Midterm Exam for Persons & Family Relations cma

Memory Aid for Persons & Family Relations

(Family Code)
Article 1: Definition of Marriage
Marriage
 A special contract which calls for a permanent
union between a man & a womanfor the
establishment of a family life. Its nature,
consequences and incidents of marriage are
governed by law and not subject to the agreement
of the parties.
 This is an inviolable permanent social institution.
General Rule:The consequences of marriage are
governed by law and cannot be subject to the
compromise of both parties.
 Sex must be male and female
 Legal Impediments(Absence of legal impediments)
a. Previous marriage and the manner it got dissolved.
b. Relationship of both parties must be not less than
st
4th degree from ascendant or 1 degree of
consanguinity.
Consent Freely Given
 Consent must be given in the presence of the
solemnizing officer with at least 2 witnesses of
legal age.
 The consent does not need to be expressed since
it can be deduced from the acts of the parties
showing that they take each as husband and wife.

Exception:The choice of economic regime that will Formal Requisite

govern their property relation during the marriage.
Intersexuality
 Applies to human beings who cannot be classified
as either male or female because they have the
biological characteristics of both a man and a
woman.
Where the person is biologically or naturally intersex, the
determining factor in his gender classification would be what the
individual, at the time he reached the age of majority, with good
reason thinks of his/her sex. In this case, the gender classification at
his/her birth is deemed inconclusive since it is only at maturity is the
gender of such person is fixed.
Sex reassignment surgery or sex change does not make a man into
a woman because there is no law that allows sex change in the
entry of the birth certificate due to sex reassignment furthermore,
under the Civil Register Law, a birth certificate a historical record of
the facts as they existed at the time of birth. Thus, the sex of a
person is determined at birth. A man w
The Supreme Court ruled that a company policy prohibiting
employees of the same company from marrying each other is an
invalid exercise of management prerogative for the failure of the
employer to present any evidence of business necessity of the
prohibition. Absence of such bona fide occupational qualification
renders the policy invalid.
R.A. No. 6955: The Act Prohibiting Mail Order Brides
 This law penalizes any person or entity who
carries on a business of matching Filipino women
for marriage with a foreigner.
Marriage does not shed a spouse’s integrity and right to
privacy
 The intimacies between husband and wife do not
justify any one of them breaking into the drawers
and cabinets of the other for any telltale evidence
of marital infidelity. Any evidence obtained
therefrom is inadmissible in evidence.
Article 2-6: Essential & Formal Requisites for Marriage
Essential Requisite
Legal Capacity
 Age must be 18 and above
a. For 18-21, parental consent is need absence of
which will render the marriage voidable.
b. For 21-25, parental advise is needed absence of
will delay the issuance of the marriage license by
the Local Civil Registrar for 3 months.
1
Authority of Solemnizing Officer
 The person who solemnized the marriage must be
among those authorized in Article 7 of the Family
Code to solemnize the marriage.
 The authority of the solemnizing officer to
solemnize the marriage is presumed unless it is
otherwise proven.
 It is not the duty of the solemnizing officer to
scrutinize the marriage license.
General Rule:Defect in the authority of the solemnizing
officer will render the marriage void.
Exception:If either one or both of the parties believe in
good faith that the person who solemnized their
marriage is authorized by law to do so, then the
marriage is considered valid.
Valid Marriage License
 This is considered the most important requisite in
the validity of marriage since it is in the issuance
of the license that the State can determine
whether or not there are impediments in the
marriage.
 The marriage license must be secured from the
Local Civil Registrar of the place where either
party resides, which takes 10 days from
application before it is issued.
 The license will be valid for 120 from the date of
issuance.
 Absence of marriage license will render the
marriage void only when it is supported by the
certification from the local civil registrar that no
such marriage license was issued to the parties.
 Any irregularities in the issuance of the marriage
license will not render the marriage void as long as
it does not affect the legal capacity of both parties.
Valid Marriage Ceremony
 The family code does not prescribe any particular
form of a marriage ceremony.
Midterm Exam for Persons & Family Relations
 It only impose that the party will appear personally
before the solemnizing officer and that they take
each other as husband and wife in the presence of
at least two witnesses who are of legal age.
Absence in any of the essential and formal requisite
will render the marriage void.
Defect in any of the essential requisite will make the
marriage voidable or annullable particularly to the
giving of consent.
Irregularities in the formal requisite do not affect the
validity of the marriage but the person responsible for
such irregularity can be held civilly, criminally or
administratively liable.
Instances of Irregularities:
a. Marriage solemnized in a place other than in a church or
chamber of the judge.
b. Absence of two witnesses who are of legal age.
c. Issuance of a license in place where neither of the
parties reside.
d. Issuance of a license w/out the required supporting
papers or documents.
e. Absence of a marriage contract.
f. Issuance of license despite failure of the party to
present parental consent or parental advisewhen
required.
g. Issuance of license despite absence of posting notice
and publication.
h. Failure to undergo marriage counseling.
i. Failure to pay the required fee for marriage license.
Marriage certificate is not an essential or formal requisite of a
marriage. Failure to sign a marriage certificate itself does not render
the marriage void.
A marriage which preceded the issuance of the marriage is license
is void and that the subsequent issuance of such license cannot
render the marriage valid or add an iota of validity to it.
Article 7: Persons Authorized to Solemnize Marriage
 This is a manifestation that the State is a party of the contract as it is
represented by the solemnizing officer.
1. Any incumbent member of the judiciarycan solemnize a
marriage only when the ceremony is held within its
territorial jurisdiction, otherwise it is a mere irregularity.
2. A priest, an imam, a rabbi, a minister or pastorfollowing
this certain conditions:
a. Must be authorize by his/her church or religious sect.
b. Must act within the limits of the written authority granted
to him by his church or religious sect.
c. At least one of the contracting parties belongs to the
solemnizing officer’s church or religious sect.
3. A ship captain or airplane chiefcan solemnize marriage
only if one of the parties is at the point of death and
that the parties must be passengers or crew members
of the ship or airplane while it was in transit.
4. Military commanderprovided they follow the requisites:
nd
a. He must be a commissioner officer with a rank of 2
lieutenant ensign and above of the commanding military
unit where the chaplain is assigned.
b. The assigned chaplain is absent at the time of marriage
is solemnized.
c. The marriage must in articulo mortis
d. The contracting parties must be a member of his unit or
a civilian.
2
cma
e. The marriage must be done in the zone or area of
military operation.
f. There must be a widespread military activity over an
area and does not refer to a simulated exercise.
5. Consul-General or Vice Consul or Consulcansolemnize
a marriage if both parties are Filipino and the marriage
is done abroad. The consul is not only the solemnizing
officer but performs the duties of the civil registrar by
issuing the marriage license.
 The marriage between a Filipino and a foreigner
by a consul is not considered valid.
6. Mayors, vice mayor or acting mayorcan solemnize
marriages by virtue of the Local Government Code
which took effect on January 1, 1992.
Article 8: Venue of Marriage
The venue of marriage stated in this article is directory
in nature.
General Rule:a marriage solemnized by a judge
outside of his court room or by a priest outside of the
church is valid however, the solemnizer can be held
liable for it since this will become an irregularity in the
marriage.
Exception:
a. When one of the party is at the point of death.
b. The marriage was contracted in a remote place.
c. When both of the parties request the solemnizing
officer in writing to solemnize it elsewhere in sworn
statement.
Article 9, 10: Marriage License
Marriage License
 This serves as the authority given by the State to
the parties to enter into a contract of marriage.
 It is the concern of the state to make marriages
secure and stable institution.
Article 11-16: Application for Marriage License
REQUIRED DOCUMENTS FOR APPLICATION OF MARRIAGE
LICENSE
a. The original copy of birth certificate, in the absence
thereof, the original baptismal certificate of the
parties.This document is exempt from documentary stamp tax and
signature of the official person is enough to prove its authenticity.
Except in instances where:
 The parents of the party concerned will
personally appear before the local civil
registrar and attest to the fact that the said
party is already of legal age.
 When the local civil registrar shall be
convinced by merely looking at the personal
appearance of the party that they are of legal
age.
 When the party has been previously married.
b. If either or the parties were previously married, the
death certificate of the deceased spouse or the judicial
decree of absolute divorce, annulment of marriage or
declaration of nullity of marriage.
Midterm Exam for Persons & Family Relations
c. In case either party is between the ages of 18-21, they
must present a parents consent, absence of which will
render the marriage voidable.
This must be in an affidavit of sworn statement
that the parents gave their consent.
Preference is given to the father otherwise the
mother, surviving parent or legal guardian of
persons having charge of them shall give the
consent.
d. If the party is between the ages of 21-25, parental advice
is required.
Absence of which will not affect the validity of the
marriage but will delay the issuance of the
marriage for 3 months following complete
publication of the application.
This is in keeping of family tradition
e. Certificate of marriage counseling in cases where
parental consent or parental advice is required.
Failure to attach the counseling certificate will
cause the suspension of the issuance of marriage
license for 3 months. This is only an irregularity to
the formal requisite.
If one or both of the parties are below 25 years
old, both of them must attend.
f. If a party to the marriage is a foreigner, he must present
a certificate of legal capacity to marry issued by his
diplomatic or consular representative in the
Philippines.
g. Place of issue for the Marriage License, the parties should
get a marriage license form the LCR in the municipality or
city where either of the party resides.
Information needed to be specified to the LCR:
a. Full name of the contracting parties
b. Place of birth
c. Age and date of birth
d. Civil status
e. If previously married, how, when and where the
previous marriage was dissolved or annulled.
f. Present citizenship and citizenship
g. Degree of relationship of the contracting parties.
h. Full name, residence and citizenship of the father.
i. Full name, residence and citizenship of the
mother.
j. Full name, residence and citizenship of the guardian
or person having charge, in case one of the
parties has neither father nor mother, and is under
21 years old.
Article 17-19:
DUTIES OF THE LOCAL CIVIL REGISTRAR
a. Upon receipt of the application for a marriage license,
the LCR must immediately post a notice to inform the
public of the impending marriage.
b. The notice shall be posted in the bulletin board outside
of the LCR for 10 consecutive days showing the name
and residence of the couple.
3
cma
 This will request any person having knowledge of
any impediment to the marriage to inform the local
civil registrar about it.
c. If the LCR will be informed of any impediment of a
party applying, he shall note down the particulars
thereof, but should not turn down the issuance of the
marriage license.
 Even if the LCR is made aware of the impediments of
the marriage, h is still duty bound to issue the license
except if he is restrained by the court at his own
instance or of any interested party.
 Only the court can intervene in issuing the marriage
license through a court order directing the LCR from
non-issuance.
 If there is really a legal impediment in the marriage, the
LCR issuing officer can petition the court to restraint him
from the issuing the marriage license or have the other
party petition for it.
d. The LCR will collect payment of fees for the issuance
of the marriage license in the amount of ₱300.
However, it is free of charged for indigent people.
e. It shall be the duty to prepare the documents such as
the marriage certificate and affidavit for the
solemnization of marriage in another place without
charge to all interested parties.
f. The LCR is the also the one to administer oaths to all
parties interested and to prepare the documents
required.
g. The LCR concerned, shall be the one to enter to all
applications for marriage licenses filed with him in a
registry book strictly in order which shall be recorded
in the name of the applicants, the date of the marriage
license was issued and such other data as may be
necessary.
Article 20: Life of the Marriage License
The marriage license once issued is valid anywhere in the
Philippine for a period of 120 days, if it is not used within that
period is it automatically expired. Marriages solemnized
using an expired marriage licensed is considered null & void.
Article 21: Certificate of Legal Capacity to Marry
If both party are foreigners:
 It is not necessary for them to present a birth
certificate instead they need to present certificate
of legal capacity to contract a marriage duly issued
by their respective diplomatic or consular official.
 The reason for this is that a person’s capacity
to marry is determined by his national law.
 If the foreigner desires to have their marriage
solemnized by their country’s consul general
assigned in the Philippines, the marriage can be
solemnized w/out a marriage license if their
country allows the same.
If both parties are stateless or refugees from other
countries:
 In lieu of the certificate of legal capacity will be
required to submit an affidavit stating the
Midterm Exam for Persons & Family Relations
circumstances showing such capacity to
contract marriage.
Article 22-25: Marriage Certificate
Marriage Certificate
 The best evidence to establish or prove marriage.
 It is a certification issued by the solemnizing officer
that he performed or solemnized the marriage
between the parties. Absence of which will not
invalidate the marriage since it is not an essential
or a formal requisite.
What should be declared in the Marriage Contract?
1. The full name, sex and age of contracting parties.
2. Their citizenship, religion and habitual residence.
3. The date and precise time of the celebration of the
marriage so as to determine at what point will
govern the property relation of the parties.
4. Must indicate that the proper marriage license has
been issued according to law
Except in cases of:
a. Articulo Mortis
b. Marriage in a far and remote place
c. Marriages among Muslims or members of
ethnic cultural communities
d. Ratification of marital cohabitation
5. That both or either parties have secured the
parental consent in appropriate cases.
6. Either or both parties have complied with the legal
requirement regarding parental advice in
appropriate cases.
7. That the parties have entered into a marriage
settlement, it any, attaching the copy thereof.
Duty of the Solemnizing Officer
a. It his duty to furnish either of the contracting
parties the original marriage certificate and to send
the duplicate and triplicate copies of it not later
than 15 days to the Local Civil Registrar of the
place where the marriage was solemnized, the
LCR in turn will issue a receipt to the solemnizing
officer.
- 1 copy to the couple
- 2 copies to the LCR
- 1 copy to keep for the solemnizing officer
th
b. It shall also be his duty to keep the 4 copy of the
marriage contract, the original marriage license
and in some cases affidavit of the contracting
parties regarding the solemnization of the
marriage in a place other than his jurisdiction.
Is a photocopy of the Marriage Contract valid?
 No, unless it emanated from the office of the Local Civil
Registrar.
The rule is that if two persons dwelling together presenting
themselves as married shall be presumed to be indeed
married, in the absence of any counter-presumption or
evidence showing the contrary.
Semper Praesumitur Pro Patrimonio: Always presume
marriage
 The law favors morality over and immorality, marriage
and not concubinage, legitimacy and not bastardy.
4
cma
A marriage may be proved by evidence of any kind such as “parol”
evidence or testimony by one of the parties or the witnesses to the
marriage or by the person who solemnized the same.
Competent evidence proving the fact of marriage
1. Public and open cohabitation as husband & wife
after the alleged marriage.
2. Birth & baptismal certificate of children born by the
alleged spouses.
3. Statement of such marriages in subsequent
documents.
It is the burden of proof upon the person who attacked the validity of
marriage to present a strong and satisfactory evidence to rebut the
presumption of its validity. The evidence to prove the invalidity of the
marriage may even be presented for the first time on appeal.
Article 26: “Lex Loci Celebraciones” Rule in Marriage
Lex Loci Celebraciones
 This is based on the concept of international
comity.
 This is rule in marriage wherein it means that if the
marriage is celebrated abroad and is considered
valid there, it shall also be considered valid in the
Philippines. However, if the marriage solemnized
abroad is in violation of our country’s laws and
policies, our court is not bound to give effect to its
validity.
 The reason for this is that a State is considered
the conservator of its own moral and good order of
society, thus, it has the right to declare what
marriages it will or will not recognize within its
borders.
Exception to the Lex Loci Celebraciones Rule:
 Except those pointed out under Article 35 (1), (4), (5), (6), 36, 37
and 38.
1. If the party who is a Filipino is below 18 years old.
2. If the marriage is bigamous or polygamous.
3. If contracted through mistake of identity of the other party.
4. If the party whose previous marriage has been annulled or
declared void, contracts a second marriage but failed to
record the judicial decree with the LCR, to partition the
conjugal properties and deliver the presumptive Legitime of
their children.
5. Where one of the party is psychologically incapacitated.
6. Marriages considered incestuous.
7. Marriages that are against public policy.
Common law marriages considered abroad cannot be recognized
here in the Philippines since our laws require marriages solemnized
abroad. The word “solemnize” presupposes the performance of a
marriage ceremony which is absent in a common law marriage.
General Rule:Absolute divorce obtained in another country
is not valid here in the Philippines since we adhere to the
National Theory
Requisites:
a. Must be a mixed marriage
b. Foreigner spouse is the one who secured the divorce
abroad
c. After the divorce, the foreigner spouse must again be
capacitated to remarry according to his national law.
Exception:
Midterm Exam for Persons & Family Relations cma

a. When in a case of marriage between a Filipino
citizen and a foreigner and it is the foreigner who
filed for a divorce and after it was granted he must
be capacitated again to remarry according to his
national law. This must be proven as a fact by the
Filipino spouse before he/she is entitled to remarry
again in our court.
 In this case the divorced Filipino citizen is not considered an
“Ipso Facto” capacitated to marry again. The Filipino citizen
must prove as a fact the divorce as enforced by the foreign
judgment by way of declaratory relief since our courts don’t
take judicial notice on the laws of other countries.
b. If the Filipino spouse has acquired the citizenship of her
husband then such divorce is considered as valid here
in our country because of our adherence to the
nationality principle in so far as the status of the person
is concerned.
 What is important or the reckoning point is at the time when
the divorce decree was availed of.
In a case wherein the Filipino citizen is the one who filed for a
divorce in another country to his foreigner husband/wife, the
foreigner spouse cannot anymore claim that he still an interest to the
properties of the Filipino citizen here in the Philippines or
subsequently file an adultery case against the Filipino since the
foreigner spouse has lost his legal standing against the Filipino for
the foreigner is already considered divorced by his national law.
MARRIAGES EXEMPT FROM LICENSE REQUIREMENT
ascertained the age and relationship of the parties
and the absence of any legal impediments.
 The reason for this is to encourage couples to
marry and legalize their relationship instead of
cohabiting in an illicit relationship.
Article 33: Marriages among Muslims or Members of Ethnic Cultural
Communities
Code of Muslim Personal Laws of the Philippines
 Signed into law on Feb. 4, 1977
 This is the governing law on persons and family
relations among Muslims.
- Under this law, marriage license is not
required for the validity of the marriage.
For Muslims and Ethnic Cultural Communities
- Under the family code, marriage license is not
a requirement for the validity of the marriage
provided that both parties must be a Muslim or
a member of the Ethnic Community.
Article 34: Ratification of Marital Cohabitation
When the parties have already been living together as
husband and wife for at least 5 years without any legal
impediments to marry each other, the requirement of a
marriage license is no longer needed.

Article 27-32: Marriage under Articulo Mortis Requisites:

Articulo Mortis (Point of Death) Marriage 1. The party must live together as husband and wife
 This is a marriage done wherein one of the party is for at least 5 years.
at the point of death. This kind of marriage can be 2. There must be no legal impediments for them to
solemnized w/out the need of a marriage license marry each other.
for necessity and practicability. What to do:
 This can be solemnized by a ship captain or 1. Both parties must execute a joint affidavit stating
airplane chief or a military commander, all of which the foregoing fact and have it notarized by a
must be in according to article 7 of the family person duly authorized to administer the oath.
code. 2. The Solemnizing officer must ascertain first the
Duty of the person who solemnized the marriage qualifications of the contracting parties if there are
under Articulo Mortis: any legal impediments.
 He must execute an affidavit before the LCR The falsity of an affidavit of marital cohabitation, where the parties
have in truth fallen short of the minimum 5 year requirement,
stating that he solemnized the marriage under effectively renders the marriage “void ad initio” for lack of marriage
articulo mortis and the he took all the necessary license.
steps to ascertain the age and relationship of the VOID AND VOIDABLE MARRIAGES
contracting parties and that he is convinced that Two Kinds of Defective Marriages
they have no legal impediments to marry each VOID VOIDABLE
other. Defective from the very Not defective from the
 The original affidavit must submitted by him to the beginning beginning
LCR where the marriage was performed within a Cannot be ratified Can be ratified
period of 30 days
Article 28: Marriage in a Far and Remote Place Can be attacked Can only be attacked
If the parties are residing in a far and remote place that collaterally directly
it is difficult for them to secure the required marriage The nullity of marriage can While voidable marriage
license because their place has no means of be raised even after the can only be questioned
transportation, they will exempted from the license death of the parties during the party’s lifetime.
requirement. The action to nullify the The annulment of a
Duty of the person who solemnized the marriage: marriage has no voidable marriage
 He must execute an affidavit after the celebration prescriptive period prescribes
of the marriage stating that he solemnized the General rule: void Voidable marriages can be
marriage in a far and remote place and the marriages can only be questioned by other
5
Midterm Exam for Persons & Family Relations
assailed by the parties of persons not a party to the
the marriage. marriage.
Void Ab Initio:
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
- One of the situations where good faith is taken into
considerations.
3. Those solemnized without a license, except those
covered by the preceding Chapter
4. Those bigamous or polygamous marriages not
falling under article 41 which states presumptive
death
- Another instance where good faith is recognized
5. Those contracted through mistake of one
contracting party as to the identity of the other
6. Those subsequent marriages that void under
Article 53
Collateral Attack of a Void Marriage
 The nullity of the marriage is not the principal or
main issue of the case but is necessary to the
resolution of the main case.
Good faith of the parties in entering the marriage is
immaterial and it does not validate an otherwise void
marriage.
Divorce vs. Void Marriages
Divorce
- There is a valid marriage but the ground
occurred subsequent to the celebration of the
marriage.
Void in Ab Initio
- From the very beginning there was no
marriage.
- The ground for declaration of its nullity already
existing at the time the marriage was
celebrated but only manifested after its
solemnization.
Article 36: Void because of Psychological Incapacity
 This was introduced by E.O. No. 227 on July 17, 1987 as an amendment
to the Family Code.
 No clear definition of the psychological incapacity was given since the
intention of the legislation was to leave the determination of it to the
courts on a case-to-case basis, as to whether a particular situation falls
under the psychological incapacity.
The Reason:
 The presence of psychological incapacity depends upon the facts
of the case and it can be clearly deduced that the absence of
definition was deliberately done because the situations
contemplated by the law vary from one case to another.
Psychological Incapacity
6
cma
 The basic determination of the existence of
psychological incapacity is the failure to comply
with the marital obligation.
 This is not insanity or mental illness
 It refers to the inability of a party to the marriage to
comply with the essential marital obligations
because of psychological reason. It is not a
physical defect because a person who is
psychological incapacitated is one who cannot
perform the essential marital obligations as he/she
refuses to do even if physically capacitated to do
so.
 It can also refer to “lack of appreciation” of one’s
marital obligation and has nothing to do with
consent.
The general guide as to the determination as to whether there is
psychological incapacity or not is the fact the “Psychological
Incapacity” refers to the failure to comply with the essential marital
obligation.
Quarrels and financial difficulties not constitute psychological
incapacity. Sexual infidelity on the other hand, is not considered a
psychological incapacity if it is not proven that it already existed
before the marriage
Duty of the Solicitor General
- To uphold the sanctity of marriage if the marriage is
truly valid and also to expose a void marriage if the
ground of nullity also exists.
- Its duty is to ensure that there is no collusion or
connivance as between the contracting parties.
ESSENTIAL CHARACTERISTICS OF PSYCHOLOGICAL INCAPACITY
1. Juridical antecedent
- It must already be existing at the of the
celebration of the marriage
2. Gravity
- It must be a very serious defect
3. Incurability
- It is not curable
- Also refers to party not being able to afford the
cure
It is clear from the foregoing elements that the intention 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.
The decisions of the matrimonial tribunal of the Catholic Church
involving psychological incapacity as a group to annul the marriage
is greatly helpful and persuasive to our Civil Courts. Although our
courts are not bound by the decision of the matrimonial tribunal, the
said decision can be used by our Civil Court as a guide in the
determination of the existence psychological incapacity.
Guilty Party can petition for nullity of marriage
- The action to declare the marriage void on the ground of
psychological incapacity can be filed even by the
incapacitated party. The law does not prohibit the guilty
party from bringing the action in court as a void marriage
is not ratifiable and the “Pari Delicto Rule” will not apply
here.
The Party who is declared psychologically incapacitated
may still contract another marriage
- The party who is declared psychologically incapacitated by
the court may still contract marriage since this is a very
limited and personal ground. Moreover, it does not mean
that just because a person is psychologically incapacitated
Midterm Exam for Persons & Family Relations cma

to perform his/her marital obligations with his or her c. The incapacity must be proven to exist at the time of
current spouse, he/she will also psychologically the celebration of the marriage, although it only
incapacitated by another partner. becomes apparent after the celebration of the
Expert Testimonies marriage.
- During the trial for declaration of nullity of marriage on the d. The incapacity must be shown to be medically or
ground of psychological incapacity, expert testimonies of a
psychologist or psychiatrist is not a requirement for a clinically permanent or incurable, however this is not
declaration of psychological incapacityand that it is not a regarded as an absolute fact against everyone in the
condition “sine qua non” for such declaration. The court same gender.
may base its decision on the totality of the evidence other e. The illness must also be grave enough to prevent the
than the findings of such expert witness. However, expert party from assuming the essential marital obligations.
testimonies may help in the resolution of the case. f. The essential marital obligations must be those
mentioned in article 68-71 of the Family Code, as well
Testimony of the Psychologist did NOT constitute as sufficient
evidence for Psychological Incapacity:
as Article 220, 221 and 225.
g. The interpretations given by the National Appellate
 The diagnosis was only based on interviews with
Matrimonial Tribunal of the Catholic Church in the
petitioning spouse and that the psychologist did not
Philippines, while not controlling or decisive, should be
actually hear, see and evaluate the respondent who
given great respect by our courts.
was alleged to be psychologically incapacitated.
The testimony of the psychologist constituted as
CANON 1095: CASES F PSYCHOLOGICAL DISORDERS
hearsay. Furthermore, the psychologist failed to a. Hypersexuality-nymphomania
explain how such personality disorder made the b. Hypersexuality-styriasis
respondent psychologically incapacitated and to c. Homosexuality
prove the same is so grave and permanent. d. Lesbianism
(Jordan Chan Paz vs. JeanicePaz G.R. No. 166579) e. Schizophrenia
f. Affective immaturity
Testimony of the Psychologist CONSTITUTE as sufficient g. Anti-social personality disorder
evidence for Psychological Incapacity: h. Dependent personality disorder
 The Supreme Court ruled that lack of personal i. Vaginismus or psychic impotence
examination and interview of the respondent or any j. Sexual disorder
person diagnosed with personality disorder, does k. Psychoneurosis
not per se invalidate the testimony of the doctors. l. Lack of interpersonal integration
Neither do their findings automatically constitute m. Immature personality
hearsay that would result in their exclusion in n. Obsessive-compulsive Personality
evidence. If the psychiatrist or psychologist’s o. Frigidity
p. Alcoholism and gambling
assessment were not based solely on the narration q. Liar, cheat and swindler
or personal interview of the petitioner but also on r. Sexual neurosis
other informants such as respondent’s own son, s. Hysterical personality
siblings and in-laws and sister-in-law who all t. Psychic immaturity
testified on their own observations of respondent’s Najera vs. Najera G.R. No. 164817, July 3, 2007:
behavior and interactions with them. The decision of the National Appellate Matrimonial Tribunal to be
(Reyes vs. Reyes G.R. No. 185286) given weight and respect by our courts, it must be anchored in
The testimony of the psychiatrist is found to be general, not in depth, Canon 1095, par. 3 which is the basis of Article 36. Thus, if the
does not establish link between actions of party and his supposed decision of the said tribunal is based on par. 2 of Canon 1095, the
psychological incapacity court should not give weight to it.
Moral Damages
- Moral damages cannot be recovered from the guilty party REQUISITES FOR PSYCHOLOGICAL INCAPACITY AS A
in an action for declaration of nullity of marriage on the GROUND FOR ANNULLMENT
ground of psychological incapacity. This is because a (a) A true inability to commit oneself to the essentials of
psychological incapacitated person is not aware of his marriage.
incapacity and therefore cannot be held answerable for (b) This inability to commit oneself must refer to the
moral damage. essential obligations of marriage:
 Conjugal act
MOLINA DOCTRINE AS AMENDED BY A.M. NO. 20-11-10-SC  Community of life and love
 Rendering of mutual help
a. The burden of proof to show the nullity of marriage
 The procreation and education of offspring
belongs to the plaintiff.
(c) The inability must be tantamount to a psychological
b. The parties may medically or clinically identify the root
abnormality.
cause of the psychological incapacity alleged in the It is not enough to prove that the spouse failed to meet his
complaint by an expert; however this is not anymore responsibility and duty as a married person; it is essential that he
required but regarded as an option which may be must be shown to be incapable of doing so due to some
helpful in deciding the case. psychological illness.

7
Midterm Exam for Persons & Family Relations
Marcos vs. Marcos G.R. No. 136490, 343 SCRA 755
"Psychological incapacity must be characterized by (a) gravity, (b) juridical
antecedence, and (c) incurability." The foregoing guidelines do not require that a
physician examine the person to be declared psychologically incapacitated. In fact,
the root cause may not be "medically or clinically identified." What is important is the
presence of evidence that can adequately establish the party's psychological
condition. For indeed, if the totality of evidence presented is enough to sustain a
finding of psychological incapacity, then actual medical examination of the person
concerned need not be resorted to.
Barcelona vs. Court of Appeals G.R. 130087
The obvious effect of the new Rules providing that “expert opinion need not be
alleged” in the petition is that there is also no need to allege the root cause of the
psychological incapacity. Only experts in the fields of neurological and behavioral
sciences are competent to determine the root cause of psychological incapacity.
Since the new Rules do not require the petition to allege expert opinion on the
psychological incapacity, it follows that there is also no need to allege in the petition
the root cause of the psychological incapacity.
Dedel vs. Court of Appeals G.R. 151867, Jan. 29, 2004
In this case, respondent’s sexual infidelity can hardly qualify as being mentally or
psychically ill to such an extent that she could not have known the obligations she
was assuming, or knowing them, could not have given a valid assumption thereof. It
appears that respondent’s promiscuity did not exist prior to or at the inception of the
marriage. What is, in fact, disclosed by the records is a blissful marital union at its
celebration, later affirmed in church rites, and which produced four children.
Respondent’s sexual infidelity or perversion and abandonment do not by
themselves constitute psychological incapacity within the contemplation of the
Family Code. Neither could her emotional immaturity and irresponsibility be equated
with psychological incapacity. It must be shown that these acts are manifestations of
a disordered personality which make respondent completely unable to discharge the
essential obligations of the marital state, not merely due to her youth, immaturity16
or sexual promiscuity.
Republic vs. Quintero-Hamano G.R. No. 149498
In proving psychological incapacity, we find no distinction between an alien spouse
and a Filipino spouse. We cannot be lenient in the application of the rules merely
because the spouse alleged to be psychologically incapacitated happens to be a
foreign national. The medical and clinical rules to determine psychological
incapacity were formulated on the basis of studies of human behavior in general.
Hence, the norms used for determining psychological incapacity should apply to any
person regardless of nationality.
Tongol vs. Tongol G.R. No. 157610
it is true that the marital obligations of a husband and wife enumerated under the
Family Code include the mutual responsibility of the spouses to manage the
household and provide support for the family, which means that compliance with
this obligation necessarily entails the management of the income and expenses of
the household. While disagreements on money matters would, no doubt, affect the
other aspects of one's marriage as to make the wedlock unsatisfactory, this is not a
sufficient ground to declare a marriage null and void. In the present case,
respondent's disagreement with her husband's handling of the family's business and
finances and her propensity to start a fight with petitioner spouse regarding these
matters can hardly be considered as a manifestation of the kind of psychological
incapacity contemplated under Article 36 of the Family Code. In fact, the Court
takes judicial notice of the fact that disagreements regarding money matters are a
common, and even normal, occurrence between husbands and wives.
Article 37: Void because incestuous
Marriages between the following are incestuous and
void from the beginning whether the relationship
between the parties is legitimate or illegitimate:
1. Between ascendants and descendants of any
degree.
2. Between brothers and sisters, whether of full or
half-blood.
The reason why incestuous marriages are prohibited
by law:
1. It would tend to create confusion of rights and duties
incident to family relations.
2. It is abhorrent to the nature, not only of civilized men,
but of barbarous and semi-civilized people.
3. Such intermarriages often result in deficient and
degenerate offspring.
8
cma
Article 37: Void because against public policy
 The enumeration of void marriages in this article are exclusive and good
faith is immaterial.
(a) Between collateral blood relatives, whether legitimate
th
or illegitimate, up to 4 degree
(b) Between step-parents and step-children
(c) Between parents-in-law and children-in-law
(d) Between the adopting parent & the adopted child
(e) Between the surviving spouse of the adopted child and
the adopter
(f) Between the adopted children of the same adopter
(g) Between parties where on, with the intention to marry
the other, killed the other person’s spouse or his or her
own spouse.
 No prior criminal conviction by the court is required
by the law. Mere preponderance of evidence is
required to prove the killing.
These marriages are considered against public policy
because they do not serve the fundamental objective of the
state which is to nurture a stable family unit that can
effectively be the foundation of society.
Valid Marriages:
1. Between adopted and the parents of his adopter.
2. Between adopted and illegitimate children his adopter.
3. Between adopted and the relatives of his adopter.
4. Between the adopted and the former spouse of his adopter or
between the adopter and the former spouse of his adopted.
5. Between step-brother and step-sister.
Article 39: Prescriptive Period
Declaration for Absolute Nullity of a Marriage
- Has no prescription period as amended by E.O No.
227 dated July 17, 1987 and further amended by R.A.
No. 8533 dated on Feb. 23, 1998.
- There is no prescriptive period for an action to
declare the marriage void since a null and void
marriage produces no legal effect, it being non-
existent.
Article 40: Void Subsequent Marriages
When a marriage is void, a party to that marriage can
contract a subsequent marriage only after he/she has
the previous marriage judicially declared null and void.
A subsequent marriage contracted without having the
first marriage declared judicially null and void is
considered void an initio.
The reason why it is important that the nullity of the
marriage should be ascertained and declared by the
court of competent jurisdiction is for the sake of good
order of society and for the peace of mind of all
persons concerned.
One should not put the law in his hands and decide for himself the
nullity of his marriage. He should let the court declare the nullity of
such before he can contract another marriage.
The nullity of a previous marriage can only or solely be established
by a final judgment of the court declaring such marriage void.
When the first marriage is undoubtedly void and a party to that
marriage contracted a 2nd marriage w/out obtaining first a judicial
declaration of nullity of marriage, would the said party be guilty of
bigamy?
Article 41-44: Declaration of Presumptive Death
Spouse is Presumed Dead
Midterm Exam for Persons & Family Relations
 This is the only instance where there is a valid bigamous marriage
If a spouse is absent for 4 consecutive years and the
present spouse has a reasonable and well-founded
belief that the absent spouse is already dead, he/she
may contract a second marriage provided that he/she
first obtain a judicial declaration of presumptive death
of the absent spouse.
 “Well-founded Belief”
- Supreme Court states that the meaning of the term
well-founded belief is the exercise of that degree of
due care diligence required in searching for a missing
spouse.
REQUIREMENTS FOR DECLARATION OF PRESUMPTIVE DEATH
1. The absentee spouse must have been absent for 4 or
2 years under the circumstance prescribed by law.
2. The present spouse must not know the whereabouts
of the absent spouse.
3. There must be a well-founded belief that the absent
spouse is already dead.
4. There must be an institution of a summary action for
the declaration of presumptive death of the absent
spouse.
5. There must be final judgment declaring the absent
spouse presumptively dead.
Republic of the Philippines vs. Gregorio Nolasco
The Supreme Court denied the petition of a Filipino seaman to declare his
wife presumptively dead for his failure to conduct a search for his missing
wife with such diligence to give rise to a well found belief that she was dead.
The 4-year period can be shorted to 2 years if the
presumptive death is under the circumstances of great
danger (Article 391 of the Civil Code)
 If the absent spouse was on a vessel and the
same was lost during sea voyage and he has
not been heard of for two years since the loss.
 The absent spouse was on an airplane which
was missing and such spouse was not heard
of for two years since the loss of the airplane.
 The absent spouse who was in the armed
forces has taken part in the war and has been
missing for two years.
 When the absent spouse has been in danger
of death under other circumstances.
The judicial declaration of presumptive death under Article 41 of the
Family Code is mandatorily required by law only for the purpose of
capacitating the present spouse to remarry.
The extraordinary absence is only for the purpose of remarriage of
the remaining spouse however, for the division and liquidation of the
estate and money of the previous marriage, this will only happen
after 4 years of consecutive absence of the absentee spouse.
General Rule: Judicial declaration of presumptive death is
required as such is a presumption that arises from law.
Exception: No judicial declaration of presumption of death is
needed in cases of Article 390 and 391 of the Civil Code before
the effectivity of the Family Code, since these are presumption
that arises from law
 Article 390:
- The person has been absent for 7 years, it being
unknown whether or not the absentee still lives.
9
cma
- The absentee shall be presumed dead for all purposes
except for succession, in which cases, the absentee
shall be presumed dead after the lapse of 10 years.
 Article 391:
- An absentee who is 75 years old and above is
presumed dead if he has been absent for 5 years, still
unknown whether or not the absentee is still alive.
The decision of the court declaring the spouse presumptively dead
under article 41 is unappealable and is immediately executor since it
falls under the Summary Judicial Proceedings in the Family Law.
ABSENT SPOUSE TURNS OUT TO BE ALIVE
If the absent spouse turns out to be alive, then the
subsequent marriage contracted by the present
spouse will be automatically terminated but only upon
the execution of the affidavit of reappearance by the
reappearing spouse or any of the interested party.
Affidavit of Reappearance:
- This shall be recorded in the office of the Local Civil
Registrar of the place where the present and the
subsequent spouse resides.
- The recording of this document is the operative act
that terminates the subsequent marriage without
prejudice to the outcome of any judicial proceeding
questioning the reappearance.
Who can execute the Affidavit?
(a) Reappearing spouse
(b) Or any interested party such as the parents of
spouses, their children, the remarried spouse or
even the subsequent spouse of the remarried
spouse.
Bigamous but Valid Marriage:
- The fact that the absent spouse is still alive renders
the subsequent marriage as a bigamous but valid
marriage.
- This means that the second marriage is bigamous yet
it is still valid by virtue of the judicial declaration of
presumptive death.
EFFECTS OF TERMINATION OF THE SUBSEQUENT MARRIAGE
1. The children of the subsequent marriage conceived are
considered legitimate. However, children born after the
second marriage is dissolved are considered
illegitimate.
2. The property relations of the parties; be it absolute or
conjugal partnership, shall be dissolved and liquidated.
 The party who contracted the marriage in bad faith
shall forfeit his/her share in the net profit community
property in favor of their common children, or if
there none, the children of the guilty spouse by a
previous marriage or in default thereof, by the
innocent spouse.
Midterm Exam for Persons & Family Relations
3. A donation by reason of marriage made by the innocent
spouse in favor of the guilty spouse isrevoked by
operation of law.
4. The designation of the guilty spouse as the beneficiary
of the insurance policy of the innocent spouse may be
revokedby the latter even if there is a designation that it
is irrevocable.
5. The party who contracted the subsequent marriage in
bad faith shall be disqualified to inherit from the
innocent spouse.
If both parties are guilty of bad faith, the marriage
shall be void ab initio and all donations are revoked by
law. Since the marriage is void, the separation of
property will be governed by co-ownership under
Article 147 or 148 of the Family Code.
The subsequent marriage entered into after the judicial declaration
of presumptive death can only be terminated when the first spouse
files an affidavit of reappearance.
Article 45-46: Grounds for Annulment of Marriage
The grounds for the annulment of a voidable marriage
enumerated in article 45 of the Family Code must
already be existing at the time of celebration of the
marriage. If the grounds occurred only after the celebration
of the marriage it cannot be used as a ground to annul the
marriage.
Can be Ratified by Cohabitation
(Cohabitation means sexual intercourse)
1. Absence of parental consent for a party who is over 18
but below 21 years of age. Unless, after reaching the
age of 21, such party freely cohabitated with the other
and both lived together as husband and wife.
2. Either party was of unsound mind, unless such party
after coming to reason freely cohabited with other as
husband and wife.
3. The consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of
the facts constituting the fraud, freely cohabited with
other as husband and wife.
- Vitiated consent must be proven by preponderance of evidence which
may include the actuation of the parties previous to the marriage.
4. The consent of either party was obtained through
force, intimidation or undue influence, unless when
such has disappeared or ceased to exist, the party
thereafter freely cohabited with the other as husband
and wife.
- This is appreciated only when the one of the contracting parties is
compelled by a reasonable and well-founded fear of an imminent and
grave evil upon his person and property or upon the person or
property of his/her spouse, descendants or ascendants, to give his
consent.
10
cma
- To determine the degree of the of intimidation, the age, sex and
condition of the person shall be borne in mind.
CANNOT be ratified by Cohabitation
5. Either party was physically incapable of consummating
the marriage with the other, or such incapacity
continues and appears to be incurable.
- This refers to impotency and not sterility.
- Potency is always presumed, thus, whoever claims that his/her
spouse is impotent has the burden of proving it. However, the
presumption of potency is rebutted if the wife remains a virgin after
three years from the time of their cohabitation, which is called the
Doctrine of Triennial Cohabitation.
6. Either party was inflicted with a sexually transmissible
disease found to be serious and appears to be
incurable.
- This is a ground to annul of marriage if it is both serious and
incurable. It can be a ground a ground if it already existed at the time
of the marriage and it was concealed by the guilty spouse.
Any of the following circumstances shall constitute
fraud:
1. Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral
turpitude.
- It is not necessary for the spouse to verify first before the marriage
whether or not the other spouse has a previous conviction since the
burden of proof is on the convicted party to divulge is criminal
records
2. Concealment by the wife of the fact that the time of the
marriage, she was pregnant by a man other than his
husband.
- This could only be appreciated as a fraud when the concealment of
the pregnancy is still very possible. Thus, the husband could no
longer claim concealment of pregnancy when it is very obvious that
the woman is already pregnant.
- The reason why this is a ground for annulment is because, any child
born after the celebration of marriage is considered a legitimate child
of the husband, and it would be unfair for the man to take care of the
child which is not his.
3. Concealment of sexually transmissible disease,
regardless of nature, existing at the time of the
marriage.
4. Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of
marriage.
- Only when it already existed at the time of the marriage and was
concealed by said party from the other
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.
The grounds for annulment is exclusive, thus, only those specified in
Articles 45-46 of the Family Code shall be considered.
Article 47: Prescriptive Period for Annulment of Marriage
If the ground is absence of parental consent
- The prescriptive period is 5 years from the time
the party who did not secure the parental consent
reaches 21 years old.
- The parents of the party who did not acquire a
parental consent can also annul the marriage at
any time before their son/daughter reaches 21
years old.
In this order: father, mother, legal guardian
Midterm Exam for Persons & Family Relations
If the ground is insanity
- No prescriptive period but will be ratified by
cohabitation if after the insane becomes sane still
continued to cohabit with the other spouse.
- The sane spouse or the relatives or guardian of
the insane spouse may annul the marriage at any
time before the death of either spouse.
- The insane spouse may annul the marriage only
during his lucid interval.
If the ground is fraud
- The action prescribed after 5 years from the
discovery of the fraud.
If the ground is vitiated consent through force,
intimidation or undue influence
- The prescriptive period is 5 years from the time
the force, intimation or undue influence ceased to
exist.
- The party may only be instituted by the party
whose consent was vitiated.
If the ground is physical incapability to consummate the
marriage or sexually transmissible disease
- This is physical incapability to do the sexual act.
- The action for annulment can be filed by the
injured party within 5 years from the time of the
celebration of the marriage.
Article 48-49: Procedures in Annulment & Nullity of Marriage
STEP 1:
Filing in the Family Court the complaint for Annulment or
Declaration of Marriage
The defendant shall be served with summons and a
copy of the complaint whereby he is given 15 days to
file his answer from receipt thereof.
If no answer is filed by the defendant within 15 days:
 The court cannot declare the defendant in default
 The court will order the prosecuting attorney or fiscal
assigned to it to enter his appearance for the State
- To take steps to prevent collusion between the
parties
- To insure that evidence is not fabricated or
suppressed
- To defend a valid marriage
- To expose an invalid one
 After conducting an investigation, the fiscal is
mandated by law to make a report to the court on the
result of his investigation. If there is no collusion the
fiscal will submit a report of no collusion to the court.
The court cannot render judgment on the basis of stipulation of facts
or confession of judgment. An Annulment case cannot be terminated
compromise agreement and no valid compromise is legally possible
on the issue of the validity of marriage
A full blown hearing is required in case where the plaintiff is required
to prove his case in court. The policy of the State is to be cautious
and strict in granting annulment of marriage, thus, the law strictly
prohibits the annulment of marriage w/out trial.
The State shall be represented by the OSG or by the
Fiscal in all cases of nullity and annulment of marriage:
11
cma
 Although Article 48 does not specifically state the
OSG, such office is nevertheless can intervene in the
proceeding considering that issue of validity of the
marriage is vested with public interest.
Republic vs. Joy, G.R. No. 152577, September 21, 2005:
It is their duty not only to defend the validity of the marriage and
prevent collusion between the parties but also to expose an invalid
one. The prosecuting attorney is required to actively participate in
the proceedings and submit a memorandum.
General Rule: The Fiscal must actively intervene in the
case and submit a report to the court that there was no
collusion between the parties.
Exception: If the annulment or declaration of nullity of
marriage was strongly opposed & heatedly contested by
the defendant by hiring a lawyer who filed several
pleadings and actively participated in the trial of the case.
 The non-intervention of the fiscal to assure lack of collusion
between the parties is not fatal to the validity of the
proceedings in court especially when it was not shown that
evidence was suppressed or fabricated by any of the parties.
In this case, the strict application of Article 48 and 60 of the
Family Code is unwarranted.
Compromise Agreement of Property Separation:
 The partial voluntary separation of property agreed
upon by the parties through a compromise agreement
approved by the court prior to the declaration of nullity
of marriage is valid.
Manquilan vs. Manquilan, G.R. No. 155409, June 8, 2007:
The non-participation of the prosecuting attorney or the Solicitor
General in the nullity of marriage case does not invalidate the
compromise agreement previously entered into the by the parties.
An agreement to separate property is not itself an indicator of
collusion. In fact, there is no need for the Fiscal to participate in the
negotiation leading to the agreement.
STEP 2:
During the Pendency of the Action of Annulment or
Declaration of Nullity of Marriage
The support of the spouses and the custody & support
of the common children:
General Rule: The support of the spouses and the
custody and support of the common children will be
primarily governed by whatever agreement the parties
have made.
In the absence of such agreement:
 The support of the spouse and common children
- Shall be taken from the conjugal or absolute community
until the marriage is dissolved.
 The custody of the common children
- This shall be resolved in accordance with Article 213 of
the Family Code which states that “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 7 years old, unless the parent chosen is
unfit.
No child under 7 years old shall be separated from the
mother unless the court finds compelling reasons to order
otherwise. ”
- Should the court award the custody of the child to one
parent during the pendency of the case, the other
spouse should have visitorial rights unless the court, for
Midterm Exam for Persons & Family Relations
some compelling reason, deprives him or her of such
rights. However, visitorial can be reinstated if it showed
that the deprivation is too harsh or is no longer present.
STEP 3:
Upon receipt of verified petition for declaration of absolute
nullity of Marriage or Annulment of Marriage or Legal
Separation
The Court may issue Provisional Orders:
 This upon application under oath of any parties may issue
provisional orders and protection orders with or w/out a
bond, for such period and under such terms and conditions
as the court may deem necessary.
Includes:
1) Spousal support
2) Child support
3) Child custody
4) Visitation rights
5) Hold departure order
6) Order of protection
Article 50-54: Decree of Annulment and Nullity of Marriage
Effects of Annulment and Nullity of Marriage
Shall be according to Article 43 of the Family Code
1. Children under voidable marriage will still be
considered legitimate however for children born
under a void marriage, they will become
illegitimate children
Except:
Children conceived and born before the nullity
of marriage on the ground of psychological
incapacity under 36 became final are
considered legitimate
 Children conceived and born of subsequent
void marriage under Article 53 are also
considered legitimate.
2. Properties may be separated to whatever
agreement they may have agreed to.
3. Donations to one another will remain valid but if
the done is the guilty spouse, then the donation
will be revoked by operation of law.
4. Insurance beneficiaries designated to the guilt
spouse may be revoked even if it is irrevocable.
5. The guilty spouse is barred from inheritance to the
innocent spouse either by testate or intestate
succession.
Dissolution of the conjugal partnership
a. The properties will be liquidated and distributive
according to the comprise agreement of the
spouses or to their pre-nuptial agreement.
However, absence of which, the absolute
community of property regime will govern.
b. If the union is without marriage
- The property regime shall be governed by the rule of co-ownership
provided for in Articles147 & 148, and not the conjugal partnership
of gains or absolute community property.
c. All creditors of both parties must be notified and
the conjugal dwelling shall be adjudicated in favor
of the spouse with whom majority of the common
children choose to remain.
Presumptive Legitime
12
cma
- This is the part of the testator’s property which he
cannot dispose of because the law has reserved it
for certain heirs called compulsory heirs.
The presumptive Legitime of the children shall be delivered to
them in cash, property or sound security and it must be
provided in the decree
- This is only required only in the dissolution of marriage
in Article 40. It is not required in other forms of void
marriages because said marriages are to be governed
by co-ownership.
The partition and distribution of the properties of the
spouses and the delivery of the presumptive legitimes
to be children shall be recorded in the Office of the
LCR and in the Registry of Deeds in order to bind the
rd
3 person.
- Non-compliance of the said requirement will
render the subsequent marriage of the parties null
and void
LEGAL SEPARATION
Legal Separation a.k.a. Relative Divorce
- This does not dissolve the marriage as it is nothing
more than a separation in bed-and-board (a
mensa et thoro) of the spouses.
- In the eyes of the law, the husband and wife are
still married to each other but they are already
allowed to live separately.
Article 55: Grounds for Legal Separation
Grounds for Legal Separation:
 These are exclusive grounds and therefore no other grounds
for legal separation can be invoked except those stated in
Article 55
 These grounds need not to exist prior to the marriage as
they even usually occur after the marriage
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 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 6 years, even if pardoned.
5. Drug addiction or habitual alcoholism of the
respondent.
6. Lesbianism or homosexuality of the respondent.
7. Contracting of 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
- This must not be justified by self-defense or that
the spouse attacked was caught in flagrante
Midterm Exam for Persons & Family Relations
delicto having carnal knowledge with another man
or woman.
- Criminal conviction is not required as the attempt
on the life of another spouse may be proven by
preponderance of evidence.
10. Abandonment of petitioner by respondent without
justifiable cause for more than 1 year.
Criminal conviction of adultery or concubinage
- is not required in the action for legal separation. The
court may grant legal separation by mere
preponderance of evidence.
Other acts of sexual infidelity short of adultery and
concubinage are enough as long as the said acts constitute
a clear betrayal of the trust of one spouse. Thus, even a
husband single act of sexual intercourse with another
woman is already ground for legal separation.
Lesbianism, homosexuality, drug addiction and habitual
alcoholism
- Can only be a ground for legal separation if they occur
during the marriage.
- If said defects already existed before the marriage and
they were concealed from the other spouse, they could
be grounds for annulment of marriage.
Article 56-57: Defense for Legal Separation
Grounds for Dismissal for Legal Separation:
1. Where the aggrieved party condoned the offense
or act complained of
2. Where the aggrieved party has consented to the
commission of the offense or act constituting the
grounds for legal separation
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 the decree of legal separation
6. Where the action is barred by prescription
- An action for legal separation shall be filed within 5 years
from the time of occurrence of the cause.
The court may take judicial notice of prescription. If prescription is
apparent from the allegations in the complaint for legal separation,
the court can dismiss it “motuproprio”. Thus, even if prescription is
not interposed as a defense but it becomes manifest after trial, the
court may stil dismiss the complaint.
Condonation
 An act of forgiving and is given after the fact, while
consent is given after the act that gives rise to the
ground for legal separation.
Connivance
 This happens when the spouse participated in the
downfall of the other as by providing actively the
opportunity for the wrong doing directly or
indirectly.
Recrimination
 This means that both parties are at fault or have
given ground for legal separation.
Collusion
13
cma
 This refers to an arrangement between the
spouses to obtain a decree of legal separation by
secret maneuvers or pretensions by making it
appear that a valid ground exist even if there is
none.
Article 58-59: Procedures for Legal Separation
Death of one party extinguishes a pending action for legal
separation.
STEP 1:
Filing in the Family Court the complaint for Annulment or
Declaration of Marriage
The defendant shall be served with summons and a
copy of the complaint whereby he is given 15 days to
file his answer from receipt thereof.
If no answer is filed by the defendant within 15 days:
 The court cannot declare the defendant in default
 The court will order the prosecuting attorney or fiscal
assigned to it to enter his appearance for the State
- To take steps to prevent collusion between the
parties
- To insure that evidence is not fabricated or
suppressed
- To defend a valid marriage
- To expose an invalid one
 After conducting an investigation, the fiscal is
mandated by law to make a report to the court on the
result of his investigation. If there is no collusion the
fiscal will submit a report of no collusion to the court.
General Rule: The Fiscal must actively intervene in the
case and submit a report to the court that there was no
collusion between the parties.
Exception: If the annulment or declaration of nullity of
marriage was strongly opposed & heatedly contested by
the defendant by hiring a lawyer who filed several
pleadings and actively participated in the trial of the case.
 The non-intervention of the fiscal to assure lack of collusion
between the parties is not fatal to the validity of the
proceedings in court especially when it was not shown that
evidence was suppressed or fabricated by any of the parties.
In this case, the strict application of Article 48 and 60 of the
Family Code is unwarranted.
STEP 2:
Before the court will commence to the hearing of the case,
it should allow a “Six Months Cooling-off Period” to lapse
from the filing of the complaint
 This is intended to give the parties enough time to
further contemplate their positions and allow the
healing balm of time to aid them in the process.
 This is a mandatory requirement and its non-
compliance renders the decision infirm. However, what
is only prevented is the hearing of the case on its
Midterm Exam for Persons & Family Relations
merits. It does not involve the hearing of other
incidents such as custody of minor children, support
“pendete lite” and alimony.
 The court may also entertain prayers of injunctions
within the period or even motion to dismiss.
Ocampo vs. Florencio 107 Phil. 35
No decree of legal separation may be issued unless the court has taken
steps towards the reconciliation of the spouses and is fully satisfied,
despite such efforts, that reconciliation is highly improbable. Likewise,
the court cannot render judgment on the basis of stipulation of facts or
confession of judgment.
STEP 3:
Spouses are entitled to live separately from each other
 After the filing of the petition for legal separation the
parties are already entitled to live separately from each
other.
Administration of Conjugal Properties
- In the absence of written agreement of both
parties as to the administration of the absolute
community or conjugal partnership property shall
be decided by the court.
- If neither of the parties is fit to administer it, the
court may appoint a third person to manage the
community properties.
Support of the parties and their common
children and custody
- The support for the parties and their common
children will be taken from the absolute community
or conjugal partnership.
- If the court awards the custody of their minor
children to one spouse, the other spouse should
be given visitorial rights.
Article 63-64: Effects of Legal Separation
EFFECTS OF LEGAL SEPARATION
1) The spouses shall be entitled to live separately from
each other, but the marriage bond shall not be
severed.
2) The absolute community or conjugal partnership shall
be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits,
which shall be forfeited in accordance with article
43(2).
3) The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of 213
of this code.
4) The offending spouse shall be disqualified form
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse in the will of the innocent spouse
shall be revoked by operation of law.
6. A donation by reason of marriage made by the innocent
spouse in favor of the guilty spouse is revoked by
operation of law.
- The action to revoke the donation under Legal
Separation must be brought within five years from
14
cma
the time the decree of legal separation has
become final.
7. The designation of the guilty spouse as the beneficiary
of the insurance policy of the innocent spouse may be
revokedby the latter even if there is a designation that it
is irrevocable.
Article 65-66: Effects of Reconciliation
A corresponding joint manifestation under oath signed
by them shall be filed with the court in the same
proceeding for legal separation
Effects:
For pending cases
- It shall be terminated right away
If the decree has already been issued
- The decree shall be set aside.
Separation of properties and any forfeiture of
share to the guilty party already effected
- This shall continue to subsist, unless the
spouses agree to revive their former
property regime.
Joint Manifestation of Reconciliation specifications:
1. The properties to be contributed anew to the
restored regime
2. Those to be retained as separate properties of
each spouse
3. The names of all their known creditors, their
addresses and the amounts owing to them
The agreement of revival must be in writing and
attached to the motion filed in court trying the legal
separation case.
Creditors of both parties must be duly notified by
furnishing them copies of both the agreement and the
motion.
Once the court approves the agreement, the order of the
court must be recorded in the proper registries of properties.
Those creditors that were not listed or not notified shall not
be prejudiced by the recording of the order in the proper
registries.