him of its
property. (n)
• Article 1818. Every partner is an agent of the partnership for
the purpose of its business, and the act of every partner,
including the execution in the partnership name of any
instrument, for apparently carrying on in the usual way the
business of the partnership of which he is a member binds the
partnership, unless the partner so acting has in fact no
authority to act for the partnership in the particular matter, and
the person with whom he is dealing has knowledge of the fact
that he has no such authority.
A spouse may sue on behalf of the other spouse. In suits to recover
properties, all co-owners are real parties in interest. Anyone of them may
bring an action. Only one of the co-owners, therefore, is an
indispensable party. The others are not even necessary because the suit
is presumed to have been filed for the benefit of all co-owners. Carandang
vs Heirs of Quirino
Section 2. 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 acquires 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.
#1. That which is brought to the marriage as his or her own; but
fruits thereof are CPG. The partnership does not produce merger of
properties of each spouse. The nature as separate property shall remain
unless the contrary is proved by positive and convincing evidence.
However, the fruits thereof are conjugal property (Article 106)
• Exclusive even if registered after marriage w/ spouse as
co-owner. The property remains exclusive even if the
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registration of the same was only after the marriage and the
spouse was named as co-owner, if it was bought before the
marriage using separate property. Naming the spouse as co-
owner only creates a trust, necessitating the restoration to the
real owner-spouse of the subject property upon liquidation.
Plata vs Yatco
• Vs ACP. In ACP, properties brought into the marriage are
common properties.
Exclusive property primarily for exclusive debts. The exclusive
properties brought into the marriage shall be principally used to pay the
personal debts of the spouse not redounding to the benefit of the family,
for fines and indemnities imposed on him, and support of his illegitimate
children.
#2. That which each acquires during the marriage by gratuitous
title; but fruits thereof are CPG.
• Honorarium is acquired gratuitously. Honorarium is defined as
something given not as a matter of obligation but in
appreciation for services rendered, or a voluntary donation in
consideration of services which admit no compensation in
money. Santiago v COA; However, the fruits thereof are
conjugal property (Article 106)
• Property inherited or acquired by succession is also exclusive
property, whether acquired before or after marriage. However,
the fruits thereof are conjugal property (Article 106)
• Vs ACP. Same rule with ACP with respect to the property
itself. Both are exclusive. However, the rule is different when
it comes to the fruits. In ACP, the fruits are exclusive, but in
CPG, the fruits are conjugal.
#3. That which is acquired by right of redemption, by barter or by
exchange with property belonging to only one of the spouses. In
case of redemption, the property shall belong to the spouse who has
the right to redeem regardless of whether he or she uses personal funds.
However, when conjugal funds are used to redeem, the spouse making
the redemption shall reimburse the conjugal partnership. Santos vs
Bartolome
#4. That which is purchased with exclusive money. When separate
property of one spouse is used as part of the purchase price of a new
property, such property becomes conjugal. When property is purchased
during the marriage using separate property of one spouse,
circumstances shall determine whether it is a trust or a donation.
JO VALLES
ad majorem dei gloriam
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 the property is located.
Spouses retain the ownership, possession, administration and
enjoyment of their exclusive properties. When the exclusive property
of one spouse is sold to satisfy the personal obligation of the other
spouse, the former spouse may execute an action to annul such sale.
Under the rules of court, the former spouse is considered as a third party
or a stranger to the transaction of the latter spouse, and is therefore
justified in bringing an independent action to vindicate her right of
ownership.
Transfer of administration to the other spouse. This includes:
1. Entering into contracts regarding the use of property
2. Engaging in litigation
3. Collecting fruits, profits, and income
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.
Even if administration is transferred to the other spouse/stranger.
This is true even if the administration is transferred to the other spouse
or to a stranger (even without the consent of the other spouse).
Effects of alienation:
1. The administration of the other spouse terminates
2. The proceeds of the alienation are turned over to the owner-
spouse
Exception; when other spouse given court authority to administer
exclusive property of the other. When the spouses are separated in
fact and in order to satisfy the conjugal obligations, the other spouse is
given the judicial authority to administer the exclusive property of the
other spouse under Article 127, the owner spouse cannot revoke the
judicially approved administration of the present spouse by the mere
expediency of alienating such property.
Article 112. The alienation of any exclusive property of a spouse
administered by the other automatically terminates the administration
Honor and Excellence. Honor before Excellence.
legal ethics
over such property and the proceeds of the alienation shall be turned
over to the owner-spouse.
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.
Donation to spouses; there is accretion. There shall be a right of
accretion between them whether or not there is a designation of
determinate shares made by the donor. This means that in case the other
spouse does not accept her share in the donation, said share goes to the
other spouse. The entire property donated will form part of exclusive
property of the donee-spouse, in accordance with Article 109.
Exceptions. There shall be no right of accretion when:
1. The donor provides that there shall be no right of accretion.
2. The designation is not of determinate shares but of
determinate properties, like a house or car.
Property willed to spouses; no accretion. If property is left to spouses
by will, there shall be no right of accretion
Exceptions. There shall be a right of accretion when:
1. The husband and the wife are called to the same inheritance or
to the same portion thereof pro indiviso (not divided), and
2. One of the spouses dies before the testator, or renounces the
inheritance, or becomes incapacitated to receive it.
Article 114. If the donations are onerous, the amount of the charges
shall be borne by the exclusive property of the donee spouse, whenever
they have been advanced by the conjugal partnership of gains.
The property donated remains to be exclusive property of the spouse,
but the CPG is entitled to reimbursement for amounts expended in
relation thereto.
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.
Whether they are conjugal or exclusive will depend upon how they
were obtained.
• If they were acquired on pure liberality of the donor, they shall
be exclusive
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• But if they were acquired as a matter of right, then they shall
be conjugal.
Pensions. These are in the nature of compensation for services
previously rendered for which full and adequate compensation was not
received at the time of rendition of the service. These are generally not
considered donations or gratuities.
Annuity. An annuity is not a gratuity if the recipient is entitled to it as a
matter of right.
Gratuity. This is an act of pure liberality and is acquired by lucrative title
like donations and gifts. The SC held that any amount given by the
government because of previous work is a gratuity and therefore should
be exclusive property.
INSURANCE POLICY
*no more shared under family code. The premiums are conjugal,
subject to reimbursement to spouse who paid using her separate
property (p530)
Section 3. Conjugal partnership property
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.
Presumption of CPG applies only after it has been proved that the
property in controversy was acquired during the marriage. For as
long as acquisition is proven to be during the marriage, the presumption
will apply even when the manner in which the properties were acquired
does not appear. The presumption applies even if the spouses are living
separately. During the marriage, presumption is always in favor of
conjugality. Jocson vs CA
JO VALLES
ad majorem dei gloriam
If presumption is overcome, trust is created. However, the
circumstances may disprove conjugality even if the registration shows
otherwise because oftentimes, the properties are registered in the names
of both spouses even if acquired only by one spouse. This is because of
the trust and confidence between them. It is only but fair that upon
liquidation, such trust be recognized and enforced and the real
ownership be established.
When presumption does not apply
1. There is no showing when it was acquired and the title is in the
wife’s name alone
2. Inscription of the phrase “married to A” is only descriptive of
the civil status and does not prove conjugality
3. Registration is not proof of acquisition during the marriage
because it could have been acquired at a different time
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 acquisition 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 spouse 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;
(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.
O.L.F.T.O.L.C
#1. Acquired by onerous title during the marriage at the expense
of the common fund.
• Damages granted by the courts for contracts solely financed by
the conjugal partnership and unduly breached by a third person
belongs to the CPG. Zulueta vs Pan American
o But damages awarded to one of the spouses as a
result of physical injuries inflicted by a third party,
such damages belong exclusively to the injured
spouse. Lilius vs Manila Railroad
Honor and Excellence. Honor before Excellence.
legal ethics
• Damages arising out of illegal detention of the exclusive
property of the spouse belongs to the CPG if the detention
deprived the partnership of the use and earnings thereof.
Bismorte vs Aldecoa
#2. Those obtained from the labor, industry, work or profession of
either or both of the spouses
#3. 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
a. Fruits of the common property belong to the CPG
b. Net fruits of the exclusive property belong to the CPG.
o The fruits of the exclusive property shall first be used
to satisfy the expenses of administration of the
separate property; the balance is CPG
#4. The share of either spouse in the hidden treasure which the
law awards to the finder or owner of the property where the
treasure is found
• Hidden treasure contemplates artifacts or objects which have
undergone transformation from their original raw state
(earrings, necklaces, bracelets)
• For legal purposes, it is any hidden and unknown deposit of
money, jewelry, or other precious object, the lawful ownership
of it does not appear. Article 439, CC
o However, gold nuggets, precious stones in their raw
state, oil, and the like are not treasures because
matters concerning minerals and mineral lands are
governed by special laws.
#5. Those acquired through occupation such as fishing or
hunting. This was separated from #2 because in the case of industry or
work, one is sure to earn. In fishing and hunting, there is the element of
chance.
#6. Livestock existing upon the dissolution of the partnership in
excess of the number of each kind brought to the marriage by
either spouse. If the spouse contributed 40 cows and as a result of the
marriage it becomes 60, 20 shall be conjugal property. In this case, the
partnership is the debtor and the owner-spouse is the creditor. The
debtor cannot offer the worst cow, while the creditor cannot demand
the best
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#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
Scenario. A stranger, without any consideration, gave the wife a
sweepstakes ticket. Later, the ticket won P100B. To whom do the
winnings belong? Exclusive property of wife. The ticket was given
gratuitously to the wife, therefore, it is exclusive property. The winnings
are income, which under Article 117, is conjugal
Article 118. Property bought on installments 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.
Applicability. This provision applies when the installment was initiated
prior to the marriage, but ended during the marriage.
Installment purchases. The ownership of the property is determined
at the time when the title is vested.
a. Vested before marriage. It forms part of the exclusive
property of the buyer under Article 109. If part of the
installments were paid out of conjugal funds, the property
remains to be exclusive but the conjugal partnership shall be
entitled to reimbursement.
b. Vested after marriage. It forms part of conjugal property. In
this case, the spouse who contracted the marriage shall be
entitled to reimbursement from the conjugal partnership.
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 installments 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.
Principal collected during marriage; exclusive. Payments made for
the principal debt shall be exclusive property of the spouse in whose
favor the debt is paid. This is consistent with Article 109 which states
that property brought into the marriage is exclusive.
JO VALLES
ad majorem dei gloriam
Interest collected during marriage; CPG. Interest payments are
considered fruits, and therefore part of conjugal property. This is
consistent with Article 117.
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 the 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 the 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 one 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 improvement; 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.
Procedure:
1. Compute the value of the improvement
2. Compute the increase in the value of the property due to the
improvement.
3. Compute the value of the property at the time of improvement
4. Compute 1+2
5. Compare #1 and #4
If #4 is greater than #1, the entire property shall belong to the
conjugal partnership. The owner-spouse shall be entitled to
reimbursement equal to the value of the property of the owner-spouse
at the time of the improvement. DUH siya nagbayad originally eh. Edi
unjust enrichment if no reimbursement.
If #1 is greater than #4, the said property shall be retained by the
owner-spouse. The CPG shall be entitled to reimbursement equal to
the cost of the improvement made. Note that the increase in value is not
reimbursed by the owner-spouse. The reason for this is because prior to
liquidation, such spouse retains ownership. And as owner he or she is
entitled to all risks and rewards.
Note: This does not give rise to a cause of action against third persons
like subsequent buyers of the property. This only allows claims from the
husband or wife if he or she is still the owner of the property upon
liquidation. Ferrer vs Ferrer
Honor and Excellence. Honor before Excellence.
legal ethics
Usufructuary. The conjugal partnership may use both the land and the
improvement, but not as owner but in the exercise of a usufruct. The
ownership remains with the owner-spouse until the value of the land is
paid. There is no automatic conveyance of ownership to the conjugal
partnership. Therefore, such separate property cannot be levied upon to
satisfy a conjugal debt prior to liquidation, during which ownership is
vested accordingly.
Exception: If the conjugal funds are insufficient to pay the conjugal
debts, the separate property can be held solidarily liable.
Section 4. Charges upon and obligations of the conjugal
partnership
Liabilities shall be chargeable to the CPG only if they benefit the
same. Debts incurred for a commercial enterprise for gain or in the
exercise of the industry or profession by which the spouse as
administrator of the property contributes to the support of the family,
cannot be deemed to be his exclusive and private debts. CPG is liable.
• Family business; presumption of benefit to family. Where
the spouse contracts obligations on behalf of the family
business, the law presumes that such obligation would redound
to the benefit of the conjugal partnership. Ayala Investment v CA
• Guarantor; not beneficial to family. If the money is given to
another person and the husband acted only as surety or
guarantor, the contract cannot, by itself, be categorized as for
the benefit of the CPG because it is clearly for the benefit of
the principal debtor. Security Bank cs Mar Tierra
Burden of proof; one who claims family was benefited. The burden
of proof that the debt was contracted for the benefit of the CPG lies
with the person claiming that it redounded to the benefit of the family.
Obligation of husband and wife; representatives of CPG. When
they are sued for the enforcement of an obligation entered into by them,
they are impleaded in their capacity as representatives of the CPG, and
not as independent debtors.
Consequence; no solidary/joint liability if CPG properties are
sufficient. As between them, the concept of joint or solidary liability
does not arise. Hence, a creditor cannot consider the spouses jointly
liable such that he will collect one half from the husband and one half
from the wife. A creditor cannot consider the spouses solidarily liable
such that he will collect the full amount from either of them. He must
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go after the CPG. The separate properties will only be liable if conjugal
properties are insufficient.
Insolvency of either spouse; cannot collect from CPG unless
family was benefited. Generally, the CPG cannot be among those
assets to be taken possession of by the assignee for the payment of the
insolvent debtor’s obligations. The exception is if the obligations have
redounded to the benefit of the family, creditor may collect from CPG.
Article 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the legitimate
children of either spouse; however, the support of illegitimate children
shall be governed by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the
designated 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 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;
(8) The value of what is donated or promised by both spouses in favor
of their common legitimate children for the exclusive purpose of
commencing or completing a professional or vocational course or other
activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is found
to groundless.
If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid balance
with their separate properties.
#1. The support of the spouse, their common children, and the
legitimate children of either spouse;
o However, the support of illegitimate children shall be
governed by the provisions of this Code on Support;
SUPPORT. This comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education, and transportation, in
keeping with the financial capacity of the family.
a. In supporting illegitimate children, the separate
property of the parent shall be charged.
JO VALLES
ad majorem dei gloriam
b. In case of insufficiency, such amount may be charged
against the conjugal property but the amount shall be
considered as an advance to be deducted from such
spouse’s share in the community property upon
liquidation.
#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. Consent of the other spouse is
not necessary in contracting obligations that benefit the family.
However, proof must be shown that there was indeed benefit to the
family. Community property shall be liable but only to the extent of the
benefit provided to the family.
#3. Debts and obligations contracted by either spouse without the
consent of the other to the extent that the family may have
benefited
GENERAL RULE: The conjugal property is liable only for obligations
contracted for the benefit of the family.
EXCEPTION: The conjugal property may be held liable for obligations
not redounding to the benefit of the family if such obligations were
contracted with the consent of the other spouse.
#8. The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement. BOTH
spouses must donate. If only one spouse donates, it is void for being an
indirect donation between spouses in violation of Article 87
#9. Expenses of litigation between the spouses unless the suit is
found to groundless. Community property may be held liable for suits
not involving the husband and the wife as long as the suit benefits the
family.
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 spouse making the
payment shall be entitled to reimbursement corresponding to their
respective shares, with interest from the time payment was due. If the
payment us made before the date is due, no interest for the intervening
period may be demanded.
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
Honor and Excellence. Honor before Excellence.
legal ethics
conjugal properties 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 purpose
above-mentioned.
General Rule: Payments of debts contracted before or during the
marriage, and fines and pecuniary indemnities imposed upon them are
not chargeable to the CPG.
Exception: Liabilities shall be chargeable to the CPG if they benefit the
same
CPG may be charged if the following requisites concur:
1. All CPG liabilities have been paid. There is no such
requirement in ACP because the ACP has fewer, if any at all,
exclusive properties with which to meet their personal
obligations.
2. When the separate property of the spouse is insufficient
or spouse has no exclusive properties. Note: In case the
CPG is made liable, the debtor spouse shall reimburse the
partnership upon its liquidation
Vs ACP. In ACP there is no requirement that the ACP obligations be
paid first. The reason for the difference is that in ACP, the spouses have
little exclusive properties to meet their personal obligations.
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 loser and
shall not be charged to the conjugal partnership but any winnings
therefrom shall form part of the conjugal partnership property.
Section 5. Administration of the conjugal partnership
property
Note: When the marriage settlements provide that the spouses have unequal share
in the CPG, such stipulation does not affect the joint administration of the
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spouses during the marriage. The spouses are in equal footing, unless otherwise also
agreed upon in the marriage settlements. This is also true in ACP
Article 124. The administration and enjoyment of the conjugal
partnership 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 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 conjugal properties, the other
spouse may assume sole powers of administration. These powers do not
include disposition or encumbrance without 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, 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.
Joint does not mean always acting together. Joint management or
administration does not require that the husband and the wife always act
together. Each spouse may validly exercise full power of management
alone, subject to the intervention of the courts in proper cases.
In case of disagreement, the husband’s decision shall prevail;
modus vivendi. This is to prevent from arising a void or vacuum. This
is subject to recourse to the court by the wife for proper remedy, which
must be availed of within 5 years from the date of the contract
implementing such decision. If the wife insists on her methods despite
disapproval of the husband, the husband may also go to the courts for
proper relief.
Administration can be delegated to the other spouse. However, the
administration of the property may be validly delegated to only one
spouse in a marriage settlement executed prior to the marriage.
One spouse incapacitated. 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.
Administration does not include disposition or encumbrance.
There must be 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.
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ad majorem dei gloriam
Summary proceedings to challenge husband’s decision. In cases
involving the annulment of the husband’s decision in the administration
and enjoyment of the conjugal property and in cases of conflict with the
wife’s decision, the proceedings are summary in nature. This is
applicable when:
1. The other spouse is absent
2. The spouses are separated in fact
3. There was abandonment
4. Consent is withheld or cannot be obtained
Exception; guardianship if other spouse incapacitated. When the
other spouse is incapacitated or incompetent to give consent, the proper
remedy is judicial guardianship under the Rules of Court, and not a
summary proceeding to assume sole powers of administration. Uy vs CA
Acts of strict dominion. These are acts of ownership such as sale,
exchange, subjecting the property to encumbrances.
c. No knowledge, no consent of other spouse. The act is void
d. With knowledge, but no consent of other spouse. The act is
annullable at the instance of the party who does not give consent
within five years from the date of the contract implementing such
decision. Ravina vs Abrille
e. However, if the purchaser knew that the property was conjugal
property but nevertheless bought it from the husband without the
consent of the spouse, the sale is void. They acted in bad faith and
consistent with the doctrine of unjust enrichment, purchase price
must be returned with interest.
Acts of administration. The act is rescissible at the instance of the
party who does not give consent within five years from the date of the
contract implementing such decision.
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.
General rule on donation. Neither spouse may donate any conjugal
property without the consent of the other. The reason for this
prohibition is to protect the other spouse from the prodigality of a
reckless or faithless spouse.
Exception: However, either spouse may, without the consent of the
other, make moderate donations from the community property for:
Honor and Excellence. Honor before Excellence.
legal ethics
a. Charity or on
b. occasions of family rejoicing or
c. on occasions of family distress.
Whether the donation is moderate or not depends on the financial
condition of the spouses and the CPG.
Effect of alienation and encumbrance. Disposition of community
property by one spouse without the knowledge and consent of the other
is null and void. There is no prescriptive period for the declaration of
nullity of this transaction.
Purchaser in good faith. This is a person who buys the property of
another without notice that some other person has a right or interest in
such property, and pays the full and fair amount for said property at the
time of purchase or before he has notice of the claim or interest of
another person in such property. He must inquire as to:
a. The validity of the title of the seller
b. The authority of the seller to sell. Aggabao vs Parulan
Remedy if purchaser is in good faith; refund. If the disposition of
the property is not voided because the rights of the 3rd person are
protected by law, the remedy of the aggrieved spouse is to have the
erring spouse account for the proceeds as part of CPG.
Section 6. Dissolution of conjugal partnership regime
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 to 138.
See discussion under Article 99.
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 petition in a
summary proceeding, be given judicial authority to administer or
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encumber any specific separate property of the other spouse and use the
fruits or proceeds thereof to satisfy the latter’s share.
See discussion under Article 100.
Article 128. If a spouse without just cause abandons the other or fails
to comply with his or her obligation 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 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.
Remedy for abandonment or failure to comply with marital,
parental, property obligations. The aggrieved spouse may petition the
court for:
a. receivership,
b. judicial separation of property or
c. authority to be the sole administrator of the absolute
community, subject to such precautionary conditions as the
court may impose.
Abandonment. Abandonment includes both physical estrangement
and financial and moral desertion. Absence for 3 months gives rise to a
presumption of abandonment.
Section 7. Liquidation of the conjugal partnership assets
and liabilities
The conjugal partnership may be liquidated by:
1. Extrajudicial settlement
2. Ordinary action of partition
3. By way of testate or intestate proceedings.
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.
JO VALLES
ad majorem dei gloriam legal ethics
(2) Amounts advanced by the conjugal partnership in payment of • Example: Support of illegitimate children, personal debts that
personal debts and obligations of either spouse shall be credited to did not redound to the benefit of the family, and payments of
the conjugal partnership as an asset thereof. fines.
(3) Each spouse shall be reimbursed for the use of his or her • When conjugal funds are used to exercise the right of
exclusive funds in the acquisition of property or for the value of his or redemption of the other spouse, the property is exclusive
her exclusive property, the ownership of which has been vested by property of such spouse, but the CPG shall be reimbursed for
law in the conjugal partnership. the amounts paid.
(4) The debts and obligations of the conjugal partnership shall be • When conjugal and separate funds were used to acquire
paid out of the conjugal assets. In case of insufficiency of said assets, property on an installment basis, the amount paid from the
the spouses shall be solidarily liable for the unpaid balance with their CPG shall likewise be added.
separate properties, in accordance with the provisions of paragraph (2)
• This is also true with respect to advances made by the conjugal
of Article 121.
property involving charges relative to the onerous donations
(5) Whatever remains of the exclusive properties of the spouses shall
made in favor of a particular spouse.
thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever source, the
#3. Reimbursement for the use exclusive funds in the acquisition
loss or deterioration of movables used for the benefit of the family,
of property, the ownership of which has been vested by law in the
belonging to either spouse, even due to fortuitous event, shall be paid
conjugal partnership. The CPG shall reimburse a spouse who uses
to said spouse from the conjugal funds, if any.
separate property to buy conjugal property. Such spouse shall likewise
(7) The net remainder of the conjugal partnership properties shall
be reimbursed for the value of exclusive property, the ownership of
constitute the profits, which shall be divided equally between husband
which has been vested by law in the CPG
and wife, unless a different proportion or division was agreed upon in
the marriage settlements or unless there has been a voluntary waiver or • Example: When a building owned by one spouse was
demolished to make way for the construction of a building for
forfeiture of such share as provided in this Code.
(8) The presumptive legitimes of the common children shall be the CPG, the value thereof shall likewise be reimbursed. In Re:
Padilla
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, #4. The debts and obligations of the conjugal partnership shall be
paid out of the conjugal assets. In case of deficiency, the spouses are
be adjudicated to the spouse with whom the majority of the common
children choose to remain. Children below the age of seven years are solidarily liable.
deemed to have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall decide, taking Note: The reimbursement of the advances made in favor of the CPG
made by the spouses using their exclusive properties or the value of their
into consideration the best interests of said children.
exclusive property the ownership of which was vested in the CPG, is
paid first before the other obligations of the CPG are paid.
Vs ACP. Basically just the same but #2, #3, and #6 were added.
#5. Whatever remains of the exclusive properties of the spouses
INAD REDEX LOSS NET LEGCON
shall thereafter be delivered to each of them. Until there is
liquidation, it is impossible to determine WON there is a net remainder
#1. Inventory shall be prepared. The properties are itemized and
to be divided. Nable Jose vs Nable Jose
valued. In the appraisal, we use the market value. In its absence, we use
the assessed value. Such values may be updated from time to time.
#6. Unless the owner had been indemnified from whatever source,
the loss or deterioration of movables used for the benefit of the
#2. Amounts advanced by the CPG in payment of personal debts
family, belonging to either spouse, even due to fortuitous event,
and obligations of either spouse shall be credited to the CPG. Any
shall be paid to said spouse from the conjugal funds, if any.
amount advanced by CPG in favor of either spouse shall be reimbursed
by said spouses to the CPG, and the reimbursement is credited as an
asset.
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Family Code: title 4
#7. The net remainder of the conjugal partnership properties shall
constitute the profits, which shall be divided equally. The profits of
the CPG shall be divided equally between husband and wife, unless:
a. A different proportion or division was agreed upon in the
marriage settlements
b. There has been a voluntary waiver of such share provided in
this Code. This must not be made during the subsistence of
the CPG
Meaning of net profits; same as in ACP. The definition under Article
102(4) applies. Net profits refer to 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.
Difference. The difference lies in the processes used in the dissolution
of the ACP and CPG. This is important to clarify because in certain
instances, net profits (as opposed to the whole share) are subject to
forfeiture. Quiao vs Quiao is instructive:
ACP CPG
Formula. Market value at the The net profits of the CPG are
time of dissolution less debts of all the fruits of the separate
ACP less market value at the properties of the spouses and the
time of marriage. products of their labor or
industry.
Personal note: I think the reason for this is because at the time the
parties get married, they do not bring their separate property into the
marriage under CPG. Hence, if we use the formula for CPG, the market
value at the time of marriage would be 0. The result of this would be
that the net profits in CPG would be equal to the actual share of the
spouses.
Note: In nullifying marriages (except under Article 40), annulment, and
legal separation, the share of the offending spouse is forfeited.
#8. The presumptive legitimes of the common children shall be
delivered upon the partition in accordance with Article 51. This is
always required in annulment. In nullity, this is required only for
subsequent void marriages under Art 40, in relation to Art 52 and 53.
The children, guardian or their trustee may ask for reinforcement of the
judgment.
#9. 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
JO VALLES
ad majorem dei gloriam
remain. Note that the spouses can agree as to who will get the conjugal
dwelling. The rule regarding majority children will apply only in the
absence of such agreement.
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 extra-
judicially within six months from the death of the deceased spouse.
If upon the lapse of the six-month 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
compliance with the foregoing requirements, a mandatory regime of
complete separation of property shall govern the property relations of
the subsequent marriage.
See discussion under Article 103.
Difference. Under ACP, when there estate is not settled judicially, the
surviving spouse must liquidate the ACP 1 year from death of the other
spouse. Under CPG, the period is 6 months.
Article 131. Whenever the liquidation of the conjugal partnership
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 partnership shall be
determined upon such proof as may be considered according to the
rules of evidence. In case of doubt as to which partnership the existing
properties belong, the same shall be divided between the different
partnerships in proportion to the capital and duration of each.
See discussion under Article 104.
Article 132. The Rules of Court on the administration of estates of
deceased persons shall be observed in the appraisal and sale of
property of the conjugal partnership, and other matters which are not
expressly determined in this Chapter.
Article 133. From the common mass of property support shall be
given to the surviving spouse and to the children during the liquidation
of the inventoried property and until what belongs to them is delivered;
but from this shall be deducted that amount received for support which
exceeds the fruits or rents pertaining to them.
Honor and Excellence. Honor before Excellence.
legal ethics
Advances during liquidation. During liquidation, the surviving
spouse and the children are entitled to get allowances to support
themselves.
• Note that only the children and surviving spouse are
allowed. Other heirs (grandchildren, etc.) are not included.
Babao vs Villavicencio
• It does not matter if the children are married or gainfully
employed. Those factors do not affect the determination of
their rights as heirs. Id.
Where allowances are paid from. The allowances shall be paid from
the following in the order of priority:
• Fruits of their respective shares. The advances from the
common mass of property during liquidation shall first be
taken from the fruits of the respective shares.
• Particular share. If the fruits are insufficient, the excess shall
be taken from the particular share delivered to them after
liquidation. Hence, the amount thus claimed is deductible from
the inheritance in so far as it exceeds what the heirs are entitled
to as fruits or income.
CHAPTER 5: SEPARATION OF PROPERTY
OF THE SPOUSES AND ADMINISTRATION
OF COMMON PROPERTY BY ONE SPOUSE
DURING THE MARRIAGE
Article 134. In the absence of an express declaration in the marriage
settlements, the separation of property between spouses during the
marriage shall not take place except by judicial order. Such judicial
separation of property may either be:
1. Voluntary or
2. For sufficient cause.
How separation of property takes place
1. Express declaration in the marriage settlement
2. In its absence, through a judicial order
Spouses can agree on separation of property only in the marriage
settlements. After the marriage ceremony, if the spouses did not
execute any written agreement that separation of property will govern
their relationship, they cannot alter the same on their own. The remedy
is through mandatory court or judicial approval. This is the case whether
the separation of property is voluntary or for sufficient cause.
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Rationale: Separation of property is not in harmony with the unity of
the family and mutual help and protection expected of the spouses.
Hence, unless expressly stipulated, it cannot prevail. Garcia vs Manzano
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 cases provided for in Numbers (1), (2) and (3), the presentation
of the final judgment against the guilty or absent spouse shall be enough
basis for the grant of the decree of judicial separation of property.
C.A.P.A.A.S
#1. Civil interdiction. CIVIL INTERDICTION is an accessory
penalty that deprives the offender of the following rights:
1. Parental authority
2. Marital authority
3. Guardianship
4. Right to manage his property
5. Right to dispose of them inter vivos. Article 34, RPC
#2. Absentee. Note that mere absence is not enough. It must be
judicially declared.
General rule: It can be declared after 2 years without any news about
the absentee or since the receipt of the last news. But the declaration
shall not take effect until 6 months after publication. Article 384 and 386,
CC
Exception: If a person in charge of the absentee’s properties has been
appointed, the absence can be declared after 5 years without any news
about the absentee or since the receipt of the last news
Who may ask for declaration of absence?
1. Spouse present
2. Heirs instituted in the will
3. Relatives who may succeed by the law of intestacy
JO VALLES
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4. Those who may have over the property of the absentee some
right subordinated to the condition of his or her death
#3. Parental authority loss. There must be first a judicial declaration
of loss of parental authority. The loss refers to the loss of parental
authority over:
1. Common child of the spouses, whether legitimate or
illegitimate
2. Child of the spouse of the petitioner with another person,
whether legitimate or illegitimate
Why is this a ground? Under appropriate circumstances and subject to
reimbursement, the liabilities of both ACP and CPG include support of
illegitimate children. ACP or CPG is exposed to the support of children
who may not even be related to one of the spouses. In the event that
parental authority is lost by judicial decree, it is only proper to seek for
a judicial separation of property so that the interest of the other spouse
in the ACP or CPG can no longer be charged with the same and can be
immediately allocated to him or her.
#4. Abandonment or failure to comply with marital obligations.
The obligations refer to marital, parental or property relations.
Abandonment. A spouse is deemed to have abandoned the other when
her or she has left the conjugal dwelling without 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 includes both physical estrangement and
financial and moral desertion.
#5. Abuse of power of administration granted in the marriage
settlements. ABUSE connotes willful and utter disregard of the
interest of the partnership, evidenced by repetition of deliberate acts or
omissions prejudicial to the latter. De la Cruz vs De la Cruz
• Mere refusal or failure of the administrator of the property to
inform the other spouse of the progress of the family business
does not by itself constitute abuse. Id.
• Not sufficient that the spouse commits acts injurious to the
ACP or CPG. Negligence is not enough.
#6.Separated in fact for at least one year and reconciliation is
highly improbable.
Honor and Excellence. Honor before Excellence.
legal ethics
Note: In the cases provided for in Numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or absent spouse
shall be enough basis for the grant of the decree of judicial separation of
property.
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.
Voluntary separation. The petition filed in court need not state any
reason for the conversion. Mere agreement is enough. But if the reason
is against public policy, the courts must reject the agreement.
Separation of property after marriage must be with judicial
approval. If made after the marriage ceremony and not in the marriage
settlements, there must be court approval. Otherwise, it is void.
When does the separation take effect? It takes effect from the time
the judicial order decreeing the separation of properties, and NOT from
the signing of the agreement. Toda vs CA
Rules on division of properties; generally equal. The division must
be qual unless a different proportion or division has been agreed upon
in the marriage settlement or unless there has been a valid waiver of the
share under Articles 102(4) and 129(7). A valid waiver may be made
upon judicial separation of property.
Failure to notify creditors will not invalidate separation of
property. When the judgment by way of compromise agreement
dissolving the partnership of the spouses has become final and
executory, it is not invalidated just because the creditors were not
notified. A judgment upon a compromise agreement has all the force
and effect of any other judgment, and conclusive only upon parties
thereto and their privies, and not 3rd persons who are not parties. De
Ugade vs De Yasi
A judgment upon a compromise agreement has the force and effect of
any other judgment, and conclusive only upon the parties thereto and
their privies, and not binding on third persons who are not parties to it.
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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 the conjugal partnership shall pay for the
support of the spouses and their children.
Steps:
1. File a petition
a. During pendency, ACP/CPG will pay for the
support of the spouses and the children
2. Judicial decree will be issued. Partnership is dissolved.
3. Liquidate
4. Record the petition and the decree in the proper civil registries
and registry of property
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
judgment granting the same shall be recorded in the:
1. Proper local civil registries and
2. Proper registries of property.
Article 140. The separation of property shall not prejudice the rights
previously acquired by creditors.
Creditor may ask to rescind. Under Articles 89 and 107, if there has
been a waiver on the part of one of the spouses in the regime sought to
be liquidated, any creditor 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 the credit.
Article 141.The spouses may, 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. When the spouse who has left the conjugal home without a decree of
legal separation resumes common life with the other;
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ad majorem dei gloriam
5. When parental authority is judicially restored to the spouse previously
deprived thereof;
6. When the spouses who have separated in fact for at least one year,
reconcile and resume common life; or
7. When after voluntary dissolution of the absolute community of
property or conjugal partnership has been judicially decreed upon the
joint petition of the spouses, they agree to the revival of the former
property regime. No voluntary separation of property may
thereafter be granted.
The revival of the former property regime shall be governed by Article
67.
Voluntary separation; generally granted only once. When a
voluntary separation has been granted and it was subsequently revived,
no voluntary separation may be granted again.
Exception: Another voluntary separation may be granted again if it falls
under the sufficient causes under Article 135.
Separation by sufficient cause; unlimited. When a separation has
been granted due to involuntary causes, the spouses may revive their
prior property regime if the involuntary causes have been terminated.
When they thereafter reappear, another decree for separation of
properties may be granted. This is unli. Pweds pauli ulit.
Procedure for revival:
1. File a motion in the same court proceeding where separation
was decreed
2. The agreement of revival shall be executed under oath and
specify:
a. Properties to be contributed anew to the restored
regime
b. Those to be retained as exclusive
c. The names of all known creditors, their addresses,
and amounts owing to each.
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.
Honor and Excellence. Honor before Excellence.
legal ethics
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.
G.A.C.F.
#1. When one spouse becomes the guardian of the other. When a
spouse is judicially appointed guardian of his or her spouse, he may
likewise be constituted as the administrator of the estate of the other
spouse. He is already obliged by law to live with and take care of his
spouse.
#4. When one spouse becomes a fugitive from justice or is in hiding as
an accused in a criminal case. FUGITIVE FROM JUSTICE. Refers
to one who having committed or being accused of a crime in one
jurisdiction is absent for any reason from that jurisdiction. This is one
who flees to avoid punishment. Ochida vs Cabarroguis
Transfer of administration: to whom
General rule: The right goes to the spouse
Exception: Third person 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.
CHAPTER 6: REGIME OF SEPARATION OF
PROPERTY
Article 143. Should the future spouses agree in the marriage settlements
that their property relations during marriage shall be governed by the
regime of separation of property, the provisions of this Chapter shall be
suppletory.
• The marriage settlements primarily govern
• The Family Code is only suppletory
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.
Freedom to stipulate and limitations. The spouses are free to make
stipulations as they seem fit. However, they cannot stipulate that the
ACP or CPG shall govern only up until a certain time, for example the
10th wedding anniversary. This is because such provision is tantamount
to dissolving the ACP/CPG for causes not specifically provided by law.
Note: The ACP or CPG is dissolved not by mere agreement, but by
proper grounds enumerated under Art 99 and 126.
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If partial separation. Property not agreed upon as separate property
shall belong to the ACP.
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
Separate property:
1. Separate property before marriage
2. Earnings from PBI
3. Fruits from separate property received during marriage
Article 146. Both spouses 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 liabilities of the spouses to creditors for family expenses shall,
however, be solidary.
Family expenses; proportion to income or CMV of separate
properties. Family expenses are borne by the spouses
1. in proportion to their respective income
2. in case of insufficiency, in proportion to the current market
value of their separate properties.
Solidary liability for family expenses. The liability of the spouses to
creditors for family expenses is solidary.
CHAPTER 7: PROPERTY REGIME OF
UNIONS WITHOUT MARRIAGE
Article 147. When a man and a woman who are capacitated to marry
each other, live exclusively with each other 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, properties acquired while they
lived 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
JO VALLES
ad majorem dei gloriam legal ethics
consisted in the care and maintenance of the family and of the #3. Void marriages covered. Therefore, Article 147 includes the
household. following void marriages:
Neither party can encumber or dispose by acts inter vivos of his or her • Article 35(2)- absence of authority of solemnizing officer
share in the property acquired during cohabitation and owned in • Article 35(3)- absence of marriage license
common, without the consent of the other, until after the termination • Article 36- psychological incapacity See Gonzales vs Gonzales
of their cohabitation.
• Article 44- subsequent void marriage under Article 41 because
When only one of the parties to a void marriage is in good faith, the
both spouses are in bad faith
share of the party in bad faith in the co-ownership shall be forfeited in
favor of their common children. In case of default of or waiver by any • Article 53- no liquidation, partition, distribution of legitime
or all of the common children or their descendants, each vacant share
shall belong to the respective surviving descendants . In the absence Note: The book does not mention Article 35(5) with respect to mistake
in identity. I submit that it covered by Article 147 so long as there are
of descendants, such share shall belong to the innocent party. In all
cases, the forfeiture shall take place upon termination of the no other impediments to marry.
cohabitation.
Void marriages not covered: The following marriages are governed by
either ACP or CPG
Special co-ownership. The property regime is a special kind of co-
ownership. A co-ownership is a form of trust and each co-owner is a • Article 43- Termination of the 2nd marriage contracted under
Article 41 due to the recording of the affidavit of reappearance.
trustee for the other. Mallilin vs Castillo
• Rationale. Although there is no technical marital relationship • Article 40- 2nd marriage void for failure to secure JDNOM of
between those who live as husband and wife without the 1st marriage
benefit of marriage or under a void marriage, there is between
them an informal civil relationship that entitles the parties to Other void marriages not covered. For those not falling within the
ambit of Art 147, see Art 148
some rights. Lesaca vs Lesaca
Co-owned properties. Properties acquired while they lived together are
Requisites to apply Article 147. To qualify under this provision, the
following must concur: co-owned.
1. The man and the woman must be capacitated to marry • Presumption: obtained by joint efforts, work or industry,
2. They must live exclusively with each other as husband and wife hence, co-owned
3. It must be without the benefit of marriage/ under a void one • However, a party who did not participate in the acquisition
shall be deemed to have contributed jointly in the acquisition
#1. Legal capacity to marry. Under Article 5 of the Family Code, a if the efforts consisted in the care and maintenance of the
person with legal capacity to marry is any male or female 18 years old family and of the household.
and above and not under any of the impediments mentioned in Article
37 (incestuous void marriages) and Article 38 (void for reasons of public Summary of treatment of properties under Article 147:
policy). In short, there must be no legal impediments arising from the
following: Wages and salaries Equal shares
• Article 35(1)- under 18 years old Property acquired by both through Co-owned; equal shares
• Article 37- incestuous void marriages their work/industry
• Article 38- void marriages for reason of public policy Property acquired while living Co-owned; equal shares
together presumed to have been
• Article 35(4)- bigamous and polygamous marriages
acquired jointly
Property acquired by exclusive Exclusive
Reason for including Article 35(4). Legal capacity must have
funds (provided there is proof)
reference to Article 39 of the Civil Code stating that family relation limits
a person’s capacity to act. Thus, one who is already married has no legal Fruits of separate property Exclusive
capacity to remarry without the first marriage having been terminated. Property acquired after separation Exclusive
Honor and Excellence. Honor before Excellence. 67
Family Code: title 4
Either one may alienate in favor of another his or her share in the
property co-owned.
• No one can donate or waive any interest in the co-ownership
that would result to a direct or indirect grant of gratuitous
advantage under Article 87.
Forfeiture of share of bad faith spouse:
1. In favor of the common children or their descendants
2. In the absence of (1), in favor to the respective surviving
descendants (children of guilty spouse)
3. Innocent spouse
Bad faith spouse forfeits entire share. What is forfeited is not just the
share in net profits, but all the shares in the co-ownership. This is in
stark contrast with the forfeiture for marriages void under Article 40
where what is forfeited is just the share in net profits.
Liquidation proceedings. In accordance with the rules of co-
ownership in so far as not in conflict with Art. 147 or 148
Article 148. In cases of cohabitation not falling under the preceding
Article, 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. 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 shall be forfeited in the
manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties
are in bad faith.
Relationships contemplated:
1. Living together as husband and wife but not capacitated to
marry.
a. Article 37- incestuous void marriages
b. Article 38- void marriages for reason of public policy
c. Article 35(1)- under 18 years old
d. Article 35(4)- bigamous and polygamous marriages
2. Adulterous relationship even if it occurred prior to the
effectivity of Family Code. Atienza vs De Castro
JO VALLES
ad majorem dei gloriam legal ethics
Co-owned properties. Only the properties acquired by both of the 2. In the absence of (1), in favor to the respective
parties through their actual joint contribution of money, property, or surviving descendants (children of guilty spouse)
industry 3. Innocent spouse
There must be proof of actual contribution. They are deemed co- The foregoing rules on forfeiture shall likewise apply even if both
owners only upon proof of actual contribution. Without such proof, no parties are in bad faith. In case neither of them have children, they
co-ownership shall arise. Francisco vs Master Iron Works shall be considered as if they are in good faith. Their respective shares
• The fact that the other party administered the property is accrues to them.
irrelevant to prove co-ownership. Tumlos vs Fernandez
Note: Bad faith in the law means possessing the legal impediment to
Rules on limited co-ownership: marry.
Salaries and wages Separately owned
If married, property of ACP or Example: A (already married to B) married C, who is his first cousin.
CPG of such marriage Clearly, both A and C possess legal impediments to marry, and
therefore, are both in bad faith. The co-ownership shall be liquidated as
Property solely acquired by Separately owned (exclusive) follows:
exclusive funds 1. Share of A will go to the ACP/CPG of his legitimate marriage.
Properties acquired by both Co-owned. For co-owned 2. Share of C will go to their common children or their descendants, to
of the parties through their properties, presumption is equal C’s descendants in the absence of the former, or, in the absence of all
actual joint contribution of ownership unless otherwise mentioned above, to the innocent party. Since there is no such innocent
money, property, or industry proved party here, the share of C will accrue to her
Joint deposits in money and Co-owned; presumed equal
evidence of credit unless otherwise proved
In a bigamous marriage, share of the cheating spouse accrues to
the ACP/CPG of the 1st marriage. While the marriage of Miguel and
Carlina was still subsisting Miguel married Erlinda. During their
marriage, they bought a Riceland. The issue here is WON the Riceland
is co-owned. The SC ruled in the negative. Being a bigamous marriage,
Article 148 governs. Thus, only properties acquired by their actual joint
contribution shall be owned by them in common and in proportion to
their contributions. Here, Erlinda was only 20 years old during the time
of sale and Miguel was already 64 and a pensioner of the US
Government. Having failed to prove contribution, there is no basis to
justify Erlinda’s co-ownership. As such the Riceland should revert to the
CPG of Miguel and Carlina. Agapay vs Calang
Forfeiture of share bad faith spouse:
a. One spouse is validly married to another. The entire share
in the co-ownership is forfeited in favor of the ACP or CPG
of the valid marriage.
b. Not validly married to another
1. In favor of the common children or their
descendants
Honor and Excellence. Honor before Excellence. 68
Family Code: title 4
SUPER SUMMARY
Article 147
All properties acquired during the
duration of the relationship are
presumed to be co-owned in
equal shares.
That the property was acquired with
separate funds has to be proved.
Even if the other party did not
contribute, there is a presumption of
co-ownership if the other one
manages the family or household.
See forfeiture rules
JO VALLES
ad majorem dei gloriam legal ethics
Article 148
All properties acquired during the
duration of the relationship are
presumed to be separately
owned.
Only those acquired by both of them
through their actual joint
contribution of money, property, or
industry are co-owned.
There must be actual contribution.
Otherwise, there is no co-ownership
and no presumption of equal shares.
For the share of the spouse who is
validly married to another, it shall
belong to the ACP or CPG of such
valid marriage.
Same forfeiture rules if not validly married.
Honor and Excellence. Honor before Excellence. 69
Family Code: title 5
TITLE 5: THE FAMILY
CHAPTER 1. THE FAMILY AS AN
INSTITUTION
Article 149. The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no custom,
practice or agreement destructive of the family shall be recognized or
given effect.
Section 12, Article 2. The State recognizes the sanctity of family life
and shall protect and strengthen the family as a basic social institution.
Section 1, Article 15. The State recognizes the family as the foundation
of the nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development.
Family relations are governed by law. The parties stipulated that in
consideration for a peaceful and amicable termination of relations
between the husband and the wife, some of the properties will be given
to the wife and a monthly support for the children. The SC sustained
the lower court, saying that the agreement is contrary to law, Filipino
morals, and public policy because the consideration of the agreement
was the termination of the marriage which the parties cannot do on their
own and without legal basis. De Leon vs CA
Spouses are sued jointly. When the spouses are sued for the
enforcement of obligations entered into by them for the benefit of the
family, they are being impleaded in their capacity as representatives of
the partnership and not as independent debtors. They shall be sued
jointly or together. This is necessary because as a general rule, the
spouses are joint administrators of either the ACP or CPG. See Alipio vs
CA
In case of suits, only either spouse is an indispensable party to the
case. As co-owners, either of them may undertake anything beneficial
to the partnership, including the filing of suits for recovery of property.
Hence, the SC allowed only one of the spouses to file a case for recovery
of property. Carandang vs Heirs of Quirino
Joint management does not require H&W to always act together.
As a general rule, the verification and certification of non-forum
shopping in a petition or a complaint in court must be signed by all
petitioners. However, the signature of the husband or wife alone is
substantial compliance with this requirement in cases involving
JO VALLES
ad majorem dei gloriam
community or conjugal property, even if both spouses are parties to the
case. Each of the spouses may reasonably be presumed to have personal
knowledge of the filing or non-filing by the other spouse of any action
or claim similar to the petition. Docena v Lapesura
Article 150. Family relations include those:
1. Between husband and wife
2. Between parents and children
3. Among other ascendants and descendants
4. Among brothers and sisters, whether of the full or half-blood.
This provision is construed strictly. Anyone not included in the
enumeration is not considered as within the term “Family Relations”.
Hence, the requirement of earnest efforts to compromise is not required
if the parties are not within the term “family relations”. Gayon vs Gayon
• Example: Suit filed a woman against her sister and the latter’s
husband will not involve earnest efforts to compromise
because a stranger is already involved. Hontiveros v RTC
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 that the same
have failed. If it is shown that no such efforts were in fact made, the
same case must be dismissed.
This rules shall not apply to cases which may not be the subject of
compromise under the Civil Code.
Verified complaint. In case the complaint is not verified, the case will
not be dismissed. The parties will be asked to verify the complaint.
Hontiveros v RTC
Suits between family members. The term suit implies only civil
actions. Manalo vs CA
General rule:
• Will not prosper unless earnest efforts toward a compromise
have been made. Otherwise, non-compliance will be a
ground for dismissal
Exception:
1. Earnest efforts not applicable apply to cases which may not
be the subject of compromise under the Civil Code.
No compromise upon the following questions shall be valid:
o Civil status
o Validity of a marriage or of a legal separation
Honor and Excellence. Honor before Excellence.
legal ethics
o Any ground for legal separation
o Future support
o Jurisdiction of courts
o Future legitime
2. Earnest efforts not applicable in suits against a family
member to which another person who is not a family
member is impleaded.
o Example: Suit filed by A against her sister B and X
(B’s husband)
o B’s husband is a stranger
3. Earnest efforts not applicable in special proceedings
a. Petition for the settlement of estate guardianship
b. Custody of children
c. Habeas corpus
Exemption from criminal liability in crimes against property. Art
332 of the RPC provides that no criminal, but only civil, shall result from
the commission of the crime of swindling, theft, estafa, and
malicious mischief committed or caused mutually by:
1. Spouses, ascendants and descendants, or relatives by affinity in
the same line
- Includes parents-in-law, step parents, adopted children.
2. Widowed spouse with respect to the property which belonged
to the deceased spouse before the same shall have passed into
the possession of another
3. Brothers and sisters and siblings-in-law, if living together
Termination of affinity relations. There are conflicting views as to
whether or not the relationship by affinity is dissolved when the
marriage that created it is dissolved through the death of one spouse.
a. Terminated Affinity View
• Relationship by affinity terminates with the
dissolution either by death or divorce of the marriage
that gave rise to the relationship
• However, the relationship by affinity continues when
there is a surviving issue or when there are
descendants, in whose veins the blood of both parties
is comingled
b. Continuing Affinity View
• Regardless of whether the marriage produced
children, the relationship by affinity continues even
after the death of one spouse.
Continuing affinity preferred; rule of lenity. The second view
appears to be more consistent with the language and spirit of Criminal
Law. When there are 2 possible interpretations of a statute, that which
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Family Code: title 5
is favorable or lenient to the accused is adopted. Thus, for purposes of
Article 332 (1) of the RPC, the relationship by affinity created between
the surviving spouse and the blood relatives of the deceased spouse
survives the death of either party that created the affinity. Intestate Estate
of Manolita Gonzales Vda. de Carungcong v People
Running of prescriptive periods. Prescriptive period shall not run
between:
1. Husband and wife even though there be a separation of
property agreed upon in the marriage settlements or by judicial
decree.
2. Parents and children during the minority or insanity of the
latter
3. Guardian and ward during the continuance of the
guardianship. Art 1109 of Civil Code.
The Family Code and other laws may provide otherwise.
CHAPTER 2. 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.
WHO MAY CONSTITUTE
• Jointly by the husband and wife OR
• Unmarried head of the family
• Occupancy of any of the beneficiaries (See Art. 153)
WHERE CONSTITUTED
• Dwelling house where they and their family reside AND
• Land on which it is situated.
o Therefore, a boat on a water cannot be considered as
a family home even if the family resides therein.
There must be actual occupancy. The law contemplates actual and
not constructive occupancy. Residing in a family home is a real right.
Patricio v Dario
HOW CONSTITUTED
• Constructed under Civil Code (before Family Code)
o The family home must be judicially or extrajudicially
constituted to be considered as such and avail of its
benefits
o Residential homes used as a family home prior to the
effectivity of the family code and existing after its
JO VALLES
ad majorem dei gloriam
effectivity are deemed constituted by operation of
law, provided that the provisions of the Family Code
are complied with.
The family home shall thereafter be
prospectively entitled to all benefits
provided under Family Code.
• Constructed After Effectivity of Family Code
o Automatically deemed to be family homes and
exempt from execution from the time it was
constituted and lasts as long as any of the
beneficiaries actually reside therein.
The family home is not affected by the type of property regime of the
spouses or by the fact that the marriage has been nullified. Valdez v RTC
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.
WHEN CONSTITUTED
• From the time it is occupied as a family residence.
• So long as any of its beneficiaries actually resides therein
Effects. When constituted, the family home is exempt from:
1. Execution
2. Forced sale or
3. Attachment
• Claiming of exemption is personal. This exemption is a
personal right that can be claimed only by the judgment debtor,
and not by the sheriff. The fact that it is a family home and it
is under the exemption must be claimed and proved before
the sale at the public auction. Versola vs CA
• Exemption can be waived or barred. Failure to claim
exemption would estop the party from later claiming
exemption. The exemption can be waived or barred by laches
by the failure to set up and prove the status if the property as
a family home or a reasonable time thereafter. Olivia-de Mesa v
Acero
Exceptions to the exemption. In the following cases, the family home
can still be the subject of execution, forced sale, or attachment:
Honor and Excellence. Honor before Excellence.
legal ethics
1. Article 155 (preferred creditors)
2. Article 160- creditors not under Article 155 who have reason
to believe that that family home is worth in excess of the
amount provided under Article 157.
Article 154. The BENEFICIARIES of a family home are:
1. The husband and wife, or an unmarried person who is the head of a
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.
Importance. The law requires actual occupancy of any of the
beneficiaries to be recognized as a family home. Hence, even if the
owners in #1 do not actually occupy the family home, the occupancy of
any of the beneficiaries in #2 is sufficient .Also, the beneficiaries are
most likely to be affected by the constitution of the family home and its
disposition. Manacop vs CA
Requisites to be a beneficiary:
1. They must be among those relationship enumerated in
Article 154
2. they live in the family home
3. they are dependent on the head of the family for support
Article 155. The family home shall be exempt from execution, forced
sale or attachment EXCEPT:
(1) For nonpayment 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.
Note: The whole value of the family home can be used to pay off the
obligations under Article 155.
TIP M LABORERS
1. For nonpayment of taxes
2. For debts incurred prior to the constitution of the family
home
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Family Code: title 5
• RECKONING POINT: The time when the debt
was actually incurred, and not when it becomes
due.
• Reason: The family home is exempt ONLY from
the time it is constituted.
o Debt incurred prior to effectivity of
family code: The home became a family
home by operation of law upon the
effectivity of the Family Code. Thus, the
debt can be considered as having been
incurred before the constitution of the
family home, hence the family home can be
subject to execution. Gomez vs Sta. Ines
o Debt incurred after effectivity of FC:
automatic upon occupation.
3. For debts secured by mortgages on the premises before
or after such constitution
• The provision explicitly provides that the time of
constitution is immaterial
• DUH, it would not make for a bank to grant a loan
with the family home as a security if it was exempt
from execution in the first place.
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.
Application of proceeds. In the cases above, the proceeds of the
execution sale will be applied as follows:
1. To the liabilities enumerated above
2. Excess, if any, shall be delivered to the owners
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 spouse with the 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
installments where ownership is reserved by the vendor only to
guarantee payment of the purchase price may be constituted as a family
home. (227a, 228a)
Family home. The family home must be part of the properties of the:
a. Absolute community or the conjugal partnership or
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ad majorem dei gloriam
b. The exclusive properties of either spouse with the latter’s
consent.
c. It may also be constituted by an unmarried head of a family on
his or her own property.
NOT FAMILY HOMES:
a. Rented place
b. House erected on the land of another. (The law says house and
land)
Paragraph 2; conditional sales. In this case, the vendee is already the
owner. The title has just not passed yet because the vendor is using the
property as security in case of vendee’s default
Article 157.The actual value of the family home shall not exceed, at the
time of its constitution, the amount of:
a. 300,000 in urban areas,
b. 200,000 in rural areas, or
c. 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 favorable for the constitution of a family home
shall be the basis of evaluation.
For purposes of this Article, urban areas are deemed to include chartered
cities and municipalities whose annual income at least equals that legally
required for chartered cities. All others are deemed to be rural areas.
Not a family home when it exceeds value. What the law is trying to
say is that, if at the time of the constitution, the home exceeds the values
above, such home is not a family home. As such, it is not exempt from
execution, forced sale, or attachment. Sta. Maria, 2015.
• I do not agree with this. I think that even if the value of the
home exceeds the amounts under Article 157, it is still a family
home. However, the amount in excess of Article 157 can be
made subject to execution. See Article 153.
URBAN AREAS- are deemed to include chartered cities and
municipalities whose annual income at least equals that legally required
for chartered cities.
RURAL AREAS- all others
Article 158. The family home may be sold, alienated, donated, assigned
or encumbered by the owner or owners thereof with the written consent
of:
Honor and Excellence. Honor before Excellence.
legal ethics
1. The person constituting the same
2. The latter’s spouse, and
3. A majority of the beneficiaries of legal age.
In case of conflict, the court shall decide.
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
This rule shall apply regardless of whoever owns the property or
constituted the family home.
The heirs cannot partition the same unless the court finds compelling
reasons therefor.
Duration of the existence of family home:
1. So long as any of the beneficiaries reside (Article 153)
2. In case of death of either spouse or head of family
a. 10 years
b. As long as there is a minor benecifiary
Article 160. When a creditor whose claims is not among those
mentioned in Article 155 obtains a judgment in his favor, and he has
reasonable grounds to believe that the family home is actually worth
more than the maximum amount fixed in Article 157, he may apply to
the court which rendered the judgment for an order directing the sale of
the property under execution. The court shall so 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 increased 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 judgment
and the costs. The excess, if any, shall be delivered to the judgment
debtor.
Process for the creditor* to execute:
*A creditor other than those enumerated in Article 155.
1. He obtains a judgment in his favor directing the debtor to pay
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Family Code: title 5 ad majorem dei gloriam legal ethics
2. He has reasonable grounds to believe that the family home is considered family homes and are prospectively entitled to the benefits
actually worth more than the maximum amount fixed in Article entitled under the FC. Modequillo v Breva
157
3. Apply to the court (which rendered the favorable judgment) to
direct the sale of the property under execution

Requisites:
1. There was an increase in the actual value
2. the increase resulted from voluntary improvements
3. the increased actual value exceeded the maximum under
Article 157

Bid price. It must be greater than or equal to the amounts under

Article 157.
• 300,000 in urban areas
• 200,000 in rural areas

Application of proceeds:
1. Apply first to the amounts in Article 157.
o The purpose of giving immunity to these amounts is
to enable the debtor to build a new home so he will
not be homeless.
2. Next, apply to the liabilities under the judgment and the costs
(to the judgment creditor)
3. Excess, if any, belongs to the judgment debtor

Article 155 Article 160

Both are exceptions to the rule on exemption from execution
Court judgment not necessary Court judgment necessary
Proceeds applied first to claim of Proceeds applied first to amount
creditors of family home under Art. 157

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.

Article 162. The provisions in this Chapter shall also govern existing
family residences insofar as said provisions are applicable.

Family Code has prospective effects. Article 162 does not give
retroactive effect such that all existing family residences are deemed to
have been constituted as family homes at the time of the occupation
prior to the effectivity of the FC. What the provision means is that all
existing family residences at the time of the effectivity of the FC are

JO VALLES Honor and Excellence. Honor before Excellence. 73

Family Code: title 6
TITLE 6: PATERNITY AND FILIATION
CHAPTER 1: LEGITIMATE CHILDREN
Article 163. The filiation of children may be by nature or by adoption.
Natural filiation may be legitimate or illegitimate.
FILIATION. Paternity or filiation is simply the relationship or tie
which exits between parents and their children. Noe v Velasco
State policy. When it comes to investigation as to the paternity of the
children, the state policy is liberal, without prejudice to the right of the
alleged parent to resists the claimed status with his own defenses.
Mendoza vs CA
Article 164. Children conceived or born during the marriage of the
parents are legitimate.
Children conceived as a result of artificial insemination of the wife with
the sperm of the husband or that of a donor or both are likewise
legitimate children of the husband and his wife, provided, that both of
them authorized or ratified such insemination in a written instrument
executed and signed by them before the birth of the child. The
instrument shall be recorded in the civil registry together with the birth
certificate of the child.
Presumption of legitimacy. Presumption is always in favor of
legitimacy. However, such presumption arises ONLY upon convincing
proof that:
1. The parents of the child were legally married and
JO VALLES
ad majorem dei gloriam
2. That the child was born and conceived during the subsistence
of such marriage. Angeles v Maglaya
Child conceived during a valid marriage is presumed to be a
legitimate child of such marriage. The wife bigamously married
another man and a child was born in that union. Later, such marriage
was declared void. The SC ruled that the child born in the 2 nd voided
union was in effect born of the wife in the first subsisting marriage and
therefore, in the eyes of the law, the father of the child was the first
husband of the wife. Conception v CA
Requisites; legitimacy of children conceived through
insemination. Children conceived as a result of artificial insemination
of the wife with the sperm of the husband or that of a donor or both
are legitimate children of the husband and his wife, provided, that:
1. Both of them authorized or ratified such insemination
2. In a written instrument
3. Executed and signed by them before the birth of the child.
4. The instrument shall be recorded in the civil registry together
with the birth certificate of the child.
Child still considered legitimate even if requirements for artificial
insemination are not followed. Nothing in this paragraph says that
failure to comply with the requirements above is a ground to impugn
the legitimacy of an artificially inseminated child. The child shall be
considered legitimate because that childhas been conceived or born
during a valid marriage.
• However, under Article 166, in case of children conceived
through artificial insemination, if the written authorization or
ratification of either parent was obtained through mistake,
fraud, violence, intimidation, or undue influence, it can be a
ground for impugning the legitimacy.
SCENARIOS
1. Husband is the sperm donor and he voluntarily acceded
to the AI
o Husband cannot impugn and use the grounds under
Article 166.
2. Wife obtained a sperm sample that turned out to be
owned by the husband, and she had herself inseminated
without the consent of the husband.
o Husband can impugn legitimacy of the child using
Article 166 (1) and (2) contending that it was
physically impossible for him to have sex with his
wife at the time the child was conceived.
3. 3rd person was the donor and husband objected and failed
to comply with Article 164 (2)
Honor and Excellence. Honor before Excellence.
legal ethics
o Husband can impugn legitimacy of the child using
Article 166 (1) and (2)
4. 3rd person was the donor and husband initially acceded
but failed to comply with Article 164(2)
o Husband can impugn legitimacy of the child using
Article 166 (1) and (2)
5. 3rd person was donor and husband acceded and complied
with Article 164 (2)
o Cannot impugn
But if the husband already agreed and complied with all the
requirements, he cannot anymore impugn the legitimacy of the child
because he precisely knew that the sperm was not his and thereby
consented to make the child as his legitimate in accordance with the law.
Artificial insemination. This is the process by which the wife is
artificially impregnated with the semen of either her husband or a 3 rd
party donor.
• AIH (Artificial Insemination Husband)- homologous
insemination; sperm of husband.
• AID (Artificial Insemination Donor)- heterologous
insemination; sperm of a donor. This may be with or without
the consent of the husband.
No adultery even if consent of husband was not obtained. In case
it is made without the husband’s consent, there is no criminal liability
for adultery because the process does not satisfy the definition of the
crime, which is a married woman having sexual intercourse with a man not her
husband. US vs Abad Sants
Note: The court is not concerned with the legality or illegality of AI, nor
its morality or immorality. It is concerned with the status of the children
born of that fact, for the child cannot remain in an uncertain status nor
stay in limbo. Caguioa, Deliberations
Article 165. Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code.
Other illegitimate children. Under the Civil Code, there are other
types of illegitimate children, but they have now been eliminated:
1. Natural children
2. Natural children by legal fiction
3. Acknowledged or recognized natural children
4. Spurious children
5. Adulterous children
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Family Code: title 6
General rule: Child is illegitimate if born outside a valid marriage or
inside a void marriage.
Exception:
1. Article 54- Children conceived or born before the judgment
of annulment or of absolute nullity of the marriage, where the
ground for voiding is psychological incapacity, are legitimate.
2. Article 54- Children born from a subsequent marriage due to
the contracting parties’ failure to comply with the mandatory
provisions of Articles 52 and 53 are legitimate.
Article 166. Legitimacy of a child may be impugned only on the
following grounds:
(1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse with
his wife;
(b) the fact that the husband and wife were living separately in such a
way that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented sexual
intercourse;
(2) That it is proved that for biological or other scientific reasons, the
child could not have been that of the husband, except in the instance
provided in the second paragraph of Article 164; or
(3) That in case of children conceived through artificial insemination,
the written authorization or ratification of either parent was obtained
through mistake, fraud, violence, intimidation, or undue influence.
Who may invoke. Only the husband may raise the following exclusive
grounds. But in proper cases under Article 171, the heirs may also do
so. Gray v. Rose
Presumptions for the grounds to apply:
1. There is a valid marriage
2. The wife is the natural mother of the child
The provision will not apply in a case where the child is alleged
not to be the child of a certain couple. Rather, it applies in a situation
where a husband or his heirs deny as his own a child of his wife. Benitez-
Badua v CA
The provision will not apply in case the child or the children did
not come from the mother’s womb. Who better than the mother
herself would know whether the child is hers? In short, it is applicable
only when there is a claim that a child is an illegitimate child.
JO VALLES
ad majorem dei gloriam
(1) That it was PHYSICALLY IMPOSSIBLE for the husband to have
sexual intercourse with his wife within the first 120 days of the 300
days which immediately preceded the birth of the child because of:
a. the physical incapacity of the husband to have sexual
intercourse with his wife;
• Impotence. This refers to the inability to perform
sexual intercourse. This is a ground for impugning
legitimacy. This is not to be confused with sterility,
which is the inability to procreate. Tarleton v Thompson
• Even if the husband’s penis was cut off, it was still 3
inches long. It was long enough to have sex.
HAHAHAHAH Tartleton v Thompson
b. the fact that the husband and wife were living separately in
such a way that sexual intercourse was not possible;
• Note that presumption of legitimacy of children born
inside wedlock obtains notwithstanding whether the
husband and the wife voluntarily separate and live
apart, unless the contrary is proved.
• Mere remoteness not enough; separation must
make sex impossible. Remoteness of the couple is
not sufficient; such remoteness must make sex
impossible. Example is when they live in different
countries or provinces and they have never been
together during the period of conception. Alber v
Alber
• Must prove sex was impossible. The bare
testimony of living 30 miles apart is not enough
without showing that sex was not possible due to the
distance. Skott vs State
c. serious illness of the husband, which absolutely prevented
sexual intercourse;
• Illness must absolutely prevent sexual
intercourse. The illness of the husband must be of
such nature as to exclude the possibility of his sexual
intercourse with his wife. An example is because of a
sacroiliac injury, where the husband was placed in a
plaster cast, making it impossible to have sex.
Tolentino
Reason for the time. 300 days is the average longest gestation
period according to experience, while 180 is the shortest.
Honor and Excellence. Honor before Excellence.
legal ethics
Burden; show physical impossibility of access. In order to
overthrow the presumption of legitimacy, it must be shown beyond
reasonable doubt that there was no access as could have enabled
the husband to be the father of the child. Sexual intercourse is to
be presumed where personal access is not disproved. Macagangdang
v CA
• In order to overthrow the presumption of legitimacy, it
must be shown beyond reasonable doubt that there was
no access as could have enabled the husband to be the
father of the child.
• The law speaks of physical impossibility. A situation
which makes sex improbable is not enough.
(2) That it is proved that for BIOLOGICAL or other SCIENTIFIC
reasons, the child could not have been that of the husband, except in
the instance provided in the second paragraph of Article 164; or
This means that biological or other scientific reasons cannot
be invoked to impugn legitimacy in cases of artificial
insemination where the 2nd paragraph of Article 164 has been
observed.
Sterility. in order for the husband to invoke sterility, or the
inability to procreate, it must be shown that he was completely
sterile at the time of the conception of the child. This is
because sterility is relative as to degree and as to time. Cocharan
v Cocharan
Vasectomy. In order for the husband to invoke vasectomy, it
must be shown that he was completely sterile and that re-
channelization did not occur. Cocharan v Cocharan
Tests for determination of paternity. Other scientific tests
like Leukocyte test (determination of identity of the father),
ABO test (for exclusion of paternity), blood test (for exclusion
of paternity), Human Leukocyte Antigen, and DNA test, may
be resorted to.
o DNA results that excludes the putative father is
conclusive proof of non-paternity.
o If the probability is 99.9%, it is a refutable
presumption of paternity.
o If it is less than 99.9%, it is merely corroborative.
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Family Code: title 6
Example: By laws of nature, a white couple (neither of them
have black ancestry) cannot produce a black child. Watkins v.
Carlton
(3) That in case of children conceived through artificial insemination,
the written authorization or ratification of either parent was obtained
through MISTAKE, FRAUD, VIOLENCE, INTIMIDATION,
OR UNDUE INFLUENCE. (VIMFU)
• VIMFU may be exerted by the spouses against each
other, or by a third person
• Even if the mother was subjected to VIMFU, she
could not file a case to impugn legitimacy of the child
because she is not given the legal standing to do so
under Articles 170 and 171. Sta Maria (2015), p. 657.
Effects when the grounds are proved; unrelated. In the event that
any of the grounds are proved, the child will neither be legitimate or
illegitimate. Simply, the husband and the child will not be related to each
other in any manner considering that he did not participate in any way
as to the child’s procreation.
• The child is legitimate as to the mother. Maternity is always
certain.
Article 167. The child shall be considered legitimate although the
mother may have declared against its legitimacy or may have been
sentenced as an adulteress.
Reason:
1. It may have been done in a fit of anger or to arouse jealousy in
the husband
2. It is a guarantee in favor of children who should not be under
the mercy of the passions of their parents.
In general, good morals and public policy require that a mother should not be
permitted to assert the illegitimacy of a child born in wedlock.
Article 168. If the marriage is terminated and the MOTHER
contracted another marriage within three hundred days after such
termination of the former marriage, these rules shall govern in the
absence of proof to the contrary:
(1) A child born BEFORE 180 days after the solemnization of the
subsequent marriage is considered to have been conceived DURING
THE FORMER MARRIAGE, provided it be born within three
hundred days after the termination of the former marriage;
(2) A child born AFTER 180 days following the celebration of the
subsequent marriage is considered to have been conceived DURING
JO VALLES
ad majorem dei gloriam
SUCH SUBSEQUENT MARRIAGE, even though it be born within
the three hundred days after the termination of the former marriage.
Guide:
1. Was the child born before 180 days after solemnization of the
2nd marriage?
a. No. Conceived in the 2nd marriage.
b. Yes. Possibly conceived in the 1st marriage
2. If the answer to the question above is yes, was the child born
within 300 days after the termination of the former marriage?
a. No. Conceived during 2nd marriage
b. Yes. Conceived in the 1st marriage
Observation:
• Sex between spouses is presumed prior to termination of the
marriage, even immediately before the termination.
• Reason for the above provision: 300 days is the average longest
gestation period according to experience, while 180 is the
shortest.
Presumption applies only in the absence of proof to the contrary.
It follows that Article 168 will apply only when there is doubt or when
there is no showing or proof as to who the real father is. Hence, even if
the child is born within 300 days after the termination of the 1 st marriage
and before 180 days after the solemnization of the 2 nd marriage, the
presumption will not apply if there is proof that the child was fathered
by the husband of the first marriage.
No presumption of legitimacy. The rules set forth above do not talk
about legitimacy or illegitimacy. They merely state when the child is
considered to have been conceived. The legitimacy of the child will
depend on the status of the marriage where he or she is born.
Article 169. The legitimacy or illegitimacy of a child born AFTER 300
DAYS FOLLOWING THE TERMINATION OF THE MARRIAGE
shall be proved by whoever alleges such legitimacy or illegitimacy.
This article applies when there is no subsequent marriage. There
is no presumption for a child born after three hundred days following
the termination of the marriage because the father could be anybody.
Hence, the need for introduction of evidence.
Article 170. The action to impugn the legitimacy of the child shall be
brought within one year from the knowledge of the birth or its recording
in the civil register, if the husband or, in a proper case, any of his heirs,
Honor and Excellence. Honor before Excellence.
legal ethics
should reside in the city or municipality where the birth took place or
was recorded.
If the husband or, in his default, all of his heirs do not reside at the place
of birth as defined in the first paragraph or where it was recorded, the
period shall be two years if they should reside in the Philippines; and
three years if abroad. If the birth of the child has been concealed from
or was unknown to the husband or his heirs, the period shall be counted
from the discovery or knowledge of the birth of the child or of the fact
of registration of said birth, whichever is earlier.
Prescriptive periods:
1. Impugners reside in the city or municipality where the
birth took place or was recorded. Within ONE YEAR from
the knowledge of the birth or its recording in the civil register
2. Impugners reside in the PH, OTHER THAN the city or
municipality where the birth took place or was recorded
Within TWO YEARS from the knowledge of the birth or its
recording in the civil register
3. Impugners reside abroad. Within 3 years from the
knowledge of the birth or its recording in the civil register
If the birth of the child has been concealed from or was unknown to
the husband or his heirs, the period shall be counted from the discovery
or knowledge of the birth of the child or of the fact of registration of
said birth, whichever is earlier.
• The concealment referred to is concealment that a child was in
fact born or registered, not that the child was not the
husband’s.
• Hence, if the husband had knowledge of the birth of a child
and the recording of such birth, but found out only 2 years
later that the child was not his, he cannot impugn anymore the
legitimacy of the child.
Reason for short prescriptive periods. To avoid leaving in dispute for
a long time the status of the child. Bastardization of the child is a very
serious matter which public policy does not encourage. After the
lapse of the period, the status of the child becomes fixed and cannot be
questioned anymore. Angeles v Maglaya
Husband has personal right to impugn. Impugning the legitimacy of
the child is strictly a personal right. SSS v Aguas.
• Principally, only the husband can file a direct action to impugn
the legitimacy of the child. There are only a few instances
where the heirs are permitted to do so.
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Family Code: title 6
• If the paramour of the wife files an action for the custody of
the child contending that he is the natural father, the action
should be dismissed because only the husband, as a general
rule, can claim that the child is illegitimate. To allow the
paramour to claim custody would mean allowing the paramour
to impugn the legitimacy of the child vis-à-vis the husband,
which is not sanctioned by the law.
Rule applies only when the illegitimacy of the child is raised.
Article 171, which provides that the husband or the heirs in proper cases
can file an action to impugn the legitimacy of a child, presumes that the
child was the undisputed offspring of the mother. Thus, the rule will not
apply when the complaint alleges that the child is not at all the child of
the mother. Babiera v Catotal
Legitimacy cannot be attacked collaterally. The legitimacy of a child
cannot be set up by way of defense or as a collateral issue. It can be
impugned only in a direct suit precisely filed for the purpose of assailing
the legitimacy of the child. Rosales v. Castillo Rosales
Note: The reckoning point is always knowledge of birth or knowledge
of record of birth, and NOT the discovery that the child is not yours.
Discovery will only apply if there is fraud, if the child is concealed.
Article 171. The heirs of the husband may impugn the filiation of the
child within the period prescribed in the preceding article only in the
following cases:
(1) If the husband should died before the expiration of the period fixed
for bringing his action;
(2) If he should die after the filing of the complaint without having
desisted therefrom; or
(3) If the child was born after the death of the husband.
General Rule: Impugning the legitimacy of a child is a personal right
granted by the law only to the husband
Exception:
The HEIRS of the husband may impugn the filiation of the child within
the period prescribed in the preceding article only in the following cases:
1. If the husband should die before the expiration of the period
fixed for bringing his action;
2. If he should die after the filing of the complaint without
having desisted therefrom; or
3. If the child was born after the death of the husband.
JO VALLES
ad majorem dei gloriam
CHAPTER 2. PROOF OF FILIATION
Filiation not established by mere bodily marks. Parentage, lineage,
or legitimacy cannot be made to depend upon parental physiognomy or
bodily marks of similarity. Chun Chong v Collector of Customs
Semblance must be accompanied by other evidence to prove
filiation. However, resemblance between the parent and the child can
be competent and material evidence to establish parentage IF
accompanied by other strong evidence, direct or circumstantial, to prove
filiation. Tijing v CA
Article 172. The filiation of legitimate children is established by any of
the following:
(1) The record of birth appearing in the civil register or a final
judgment
(2) An admission of legitimate filiation in:
- A public document or
- A private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
roved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Birth certificate. As a public document, it is a prima facie evidence of
all the information contained therein
• If the father did not sign the birth certificate, the placing by
another person of his name therein is void and incompetent
evidence of paternity. Reyes v CA; Jison vs CA
• Birth certificate signed by both parents is self-authenticating
and adequate proof of paternity without need of further court
action. Montefalcon v Vasquez
Final judgment. A judicial decision bearing on the status of the
children as legitimate is binding and conclusive. It is also a public
document.
• Provision does not apply if obiter dictum. A reportorial
statement by the court does not establish filiation. Obiter
dictum is not part of the judgment.
• Compromise agreement on status of a child is void.
However, a final judgment based on a compromise agreement
Honor and Excellence. Honor before Excellence.
legal ethics
where the parties stipulated and agreed on the status of the
person is VOID for being against public policy
Admission in public or private handwritten instrument. The
admission of the parent concerned is a complete act of recognition
without the need of court action. De Jesus vs De Jesus
• It must be in the handwriting of the supposed parent if a
private document. Reyes vs CA
The open and continuous possession of the status of a legitimate
child. This means that the father has treated the child as his own,
directly and not through others, spontaneously and without
concealment, though without publicity.
• Must not be intermittent. There must be a showing of the
permanent intention of the supposed father to consider the
child as his own, by continuous and clear manifestation of
paternal affection and care. Mendoza vs CA
• Paternal affection must not be attributed to pure charity.
The acts should be of such nature as to reveal not only the
conviction of paternity, but also the desire to have and treat
the child as such. Perla v Baring
o It may be shown by the following overt acts: sending
the child to school, paying for hospitalization bills,
giving allowance, calling the child “hija”, etc. Jison v
CA
• Standard: clear and convincing evidence. Constantino v
Mendez
• The following do not prove filiation:
o When the father met the child 4 times to give
allowance; birth certificate unsigned by the father;
wedding pictures showing that the alleged father gave
her hand in marriage. See Ong vs CA; Angeles v. Maglaya
Any other means allowed by the Rules of Court and special laws.
• For baptismal certificate to be proof of filiation, it must be
shown that the father participated in the preparation of the
same. Mendoza vs CA
• The following may prove filiation:
o Judicial admission
o A family bible in which his name has been entered
o Common reputation respecting his pedigree
o Admission by silence
o Testimony of witnesses
o DNA test results
• The following do not prove filiation:
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Family Code: title 6
o Pictures, typewritten letters, and affidavits; the fact
alone that the child used the surname of the father
without consent
Relevant in the absence of presumption of legitimacy. The
probative value of these pieces of evidence attains great weight and
significance where the children are born under Article 169 where there
is no presumption of legitimacy or illegitimacy.
Article 173. The action to claim legitimacy may be brought by the child
during his or her lifetime and shall be transmitted to the heirs should the
child die during minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute the action.
Action commenced by child survives despite death of parties. The
action already commenced by the child shall survive notwithstanding the
death of either or both of the parties.
General rule: This is of a personal character and pertains exclusively to
the child
Exception: It may be transmitted to the heirs in the following instances:
• Should the child die during minority.
• Should the child die in a state of insanity.
• Should the child die after the action had been instituted
Prescriptive period:
• Child- during his or her lifetime
• Heirs- a period of five years from death of the child
Petition to establish filiation; in rem. This is an action in rem. An
action in rem is an action enforceable against the whole world, or a
particular thing itself. This proceeding is validated essentially through
publication
• An action in personam is directed against a person based on
personal liability
• An action quasi in rem is names a person as a defendant, but
its object is to subject that person’s interest in property to a
corresponding lien or obligation
Article 174. Legitimate children shall have the right:
SU-SU-LESU
1. To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on Surnames;
JO VALLES
ad majorem dei gloriam
2. To receive support from their parents, their ascendants, and
in proper cases, their brothers and sisters, in conformity with
the provisions of this Code on Support; and
3. To be entitled to the legitimate and other successional
rights granted to them by the Civil Code.
CHAPTER 3. ILLEGITIMATE CHILDREN
Article 175. Illegitimate children may ESTABLISH THEIR
ILLEGITIMATE FILIATION in the same way and on the same
evidence as legitimate children.
The action must be brought within the same period specified in Article
173, except when the action is based on the second paragraph of Article
172, in which case the action may be brought during the lifetime of the
alleged parent.
Illegitimate child can establish illegitimate filiation if mother did
not contract subsequent marriage. The first paragraph is applicable
when the mother did not contract a subsequent valid marriage. Because
if she does, then the child is presumed to be a legitimate child, being
born in such valid marriage. The effect is that only the second husband
may impugn the legitimacy of the child, and the child cannot claim status
as an illegitimate child of the prior marriage without the second husband
impugning his or her legitimacy.
Proof of illegitimacy. The same way and on the same evidence as
legitimate children under Article 172
Rule 130, Section 39 of RoC on act or declaration about pedigree
• This is an exemption on the hearsay rule.
• It may be admitted in evidence if:
(1) The declarant is dead or unable to testify
(2) Pedigree is in issue
(3) Declarant is the relative of the person whose pedigree
is in issue
(4) The declaration must be made before the controversy
(5) Relationship between the defendant and the person
whose pedigree is in question must be shown by
evidence other than such declaration
Pedigree. It includes relationship, family genealogy, birth, marriage,
death, and dates where these facts occurred, and names of relatives
Prescriptive period for establishing illegitimate filiation:
• If the child uses proofs under Article 172 (1), the action may
be exercised anytime during the child’s lifetime.
Honor and Excellence. Honor before Excellence.
legal ethics
• If the child uses Article 172 (2), the right may be exercised
during the lifetime of the parents.
Article 176. Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate child. Except
for this modification, all other provisions in the Civil Code governing
successional rights shall remain in force.
Parental authority of illegitimate children. Given to the mother. Not
given to the father despite his recognition that the child is his, in order
to prevent a person from exercising such parental authority over a child
who might not be his. Briones v Miguel
• However, if the father admits that the child is his and it is
conclusively shown that the child is his, he lives with the
mother of the child in a void marriage or without the benefit
of a marriage, the father and the mother shall exercise joint
parental authority over the common children. In case of
disagreement, the decision of the husband shall prevail.
• Once the parental authority is established, it cannot be waived
but it can be terminated.
• There may be waiver in case of adoption, guardianship, or
surrender to an orphanage.
Surname of illegitimate children. General rule: That of the mother’s
Exception: May use father’s surname if filiation has been expressly
recognized by the father by:
1. record of birth appearing in the civil register
2. admission in a public document or handwritten private
instrument
Nevertheless, the father shall have the right to institute an action before
the courts to prove non-affiliation during his lifetime. Republic vs Abadilla
SUMMARY OF DIFFERENCES IN RIGHTS
78
Family Code: title 6 ad majorem dei gloriam legal ethics
But adulterous children cannot be legitimated. To do so will destroy
the rationale of legitimation and the sanctity of marriage, will be unfair Legitimate Illegitimate
to the legitimate children in terms of successional rights, and will be Time to file an action for Child’s lifetime Child’s lifetime*
scandalous. Abadilla vs Tabiliran claim of legitimacy or
*If the child uses proofs under Article 172 (1), the action may be illegitimacy
exercised anytime during the child’s lifetime. If the child uses Article Children of bigamous marriage cannot be legitimated. De Santos v Transmission of right to YES NO
172 (2), the right may be exercised during the lifetime of the parents. Angeles file action
Support from direct line Any ascendants Until
** This pertains to the right of representation. An illegitimate child Article 179. Legitimated children shall enjoy the same rights as or descendants grandparents and
cannot inherit from the legitimate relatives of his or her father, in case legitimate children. However, it will not affect property rights which grandchildren
the latter predeceases the former. have already vested Successional rights normal ½ of legitimate
Surname Father Mother
Illustration: If Y predeceases X, O may inherit from X as a legitimate Parental authority Father Mother
Article 180. The effects of legitimation shall retroact to the time of the
child through his right of representation, but P cannot inherit from X. Inherit Ab Intestato** YES NO
child’s birth.

Article 181. The legitimation of children who died before the celebration
of the marriage shall benefit their descendants.

What is referred to is the descendant of the legitimated child who died

This is important because under our law, legitimate descendants and
ascendants are obliged to support each other
When an illegitimate child is involved, support extends only to the
grandparents and grandchildren.

Article 182. Legitimation may be impugned only by those who are

CHAPTER 4. LEGITIMATED CHILDREN
Article 177. Only children conceived and born outside of wedlock of
parents who, at the time of the conception of the former, were not
disqualified by any impediment to marry each other, or were so
disqualified only because either or both of them were below 18 years of
age, may be legitimated.
Requisites of legitimation:
1. the parents do not suffer from any legal impediment to marry,
or are disqualified because either one of them are below 18
o adulterous children can never be legitimated
2. child was conceived and born outside of a valid marriage
3. parents subsequently enter into a valid marriage
prejudiced in their rights, within five years from the time their cause of
action accrues.
Rights refer to successional rights only. Based on deliberations, the
rights generally refer to successional rights, the persons who can be
prejudiced in their rights by the process of conferring to someone all
rights of a legitimate child are the legal heirs of the parents. The rights
of creditors are not included here. They step in only in cases of
repudiation of inheritance. Sta. Maria 2015, p. 700.
Accrues from the time of death of parents of legitimated child. The
cause of action to impugn legitimation arises upon the death of the
parents of the legitimated child because it is only at that time when the
successional rights to the legitime will vest.

Article 178. Legitimation shall take place by a subsequent valid marriage

between parents. The annulment of a voidable marriage shall not
affect the legitimation.

JO VALLES Honor and Excellence. Honor before Excellence. 79

Family Code: title 7
TITLE 7: ADOPTION
Who may adopt?
Domestic Adoption
1. Any Filipino Citizen who is (M-MARCOS):
a. Of legal Age
b. In possession of full civil capacity and legal
Rights
c. Of good Moral character
d. Not convicted of any crime involving
Moral turpitude
e. Emotionally and psychologically Caring for
children
f. At least 16 years Older than the adoptee but
this requirement can be waived when the
adopter is (1) the biological parent of the
adoptee, or (2) spouse of the adoptee’s
parent
g. Capable to Support and care for his/her
child in keeping with the means of the family
(R.A. 8552, SEC. 7(A))
2. Any Alien – with same qualification as Filipinos,
provided (LARD):
a. His/her country has Diplomatic relations
with the Philippines
b. Has been living in the Philippines for at least
3 continuous years prior to filing of adoption
and maintains Residence until adoption
decree is rendered except:
i. Former Filipino Citizen who seeks
to adopt a relative within the 4th
degree of consanguinity or affinity;
ii. One who seeks to adopt the
legitimate child of his Filipino
spouse;
iii. one who is married to a Filipino
citizen and seeks to adopt jointly
with his spouse a relative within the
4th degree of consanguinity or
affinity of the Filipino Spouse.
c. Has been certified as having Legal capacity
to adopt in his country (requirement is also
waived is adopter falls under the exceptions
for the residency requirement)
d. His government Allows adoptee to enter his
country as his adopted child
3. The Guardian with respect to his ward
JO VALLES
ad majorem dei gloriam
Inter-country Adoption
Who may be adopted?
Any alien of Filipino citizen residing abroad if he is
(E-SCAM- PUDA):
a. At least 27 years of Age and at least 16 years
older than the child to be adopted except when
the adopter is the parent by nature of the child
to be adopted or the spouse of such parent
b. If married, his or her Spouse must jointly file
for adoption
c. With the Capacity to act and assume all rights
and responsibilities of parental authority under
his national laws, and he has undergone the
appropriate counselling from an accredited
counsellor
d. Not been convicted of a crime of Moral
turpitude
e. Eligible to adopt under his or her national law
f. In the Position to provide the proper care and
support and to give the necessary moral values
and example to all his children
g. Agrees to Uphold the basic rights of the child as
embodied under Philippine Laws, the U.N.
Convention on the Rights of the Child, and to
abide by the rules and regulation in the
provisions of this act
h. Comes from a country with whom the
Philippines has Diplomatic relations
Possess All the qualifications and none of the
disqualifications provided herein (R.A. No. 8043,
SEC. 9).
Honor and Excellence. Honor before Excellence.
legal ethics
a. After termination of guardianship and
Clearance of his financial accountabilities
Domestic Adoption Inter-country Adoption
1. Person below 18 years of age: voluntarily Only a legally-free child the may be the subject
committed to the DSWD or judicially declared (R.A. No. 8043, SEC. 8).
available for adoption
2. Legitimate child of the other spouse. Legally free child is a child who has been voluntarily
3. Illegitimate child, by a qualified adopter to raise or involuntarily committed to the DSWD in
status of legitimacy. accordance to the Child and Youth Welfare Code
4. Person of legal age, if prior to adoption, has (R.A. No. 8043, SEC. 3(F)).
been considered and treated by the adopter(s)
as his or her own child since minority.
5. Child whose adoption was previously
rescinded.
Child whose biological or adoptive parent(s) has
died, but no proceeding may be initiated within 6
months from time of parent’s death. (R.A. 8552,
SEC.8)
Child is one who is below 18 years of age. (Id. Sec. 3 Child is one below 15 years of age. (Id. Sec. 3, Par. j)
(a))
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Family Code: title 8
TITLE 8: SUPPORT
Article 194. Support comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the
preceding paragraph shall include his schooling or training for some
profession, trade or vocation, even beyond the age of majority.
Transportation shall include expenses in going to and from school, or
to and from place of work.
SUPPORT comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family. It includes
everything necessary to keep a person alive.
Family Code eliminated the distinction between natural and civil
support. This can be seen in the clause in keeping with the financial capacity
of the family.
• Natural support- includes basic necessities
• Civil support- anything beyond basic necessities
Schooling vs training.
• Schooling- formal education
• Training- non-formal education
Obligation to support is mandatory; waiver void. It cannot be
waived renounced, transmitted or compensated as such obligation is
necessary for the existence, survival, and well-being of the individual
supported. Sta. Maria (2015), p. 792.
• See Article 2035
• Rationale: Doing so would void as a violation of a mandatory
provision of the law. It is also contrary to law, public policy,
morals, or good customs
Article 195. Subject to the provisions of the succeeding articles, the
following are obliged to support each other to the whole extent set forth
in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood
JO VALLES
ad majorem dei gloriam
(1) The spouses
This presupposes a valid marriage between the parties. It is a valid
marriage that gives rise to the duty of spouses to support each other.
Santos v Sweeney
• Support pendente lite not given without hearing if validity
of marriage is in issue. Hence, when the validity of the
marriage is in issue, support pendente lite cannot be given
without due hearing because proper to the rendition of a final
judgment declaring the existence or non-existence of the
marriage, nothing exists except the allegation of marriage and
a denial thereof. Yangco v Rohde
• But pending the proceedings for legal separation or annulment,
there can be support pendente lite
o Once the marriage is annulled or declared void, the
obligation to give support ceases
o In legal separation, support likewise ceases unless the
guilty spouse is ordered to give support.
Defenses against claim for support:
1. Adultery. Adultery of a wife is a valid defense for support
initiated by the wife claiming support. Quintana v Lerma
• Must be established by competent evidence. The
alleged adultery of the wife must be established by
competent evidence. Adultery is a good defense and
if properly proved and sustained, adultery will defeat
the action for support. Reyes vs Ines-Luciano
2. Adulterous child. A valid defense that may be raised is the
fact that the child is a fruit of an adulterous relationship. In this
case, it would not be the child of the person from whom
support is being sought. Sanchez v Zulueta
3. Abandonment. A spouse who leaves the home without just
cause shall not have the right to be supported. See Arts 100 &
127
(2) Legitimate ascendants and descendants
Direct legitimate ascendants and descendants are obliged to
support each other. The purpose is not to allow a member of the family
to be a burden to the society
If the relationship itself is the one in dispute, the status should first
be established before support can be given. There is no law or
reason which authorizes the grant f support to a person who claims to be
a son of another. There is nothing but a mere allegation. The civil status
Honor and Excellence. Honor before Excellence.
legal ethics
of sonship being denied and this civil status, from which the right of
support is derived, being in issue, it is apparent that no effect can be
given to such a claim until an authoritative declaration has been made as
the existence of the cause. Francisco v. Zandueta
Exception: If a child’s status as such has been proven
provisionally, support pendente lite may be given. If in a hearing
for support pendente lite, the status of the child is at issue, the child can
get support in the meantime while the case is pending if his or her status
as such has been proven provisionally. This can only be attained if there
is prima facie evidence, such as the affidavit of the claimant-child and
the testimonies of witnesses, that show the merit of the claim of the
child. Mangulabnan v IAC
(3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter
Whether legitimate or illegitimate, children are required to be supported
by their parents. The parents are likewise obliged to support the
legitimate and illegitimate children of their legitimate children.
(4) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter
Whether legitimate or illegitimate, children are required to be supported
by their parents. The parents are likewise obliged to support the
legitimate and illegitimate children of their illegitimate children.
Note: the obligation to support the legitimate and illegitimate children
of an illegitimate child extends only to grandparents
(5) LEGITIMATE brothers and sisters, whether of full or half-
blood
Collateral blood relatives. The collateral blood relatives obliged to
support each other are limited to legitimate siblings, whether of the full
or half blood. Hence, uncles, aunts, nephews, and nieces are not obliged
to support each other.
Article 196. Brothers and sisters not legitimately related, whether of the
full or half-blood, are likewise bound to support each other to the full
extent set forth in Article 194, except only when the need for support
of the brother or sister, being of age, is due to a cause imputable to the
claimant’s fault or negligence.
General Rule: Brothers and sisters not legitimately related, whether of
the full or half-blood, are likewise bound to support each other to the
FULL EXTENT set forth in Article 194.
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Family Code: title 8
Exception: When the sibling is of age and the need for support is due
to a cause imputable to the claimant’s fault or negligence, support does
not become a demandable right and, therefore, may not be given at all.
Take note of the wording of the provision. It means that when the
illegitimate sibling to be supported is a minor, such sibling is still entitled
to support even if the need for support is due to a cause imputable to
the latter.
Article 197. In case of legitimate ascendants; descendants, whether
legitimate or illegitimate; and brothers and sisters, whether legitimately
or illegitimately related, only the separate property of the person obliged
to give support shall be answerable provided that in case the obligor has
no separate property, the absolute community or the conjugal
partnership, if financially capable, shall advance the support, which shall
be deducted from the share of the spouse obliged upon the liquidation
of the absolute community or of the conjugal partnership.
General rule: In case of legitimate ascendants; descendants, whether
legitimate or illegitimate; and brothers and sisters, whether legitimately
or illegitimately related, only the separate property of the person
obliged to give support shall be answerable. The reason for this is
because support is in the nature of a personal obligation
Exception: If he has NO SEPARATE PROPERTY, the absolute
community or the conjugal partnership, if financially capable, shall
advance the support, which shall be deducted from the share of the
spouse obliged upon the liquidation of the ACP or CPG.
When rule does not apply. If the legitimate descendants are the
common children of the spouses or the legitimate children of either
spouse, the ACP or the CPG shall be principally charged for their
support. Article 94(1) and Article 121(1).
Note: There should be no property at all. Mere insufficiency is not
enough. The following are exceptions:
• Mere insufficiency of separate property is enough to make the
ACP liable for the support of illegitimate children of either
spouse. Article 94(9).
• The CPG may likewise be held liable for mere insufficiency as
long as the responsibilities in Article 121 have been satisfied.
Article 198. During the proceedings for legal separation or for
annulment of marriage, and for declaration of nullity of marriage, the
spouses and their children shall be supported from the properties of the
absolute community or the conjugal partnership. After the final
JO VALLES
ad majorem dei gloriam
judgment granting the petition, the obligation of mutual support
between the spouses ceases. However, in case of legal separation, the
court may order that the guilty spouse shall give support to the innocent
one, specifying the terms of such order.
Family is supported by ACP or CPG during the hearing. During
the proceedings for legal separation or for annulment of marriage, and
for declaration of nullity of marriage, the spouses and their children shall
be supported from the properties of the absolute community or the
conjugal partnership.
Exception; guilty spouse in legal separation case has no right to
claim for support. Here, the wife was convicted of adultery. Later on,
she filed a case for legal separation against her husband and tried to claim
support pendente lite. The SC denied this. The right to separate support
or maintenance, even from the conjugal partnership property,
presupposes the existence of a justifiable cause for the spouse claiming
such right to live separately. Here, the probable failure of the
respondent's suit for legal separation can be foreseen since she is not an
innocent spouse, having been convicted of adultery by the Court of First
Instance. If legal separation cannot be claimed by the guilty spouse in
the first place, the fact that an action for that purpose is filed anyway
should not be permitted to be used as a means to obtain support pendente
lite, which, without such action, would be denied on the strength of the
decisions of this Court recognizing adultery as a good defense.
Otherwise, as pointed out by the petitioner, all that an erring spouse has
to do to circumvent such defense would be to file a suit for legal
separation no matter how groundless. Lerma vs CA
When support ceases. After the final judgment granting the petition,
the obligation of mutual support between the spouses ceases.
• However, in case of legal separation, the court may order that
the guilty spouse shall give support to the innocent one,
specifying the terms of such order.
Article 199. Whenever two or more persons are obliged to give support,
the liability shall devolve upon the following persons in the order herein
provided:
1. The spouse;
2. The descendants in the nearest degree;
3. The ascendants in the nearest degree; and
4. The brothers and sisters.
Example: A and B are married. They separated. B went to the US, and
so did A (wife). A demanded support from B, and B refused. A just
supported the children in a very private school. It came to a point that
Honor and Excellence. Honor before Excellence.
legal ethics
she could not afford it anymore. What she did was to ask support from
B, as well as from the mother and father of B. So she finally went back
to the PH and filed a petition for support. The SC said that the children
are entitled to be supported. The SC also allowed support in arrears to
be obtained from A. This is the first time that the SC did this under the
FC, considering that the provision on back support under the CC was
scrapped and not carried over to the FC. Here, A was able to prove prior
demands, the oldest one being 7 years ago. Since B did not have money,
SC ordered his parents (grandparents of the children) to pay. Under the
law, ascendants are obliged to give support. Mangonon vs CA
Article 200. When the obligation to give support falls upon two or
more persons, the payment of the same shall be divided between them
in proportion to the resources of each.
However, in case of urgent need and by special circumstances, the judge
may order only one of them to furnish the support provisionally,
without prejudice to his right to claim from the other obligors the share
due from them.
When two or more recipients at the same time claim support from one
and the same person legally obliged to give it, should the latter not have
sufficient means to satisfy all claims, the order established in the
preceding article shall be followed, unless the concurrent obligees
should be the spouse and a child subject to parental authority, in which
case the child shall be preferred
Note: If concurrent obligees (the people asking for support) should be
the spouse and a child subject to parental authority, in which case the
child shall be preferred.
Article 201. The amount of support, in the cases referred to in Articles
195 and 196, shall be in proportion to the resources or means of the
giver and to the necessities of the recipient.
The law is not unreasonable so as to compel one to give support to the
extent detrimental to his own existence.
Article 202. Support in the cases referred to in the preceding article shall
be reduced or increased proportionately, according to the reduction or
increase of the necessities of the recipient and the resources or means
of the person obliged to furnish the same.
Creditable expenses; only those that bear a relation to the
judgment of support. The RTC and CA ordered the husband to
provide monthly support pendente lite to his wife and children. He was
also ordered to give support in arrears. However, in complying with said
order, he sought to deduct amounts that he had given to the children,
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Family Code: title 8
which would include the value of the cars given to the children, car
maintenance, as well as credit card purchases. The SC said that the CA
should not have allowed the deduction of all expenses to be credited
against accrued support pendente lite. The monthly support was
intended primarily for food, household expenses, as well as the wife’s
scoliosis therapy. Thus, the value of the 2 expensive cars, maintenance
costs, travel expenses and the credit card purchases unrelated to clothes
and groceries should have been disallowed. These bear no relation to the
judgment awarding support pendente lite. Lim-Lua vs Lua
Provisional character of support judgment. Because of the changing
needs of the recipient and the changing ability of the provider, the
judgment for support does not become final. De Asis vs CA
Article 203. The obligation to give support shall be demandable from
the time the person who has a right to receive the same needs it for
maintenance, but it shall not be paid except from the date of judicial or
extra-judicial demand.
Support pendente lite may be claimed in accordance with the Rules of
Court.
Payment shall be made within the first five days of each corresponding
month or when the recipient dies, his heirs shall not be obliged to return
what he has received in advance.
Support must be demanded and the right to it established before
it becomes payable. Why? Because the right to support does not arise
from mere fact of relationship, but from the imperative necessity
without which it cannot be demanded. The law presumes that such
necessity does not exist unless demanded. Jocson v Empire Insurance
Support in arrears. Since the obligation for support is demandable
from the time of need and is payable only upon demand, then the law
allows one to claim for support in arrears. In Mangonon v CA, the SC
allowed the payment of support in arrears considering that the children,
who should have been given support, must have already finished their
schooling by the time the decision was rendered.
• Backsupport: you can go back only as far as 10 years. This is
because obligations arising from law have the prescriptive
period of 10 years only.
Example; support pendente lite: A and B are married. There is a
pending case for the declaration of nullity of their marriage. B is resisting
it and is asking for support. What will he prove?
1. Capacity of A
2. His need (B)
JO VALLES
ad majorem dei gloriam
3. Probable outcome of the case
1. His stand, therefore, is that the marriage is valid as it
is the tie that will entitle him to support. What he will
do is to present the marriage certificate as it is the best
evidence of marriage
2. How will A counter? He can show the certification of
the LCR that there is no license for marriage. If
unrebutted, this will not entitle B to support
pendente lite because the probable outcome of the
case is that there is no marriage.
Article 204. The person obliged to give support shall have the option
to fulfill the obligation either:
1. by paying the allowance fixed or
2. by receiving and maintaining in the family dwelling the person who
has a right to receive support.
This alternative cannot be availed of in case there is a moral or legal
obstacle thereto.
Option given to obligor. The right to elect the manner in which
support shall be given is conferred upon the person whose duty it is to
give such support. Mendoza vs Ibanez
Article 205. The right to receive support under this Title as well as any
money or property obtained as such support shall not be levied upon on
attachment or execution.
Rationale. Because support is necessary for the survival and well-being
of the recipient.
Exception: See Article 208.
Article 206. When, without the knowledge of the person obliged to give
support, it is given by a stranger, the latter shall have a right to claim the
same from the former, unless it appears that he gave it without intention
of being reimbursed.
Requisites:
1. Support has been extended to a dependent of one who is
bound to give support and fails to do so
2. Support was supplied by a stranger
3. Support was given without the knowledge of the person
charged with the duty
Honor and Excellence. Honor before Excellence.
legal ethics
Quasi-contract. This is a juridical relation that arises from certain
lawful. Unilateral, and voluntary acts to the end that no one shall be
unjustly enriched or benefited at the expense of another.
• Articles 206 and 207 has the nature of a quasi-contract.
Article 207. When the person obliged to support another unjustly
refuses or fails to give support when urgently needed by the latter, any
third person may furnish support to the needy individual, with right of
reimbursement from the person obliged to give support. This Article
shall particularly apply when the father or mother of a child under the
age of majority unjustly refuses to support or fails to give support to the
child when urgently needed.
Requisites:
1. There is an urgent need to be supported on the part of the
recipient
2. The person obliged to give support fails to do so unjustly
refuses to give it
3. A third person furnishes such support
Consequence: This third person has the right of reimbursement
Article 208. In case of contractual support or that given by will, the
excess in amount beyond that required for legal support shall be subject
to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment
whenever modification is necessary due to changes of circumstances
manifestly beyond the contemplation of the parties
When support may be attached. The excess in amount beyond that
required for legal support shall be subject to levy on attachment or
execution in case of:
1. Contractual support
• This is support entered into by the parties, usually with
reciprocal duties and obligations
• Legal support is one mandated by law as provided for in
article 194.
2. That given by will
Note that only contractual support is subject to adjustment
whenever modification is necessary. Contractual support shall be
subject to adjustment whenever is necessary due to changes of
circumstances manifestly beyond the contemplation of the parties. This
is because the basis of contractual support is an agreement.
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Family Code: title 9
TITLE 9: PARENTAL AUTHORITY
Chapter 1: General provisions
Article 209. Pursuant to the natural right and duty of parents over the
person and property of their unemancipated children, parental authority
and responsibility shall include the caring for and rearing them for civic
consciousness and efficiency and the development of their moral,
mental and physical character and well-being.
Supremacy of parent authority. The family is a self-governing entity
under the discipline of the parents; the supremacy of the parents in their
own home as regards the control of their children is generally
recognized. Parental authority should be so supreme that whatever
would unduly impair it should be forgone by the child for his ultimate
good. It is cardinal that the custody, care, and the nurture of the child
reside FIRST in the parents whose primary function and freedom
include the preparation for obligations the state can neither supply nor
hinder.
• Except: If it is modified by legislation relating to domestic
affairs
Article 210. Parental authority and responsibility may NOT be
renounced or transferred except in the cases authorized by law.
Parental authority cannot be renounced or waived. The father who
was not shown to be unfit had custody of the child even though he took
away his child from the latter’s grandfather by means of deceit, false
pretentions and trickery. Such means are not grounds to remove custody
from him. When a parent entrusts the custody of a minor to another,
such as a friend or a godfather, even in a document, what is merely given
is temporary custody and does not constitute a renunciation of parental
authority Only in the case of the parent’s death, absence, or unsuitability
may substitute parental authority be exercised by the grandparents.
Santos v CA
When parental authority may be waived. Being a personal right, the
law allows a waiver of parental authority only in cases of:
1. Adoption
2. Guardianship
3. Surrender to a children’s home or orphanage. Sagala-Eslao vs
CA
Note: The subsequent separation of the father from the mother and the
illegitimate child shall not be considered as a waiver of parental
authority.
JO VALLES
ad majorem dei gloriam
Article 211. The father and the mother shall JOINTLY exercise
parental authority over the persons of their common children. In case
of disagreement, the father’s decision shall prevail, unless there is a
judicial order to the contrary.
Children shall always
- observe respect and reverence towards their parents and
- are obliged to obey them
as long as the children are under parental authority.
Joint parental authority; legitimate and illegitimate children. This
applies both to legitimate and illegitimate children. The law does not
distinguish.
Application to legitimate children. BUT for this provision to apply
to illegitimate children, the following requisites must be present:
1. The father is certain
2. The illegitimate children are living with the said father and the
mother, who cohabit with each other without the benefit of
the marriage or under a void marriage not falling under Article
36 and 53. Sta. Maria (2015), pp. 830-831.
Note: The requisites above are for the purpose of reconciling this
provision which provides that as a general rule, parental authority of an
illegitimate child belongs to the mother.
Modus vivendi; preferential choice of the father. The father’s choice
shall prevail in case of conflict. This is a mechanism by which the
conflicts in the family will be resolved principally by people within the
family. Only a judicial order can alter it.
Article 212. In case of absence or death of either parent, the parent
present shall continue exercising parental authority. The remarriage of
the surviving parent shall not affect the parental authority over the
children, unless the court appoints another person to be the guardian
of the person or property of the children.
Death of one parent does not terminate parental authority of the
other. But the court may appoint another person to be the guardian of
the person or property of the children if it is clearly shown that, by
reason of the remarriage, the surviving parent cannot undertake the
necessary devotion, care, loyalty, and concern toward the children.
Honor and Excellence. Honor before Excellence.
Persons and family relations
Remarriage; new spouse no automatic parental authority; must
adopt. The new spouse of the spouse present does not automatically
possess parental authority over the children of the wife with her
deceased spouse. To possess parental authority, the new spouse must
adopt the children
Article 213. In case of separation of the parents, parental authority shall
be exercised by the parent designated by the Court. The Court shall take
into account all relevant considerations, especially the choice of the child
over seven years of age, unless the parent chosen is unfit.
Separation; court designates parent to exercise PA. In case of
separation of the parents, parental authority shall be exercised by the
parent designated by the Court. The designation by the Court does not
mean that the parental authority of the other parent is necessarily
terminated or suspended.
• Note that parental authority is terminated only upon a court
order on the basis of the causes for termination or suspension
of such authority provided by law.
• In Cang v CA, the Court ruled that even when parental
authority was awarded to the mother, the consent of the father
is still required to have such child adopted because legal
separation did not terminate the parental authority of the
father.
Cardinal principle. The child’s best interest is the paramount
consideration. It is not a principle to be placed on a balance of scales but
rather is the measure by which all else is to be decided. No factor will be
given weight that is not homogenous with that cardinal principle. Cooke
v Cooke
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Family Code: title 9
Maternal preference. No child under 7 years of age shall be separated
from the mother.
• Paramount consideration is still the best interest of the
child. Even if the children were below 7 years old, the court
took into consideration their choice to remain with their father
after they saw their mom kiss another person and was
convicted of adultery. Whether the child is over or under 7
years old, the paramount interest is still the child’s interest.
Espiritu vs CA
• Any presumption of maternal preference is to be resorted to
only in the rare situation in which all other considerations are
equal, such that a resort to presumption is necessary. Cooke vs
Cooke
• A joint-custody agreement over a child below 7 years is
void. An agreement to establish a post-divorce joint custody
regime between respondent and petitioner over their child
under 7 years old contravenes PH law because under the FC,
no child under 7 years of age shall be separated from the
mother. Dacasin vs Daasin
Exception to maternal preference. If the court determines that there
are compelling reasons to deprive the mother of custody, an order for
the same may be issued. Pablo-Gualberto v Gualberto.
1. That the father was well-off is not a reason for depriving the
mother of custody especially if she can support the children.
David vs CA
2. The mere fact that the mother is lesbian is not enough, Rablo-
Gualberto vs Gualberto
3. But the Court found compelling reasons when it was shown
that the mother can hardly attend to the children, she desired
to have them adopted in exchange for money, she used drugs,
and she lived in a house surrounded by stagnant water and
infested by mosquitos. Castelo vs Estacio
Choice of a child 7 and up considered but not determinative. If the
child is 7 years old and up, his or her choice is significant but not
determinative of the custody issue because the Court may still award
custody to the other parent or even to a third person if the paramount
interest of the child so dictates. However, if the child has made a choice
and there is no showing that the selected parent is unfit, the custody of
the child shall be awarded. David vs CA
Court may even award custody to strangers. When the parents are
separated and it appears that both parents are improper persons for
custody, the court mat designate the grandparents, the eldest sibling, or
JO VALLES
ad majorem dei gloriam
some reputable and discreet persons to take care of the child, or commit
it to an asylum, home, or benevolent society. Chua vs Cabangbang
No finality of custody judgment. The res judicata rule does not apply.
The decision of the Courts as regards custody of minor children are
always open to adjustments as the circumstances might demand in light
of the inflexible criterion, the paramount interest of the children. Unson
v Navarro
Article 214. In case of death, absence or unsuitability of the parents,
SUBSTITUTE PARENTAL AUTHORITY shall be exercised by
the surviving grandparent. In case several survive, the one designated
by the court, taking into account the same consideration mentioned in
the preceding article, shall exercise the authority.
Article 215. No descendant shall be compelled, in a criminal case, to
testify against his parents and grandparents, except when such testimony
is indispensable in a crime against the descendant or by one parent
against the other.
Filial privilege; general rule: No descendant shall be compelled, in a
criminal case, to testify against his parents and grandparents
• Rationale: This is to foster family unity and tranquility
• Note: The law prohibits compulsion. Hence, a descendant can
voluntarily testify against his or her parents or grandparents.
Exception: Exception is when such testimony is INDISPENSABLE
in a crime against the descendant or by one parent against the other.
• Note that the law says INDIPENSABLE and not merely
necessary.
Marital privilege; general rule. The husband or the wife, during or
after the marriage, cannot be examined without the consent of the other
as to communication received in confidence by one from the other
during the marriage.
Exception: Spouses can testify against each other in:
1. Civil case by one against another
2. Criminal case for a crime committed by one against the other
3. Criminal case for a crime committed by one against the other’s
direct descendants or ascendants
Honor and Excellence. Honor before Excellence.
Persons and family relations
Chapter 2. Substitute and special parental
authority
Article 216. In default of parents or a judicially appointed guardian, the
following person shall exercise SUBSTITUTE PARENTAL
AUTHORITY over the child in the order indicated:
1. The surviving grandparent, as provided in Art. 214;
2. The oldest brother or sister, over twenty-one years of age, unless
unfit or disqualified; and
3. The child’s actual custodian, over twenty-one years of age, unless
unfit or disqualified.
Whenever the appointment of a JUDICIAL GUARDIAN over the
property of the child becomes necessary, the same order of preference
shall be observed.
Order not mandatory; but must be followed as much as
practicable. The order in 216 is not mandatory as the paramount
interest of the child must be the basis of custody. Hence, if it cam be
show that the siblings are more qualified than the grandparents, custody
should be given to the former. However, the order should be followed
as much as possible especially when all those enumerated are equally fit
to take care of the children. Sta. Maria (2015), p. 832.
Parental authority. Parental authority is exercised in the following
order of preference:
1. Parents (principal)
2. Judicially appointed guardian (principal)
3. Substitute. See Art 216
4. For unfortunate children, institutions duly accredited by the
proper government agency via summary proceedings.
(substitute) See Art 217
5. Special parental authority. See Art 218
Substitute parental authority. Persons exercising substitute parental
authority shall have:
1. All the rights of the parents under Article 220
2. The same authority over the person of the child as the parents
(Article 233)
3. They shall be civilly liable for acts or omissions of
unemancipated children living in their company and under
their parental authority. Article 221
4. However, it is possible that one who adopted another cannot
inherit from such child because they are not heirs.
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Article 217. In case of foundlings, abandoned, neglected or abused
children and other children similarly situated, parental authority shall be
entrusted in SUMMARY JUDICIAL PROCEEDINGS to heads of
children’s homes, orphanages and similar institutions duly accredited by
the proper government agency.
1. FOUNDLING- a newborn child abandoned by its parents
who are unknown
2. ABANDONED- a child with no proper parental care or
guardianship or whose parents deserted him for at least 6
continuous months
3. NEGLECTED- a child whose basic needs have been
deliberately unattended or inadequately attended.
a. Physical neglect
b. Emotional neglect- when a child is raped,
maltreated, seduced or exploited
4. ABUSED- when a child is raped, maltreated, seduced or
exploited; comes within the 2nd kind of neglected child
5. DEPENDENT- dependent upon the public for support
Transfer of parental authority; summary proceeding. The transfer
of parental authority over these children shall be entrusted in a summary
proceeding to heads of children’s homes, orphanages or similar
institutions. It may be voluntary or involuntary.
(1) Voluntary. This is initiated by the parent or guardian of a dependent,
abandoned, or neglected child. Such parent or guardian surrenders the
child in writing to custody and care of the DSWD or any duly licensed
child placement agency or individual.
(2) Involuntary. DSWD or any duly licensed child placement agency or
individual initiates the commitment of a dependent, abandoned, or
neglected child through a verified petition.
• Rights of parents cease. In this case, the rights of the natural
parents, guardians, or other custodian, to exercise parental
authority over the child shall cease. Parents or guardians shall
have no authority over him except upon such conditions as the
Court may impose.
• The agency is entitled to custody and control of such
child during minority. Such agency shall likewise be entitled
to intervene in adoption proceedings. It shall be responsible
for support.
Article 218.
1. The school its administrators and teachers, or
2. The individual, entity or institution engaged in child care
JO VALLES
ad majorem dei gloriam
shall have SPECIAL PARENTAL AUTHORITY and responsibility
over the minor child while under their supervision, instruction or
custody:
Authority and responsibility shall apply to all authorized activities
whether inside or outside the premises of the school, entity or
institution.
Note: There is no distinction as to whether the school is academic or
non-academic.
Teacher. The teacher must be the teacher-in-charge. He must be the
one designated by the dean, principal or other administrative superior to
exercise supervision over the pupils in specific classes or section to
which he or she is assigned. He must be the one immediately involved
in the student’s discipline as he or she has direct control or influence
over them. Hence, a mere physics teacher who is not the teacher-in-
charge of the class shall not be liable. Amadora v CA
Being in the custody of the school. The responsibility of the school
authorities over the student continues as long as it is shown that the
student is in:
1. Pursuance of a legitimate student objective;
2. The exercise of a legitimate student right; and
3. The exercise of a legitimate student privilege. Amadora v CA
Recess time is included. Palisoc v Brillantes
If students are not minors, apply 2180. Note that the provision
specifically applies only to minor children. For students who are non-
minors, Article 2180 of the Civil Code will apply. Amadora vs CA
Article 2180 (6). xxx Teachers or heads of establishments of arts and
trades shall be liable for damages caused by their pupils and students or
apprentices as long as they remain in their custody.
• In this case, liability attaches only when there is a clear showing
of negligence or laxness in the enforcement of discipline
• The teachers or heads must likewise have direct control or
influence over the apprentices
• In any event, the persons responsible may exculpate
themselves from liability upon showing that they had taken
the necessary precautions to prevent the injury
complained of.
Custody; student need not live or board with the teacher;
protective and supervisory custody. The phrase used in the article
Honor and Excellence. Honor before Excellence.
Persons and family relations
2180 — so long as the students remain in their custody— means the
protective and supervisory custody that the school and its heads and
teachers exercise over the pupils and students for as long as they are at
attendance in the school, including recess time. There is nothing in the
law that requires that for such liability to attach, the pupil or student who
commits the tortious act must live and board in the school. Palisoc vs
Brillantes
If academic, hold teachers liable; if technical, hold head liable.
Where the school is academic rather than technical or vocational in
nature, responsibility for the tort committed by the student will attach
to the teacher in charge of such student, following the first part of the
provision. This is the general rule. The exception is where the school is
technical in nature, in which case it is the head thereof who shall be
answerable. The reason for the disparity can be traced to the fact that
historically the head of the school of arts and trades exercised a closer
tutelage over his pupils than the head of the academic school. Amadora
vs CA
Article 219. Those given the authority and responsibility under the
preceding Article shall be principally and solidarily liable for damages
caused by the acts or omissions of the unemancipated minor. The
parents, judicial guardians or the persons exercising substitute parental
authority over said minor shall be subsidiarily liable.
The respective liabilities of those referred to in the preceding paragraph
shall not apply if it is proved that they exercised the proper diligence
required under the particular circumstances.
All other cases not covered by this and the preceding articles shall be
governed by the provisions of the Civil Code on quasi-delicts.
Principal liability of those having special parental authority. Those
given the authority and responsibility under the preceding Article
(school, administrators, etc) shall be principally and solidarily liable for
damages caused by the acts or omissions of the unemancipated minor.
Defense. The respective liabilities of those referred to in the preceding
paragraph shall not apply if it is proved that they exercised the proper
diligence required under the particular circumstances.
Subsidiary liability of those exercising general/substitute parental
authority. The parents, judicial guardians or the persons exercising
substitute parental authority over said minor shall be subsidiarily liable.
They are liable only if persons with special parental authority cannot
satisfy their liability.
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Note: All other cases not covered by this and the preceding articles shall
be governed by the provisions of the Civil Code on quasi-delicts.
Chapter 3. Effect of parental authority upon the
persons of the children
Article 220. The parents and those exercising parental authority shall
have with the respect to their unemancipated children on wards the
following rights and duties:
1. To keep them in their company, to support, educate and
instruct them by right precept and good example, and to
provide for their upbringing in keeping with their means
2. To give them love and affection, advice and counsel,
companionship and understanding
3. To provide them with moral and spiritual guidance,
inculcate in them honesty, integrity, self-discipline, self-
reliance, industry and thrift, stimulate their interest in civic
affairs, and inspire in them compliance with the duties of
citizenship;
4. To enhance, protect, preserve, and maintain their
physical and mental health at all times;
5. To furnish them with good and wholesome educational
materials, supervise their activities, recreation and association
with others, protect them from bad company, and prevent
them from acquiring habits detrimental to their health, studies
and morals
6. To represent them in all matters affecting their interests
7. To demand from them respect and obedience
8. To impose discipline on them as may be required under
the circumstances
9. To perform such other duties as are imposed by law upon
parents and guardians.
Representation. The offer to redeem a particular property made by the
father on behalf of his children is valid. It is not an act of administration
but an act of representation of his children. The parents have the duty
to represent their children in all actions that may redound to their benefit
JO VALLES
ad majorem dei gloriam
Punishment. They may also inflict reasonable measure of corporal
punishment. However, the parents must do it in a reasonable manner
and not treat the child with excessive harshness or cruelty.
Delinquent behavior itself, even if unexplained or persistent, does
not generally carry with it the termination of the duty of a parent
to support. The child’s right to support and the parent’s right to custody
and services are reciprocal: the father in return for maintenance and
support may establish and impose reasonable regulations for his child.
In the absence of caprice, he has the right to require the child to conform
to his reasonable demands. Should the child disagree, she may do so but
she subject herself to her father’s lawful wrath: in this case, when she
left home, she forfeited her right to support. Roe v Doe
Article 221. Parents and other persons exercising parental authority shall
be CIVILLY LIABLE for the injuries and damages caused by the acts
or omissions of their unemancipated children living in their company
and under their parental authority subject to the appropriate defenses
provided by law.
Article 2180. (1) The father and, in case of his death or incapacity, the
mother, are responsible for the damages caused by the minor children
who live in their company. xxx
What must be proved to impute vicarious liability to parents.
1. Under 18
2. Liability or the elements of QD against the child or person for
whom the person vicariously liable is responsible.
3. Under parental authority and living in the company of parent
Parents’ liability direct and primary. The parents are and should be
held primarily liable for the civil liability arising from criminal offenses
committed by their minor children under their legal authority or control,
or who live in their company, unless it is proven that the former acted
with the diligence of a good father of a family to prevent such
damages. Libi vs IAC
Liability of parents no longer successive under FC; no
qualification anymore. Under Article 2180, the enforcement of such
liability shall be effected against the father and, in case of his death or
incapacity, the mother. However, under the Family Code, this civil
liability is now, without such alternative qualification, the responsibility
of the parents and those who exercise parental authority over the minor
offender. For civil liability arising from quasi-delicts committed by
Honor and Excellence. Honor before Excellence.
Persons and family relations
minors, the same rules shall apply in accordance with Articles 2180 and
2182 of the Civil Code, as so modified. Libi vs IAC
Vicarious liability. Parents are principally and primarily liable for acts
or omissions of their unemancipated children resulting in injuries to
others. The principle of parental liability is frequently designated as
vicarious liability or the doctrine of imputed negligence, where a
person is not only liable for torts committed by himself but also for torts
committed by others with whom he has a certain relationship and for
whom he is responsible
• Rationale. The law presumes that when a minor child living
with its parents commits a tortious act, the parents were
negligent in the performance of their legal and natural duty t
closely supervise the child. . Parental liability is anchored upon
parental authority coupled with presumed parental dereliction
in the discharge of duties accompanying such authority.
Tamargo vs CA
Defense. To remove themselves from liability, the parents must show
that they exercised the diligence of a good father of a family
Article 222. The courts may appoint a guardian of the child’s property
or a GUARDIAN AD LITEM when the best interests of the child so
requires.
Guardianship. A guardianship is a relation whereby one person called
a guardian acts for another called the ward, whom the law regards as
incapable of managing his own affairs.
Selection. The selection is left to the sound discretion of the court and
designed to assist the court in the determination of the best interest of
the child. An appointment that will keep the family tether is preferred to
one which will bring about separation.
Court cannot appoint a guardian who is not personally subject to its
jurisdiction. Vancil vs Belmes
Article 223. The parents or, in their absence or incapacity, the
individual, entity or institution exercising parental authority, may
petition the proper court of the place where the child resides, for an
order providing for disciplinary measures over the child.
The child shall be entitled to the assistance of counsel, either of his
choice or appointed by the court, and a summary hearing shall be
conducted wherein the petitioner and the child shall be heard.
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Family Code: title 9
Order providing for disciplinary measures over the child. The
parents have the principal duty of undertaking measures to discipline
their children. If the children remain incorrigible, the parents are given
the right to seek the aid of the court to impose other more drastic
disciplinary measures for the child’s improvement and which the court
may provide under the premises.
However, if in the same proceeding the court finds the petitioner at fault,
irrespective of the merits of the petition, or when the circumstances so
warrant, the court may also order the deprivation or suspension of
parental authority or adopt such other measures as it may deem just and
proper.
Article 224. The measures referred to in the preceding article may
include the commitment of the child for NOT MORE THAN
THIRTY DAYS in entities or institutions engaged in child care or in
children’s homes duly accredited by the proper government agency.
The parent exercising parental authority shall not interfere with the care
of the child whenever committed but shall provide for his support.
Upon proper petition or at its own instance, the court may terminate the
commitment of the child whenever just and proper.
Chapter 4. Effect of parental authority upon the
property of the children
Article 225. The father and the mother shall jointly exercise legal
guardianship over the PROPERTY of the unemancipated common
child without the necessity of a court appointment. In case of
disagreement, the father’s decision shall prevail, unless there is a judicial
order to the contrary.
Where the market value of the property or the annual income of the
child exceeds P50,000, the parent concerned shall be required to
furnish a bond in such amount as the court may determine, but not less
than ten per centum (10%) of the value of the property or annual
income, to guarantee the performance of the obligations prescribed for
general guardians.
A verified petition for approval of the bond shall be filed in the proper
court of the place where the child resides, or, if the child resides in a
foreign country, in the proper court of the place where the property or
any part thereof is situated.
The petition shall be docketed as a summary special proceeding in
which all incidents and issues regarding the performance of the
JO VALLES
ad majorem dei gloriam
obligations referred to in the second paragraph of this Article shall be
heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except
when the child is under substitute parental authority, or the guardian is
a stranger, or a parent has remarried, in which case the ordinary rules on
guardianship shall apply.
Parents are ipso jure legal guardian. Regardless of the value of the
property of the unemancipated common child, the parents ipso jure
become the legal guardian of such property. Father’s decision still
prevails without prejudice to the right of the mother to go to court to
question such decision. Pineda vs CA
Limits of authority; only acts of administration. The limits if the
parent’s authority over the estate of the ward as a legal guardian would
not extend to acts of encumbrance or disposition. The acts are limited
to management or administration. Thus, when the mother did not seek
court approval for the sale of the properties of her minor children, the
sale was considered void. Nario vs Philippine Life Insurance
Waiver of rights by guardian is void. An abdicative waiver of right by
a guardian is an act of disposition. It cannot bind his ward, being void
as to the ward unless duly authorized by the proper court. Thus, a parent
cannot waive the rights of her children over property inherited from the
father. Ledesma Hermanos vs Castro
When parent cannot administer children’s properties:
Article 923 of the Civil Code. The children and descendants of the
person disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but the
disinherited parent shall not have the usufruct or administration of the
property which constitutes the legitime.
• Suppose A has a legitimate son B who, in turn, has a legitimate
son C. A has properties worth 1M and validly disinherited B.
At time of his death C will inherit the entire P1M, there being
no other heirs: the legitime portion is ½ or 500k, and the other
half is the amount he receives as an instituted voluntary heir.
• In this case, B cannot administer the legitime but he can
administer the other half constituting c’s inheritance as
voluntary heir.
Article 1035 of the Civil Code. If the person excluded from the
inheritance by reason of incapacity should be a child or descendant of
the decedent and should have children or descendants, the latter shall
acquire his right to the legitime. The person so excluded shall not enjoy
Honor and Excellence. Honor before Excellence.
Persons and family relations
the usufruct and administration of the property thus inherited by his
children.
• In the previous example, if B groundlessly accused A of
murder which made B incapacitated to succeed due to
unworthiness, B cannot enjoy the usufruct and administration
of what C will inherit.
Bond is a requisite for vesting authority to guardian. The giving of
the bond is a condition precedent for the vesting of authority to the
guardian. Any act done without or before the giving of such bond is
nullity. The purpose of the bond is to guarantee performance of
obligations.
Example; no bond forfeiture. The bond of the guardian-father was
sought to be forfeited because although he had court approval to use
some of the money which the children inherited from the mother, he
used the same for the children’s clothing and education. The expenditure
was contended to be illegal because support cannot be taken from the
property of the children but from the guardian’s own property since he
is obliged to support his children. SC rejected this. Support is dependent
on the need of the recipient and the payment thereof requires demand.
Since there was no demand, the use of such money for clothes and
education with court approval was valid. Bond not forfeited. Jocson vs
Empire Insurance
Ordinary rules on guardianship. If the guardians are the parents, the
rules on guardianship are merely suppletory. But ordinary rules on
guardianship apply when the child is:
1. Under substitute parental authority, or
2. The guardian is a stranger, or
3. A parent has remarried,
Reason: There people cannot be expected to have the same sense of
devotion and loyalty to the child not their own child.
Article 226. The property of the unemancipated child earned or
acquired with his WORK OR INDUSTRY or by ONEROUS OR
GRATUITOUS TITLE shall belong to the child in ownership and
shall be devoted exclusively to the latter’s support and education,
unless the title or transfer provides otherwise.
The right of the parents over the fruits and income of the child’s
property shall be limited PRIMARILY to the child’s support and
SECONDARILY to the collective daily needs of the family.
Note that the first paragraph pertains to the principal property, while the second
paragraph pertains to the fruits and income of the principal property.
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Article 227. If the parents entrust the management or administration of
any of their properties to an unemancipated child, the net proceeds of
such property shall belong to the owner. The child shall be given a
reasonable monthly allowance in an amount not less than that which
the owner would have paid if the administrator were a stranger, unless
the owner, grants the entire proceeds to the child. In any case, the
proceeds thus give in whole or in part shall NOT BE CHARGED TO
THE CHILD’S LEGITIME.
Net fruits. The law speaks of net fruits because the following shall be
deducted from the gross proceeds:
1. Monthly reasonable allowance of the child for the management
or administration of properties
2. All other expenses for the management or administration of
properties
The balance will go to the parents, unless the parent just waives them in
favor of the child.
Allowance. The term compensation was not used because it denotes an
employer-employee relationship. Allowance was used to indicate family
relation.
Not charged to legitime. Note that whatever is given to the child is
not chargeable against his or her legitime.
Chapter 5. Suspension or termination of parental
authority
Article 228. Parental authority terminates PERMANENTLY:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child.
Permanent. Permanent means that parental authority cannot be
revived. The enumeration below contemplates a situation that happens
without the fault on the part of the parents.
(1) Upon the death of the parents. Article 42 of the Civil Code
provides that civil personality is extinguished by death and that the effect
of death upon rights and obligations of the deceased are determined by
law, contract, or will. And Art 228 provides that death of the parents or
children terminates parental authority
(2) Upon the death of the child.
JO VALLES
ad majorem dei gloriam
(3) Upon emancipation of the child. Emancipation is reaching the
age of majority. This terminates parental authority over the person and
property of the child and he or she is thereby qualified to do all acts of
civil life except for those established by existing laws in special cases.
Article 229. Unless subsequently revived by a final judgment,
parental authority also TERMINATES:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case
filed for the purpose;
(4) Upon final judgment of a competent court divesting the party
concerned of parental authority; or
(5) Upon judicial declaration of absence or incapacity of the person
exercising parental authority.
Temporary termination. The grounds below are events without the
fault of the parents or with their fault, but without malice.
A.G.A.D.A
(1) Upon adoption of the child. Except in cases where the biological
parent is the spouse of the adopter, ll legal ties between the parents and
the adoptee shall be severed and the same shall be vested on the adopters
upon the finality of a judicial adoption decree. The adoptee shall be
considered the legitimate son or daughter of the adopters for all intents
and purposes and as such is entitled in all the rights and obligations
provided by law to legitimate sons or daughters born to them without
discrimination of any kind.
• In case the adoption decree is rescinded, such rescission of the
adoption shall extinguish all reciprocal rights and obligations
between the adopters and the adopted
• The parental authority of the parents if known, or the legal
custody of DSWD if the adoptee is still a minor or
incapacitated.
(2) Upon appointment of a general guardian. A guardian appointed
by the court shall generally have the care and custody of the person of
his or her ward and the management of his or her estate
(3) Upon judicial declaration of abandonment of the child in a case
filed for the purpose. This case precisely filed for the declaration of
abandonment—direct and not collateral attack. Abandonment is the
neglect or refusal to perform the natural and legal obligation of care and
support which parents owe to their children
Honor and Excellence. Honor before Excellence.
Persons and family relations
(4) Upon final judgment of a competent court divesting the
party concerned of parental authority. This may be done by the
courts if the welfare of the child demands
(5) Upon judicial declaration of absence or incapacity of the
person exercising parental authority. Parental authority cannot be
expected from an absentee or one who is incapacitated because the
paramount consideration is the interest of the child. A separate case can
be filed using the judicial declaration of absence or incapacity to
terminate parental authority.
Note: Termination of parental authority is such a drastic step that it can only be
allowed on the basis of the legal grounds provided by law.
Article 230. Parental authority is SUSPENDED upon conviction of
the parent or the person exercising the same of a crime which carries
with it the penalty of civil interdiction. The authority is automatically
reinstated upon service of the penalty or upon pardon or amnesty of
the offender.
Effects of civil interdiction. Civil interdiction deprives the offender
during the time of his or her sentence:
1. Guardianship
2. parental authority
3. marital authority
4. right to manage his property
5. right to dispose of property inter vivos. Article 34, RPC
Automatic revival. This is the same with the immediately preceding
article however the difference is that it provides for automatic revival
upon:
1. Service of the sentence
2. Pardon
3. Amnesty
Also, there is no judicial declaration of civil interdiction.
Article 231. The court, in an action filed for the purpose in a related
case, may also SUSPEND parental authority if the parent or the person
exercising the same:
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of
lasciviousness.
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The grounds enumerated above are deemed to include cases which have
resulted from culpable negligence of the parent or the person exercising
parental authority.
If the degree of seriousness so warrants, or the welfare of the child so
demands, the court shall deprive the guilty party of parental authority or
adopt such other measures as may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental
authority revived in a case filed for the purpose or in the same
proceeding if the court finds that the cause therefor has ceased and will
not be repeated.
The court in an action filed for the purpose or in a related case may
also SUSPEND parental authority if the parent or the person exercising
the same: H.O.B.A.
(1) Treats the child with excessive harshness or cruelty. Corporal
punishment inflicted by the parents must not be excessive not cruel.
Severely beating a child is no excuse for terminating parental authority.
ad majorem dei gloriam Persons and family relations
act again, his parental authority cannot be revived even if the
reformation of the father were authentic.
Article 233. The person exercising substitute parental authority shall
have the same authority over the person of the child as the parents.
In no case shall the school administrator, teacher of individual engaged
in child care exercising special parental authority inflict corporal
punishment upon the child.
Corporal punishment. Corporal punishment is the infliction of
physical disciplinary measures to a student. School officials and
academic personnel shall have the right to impose appropriate and
reasonable disciplinary measures in case of minor offenses or
infractions, but they are not allowed to inflict corporal punishment or
else a teacher may be administratively or civilly liable. Without criminal
intent, the teacher cannot be held criminally liable. Only those exercising
special parental authority are not allowed.

(2) Gives the child corrupting orders, counsel or example.

Example: teaching he child to steal, rob, lie, or hurt people

(3) Compels the child to beg. It is the duty of the parents to inculcate
in the children self-reliance through lawful activities.

(4) Subjects the child or allows him to be subjected to acts of

lasciviousness.

Culpable negligence. The grounds enumerated above are deemed to

include cases which have resulted from culpable negligence of the parent
or the person exercising parental authority. For example, the father
forces the child to beg and the mother does not do anything, such act
of the mother is considered culpable negligence.

May be in a related case. The opening of the provision says that the
suspension can be decreed in a case specifically filed for the purpose or
in a related case. Hence, it can be an off-shoot of an incident or a
collateral pronouncement in another case.

Article 232. If the person exercising parental authority has subjected the
child or allowed him to be subjected to sexual abuse, such person shall
be PERMANENTLY deprived by the court of such authority.

Permanent. This separate article is to highlight the gravity of sexual

abuse as a ground for the termination of parental authority. If the parent
reforms and there are indications that he might not do the same abusive

JO VALLES Honor and Excellence. Honor before Excellence. 90

Family Code: title 10
TITLE 10: EMANCIPATION AND AGE OF
MAJORITY
Article 234. Emancipation takes place by the attainment of majority.
Unless otherwise provided, majority commences at the age of eighteen
years. As amended by Republic Act No. 6809
Article 235. The provisions governing emancipation by recorded
agreement shall also apply to an orphan minor and the person exercising
parental authority but the agreement must be approved by the court
before it is recorded. Repealed by Republic Act No. 6809
Article 236. Emancipation for any cause shall terminate parental
authority over the person and property of the child who shall then be
qualified and responsible for all acts of civil life, save the exceptions
established by existing laws in special cases.
Contracting marriage shall require parental consent until the age of
twenty-one.
Nothing in this Code shall be construed to derogate from the duty or
responsibility of parents and guardians for children and wards below
twenty-one years of age mentioned in the second and third paragraphs
of Article 2180 of the Civil Code. As amended by Republic Act No. 6809
Parental requisite not an essential or formal requirement; absence
makes marriage annullable. The second paragraph of Article 236
does not make parental consent an essential or formal requisite of
marriage in the sense that its absence will not render the marriage void.
Its absence will render the marriage annullable under Article 45 of the
Family Code.
Article 2180. The obligation imposed by article 2176 is demandable not
only for one's own acts or omissions, but also for those of persons for
whom one is responsible.
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in
their company.
Guardians are liable for damages caused by the minors or incapacitated
persons who are under their authority and live in their company. xxx
Mel’s opinion: Minors under Article 2180 are below 18. The Family
Code took effect on August 3, 1988. Article 221 of the FC provides that
parents and persons exercising parental authority sall be civilly liable for
the injuries and damages caused by the acts or omissions of their
JO VALLES
ad majorem dei gloriam legal ethics
unemancipated children living in their company xxx. Thus, this
superseded Article 2180(2) and (3), which used to cover children aged
18-21. On the other hand, the amendment of RA 6809 took effect on
December 18, 1989. Hence, when the 3 rd paragraph of Article 236
referred to Article 2180 of the CC, it was referring to certain provisions
which were already rendered ineffective by Article 221 of the Family
Code. Thus, Article 236 covers only those under 18. Sta. Maria (2015),
p. 943.
What the law contemplates according to Mel: 18 to less than 21.
Nevertheless, it appears that the idea of the last paragraph of Article 236
is to hold parents and guardians responsible for the acts or omissions of
the ward or children (18 and above but under 21.
Ang labo ni Dean Mel here.
1. First, the original wording of the Family Code was that the age
of emancipation is 21. So I don’t understand why he said that
the Family Code already made the emancipation age 18 before
the RA 6809 amendment.
2. Second, when RA 6809 amended the FC the next year, it
actually made the emancipation age 18. So I don’t get where he
got his basis for saying that the intent behind the law was 18-
below 21.
3. But at the end of the day, the age of emancipation is 18. Relate
this to 211 of the FC and 2180 of the CC.
Article 237. The annulment or declaration of nullity of the marriage of
a minor or of the recorded agreement mentioned in the foregoing.
Articles 234 and 235 shall revive the parental authority over the minor
but shall not affect acts and transactions that took place prior to the
recording of the final judgment in the Civil Register. Republic Act No.
6809
Honor and Excellence. Honor before Excellence. 91
Family Code: title 11
TITLE 11: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW
Chapter 1. Prefatory provisions
Article 238. Until modified by the Supreme Court, the procedural rules
provided for in this Title shall apply in all cases provided for in this Code
requiring summary court proceedings. Such cases shall be decided in an
expeditious manner, without regard to technical rules.
Chapter 2. Separation in fact between husband
and wife
Article 238. When a husband and wife are separated in fact, or one
has abandoned the other and one of them seeks judicial authorization
for a transaction where the consent of the other spouse is required by
law but such consent is withheld or cannot be obtained, a verified
petition may be filed in court alleging the foregoing facts.
The petition shall attach the proposed deed, if any, embodying the
transaction, and, if none, shall describe in detail the said transaction and
state the reason why the required consent thereto cannot be secured. In
any case, the final deed duly executed by the parties shall be submitted
to and approved by the court.
Reason. The spouses are co-owners of the properties in the ACP/CPG.
A spouse cannot alienate, dispose, or encumber community or conjugal
property without the consent of the other.
Steps:
1. Verified petition.
2. Court will notify the other spouse and order to show cause why
petition should be denied (Art 242)
3. Preliminary conference without counsel (Art 243)
a. In case of non-appearance, court may require
appearance if possible (Art 244)
b. The court can proceed ex parte (Art 245)
4. If not resolved at PC stage, petition will be decided in a
summary hearing. (Art 246)
5. Judgment immediately final and executory.
Article 240. Claims for damages by either spouse, except costs of the
proceedings, may be litigated only in a separate action.
Reason. Claims for damages usually entail a lengthy process.
JO VALLES
ad majorem dei gloriam
Article 241. Jurisdiction over the petition shall, upon proof of notice to
the other spouse, be exercised by the proper court authorized to hear
family cases, if one exists, or in the regional trial court or its
equivalent sitting in the place where either of the spouses resides.
Proper court is the Family Court.
Article 242. Upon the filing of the petition, the court shall notify the
other spouse, whose consent to the transaction is required, of said
petition, ordering said spouse to show cause why the petition should not
be granted, on or before the date set in said notice for the initial
conference. The notice shall be accompanied by a copy of the petition
and shall be served at the last known address of the spouse concerned.
Matter of due process.
Article 243. A preliminary conference shall be conducted by the judge
personally without the parties being assisted by counsel. After the initial
conference, if the court deems it useful, the parties may be assisted by
counsel at the succeeding conferences and hearings.
Article 244. In case of non-appearance of the spouse whose consent is
sought, the court shall inquire into the reasons for his failure to appear,
and shall require such appearance, if possible.
Article 245. If, despite all efforts, the attendance of the non-consenting
spouse is not secured, the court may proceed ex parte and render
judgment as the facts and circumstances may warrant. In any case, the
judge shall endeavor to protect the interests of the non-appearing
spouse.
Article 246. If the petition is not resolved at the initial conference, said
petition shall be decided in a summary hearing on the basis of affidavits,
documentary evidence or oral testimonies at the sound discretion of the
court. If testimony is needed, the court shall specify the witnesses to be
heard and the subject-matter of their testimonies, directing the parties
to present said witnesses.
Article 247. The judgment of the court shall be immediately final and
executory.
Article 248. The petition for judicial authority to administer or
encumber specific separate property of the abandoning spouse and to
use the fruits or proceeds thereof for the support of the family shall also
be governed by these rules.
Honor and Excellence. Honor before Excellence.
legal ethics
Chapter 3. Incidents involving parental authority
Article 249. Petitions filed under Articles 223, 225 and 235 of this Code
involving parental authority shall be verified.
Article 223. Disciplinary measures over the child.
Article 225. Approval of bond required of parents who exercise parental
authority over the property of the children.
Article 235. Repealed.
Article 250. Such petitions shall be verified and filed in the proper court
of the place where the child resides.
Article 251. Upon the filing of the petition, the court shall notify the
parents or, in their absence or incapacity, the individuals, entities or
institutions exercising parental authority over the child.
Article 252. The rules in Chapter 2 hereof shall also govern summary
proceedings under this Chapter insofar as they are applicable.
Chapter 4. Other matters subject to summary
proceedings
Article 253. The foregoing rules in Chapters 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51, 69, 73,
96, 124 and 127, insofar as they are applicable.
Article 41. Judicial declaration of presumptive death.
Article 51. Delivery of presumptive legitime.
Article 69. Judicial determination of domicile in case of disagreement.
Article 73. Validity of objection to profession of other spouse.
Articles 96 and 124. Annulment of the husbands decision in the
administration and enjoyment of the community or conjugal property in
case the husband’s decision is in conflict with the wife’s decision.
Article 217. Entrusting foundlings, etc. to children’s homes and similar
institutions.
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FAMILY CODE: final provisions
TITLE 12: FINAL PROVISIONS
Article 254. Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1
of Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39,
40, 41, and 42 of Presidential Decree No. 603, otherwise known as the
Child and Youth Welfare Code, as amended, and all laws, decrees,
executive orders, proclamations, rules and regulations, or parts thereof,
inconsistent herewith are hereby repealed.
ad majorem dei gloriam PERSONS
vested rights over half of the common properties because an affirmative
answer will preclude the application of the FC provisions. The answer
is in the negative. Prior to the liquidation of the CPG, the interest of
the spouses is incohate and a mere expectancy. Quiao vs Quiao, citing
Abalos vs Dr. Bacatangay, Jr.
Article 257. This Code shall take effect one year after the completion
of its publication in a newspaper of general circulation, as certified by
the Executive Secretary, Office of the President.

Article 255. If any provision of this Code is held invalid, all the other
provisions not affected thereby shall remain valid.
Article 256. This 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.
Done in the City of Manila, this 6th day of July, in the year of Our Lord,
nineteen hundred and eighty-seven.
Effective August 3, 1988. The publication in the Manila Chronicle was
completed on August 4, 1987. Hence, the FC took effect of August 3,
1988.

Spouses must adopt jointly unless the adoption took place prior
to the FC. The Family Code requires spouses to adopt jointly otherwise
the adoption is void. However, in this case the adoption cannot be
nullified despite the fact that only one of the spouses filed a petition for
adoption even if the decree for adoption was granted after the
effectivity of the Family Code. At the filing of the petition, the right to
file such petition alone and to have the same proceed to final
adjudication, in accordance with law at the time, was already vested and
cannot be prejudiced or impaired by the enactment of a new law.
Republic vs CA, 205 CRA 356

Article 40 of the FC given prospective effect. C was married to B

just before the marriage of B and A was judicially declared void. C
sought to declare void her marriage to B, using Article 40 as basis, which
provides that there must first be judicial declaration of nullity of first
marriage before one can remarry. SC refused to apply Article 40 because
at the time of the marriage of B and C, the FC was not yet effective,
and to apply it retroactively will prejudice vested rights of C and her
children with B. Ty vs CA

Spouses do not have a vested right over the ACP or CPG until the
same has been dissolved. The spouses got married before the
effectivity of the FC. Thus, their property relations were governed by
CPG. When their CPG was dissolved, the FC was already effective. The
question is WON the provisions of the FC can be applied. To answer
that, it becomes imperative to answer WON the spouses already had

JO VALLES Honor and Excellence 93

CIVIL CODE
CIVIL CODE
TITLE X: FUNERALS
Article 305. The duty and the right to make arrangements for the
funeral of a relative shall be in accordance with the order established
for support, under article 294. In case of descendants of the same
degree, or of brothers and sisters, the oldest shall be preferred. In case
of ascendants, the paternal shall have a better right.
Order in 294. The duty shall devolve on the following in the order
stated:
1. Spouse
2. Nearest descendant
3. Nearest ascendant
Brothers and sisters
Preference; older descendant/sibling or paternal ascendant.
1. In case of descendants of the same degree or siblings, the
eldest is preferred.
2. In case of ascendants, paternal is preferred.
Article 306. Every funeral shall be in keeping with the social position
of the deceased.
Article 307. The funeral shall be in accordance with the expressed
wishes of the deceased. In the absence of such expression, his religious
beliefs or affiliation shall determine the funeral rites. In case of doubt,
the form of the funeral shall be decided upon by the person obliged to
make arrangements for the same, after consulting the other members
of the family.
Funeral rites:
1. Wishes of deceased
2. Religious beliefs/affiliation
3. Decision of person to make arrangement
Article 308. No human remains shall be retained, interred, disposed of
or exhumed without the consent of the persons mentioned in articles
294 and 305.
JO VALLES
ad majorem dei gloriam
Article 309. Any person who shows disrespect to the dead, or
wrongfully interferes with a funeral shall be liable to the family of the
deceased for damages, material and moral.
Article 310. The construction of a tombstone or mausoleum shall be
deemed a part of the funeral expenses, and shall be chargeable to the
conjugal partnership property, if the deceased is one of the spouses.
TITLE XII: Care and Education of Children
Article 356. Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or guardian;
(4) Has a right to live in an atmosphere conducive to his physical, moral
and intellectual development.
Article 357. Every child shall:
(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and persons holding
substitute parental authority;
(3) Exert his utmost for his education and training;
(4) Cooperate with the family in all matters that make for the good of
the same.
Article 358. Every parent and every person holding substitute parental
authority shall see to it that the rights of the child are respected and his
duties complied with, and shall particularly, by precept and example,
imbue the child with high-mindedness, love of country, veneration for
the national heroes, fidelity to democracy as a way of life, and
attachment to the ideal of permanent world peace.
Article 359. The government promotes the full growth of the faculties
of every child. For this purpose, the government will establish,
whenever possible:
(1) Schools in every barrio, municipality and city where optional
religious instruction shall be taught as part of the curriculum at the
option of the parent or guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.
Honor and Excellence
PERSONS
Article 360. The Council for the Protection of Children shall look after
the welfare of children in the municipality. It shall, among other
functions:
(1) Foster the education of every child in the municipality;
(2) Encourage the cultivation of the duties of parents;
(3) Protect and assist abandoned or mistreated children, and orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening and maintenance of playgrounds;
(7) Coordinate the activities of organizations devoted to the welfare of
children, and secure their cooperation.
Article 361. Juvenile courts will be established, as far as practicable, in
every chartered city or large municipality.
Article 362. Whenever a child is found delinquent by any court, the
father, mother, or guardian may in a proper case be judicially
admonished.
Article 363. In all questions on the care, custody, education and
property of children the latter's welfare shall be paramount. No mother
shall be separated from her child under seven years of age, unless the
court finds compelling reasons for such measure.
TITLE XIII: Use of Surnames
Characteristics of a name. A name is said to have the following
characteristics:
1. It is absolute, intended to protect the individual from being
confused with others.
2. It is obligatory in certain respects, for nobody can be without
a name.
3. It is fixed, unchangeable, or immutable, at least at the start,
and may be changed only for good cause and by judicial
proceedings.
4. It is outside the commerce of man, and, therefore, inalienable
and intransmissible by act inter vivos or mortis causa.
5. It is imprescriptible. In Re: Petition for Change of Name and/or
Correction of Entry of Julian Lin Carusalan
Article 364. Legitimate and legitimated children shall principally use
the surname of the father.
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CIVIL CODE
Principally does not mean exclusively. There is no legal obstacle if
a legitimate or a legitimated child should choose to use the surname of
the mother. The word “principally” is not equivalent to “exclusively”.
Alfon vs Republic
But a child cannot use the surname of one who is not his or her
father. A divorced woman subsequently remarried and desired to have
her child’s surname changed to the surname of her second husband
who has always treated the child with love. SC rejected this because our
laws do not authorize a legitimate child to use the surname of a person
who is not his father. Moore vs Republic
But SC allowed the change of surname of an illegitimate child for
the latter’s best interest. The SC allowed the change of a surname of
an illegitimate child to that of the second legal spouse of the mother,
since it was in the best interest of the child. Just because a person was
born illegitimate does not mean that he or she must bear the stigma of
illegitimacy forever. Every person must be allowed to avail of any
opportunity to improve his social standing as long as in doing so he
does not cause prejudice or injury to the interests of the state or of other
people. Calderon vs Republic
Article 365. An adopted child shall bear the surname of the adopter.
Article 366. A natural child acknowledged by both parents shall
principally use the surname of the father. If recognized by only one of
the parents, a natural child shall employ the surname of the recognizing
parent.
Article 367. Natural children by legal fiction shall principally employ
the surname of the father.
Article 368. Illegitimate children referred to in article 287 shall bear the
surname of the mother.
Illegitimate children permitted to use the surname of the father
under limited circumstances. Note under Article 176 that an
illegitimate child may use the surname of the father if their filiation has
been expressly recognized through:
1. Birth record appearing in the civil register; or
2. an admission in a public document or a private handwritten
instrument by the father.
JO VALLES
ad majorem dei gloriam
Article 369. Children conceived before the decree annulling a voidable
marriage shall principally use the surname of the father.
Article 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's surname,
or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is
his wife, such as "Mrs."
Permissive rule. Article 370 is directory and permissive in character
because when a woman gets married, she does not change her name but
only her civil status. Moreover, this is inconsistent with the rule that
surname indicates descent. Remo vs Honorable Secretary of Foreign Affairs
Article 371. In case of annulment of marriage, and the wife is the guilty
party, she shall resume her maiden name and surname. If she is the
innocent spouse, she may resume her maiden name and surname.
However, she may choose to continue employing her former husband's
surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Article 372. When legal separation has been granted, the wife shall
continue using her name and surname employed before the legal
separation.
Article 373. A widow may use the deceased husband's surname as
though he were still living, in accordance with article 370.
Article 374. In case of identity of names and surnames, the younger
person shall be obliged to use such additional name or surname as will
avoid confusion.
Article 375. In case of identity of names and surnames between
ascendants and descendants, the word "Junior" can be used only by
a son. Grandsons and other direct male descendants shall either:
(1) Add a middle name or the mother's surname, or
(2) Add the Roman numerals II, III, and so on.
Jo: Article 374 pertains to identity in names and surnames between
persons who do not have ascendant-descendant relationship.
Honor and Excellence
PERSONS
Article 376. No person can change his name or surname without
judicial authority.
Note: Under Section 1 of RA 9048, the LCR has the authority to
correct clerical or typographical error and change first name or
nickname.
Change of name is a privilege. A change of name is a privilege and
not a matter of right. Before a person can be authorized to change his
or her name, there must be showing of proper or reasonable cause. Yu
Chi Han vs Republic
Grounds for Change of First Name or Nickname. – The petition
for change of first name or nickname may be allowed in any of the
following cases:
1. The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to write
or pronounce.
2. The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that by that first name or nickname in the
community: or
3. The change will avoid confusion. Section 4, RA 9048
Change of surname; action in rem and publication necessary. The
procedure for change of surname under Rule 103 of the ROC is a
judicial proceeding in rem. Tan vs Republic; Hence, publication of the
petition is essential for the court to acquire jurisdiction in order to bar
indifferently all who might be minded to make an objection of any sort
against the right sought to be established. Rendora vs Republic
Article 377. Usurpation of a name and surname may be the subject of
an action for damages and other relief.
Usurpation is designation of one’s self by another name; mere use
of another’s name not enough. The current wife filed an action to
prevent the former wife from using the husband’s surname. The SC said
that there was no usurpation because usurpation implies some injury to
the interest of the owner of the name. The following are the elements:
1. Actual use of another’s name
2. Unauthorized
3. the use of another’s name is to designate personality or
identify a person.
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CIVIL CODE
Here, there was no allegation that the former wife impersonated the 2 nd
wife. Tolentino vs CA
Article 378. The unauthorized or unlawful use of another person's
surname gives a right of action to the latter.
Article 379. The employment of pen names or stage names is
permitted, provided it is done in good faith and there is no injury to
third persons. Pen names and stage names cannot be usurped.
Article 380. Except as provided in the preceding article, no person shall
use different names and surnames.
TITLE XIV: ABSENCE
CHAPTER 1: Provisional Measures in Case of
Absence
Article 381. When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent to
administer his property, the judge, at the instance of an interested party,
a relative, or a friend, may appoint a person to represent him in all
that may be necessary.
This same rule shall be observed when under similar circumstances the
power conferred by the absentee has expired. (181a)
When the court may appoint a representative:
1. Person disappears
2. Whereabouts unknown
3. Did not leave an agent or power of the agent has expired
Article 382. The appointment referred to in the preceding article
having been made, the judge
- shall take the necessary measures to safeguard the rights and interests
of the absentee and
- shall specify the powers, obligations and remuneration of his
representative, regulating them, according to the circumstances, by the
rules concerning guardians. (182)
Article 383. In the appointment of a representative, the spouse
present shall be preferred when there is no legal separation.
JO VALLES
ad majorem dei gloriam
If the absentee left no spouse, or if the spouse present is a minor, any
competent person may be appointed by the court. (183a)
CHAPiTER 2: Declaration of Absence
Article 384. Two years having elapsed without any news about the
absentee or since the receipt of the last news, and five years in case the
absentee has left a person in charge of the administration of his
property, his absence may be declared. (184)
Judicial declaration of absence. This is necessary for the protection
of the rights of interested parties in connection with the person who
disappeared.
When absence may be judicially declared:
1. 2 years if no agent
2. 5 years if with agent
Counted from last news. The absence of the absentee shall be
counted not from the effectivity of the judicial decree but from the
date on which the last news of the absentee was received.
Article 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of
the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some right
subordinated to the condition of his death. (185)
#1. Spouse. The disappearance of the spouse can be a ground for
1. the spouse present to file an action for separation of property
and the dissolution of the ACP/CPG. (Article 138)
2. Transfer administration of the exclusive property of the
absentee spouse to the spouse present (Article 142)
3. termination of parental authority (Article 229)
#4. Those who have rights subordinated to the absentee’s death.
For example, a person executed a contract with another providing that
if he dies in 10 years, said person gets P100, 000. When the former
disappears within that period and the other requirements of the law are
met, the latter may file a petition for the judicial declaration of the
former’s absence.
Honor and Excellence
PERSONS
Article 386. The judicial declaration of absence shall not take effect
until six months after its publication in a newspaper of general
circulation. (186a)
CHAPTER 3: Administration of the Property of
the Absentee
Article 387. An administrator of the absentee's property shall be
appointed in accordance with article 383. (187a)
Order:
1. Priority is spouse
2. Then other competent persons
Article 388. The wife who is appointed as an administratrix of the
husband's property cannot alienate or encumber the husband's
property, or that of the conjugal partnership, without judicial
authority. (188a)
Effect when one spouse encumbers/disposes of the property of
the other. Under 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.
Article 389. The administration shall cease in any of the following
cases:
(1) When the absentee appears personally or by means of an agent;
(2) When the death of the absentee is proved and his testate or
intestate heirs appear;
(3) When a third person appears, showing by a proper document that
he has acquired the absentee's property by purchase or other title.
In these cases the administrator shall cease in the performance of
his office, and the property shall be at the disposal of those who may
have a right thereto. (190)
CHAPTER 4: Presumption of Death
Summary of periods to presume death:
All purposes except succession 7 years
Succession (general) 10 years
Succession (disappeared after 75) 5 years
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CIVIL CODE
All purposes including succession 4 years
(disappearance under dangerous
circumstances)
Article 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening
his succession till after an absence of ten years. If he disappeared after
the age of seventy-five years, an absence of five years shall be sufficient
in order that his succession may be opened. (n)
No such thing as an independent action for judicial declaration
of presumptive death. The presumption of death in our law is merely
prima facie or a disputable presumption, which can always be rebutted by
presenting proof which is contrary to the fact asserted by said
presumption. A judicial pronouncement to the effect that one is
presumed to be dead would still be a prima facie presumption only and
is still disputable. Therefore, it logically follows a pronouncement that
a person is presumptively dead, can never attain finality. It is for this
reason that an independent action for the declaration of presumptive
death cannot prosper in our jurisdiction. Lukban vs Republic
Article 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four years
since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has
been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four years. (n)
Strict compliance; not applicable when vessel not lost. Article 391
cannot apply to a person who accidentally fell into the sea while on
board a vessel and drowned because the vessel was not missing. Caltex
vs Villanueva
Article 392. If the absentee appears, or without appearing his existence
is proved, he shall recover his property in the condition in which it may
be found, and the price of any property that may have been alienated
or the property acquired therewith; but he cannot claim either fruits or
rents. (194)
JO VALLES
ad majorem dei gloriam PERSONS
CHAPTER 5: Effect of Absence Upon the
Contingent Rights of the Absentee
Article 393. Whoever claims a right pertaining to a person whose
existence is not recognized must prove that he was living at the time his
existence was necessary in order to acquire said right. (195)
Article 394. Without prejudice to the provision of the preceding article,
upon the opening of a succession to which an absentee is called, his
share shall accrue to his coheirs, unless he has heirs, assigns, or a
representative. They shall all, as the case may be, make an inventory of
the property. (196a)
Order:
1. Heirs, assigns, or representatives of the absentee
2. If none, co-heirs
Article 395. The provisions of the preceding article are understood to
be without prejudice to the action of petition for inheritance or other
rights which are vested in the absentee, his representatives or successors
in interest. These rights shall not be extinguished save by lapse of time
fixed for prescription. In the record that is made in the Registry of the
real estate which accrues to the coheirs, the circumstance of its being
subject to the provisions of this article shall be stated. (197)
In the event that the property supposed to be inherited by the absentee
accrues to the co-heirs, the absentee has a right to file a petition to
recover the same upon reappearance. The same right is also granted to
his or her representatives or successors within the prescriptive period
required by law.
Article 396. Those who may have entered upon the inheritance shall
appropriate the fruits received in good faith so long as the absentee does
not appear, or while his representatives or successors in interest do not
bring the proper actions. (198)
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civil code
TITLE XVI: CIVIL REGISTER
Article 407. Acts, events and judicial decrees concerning the civil status
of persons shall be recorded in the civil register. (325a)
Duties of local civil registrar. Local civil registrars shall
a. file registrable certificates and documents presented to them
for entry;
b. complete the same monthly and prepare and send any
information required of them by the Civil Registrar-General;
c. issue certified transcripts or copies of any certificate or
document registered upon payment of proper fees;
d. order the binding, properly classified, of all certificates or
documents registered during the year;
e. send to the Civil Registrar-General, during the first ten days
of each month, a copy of the entries made during the
preceding month for filing;
f. index the same to facilitate search and identification in case
any information is required, and
g. administer oaths, free of charge, for civil register purposes.
Section 12, Civil Registry Law, Act No 3753
Article 408. The following shall be entered in the civil register:
(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) annulments of marriage;
(6) judgments declaring marriages void from the beginning;
(7) legitimations;
(8) adoptions;
(9) acknowledgments of natural children;
(10) naturalization;
(11) loss, or
(12) recovery of citizenship;
(13) civil interdiction;
(14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and
(16) changes of name. (326a)
Article 409. In cases of legal separation, adoption, naturalization and
other judicial orders mentioned in the preceding article, it shall be the
duty of the clerk of the court which issued the decree to ascertain
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whether the same has been registered, and if this has not been done, to
send a copy of said decree to the civil registry of the city or municipality
where the court is functioning. (n)
Article 410. The books making up the civil register and all documents
relating thereto shall be considered public documents and shall be
prima facie evidence of the facts therein contained. (n)
Documents registered are public documents. – The books making
up the civil register and all documents relating thereto shall be
considered public documents and be prima facie evidence of the truth
of the facts therein contained.
• They shall be open to the public during office hours and shall
be kept in a suitable safe which shall be furnished to the local
civil registrar at the expense of the general fund of the
municipality concerned.
• Removal only upon order of the court. The local registrar
shall not under any circumstances permit any document
entrusted to his care to be removed from his office, except by
order of a court, in which case the proper receipt shall be
taken.
• LCR can issue certified copies. The local civil registrar may
issue certified copies of any document filed, upon payment of
the proper fees required in this Act. Section 12, Civil Registry
Law, Act No 3753
No constructive notice. Unlike the filing of documents in the Registry
of Deeds where the law expressly provides that such filing is
constructive notie to all of the documents therein, the Civil Register
Law does not provide for constructive notice to all persons of any
document fined in the Office og the LCR or the Office of the CRG.
Article 411. Every civil registrar shall be civilly responsible for any
unauthorized alteration made in any civil register, to any person
suffering damage thereby. However, the civil registrar may exempt
himself from such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful alteration. (n)
Non-disclosure of Birth Records. – The records of a person’s birth
shall be kept strictly confidential and no information relating thereto
shall be issued except on the request of any of the following:
1. The person himself, or any person authorized by him;
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2. His spouse, his parent or parents, his direct descendants, or
the guardian or institution legally in-charge of him if he is a
minor;
3. The court or proper public official whenever absolutely
necessary in administrative, judicial or other official
proceedings to determine the identity of the child’s parents or
other circumstances surrounding his birth; and
4. In case of the person’s death, the nearest of kin.
Any person violating the prohibition shall suffer the penalty of
imprisonment of at least two months or a fine in an amount not
exceeding five hundred pesos, or both, in the discretion of the court.
Article 7, PF 603, The Child and Youth Welfare Code
Article 412. No entry in a civil register shall be changed or corrected,
without a judicial order. (n)
This has already been amended by RA 9048:
Section 1. Authority to Correct Clerical or Typographical Error and Change of
First Name or Nickname – No entry in a civil register shall be changed or
corrected without a judicial order, except for
1. clerical or typographical errors and
2. change of first name or nickname
which can be corrected or changed by the concerned city or municipal
civil registrar or consul general in accordance with the provisions of this
Act and its implementing rules and regulations.
Section 2(3). Clerical or typographical error refers to a mistake
committed in the performance of clerical work in writing, copying,
transcribing or typing an entry in the civil register that is harmless and
innocuous, such as misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the understanding, and
can be corrected or changed only by reference to other existing record
or records: Provided, however, That no correction must involve the change
of
• nationality,
• age,
• status or
• sex
of the petitioner.
Article 413. All other matters pertaining to the registration of civil
status shall be governed by special laws. (n
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SPECIAL LAWS
RA 7610
Section 3(a). Children refers to
• person below eighteen (18) years of age or
• those over but are unable to fully take care of themselves or
protect themselves from abuse, neglect, cruelty, exploitation
or discrimination because of a physical or mental disability or
condition;
Section 3(B). Child abuse refers to the maltreatment, whether habitual
or not, of the child which includes any of the following:
1. Psychological and physical abuse, neglect, cruelty, sexual
abuse and emotional maltreatment;
2. Any act by deeds or words which debases, degrades or
demeans the intrinsic worth and dignity of a child as a human
being;
3. Unreasonable deprivation of his basic needs for survival, such
as food and shelter; or
4. Failure to immediately give medical treatment to an injured
child resulting in serious impairment of his growth and
development or in his permanent incapacity or death.
Section 5. Child prostitution and other sexual abuse. Children,
whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult, syndicate
or group, indulge in sexual intercourse or lascivious conduct, are
deemed to be children exploited in prostitution and other sexual abuse
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
a. Those who engage in or promote, facilitate or induce child
prostitution which include, but are not limited to, the
following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by
means of written or oral advertisements or other similar
means;
(3) Taking advantage of influence or relationship to procure
a child as prostitute;
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(4) Threatening or using violence towards a child to engage
him as a prostitute; or
(5) Giving monetary consideration, goods or other pecuniary
benet to a child with intent to engage such child in
prostitution.
b. Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to
other sexual abuse
a. That when the victim is under twelve (12) years of
age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of
Act No. 3815, as amended, the Revised Penal Code,
for rape or lascivious conduct, as the case may be:
b. That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be
reclusion temporal in tis medium period
c. Those who derive profit or advantage therefrom, whether as
manager or owner of the establishment where the prostitution
takes place, or of the sauna, disco, bar, resort, place of
entertainment or establishment serving as a cover or which
engages in prostitution in addition to the activity for which the
license has been issued to said establishment.
Section 7. Child trafficking. Any person who shall engage in trading
and dealing with children including, but not limited to:
1. the act of buying and selling of a child for money, or for any
other consideration, or
2. barter,
shall suffer the penalty of reclusion temporal to reclusion perpetua.
The penalty shall be imposed in its maximum period when the victim is
under twelve (12) years of age
Section 8. Attempt to commit child-trafficking. There is an attempt
to commit child trafficking:
1. When a child travels alone to a foreign country without valid
reason therefor and without clearance issued by the
Department of Social Welfare and Development or written
permit or justification from the child's parents or legal
guardian;
2. When a pregnant mother executes an affidavit of consent for
adoption for a consideration;
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3. When a person, agency, establishment or child-caring
institution recruits women or couples to bear children for the
purpose of child trafficking;
4. When a doctor, hospital or clinic official or employee, nurse,
midwife, local civil registrar or any other person simulates
birth for the purpose of child trafficking; or
5. When a person engages in the act of finding children among
low-income families, hospitals, clinics, nurseries, day-care
centers, or other childcaring institutions who can be offered
for the purpose of child trafficking.
A penalty lower by two (2) degrees than that prescribed for the
consummated felony under Section 7 hereof shall be imposed upon the
principals of the attempt to commit child trafficking under this Act.
Section 10. Other acts of neglect, abuse, cruelty, or exploitation
and other conditions prejudicial to the child’s development
1. Any person who shall commit any other acts of child abuse,
cruelty or exploitation or be responsible for other conditions
prejudicial to the child's development including those covered
by Article 59 of Presidential Decree No. 603, as amended, but
not covered by the Revised Penal Code, as amended, shall
suffer the penalty of prision mayor in its minimum period.
2. Any person who shall keep or have in his company a minor,
twelve (12) years or under or who is ten (10) years or more his
junior in any public or private place, hotel, motel, beer joint,
discotheque, cabaret, pension house, sauna or massage parlor,
beach and/or other tourist resort or similar places shall suffer
the penalty of prision mayor in its maximum period and a ne
of not less than Fifty thousand pesos (P50,000):
a. This provision shall not apply to any person who is
related within the fourth degree of consanguinity or
affinity or any bond recognized by law, local custom
and tradition or acts in the performance of a social,
moral or legal duty
3. Any person who shall induce, deliver or offer a minor to any
one prohibited by this Act to keep or have in his company a
minor as provided in the preceding paragraph shall suffer the
penalty of prosion mayor in its medium period and a ne of not
less than Forty thousand pesos (P40,000);
a. Should the perpetrator be an ascendant, stepparent
or guardian of the minor, the penalty to be imposed
shall be prision mayor in its maximum period, a ne
of not less than Fifty thousand pesos (P50,000), and
the loss of parental authority over the minor
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4. Any person, owner, manager or one entrusted with the
operation of any public or private place of accommodation,
whether for occupancy, food, drink or otherwise, including
residential places, who allows any person to take along with
him to such place or places any minor herein described shall
be imposed a penalty of prision mayor in its medium period
and a ne of not less than Fifty thousand pesos (P50,000), and
the loss of the license to operate such a place or establishment.
5. Any person who shall use, coerce, force or intimidate a street
child or any other child to;
a. Beg or use begging as a means of living;
b. Act as conduit or middlemen in drug trafficking or
pushing; or
c. Conduct any illegal activities,
shall suffer the penalty of prision correccional in its medium period to
reclusion perpetua
The penalty for the crimes of murder, homicide, other intentional
mutilation, and serious physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve (12) years of age.
For the crimes of qualified seduction, acts of lasciviousness with the
consent of the offended party, corruption of minors, and white slave
trade, respectively, shall be one (1) degree higher than that imposed by
law when the victim is under twelve (12) years of age.
The victim of the acts committed under this section shall be entrusted
to the care of the Department of Social Welfare and Development.
RA 9262
Section 3(a). Violence against women and their children refers to
any act or a series of acts committed by any person against a woman
who is:
a. his wife,
b. former wife, or
c. against a woman with whom the person has or had a sexual
or dating relationship, or
d. with whom he has a common child,
or against her child:
a. whether legitimate or illegitimate,
b. within or without the family abode,
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which result in or is likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary deprivation of liberty.
It includes, but is not limited to, the following acts:
1. Physical violence- refers to acts that include bodily or
physical harm
2. Sexual violence- an act sexual in nature, committed against a
woman or her child
a. rape, sexual harassment, acts of lasciviousness,
treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks,
physically attacking the sexual parts of the victim's
body, forcing her/him to watch obscene
publications and indecent shows or forcing the
woman or her child to do indecent acts and/or make
films thereof, forcing the wife and mistress/lover to
live in the conjugal home or sleep together in the
same room with the abuser;
b. acts causing or attempting to cause the victim to
engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other
harm or coercion;
c. Prostituting the woman or her child
3. Psychological violence- refers to acts or omissions causing
or likely to cause mental or emotional suffering of the victim
such as but not limited to
a. intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated
verbal abuse and marital infidelity.
b. It includes causing or allowing the victim to witness
the physical, sexual or psychological abuse of a
member of the family to which the victim belongs,
or to witness pornography in any form or to witness
abusive injury to pets or to unlawful or unwanted
deprivation of the right to custody and/or visitation
of common children.
4. Economic abuse- refers to acts that make or attempt to make
a woman financially dependent such as:
a. withdrawal of financial support or preventing the
victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
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serious and moral grounds as defined in Article 73
of the Family Code;
b. deprivation or threat of deprivation of financial
resources and the right to the use and enjoyment of
the conjugal, community or property owned in
common;
c. destroying household property
d. controlling the victim's own money or properties or
solely controlling the conjugal money or properties.
Some terms defined
1. Battery refers to an act of inflicting physical harm upon the
woman or her child resulting to physical and psychological or
emotional distress.
2. Battered woman syndrome refers to a scientifically defined
pattern of psychological and behavioral symptoms found in
women living in battering relationships as a result of
cumulative abuse.
3. Stalking refers to an intentional act committed by a person
who, knowingly and without lawful justify cation follows the
woman or her child or places the woman or her child under
surveillance directly or indirectly or a combination thereof.
4. Dating relationship refers to a situation wherein the parties
live as husband and wife without the benefit of marriage or
are romantically involved over time and on a continuing basis
during the course of the relationship.
o A casual acquaintance or ordinary socialization
between two individuals in a business or social
context is not a dating relationship.
5. Sexual relations refers to a single sexual act which may or
may not result in the bearing of a common child.
6. Safe place or shelter refers to any home or institution
maintained or managed by the Department of Social Welfare
and Development (DSWD) or by any other agency or
voluntary organization accredited by the DSWD for the
purposes of this Act or any other suitable place the resident of
which is willing temporarily to receive the victim.
7. Children refer to those below eighteen (18) years of age or
older but are incapable of taking care of themselves as defined
under Republic Act No. 7610. As used in this Act, it includes:
a. the biological children of the victim and
b. other children under her care.
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Section 5. Acts of violence against women and children. The crime
of violence against women and their children is committed through any
of the following acts:
a. Causing physical harm to the woman or her child
b. Threatening to cause the woman or her child physical harm;
c. Attempting to cause the woman or her child physical harm;
d. Placing the woman or her child in fear of imminent physical
harm
e. Attempting to compel or compelling the woman or her child
to engage in conduct which the woman or her child has the
right to desist from or to desist from conduct which the
woman or her child has the right to engage in
f. Inflicting or threatening to inflict physical harm on oneself for
the purpose of controlling her actions or decisions
g. Causing or attempting to cause the woman or her child to
engage in any sexual activity which does not constitute rape,
by force or threat of force, physical harm, or through
intimidation directed against the woman or her child or
her/his immediate family
h. Engaging in purposeful, knowing, or reckless conduct,
personally or through another, that alarms or causes
substantial emotional or psychological distress to the woman
or her child
1. Stalking or following the woman or her child in
public or private places;
2. Peering in the window or lingering outside the
residence of the woman or her child;
3. Entering or remaining in the dwelling or on the
property of the woman or her child against her/his
will;
4. Destroying the property and personal belongings or
inflicting harm to animals or pets of the woman or
her child; and
5. Engaging in any form of harassment or violence;
i. Causing mental or emotional anguish, public ridicule or
humiliation to the woman or her child, including, but not
limited to, repeated verbal and emotional abuse, and denial of
financial support or custody of minor children or denial of
access to the woman's child/children.
Section 24. Prescriptive period
• Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty
(20) years.
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• Acts falling under Sections 5(g) to 5(i) shall prescribe in ten
(10) years.
Ang v CA
Sexual or dating relationship. The dating relationship contemplated
by the law can exist without sexual intercourse taking place between the
parties involved. In fact, the law uses the conjunction OR.
Continuing basis. The law defines a dating relationship a as a situation
wherein the parties xx are romantically involved over time and on a
continuing basis during the course of the relationship. An "away-bati"
or a fight-and-kiss thing between two lovers is a common occurrence.
Their taking place does not mean that the romantic relation between
the two should be deemed broken up during periods of
misunderstanding.
Socoro v Van Wilsem
Foreigner can be held liable for unjustified failure to support his
minor child. The issue presented in this case is whether or not a foreign
national can be held criminally liable under R.A. No. 9262 for his
unjustified failure to support his minor child. The answer is yes.
However, the basis cannot be Article 195 of the Family Code because
by virtue of the nationality principle, said provision applies only to
Filipino citizens. With respect to family rights and duties, the national
law of the foreigner shall govern. Therefore, in order to escape criminal
liability, the foreigner must prove that his national laws do not oblige
parents to support their children. In view of the foreigner’s failure to
do so, the doctrine of processual presumption prevails. That is, our
courts will presume that the foreign law is the same as our local or
domestic or internal law. Hence, he can be liable. But assuming that he
was able to overcome the burden of proof, he can still be liable because
when the foreign law, judgment or contract is contrary to established
public policy, the same shall not be applied.
Dabalos v RTC
Applicable kahit break na. It is immaterial whether the relationship
had ceased for as long as there is sufficient evidence showing the past
or present existence of such relationship between the offender and the
victim when the physical harm [or other violation of RA 9262] was
committed.
Violence need not be a consequence of the relationship. While it
is required that the offender has or had a sexual or dating relationship
with the offended woman, for RA 9262 to be applicable, it is not
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indispensable that the act of violence be a consequence of such
relationship.
Dinamiling v People
How violation is proved. The testimony of the complainant as a lone
witness to the actual perpetration of the act, as long as it is credible,
suffices to establish the guilt of the accused, because evidence is
weighed and not counted. Especially if the testimony bears the earmarks
of truth and sincerity and was delivered spontaneously, naturally and in
a straightforward manner, corroborative testimony is not needed to
support a conviction.
Aggravating circumstance. If the acts are committed while the
woman or child is pregnant or committed in the presence of her child,
the penalty to be applied shall be the maximum period of penalty
prescribed.
Physical violence and resulting bodily injury not relevant. Neither
the physical injuries suffered by the victim nor the actual physical
violence done by the perpetrator are necessary to prove the essential
elements of the crime, unless such were alleged to have caused the
emotional or mental suffering.
People v Genosa
Battered woman
A battered woman has been defined as a woman who is repeatedly
subjected to any forceful physical or psychological behavior by a
man in order to coerce her to do something he wants her to do without
concern for her rights.
• Battered women include wives or women in any form of
intimate relationship with men.
• Furthermore, in order to be classified as a battered woman,
the couple must go through the battering cycle at least twice
• Any woman may find herself in an abusive relationship with a
man once. If it occurs a second time, and she remains in the
situation, she is defined as a battered woman.
• Battered women exhibit common personality traits, such as
low self-esteem; emotional dependence upon the dominant
male; the tendency to accept responsibility for the batterer’s
actions; and false hopes that the relationship will improve.
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