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I.

INTRODUCTION

Intersection of Modern Constitutional Developments and Traditional Family Law

A. LEGAL FRAMEWORK 1987 CONSTITUTION A. SEC 12 & 14, ART. II

ART II. SEC 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the government. - This section makes reference to the sanctity of family life, which is a noun usually used in reference to holy or sacred things thus having a religious undertone. We are, however, a secular nation and, as such, this can (must?) be construed as a description of the inviolability of the family because of its importance. - We find here a direct declaration of the autonomy of the family, but, in the same breath, the stake of the State in the family is also expressed. There is, therefore, a dichotomy: on the one hand the family is autonomous and inviolable, but on the other hand the State has a supreme stake in it and can therefore regulate matters pertaining to it. - When discussing the autonomy of the family as described here, one can bring up Griswold v. Connecticut wherein the right to marital privacy was upheld as a right which emanates from the due process clause. In the interest of a balanced discussion, one can then move on to examples of how the State regulates marriages as a measure of strengthening and protecting the sanctity of family life.

ART II. SEC 14.The state recognizes the role of women in nation building and shall ensure the fundamental equality before law of women and men. - Directly related to the excerpts from the Magna Carta for Women. - Could be discussed as a concrete example of modern constitutional developments. - A point of discussion of how this affects Traditional Family Law would be how the Family Code revised the grounds for legal separation. Before, the woman could only file for separation when the husband committed concubinage, whereas the man could file for separation for each and every act of adultery committed by the wife. This inequality has been rectified in the Family Code.

B. SEC. 1 ART III

ART III. SEC 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. - Discussed with Griswold v. Connecticut (due process) and the subsequent case of Eisenstatd v. Baird (equal protection of laws)

C.

ART. XV

ART XV. SEC 1. The state recognizes the Filipino Family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. - There is an assumption that a stable family equates to a stable nation. This is a direct statement which clarifies the nature of the States stake in the family. ART XV. SEC 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the state. - The kind of family being referred to in the previous sections is not specified. We see in this section, however, a preference for a particular kind of family, that is, one predicated on marriage. This lends itself to inescapable imports, for example, legitimate > illegitimate. - Extending the assumption in the previous section, we see that a stable marriage = a stable family = a stable nation. Therefore, the state also has a stake in marriages. - Marriage, like the family, is also inviolable. However, being protected by the state necessarily means incursions into the inviolability of marriage. ART XV. SEC3. The state shall defend: The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development; The right of the family to a family living wage and income; and The right of families or family associations to participate in the planning and implementation of policies and programs that affect them. ART XV. SEC 4. The family has the duty to care for its elderly members, but the state may also do so through just programs of social security.

RA 9710 MAGNA CARTA OF WOMEN, SECS 2, 12 &19

Section 2. Declaration of Policy. - Recognizing that the economic, political, and sociocultural realities affect women's current condition, the State affirms the role of women in nation building and ensures the substantive equality of women and men. It shall promote empowerment of women and pursue equal opportunities for women and men and ensure equal access to resources and to development results and outcome. Further, the State realizes that equality of men and women entails the abolition of the unequal structures and practices that perpetuate discrimination and inequality. To realize this, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms to address discrimination and inequality in the economic, political, social, and cultural life of women and men. The State condemns discrimination against women in all its forms and pursues by all appropriate means and without delay the policy of eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law. The State shall accord women the rights, protection, and opportunities available to every member of society. The State affirms women's rights as human rights and shall intensify its efforts to fulfill its duties under international and domestic law to recognize, respect, protect, fulfill, and promote all human rights and fundamental freedoms of women, especially marginalized women, in the economic, social, political, cultural, and other fields without distinction or discrimination on account of class, age, sex, gender, language, ethnicity, religion, ideology, disability, education, and status. The State shall provide the necessary mechanisms to enforce women's rights and adopt and undertake all legal measures necessary to foster and promote the equal opportunity for women to participate in and contribute to the development of the political, economic, social, and cultural realms. The State, in ensuring the full integration of women's concerns in the mainstream of development, shall provide ample opportunities to enhance and develop their skills, acquire productive employment and contribute to their families and communities to the fullest of their capabilities. In pursuance of this policy, the State reaffirms the right of women in all sectors to participate in policy formulation. planning, organization, implementation, management, monitoring, and evaluation of all programs, projects, and services. It shall support policies, researches, technology, and training programs and other support services such as financing, production, and marketing to encourage active participation of women in national development. Section 12. Equal Treatment Before the Law. - The State shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women within three (3) years from the effectivity of this Act. Section 19. Equal Rights in All Matters Relating to Marriage and Family Relations. - The State shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and shall ensure: (a) the same rights to enter into and leave marriages or common law relationships referred to under the Family Code without prejudice to personal or religious beliefs; (b) the same rights to choose freely a spouse and to enter into marriage only with their free and full consent. The betrothal and the marriage of a child shall have no legal effect;

(c) the joint decision on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (d) the same personal rights between spouses or common law spouses including the right to choose freely a profession and an occupation; (e) the same rights for both spouses or common law spouses in respect of the ownership, acquisition, management, administration, enjoyment, and disposition of property; (f) the same rights to properties and resources, whether titled or not, and inheritance, whether formal or customary; and (g) women shall have equal rights with men to acquire, change, or retain their nationality. The State shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. Various statutes of other countries concerning dual citizenship that may be enjoyed equally by women and men shall likewise be considered. Customary laws shall be respected: Provided, however, That they do not discriminate against women.

OVERVIEW OF DUE PROCESS AND EQUAL PROTECTION CASES


- Directly related to the discussion of Sec 1 Art III of the 1987 Constitution (Due Process & Equal Protection Clause). Griswold v. Conneticut Facts: State passed a law prohibiting the use of contraceptives by married couples. Griswold was part of the Planned Parenthood League of Connecticut. Held: Against the due process clause. State was impinging on their individual right to privacy of married individuals w/o any justification. The Due process clause protects a penumbra of rights & included in that is the right of married couples to privacy. Eisenstadt v. Baird Facts: State prohibited the distribution of contraceptives except for married persons and for therapeutic purposes. Baird lectured & allegedly handed a contraceptive to a single woman. Held: Against the equal protection clause (unequal treatment to married women, unmarried women, and those who will use it for therapeutic ends). Constitutional rights may be curtailed if there is a compelling state interest. State irrationally & unwittingly imposes unwanted pregnancies from unsafe sex as a form of punishment.

II.

CIVIL PERSONALITY A. CONCEPT AND CLASSES OF PERSONS

Art. 37 (CC) Judicial capacity is the fitness to be the subject to legal relations, which is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal affect, is acquired and may be lost. It is conditional and variable. Requires both knowledge and will Art. 40 (CC) Birth determines personality; conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. Because of expectancy, law protects its rights, as long as it is born. Art. 41 (CC) For civil purposes, fetus is considered born if alive at the time completely delivered. If intra-uterine life of less than 7 months, if lives more than 24 hours after delivery. Cutting of umbilical cord, duration of life is immaterial Proof of life: complete respiration Premature birth: any cause of death before 24 hours, no personality. Art. 42 (CC) - Civil personality is extinguished by death. Some rights and obligations are transmitted to successors For certain purposes, estate continues personality Art 43 (CC) - If there is 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. Presumed to have died at the same time if no evidence. Rule 123, sec. 69 (ii) When two or more persons perish in the same calamity, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and age of the sexes, according to the following rules: a. If both under 15, the older b. If both over 60, the younger c. If one <15, and other >60, the younger d. If both between 15 and 60, the male, if same sex, the older e. If one <15 or >60, and other between ages, the later Differences between 43 and rules of court: o 43 applies to those who succeed each other while other may apply to an insured and his beneficiary o 43 applies to all cases of death while rules of court applies to calamities

Juridical Persons
Art. 44 (CC) a) the state and its political subdivisions b) public corporations or institutions, created by law c) private corporations, partnerships and associations, with a separate and distinct personality from shareholder and members Art. 45 (CC) a) and b) are governed by laws creating or recognizing them. Private Corporations is regulated by laws of general application on the subject. Partnerships and associations by provisions on this Code. Art. 46 (CC) Juridical persons may acquire and possess property, as well as incur obligations and bring civil and criminal actions in conformity with the law and regulations. Art. 47 (CC) Upon dissolution public and private corporations or institutions, their property and other assets shall be disposed of in pursuance of law and charter creating them. If not specified, shall

be applied to similar purposes for the benefit of the region, province, city or municipality, which derived the principal benefit from the same.

GELUZ v. CA & OSCAR LAZO o FACTS: Wife had three abortions. Husband filed for an award of damages against the physician who did the abortion. o ISSUE: WON the husband can cliam damages for the death of the unborn fetus. o HELD: No. The award for death of a person doesnt cover unborn fetus that is not endowed with personality and incapable of having rights and obligations. No transmission can happen from one that lacked juridical personality. PEOPLE v. TIROL o FACTS:Baldesco died pending an appeal which he brought to court upon being found guilty of the crime of murder. o ISSUE: WON Baldesco can still be held liable for his offense. o HELD: The court resolved to dismiss the case insofar as the criminal liability of the appellant is concerned. Since the penal liability of appellant had been extinguished by death, only his civil liability remains to be determined and which will be recovered from his estate. JOAQUIN vs. NAVARRO o FACTS: Summary proceedings to resolve the order of death between the son and mother who both died while the battle for the liberation of Manila was raging. o HELD: There are particular circumstances from which the fact of death may be inferred as a rational conclusion so there is no need to apply the statutory presumption. That the mother (Angela) died before her son was based on speculations, not evidence. Gauged by the doctrine of preponderance of evidence by which civil cases are decided, this inference should prevail. Evidence ofsurvivorship may be (1) direct (2) indirect(3) circumstantial or (4) inferential. Art 43 speaks about resolving doubt when 2 or more persons are called to succeed each other as to which of them died first. In the Civil Code, 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 another. In the Rules of Court, in cases of calamity, there is a hierarchy of survivorship. (Partly taken from PerFam Relations)

B. CAPACITY TO ACT AND RESTRICTIONS 1. PRESUMPTION OF CAPACITY


Standard Oil v. Arenas - Defendant was said to be suffering from monomania of wealth when he executed the bond with plaintiff. - Defendant had to prove: 1) monomania was habitual and constituted perturbation in the patient 2) bond was result of monomania

3) monomania existed on the date of execution - Evidence shows that even if he was suffering from illusions for a reality does not necessarily prove insanity or incapacity to bind himself to contract - Capacity to act must be supposed to attach to a person who has not previously been declared incapable and such capacity is presumed to continue so long as the contrary be not proved. - There must be direct proof, mere predictions are not enough

2. RESTRICTIONS
Art 6 (CC): Rights may be waived, unless contrary to law or prejudicial to a 3 person with a right recognized by law - Rights: subject, object, efficient cause o Subject: active (entitled to demand enforcement), passive (duty-bound to suffer its enforcement) o Object: things or services o Efficient cause: give rise to the legal relation - Political (participation in govt and state) and Civil Rights: o The rights of personality/human rights o Family rights o Patrimonial rights can be waived Real rights (ex. Ownership) Personal rights (ex. right to collect debt) - Waiver is the relinquishment, with both knowledge of existence and intention to relinquish it. o Must have the right o Must have capacity to make renunciation o Express or implied inferred through clear, unequivocal, decisive act Art 38 (CC) Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements. Art 39 (CC) Addition to restrictions: family relations, alienage, absence, insolvency and trusteeship. Capacity to act is not limited on account of religious belief or political opinion. 1. 2. 3. 4. Incapacitated still has rights and may incur obligations by law, delicts, quasi-delicts, but not from contracts. Even without guardianship, civil interdiction, deaf-mute who cant read and write and unsound mine are of limited capacity. Act of guardianship for lepers, prodigals, and who cant manage property will limit their capacity to act.
rd

A. MINORITY

RA 6809 lowering the age of majority to 18 yrs, which was previously 21

I.

EFFECT ON CONTRACTS
Art. 1327 the following cannot give consent to a contract 1) unemancipated minors 2) insane or demented persons and deaf-mutes who do not know how to write Art. 1390 (1) Contracts where one of the parties is incapable of giving consent to a contract are voidable, even though there may have been no damage to contracting parties. Art. 1403 (3) Those where both parties are incapable of giving consent to a contract are unenforceable, unless ratified Art. 1397 The action for the annulment of contracts may be instituted by all who are thereby obliged principally or subsidiarily. Also, only the victim and not the party responsible for the defect can assert the action. Art. 1399 The incapacitated person is not obliged to make any restitution except insofar as he has been benefited by the thing or price received. Art. 1426 If a minor between 18 and 21, upon the annulment of the contract voluntarily returns the thing received, shall not have the right to demand the thing returned. Art. 1427 If a minor between 18 and 21, voluntarily pays a sum of money or delivers a thing in fulfillment of the obligation, there shall be no right to recover if oblige has already spent it in good faith. Art. 1489 Where necessaries are those sold to a minor, he must pay a reasonable price therefor. Mercado v. Espiritu o 2 out of 4 parties were minors, who stated they were of legal age at time of deed of sale and before the notary o Minors who are already passed the age of puberty and adolescence and are near adulthood, when they pretend to have reached the age of majority, while in fact, they have not, is a valid contract. o Doctrine in accord with provision on law of estoppel because of the active misrepresentation Bambalan v. Maramba o The contract of sale of land is void since he was a minor. o But there was no misinterpretation because defendant knew him to still be a minor at the time Branganza v. Villa Abrille o Failure to disclose ones minority does not constitute fraud thus no misrepresentation o Annulment must be filed within 4 years after minor reaches age of majority o Restitution of benefit received o Passive misrepresentation is not estopped.

II.

EFFECT ON MARRIAGE
Art. 5 (FC) Any male or female of the age of 18 years or up not under any of the impediments (incestuous and against public policy) may contract marriage. Art. 35 (FC) Marriage contracted by any party below 18 years even with the consent of parents is void ab initio.

III.

EFFECT ON CRIMES
RA 9344 there is a presumption of minority (sec. 7) A child under the age of 15 is exempt from criminal liability If age between 15 and 18, unless acted with discernment is exempt from criminal liability. Status offense, not crime for an adult, not a crime for a childe They are still liable for restitution in the amount that they benfited.

B. INSANITY
Insanity is a mental disease where there is a perversion of the mentality, whereas imbecility is a form of mental deficiency characterized by an intelligence scale from two years upto completed eighth year. The presumption of the law is generally in favor of sanity, and he who alleges the insanity of another has the burden of proving it. Once general insanity is proved to exist, it is presumed to continue; and if a recovery or a lucid interval is alleged, the burden to prove such allegation is on the person making it.

I.

CONTRACTS
Art 1327 (2) an insane or demented person cannot give consent to a contract. Thus, contracts entered into by these persons are defective. An exception to this is a contract entered into during a lucid interval; in which case, the contract is valid as stated in Article 1328 Burden to prove lucid interval rests on prosecution. In case of a defective contract, restitution by the incapacitated person is not required except insofar as he has been benefited by the thing or price received by him (e.g. medical assistance)

II.

CRIME
Art. 12(1) (RPC) - An imbecile is exempted from criminal liability. An insane person, however, is exempted only if the crime was not done during a lucid interval. When held criminally liable, the imbecile or the insane shall be confined in a hospital or asylum upon court order. He shall not be permitted to leave the same without first obtaining permission of the same court.

III.

MARRIAGE
Art. 45 and 47 (FC) - When insanity is existing at the time of marriage, marriage is voidable. The consent given by the insane was unreal on account of his lack of intelligence and understanding of the nature and consequences of marriage. However, cohabitation by the insane party, after regaining reason, ratifies the marriage. The right of action to annul marriage is given to the insane party, the sane spouse who had no knowledge of the others insanity and the relative or guardian having legal charge of the insane. The insane spouse may exercise such right after regaining reason or during a lucid interval, while the other two may do so at any time before the death of either spouse.

C. STATE OF BEING DEAF-MUTE


A. Contracts Art 1327 (CC) - Deaf-mutes who do not know how to write cannot give consent to a contract, for the reason that they will not be able to affix their signature B. Will When the deaf-mute is the testator, he must personally read the will; otherwise, he shall designate two persons to read it and communicate to him its contents (Article 807) However, he cannot be a witness to the execution of a will for he wont be able to test ify properly in court if ever the need arises (Article 820).

D. PRODIGALITY

Art 92 (2) (RC) - Wanton waste of ones, estate; without regard for family exposing them to want and depriving inheritance; morbid state of mind and disposition to spend
MARTINEZ v MARTINEZ (Super Digest) o Pedro Martinez Ilustre appeal after CA rejected his petition for declaring his dad, Francisco, a prodigal. He was given by dad special powers of attorney but dad revoked it because son is mismanaging their estate. Son accused dad of splurging and squandering their properties by giving donation to his second wife and her family o ISSUE: WON Francisco should be declared prodigal o HELD: Since prodigality is not defined in our law, it may be inferred that the acts of prodigality must show a morbid state of bind and a disposition to spend, waste, and lessen the estate to such an extent as is likely to expose the family to want of support, or to deprive the forced heirs of their undisposable part of the estate. The testimony of the plaintiff was insufficient to support his allegations against his father. There was no evidence to show his father has been transferring by sale or mortgage any property, which will reflect in the city record of public deeds. The court found the defendant is far from being prodigal, and is still in the full exercise of his faculties and still possess the industry, thrift and ability in managing the estate. In fact, the father has increased profit while the son himself possesses propensity to be prodigal.

E. CIVIL INTERDICTION

Art 34 (RPC) - Civil interdiction. Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. Art 54 (CC) A male of the age of sixteen years or upwards, and any female of the age of fourteen years or upwards, not under any of the impediments mentioned in Articles 80 to84, may contract marriage. (2)

Art 123 (CC) For the validity of marriage settlements executed by any person upon whom a sentence of civil interdiction has been pronounced, the presence and participation of the guardian shall be indispensable, who for this purpose shall be designated by a competent court, in accordance with the provisions of the Rules of Court. Art 11.2 (RPC) - Justifying circumstance: in defense of family Art 13.5, (RPC) - Mitigating circumstance: immediate vindication

F. FAMILY RELATIONS

Art 37 (FC) - incestuous marriage Art 87 (FC) - donation inter vivos not allowed bet spouses Art 215 (FC) - disqualified to testify against each other unless indispensable to crime against him/another grand/parent Art 1109 (CC) - prescription does not run between husband and wife, parent and child (minority or insanity), guardian and ward Art 1490 (CC) - spouses cannot sell property to each other unless: (a) separation of property in marriage settlement (b)judicial separation of property

G. ABSENCE

Art 390 (CC) After 7 years a person is presumed dead for all purposes except succession; if 75, 5 yrs only Art 391 (CC) If there is a danger of death (4 yrs only) (a)vessel lost at sea or missing airplane (b)member of military or armed force in war (c)other circumstances of danger of death Art 124 (FC) If one spouse is incapacitated, other spouse may assume power of administration

III.

PRE-MARITAL CONTROVERSY

A. BREACH OF PROMISE TO MARRY


Art. 19 (CC) - 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. A person may only be protected by the law when he acts in legitimate exercise of his right The right (and the exercise of it) disappears when a right is abused to the prejudice of others The lack of good faith is essential to the abuse of a right.

Good faith is an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of the law. There is pre-contractual abuse when a person refuses to contract without good reason after the other party has incurred expenses in preparation for contract. The person who refuses to contract is therefore liable for damages. ! So where does breach of promise to marry fall under this article? The promise to marry has no obligatory force, therefore, as a rule it cannot give rise to liability for damages. Ordinarily, the refusal to enter into a contract is also an absolute right (meaning it can never be the basis of liability). However, a prospective bride or groom who breaks the engagement without good reason and causes moral and material injury is liable for damages caused, especially if it occurs just before the wedding. The case in point here (as found in the syllabus) is Wassmer v. Velez (1964). The groom disappeared a few days before the wedding claiming that he needed to return to the province because his mother disapproved of the match. A day before the wedding he assured the bride through a wire that everything was all right and the wedding would go on. He never showed himself to the bride again. The Court held him liable for moral damages. The significance of Article 19 is that it is a statement of principle. Articles 20 and 21 ensure that Article 19 is not just advisory. Article 21 in particular is complementary to Article 19. Art 20 (CC) Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. This is the provision that holds the general sanction for all provisions of law which do not specifically provide their own sanction. This provision also covers all legal wrongs that do not constitute violations of contract. Art. 21 (CC) - 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. The scope of this article is vital: liability may arise from acts that may be legal or at least not prohibited if such acts are contrary to morals, good customs, public order, or public policy. This article fills the great void in the statutes that leave victims of moral wrongs helpless. By giving victims of wrongdoing a better chance to achieve justice, the State strengthens the legal system as one that can give them relief or redress. Loss or injury here is defined as any damage done to a victim, whether it refers to a determinate right or property. What is key is that the damage was done in contravention of good morals, etc. etc. Exception: The person cannot be held liable if the damagers are produced as a consequence of the inexcusable fault or negligence of the victim. The person must have singularly caused the loss or injury in order to be liable. ! Cases in Point:

In the case of Tanjanco v. CA, Tanjanco (1966) courted Santos for a brief period before he allegedly promised to marry her. Santos consented to having sex with Tanjanco because of this promise and they went on to have sex for over a year. When Santos became pregnant she went to Tanjanco but he did not make good on his promise. She filed for damages under Article 21 but the Supreme Court dismissed her complaint because it was evident that there was no seduction in this case, a vital element of Article 21. For illicit sexual relations to be the subject of an action for damages, it must be clear that the woman yielded because of deceit or enticement. That the sexual relationship continued for over a year, when it should have been clear to Santos that no ring was forthcoming, is indicative of the fact that there was no such deceit but instead mutual passion. The case of De Jesus v. Syquia (1933) involves a wealthy man and a woman who worked in his brother-in-laws shop. They began to have sex and in under a year the woman was pregnant. At first the man seemed to welcome the baby, even writing to the local priest that the boy should be given his name. When the child was born, however, he was given his mothers last name. Nevertheless, they lived as a couple for a year but their relationship soured just as the woman (De Jesus) became pregnant with the second child. Syquia (the man) jumped ship and married someone else. The Supreme Court held that De Jesus could not claim damages for breach of promise to marry because Syquias promis e was never satisfactorily proved and under Article 21 one could only recover damages when expense has been made in preparation for the wedding. Syquia was made to acknowledge the first child only, as there was no proof that the second child was truly his. *Maam Beth pointed out in class, however, that prior to DNA testing our law held that there is a presumption of paternity over children born to parents who have an exclusive relationship with one another, which was the case here. Anyway, just note it in case Maam asks if the Court ruled correctly on the paternity issue. If ever.+

Art. 2176 (CC) Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Summary of Heartbalm Statues and Deceit Actions ! What is a heartbalm act? Beginning 1935, states in the United States began to implement statutes referred to as heartbalm acts that abolished actions for breach of promise to marry. Basically a heartbalm act prevents people from suing out of hurt feelings, moral outrage, etc. The basis of the heartbalm acts are that 1) the damages awarded are often excessive and disproportionate to the injury caused, 2) because in cases where the defendants wealth or stature in society is great it makes him or her susceptible to blackmail, and 3) society has changed so that a woman (or man) whose prospective groom (or bride) cries off is no longer completely ruined [hurt and probably pissed as hell, but salvageable].

! What are deceit actions? Deceit actions are filed when there is a wilful intent to defraud (through fraudulent misrepresentation). The standard actions are 1) out-of-pocket where the Court returns the person to un-defrauded status and 2) loss-of-bargain where the Court gives the person what he or she bargained for. ! Case in point: The case of Piccininni v. Hajus (1980) is an American case involving a woman (Hajus) who refused to marry a man (Piccininni) after he transferred his property to her. Hajus invoked the heartbalm act, saying that she could not be held liable for refusing to marry Piccininni. The Court, however, held that the heartbalm act does not apply because what Piccininni filed in effect was a deceit action. Piccininnis reasoning (which was upheld by the Court) was that Hajus wilfully misled him and enticed him to transfer his property as a gift to her, conditional on their marriage. The defendant here is liable for fraud, not breach of promise to marry.

IV.

DEFINITION AND NATURE OF MARRIAGE

FC. ART 1. Marriage is a special contract of permanent union between a man and a woman entered into 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 laws and not subject to stipulation, except that marriage settlements may fix the property relation during the marriage within the limits provided by this code. Contract in form but in essence is an institution of public order that is based on consent. It is a juridical act. Characteristics: 1. civil in character because recognized by state w/o religious aspects 2. institution of public policy and order that cannot be made inoperative by stipulation of parties, 3. natural in character because it is geared towards the satisfaction of mans need to perpetuate and propagate its species Principal Effects: 1. personal and economic relations between spouses, 2. legitimacy of sexual union, 3. personal and economic relation between parents and children, 4. family relationship 5. emancipation of spouses from parental authority, 6. incapacity of spouses to make donations to each other, 7. spouses cannot testify against each other, 8. modification of crim liability (ie. Defense of relative, parricide)

# of parties Gender based? Nature

Marriage 2 only! (except under Muslim laws) Man and woman Permanent, inviolable unless there is

Ordinary contract Any number No gender qualification Can be terminated

by

Breach of contract

annulment, death, found void or voided. May not be subject to stipulation or terminated Not actionable unless there is fraud or damages that can be established. Terms unspecified.

stipulations, agreement of the parties Always actionable. Term clearly specified. May give rise to action for damages.

Age of Consent

18 20 Still needs parental consent 18 and onwards 21 25 still needs parents advice Legal Capacity Should be found in parties Can be through guardianship contracting Personal status Changes! Does not change! In both marriage and ordinary contracts, partys consent is necessary.

ART XV. SEC 1. The state recognizes the Filipino Family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Assumption that marriage makes a STABLE family = STABLE SOCIETY Loving v. Virginia, 388 US 1, 12 (1967) KEYWORDS: Interracial marriage allowed in other states but not in the state of their domicile FACTS -Husband Richard Loving, a Caucasian, and wife Mildred Loving, of African and Native American descent were sentenced to 1 yr. in prison for violating Virginias ban on interracial marriages -They were married in the District of Columbia but returned to Virginia after their marriage -The judge suspended the sentence of a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. ISSUE WON the statute is unconstitutional for violation of both the equal protection and due process clauses of the 14th Amendment. HELD Yes. These statutes cannot stand consistently with the Fourteenth Amendment. The freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State, as it is recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. The SC of the US reversed the sentence and held that Virginias statutory ban on interracial marriages violated both the equal protection and the due process clauses of the Fourteenth Amendment

RATIO: -Stewart, J.: a state law making the criminality of the act depend upon the race of the actor is invalid/unconstitutional - The Supreme Court has consistently denied the constitutionality of measures which restrict the rights of citizens on account of race; restricting the freedom to marry solely because of racial classification violates the central meaning of the equal protection clause.

-The central purpose of the 14th Amendment was to eliminate all official state sources of invidious racial discrimination in the States. -Distinctions between citizens solely because of their ancestry are odious to a free people whose institutions are founded upon the doctrine of equality.

Zablocki v. Redhail, 434 US 374, 384 (1978)

KEYWORDS: Law prohibiting illegitimate parents to marry, poor people cannot marry because their children might become wards of the state FACTS -Under the terms of a Wisconsin statute, any Wisconsin resident who has children not under his custody and which he is under obligation to support by court order may not marry within the State or elsewhere without first obtaining a court order granting permission to marry, unless the marriage applicant submits proof of compliance with his support obligations and, in addition, he is able to demonstrate that the children are not anymore wards of the States social welfare programs -The state interest of this statute was to protect the welfare of out of custody children and prevent incurrence of new obligation by the illegitimate parent. The parent must first prove that he can sustain his two families and should undergo counselling. -Appellee Redhail, a Wisconsin resident who was under court order to support his illegitimate child, was denied a marriage license by appellant Zablocki, the County Clerk of Milwaukee, because he had not obtained a court order granting him permission to marry -Appellee, who would not be able to satisfy the statutory prerequisite due to his inability to pay the support money from 1972-1974 brought a civil rights class suit in the US District Court for the Eastern District of Wisconsin asserting that the statute violated the Constitution. -District Court held that the statute was unconstitutional under the equal protection clause of the Fourteenth Amendment and enjoined its enforcement

ISSUE: WON statute is unconstitutional for violation of equal protection and due process clauses. HELD: Judgment Affirmed, Statute is UNCONSTITUTIONAL RATIO: - Statute violated the Fourteenth Amendments equal protection clause since: > the statutory classification interfered with the exercise of the fundamental right to marry; > and the classification nonetheless could not be justified on the basis of any of the statutes purposes, either for counseling marriage applicants as to the necessity of fulfilling prior

support obligations, protection of the welfare of out-of-custody children,or protection of the ability of marriage applicants to meet support applications >The statute intentionally and substantially interfered with the right to marry > It exceeded the bounds of permissible state regulation of marriage and invaded the sphere of liberty protected by the due process clause > The statute is over-inclusive, denying the right to marriage solely because of indigence thus cannot withstand the scrutiny of the Fourteenth Amendment equal protection clause.

A. MARRIAGE MODELS 1. TRADITIONAL MARRIAGE


1. 2. 3. Terms of a Traditional Marriage Contract Husband as the head of the family: name and domicile Husband is responsible for support Wife responsible for domestic and childcare services Graham v. Graham, 33 F. Supp. 936 (1940)

KEYWORDS: Husband and wife traveling together, wife is the one providing support. Invalidity of contracts between spouses. FACTS: -On Sept. 17, 1932, Sidney and Margrethe Graham, husband and wife, allegedly entered into an agreement adjusting financial matters between the parties. Margrethe agreed to pay to Sidney the sum of $300 per month every month until the parties no longer desire such arrangement to continue. Sidney and Margrethe were divorced on July 11, 1933. Sidney filed a suit against Margrethe in order to claim the remaining amount due him per contract. -Sidney alleges that per Margrethes solicitation he quit his job in order to accompany the latter in her travels and that Margrethe entered into this agreement to stop Sidney from returning to work. -Margrethe alleges that she knew nothing of the aforementioned agreement and that she did not induce Sidney to give up his job. She also alleges that under the Michigan law, the contract was not within the power of a married woman & that the divorce already terminated the said contract. ISSUE/S: -Can Sidney recover the remaining amount due him per contract between husband and wife adjusting financial matters? -Alternative issue: Is this contract fixing financial matters between a husband and wife enforceable?

RATIO: -As a general rule, married women have no capacity to contract w/ the exception of those which relate to the benefit of her separate property. In this case, the court held that the contract was beyond the capacity of a married woman under Michigan law to make. -Regardless thereof, the contract between Sidney & Margrethe would still be void since it runs counter with public policy. Marriage confers a status wherein certain rights and duties incident to the relationship come into being, irrespective of the wish of the parties. A private agreement between persons married or about to be married, which attempts to change the essential obligations of the marriage contract is contrary to public policy and unenforceable. The contract in the case at bar alters the essential obligations of the marriage contract in that the husband is obliged to accompany the wife upon her travels (instead of the law of marriage that the wife shall follow husbands choice of domicile) and that the husband is released from his duty to support the wife. To enforce contracts such as this would destroy the element of flexibility needed in making adjustments to the new conditions of marital life. Bradwell v. Illinois, 93 US (16 Wall) 130

KEYWORDS: Married woman denied practice of law because she is a legal non person FACTS: -Mrs. Bradwell has met all the requirements to become admitted as a lawyer in the State of Illinois but her application was denied on account of her gender and marital status. Illinois SC said that her gender & marital status would destroy her femininity and render her incapable of performing her marriage & familial obligations. HELD: The right to practice law is not guaranteed by the Equal Rights Amendment. The SC said, the Paramount destiny and mission of women are to fulfill the noble & benign offices of wife and mother. This is the law of the Creator.

CHALLENGES TO THE TR ADITIONAL MARRIAGE MODEL


a. The Changing Status of Women Dunn v. Palermo Facts: When Palermo got married, she continued to use her maiden name. For this reason, her name was purged from the Tennesse Registration Records. Held: The maiden name may be used as there is no statute in Tennessee requiring the use of the Hs surname upon marriage. The use of Hs surname upon marriage is a tradition. The acquisition of the Hs name is only in fact, and not in law. It does not mean a total rejection of own names. The woman has a choice to adopt or not the Hs name.

- This is a case which illustrates the changing status of women. Whereas, before, the womans identity is subsumed by the marriage under that of the husband, modern advances in thought have allowed the woman to be her own person. b. By Private Contract: When Valid? When Void? In Re: Santiago Facts: Atty. Santiago prepared a contract authorizing a married couple to remarry & to renounce any action one might have against the other. Held: The contract is void. Atty. Santiago was suspended for 1 year for preparing a contract that is contrary to law, good morals, & public order as it tried to break the marriage between the couple. Marriage is an inviolable social institutional that cant be made inoperative based on a stipulation by the parties.

Selanova v. Mendoza Facts: Judge Mendoza prepared & ratified a document executed by a married couple to dissolve their conjugal partnership & to waive any action for acts of infidelity which they may commit in the future. Held: The contract is void. Marriage is a special contract. Contracts of personal separation between husband and wife and extrajudicial agreements during marriage dissolving the conjugal property are void. - Both of these cases show the importance of marriage and the enormity of the States stake in it. As such, they are not subject to private stipulation as the States interest in controlling the incidents of marriage is paramount. - FC Art. 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. Galbraith, Economics and the Public Purpose Following the Industrial revolution, women no longer needed to work as they once did in family-owned cottage industries. Women thus became the household managers, the chief menial to the household. While women in their capacity of managing the household contribute of the Gross National Product through consumerism, they were not really the decision-makers. The household was a disguise for the exercise of male authority- the male being the one who actually makes the decisions which the wife implements. The economic model of ever increasing consumption to match the unprecedented increase in products, however, is only possible through the labor of the married woman. Weitzman, Legal Regulation of Marriage: Tradition and Change

In the common law doctrine of coverture, the husband and wife had a single identity- that of the husband, the wife was a legal nonperson upon marriage. She takes her husbands name and domicile. If the underpinning assumption for this though, no longer holds true, then certain things must be reexamined. For example, if the man is no longer solely responsible for family support, as such, the mans work should not be necessarily controlling of their domicile. The archaic stereotypes of man being the provider and woman being domesticated is entirely unjust because while the wife is entitled to support for her contributions to the family, such right is really just wholly dependent on the goodwill of her husband. - Both readings describe the archaic stereotypes of the role of husband and wife in marriage and points out the problem with them.

B. REQUISITES OF MARRIAGE
FAMILY CODE 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) Requirements for legal capacity of parties: Minimum age for marriage (age of majority) No existing impediment (existing relationship, subsisting prior marriage)

Mutual Consent Consent must be real, not vitiated by mistake, duress, or fraud. It must also be conscious or intelligent, in that the understanding of the party is not affected by insanity, intoxication, drugs or hypnotism. Difference in Sex of Parties An indispensable requisite of marriage is that the contracting parties be of different sexes. It must be understood as a natural element, because of the very purpose of marriage. Procreation cannot be realized by two persons of the same sex.

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 Authority to solemnize marriage Family Code declares void from the beginning marriages 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 legal authority to do so. Marriage license A marriage which preceded the issuance of the marriage license is void; the subsequent issuance of such license cannot render the marriage valid.

Ceremony of marriage The law does not prescribe or require any particular ceremony, whether in civil or a religious marriage, but the parties are required to appear before the solemnizing officer and declare, in the presence of at least 2 witnesses of legal age, that they take each other as husband and wife.

CODE OF MUSLIM PERSONAL LAWS Art. 16. Capacity to contract marriage. (1) Any Muslim male at least fifteen years of age and any Muslim female of the age of puberty or upwards and not suffering from any impediment under the provisions of this Code may contract marriage. A female is presumed to have attained puberty upon reaching the age of fifteen. (2) However, the Shari'a District Court may, upon petition of a proper wali, order the solemnization of the marriage of a female who though less than fifteen but not below twelve years of age, has attained puberty. (3) Marriage through a wali by a minor below the prescribed ages shall be regarded as betrothal and may be annulled upon the petition of either party within four years after attaining the age of puberty, provided no voluntary cohabitation has taken place and the wali who contracted the marriage was other than the father or paternal grandfather..chan robles virtual law library Art. 17. Marriage ceremony. No particular form of marriage ceremony is required but the ijab and the gabul in marriage shall be declared publicly in the presence of the person solemnizing the marriage and two competent witnesses. This declaration shall be set forth in an instrument in triplicate, signed or marked by the contracting parties and said witnesses, and attested by the person solemnizing the marriage. One copy shall be given to the contracting parties and another sent to the Circuit Registrar by the solemnizing officer who shall keep the third.

Art. 18. Authority to solemnize marriage. Marriage may be solemnized: . (a) By the proper wali of the woman to be wedded; (b) Upon authority of the proper wali, by any person who is competent under Muslim law to solemnize marriage; or (c) By the judge of the Shari'a District Court of Shari'a Circuit Court or any person designated by the judge, should the proper wali refuse without justifiable reason, to authorize the solemnization.

1987 CONSTITUTION ART. II, Section 22 The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

ART. XIV, Section 17 The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies. RA 8731 (The Indigenous Peoples Rights Act of 1997)

Section 2(c): The State shall recognize, respect, and protect the rights of ICCs/IPs to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national laws and policies.

Section 29: Protection of indigenous culture, traditions and institutions---The State shall respect, recognize and protect the right of the ICCs/IPs to preserve and protect their culture, traditions and institutions. It shall consider these rights in the formulation of national plans and policies.

Section 32: Community Intellectual Rights---ICCs/ IPs have the rights to practice and revitalize their own cultural traditions and customs. The State shall preserve, protect and develop the past, present and future manifestations of their cultures as well as right to the restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informal consent or in violation of their laws, traditions and cultures.

1. ESSENTIAL REQUISITES A. LEGAL CAPACITY


Jones vs Hallahan Marjorie Jones and her female partner were not issued a license to marry each other in the state of Kentucky. They contend that the failure of the clerk to issue the marriage license deprived them of three (3) basicconstitutional rights, namely, the right to marry; theright of association; and the right to free exercise ofreligion. Appellants also contend that the refusal subjects them to cruel and unusual punishment. Held: Kentucky statutes do not specifically prohibit marriage between persons of the same sex nor do they authorize the issuance of a marriage license to such persons. There is no violation of a constitutional right, because there is no law as to the rights of same-sex couples to marry. Appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the court clerk to issue them a license, but rather by their own incapability of entering into a marriage as the term is defined. Marriage has always been considered as the union of a man and a woman. MISSING REQUISITE: Marriage license, capacity to marry Even if a marriage license was given, the marriage would be null because same-sex marriage is not a marriage.

Goodridge vs. Department of Health FACTS: Petitioners (7 same-sex couples denied marriage license) challenged the validity of the Massachusetts department of health to bar same-sex marriages by attempting to secure marriage licenses for which they were denied. Held: The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. The marriage ban is consequently unconstitutional. MISSING REQUISITE: marriage license

Silverio vs Republic Facts: Rommel Silverio filed a petition for the change of his gender and first name in his birth certificate to facilitate his marriage with his fianc. A year before, Silverio has underwent sex re-assignment surgery in Bangkok, Thailand. In his petition, he wants to change his first name from Rommel to Mely. Held: Court denied his petition to change name. 1. Names are for purposes of identification: Art 376, CC(no change of name without judicial declaration), RA9048 (Clerical Error Law), Rule 103 (change of name)and Rule 108 (Cancellation of Correction of Entries; substantial change) Grounds for Change of Name (Sec 4, RA 9048) a. Difficult and ridiculous, dishonourable name b. Habitual and continual use c. To avoid confusion\ Petitioner has not shown any reasonable cause and does not show that his name may prejudice him 4. Case is administrative rather than judiciary 5. Change of sex not allowed because civil status is immutable and inherent 6. No special law yet for sex change, until then sex is determined by the sex at the time of birth as resulted by visual inspection of medical attendant. 7. Though we get your point and sympathize with you, its not within the provi nce of the Court to amend laws. Youre barking at the wrong tree. Go to the Congress and ask them to pass a bill for you. MISSING REQUISITE: capacity to marry

2.

3.

Republic vs. Cagandahan FACTS: Jennifer Cagandahan sought to change her name to Jeff Cagandahan and her gender from female to male. Jennifer had Congenital Adrenal Hyperplasia, a rare medical condition where afflicted persons possess both male and female characteristics. Jennifer grew up with secondary male characteristics and said that in her mind, she was already male. HELD: Cagandahan was allowed to have her name and gender changed. The Court recognized that Cagandahan was already going through much because of his medical condition and the Court didnt want to add to his suffering by denying his petition. His personal recognition of himself as a male was also considered.

Difference with Silverio:

In Silverio, the Court said that sex cannot be changed by the sole will of the person. Also, Silverio wanted his name and sex changed so that he can marry, which affirmed the Courts decision that he shouldnt be allowed. The Court has very conservative views about the role of marriage as an inviolable institution. In Cagandahan, she became male by nature, because of her medical condition. She did not change her sex by surgical means like Silverio did. Also, Cagandahans purpose for changing her name and sex is for her to be able to lead a normal life which the Court found to be reasonable.

Notes: Entries in birth certificate are judicial. Sex assignment is determined at birth by the declaration of physician or midwife (visual test). Limitations of visual test: cannot determine medical conditions which have manifestations of physical irregularities

What are registered in the civil register? Acts (e.g. legitimation of a child) Events (e.g. birth)

B. CONSENT FREELY GIVEN


FAMILY CODE Article 4 The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(a). A defect in any of the essential requisites shall render the marriage voidable. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally, and administratively liable. Article 45(3) A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx

(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud freely cohabited with the other as husband and wife.

People vs. Santiago Facts: Felipe Santiago forced his deceased wifes niece to have sexual intercourse with him. After having his way with her, he married her.

Held: The marriage did not exempt Santiago from criminal liability. Marriage is void because of lack of consent. The issue here is not the girls consent, which was obtained by threat or under duress and will only renders the marriage voidable. It was Santiagos consent which is absent. He entered into marriage without the intention of entering into the actual marriage status. The marriage was a mere ruse so that he can escape criminal liability for the rape.

MISSING REQUISITE: consent

Buccat vs Mangonon de Buccat

FACTS: Godofredo married Luida with the belief that she was a virgin. 89 days after the marriage celebration, Luida gave birth. Her husband Godofredo herein appellant filed for annulment on the ground that she concealed her non-virginity.

HELD: Marriage stands as valid.There has been no misrepresentation or fraud. It was highly unlikely that Godofredo did not know her wife was already pregnant when they were married because she was already 6 months pregnant at the time (an advanced stage of pregnancy).

NO MISSING REQUISITE

Eigenmann vs. Guerra

FACTS: Eduardo Eigenmann married Maryden Guerra on 1957. Two years later, Eigenmann filed an action to annul his marriage with Guerra on the ground that he was between ages 16-20 at that time and his mother did not give her consent to the marriage. HELD: Consent may be given in any form be it written, oral or even by implication. Eigenmanns mother was present at the time of the celebration of marriage and did not object thereto, such that parental consent can be gleaned from such act. Eigenmann is also estopped from asserting that he was a minor at the time of the marriage celebration, having represented himself to be over 25 years of age. NO MISSING REQUISITE

FORMAL REQUISITES
ART. 26, FC. 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)

ART. 17, CC. 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)

A. AUTHORITY OF SOLEMNIZING OFFICER

ART. 4, FC. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)

ART. 7, FC. Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction; (2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect; (3) Any ship captain or airplane chief only in the case mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; (5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a)

As regards solemnizing officers from the religious sector Nature of requisite Absence Absence Requisites Authority of Church Register with Civil Registrar General Acts within limits of written authority One of parties is a member of the Sect Absence Renders Marriage: Void Void

Irregularity

Voidable

Irregularity

voidable

Notes: A church wedding is both a religious and civil act. Solemnizing officer is registered with the Civil Registrar General Limits of Written Authority for religious solemnizing officer: Not common knowledge e.g. Priest involved in a pending case so he cant administer marriage solemnizations.

ART. 10, FC. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a)

Solemnizing Officer allowed to officiate marriage without marriage license Ship Captain or air pilot

Requisites

Notes

In articulo mortis When ship or airship is in transit

Passengers or crew may be married

Military commander authorized to solemnize marriages

In articulo mortis Within zone of military operation

Civilians or armed forces may be married

ART. 31, FC. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a)

ART. 32, FC. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a)

ART. 35, FC. The following marriages shall be void from the beginning: (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;

ART. 3, CC. Ignorance of the law excuses no one from compliance therewith. (2)

Navarro v. Domagtoy Facts: Judge Domagtoy solemnized a marriage outside his courts jurisdiction. Held: Marriage may be solemnized by, among others, any incumbent member of the judiciary within the courts jurisdiction. Solemnization outside the judges territorial jurisdiction will not invalidate marriage. What results is an irregularity in the formal requisites of a valid marriage. The judge is still administratively liable.

Araes v. Occiano Facts: A judge solemnized a marriage outside his territorial jurisdiction and without the marriage license being presented to him. He explained that he did this out of human compassion and because the parties promised to present their license the afternoon after the wedding. Held: The marriage is void. The respondent judge was faulted for solemnizing a marriage without the requisite marriage license and for exceeding his territorial jurisdiction.

B. MARRIAGE LICENSE
FAMILY CODE 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) 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 of marriage shall be performed by said consular official. (75a) 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. 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)

ART. 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or 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 destruction or loss of the original or 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)

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 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)

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)

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)

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 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)

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)

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)

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)chan robles virtual law library

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)

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)

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)

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)

ART. 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)

Marriages Exempted from License Requirement

Circumstances that exempt marriage from license requirement In articulo mortis

Requisites

Notes

Either or both parties at the point of death.

Marriage still valid even if the ailing party subsequently survives.

Residence too far from civil registrar

No means of transportation to enable parties to appear before the civil registrar.

Solemnizing officer should state in an affidavit executed before the civil registrar that the marriage was performed in articulo mortis or residence is too far from civil registrar. To be submitted within 30 days of the marriage.

Cohabitation as husband and wife for five years Muslim marriage or ethnic marriages

No legal impediments

Married according to customs, rites, and practices

ART. 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)

ART. 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)

ART. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. (72a)

ART. 30. The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. (75a) ART. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a)

ART. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a)

ART. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a)

ART. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are found no legal impediment to the marriage. (76a)

P.D. 965 (1976)

Summary: Applicants for marriage licenses need to receive instructions and information on family planning and responsible parenthood from the Office of Family Planning. This can be in the form of personal instruction and/or handbooks, pamphlets and brochures. Applicants must present to the Civil Registrar a certificate issued by the Office that they had complied with this requirement before they can claim their marriage license.

Section 1. Office of Family Planning. There is hereby created in every city and municipality an Office of Family Planning to be headed by the city or municipal health officer. He shall be assisted by the city or rural health nurse, members of the city or rural health unit, and such other personnel from the different agencies of the government involved in the family planning program, who shall perform family planning duties in addition to their regular duties. Private entities or individuals duly accredited by the Commission on Population engaged in family planning activities may also be impressed into the service.

Section 2. Duties of Family Planning Office. The Office of Family planning shall give instructions and information on family and responsible parenthood to applicants for marriage license and other interested persons in the form of personal instruction and/or handbook, pamphlets or brochures. Furthermore, such instructions and information shall be consistent with the policies of the Commission on Population.

Section 3. Certificate of Compliance. Applicants for marriage license shall, upon filing an application therefore, be obliged to receive instructions and information on family planning and responsible parenthood from the Family Planning Office. Such instructions and information may be in the form of personal instruction or in the form of brochures, pamphlets, or handbooks. In places where there are no health officers, any person duly accredited by the Commission on Population may give the instructions herein provided.

No marriage license shall be issued by the Local Civil Registrar unless the applicants present a certificate, issued at no cost to the applicants, by an Office of Family Planning that they had received instructions and information on family planning and responsible parenthood.

If, for any reason, the information or instructions shall not have been given within the period required by law for the issuance of a marriage license, a certification to that effect shall be given to the Civil Registrar by the Office of Family Planning and the former shall withhold the issuance of the marriage license for a period of two weeks to enable the Family Planning Office to give instructions and information and the applicants to receive the same. At the end of such period, when no instructions shall have been given, the Civil Registrar may issue the marriage license.

Section 4. Assistance of National Office. Agencies of the National Government charged with the implementation of the Family Planning program shall render assistance to family planning offices herein created.

Section 5. Penalties. Any member of the Office of Family planning who fails or refuses without just cause to give the instructions and the certificate herein provided: any local Civil Registrar who issues the marriage license without the requisite certification from the Office of Family Planning, or any person who obtains the certificate fraudulently, shall be subject to appropriate administrative or criminal charges.

Section 6. Rules and Regulation. The Commission on Population shall issue rules and regulations to implement the provisions of this Decree.

Section 7. Repeal of Prior Law. All laws and ordinances inconsistent with the provisions of this Decree are hereby repealed or modified accordingly.

Section 8. Effectivity. This Decree shall take effect immediately.

Republic v. CA Facts: Castro and Cardenas got married. Cardenas got the marriage license himself and the only document that Castro had handled was the marriage contract to which she affixed she signature. They later parted ways. Castro later found out that no marriage license under their names was in the records of the Civil Registrar. She presented a certification of due search and inability to find issued by the Registrar to the trial court when she sought a declaration of nullity of marriage from the same. Held: The marriage is void. A certificate of due search and inability to find issued by the Civil Registrar has probative value since he is an officer in charge under the law to keep the records, thus proving that no marriage license was issued.

Moreno v. Bernabe Facts: Moreno and her husband were married by Judge Bernabe despite the fact that they had no marriage license. Bernabe claimed that he acted in good faith, trusting that Moreno would return with a marriage license after the wedding. Unfortunately for the judge, the couple never did. Held: The judge is liable for grave misconduct and gross ignorance of the law. Good faith does not excuse one from compliance with the law. The marriage is void ab initio, but for purposes of remarriage in a void marriage, a judicial declaration of nullity is still required.

People v. Borromeo Facts: Borromeo killed his wife and was convicted of parricide. He claims that no marriage certificate was issued after their marriage. Borromeo now questions the validity of their marriage in order to lower his sentence to homicide. Held: Borromeo had admitted in his testimony that he and his wife were married. The court put weight on this admittance as there is no better proof of marriage than the admission of the accused of the existence of such marriage. The absence of a marriage certificate does not invalidate a marriage as long as the requirements for its validity were present during the celebration. The forwarding of the copy of the marriage certificate is not one of the requisites to a valid marriage.

Seguisabal v. Cabrera Facts: Jagonoy and her husbands marriage was solemnized by Judge Cabrera without the requisite marriage license. They reasoned that the person in charge of issuing the license was not in the office so they could not claim it. The judge married them then asked them to return with the license. This never happened. Years later Jagonoy tried to claim the marriage license but was unable to do so because she and her husband had not attended the requisite family planning seminar. Judge Cabrera issued her a marriage contract anyway in the belief that the seminar was no longer necessary since her husband was already dead. Held: Judge Cabrera is administratively liable for solemnizing the marriage without the requisite marriage license.

Alcantara v. Alcantara Facts: The spouses were married with a marriage license that was procured in Carmona where neither party has lived or even visited. Petitioner now disputes the validity of the license in order to procure an annulment. Held: Marriage is valid. When a marriage license is available it is deemed to have been legally issued unless proven by clear and convincing evidence. Irregularities in formal marriage requisites do not render a marriage invalid.

C. CEREMONY
Summary of the Section (All laws, annotations, etc. are included after) CEREMONY Rule: No particular ceremony required), but there are some requisites. Requisites of a valid ceremony 1. 2. Personal Appearance of Spouses * Oral Declaration before solemnizing officer that parties take each other as husband and wife (Case in Point: Martinez v Tan which says that declaration of parties does not have to be verbalized. No particular form of ceremony is required Presence of at least 2 witnesses of legal age Signing of marriage certificate or contract EXCEPT When one of the parties cannot sign at the point of death (articulo mortis), one witness can write the name and such will be attested by solemnizing officer (Art. 6)

3. 4.

* NON-NEGOTIABLE; if all the others are missing, they are considered mere irregularities and they do not render the marriage void

Directory Law regarding Marriage ceremony (NOT MANDATORY) 1. Should be held in open court, in the church, chapel or temple, or in the office the consul-general, consul or vice-consul, as the case may be, and not elsewhere ** EXCEPT: Articulo mortis Remote Places Both parties request in writing that solemnizing officer hold ceremony at a house designated by them in a sworn statement (Art. 8) Rule concerning application of exception of Articulo Mortis and Remote Places (Art 29) Solemnizing officer states in affidavit executed before local civil registrar that 1. 2. 3. marriage performed in either Articulo Mortis or at a Remote Place Officer took necessary steps to ascertain age and relationship of contracting parties Absence of legal impediment to marriage

MARRIAGE CERTIFICATES Contents (Art. 22) It is not an essential or formal requisite of marriage, but its the best evidence that marriage exists. o In these cases, the marriage is valid: Oral marriage Failure of a party to sign the marriage certificate Omission of the solemnizing officer to send a copy of the marriage certificate to the proper local civil registrar (Case in Point: In Madridejo de Leon, failure of solemnizing officer to send copy of marriage certificate does not affect the validity of marriage) The fact that no record of the marriage can be found, provided all the requisites for its validity is present Duty of Solemnizing officer to send Marriage Certificate (Art. 23) o o o Original shall be given to either of the contracting parties Duplicate and triplicate shall be sent not later than 15 days after the marriage to the local civil registrar of the place where the marriage was solemnized The quadruplicate shall be retained by the solemnizing officer, together with the marriage license (and in some cases, the affidavit regarding solemnization of marriage in places other than prescribed in Art. 8)

Other Notes: o even if no one receives a copy, marriage is still valid o Preparation of documents and administration of oaths by local civil registrar shall be without charge. (Art. 24) o Documents and affidavits filed in connection with apps for marriage license free from documentary stamp tax (Art. 24)

Art. 3 The formal requisites of marriage are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in cases provided for in Chapter 2 of this title;

(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 husband and wife in the presence of not less than 2 witnesses of legal age. Without a valid ceremony, there is no marriage Requirement of marriage prevents the existence of common-law marriages where a man and a woman, capacitated to enter into a relationship, agree to take each other as husband and wife, followed by cohabitation.

Art. 6. No prescribed form or religious rite for the solemnization of marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than 2 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 the said party, which fact shall be attested by the solemnizing officer. 1) 2) 3) 4) There are only four requirements: Personal Appearance of Spouses Oral declaration before solemnizing officer that parties take each other as husband and wife Presence of at least 2 witnesses of legal age Signing of marriage certificate or contract

According to Sempio-Diy, only the lack of personal appearance of spouses renders the marriage void. The other requirements will not render the marriage void even if they are totally lacking (no oral declaration, no witnesses, no marriage certificate). Failure to comply with the three other requirements are mere irregularities and they do not affect the validity of marriage *see p.10

Martinez v. Tan Facts: Martinez and Tan appeared before the Justice of the Peace and signed a statement that they agreed to get married. They signed another document, along with the justice and two witnesses, stating they appeared before the justice and ratified all the contents of the instrument. The justice pronounced them man and wife. Held: The marriage is affirmed. The declaration of the contracting parties does not have to be verbalized. The very act of signing a statement that declares that they take each other as husband and wife is sufficient. There was a proper ceremony. There is no particular form of marriage ceremony required.

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect The provision is merely directory and not mandatory; non-compliance WILL NOT invalidate the marriage

Based on premise: more people witness marriage, more people can notify solemnizing officer if they know of any impediments to said marriage Marriage could not be solemnized on a Sunday since its not an office day of the judge, but doing so wont necessarily render the marriage void. Art. 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. Sempio-Diy: If such party can reach the municipal building by boat or cart or even just by riding on an animal like a horse, carabao or cow, he/she is not exempt from a marriage license.

Art. 29 In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. Art. 22 The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: (1) (2) (3) (4) The full name, sex and age of each contracting party; Their citizenship, religion and habitual residence; The date and precise time of the celebration of the marriage; 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. The marriage certificate is not an essential or formal requisite of marriage. In these cases, the marriage is valid: o Oral marriage o Failure of a party to sign the marriage certificate o Omission of the solemnizing officer to send a copy of the marriage certificate to the proper local civil registrar o The fact that no record of the marriage can be found, provided all the requisites for its validity is present Marriage certificate is the best evidence that a marriage exists

Madridejo v. De leon Facts: Madridejo and Perez got married in articulo mortis. The priest who solemnized the marriage failed to send a copy of the marriage certificate to the municipal secretary. Held: The marriage is valid. Failure of the priest to send a copy of the marriage certificate does not affect the validity of the marriage.

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 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. Restatement of the law: 1) Original shall be given to either of the contracting parties 2) Duplicate and triplicate shall be sent not later than 15 days after the marriage to the local civil registrar of the place where the marriage was solemnized 3) The quadruplicate shall be retained by the solemnizing officer, together with the marriage license (and in some cases, the affidavit regarding solemnization of marriage in places other than prescribed in Art. 8) Even if no one receives a copy of the marriage certificate, the marriage is still valid. 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.

PRESUMPTION OF MARRIAGE
General Rule: There is prima facie presumption that a man and a woman living maritally under the same roof are legally married. The presumption of marriage is rebuttable only by cogent proof to the contrary. Every intendment of law or facts leans toward: a. b. c. d. e. f. Validity of marriage Indissolubility of marriage bonds the legitimacy of children the community of property during marriage the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression.

When there is dispute: Primary Evidence to prove marriage must be Authentic Marriage Contract [Vda. De Jacob v. CA] Requirements to submit Secondary Evidence of Marriage [Vda. De Jacob v. CA] a. Due execution of Document b. Subsequent loss of instrument Evidence to Prove Marriage [Trinidad v CA] a. testimony of a witness to the matrimony b. public & open cohabitation after wedlock c. birth/baptismal certificates of children born d. mention of being H/W in other documents.

[Vda. De Jacob v. CA] a. Photographs of wedding b. letter of the solemnizing officer c. statement of the officer that the marriage certificate was lost d. testimony of one of parties to marriage Proving that marriage does not exist a. Sufficient evidence is needed to prove marriage does not exist (In Sevilla V. Cardenas, the loss of the registry book because its with a retired officer cannot be taken as proof of non-issuance of marriage license)

Art. 220 Civil Code: In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or facts leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage, the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression. Section 3 (aa), Rule 131 of the Rules of Court: That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;

Trinidad v. CA Facts: Grandson demands a portion of a parcel of land left by his grandfather. The marriage of his parents is being contested. Witnesses presented by the respondents show that his mother was never married to his father. Grandsons witnesses say that a pastor married his parents but the marriage contract was destroyed during the Japanese time. Held: The marriage was proved by preponderance of evidence. The totality of his positive evidence prevails over the negative allegations of the respondents. Competent evidence of a marriage constitute a) testimony of a witness to the matrimony, b) public & open cohabitation after wedlock, c) birth/baptismal certificates of children born, d) mention of being H/W in other documents.

Vda de Jacob v. CA Facts: Tomasa Vda. de Jacob claims to be the surviving spouse of Dr. Alfredo E. Jacob and was appointed Special Administratrix of his estates by virtue of a reconstructed marriage contract between them. Pedro Pilapil, the doctor's alleged adopted son, claims that the marriage between Tomasa and Dr. Jacob was void since (1) no marriage license and (2) only a reconstructed marriage contract. HELD: Marriage is not void. 1st issue: contracting parties have been living together as husband and wife for more than five years before the solemnization of the marriage so that they were exempt from the marriage license requirement. 2nd issue: the primary evidence of a marriage must be an authentic copy of the marriage contract, secondary evidence proving the same is admissible provided that (1) due execution of the document and (2) subsequent loss of the original instrument are first proven. Both (1) and (2) were in fact established from the preponderance of evidence presented during the trial; photographs of the wedding, letter of the solemnizing officer, statement of the officer that the marriage certificate was lost, etc. Also, the testimony of one of the parties to the marriage has been held admissible as proof of the fact of marriage. Presumption in cases like this is always in favor of marriage. Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married.

Sevilla v Cardenas

FACTS: Sevilla asks for a declaration of nullity of his marriage to Cardenas on the ground that the marriage was solemnized without the parties' first securing a marriage license. The representative who appeared in court claimed that they could not find the registry book supposedly containing the relevant information to this case because the person in charge has already retired. HELD: Loss of the registry book cannot be taken as proof of the non-issuance of a marriage license. No due search was conducted (therefore no certificate of due search to prove that no marriage license exists) since the letter said that full attention was not given because of loaded work. The presumption of the law is in favor of the validity of the marriage so that in the absence of sufficient evidence against it, the marriage subsists.

V.

VOID AND VOIDABLE MARRIAGES

A. VOID MARRIAGES 1. GROUNDS A. TRADITIONAL GROUND S I.E. NOT PSYCH. INCAPACITY


Family Code: 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 render the marriage voidable as provided in Article 45. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.

Art. 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without a license, except those covered by the preceding Chapter; (4) Those bigamous or polygamous marriages not falling under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and (6) Those subsequent marriages that are void under Article 53. BORJA-MANZANO V. SANCHEZ Facts: Borja-Manzano (P) was married to David Monzano (H) with whom she has had children. H married another woman, with whom hes been living with for more than 7 years, before the Judge Roque Sanchez (R). R solemnized the marriage even though there was no marriage license and the marriage contract stated that the parties were merely separated. Issue: WON the marriage R solemnized is valid Held: No, it is not. Ratio: Art. 34 of the Family Code requires that both parties should be without any legal impediment. Since both were still married and merely separated from their respective spouses, they are unqualified to contract marriage with another. R should have known that P and H were still legally married since nd separation does not dissolve the marriage. Hs 2 marriage is therefore void for being bigamous.

Art. 37. Marriages between the following are incestuous and void from the beginning whether the relationship between the parties be legitimate or illegitimate: (1) Between ascendant and descendants of any degree; and (2) Between brothers and sisters, whether of the full- or half-blood.

Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and stepchildren; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child; (5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; (9) Between parties where one with the intention to marry the other, killed that other persons spouse or his or her own spouse.

TERRE V. TERRE Facts: Dorothy Terre first met Jordan Terre when they were 4th year high school classmates in Cadiz City High School. She was then married to Merlito Bercenilla. Jordan courted her and this continued when they moved to Manila to pursue their education. Jordan, then a freshman law student, told Dorothy that her marriage with Bercenilla was void ab initio because they are first cousins. Believing in Jordan and with the consent of her mother and exin-laws, she married Jordan on June 14, 1977. Jordan wrote single as Dorothys civil status despite latters protests. Jordan said it didnt matter because marriage was void to begin with. After their marriage, Dorothy supported Jordan because he was still studying then. They had a son, Jason, who was born on June 25, 1981. Shortly after she gave birth, Jordan disappeared. She learned that he married Vilma Malicdem. Dorothy filed charges for abandonment of minor, bigamy and grossly immoral conduct. Jordan was already a member of the Bar then. Jordan claimed that he was unaware of Dorothys first marriage and that she sent her out of the house when he confronted her about it. He contracted the second marriage, believing that his marriage to Dorothy was void ab initio because of her prior subsisting marriage.

Issue: WON a judicial declaration of nullity is needed to enter into a subsequent marriage?

Held: Yes. Jordan Terre disbarred.

Ratio: 1) Jordan failed to rebut evidence presented by Dorothy.

2) As a law student, he should have known that even if Dorothys first marriage was void ab initio, she still needed a judicial declaration before she can contract another marriage. (GOMEZ V. LIPANA; FC ART. 40) 3) Jordan has displayed a deeply flawed moral character. Dorothy supported him, he got her pregnant then he abandoned her. He made a mockery of the institution of marriage; thus, not worthy to be a member of the Bar.

Art 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by Rep. Act No. 8533 approved on February 23, 1998).

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgement declaring such previous marriage void.

PEOPLE V. MENDOZA Facts: Arturo Mendoza and Jovita de Asis were married on Aug. 5, 1936 in Marikina. While the marriage was still subsisting, Mendoza got married to Olga Lema in Manila on May 14, 1941. de Asis died on Feb. 2, 1943. Then, Mendoza contracted another marriage with Carmencita Panlilio in Calamba, Laguna on Aug. 19, 1949. He was sued and convicted of bigamy for the second marriage.

Issue: WON Mendoza is liable for bigamy?

Held: No. Defendant ACQUITTED.

Ratio: 1) Sec. 29, Marriage Law Act 3613: Any marriage subsequently contracted by any person during the lifetime of the first spouse shall be illegal and void unless first marriage has been annulled, dissolved or first spouse has been absent for 7 consecutive years without news if he/she is still alive. Judicial declaration of nullity is only necessary for third case. THUS, HIS MARRIAGE WITH LEMA IS NULL AND VOID WITHOUT NEED FOR JUDICIAL DECLARATION. 2) Third marriage was contracted after the death of the first spouse, thus not bigamous.

WIEGEL V. SEMPIO-DIY Facts: Karl Wiegel asked for the declaration of Nullity of his marriage to petitioner, Lilia Wiegel (celebrated on 1978) on the ground of Lilias previous marriage to Eduardo Maxion (celebrated 1972). While admitting existence of marriage to Eduardo, claimed that said marriage was null and void, since the couple was allegedly forced to enter such union. Lilia asked the court for the opportunity to present evidence that the first marriage was vitiated by force and that at the time of their marriage, Eduardo was married to someone else. Respondent judge ruled against presentation of evidence. Issue: Is Lilias first marriage void? Held: No. only voidable. Petition DISMISSED. Ratio: No need to prove that first marriage was vitiated by force. Assumed to be so, marriage will only be voidable, thus considered valid until annulled. Since no annulment has been made, petitioner is considered still married to Eduardo, her marriage with Karl is then void.

Art. 41. A marriage contracted by any person during the 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 had 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 spouses 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. TOLENTINO V. PARAS Facts: Amado Tolentino had contracted a second marriage with private respondent, Maria Clemente while his marriage with petitioner, Serafia Tolentino, was still subsisting. Petitioner charged Amado with bigamy; he pleaded guilty and suffered the penalty. Upon serving his prison sentence, he continued to live with Maria until his death. His death certificate indicated Maria Clemente as his surviving spouse. Petitioner claims she is the rightful surviving spouse and petitions for correction of the death certificate. LC dismissed case for lack of publication. Issue: Is petitioner the rightful surviving spouse of deceased? Held: Yes. Petition GRANTED. Ratio: 1) Publication isnt necessary since no other parties are involved. Court was called on to order publication but it did not. 2) Considering that Amado was convicted for bigamy upon his own plea furnishes necessary proof of the marital status of petitioner and deceased. The second marriage is void ab initio. No judicial decree is necessary to establish validity of a void marriage.

3) Entries in birth and death certificated are presumed to be correct unless evidence establishes their inaccuracy. ATIENZA V. BRILLANTES Facts: Judge Brillantes has been with Ongkiko, unmarried but with whom he sired 5 children, for 19 years prior to the case. Judge Brilliantes was married to Atienza. He was found to be living with and has married De Castro (w/o marriage license). Issue: WON marriage to De Castro is valid even though respondent has cohabited and sired 5 children with Ongkiko. Held: No, it is not valid. Ratio: Brillantes marriage to Ongkiko, although without license, needs to be declared null before a subsequent marriage can be validly contracted. That provision of the Family Code retroacts to marriages contracted before the code was passed, as long as vested rights are not impaired.

Civil Code: Presumption of Death Art. 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) APIAG V. CANTERO Facts: Judge Cantero (H) and Apiag (W) were married after living together as husband and wife. H left the st conjugal home and has not communicated with W for many years. Believing that his 1 marriage was void, H married another woman, with whom he begot 2 children. Issue: WON Hs marriage with W is void Held: Yes, it is void. Ratio: H contracted his 2 marriage before the enactment of the Family Code. The Civil Code, which is the st applicable law, does not require a judicial declaration of the nullity of the void marriage. Hs 1 marriage nd is void and 2 marriage is therefore valid.
nd

Art. 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 airplane which is missing, who has not been heard of for four years since the loss of the vessel or airplane;

(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)

B. ART. 36 PSYCHOLOGICAL INCAPACITY


SEMPIO-DIY DISCUSSION OF ARTICLE 36 Art. 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. PSYCHOLOGICAL INCAPACITY v VICE OF CONSENT A person may give voluntary consent to a marriage but he may not be capable of fulfilling such rights and obligations Psychological incapacity is not a question of defective consent but a question of fulfillment of a valid consent

PSYCHOLOGICAL INCAPACITY v INSANITY Mental incapacity or insanity is a vice of consent, while psychological incapacity is not a vice of consent o A person may give valid consent to a marriage, but be unable to assume an essential obligation due to a psychological incapacity

Insanity or mental incapacity: o o o o May be of varying degrees Is curable, so the marriage is capable of ratification Has lucid intervals Is a ground only for annulment of marriage in many countries

To be a ground for declaration of nullity of marriage, the psychological incapacity must already must already be present at the time of the marriage, although it might have become manifest only after the marriage A psychologically incapacitated person is not disqualified from marrying again, because his psychological incapacity would be revealed anyway when he applies again for a marriage license

INTERPRETATION OF PSYCHOLOGICAL INCAPACITY Homosexuality or lesbianism Satyriasis or nymphomania (excessive and promiscuous sex hunger) Extremely low intelligence Immaturity or the lack of an effective sense of rational judgment and responsibility (like refusal of the husband to support the family or excessive dependence on parents) Epilepsy Habitual alcoholism Criminality

OTHER INTERPRETATIONS Refusal of wife to dwell, have sex or have children with the husband When either or both parties suffer an affliction that makes common life unbearable, such as compulsive gambling, unbearable jealousy, or other psychological causes Manifestations of sociopathic anomalies like physical violence, laziness, drug dependence

GENERAL CHARACTERISTICS Gravity: subject cannot carry out the ordinary duties of marriage and family Antecedence: if the roots of the trouble can be traced to the history of the subject before marriage although its overt manifestations appear only after the wedding Incurability: if treatments required exceed the ordinary means (time or expense) of the subject

Either party can file for declaration of nullity Action for declaration of nullity does not prescribe o EO 277 prescribed ten years for marriages solemnized before the effectivity of the Family Code RA 8533 now makes all actions under this article imprescriptible

o -

Children conceived or born before the subsequent marriage are considered legitimate

The family home and all their common property shall be divided between them in equal shares The solicitor-general is not required to appear in every case of declaration of nullity or annulment of marriage. The petitioner is required only to serve a copy of the petition on the Solicitor General A registered decree of nullity is the best evidence to prove such nullity, and it shall serve as notice to third parties concerning the properties of the parties as well as the presumptive legitimes delivered to their children

GUIDELINES IN APPLYING AND INTERPRETING ARTICLE 36 1) The psychological incapacity of a spouse should be immediately determined because there is no point unreasonably delaying the resolution of the petition and prolonging the agony of the wedded couple who still have the right to a renewed blissful life 2) Where the respondent vehemently opposes the petition but does not allege that evidence was fabricated by the other party, the non-intervention of the prosecuting attorney to assure lack of collusion between the parties is not fatal to the validity of the proceedings 3) Guidelines set by Republic vs. Molina: a. Cause of psychological incapacity must be a.i. Medically identified a.ii. Alleged in the complaint a.iii. Sufficiently proven by experts a.iv. Clearly explained in the decision b. The incapacity must be medically shown to be incurable, and must be grave enough to bring about the disability to assume the essential obligations of marriage Interpretations given by the National Appellate Tribunal of the Catholic Church, while not decisive, should be given respect by our courts

c.

4) There is no requirement that the respondent should be examined by a psychologist as an essential condition for such declaration

SANTOS v BEDIA SANTOS Facts: 1986: Leouel (petitioner) and Julia (respondent) married and had a child in 1987

Couple started quarrelling. In 1988 Julia left for the US to work as a nurse. 7 months later, she called her husband and promised to return home by July 1989, but she never did Leouel went to the US for a training program and desperately tried to locate her, but was not able to Leouel filed with the RTC for a declaration of nullity of marriage, arguing that Julias failure to return home or at the very least communicate with him for more than 5 years are circumstances that clearly show her being psychologically incapacitated to enter into married life.

Issue: Is respondent Julia psychologically incapacitated? Held: NO (petition denied). The facts of the case do not meet the standards required to decree a nullity of marriage The incapacity must be grave such that the party be incapable of carrying out the ordinary duties required in marriage; rooted in the history of the party antedating the marriage although the manifestations emerge only after the marriage; must be incurable Law confines psychological incapacity to the most serious cases of personality disorders Every circumstance that may have some bearing on the incapacity must be carefully examined so that no indiscriminate nullity is peremptorily decreed

REPUBLIC v CA and MOLINA Facts: Respondent Roridel Molina married Reynaldo in 1985. After a year of marriage, Reynaldo showed signs of immaturity and irresponsibility as a husband and a father (spent most of his time with friends, squandered money, depended on his parents for aid). He was fired from his job, and Roridel became the sole breadwinner of the family Roridel decided to live with her parents, and a few weeks later Reynaldo left her and their child, abandoning them. Respondent alleges that this shows Reynaldo was psychologically incapable of complying with essential marital obligations

Issue: Does Reynaldo suffer from psychological incapacity? Held: NO (petition granted; marriage subsists and remains valid.) There is no clear showing that the psychological defect spoken of is an incapacity. It is more of a refusal in the performance of marital obligations. Mere showing of irreconcilable differences does not constitute psychological incapacity

It is not enough to prove that the parties failed to meet their responsibilities as married persons. It is essential that they must be shown to be incapable of doing so due to some psychological illness Evidence of respondent merely shows that she and her husband could not get along. There was no showing of gravity, juridical antecedence, or incurability.

CHI MING TSOI v CA Facts: Gina Lao filed for annulment against Chi Ming Tsoi on the ground of psychological incapacity Lao alleged that Tsoi is impotent and is a homosexual for refusing to have sex with her Defendant submitted himself to a physical examination where the doctor found that he was capable of getting a soft erection, and that he was not impotent

Issue: Can Chi Ming Tsoi be charged of psychological incapacity for marriage? Held: YES (judgment affirmed; petition denied; marriage is void.) The senseless and protracted refusal of one of the parties (the court did not determine whether this is the husband or wife) to fulfill an essential marital obligation is equivalent to a psychological incapacity Important to note that the Court held that the declaration of nullity of marriage may be filed by either party, even the psychologically incapacitated. The question of who refuses to have sex with the other is immaterial

CHOA v CHOA Facts: Alfonso Choa (respondent) filed for a declaration of nullity of marriage based on the psychological incapacity of Leni Choa (petitioner) Alfonso Choa presented evidence to which his wife filed a motion to dismiss due to insufficient evident to sustain the case Respondent claims that because his wife filed charges against him for perjury, false testimony, etc., that she was psychologically incapacitated Respondent called his wife immature, carefree (did not pay attention to their children), with a lack of intention to procreative sexuality

Issue: Can Leni Choa be charged of psychological incapacity to marry? Held: NO (CA decision approved; petition denied.) Evidence adduced by Alfonso merely shows that he and his wife could not get along. There was no showing of gravity, juridical antecedence, or incurability. Evidence was completely insufficient to sustain a finding of psychological incapacity. There was also a lack of medical, psychiatric or psychological examination Intendment of the law is to confine 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 incapacity must exist at the time the marriage was celebrated. The case did not show gravity or incurability of the problems in their marital union Psychological incapacity must be more than just neglect of marital obligations. A mere showing of irreconcilable differences and conflicting personalities does not constitute psychological incapacity.

Antonio vs Reyes (2006) Facts: Husband files a declaration of nullity if his marriage, claiming that his wife is psychologically incapacitated to perform her marital obligations. Said psychological incapacity is shown through the wife being a pathological liar. Husband claims that the said condition existed at the time of the marriage. Both husband and wife present doctors to support their claims The Catholic tribunal annulled the Catholic marriage of the husband and wife, which held that the wife was impaired for lack of due discretion

Issues: Whether the wife is psychologically incapacitated

Held: Yes. Current case complies with Molina guidelines

Husband has sufficiently proven the psychological capacity of the wife The root cause of respondents psychological incapacity has been medically or clinically identified, alleged in the complaint, sufficiently proven by experts, and clearly explained in the trial courts decision. Respondents psychological incapacity was established to have clearly existed at the time of and even before the celebration of marriage. The gravity of respondents psychological incapacity is sufficient to prove her disability to assume the essential obligations of marriage. Church decision regarding the marriage of the parties, while not controlling on our Civil courts, should be given great respect, given that Art 36 was taken from the Canon Law.

Dimayuga-Laurena vs CA (2008) Facts: Wife files a petition to declare the nullity of her marriage to her husband whom she claims is psychologically incapacitated to assume his marital obligations. Wife anchors her petition on her husband's irresponsibility, infidelity, and homosexual tendencies. The wife likewise alleged that the husband tried to compel her to change her religious belief. The wife presented Dr. Lourdes Lapuz to support her claim.

Issues: Whether the husband is psychologically incapacitated

Held: No. Sexual infidelity, repeated physical violence, homosexuality, physical violence or moral pressure to compel petitioner to change religious affiliation, and abandonment are grounds for legal separation but not for declaring a marriage void. The testimony of Dr. Lapuz on husband's psychological incapacity was based only on her twohour session with wife. Her testimony was characterized by the Court of Appeals as vague and ambiguous. She failed to prove psychological incapacity or identify its root cause. She failed to establish that respondent's psychological incapacity is incurable.

The totality of the evidence presented by the wife failed to show that her husband was psychologically incapacitated and that such incapacity was grave, incurable, and existing at the time of the solemnization of their marriage.

Te vs Te (2009) Facts: Edward Kenneth Ngo Te and Rowena Ong Gutierrez Yu-Te first met in a Filipino-Chinese social gathering. After a few months of courtship, they decided to elope to Cebu. This decision being agreed to by Kenneth because of Rowena's persistence. They eventually came back to Manila when their money had run out. They got married, and stayed in the house of Rowena's uncle, where Kenneth was treated like a prisoner. Kenneth eventually escaped and hid from the family of Rowena. At some point Kenneth was able to talk to Rowena and they agreed to live separate lives. After a few years of separation, Kenneth filed a declaration of nullity of their marriage on the ground of psychological incapacity of Rowena. During the trial, a psychologist found both Rowena and Kenneth as psychologically incapacitated. Kenneth suffer from dependent personality disorder, while Rowena suffer from narcissistic and antisocial personality disorder.

Issues: Whether both parties are psychologically incapacitated

Held: Yes. Not only did the court find the respondent wife to be psychologically incapacitated, but the petitioner husband was also the same. Thus the marriage is declared null and void Despite having the primary task and burden of decision-making, courts must not discount but, instead, must consider as decisive evidence the expert opinion on the psychological and mental temperaments of the parties.

Ting vs Velez-Ting (2009) Facts: Husband and wife are married for 18 years and had 6 children. Wife filed a petition for declaration of nullity under Art 36 of the Family Code, claiming that the husband suffered psychological incapacity at the time of the marriage, which only manifested thereafter. The behaviors which the wife claims to show the psychological incapacity of the husband the the following: 1.) the alcoholism of the husband, 2.) the violent nature of the husband, 3.) the compulsive gambling habit of the husband, and 4.) the failure and refusal of the husband to give regular financial support to the family The husband denies the claims of the wife.

Issues: Whether the husband suffers psychological incapacity

Held: No. Psychological incapacity is not sufficiently proven. Marriage is NOT null and void. The intendment of the law has been to confine the application of Article 36 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 psychological illness that must have afflicted a party at the inception of the marriage should be a malady so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond he or she is about to assume. In this case, the wife failed to prove that the defects of the husband existed at the time of the marriage. The defects of the husband are not proven to be incurable.

SUAZO v SUAZO Facts: Jocelyn (petitioner) and Angelito (respondent) were married in 1986. Jocelyn then took odd jobs, while Angelito refused to work and was most of the time drunk.

Jocelyn left Angelito in 1987, after which he found another woman with whom he had since lived with, and had children. Ten years after their separation, Jocelyn filed a petition for declaration of nullity of marriage, and claimed that Angelito was psychologically incapacitated because of his refusal to work and excessive drinking. She alleged that it started from the time of their marriage and that it was continuous and incurable Angelito did not answer the petition and refused to submit himself to a psychological examination A psychologist for petitioner testified that Angelito suffered from anti-social personality disorder, and that it was incurable and was long standing before the marriage. This was based only on a report given by Jocelyn

Issue: Did respondent suffer from psychological incapacity? Held: NO (CA decision affirmed, petition denied). Jocelyns evidence is insufficient t o establish Angelitos psychological incapacity to perform essential marital obligations. The psychologists testimony and psychological report was not conclusive. The psychologist only indirectly evaluated Angelitos condition. There must be a thorough an d in-depth assessment for a conclusive diagnosis of a psychological incapacity that is grave, severe and incurable. Psychological incapacity must exist at the time of the celebration of marriage. Jocelyn declared in her testimony that Angelito showed no indications of a personality disorder during the earliest stages of her relationship. Drunkenness and refusal to work by themselves do not show psychological incapacity.

2. PERIOD TO FILE ACTION OR RAISE DEFENSE


Article 39 of the Family Code and R.A. 8533 Article 39 of the Family Code signifies the lack of a prescription period for the declaration of absolute nullity of marriage. (This wasnt the original provision in the family code). R.A. 8533 was the amendment put the current provision that put this into effect on February 23, 1998. The original incarnation of the Article, through the amendment of E.O. 227, explicitly stated the exceptions that marriages CELEBRATED 1. before the effectivity of the Family Code in 1988 and the 2. ones falling under Article 36 (psychological incapacity) were not covered by the provision. These had a prescription period (the allowable time to file an action) that was to be in ten years starting after the year the Family Code took effect. (1988) Sempio Diy says: R.A 8533 was passed in order to include spouses who had a valid cause of action and yet were unable to file within the 1988-1998 period.

Tolentino says: The ten-year provision for marriages solemnized before the effectivity of the family code was in essence a retroactive law that invalidated marriages celebrated in the Civil Code. He claimed that this was a juridical mistake that contravened the Art 225 of the family code that stipulated a retroactive effect for provisions in the same code that dont impair vested rights. T he marriage had vested rights and the declaration of nullity impaired these rights, which in effect led to the provisions inconsistency with another part of the code. Moreover, the provisions earlier incarnation also implies that the marriage should have been voidable instead of being void because it invalided a marriage that was valid under the Civil code and void under the Family Code. Application: Ablaza v Republic of the Philippines (2010) Facts: In 2000, Isidro Ablaza, the petitioner, alleged that the marriage between his brother Cresenciano and Leonila had been celebrated without a marriage license, due to such license being issued only on January 9, 1950, thereby rendering the marriage void ab initio for having been solemnized without a marriage license. Question applicable to the Article: Can the marriage be declared void ab initio under the Family Code even if it was solemnized under the Old Civil Code? Court statement: The old and new Civil Codes contain no provision on who can file a petition to declare the nullity of a marriage, and when. (So in essence, there was really no prescription period for declaration of nullity of the marriage in the Old and new civil codes. Only the period from the implementation of the family code to the passage of R.A. 8533 was there a 10-year prescriptive period for marriages celebrated during the duration of the old and new civil codes.) (Another thought: the stipulation of a 10 year prescription period under E.O. 227 was useless anyway because right after its duration, Congressmen junked it.)

3. EFFECTS OF NULLITY B. VOIDABLE MARRIAGES

Valid and produces all effects unless declared annulled A marriage is considered voidable when there is a subsisting defect in one of the essential marriage requisites (legal capacity, consent freely given) or if either party is unable to completely consummate it Children are legitimate when conceived/born before decree of annulment

Can only be questioned in a direct action and only during the lifetimes of both spouses

Void Marriage 1. Nature Inexistent from beginning 2. 3. 4. Prescription Generally does not prescribe Convalidation Cannot be convalidated Effect on property No community property

Voidable Marriage Valid until annulled by competent court Prescribes Free cohabitation, prescription Absolute community, unless other system is agreed upon in marriage settlement Legitimate if conceived before decree of annulment Only attacked via direct proceeding (annulment) Cannot be impugned after death; marriage considered valid Only by party to it Decree of annulment

5.

Effect on children Illegitimate

6.

How impugned May be attacked directly or collaterally Can still be impugned after death of parties

7. 8.

Who can impugn Any one Remarriage Judicial declaration of nullity

1. GROUNDS FOR ANNULMENT

STATUTES: Art. 45, 47 (FC): Grounds have to exist at the time marriage was celebrated First ground voidable for defect in legal capacity Second to fourth grounds voidable for defect in consent Fifth and sixth grounds voidable for physical incapacity of performing essential marital obligations Why some grounds cannot be convalidated: convalidation or ratification only cures a defect in consent; in cases of grounds due to incurable physical incapacity, defect is not only due to consent, but also on physical incapability; ratification would not entirely cure all defects barring parties from a valid marriage.

Ground

Who ratifies?

How to ratify?

Who files action?

When? (Art. 47)

Notes
No parental consent needed if minor spouse had been emancipated from a previous marriage Consent must be for a specific person; cannot be a general declaration of consent Consent may be a sworn statement before 2 witnesses + authorized official Or physical appearance at civil registrar

Spouse w/o consent

Within 5 years after being 21

1. 18 years old but below 21 without parental consent

Spouse without parental consent

Freely cohabiting at 21 years old

Parent/guardian of minor

Before minor reaches 21

Sane spouse w/ no knowledge 2. was of unsound mind Insane spouse Freely cohabiting while of sound mind Insane spouse Relative etc with legal charge of insane spouse Defrauded spouse

Before death of either During lucid interval or after being cured Before death of either party Within 5 years of discovery of fraud

Not mere mental weakness; See discussion below

3. consent obtained by fraud

Defrauded spouse

Freely cohabiting w/ full knowledge of fraud

See Art. 46 below Force: serious or irresistible violence employed to get consent;

4. consent obtained by force, intimidation or undue influence

Forced spouse

Freely cohabiting when force etc disappeared or ceased

Forced spouse

Within 5 years of force etc disappearing or ceasing

Intimidation: compelled by reasonable and well-grounded fear of an imminent / grave evil upon person or property; Undue influence: reverential fear, fear of causing

disappointment or anger on part of one whom person has been conditioned to revere, respect, obey Threat to enforce just / legal claims via competent authority does not vitiate consent Lack of physical power to have sex, not sterility or ability to have children; Must be present at the time of the marriage, continuous, incurable; Potent spouse must have had no knowledge of impotency at time of marriage (implies that spouse has renounced sex); Cannot annul marriage if both spouse are impotent, because there is no aggrieved party; Impotence due to old age = not a ground Requisites: Existing at time of marriage; Serious, incurable; Unknown to other party at the time of marriage

5. continuing and incurable physical incapability of spouse to consummate marriage


Physically incapable of consummating marriage (incurable impotence) Relative Impotency: when one spouse is only incapable of having sex specifically with the other spouse Able to have sex with others

No ratification

Injured spouse

Within 5 years after the marriage

6. either has a serious and apparently incurable STD

Differences between provisions:

Insanity (Art 45.2) and Psychological Incapacity (Art 36) Insanity Defect Consent Psychological Incapacity Capability to perform essential marital obligations Void ab initio, children legitimate Either spouse

Effect Who can file

Voidable, children legitimate Sane spouse and Parent/Guardian of Insane spouse before death of either party; Insane spouse when cured or during lucid interval Insane spouse when cured or during lucid interval

Convalidation

Cannot be convalidated

STD as Fraud in Art 45.3 and STD as Physical Incapacity in Art 45.6 Article 45.3 Fraud Concealment Gravity Convalidation Necessary Does not need to be grave If after finding out all details of fraud, injured spouse freely cohabits with guilty spouse Article 45.6 STD Unnecessary Serious and incurable Cannot be convalidated

Art. 48 (FC): On behalf of the State, the prosecuting attorney or fiscal should ensure that there was no collusion between parties and to take care that evidence is not fabricated or suppressed In case of above, no judgment shall be based on stipulation of facts or confession of judgment o Taken from the article 85 of the Civil Code and from article 130 of the California civil code. o The main purpose of this article is to prevent collusion between the parties in obtaining an annulment. By granting the State with the power to intervene in cases of uncontested proceedings, aforementioned State is given the chance to emphasize that marriage is more than a mere contract. Its continuation and interruption cannot be made to depend on the parties themselves. o Although the effect of collusion was not provided for in the Family Code, a rule similar to that found in Article 221 of the Civil Code (although said article was repealed by the FC) is followed. When a decree of annulment was obtained through collusion, with no real cause for annulment, such decree must be held absolutely void for being against public policy. o Stipulation of facts: prior agreement of petitioning and responding parties as to certain facts and issues o Confession of judgment: occurs when a respondent agrees to or accepts all accusations of the petitioner

Art. 344 (RPC):

Prosecution of crimes of adultery, concubinage, seduction, abduction, rape, and acts of lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouses. The offended party cannot institute a criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crime. o Taken from the article 85 of the Civil Code and from article 130 of the California civil code. o The main purpose of this article is to prevent collusion between the parties in obtaining an annulment. By granting the State with the power to intervene in cases of uncontested proceedings, aforementioned State is given the chance to emphasize that marriage is more than a mere contract. Its continuation and interruption cannot be made to depend on the parties themselves. o Although the effect of collusion was not provided for in the Family Code, a rule similar to that found in Article 221 of the Civil Code (although said article was repealed by the FC) is followed. When a decree of annulment was obtained through collusion, with no real cause for annulment, such decree must be held absolutely void for being against public policy. o Stipulation of facts: prior agreement of petitioning and responding parties as to certain facts and issues o Confession of judgment: occurs when a respondent agrees to or accepts all accusations of the petitioner

PD 612 or Insurance Code Sec 11: Insured has right to change beneficiary in policy unless theyve expressly waived this right in said policy o According to the Family Code, despite the fact that the designation of spouses is stipulated to be irrevocable (i.e. express waive of right in said policy), the innocent spouse may still revoke the designation as beneficiary of the other spouse who acted in bad faith. o According to the rules of statutory construction, since the Family Code is the more recent and more specific law, it prevails over the provision in the Insurance Code

CASES:

Minority Can parents whose consent is lacking RATIFY? o Code Commission for the Civil Code (followed by the Family Code): NO. Otherwise, it would encourage couples to get married despite the lack of consent in the hopes that such will be obtained afterwards.

Tolentino (cited by Sempio-Dy): YES. Notwithstanding the omission of an express authorization, the parent whose consent is wanting can validate the marriage if ratification is made BEFORE the party reaches 21. This is deemed as a waiver of the parents right to ask for the annulment (Art. 47). Since the law only requires the consent, the timing of giving it (whether in advance or subsequently) is immaterial. Why is the parent granted the right to ask for annulment but not the right to ratify? It is probably because the latter has a much greater consequence than the former. The right to ratify means making the marriage perfectly valid without the need for any court action, which is required in annulment. Moreover, while the lawmakers tried to avoid the possibility of the couples disregard of the requirement of consent (as expressed by the Code Commission for the Civil Code in depriving the parent the right to ratify), they may be recognizing the parents fun damental privacy right to act according to what he/she perceives to be in the best interest of the minor just like in Moe v. Dinkins (hence granting the right to ask for annulment). Surely, the parent must really have a compelling reason for disapproving the marriage to the point of asking for annulment as compared to when his/her consent is merely not obtained.

Moe v Dinkins FACTS: Maria Moe (15) and Raoul Roe (18) together with their child Richard Roe sought the declaration of unconstitutionality (for being violative of the Due Process clause) of a New York Domestic Relations Law requiring for issuance of marriage licenses the written consent of both parents of males 16-18 y/o, and females 14-18 y/o. Marias mother refused to give her consent since doing so will deprive her of the welfare benefits from her minor child. The couple stated that they do not wish for their child born out of wedlock to grow up with the stigma of illegitimacy. Cristina Coe (whose mothers consent is lacking) and Pedro Doe filed a motion to interfere as they had a stake at the outcome of the trial. Her child however was yet to come.

HELD: The statute is constitutional. Rights may be infringed only if (a) there is a compelling State interest sought to be achieved and (b) the means to infringe the right is reasonable & the intrusion minimal. Three interests of the State as parens patriae (guardians of the country) formed the rational basis of the law: (1) protection of minors from immature decision-making, (2) prevention of unstable marriages, and (3) recognition of the importance of parental role in child-rearing. Moreover, there is no denial of right to marry, only delay until their compliance with the requirement of parental consent (e.g., reach the age of 18, receive grant of emancipation, receive mothers consent). In addition, the childs illegitimacy ceases upon subsequent marriage.

Tolentino: It is immaterial whether consent is given before or after the marriage celebration, as long as it is given while minor spouse is still within age bracket (18 x < 21); also parents can ask for annulment of marriage as long as minor spouse is still within age bracket (18 x < 21).

Insanity According to Katipunan v. Tenorio (Art. 9 of Act No. 2122), insanity is a manifestation, in language or conduct, of disease or defect of the brain, or a more or less permanently diseased or disordered condition of the mentality, functional or organic, and characterized by perversion, inhibition, or disordered function of the sensory or of the intellective faculties, or by impaired or disordered volition.

Unlike psychological incapacity (as determined by a clinical psychologist), insanity (as diagnosed by a psychiatrist) is a curable illness of varying degrees that may also give rise to lucid intervals. It does not necessarily include mere mental weakness unless there is incapacity to understand and appreciate the consequences of marriage. The effects of insanity also apply to (a) somnambulism and (b) intoxication if resulting to the lack of mental capacity to give consent, BUT not to kleptomania or similar insane delusions or impulses on other subjects. Insanity is a vice of consent in that the party is incapable of understanding the nature and consequences of the marriage, in stark contrast to psychological incapacity which is a question of the fulfillment of a valid consent (i.e., performance of marital obligations). Given the presumption of sanity and of marriage, the burden of proof lies on the party who alleges the insanity of the other at the time of marriage (not prior or subsequent thereto, as emphasized in Katipunan v. Tenorio). Since this is a civil action, the standard of proof is only preponderance of evidence. The law is protecting not the sane party who has made a bad bargain in marrying someone insane, but the insane whose consent as mentioned is vitiated. Hence, ratification is made possible only after the insane party has come to reason.

Katipunan v Tenorio FACTS: Marcos Katipunan sought the annulment of his 7-year marriage with Rita Tenorio on the ground of the latters mental incapacity at the time of their marriage without his knowledge. Howe ver, there was no convincing proof of such allegation. However, she did suffer from a mental ailment after the celebration of the marriage.

HELD: There is no ground for annulment. Insanity that occurs after the celebration of the marriage does not constitute a cause for nullity. Katipunan did not overcome the burden of proof showing Tenorios insanity at the time of marriage. Not only is there presumption of sanity but also of marriage; hence, the causes alleged in support of an action for a declaration of nullity should be established clearly, unequivocally and convincingly. Moreover, their cohabitation for at least 7 years within which she also had several lucid intervals, in effect, served as ratification.

Suntay v Cojuangco-Suntay FACTS: Emilio Suntay was suffering from schizophrenia which had been manifest prior to his marriage to Isabel in 9 July 1958. Isabel filed a criminal case against Emilio, while Emilio filed for legal separation charging her with infidelity. The trial court declared the marriage null and void but in the body of the decision, the ground used was for annulment. In the present case, Federico Suntay who is Emilios father opposed the petition filed by and Emilios daughter (also named Isabel) for the issuance of letters of administration of the estate of Emilios mother.

HELD: The marriage is voidable. Being of unsound mind is a ground for annulment and not for declaration of nullity. Thus, children born out of voidable marriages shall have the same status rights and obligations as acknowledged natural children. Isabel is therefore a legitimate grandchild and may invoke her successional right of representation in the estate of their grandmother.

Consent by Fraud

Art. 46 (FC): What constitutes fraud under Art. 45(3)? 1. Non-disclosure of a previous conviction by final judgment of a crime w/ moral turpitude Moral turpitude refers to conduct contrary to community standards of justice, honesty or good morals 2. Concealment by wife that she was pregnant by another man during time of marriage The idea is that any man would find it abhorrent to raise a child which isnt his by blood; it threatens succession rights and legitimacy 3. Concealment of any STD existing at time of marriage STD doesnt have to be serious or incurable, only that it was co ncealed from the other spouse 4. Concealment of drug addiction, habitual alcoholism, homosexuality and lesbianism existing at time of marriage No other misrepresentation of character, health, rank, fortune or chastity is fraudulent for the purpose of annulment Using a fake name or lying about ones occupation or income doesnt give ground for annulment due to consent by fraud; neither does non-disclosure of ones sexual or romantic past or non-STD illnesses

Buccat v Buccat FACTS: W gave birth 89 days after marriage and H filed for annulment based on her concealment of her pregnancy/non-virginity.

HELD: Annulment not granted since it wasnt believable that W could have concealed her pregnancy, since she was already at the last trimester and H was supposed to have noticed her physical condition.

Aquino v Delizo FACTS: H filed for annulment on the ground that W concealed that she was 4 months pregnant with (allegedly) his brothers child at the time of their marriage.

HELD: Concealment of pregnancy was a recognized form of fraud that could give ground to an annulment. W was naturally plump so H was excused from not noticing the pregnancy when they got married; also H presented enough evidence as basis of assertion that W wasnt pregnant with his child but another mans.

Anaya v Palaroan

FACTS: W wanted marriage annulled on the ground that H didnt disclose a pre -marital relationship with another woman before they got married.

HELD: This wasnt a ground for annulment since concealing a pre-marital relationship wasnt included in Art. 46. No other misrepresentation of character, health, rank, fortune or chastity is considered as ground for annulment due to consent by fraud.

Consent by Force Ruiz v Atienza FACTS: Ruiz married Atienza after Atienzas father, cousin-in-law and other relatives confronted him and convinced him to marry her, since he got her pregnant. Ruiz then filed petition for annulment of marriage, grounds that he had been forced into wedlock via threats of Atienzas father, intimidation of Atty. Villavicencio (cousin-in-law) that Ruiz may have difficulty in passing bar if he did not do so, and that they promised that he would be safe if he came with them.

HELD: Petition dismissed. Court held that none of the acts committed by Atienzas relatives constituted force, intimidation nor undue influence; that for force to be considered a ground there must be a serious and irresistible force employed to get his consent; for intimidation, there must be a reasonable and wellgrounded fear of an imminent and grave evil; and for undue influence, there must be an improper advantage of power over the will of the other which deprives the other of a reasonable freedom of choice. Court stated that Ruiz was not subjected to such force that deprived him of refusing to comply with Atienzas relatives (no use of serious and irresistible force, and there was a police present); and that the alleged intimidation committed by Atty. Villavicencio was lawful, since it was a claim to enforce a just / legal act through competent authority (cannot admit to the bar a person with lose morals).

Incapability to Physically Consummate Jimenez v Republic FACTS: Husband filed petition for annulment, ground physical incapacity of wife to have sex (impotence) since her vagina was too small to allow penetration. Wife Remedios did not participate in the hearing and refused to submit herself to a court-ordered physical exam.

HELD: Petition denied. Evidence presented by husband (in form of testimony) cannot overcome the presumption of potency. Also, the Court cannot compel Remedios to submit herself to a physical exam, since that would be infringing upon her right not to be a witness against herself.

Sarao v Guevarra FACTS: Husband Sarao filed petition for annulment of marriage, ground Impotency. Prior to petition, wife Guevara could not successfully have sex with Sarao, complaining of pains in her genitals. At the same time, Sarao had noticed oozing of some purulent matter with offensive smell from her genitals. Such had actually been symptoms / effects of a tumor in Guevara uterus and ovaries, which were removed to cure Guevara. Sarao witnessed the operation. After such organs were removed, Guevera was deemed to be able to have sex without the pain, but was rendered unable to have children. Sarao claimed that since she was not able to bear children anymore, she was physically incapable of entering into marriage.

HELD: Petition dismissed. Potency in the sense of this article in the Family Code refers to the physical ability to have sex, not to have children (sterility); and that such incapability must be present at the time of the marriage, continues after and appears to be incurable. The operation that Guevara underwent cured her of her inability to have sex.

2. MARRIAGE WHEN ONE SPOUSE IS ABSENT

STATUTES:

Art. 41 (FC) 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: 1. the prior spouse had been absent for 2 (danger of death under the circumstances in Art 391, CC) or 4 consecutive years 2. spouse present has a well-founded belief that the absent spouse was already dead. 3. Declaration of presumptive death o Art 82 of CC, absence of 7 years is required for a presumption of death. This was reduced by the FC due to the improvement in communication and transportation. o Period of absence is mandatory. It cannot be shortened on the basis of good faith of the spouse present. o No obligation to look for the missing spouse. It is the duty of the spouse who has deserted to keep the abandoned spouse posted as to his whereabouts. o Where a person has entered into 2 successive marriages, a presumption arises in favour of the nd validity of the 2 marriage. o Declaration of presumptive death only for purposes of remarrying o When do you start to compute? 1. From the start of disappearance or date of abandonment (date when last news concerning spouse was received) and not from effectivity of order (see: Jones vs. Hortiguela) 2. In case of calamity, start computing from the end of calamity

Art. 42 (FC) Automatic termination of the subsequent marriage by the recording of the affidavit of reappearance of the absent spouse, UNLESS there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. o No prescriptive period for annulling a subsequent marriage based on a presumption of death. There is automatic termination upon filing of affidavit of disappearance. No judicial declaration necessary. o Affidavit of reappearance may be recorded by returning spouse or any interested party o The termination by the affidavit does not preclude filing of an action in court. In fact, this is advisable. o When no action is taken- his mere reappearance (without affidavit or court action), even if made known to the spouses in the subsequent marriage will not terminate the marriage. o Spouse who reappeared cannot enter into another marriage. o De facto separation between the spouses of the first marriage would have the same effect as legal separation. Upon termination of the second marriage, all its effects shall terminate, and those of the first marriage shall be revived.

Art. 43. EFFECTS of the termination of the subsequent marriage (1) The children of the subsequent marriage conceived BEFORE termination shall be considered LEGITIMATE; (2) The ACP & CPG, 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.

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. BAD FAITH:

1.

2. 3.

Both spouses- void ab initio o Validity of marriage can be attacked collaterally at any time, and the effects provided on Art 44 can be applied even if the dissolution is by death of one of the spouses nd One acted in bad faith (2 spouse) i.e., he knew where the absentee spouse is- marriage is still valid until recording of affidavit of disappearance Spouse present acted in bad faith void ab initio; no different from bigamous marriage

Art. 349, RPC Prision mayor on any person who contracts a second marriage before the first had been legally dissolved or before the absent spouse had been declared presumptively dead by court judgment

CASES:

Jones v Hortiguela HELD: The marriage is valid. 7 years of consecutive absence is counted from the date of abandonment and not from the date of effectivity of courts order.

SSS v De Bailon HELD: two marriages involved here having solemnized prior to the effectivity of the FC, the applicable lawto determine its validity is the CC. before, judicial declaration was not required for purposes of remarriage. Also, voidable marriages (such as the one entered into when one spouse is absent), cannot be questioned except in a direct action for annulment. Such marriages can be assailed only during the lifetime of the parties and not after the death of either. In this case, Bailon is already dead when Alice (first wife) questioned the validity of Balilon and Jarques marriage.

Valdez v Republic HELD: Two marriages here were celebrated under the auspices of the CC. Under the CC, the presumption of death is established by law and no court declaration was needed for the presumption to arise. Since th death is presumed to have taken place by the 7 year of the absence, Sofio is presumed to be dead starting October 1982. At the time of Valdez marriage to Virgilio, there is no legal impediment to her capacity to marry. Also, under the CC, proof of well-founded belief is not required. Petitioner could not have been expected to comply with this requirement since the FC was not yet in effect at that time. The nd 2 marriage is valid. (Art 256, FC- retroactive effect of the FC insofar as it does not prejudice or impair the vested rights in acc with CC or other laws)

3. EFFECTS OF PENDING ACTION

STATUTES: Art. 49-54 (FC) ARTICLES 50-54 PROVIDE THE SAME EFFECTS OF THE SETTING ASIDE OF ALL DEFECTIVE MARRIAGES (void, voidable, or reappearance of a spouse presumed to be dead) The effects are: 1. Liquidation, partition, and distribution of the properties of the spouses a. Liquidation: Inventory and payment of their obligations b. Partition: Dividing of remaining properties c. Distribution: Delivery to the spouses and chidren 2. In determining the share of each spouse, the properties (or their value) donated in consideration of marriage by the innocent spouse (to the spouse in bad faith) shall be revoked. 3. Children conceived or born before the judgment becomes final are considered legitimate. a. Judgment to provide for custody and support. 4. Innocent spouse may revoke the designation of the spouse in bad faith as beneficiary in the innocents life insurance policy. 5. Spouse in bad faith disqualified to inherit from the innocent spouse even if it says so in the will/testament 6. The conjugal dwelling (including lot) where it is will be given to the spouse granted custody (unless otherwise agreed upon) 7. If both spouses in bad faith, all donations and testamentary provisions in favor of one another are revoked 8. #1 should be recorded in the civil registry 9. After 1 to 9 the spouses may marry again. IF NOT, subsequent marriage NULL AND VOID.

Art. 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. o Spouses are given the first opportunity to determine support and custody if they provide it in a written agreement between spouses (during the pendency of action, and the court sees that provisions are adequate) o Child over 7 years old: CHOICE OF WHICH should be given due consideration and SHOULD BE FOLLOWED (unless the parent the child chose is deemed UNFIT by the court)

Art. 50 The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129.

Art. 51 In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters.

The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n)

Art. 52 The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n)

Art. 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. o Either of the former spouses may marry again after compliance with Art. 52- recording in the civil registry and registry of property how their properties are distributed and partitioned and the delivery of what will go to their children

Art. 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.

Art. 369 (CC) Children conceived before annulment decree shall principal ly use their fathers surname

Art. 371 (CC) If wife was the guilty party, she shall resume using her maiden name; if innocent, she may choose to use her former husbands unless theres a court decree or she or her husband marry other people

CASE:

Yu v Yu FACTS: - Jan 11, 2002: Eric Jonathan Yu (husband) filed a petition before the CA for habeas corpus and prayer for sole custody of minor child (Bianca) o Husband alleged that his estranged wife Caroline Tanchay-Yu unlawfully withheld from him the custody of the child - March 3, 2002: Wife then filed a petition before the Pasig RTC for Declaration of Nullity of Marriage and Dissolution of the Absolute Community of Property o Petition included prayer for the award of sole custody of Bianca and for the fixing of schedule of visiting rights of husband subject to the final and executory judgment of the petition of habeas corpus. - March 21, 2002: CA awarded husband full custody of Bianca with full visitation rights of wife during habeas corpus case pendency - April 5, 2002: Both of them filed before the CA Joint Motion to Approve Interim Visitation Agreement - Apr 18, 2002: Wife filed before the CA Motion for the Modification of her visiting rights under Interim Visitation Agreement. o In response, husband: Opposition with Motion to Cite Respondent for Contempt of Court in light of her filing of the petition for declaration of nullity before the Pasig RTC, which he contented, constituted forum shopping. - July 5, 2002: CA ordered wife to make necessary arrangements in her petition for declaration of nullity before the Pasig RTC in so far as the custody aspect is concerned. o In response, wife filed a Motion to Admit Amended Petition before the Pasig RTC. - Dec. 2002: Wife filed before the Pasig RTC a Motion to Dismiss her petition on the ground that she started residing and conducting business at her new address at Pasay City.

March 28, 2003: Pasig RTC granted wifes Motion, dismissed petition June 12, 2003: Husband filed his own petition for Declaration of Nullity of Marriage and Dissolution of the Absolute Community of Property under the Pasig RTC. o Includes prayer for the sole custody of Bianca as subjected by the final resolution of the CA on his petition for habeas corpus July 3, 2003: CA dismissed the habeas corpus petition for having become MOOT AND ACADEMIC July 24, 2003: Wife filed before the Pasay RTC a petition for habeas corpus, she denominated as Amended Petition. o Petition includes prayer for the award of sole custody of Bianca OR pending the hearing of the petition, the issuance of an order replicating and reiterating the enforceability of the Interim Visiting Agreement. July 25, 2003: Husband filed in his petition before the Pasig RTC an Urgent motion praying for the custody of Bianca for the duration of the case Acting on latest petition of Eric (Pasay RTC): 1. Writ of Habeas Corpus 2. Hold Departure Order

HELD: -

3. Summons, drawing petitioner to file a motion to dismiss the petition Aug 12, 2003: Pasay RTC issued Order: pending the disposition of wifes petition, Bi anca should stay with Eric from Sunday afternoon to Saturday morning (with the company of the mother from Saturday 1:00pm to Sunday 1:00pm) Husband: Motion for reconsideration on the ground lack of jurisdiction Wife filed her answer with counter-petition before Pasig RTC with petition including prayer for the award of the sole custody of Bianca (subject to the final disposition of the habeas corpus case Oct 30, 2003: Pasig RTC by an Omnibus Order asserted its jurisdiction over the custody aspect of the petition filed by Eric and directed the parties to comply with the provisions of the Interim Visitation Agreement (unless there is a new agreement) Nov 27, 2003: Pasay RTC denied Erics motion to dismiss. Aug 10, 2004: Husband Petition for Certiorari, Prohibition, and Mandamus before the CA denied A court taking jurisdiction over a petition involving the declaration of nullity of marriage should also resolve the issue of the custody of common children o The ground invoked in the declaration of nullity of marriage is Carolines alleged psychological incapacity this has direct relationship with her fitness to take custody of their child Bianca Petition GRANTED. CA decision reversed and set aside. Petition before the Pasay RTC dismissed. Pasig RTC ordered to continue with its proceedings. o Identity in the cause of action in both Pasay and Pasig (same facts essential to the resolution of the identical issue raised in both actions)

4. JURISDICTION
CASE: Tamano v. Ortiz FACTS:

1958: Senator Mamintal Tamano married private respondent, Haja Putri Zorayda Tamano (private respondent) in civil rights. 1993: Senator Mamintal Tamano married Estrellita Tamano (petitioner) in civil rights 1994: May 18, Senator Mamintal Tamano dies 1994: November 23, Zorayda and her son, Adib Tamano, file a Complaint for Declaration of Nullity of Marriage of Tamano and Estrellita on the ground that it was bigamous. Tamano claimed to be divorced when in fact, he and Zorayda were not. Estrellita claimed to be single although the decision annulling her previous marriage with Romeo C. Llave never became final and executory for non-compliance with publication requirements. Such misrepresentations entered into Estrellita contended that since Tamano and Zorayda were both Muslims, jurisdiction belonged to the sharia courts and not with the RTC

ISSUE: Does jurisdiction belong to the sharia courts? HELD: NO. - Sharia courts obtain jurisdiction of marriages celebrated in accordance to Muslim rites while the RTC has jurisdiction over all marriages (both civil and Muslim). - According to The Judiciary Reorganization Act of 1980: RTCs have jurisdiction over all actions involving the contract of marriage and marital relations. Personal actions, such as the instant complaint for declaration of nullity of marriage, may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, at the election of the plaintiff. - In the present case, neither of the marriages was celebrated under Muslim rites. They were both celebrated civilly.

VI.

LEGAL SEPARATION

A. GROUNDS FOR LEGAL SEPARATION (ART. 55, FAMILY CODE)


1. Repeated physical violence/grossly abusive conduct must be directed towards petitioner, petitioners child, or common child Maam posed the question: Why does the physical violence have to be repeated in order to be a ground for legal separation? Note that the Anti-VAWC Act has essentially repealed this by giving a new definition of physical violence (any act or series of acts committed by a person against a woman)

2.

Physical violence/moral pressure to compel change of religion/political affiliation directed towards the petitioner only

3.

Attempt to corrupt/induce spouse or child to engage in prostitution, or connivance in such directed towards petitioner spouse, common child, or child of petitioner Grounds #1 and #3 are not directed towards respondents children because they are considered outside the responsibility of petitioner (and thus, he/she cant use their rights to claim that something is wrong with the marital relation)

4.

Final judgment sentencing imprisonment of more than 6 years applicable to respondent, even if he/she is pardoned

5. 6. 7.

Drug addiction/habitual alcoholism Homosexuality/lesbianism Contracting subsequent bigamous marriage 2 marriage may be contracted in the Philippines or abroad; will still fall under this ground
nd

8. 9.

Sexual infidelity/perversion Attempt against the life directed towards spouse

10. Abandonment without justifiable cause for more than 1 year Must be complete, showing no intention to support or communicate with the abandoned family at all.

Grounds for Legal Separation (Art. 97, Civil Code) 1. Adultery/Concubinage 2. Adultery wife Concubinage husband

Attempt against the life Not merely maltreatment; intent to kill must be proven

CASES People v. Zapanta and Bondoc (1951) FACTS: Husband filed for adultery against wife and brother (wifes paramour). Wife pleaded guilty and was sentenced. Husband filed another complaint for adultery against same wife and brother. Wife and brother filed motion to quash on the ground of double jeopardy. HELD: Ground #8. Every sexual act constitutes a crime of adultery (not a continuing crime). Muoz v. Del Barrio (1955)

FACTS: Husband and wife had frequent quarrels on which occasions husband would maltreat wife. Separated de facto in 1947. Wife claimed that husband maltreated her again in 1950 and 1951. HELD: Ground #1 or #9. Husbands maltreatment (fist blow on wifes face) does not amount to attempt on wifes life. No intent to kill. Note: This case was decided in 1955. The applicable law was Art. 97 of the Civil Code. Gandionco v. Pearanda (1987) FACTS: Wife filed for legal separation against husband on the ground of concubinage. Husband contends that civil action for legal separation should be suspended until concubinage is proven in criminal case. HELD: Ground #8. Civil action for legal separation on the ground of concubinage may proceed ahead of, or simultaneously with, criminal action for concubinage. Legal separation is not a civil liability arising from the criminal act. Decree may be issued upon preponderance of evidence (not necessary to have proof beyond reasonable doubt as it is not a criminal proceeding). Lapuz v. Eufemio (1972) Facts: Father of the W tried to replace her deceased daughter as petitioner in the legal separation case filed against H so he could claim property rights. The grounds used by W were abandonment and his cohabitation with another woman. H claims that their marriage is void ab initio saying that he has a subsisting marriage with the other woman. Will her death abate the action? Held: YES. Action for legal separation is purely personal and can only be filed by the innocent spouse (Art. 100 CC). Death of one party causes the death of the action itself. Property rights are mere effects of the legal separation, without the decree no claims to property can be made by the father. Dela Cruz v. Dela Cruz (1968) Facts: W filed for separation of property against H on the grounds that he had abandoned them and has mismanaged the conjugal properties. H only paid short visits to the conjugal abode due to work but still continued to support her and their family. Held: For the prayers to be granted there must be real abandonment and not mere separation. Meaning of abandonment could be determined from the context of Art. 178. There must be intent to not return to the conjugal abode and cease his marital duties and rights for there to be abandonment. Ong Eng Kiam v. Ong (2006) Facts: W was being maltreated by H and filed for legal separation using Art. 55 par.1 (Repeated Physical violence or grossly abusive conduct) as a ground. RTC and CA granted the prayer of legal separation. In this present case, H is invoking Art. 56 (4) to nullify the decree of legal separation saying that W abandoned him after a quarrel and she is barred from filing a case for legal separation under the said provision. Held: Art. 55 (10) states that the abandonment stated that it must be done without justifiable cause, but in this present case, the abusive conduct of H is enough to be considered a justifiable cause for abandonment.

B. DEFENSES IN LEGAL SEPARATION (ART. 56, FAMILY CODE)


1. Where the aggrieved party has condoned the offense or act complained of; Forgiveness or pardon of the guilty spouse by the aggrieved spouse. May be express or implied (sleeping together after full knowledge of infidelity of spouse) Comes after, not before the commission of the offense No condonation if innocent spouse has sexual intercourse with guilty spouse after full knowledge of offense if the reason for the sexual intercourse is to save the marriage and maintain harmony Each sexual intercourse of a wife with another man is a separate act of adultery. Condonation of one act doesnt mean condonation of al l other acts of adultery. It is not the duty of the husband to search for the wife, it is the duty of the wife to return home. So, not looking for the wife after the discovery of adultery is not condonation by the husband.

2.

Where the aggrieved party has consented to the commission of the offense or act complained of; Express or implied Prior to the act

3.

Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; It is the duty of the husband to protect his wife from temptation, not connive in her downfall Different from entrapment

4.

Where both parties have given ground for legal separation; The guilt may be of the same or different grounds. A person must come to court with clean hands. Both guilty, there is no offended spouse who deserves to file the action (even if pardoned by the other spouse already).

5.

Where there is collusion between the parties to obtain the decree of legal separation; or

Spouses agree to make it appear in court that one of them has committed a ground for legal separation, or to suppress evidence of a valid defense to make such actionl, for the purpose of enabling the other to obtain a decree of legal separation. The court, through the prosecuting fiscal, takes steps to prevent collusion and that evidence is not fabricated

6.

Where the action is barred by prescription Five years from the time of the occurrence of the cause

Compared to Article 100a of the Civil Code: The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

People vs. Sansano (1933) Facts: Mariano Ventura and Ursula Sansano got married and had a child. Shortly after that, Mariano disappeared to Cagayan and abandoned his family. Wife cohabited with Marcelo Ramos. Mariano returned and filed for adultery, to which both Sansano and Ramos were sentenced. After conviction, Ursula begs for forgiveness and for Mariano to take her back. The latter denied and told her to go do what she wants to do, so she returned to Ramos while he went to Hawaii. Mariano went back to file for divorce (under Act 2710)

Held: The Supreme Court said that the evidence of the case at bar (husband admitted that his sole purpose for the complaint was to obtain a divorce under Act No. 2710) as well as the conduct of Mariano Ventura is sufficient to warrant the inference that he consented to the adulterous relations existing between Ursula Sensano and Marcelo Ramos. Being so, he is not authorized by law to institute a criminal proceeding for adultery against his wife. Basis is Article 344 of the Revised Penal code, paragraphs 1 & 2: Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape, and acts of lasciviousness The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. Ocampo vs. Florenciano (1960)

Facts: Husband found out that his wife had an illicit relationship with a certain Jose Arcalas. Because of this, plaintiff sent his to Manila. While she was in Manila, husband again discovered that his wife was going out with several other me. Serafina left her husband and since then they had lived separately. Husband caught wife in the act of having illicit relations with another man by the name of Nelson Orzame. Husband then and there signified his intention to file a petition for legal separation, to whichwife agreed provided that she is not charged with adultery in a criminal action. Held: There was no confession of judgment, nor was there collusion between spouses. On confession of judgment: According to the SC, Article 101 of the New Civil Code does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiffs demand. Confession of judgment did not occur. [Even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff] [What the law prohibits is a judgment based exclusively or mainly on defendants confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it] On COLLUSION: In divorce or legal separation means the agreement between husband and wife for one of them to commit, or to 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 enabling the other to obtain a divorce. This agreement may be implied from the acts of the parties. It is a ground for denying the divorce. The SC said that in the case at bar, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor. Collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it. [And proof that the defendant desires the divorce and makes no defense, is not by itself collusion]

Sargent v. Sargent (1920) Facts: Mr. Sargent filed charges against defendant, Mrs. Sargent, with having committed adultery with Charles Simmons, their negro chauffeur.

Held: Husband connived with employees to set-up wifes adultery. Yes. On the third act, the petitioner was already informed by Charlotte of the supposedly relations between Simmons and his wife. Instead of sending Simmons away or protecting his wife, he staged a situation where his wife could commit adultery. Mr. Sargent absented himself from home, kept Simmons in his home where Simmons and his wife would have a lot of opportunities to be together.

Brown v. Yambao (1957) Facts: H discovered that his W got impregnated by another man. They started living separately and executed a document liquidating their conjugal partnership. H filed an action to confirm this document and for other remedies from Ws actions. TC, upon cross examination through the asst. Fiscal, discovered that H has also cohabited with another woman and had children with her. Held: SC affirmed the decision of the TC which held that H is barred under art. 100 CC and that the action for legal separation has already prescribed (H filed the action 10 years after being cognizant of the cause) under Art. 102. Willan v. Willan (1960) Facts: W frequently assaults H, immensely jealous of his relations with other women and habitually used offensive language on him. He also alleged that W would frequently demand sexual intercourse and would hurt him in order for W to get some action when he refuses. On the last night, she again forced him to have sex with her. Held: submission of W to have sex with H cannot be considered an act of cruelty against the husband. Intercourse is conclusive proof of condonation of the offense being complained of, that the fact that they had sex means that the violence used by W to have her way was condoned by him. Sexual intercourse was voluntary on his part. Bugayong v. Ginez (1956) Facts: H reported back to the US and left W with his sister. W left the sisters dwelling and moved to Pangasinan with her mother. H received information of the alleged infidelity of W and W even sent him a letter informing him that a certain person kissed her. H went to Pangasinan where they lived as H and W for 2 nights and 1 day. H confronted W if indeed she committed adultery, W instead of giving an answer, left. H filed for legal separation but was dismissed. Held: SC affirmed the decision that H condoned the act by way of having intercourse with her even after having the reason to strongly believe that she indeed committed adultery. A single voluntary act of marital intercourse is sufficient to constitute condonation. Matubis V. Praxedes (1960) Facts: H and W couldnt decide how they should live so they decided to enter into an agreement allowing them to cohabit with other people. H began cohabiting with another woman. W filed for LS on the grounds of concubinage but was dismissed by the trial court for 2 reasons: filing for action has already prescribed and she gave consent to the affair through the agreement.

Held: SC affirmed the decision saying that under Art. 102 of the civil code, the innocent spouse should file an action 1 year from the cognizance of the cause. Also the agreement they entered into could be considered express condonation and consent to the act of concubinage done by H.

C. WHEN TO FILE/TRY ACT IONS (ARTS. 57-60)


Article 57 Action for legal separation shall be filed within 5 years from the time of the knowledge of the occurrence of the cause. Person cannot sue for legal separation if the five years prescription period from the date of the first occurrence of the cause would expire without that person filing for legal separation The prescription period is given by the law due to the fact that there are causes that the offended party may not be knowledgeable of.

Article 58 An action for legal separation shall in no case be tried before six months have elapsed since the filing of the petition Parties may be able to reconcile during the six months period, passions may subside and thus forgiveness may occur.

Article 59 No legal separation may be decreed unless the court has taken steps towards the reconciliation of the spouses and is fully satisfied despite such effort, that reconciliation is highly improbable. The court has the duty to reconcile parties and avoid legal separation even though there are sufficient grounds for legal separation. The court should not exert pressure but only to persuade them and counsel them. It should still be the parties decision to reconcile

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 There must be sufficient evidence for legal separation, mere acknowledgment and confessions could not be counted as sufficient basis for the judgment, it may however be counted as circumstantial evidence

CASES Contreras vs. Macaraig (1970) Facts: Wife heard rumors about Husband having affairs with another woman on September 1962, but did not listen to it in because she did not want to drive her husband away. She was able to confirm it on December 1963. Thus she applied for legal separation. Trial court said that the one year period under the civil law which allowed for the application for legal separation has expired.

Held: Legal separation granted because the only time appellant became cognizant of the infidelity of the husband was when the husband said that he does not want to return to their conjugal home and not during the time that she first heard the rumors about said infidelity Somosa Ramos vs. Vamenta, Jr. (1972) Facts: Wife filed for motion for preliminary mandatory injunction for the return of properties she claimed be her exclusive and peripheral. Respondent judge suspended the motion for preliminary mandatory injunction stating that Article 103 of the Civil Code prohibits the hearing of an action for legal separation before the six months period from the filing of the petition lapses Held: Motion should not be ignored because even though Article 103 of the Civil code said that the court should remain passive in relation to the present case, Article 104 provides that the court should recognize the management of properties of spouses during the 6 month period.

D. EFFECTS OF FILING PETITON (ARTS. 61-62)


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 duty as those of a guardian under the rules of court Article 62 During the pendency of the action for legal separation, the provision of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children Effects of filing petition: 1) Spouses can live separately from each other or they can have separate domicile 2) Court shall give administration of conjugal or absolute property to the spouses or a third person 3) In absence of written agreement court shall provide for the support between spouses and their children considering the welfare of the latter and their choice of who they want to stay with 4) When consent is needed by law, judicial authority may be necessary unless consent is freely given. Husband should give alimony to the wife and to support the children not in the possession of the father, taken from the properties of the absolute community or conjugal properties of the couple Alimony pendente lite should be denied in the absence of valid subsisting marriage If husband fails to provide alimony he may be charged for contempt

Custody of children in cases where there is agreement between spouses, the court shall not disturb the agreement unless prejudicial to them. Without the agreement the court shall order it based on the discretion of the judge taking into consideration the childrens welfare

CASES De La Vina vs. Villareal (1920) Facts: Wife files for legal separation on the ground of concubinage. Husband questions decision of respondent judge and said that the court had no jurisdiction over the case, stating that their domicile was in Negros Occidental and the trial was held in the Province of Iloilo, where the wife has established residence of her own Held: Wife may acquire residence or domicile separate from her husband, where the husband gives cause for divorce or consents. Also a wife can seek an injunction for the administration over their conjugal property to protect her interest. Reyes vs. Ines-Luciano (1979) Wife filed for legal separation on the grounds that husband tried to kill her. Husband says that wife is not entitled to support because she is having an affair with her physician Held: Wife is not barred from receiving alimony pendente lite even though husband says that she is committing adultery, because husband merely alleged the wife of adultery and does not have sufficient evidence to prove that wife is indeed committing adultery. Alimony comes from the conjugal properties and not personal properties of the husband

E. EFFECTS OF DECREE (ARTS. 63-64)

Art. 63 The decree of legal separation shall have the ff. effects: 1. 2. Entitled to live separately but marriage bond subsists; 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 Art. 43 (2) Forfeiture of offending spouse on any share of the net profits earned by the common property in favor of the common children if none. the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse

3.

The custody of the minor children shall be awarded to the innocent spouse, subject to Article 213 of this Code

Art 213 - 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. Unfit by reason of moral depravity, habitual drunkenness, incapacity or poverty If both parents are improper- to a reputable person/childrens home

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 innocent spouse shall be revoked by operation of law. In succession (transfer of property upon death) Without valid last will and testament 1. The offending spouse is disqualified from inheriting

With last will and testament 1. Provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law.

Art. 63 mandates the dissolution and liquidation of the property regime upon finality of legal separation as a necessary consequence.

Art. 64 After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens, and encumbrances registered in good faith before the recoding of the complaint for revocation 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 (5) years from the time the decree of legal separation has become final. Revocation of donations is optional for the innocent spouse. If he should die before exercising this right, the donation subsists.

Art. 213 In case of separation of 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 is unfit.

Art. 372 (Civil Code) When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation.

Cases:

Banez v Banez (2002) Facts: RTC made a decision decreeing among others legal separation, dissolution and division of their conjugal property assets, forfeiture of husbands share in favor of the children etc. Husband filed a notice of appeal in the trial court while wife filed a motion to modify decision also in the trial court. Wifes motion to modify was granted then Wife filed another motion for execution pending appeal which was again granted. Husband appealed the decision for the execution pending appeal and the CA ruled in his favor, thus the appeal of wife (Issue #1). Trial court gave husbands notice of appeal due course and elevated it to CA. Wife field motion to dismiss appeal on the grounds that husband failed to file with CA a Record of Appeal because in legal separation multiple appeals may be taken since legal separation have several effects (entitlement to live separately, dissolution of property relations, etc.) which could be adjudged, which is why the filing of record on appeal is required. (Issue #2)

Held: Court cant grant execution of portions pending appeal. Execution pending appeal is allowed only when superior circumstances demanding urgency outweigh the damages that may result from the issuance of the writ

Since legal separation is not subject to multiple appeals, then there is no need for filing of record on appeal to CA.

Multiply appeals are not allowed. The effects of the decree, such as entitlement to live separately, dissolution and liquidation of the absolute community or conjugal partnership, and custody of the minor children follow from the decree of legal separation. They are not separate or distinct matters; rather they are mere incidents of legal separation. Thus they may not be subject to multiple appeals

La Rue v La Rue (on Dissolution and Liquidation of ACP or CPG - 1983) Facts: In early years of the marriage, wife had a job however she stopped working and became a fulltime house maker upon husbands request. Later, wife sought and was granted divorce in the no-fault ground of irreconcilable difference. When divorce was granted the court did not give wife a share in the conjugal assets.

Held: Even if in a state that has no statute for equitable distributions upon divorce, wife is still entitled to equitable distribution since wife 1. 2. Contributed her earnings during the early years of marriage and Her homemaker services such as child rearing and frugal handling of expenditures, which also contributed to the economic well-being of the family unit

The case was remanded for further consideration.

Matute v Macadaeg (1956) Facts: Husband is legally separated from his wife due to adultery of wife with husbands brother. Custody of their children was granted to husband. Wife brought their children with husbands consent to manila but refused to return them saying that 3 of their children who are over 7 yrs old do not want to return to the husband.

Held: Although the children chose to live with the wife, custody could not be granted to her because she was unfit by reason of poverty since she does not have a means of livelihood

Laperal v Republic (1962) Facts: Wife obtained legal separation decree from husband and now wants to use her maiden name. She is a businesswoman and afraid that confusion as to the name will lead her finances to the dissolution of conjugal property. Lower courts treated petition as change of name under Rule 103.

Held: Art. 372 mandates that woman retains the name used prior to legal separation, because it is indicative of status and legal separation affected no change to her status. Further, if petition was that of a change in name, legal separation would not be a sufficient justifying cause for such change.

F. RECONCILIATION (ARTS. 65-67 OF FAMILY CODE)

Art. 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.

Art. 66 The reconciliation referred to in the preceding Article shall have the ff. 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 courts order containing the foregoing shall be recorded in the proper civil registries.

Art. 67 The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify 1) The properties to be contributed anew to the restored regime; 2) Those to be retained as separated properties of each spouse; and 3) The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties. The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim Reconciliation shall be recorded in the proper civil registries Upon reconciliation, if no decree has been filed, proceedings are terminated and parties are restored to original situations If reconciliation takes place after the decree, the decree is set aside and all orders will have no effect, except as to property relations. Community of property or conjugal partnership of gains is not automatically revived (as opposed to civil code, which provided for automatic revival upon reconciliation) Spouses may, upon reconciliation, avoid the regime of separation of property by executing under oath an agreement to revive their former property regime, specifying the properties to be contributed anew to the restored regime

VII.

DIVORCE

A. FOREIGN DIVORCES

Art. 15 CC Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad (9a)

2 Theories on Personal Law: Domiciliary Theory followed in US, personal laws of a person are determined by his domicile Nationality Theory makes nationality or citizenship as the basis of the laws of an individual First established at the beginning of the 19th century in the Code Napoleon French laws concerning personal status and capacity govern Frenchmen even when residing in Foreign countries Owes origin to the awareness of national identity that was born in the French Revolution and strengthened the Italian struggle for national unity

Application of Article- All questions relating to marriage and divorce or legal separation, to the conjugal partnership, to support between members of a family, and to marital authority, are governed by the laws of the Philippines when Filipinos are involved. Capacity to Contract if under the law of a state of which a party to a contract is a citizen,, he is already of age at the time he enters into a contract, he cannot set such aside on the ground of minority, even if under Philippine laws he is indeed a minor Renunciation of Allegiance governed by national law Foreign Adoption In Private International Law, the status of adoption, created by the law of a state having jurisdiction over it, will be given the same effect in another state, and vice versa, except when public policy or existing laws forbid its enforcement. Art. 26 FC All marriages solemnized outside the Philippines in accordance with the laws in force as the country where they were solemnized and valid there as such shall also be valid in this country, except those prohibited under articles (71a): 35(1) contracted by any party below 18 even with parental consent 35(4) those bigamous or polygamous marriage not falling under Art 41 presumptive death, absence for 4 years 35(5) Those contracted through mistake of one contracting party as to the identity of the other 35(6) those void under Art. 53 if requirements after annulment have not yet been complied with recording in the civil registry and registries of property (Art.52) 36 psychological incapacity 37 incestuous marriages between ascendants and descendants, and brothers and sisters

38 void marriages for reasons of public policy 9 grounds 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 likewise have the capacity to remarry under Philippine law. (n) (as amended by EO 227- Amending Executive Order 209, otherwise known as the Family Code of the Philippines dated July 17, 1987) Retains rule in Art. 71 that marriages solemnized abroad, if valid in the country where they are celebrated, are also valid in the Philippines Rule of Lex Loci celebrationis The amended provision is to avoid the absurd situation of a Filipino as being still married to his or her alien spouse, although the latter is no longer married to the Filipino spouse, as he or she already obtained a divorce abroad which is recognized by his or her national law However, the provision does not apply to a divorce obtained by a Filipino abroad from his or her Filipino spouse, which divorce is void because it is not allowed in this country, and a Filipino is governed by his national laws wherever he goes (Art. 15) Neither does this apply to divorces obtained by Filipino citizens after they have become naturalized in foreign countries. To do so would open the door to wealthy Filipinos obtaining naturalization abroad just to divorce their spouses.

VAN DORN VS. ROMILLO, JR. ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V. ROMILLO, JR. as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region, Pasay City, and RICHARD UPTON, respondents, No. L-68470 October 8, 1985 First Division Melencio-Herrera, J. Petitioner Van Dorn seeks to set aside orders in civil case issued by respondent judge which denied her motion to dismiss and motion for reconsideration of dismissal Petitioner is a citizen of the Philippines, while private respondent is a US citizen. They were married in HK in 1972, then established residence in the Phils. Had 2 children. That the parties divorced in Nevada in 1982, and petitioner remarried also in Nevada to Theodore Van Dorn. 1983 Private respondent filed suit against petitioner in RTC, saying that their business in Ermita Manila, the Galeeon Shop, is conjugal property, and that he be declared with right to manage it. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in Nevada Court wherein respondent acknowledged that they had no community property. RTC denied the motion on the ground that the property is located in the Philippines so that the divorce decree had no bearing Generally, motion to dismiss in a civil case is interlocutory and is not subject to appeal. However when grave abuse of discretion was committed, then the SC must exercise supervisory authority and correct the error. Prohibition would lie since it is useless and a waste of time, and this case would be the exception

Petitioner contends respondent is estopped with his representation in the divorce proceedings, and that the Galleon shop was not established through conjugal funds, and that claim is barred by prior judgment Community of property not necessary to determine in this case pivotal fact is the Nevada divorce, decreed by the Nevada District court on the ground of incompatibility in the understanding that there was neither community property nor community obligations. The decree is binding on private respondent as an American citizen It is true that in Art 15, only Phil nationals are covered by policy against absolute divorces. However, aliens may obtain divorces abroad, which may be recognized in the Phils, provided they are valid according to their national law. In Atherton v Atherton divorce free them from marital bond. A husband without a wife, or a wife without a husband, is unknown to the law.. Petitioner should not be discriminated against in her own country if the ends of tjustice are to be served PETITION GRANTED Teehankee (Chairman), Plana, Relova, Gutierrez Jr, Dela Fuente and Patajo JJ, concur

QUITA VS. DANDAN (COURT OF APPEALS) FE D. QUITA, petitioner, vs. COURT OF APPEALS and BELANDINA DANDAN, respondents GR No. 124862 December 22, 1998 Second Division Bellosillo, J. Fe Quita and Arturo Padlan, both Filipinos, got married on May 18, 1941 Fe sued Arturo for divorce in San Francisco, California USA, submitted divorce proceeding in 1950, evidencing their agreement to live separately and settlement of conjugal properties. On 1954, she obtained a final judgment of divorce. Fe got married again and divorced, then got married for the 3rd time. Arturo died on April 1972 and left no will. Lino Javier Inciong filed with RTC for administration of estate, in favor of Phil. Trust Company. Respondent Blandina Dandan (also referred to as Blandina Padlan) claiming to be the surviving spouse of Arturo, and 6 children who claims to be his surviving children opposed the petition. She submitted a copy of the final judgment of divorce bet petitioner and Arturo. Later, Ruperto Padlan, claiming to be the sole surviving brother intervened. 1987 petitioner moved for the immediate declaration of heirs. Court required Dandan ato submit records of birth of the Padlan children. The prescribed period lapsed without the required docs being submitted. Nov 1987 only petitioner and Ruperto Padlan were declared intestate heirs of Arturo Motions for Reconsideration- Blandina was allowed to present proofs. On Feb 1988, partial reconsideration was granted, declaring the Padlan children (except Alexis illegitimate) entitled to of the estate to the exclusion of Ruperto, and other half to the petitioner. Blandina was not declared an heir because according to the records of birth of the children, she and Arturo got married on 1947 during the existence of his marriage to the petitioner void Blandina appealed to CA cited Sec 1 Rule 90 of the Rules of Court if there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided in ordinary cases. CA found the ground sufficient, thus

declared past decisions null and void, and directed the remand of the case to the trial court for further proceeding. Petitioner insists that there is no need because there is no legal or factual issue 6 children there are prods that they have been duly acknowledged by Arturo and even petitioner herself. But controversy remains as to who is the legitimate surviving spouse of Arturo Court emphasizes that the question to be determined by the trial court should be limited only to the right of the petitioner to inherit from Arturo as his surviving spouse. Private respondents heirship was already resolved by the trial court. Blandina and Arturo were married in 1947 while the marriage of the petitioner and Arturo was still subsisting bigamous under Art. 80 and 83 of the civil code. No forum shopping petitioner filed in 3 trial courts duplicate copies of titles of properties belonging to Arturos estate PETITION DENIED, CA DECISION ORDERING FURTHER PROCEEDINGS AND DECLARING NULL AND VOID DECISION HOLDING PETITIONER AND RUPERTO PADLAN AS INTESTATE HEIRS IS AFFIRMED. TRIAL COURT SHOULD BE LIMITED TO THE HEREDITARY RIGHT AS OF THE PETITIONER AS THE SURVIVING SPOUSE OF ARTURO PADLAN. Puno, Mendoza, Martinez, JJ concur

LLORENTE VS. COURT OF APPEALS PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F. LLORENTE, respondents GR No. 124371 November 23, 2000 First Division Pardo, J. Deceased Lorenzo Llorente was a serviceman of the US Navy from 1927 to 1957 On Feb. 1937, he and Paula Llorente were married in Camarines Sur He went back to the US before the outbreak of war, while Paula stayed in their conjugal home On Nov. 1943, Lorenzo was admitted to US citizenship Upon liberation of the Philippines, Lorenzo was granted leave to visit his family in the Philippines. He discovered that Paula was pregnant and was living in with his brother, Ceferino Llorente 1946 they executed a written agreement: 1. Family allowance and support would be suspended 2. they would dissolve their marital union in accordance with judicial proceedings 3. they would make a separate agreement regarding property acquired during their marital life 4. Lorenzo will not prosecute Paula since she admitted her fault and agreed to separate peacefully Lorenzo returned to the US on 1951 and filed for divorce with the Superior Court of the State of California. Paula was represented by a counsel, and on Dec 1952, the divorce decree became final.

On 1958, he married Alicia Llorente in Manila, who had no knowledge of the 1 st marriage, and they lived together from 1958 to 1985, and had 3 children, Raul, Luz, and Beverly 1981 he executed a last will and testament bequeathing all his properties to Alicia and their 3 children June 11, 1985 he died Sept. 1985 Paula filed for letters of administration of the estate in her favor contending that: she was the surviving spouse, property were acquired during their marriage, and Lorenzos will disposing properties in favor of Alicia and her children encroaches on her legitime and share in the conjugal property Dec. 1985 00 Alicia filed in the testate proceeding 1987 RTC declared the divorce void and inapplicable in the Philippines, entitled her to of the conjugal properties, and 1/3 of the estate. 1/3 goes to the illegitimate children Alicia filed motion for reconsideration, which got denied, but modified earlier decision, entitling Beverly Llorente as the only illegitimate child, 1/3 of the estate and 1/3 of its free portion Alicia appealed in 1987 to the CA, and decision was affirmed with modification declaring her co-owner of properties she and Lorenzo acquired during the 25 yrs of cohabitation ISSUE: Who are entitled to inherit from the late Lorenzo Llorente? APPLICABLE LAW: The fact that Lorenzo became an American citizen long before: 1. His divorce from Paula, 2. Marriage to Alicia, 3. Execution of his will, and 4. Death is duly established True, foreign laws do not prove themselves in our jurisdiction. They must be alleged and proved. The CA and TC called to the fore the RENVOI DOCTRINE where the case was referred back to the law of the decedents domicile, in this case, Philippine Law While the Trial Court stated the law of NY was not sufficiently proven, they made the statement that Phil law applies in determining the validity of the will. First no such thing as one American law. The national law in Art 16 cannot possibly apply to general American Law. It can therefore refer to no other than the law of the state in which the decedent was a resident. Second, there is no showing that application of the renoi doctrine is called for or required by NY State Law. TC held that the will was invalid because Alice was a mere paramour, leaving her and her 2 children with nothing. CA also disregarded the will. VALIDITY OF THE FOREIGN DIVORCE: In Van Dorn vs. Romillo, Jr, the court held the principle in Art 15, only Phil Nationals are covered by the policy against absolute divorce. In the same case, the Court ruled that aliens may obtain divorce abroad, provided they are valid accdg to their national law. Citing Quita v CA, that once proven that respondent was no longer Filipino, citizen when he divorced the petitioner, petitioner will lose her

right to inherit from him. Court held that the divorce obtained by Llorente is valid as a matter of comity. VALIDITY OF THE WILL: The clear intent of Lorenzo to bequeath property to 2 nd wife and children is glaringly shown. Since he was a foreigner, not covered by our laws, we do not wish to frustrate his wishes. Congress did not intend to extend the same to the succession of foreign nationals. PETITION IS GRANTED. CA DECISION IS SET ASIDE. COURT REVERSES RTC DECISION AND RECOGNIZES A VALID DIVORCE. FURTHER, COURT REMANDS THE CASES TO THE COURT OF ORIGIN TFOR DETERMINATION OF THE INTRINSIC VALIDITY OF LORENOS WILL AND DETERMINATION OF THE PARTIES SUCCESSIONAL RIGHTS Davide Jr (CJ, Chairman), Puno, Kapunan, Ynares-Santiago JJ. Concur

GARCIA VS. RECIO GRACE GARCIA aka GRACE GARCIA-RECIO, petitioner, vs. REDERICK RECIO, respondent GR No. 138322 October 2, 2001 Third Division Panganiban, J. Rederick Recio, Filipino, was married to Editha Samson, an Australian citizen in Malabon Rizal, on March 1, 1987. They lived together as husband and wife in Australia. In 1989, a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court. 1992 he became an Australian citizen. Petitioner and respondent married in 1994 in Cabanatuan City. In the license he declared he was single and Filipino. 1998 petitioner filed for Declaration of Nullity of Marriage for bigamy, claimed that she only learned of respondents marriage to Samson only in November 1997 He contended that as far back as 1993 he revealed to petitioner his prior marriage and subsequent dissolution. Also, he contends that the previous marriage was dissolved in 1989. 1998 he was able to secure a divorce decree in Australia from the petitioner Trial Court ruling declared marriage dissolved Issues by Petitioner: 1. TC gravely erred in finding that the divorce decree obtained in Australia by the respondent terminated his marriage with Samson, thus capacitating him to contract a 2nd one; 2. Failure of respondent to present a certificate of legal capacity absence of substantial requisite; 3. Erred in the application of Art. 26 of the Family code; 4. Erred in disregarding Arts. 11, 13, 21, 35, 40, 52, and 53 of the Family Code as applicable in the case; 5. Erred in pronouncing the divorce decree obtained by the respondent in Aistralia capacitated the parties to remarry without securing recognition of judgment in the courts ISSUES: 1. Whether the divorce between respondent and Samson was proven; 2. Whether respondent was proven to be legally capacitated to marry petitioner.

First Issue: Petitioner argues that the divorce decree may be given recognition only upon proof of existence: foreign law allowing absolute divorce, and the decree itself; and marriages solemnized abroad are governed by the law of the place where they were celebrated. Basic Legal Principles: 1.) Phil Law does not provide for absolute divorce; hence our courts cannot grant it. 2.) Marriage bet 2 Filipinos cannot be dissolved even by a divorce obtained abroad. 3.) In mixed marriages, the Filipino is allowed to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him to remarry. 4.) A divorce obtained abroad by a couple who are both aliens may be recognized in the Phils, provided it is consistent with their respective national laws. Divorce as a Question of Fact: Respondent argues that the divorce decree is a public document, therefore it requires no further proof of authenticity. Court held that before a judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence. The divorce obtained is proven by the divorce decree itself best evidence. Rule 132 written doc may be proven as public record by either: official publication or a copy thereof attested. If not kept in the Phils, such copy must be: accompanied by a certificate issued by the proper consular office in the country where record is kept, and authenticated by the seal of his office. Divorce decree bet Recio and Samson appears to be authentic. Compliance to other articles (11, 13, and 52) were not necessary since respondent is no longer bound by Philippine personal laws Burden of Proving Australian Law Respondent contends that this is petitioners responsibility. She said Garcia is cognizant of the laws of Australia because she worked there for a long time. NO 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. Second Issue: Petitioner contends that her marriage with respondent was void ab initio. Respondent replies that the Australian decree was validly admitted in evidence, adequately establishing his capacity to marry under Australian law untenable. Strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. 2 Types: 1. Absolute divorce or a vinculo matrimonii, and 2. Limited Divorce A Mensa Et Thoro suspends it and leaves the bond in full force. There is no showing which one was procured by respondent. Respondent presented a decree nisi or an interlocutory decree a conditional or provisional judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow. Even if it becomes absolute, it may still be restricted remarriage limited by statute (ex. Guilty party in a ground for adultery). His decree contains a party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy bolsters Courts contention that respondents divorce may have been restricted. Significance of the Certificate of Legal Capacity: Petitioner argues that the certificate was not submitted together with the application for a marriage license. Court clarifies that the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate in Art. 21 would have been sufficient prima facie evidence of capacity to marry. No evidence shown by the petitioner that proves his legal capacity. Court cannot conclude that the respondent was legally capacitated to marry the petitioner. Neither can the court grant prayer to declare petitioners marriage null and void, after all, it may turn ou that under Australian law, he was really capacitated to marry. WHEREFORE, IN THE INTEREST OF ORDERLY PROCEDURE AND SUBSTANTIAL JUSTICE, COURT REMANDS THE CASE TO THE COUT A QUO FOR THE PURPOSE OF RECEIVING EVIDENCE WHICH CONCLUSIVELY SHOW RESPONDENTS LEGAL CAPACITY TO MARRY PETITIONER, AND FAILING IN THAT, OF

DECLARING THE PARTIES IN MARRIAGE VOID ON THE GROUND OF BIGAMY, AS ABOVE DISCUSSED. Melo (Chairman), Vitug, Sandoval-Gutierrez, JJ concur

REPUBLIC VS. ORBECIDO III REPUBLIC OF THE PHILIPPINES, petitioner, vs. CIPRIANO ORBECIDO III, respondent GR No 154380 October 5, 2005 First Division Quisumbing, J. Soliitor General assails the Decision dated May 15, 2002 of the RTC of Zamboanga del Sur and its Resolution fated July 4, 2002 denying the motion for reconsideration. The Court had declared that Orbecido is capacitated to remarry. In May 1981, Orbecido married Lady Myros Villanueva in Ozamis City. They had a son and a daughter, Kristoffer and Kimberly. 1986- his wife left for the US with their son. A few years later, she was naturalized as an American citizen. In 2000, Orbecido found out from their son that his wife had obtained a divorce decree then married a certain Stanley, and they three lived together in California. Orbecido file d a petition for authority to remarry invoking Art. 26 Par. 2 of the Family Code, which the court granted. OSG raised a pure question of law: WON the Respondent can remarry under Art. 26 of the Family Code. They contend that it is not applicable since it only applies to a valid mix marriage. Furthermore, there is no law governing respondents situation a matter of legislation and not judicial determinantion Rule 63 Declaratory Relief requisites are: there must be a judicial controversy, must be between persons with adverse interests, party seeking has a legal interest in the controversy, and that issue is ripe for juridical determination applying to the case Brief Historical Background of Art 26 Par. 2: July 6, 1987 Pres. Aquino signed EO 209 Family Code. On July 17, 1987, EO 227 was signed, amending Arts. 26, 36, and 39. 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 likewise have the capacity to remarry under Philippine law. on its face the provision does not directly apply to the case. Report in Public Hearings on the Family Code: CBCP objections to above par: 1. Rule is discriminatory against those whose spouses are Filipinos who divorce them abroad. These spouses will not be able to remarry, while the spouses of foreigners who validly divorce them abroad can; 2. Beginning of the recognition of the validity of divorce even for Filipino citizen Legislative Intent: Accdg to Judge Alicia Sempip-Diy, this is to avoid the absurd situation that the Filipino spouse remains married while he alien spouse is no married to him/her. Quita v. CA: Both were Filipino citizens when they got married. Wife became naturalized US citizen in 1954 and obtained divorce the same year. Court hinted in obiter dictum: that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law can thus remarry. Court held Par.2 to be interpreted to include cases involving at the time of the celebration of the marriage, were Filipinos, but later on, one becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be

allowed to remarry. To rule otherwise is to sanction absurdity and injustice, and contravene real purpose of the legislature. Twin elements of Art. 26: 1. There is a valid marriage celebrated bet. A Filipino and a foreigner; 2. A valid divorce is obtained by the alien spouse capacitating him or her to remarry reckoning point is NOT their citizenship at the time of the celebration of the marriage, but citizenship at the time a valid divorce decree was obtained by the alien spouse. Unable to sustain OSGs theory that proper remedy is annulment or legal separation long and tedious process, and not feasible since the marriage was valid, and would not sever the marriage tie Court notes that records are bereft of competent evidence. Orbecido must prove the naturalization of his wife and the foreign divorce decree- prove the decree and the foreign law allowing it PETITION OF THE REPUBLIC OF THE PHILIPPINES IS GRANTED. ASSAILED DECISION OF RTC IS SET ASIDE Davide (CJ, Chairman), Ynares-Santiago, Carpio, Azcuna

CORPUZ VS. STO. TOMAS GERBERT CORPUZ, petitioner, vs. DAISYLIN TIROL STO. TOMAS and THE SOLICITOR GENERAL, respondents GR No. 186571 Aug. 11, 2010 Third Division Brion, J. Corpuz was a former Filipino citizen who acquired Canadian citizenship through naturalization on November 29, 2000. On Jan. 18, 2005, Gerbert married respondent in Pasig City. Due to work and other commitments, he left for Canada soon after the wedding. He returned sometime April 2005 to surprise her wife, but shocked that she was having an affair with another man. He went back to Canada and filed a petition for divorce. Superior Court of Justice of Ontario granted his petition on Dec. 8, 2005, and the divorce decree became effective on Jan. 2006. 2 yrs after, he found another Filipina to love. Desiring to marry his fiance in the Philippines, he went to the Pasig Civil registry office and registered his Canadian divorce decree on his 1st marriage certificate. NSO informed him that the prior marriage still subsists. He filed a petition for judicial recognition of foreign divorce and/or declaration of marriage as dissolved with the RTC, but was denied. He filed the present petition for certiorari, asserting that the present is similar to the Orbecido case. He contends that benefit should also apply to the alien spouse. He considered himself as a proper party since there is a possibility that he might be prosecuted for bigamy if he marries his Filipina fiance. Courts Ruling: The alien spouse claims no right under the 2nd paragraph of Art 26 as the substantive right it establishes in favor of the Filipino spouse. FC recongnizes 2 types of defective marriages: void and voidable, where declaration of absolute nullity exists before or at the time of the marriage. Divorce on the other hand contemplates the cause of dissolution after the marriage. Recognizing the reality of divorce bet. a Filipino and an alien is in mind in enacting EO 227 amending the FC. The judicial declaration of the foreign decree of divorce would be of no significance since our laws do not recognize it as a mode of severing the marital bond. Art.17 of the Civil

Code provides that the policy against absolute divorces cannot be subverted by judgments promulgated in a foreign country. Aliens status and legal capacity is governed by his national law. The foreign divorce decree is presumptive evidence of a right that clothes the party with legal interest to petition for its recognition in this jurisdiction. Art. 26 bestows no right to aliens, but this does not dismiss Gerberts petition. It doesnt necessarily strip him of legal interest to petition for recognition of his divorce decree. The decree itself after having authentiacated and found with conformity with his national law, serves as presumptive evidence in his favor: Rule 39 ROC Sec. 48 Effects of Foreign Judgments or Final Orders: in case of a judgment of a specific thing conclusive upon the title of a thing, and judgment of final order is presumptive evidence of a right as between parties and their successors in interest by a subsequent title Our courts do not take notice of foreign judgments and laws. Justice Herrera explained that as a rule, no sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another country. Rule 132 written doc may be proven as public record by either: Official publication or a copy thereof attested. If not kept in the Phils, such copy must be: accompanied by a certificate issued by the proper consular office in the country where record is kept, and authenticated by the seal of his office. Records show that Gerbert attached with the petition a copy of the divorce decree, as well as the required certificates proving its authenticity, but failed to attach a copy of Canadian law on divorce. The Court can dismiss the petition here for insufficiency of evidence bu deem it more appropriate to remand the case to the RTC to determine whether the divorce decree is consistent with the Canadian divorce law, and given the Art 26 interests that will be served and the Filipina wife (Daisylin) obvious conformity. Remand will also allow interested parties to oppose the foreign judgment. Needless to say, every precaution must be taken as this will have the effect of res judicata, even more than the principle of comity. Considerations beyond the recognition of the foreign divorce decree: Housekeeping concern: Pasig Civil Registry already recorded the divorce decree legally improper Art. 407 of the Civil Code states that acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. A judgment of divorce is a judicial decree, which is specified in Act. No 3753 or the Law on Registry of Civil Status. But this does NOT ipso facto authorize the decrees registration. Pasig Civil Registry was aware of the requirement of Court Recognition. The recohnition that the RTC may extend to the Canadian divorce decree does not by itself authorize the cancellation of the entry in the civil registry, as stated in Art. 412 of the Civil Code. Rule 108 sets in the detailed procedure, and requires among others that the petition may be filed in the RTC where the corresponding Civil Registry is located, and all persons with interest be made parties to the proceedings. As these basic jurisdictional requirements have not been met, Court cannot consider the petition Gerbert filed with the RTC as one filed under Rule 108 of the Rules of Court. But this ruling shoulr not be construed as requiring 2 separate proceedings for the registration of a foreign divorce decree (one for recognition and another for cancellation of entry under Rule 108). Recognition may be made in Rule 108 proceeding itself as the object of the special proceeding, is precisely to establish the status or right of a party of a particular fact. And Rule 108 can serve as the appropriate adversarial proceeding WHEREFORE WE GRANT THE PETITION FOR REVIEW ON CERTIORARI, AND REVERSE THE OCTOBER 2008 DECISION OF LAOAG CITY RTC AS WELL AS ITS FEBRUARY 2009 ORDER. WE ORDER THE REMAND OF THE CASE TO THE TRIAL COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THE RULING ABOVE. LET A COPY OF THE DECISION BE FURNISHED IN THE CIVIL REGISTRAR GENERAL. NO COSTS.

Carpio-Morales (Chairperson), Bersamin, Abad, Villarama, Jr. Concur

B. MUSLIM DIVORCES

Code of Muslim Personal Laws PRESIDENTIAL DECREE NO. 1083: A DECREE TO ORDAIN AND PROMULGATE A CODE RECOGNIZING THE SYSTEM OF FILIPINO MUSLIM LAWS, CODIFYING MUSLIM PERSONAL LAWS, AND PROVIDING FOR ITS ADMINISTRATION AND FOR OTHER PURPOSES. This decree as stated in its first article, shall be known as the Code of Muslim Personal Laws. Was enacted to promote the advancement and effective participation of the National Cultural Communities, and duefully formed under the concept that the State shall consider their customs, traditions, beliefs and interests in the formulation and implementation of its policies. The Code outlines several concepts which are specific to the practice of Muslim beliefs regarding Marriage.

On Divorce; Article 46. Divorce by talaq. - Effected by the husband's single repudiation of his wife during her non-menstrual period (tuhr) within which he has totally abstained from carnal relation with her. Art. 47. Divorce by Ila. - Husband makes a vow to abstain from any carnal relations (ila) with his wife and keeps such ila for a period of not less than four months. Vow of Chastity! Art. 48. Divorce by zihar. - Husband has injuriously assimilated (zihar) his wife to any of his relatives within the prohibited degrees of marriage. Art. 49. Divorce by li'an - Husband accuses his wife in court of adultery Art. 50. Divorce by khul'. - Wife returns or renounces the dower Art. 51. Divorce by tafwid. - Like Talaq, but in this case the repurdiation is by the wife. Art. 52. Divorce by faskh.

- By various grounds; (a) Neglect or failure of the H to provide support for the family (b) Conviction of H by final judgment sentencing him to imprisonment for at least one year. (c) Failure of the H to perform marital obligations (d) Impotency of the husband; (e) Insanity or affliction of the husband (f)Unusual cruelty of the husband (g) Any other cause recognized under Muslim law for the dissolution of marriage by faskh either at the instance of the wife or the proper wali..cha

Yasin V Shari'a District Court Facts: Petitioner Yasin and her husband, was married and divorced under Muslim laws. She petitioned to resume the use of her maiden name in view of the dissolution of her marriage. Held: The court declared that Yasin's marriage, by virtue of the divorce decree, was rightfully severed thus whatever obligation she had for keeping her husband's name was disspitated.

VIII.

DE FACTO SEPARATION
Termination of Cohabitation between and Common Life of spouses. Abosulte Community of Property or Conjugal Partnership is affected by their separation, except that:

FC Article 100 Effect to Community Property (1) the spouse that leaves the conjugal home without just cause will not have the right to be supported. (2) When consent of one spouse is needed in any legal transaction, judicial authorization may be secured through a summary proceeding. (3) In the absence of sufficient community property, separate property of the parties will be used for the support of the family. With judicial authorization, one party may administer or encumber the other's property to satisfy the latter's share. FC Article 127 Effect to Regime of Conjugal Partnership. (same conditions as in FC 100) FC Article 239 Consent for aTransaction

(1) When one party of a couple who are separated in fact or an abandoned party seeks judicial authrorization for a transaction where the consent of the other is required by law, a verified peition may be filed in court alleging the foregoing facts (2) The petition shall attach the proposed deed which embodies the transaction, or describe the details of the transaction and state the reason why the required consent cannot be secured. FC Article 242 Filiing of the petition and Initial Conference - Upon filing of the petition mentioned in the previous article, the court shall notify the other spouse whose consent is required, ordering that spouse to show cause why the petition should not be granted. FC Article 246 - If the petition is not resolved at the initial conference, it shall be decided in a summary hearing. FC Article 247 Finality The judgment of the Court shall be immediately final and executory.

Perez V CA Facts: Petitioner Nerissa was a nurse who practiced abroad, while her husband was a doctor practicing in Cebu. They have a child whose custody they fought over when their relationship soured. Petitioner did not want her child to live with the Husband and her in-laws. Argued herein was the issue of whether Article 213 of the Family Code applies to De Facto Separation as well. Held: When the parents of the child are separated, Article 213 of the Family Code is the
applicable law. Given that the general rule for children under 7 years whose custody is being fought over, is to side with the mother, the court affirmed the petition.

Estrada V Escritor Facts: Respondent court interpreter, is charged with grossly immoral conduct for living with a man that was not her husband. Petitioner alleged that such an immoral act tarnishes the image of the court. Escritor defends herself by stating that she was a widow and has been before she entered the judiciary, and that the conjugal relationship she fostered with Quiapo, the man indicated in this case conforms with their religious beliefs as members of the religious sect known as Jehova's Witnesses.It was validated by the proper filing of the Declaration of Pledging Faithfulness by respondent in accordance with the tenets of their religion. However it was brought up that Escritor's husband was still alive when the filed the said declaration and that Quiapo was still married, though separted in fact, to another woman.

Held: Though the court finds that the freedom of religion is a right duly given to all citizens, such cannot be used as a basis to violate the law, in this case marriage law. The court says that the compelling state interest cannot be overrided by merely the religious freedom clause. Escritor still committed adultery. As such the case was remanded, and the Solicitor General ordered to intervene.

IX.

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

EQUAL RIGHTS AMENDMENT: A CONSTITUTIONAL BASIS FOR EQUAL RIGHTS FOR WOMEN Brown, Emerson, Falk, Freedman, 1971 Common Law woman who gets married became a legal non person a femme couerte virtually losing all legal status as a human being and regarded by the law almost entirely in terms of her relationship with her husband Law in the 19 and early 20 century treats women as mental incompetents and as more mature persons than men of the same age; as valuable as domestic servants of their husbands and as economic incompetents; as needing protection from their husbands economic selfishn ess and as needing no protection from their husbands physical abusiveness
th th

Differential Impact of Domestic Relations According to Economic Class:

I.

Laws Affecting the Act of Marriage Include in most states a valid license, a waiting period before the issuance of the license, a medical certificate, proof of age, parental consent for parties below age of consent, and ceremony of solemnization Age requirements and parental consent involve widespread discrimination, only 10 states set the same minimum age for men and women, and 18 for parental consent, with 1-3 yrs difference, higher for men 2 rationales: 1. Mentally and emotionally, women mature earlier than men, estimates of emotional preparedness are based on averaging the Equal Rights amendments forbid; 2. Men should not be distracted during adolescence from education and other preparation for earning a living untenable, should also be same for women

II.

Merger of the Womans Legal Identity into Her Husbands a. Name Change long standing American custom, entrenched in statutory case law In some states women must not only take husbands name but keep it, or else she will encounter resistance from Internal Revenue service, voting registrars, vehicle depts., etc ERA not permit a legal requirement or presumption th at a woman takes her husbands name at the time of the marriage. If she wished to retain her name, the court has to permit her to do so if it would permit a man in a similar situation to keep the name of the man before marriage or change to a new name

Govt interest identification can conform to ERA by requiring the couples to pick the rd same last name, buyt allowing selection of the name of either spouse, or a 3 name satisfactory to both

b. -

Domicile location affects broad range of legal rights and duties taxes, voting, education Common law wife had the duty to follow, only 3 states permit a woman to have a separate domicile ERA implies giving married women the same independent right to choice of domicile as married men now have, also with respect to the children the most reasonable would be where the child actually lives most of the time

III.

Rights of the Husbands and Wives Inter Se a. Right to consortium - in common law man has the right to recover for damages for los of his wifes services when she was injured by intentional or negligent action, his rights of consortium includes love, affection, companionship, society, and sexual relations. A woman in contrast had no right ERA would require both have equal rights, and prohibit sex based definition of conjugal function

b. Allocation of the Duty of Family Support Between Husband and Wife In all states, husbands are primarily liable for support Criminal non support most heavily banded technique for enforcing the husbands current duty of support ERA criminal non support would still be valid if it applies to both husband and wife, but since labor markets discriminate against the women, legislators might decide not to reenact and choose to use its resources for a more direct attack on this problem; duty of support extended to women; equal contribution not necessary, but contribution based on capacity

c. -

Ownership of Property Attempted to recognize womens contribution by giving each spouse an interest in property required during the marriage 2 systems: 1. Community Property property acquired by each spouse during the marriage is owned in common by both husband and wife Championed by womens rights advocates bec. It gives the wife who doesnt eanrn a legal share in family property, but here husband has the power and control over the community property and can assign or convey it without wifes consent in ERA, would not be valid, decisions should be made jointly 2. Common Law Ownership other 42 states have this system However, married womens property acts in every state have modified the harsh common law principles that gave the husband complete control over his wifes property and the products of her labors

Nonbarrable share in husbands estate, =widows allowance, homestead, and limitations on gifts and charity are other devices to protect a surviving spouse against complete disinheritance valid under ERA

d.

Grounds for Divorce air of unreality about the enumeration of specific ground for divorce bec. Of the great mobility of Americans to go to the state which has liberal grounds for divorce, or abroad to dissolve a marriage Uniform Marriage and Divorce Act marriage is irretrievably broken Statutory grounds for divorce which remain in effect in most states, because they affect economic and personal relations of the parties they cause a disproportionate amount of difficulty to poor people Sex discriminatory grounds for divorce non age, pregnancy by another man at the time of the marriage,non support, alcoholism of the husband by wasting of estate to the detriment of family, wifes unchaste behavior (w/o actual proof), husbands vagrancy, wifes absence from state for 10 years w/o husbands consent, wifes refusal to move with husband w/o reasonable cause, wifes a prostitute before marriage, husband a drug addict, indignities by husband to a wifes person, and willful neglect by husband Pregnancy ease of identifying the mother than the father of the child, but no reason exists for distinguishing between their duties, but presumption is always that children born during the marriage are his, thus posing unequal burden on the husband

e. -

Alimony where fault is central to divorce proceedings, alimony awards are closely related to the judicial determination of fault ERA would not require alimony to be abolished but only that it be made available to both spouses Laws could be written to grant special protection to a spouse who had been out of the labor force to make a non-compensated contribution to a familys well being. As long as it was based on marital contribution and ability to pay, it would not violate ERA

f.

Custody of Children common law father was the natural guardian, and nearly always entitled to the custody of children in separation or divorce; statutory - in other states no statute favoring one from the other, rather, preference for the mother or father exists as a result of judicially created presumptions in favor of the mother for girls and young children, and in favor of the father for older boys These will be prohibited in ERA based on sex of the parent

A. COHABITATION, MUTUAL LOVE AND RESPECT

Art. 247, RPC Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury , shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

These rules shall be applicable, under the same circumstances, to parents, with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents.

Any person who shall promote or facilitate the prostitution of his wife or daughter , or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.

Art. 68, FC The husband and wife are obligated to live together, observe mutual love, respect and fidelity, and render mutual help and support. same as Art. 109 of CC except for the addition of mutual love, which was added because every marriage must be founded on mutual love that is a deep abiding unity.

Personal obligations of spouses to each other: Live together Observe mutual love, respect and fidelity render mutual help and support

Duty to live together 1. Cohabitation (a purely personal obligation the court can't compel people to comply with; it would be a violation of personal dignity and security) and sexual

intercourse - The wife may refuse the husband's abnormal or perverse sex practices - She may also refuse if her health is at stake or if he has some venereal disease - Husband forcing wife to have sex against her will = coercion 2. The wife may not live with her husband in certain cases (business, dangerous residence, etc.)

Cohabitation consortium; commonn life under the same roof to better fulfill marital obligations

Duty to observe ML, R & F personal; must be performed voluntarily unfaithfulness may be charged criminally (adultery or concubinage) sexual infidelity and perversion, repeated physical violence and grossly abusive conduct are grounds for legal separation both spouses administer the family property and have joint parental authority if one spouse commits acts which tend to bring danger, dishonor or injury to the other, the aggrieved spouse may apply to the court for relief (Art. 72)

Duty to render MH and S mutually bound to support each other right to defend life and honor of other spouse marriage privilege rule (one cannot be examined for or against the other without his/her consent, except in a civil or criminal case committed by one against the other) marital communication rule (neither can one be examined without the consent of the other as to any communication received during the marriage) management of household = right and duty of both

Art. 34, CC 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.

Liability of Police Officer

primary liability imposed is already covered by Art. 27 Art. 34 creates a separate civil action to enforce that liability independent of any crim. Proceedings

Liability of Municipal Corporation liability can be enforced only when the guilty police officer is insolvent can't be avoided by proving that the city/municipality has exercised due diligence; this defense is available only to private employers

RA 8353, Sec. 2 (Anti-Rape Law) The crime of rape shall hereafter be classified as a Crime Against Persons under Title Eight of Act No. 3815, as amended, otherwise known as the Revised Penal Code. Accordingly, there shall be incorporated into Title Eight of the same Code a new chapter to be known as Chapter Three on Rape, to read as follows: "Article 266-A. Rape:When And How Committed. - Rape is committed: "1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: "a) Through force, threat, or intimidation; "b) When the offended party is deprived of reason or otherwise unconscious; "c) By means of fraudulent machination or grave abuse of authority; an "d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. "2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. "Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed. "In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio

(Note: I erased much of the section because the rest dealt with aggravating circumstances, penalties and evidence. The kind of stuff I think we should save for Crim. Ang haba niya kung kumpletong Sec. 2 ang ilalagay ko.)

RA 9262 (Anti-VAWC Act) SECTION 2. It is hereby declared that the State values the dignity of women and children and guarantees full respect for human rights. The State also recognizes the need to protect the family and its members particularly women and children, from violence and threats to their personal safety and security . Towards this end, the State shall exert efforts to address violence committed against women and children in keeping with the fundamental freedoms guaranteed under the Constitution and the Provisions of the Universal Declaration of Human Rights, the convention on the Elimination of all forms of discrimination Against Women, Convention on the Rights of the Child and other international human rights instruments of which the Philippines is a party. 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 his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, 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. It includes, but is not limited to, the following acts: A. Physical Violence refers to acts that include bodily or physical harm; B. Sexual violence refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to: 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 child. C. 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 intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. 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. D. Economic abuse refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: 1. 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, serious and moral grounds as defined in Article 73 of the Family Code; 2. 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; 3. destroying household property; 4. controlling the victims' own money or properties or solely controlling the conjugal money or properties. (b) Battery refers to an act of inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress. (c) 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. (d) Stalking refers to an intentional act committed by a person who, knowingly and without lawful justification follows the woman or her child or places the woman or her child under surveillance directly or indirectly or a combination thereof. (e) 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 . A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. (f) Sexual relations refers to a single sexual act which may or may not result in the bearing of a common child. (g) 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. (h) Children refers 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 the biological children of the victim and other children under her care.

SECTION 4. This Act shall be liberally construed to promote the protection and safety of victims of violence against women and their children. SECTION 5. 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 desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: (1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family; (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; (3) Depriving or threatening to deprive the woman or her child of a legal right; (4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or common money, or properties; (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. This shall include, but not be limited to, the following acts: (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 of access to the woman's child/children. SECTION 6. The crime of violence against women and their children, under Section 5 hereof shall be punished according to the following rules: (a) Acts falling under Section 5(a) constituting attempted, frustrated or consummated parricide or murder or homicide shall be punished in accordance with the provisions of the Revised Penal Code. If these acts resulted in mutilation, it shall be punishable in accordance with the Revised Penal Code; those constituting serious physical injuries shall have the penalty of prison mayor; those constituting less serious physical injuries shall be punished by prision correccional; and those constituting slight physical injuries shall be punished by arresto mayor. Acts falling under Section 5(b) shall be punished by imprisonment of two degrees lower than the prescribed penalty for the consummated crime as specified in the preceding paragraph but shall in no case be lower than arresto mayor. (b) Acts falling under Section 5(c) and 5(d) shall be punished by arresto mayor; (c) Acts falling under Section 5(e) shall be punished by prision correccional; (d) Acts falling under Section 5(f) shall be punished by arresto mayor; (e) Acts falling under Section 5(g) shall be punished by prision mayor; (f) Acts falling under Section 5(h) and Section 5(i) shall be punished by prision mayor. 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 in the section. In addition to imprisonment, the perpetrator shall (a) pay a fine in the amount of not less than One hundred thousand pesos (P100,000.00) but not more than three hundred thousand pesos (300,000.00); (b) undergo mandatory psychological counseling or psychiatric treatment and shall report compliance to the court. SECTION 8. A protection order is an order issued under this act for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of this Act and granting other necessary relief. The relief granted under a protection order

serve the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. The protection orders that may be issued under this Act are the barangay protection order (BPO), temporary protection order (TPO) and permanent protection order (PPO). The protection orders that may be issued under this Act shall include any, some or all of the following reliefs: (a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act; (b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; (c) Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no property rights are violated, and if respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence; (d) Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member; (e) Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner's or respondent's removal of personal belongings; (f) Granting a temporary or permanent custody of a child/children to the petitioner; (g) Directing the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; (h) Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on matter;

(i) Restitution for actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expenses, childcare expenses and loss of income; (j) Directing the DSWD or any appropriate agency to provide petitioner may need; and (k) Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief. Any of the reliefs provided under this section shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage. The issuance of a BPO or the pendency of an application for BPO shall not preclude a petitioner from applying for, or the court from granting a TPO or PPO. SECTION 21. A complaint for a violation of a BPO issued under this Act must be filed directly with any municipal trial court, metropolitan trial court, or municipal circuit trial court that has territorial jurisdiction over the barangay that issued the BPO. Violation of a BPO shall be punishable by imprisonment of thirty (30) days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed.

SECTION 26. Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists. SECTION 27. Being under the influence of alcohol, any illicit drug, or any other mindaltering substance shall not be a defense under this Act. SECTION 28. The woman victim of violence shall be entitled to the custody and support of her child/children. Children below seven (7) years old older but with mental or physical disabilities shall automatically be given to the mother, with right to support, unless the court finds compelling reasons to order otherwise. A victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the perpetrator of a woman who is suffering from Battered woman syndrome. SECTION 35. In addition to their rights under existing laws, victims of violence against women and their children shall have the following rights: (a) to be treated with respect and dignity;

(b) to avail of legal assistance from the PAO of the Department of Justice (DOJ) or any public legal assistance office; (c) To be entitled to support services from the DSWD and LGUs (d) To be entitled to all legal remedies and support as provided for under the Family Code; and (e) To be informed of their rights and the services available to them including their right to apply for a protection order.

RA 9710, Sec. 19 (Magna Carta of Women) The State shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and shall ensure: (a) the same rights to enter into and leave marriages or common law relationships referred to under the Family Code without prejudice to personal or religious beliefs; (b) the same rights to choose freely a spouse and to enter into marriage only with their free and full consent. The betrothal and the marriage of a child shall have no legal effect; (c) the joint decision on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (d) the same personal rights between spouses or common law spouses including the right to choose freely a profession and an occupation ; (e) the same rights for both spouses or common law spouses in respect of the ownership, acquisition, management, administration, enjoyment, and disposition of property; (f) the same rights to properties and resources, whether titled or not, and inheritance, whether formal or customary; and (g) women shall have equal rights with men to acquire, change, or retain their nationality. The State shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. Various statutes of other countries concerning dual citizenship that may be enjoyed equally by women and men shall likewise be considered. Customary laws shall be respected: Provided, however, That they do not discriminate against women.

The Anti-VAWC Act: Criminal and Civil Remedies Converge with Community Responses

(Note: Some of the stuff in the article/excerpts can be found in the provisions of the Anti-VAWC Act mentioned, so to avoid redundancy, I won't outline everything or I'll refer to the relevant provision. But sometimes I'll end up writing stuff anyway, ha ha.)

aims to address, prevent and punish all forms of violence through the active involvement of a wide institutional network that includes the local government units, police force, judiciary, executive offices, with the support and participation of nongovernment entities

Guiding principle protection of the family unit towards this, acts of violence against women and children that make up the family unit or who potentially make up a family unit are penalized

Commission of violence public crime which may be prosecuted upon filing of a complaint by any citizen having personal knowledge

4 additional factors (which show that the new law is not just a reiteration of the RPC): 1. It contemplates how hurt feelings caused by the violent conduct of one of the parties are magnified in an intimate relationship (i.e. the wife may hesitate to leave her abusive husband) 2. Any violence within the relationship is generally hidden, and tends to repeat itself or escalate 3. It punishes some acts that men may find harmless but which are perceived as harassment 4. It penalizes not just the results of the acts, but also the likelihood of such results

Battered Woman Syndrome tension-building, acute battering, extreme contrition + loving behavior (which makes the wife rethink leaving)

Why add dating relationships? The vulnerability, psychological and emotional dependence found in marriage are likewise present.

Domestic Violence and Family Law The definition in Sec. 3 of violence against women and children covers even single acts of violence, even though laws and courts don't contemplate one violent incident as constituting a ground for divorce or legal separation on the basis of cruelty and usually refer to a pattern of conduct, which means multiple acts (see Art. 55).

Any person even a female abuser (i.e. lesbian relationships) would be penalized under the Act Dating relationships and sexual relations see Sec. 3 for definitions

Redefining Violence; Redetermining Liability The act renders obsolete the old belief that the only kind of violence is the sort that leaves corporeal damage; there is as great or even greater trauma and impairment of health resulting from psychological/emotional violence Mental anguish is one of the elements of the violations under Sec. 5. ANY act that falls under Sec. 5 is entitled to actual, compensatory, moral and exemplary damages in all instances (unlike in the RPC, in which a felon is only liable for actual or compensatory damages; entitlement to moral and exemplary damages must first be proven) Victim-survivors suffering from BWS do not incur any criminal or civil liability despite absence of elements of self-defense (Sec. 26) The act also prevents liability from attaching to any person, private individual, police authority or barangay official who, acting in accordance with law, responds or intervenes without using violence or restraint greater than necessary to ensure the victim's safety (despite Art. 26 of the CC, which allows civil action for damages against a person who meddles in another's private affairs) The law is penal in character but its true nature is preventive and protective. Victimization of one's significant other jeopardizes not only that individual's health and safety but that of the public as well

State interest putting an end to gender-motivated violence

in the early part of the 20th century, spousal violence did not provide a sufficient cause of action for legal separation Separation = abnormal and fraught with grave danger to all concerned Cases of spouses applying for legal separation because of marital violence are probably rare because they are either resolved in the lower courts, or people would rather declare a suit for nullity Limitation of nullity as a civil remedy for domestic violence: show that the husband's violence is evidence of his psychological incapacity to fulfill essential marital obligations, and that this condition existed from the time of the marriage The law, up to the last minute, exerts efforts at preserving the family and the home from utter ruin (cooling off period of six months)

Mediation and Compromises RA 9262 now provides that in cases of legal separation where violence is alleged, Art. 58 of the FC shall not apply Reconciling the spouses involved in the cycle of violence is counter-productive, because it gives the impression that it's something that can just be negotiated, and the use of violence amplifies disparate interpersonal power of the abusers over the victims

Nature of Legal Procedure Implementing Rules and Regulations of RA 9262 defines the legal procedures, which are summary in nature and geared towards affording immediate protective relief The issuance of a Protection Order can be filed either with the barangay (BPO) or the regular courts (T/PPO)

Who can file? parents or guardians relatives up to 4th degree of consanguinity or affinity officers of DSWD or LGUs police officers Punong Barangay or Barangay Kagawad lawyer counselor therapist or healthcare provider at least 2 concerned citizens of the city or municipality where the incident occurred and who have personal knowledge (for a T/PPO, when it comes to third parties, the application must be accompanied by an affidavit of the applicant attesting to the circumstances of the incident and for the grant of consent by the victim)

Barangay Protection Order directs perpetrator or respondent to desist from committing the acts filed with Punong Barangay, or in his absence, the Kagawad of the barangay where the victim resides if the victim and offender reside in different municipalities or cities, Punong Barangay/Kagawad shall assist the victim in filing and securing a PO from the regular courts application has to be signed by victim; right to file an application for this cannot be relegated to another must be issued on the same date of application after conclusion of ex-parte proceedings; no notice or hearing is required to be afforded to the respondent before the BPO can be issued (no unreasonable exercise of police power; strictly necessary to secure important government interest, prompt action necessary) within 24 hours after BPO issuance, the Punong Barangay or Kagawad must assist the victim in filing application for T/PPO, and is duty-bound to ensure that the BPO will be issued, and expressly prohibited from encouraging the victim to compromise, abandon or waive any relief sought valid for 15 days, enforceable within barangay

Immediately after issuance, the same shall be served upon respondent The violation of the terms of the BPO or its expiration after 15 days does not have the effect of impairing the right of the victim to file for a T/PPO

Temporary/Permanent Protection Order after lapse of BPO or in case of violation of BPO (in the event of a violation, the TPO may be issued as deemed necessary even without the application) in writing, signed and verified under oath by applicant The regular courts may specify the relief/s afforded to the victim TPO shall be valid for 30 days, and prior to its expiration, the regular courts shall schedule a hearing and decide on the propriety of issuing the PPO PPO issued only after notice and hearing if respondent doesn't appear, RC shall proceed with hearing ex parte and rule on issuance of PPO on the basis of evidence submitted if the petition is meritorious, PPO can be issued insofar as practicable, the hearing on the merits of the petition should be commenced and completed in just one day; if not, the RC shall extend the TPO for another 30 days at each particular time until final judgment on PPO is issued Reliefs and purpose of PO: See Sec. 8 of Anti-VAWC Act The complaint for violation of the BPO proceeds independent of the outcome of the petition for the TPO and/or PPO

Narag vs. Narag FACTS: Atty. Dominador Narag was married to Julieta Narag, but he fell in love with his 17-year old student, Gina Espita, and entered into an illicit relationship with her. He even used his influence as a member of the Sangguiniang Panlalawigan ng Cagayan to get Gina a job with DTI. The 2 of them lived together and had 2 illegitimate kids. Julieta filed an administrative complaint to have him disbarred for gross immorality for abandoning his family to live with Gina. A year later, she withdrew her complaint. But a year after that, she filed it again, saying that the only reason why she withdrew it in the first place was because he had been threatening her. ISSUE: WON Dominador should be disbarred HELD: YES! Good moral character is not only a condition precedent to the practice of law, but a continuing qualification for all members of the bar. A lawyer guilty of gross immoral conduct may be suspended or disbarred. Gross immoral conduct so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common sense of decency Burden of proof rested upon Julieta as complainant. She proved it by presenting witnesses, including Ginas own brother, who confirmed that she and Dominador we re living together as husband and wife and that they had 2 children. Dominador had the duty to show that he was morally fit to remain a member of the bar. But his denials of his relationship with Gina and their children + he provided well for his first family + he was a successful lawyer and seasoned politician = not sufficient to show his moral fitness Spouses/parents have not only rights but also duties to their spouses/children.

Goitia vs. Campos-Rueda FACTS: After living together for 1 month, Elisia Goitia left the conjugal domicile she shared with her husband, Jose Campos Rueda. She claimed that he constantly demanded that she perform unchaste and lascivious acts on his genitals. Since she always refused to perform any act other than legal and valid cohabitation, he would maltreat her by word and deed. Thus, she was obliged to leave him and return to her parents. She then sued him for support outside the conjugal domicile. CFI held that Jose could not be compelled to support her, except in his own house, unless it be by virtue of a judicial decree granting her a divorce or separation from him. ISSUES: WON Elisa is entitled to support despite having left the conjugal abode HELD: YES! The nature of the duty of affording mutual support is compatible and enforceable in ALL situations, so long as the needy spouse does not create any illicit situation. The mere act of marriage creates an obligation on the part of the husband to support his wife, the enforcement of which is of such vital concern to the state itself that the law will not permit him to terminate it by his own wrongful acts in driving the wife to seek protection in the parental home. A judgment for separate maintenance is a judgment calling for the performance of a duty made specific by the mandate of the sovereign. The wife, who is forced to leave the conjugal abode by her husband without fault on her part, may maintain an action against the husband for separate maintenance when she has no other remedy, notwithstanding Art. 149 of the Civil Code (which states that the spouse obliged to furnish support can satisfy it either by paying a fixed pension or receiving and maintaining the other spouse in his own home).

Warren vs. State FACTS: Daniel Warren was convicted for rape and aggravated sodomy of his wife, while they were living together as husband and wife. He appealed to dismiss the indictment, on the following grounds: Rape statute contains implicit marital exclusion that makes it legally impossible for a husband to rape his wife. Aggravated sodomy statute contains implicit marital exclusion that makes it legally impossible for a husband to be guilty of an offense of aggravated sodomy on his wife. If no marital exemptions were found within the rape and aggravated statutes, it would be a new interpretation of the criminal law and applying the statutes to him would deprive him of his due process rights. ISSUE: WON marital exclusion is implied in the rape and aggravated sodomy statutes HELD: NO! Rape

The theory and belief that a husband could not be guilty of raping his wife is based on the common law attitude toward women, the status of women and marriage. Rape is the carnal knowledge of a female, whether free or slave, forcibly and against her will. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victimShort of homicide, it is the ultimate violation of self. It is incredible to think that any state would sanction such behavior by adding an implied consent term to all marriage contracts that would leave all wives with no protection under the law from the ultimate violation of self, simply because they choose to enter into a relationship that is respected and protected by the law. The implied consent theory to spousal rape is without logical meaning, and obviously conflicts with American Constitutional and statutory laws and regard for all citizens. Sodomy Sodomy was originally defined as the carnal knowledge and connection against the order of nature by man with man, or in the same unnatural manner with woman. There can be no common law marital exemption under the aggravated sodomy statute based on implied consent, when the statute was enacted in 1968 and when there was clearly no marital exemption based on consent under the original sodomy statute (not an element of the offense). Due process All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden. Both the rape and aggravated sodomy statutes are broadly written and they are unambiguous. This is a first application of these statutes to this particular set of facts, this is not an unforeseeable judicial enlargement of criminal statutes that are narrowly drawn.

Thurman vs. City of Torrington FACTS: Between early October 1982 and June 10, 1983, Tracey Thurman notified the defendant police officers of the City of Torrington of repeated threats upon her life and the life of her child, Charles Thurman, Jr., made by her estranged husband, Charles Thurman. But her attempts to file complaints against him based on his threats of death and maiming were ignored or rejected. She alleged that the defendants used an administrative classification that manifested itself in discriminatory treatment violative of the equal protection clause: they consistently afforded lesser protection when the victim was either a woman abused or assaulted by a spouse or boyfriend, or a child abused by a child or stepfather. ISSUE: WON the administrative classification violates the equal protection clause HELD: YES! A man is not allowed to physically abuse or endanger a woman merely because he is her husband. Concomitantly, a police officer may not knowingly refrain from interference in such violence, and may not automatically decline to make an arrest simply because the assaulter and his victim are married to each other. Such inaction on the part of the officer is a denial of the equal protection of the laws.

Any notion that the Torrington polices practice could be justified as a means of promoting domestic harmony by refraining from interference in marital disputes had no place in the case. Rather than evincing a desire to work out her problems with her husband privately, Tracey pleaded with the police to offer her at least some measure of protection. Further, she sought and received a restraining order to keep her husband at a distance. Whatever may be said as to the positive values of avoiding intra-family controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

People vs. Liberta FACTS: Defendant Mario Liberta was living apart from his wife Denise pursuant to a Family Court order, as he had been beating her. The order provided that he could visit with their 2 year old son once each weekend. During one such visit, held at a motel, he forcibly raped and sodomized Denise in the presence of their son. Mario allowed mother and son to leave afterwards, at which point Denise went the police station to file charges of first degree rape and first degree sodomy against him ISSUES: WON Mario is covered by the marital exemption WON the rape and sodomy statutes are unconstitutional for violating equal protection clause HELD: NO. A male is guilty of rape in the first degree when he engages in sexual intercourse with a female * * * by forcible compulsion. Female, for purposes of the rape statute, is defined as any female person who is not married to the actor. On the other hand, a person is guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another person * * * by forcible compulsion. Deviate sexual intercourse is defined as sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva. Thus, due to the not married language in the definitions of female and deviate sexual intercourse, there is a marital exemption for both forcible rape and forcible sodomy. The marital exemption itself, however, has certain exceptions. For purposes of the rape and sodomy statutes, a husband and wife are considered to be not married if at the time of the sexual assault they are living apart * * * pursuant to a valid and effective: (i) order issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart, or (ii) decree or judgment of separation, or (iii) written agreement of separation. YES to both Marital Exemption Under the Penal Law a married man ordinarily cannot be convicted of forcibly raping or sodomizing his wife. But there is no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. Moreover, there is no evidence to support the argument that marital rape has less severe consequences than other rape. On the contrary, numerous studies have

shown that marital rape is frequently quite violent and generally has more severe, traumatic effects on the victim than other rape. UNCONSTITUTIONAL. Exemption for Females Under the Penal Law only males can be convicted of rape in the first degree. The equal protection issue stems from the fact that the statute applies to males who forcibly rape females but does not apply to females who forcibly rape males. A statute which treats males and females differently violates equal protection unless the classification is substantially related to the achievement of an important governmental objective. This test applies whether the statute discriminates against males or against females. The fact that the act of a female forcibly raping a male may be a difficult or rare occurrence does not mean that the gender exemption satisfies the constitutional test. A gender-neutral law would indisputably better serve, even if only marginally, the objective of deterring and punishing forcible sexual assaults. The only persons benefitted by the gender exemption are females who forcibly rape males. A gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny. UNCONSTITUTIONAL.

B. FIXING THE FAMILY DO MICILE


Family Code 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. Civil Code Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic. Right at the outset, it can be observed that the main difference between the Civil Code provision and the controlling Family Code provision is that in the former, the husband is the one who shall fix the family residence while in the latter, the decision shall be made by both the husband and the wife. This is the logical consequence of the mutual obligation to live together. In case of disagreement between the spouses, either may go to court to have the controversy decided. If there are valid and compelling reasons for a spouse to live apart from the other, the court may grant an exemption to the rule. According to Tolentino, it can be said that any of the grounds for legal separation can qualify as a valid and compelling reason for this purpose. As can be observed in the cases below, some examples of legal justification for a court to grant the exemption include misunderstandings with in-laws, infidelity of the other spouse, among others. In such a case, neither of the spouses lose any of their rights such as the rights to support. The article also provides for a an exemption should one of the spouses need to live abroad but the exemption is still within the discretion of the court. Tenchavez v. Escano Pastor Tenchavez and his wife Escano were married but they did not have a good relationship. The latter left for the US and filed a complaint for divorce in Nevada which was granted. Escano remarried and eventually became a naturalized US citizen. Tenchavez believes that Escanos parents are undeserving of an award for damages since they are guilty of contributory negligence in failing to dissuade their daughter from leaving their marital abode and marrying another man. Held: The award for damages against Escano can be given to Tenchavez because the acts of the former (e.g. Leaving the family domicile and marrying another man) constitute a willful

infliction of injury upon plaintiffs feelings in a manner contrary to morals, good customs or public policy. The award of damages attach to her wrongful acts under Article 2176 CC. A consort who unjustifiably deserts the conjugal abode can be denied support. Corollary to this, there is no reason why the court may not award damages in cases of breach of obligations. Dadivas de Villanueva v. Villanueva The wife filed for an action to obtain separate maintenance and custody for their two children on the grounds of infidelity and cruelty. On the first ground, proof was offered that the husband repeatedly committed acts of infidelity with several women. This caused the wife to leave their family abode to establish a separate home for herself and their two younger children. Held: Since it was proved that he appears to be a recurrent offender against the sanctity of the marriage tie, the wife has thus gained an undeniable right to relief. Perverse and illicit relations with owen outside of the marital establishment are enough to entitle a wife to a separate home and separate maintenance. Garcia v. Santiago Both parties in this case have had a child in their previous marriages. Continued family dissensions forced the wife to leave their conjugal dwelling. She accused her husbands son of seducing her daughter, because of which the latter gave birth to a child. To the wifes dismay, the husband didnt want to have anything to do with trying to right the situation and instead, conveyed properties that have been acquired during their married life with money belonging to the conjugal partnership to his son. Held: Forcing the wife to live with the husband and his son would create a very embarrassing situation for the wife. Thus, her separation and separate maintenance is justified.

Atilano v. Chua Ching Beng The married couple established their dwelling with the parents of the husband. On one occasion, when they visited the wifes parents, the husband was persuaded by them to leave the wife behind on the premise that shell follow the husband home, but she didnt do so. The wife filed a complaint for legal separation for the reason, among others, that her husband is unable to provide for them a home apart from his parents. Held: The husband had the option of either paying support set by the court or maintain the wife in their conjugal abode (Art. 299 CC). The only obstacle to the second option is if there is a moral or legal obstacle (e.g. Misunderstandings with in-laws) thereto. Since the husband was willing to establish a home apart from his parents, then the wife is no longer entitled to separate maintenance. Del Rosario v. Del Rosario The parties to this case got married and established their dwelling with the husbands mother. But since the wife and the husbands mother could not get along, they moved. One day, the husband left saying that hes going to Tayabas to look for rice but he never returned. The wife later on received news that he was alive and had a shop at Tutuban. The husband claims that after the quarrels of his wife and his mother, the wife moved out of their house. Held: There is legal justification for wifes refusal to live with the husband and his mother so the court cant compel her to do so. She is therefore entitled to support.

C. MUTUAL HELP AND SUPPORT

Art. 68, FC The H and W are obligated to live together, observe mutual love, respect and fidelity, and render mutual help and support. Of all the obligations provided for by Article 68, only this requirement of mutual help and support gives rise to legal sanctions and action for support. Mutual help and support translates to the right and duty of both spouses to the management of the household, the right of either spouse to exercise legitimate professions without the consent of the other, the right to manage the absolute community or conjugal property together, and to exercise parental authority over their common children. Mutual help and support also extends to several legal provisions directed at the preservation of family solidarity, namely: 1) that one can act in defense of the person of ones spouse (Art. 11, RPC); 2) that the penalty can be increased when a crime is by ones spouse against the other (e.g. homicide to parricide) (Art. 246, RPC); 3) that one spouse cannot testify against the other (Rule 123 (26), Rules of Court); 4) that one spouse can object to the adoption of or by another (Arts. 185, 188, FC); 5) that spouses cannot make donations to each other (Art. 87, FC); 6) that during the marriage or afterwards, a spouse cannot be examined regarding communication exchanged between the two during the marriage without the other spouses consent (Sec. 21a, Rule 130, Rules of Court).

Art. 70, FC 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 their separate properties. H and W are joint administrators of the ACP or CPG. In the third case, when they have to resort to their separate properties, they are liable in proportion to said properties. But with respect to their creditors, they are solidarily liable. Compared with Art. 111, CC The husband is responsible for the support of the wife and the rest of the family. These expenses shall be met first from the conjugal property, then from the husband's capital, and lastly from the wife's paraphernal property. In case there is a separation of property, by stipulation in the marriage settlements, the husband and wife shall contribute proportionately to the family expenses. Under the Civil Code, the husband has the responsibility of supporting the family. The order of property liability is as follows: the conjugal property, the husbands capital, and the wifes paraphernal property (portion of a wifes property over which she has complete control, like clothes, other property not

brought into the marriage to help assist with the expenses; any property that is not community property belonging to the wife). If there is a separation of property by virtue of a pre-nuptial agreement, the H and W will contribute proportionately through the family expenses. Art. 199, FC Whenever two or more persons are obliged to give support, the liability shall devolve upon the ff. persons in the ff. order: 1. the spouse; 2. the descendants in the nearest degree; 3. the ascendants in the nearest degree; 4. the brothers and sisters.

Under Art. 199, action for support may be brought against anyone obliged to give it, but it must be shown that all those coming before the said obligee in the given order have no means to provide support. Similarly, that obligee is entitled to prove that someone else coming before him or her in the same hierarchy is more capacitated.

The order is premised upon the principle that those who are more closely related to someone are liable to provide support to that person. Unlike Art. 119, Art. 249, which is its source in the Civil Code, holds similar the order of succession in an intestate estate for the liability for support; hence the ff. order: the spouse, legitimate children and descendants, legitimate parents and ascendants, and illegitimate children and their descendants.

Art. 200, FC When the obligation to give support falls upon 2 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 circumstance, 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. According to Art. 200, the obligation of those liable to give support is joint, but proportionate to their means compared to the others. If for example, at the moment support is urgently needed by A, and B can

readily provide for it because he runs a panaderia in the same domicile, B can be ordered by a judge to do so even if another person, C, is also liable for support, but is currently working as an OFW in Qatar. B is entitled to collecting Cs share in the support of A later, when the circumstances are more convenient. In the third paragraph, if persons D and E are both entitled to support from person F, but F could not sufficiently provide for their claims, liability for support falls upon those other persons in the hierarchy set in Art. 199. But if D and E are actually the spouse and minor child of F, the minor child is preferred to receive support first, whether legitimate, legitimated or illegitimate, because it follows that minor children need parental support to survive. This support, however, must come from Fs separate property on the understanding that the minor child Es support is Fs personal obligation. However, if F w ere to provide support from the ACP or CPG, there would be no preference because the ACP and CPG are liable only for the payments/expenses stipulated in Arts. 94 and 121. McGuire vs. McGuire

Lydia had two daughters with her 1st husband who died intestate. She inherited from him 80 acres of farmland where she raised chickens and planted grain. She later married Charles, whose property included 398 acres of land, several stocks and government bonds, plus a helluva deal of money in his bank accounts, but who was unusually frugal. During their 33 years of marriage, though Lydia and Charles made joint decisions and payments on matters like her daughters schooling, and the transfer of interest of Lydias farmland to her daughters, Charles did not furnish the household and family with the lifestyle that he could afford with his moneythey thrived on old and defective furniture (even a house that didnt have a bathroom!) he would give her little to no money for groceries, in which case he would either do them or pay by check, etc. Lydia survives on the rent money that she gets from her own land and has a little over $5,000 in her bank account. She filed the suit for support but not for divorce. H: The court held that she had no grounds for filing the suit because she and Charles had not separated or had been living apart. It is also not for the court to determine the living standards of a family. The fact that Charles maintains the home, no matter how pitiful, and that Lydia continues to cohabit with him, means that he is still legally supporting her. Furthermore, the Court held that Lydia had not been deprived of her right to her own money, and may do whatever she wished with the amount she receives from her land.
Pelayo vs. Lauron

Lauron and Abella called forth the services of Pelayo, a physician, to help deliver the baby of their daughter-in-law. The said daughter-in-law died in the process, and when Pelayo demanded payment for his services, Lauron and Abella declined, alleging that they were only compelled to act by the urgency of the situation, and not because they felt obliged to care for their daughter-in-law, who at the time was actually already estranged from them. H: Lauron and Abella cannot be held responsible to pay for Pelayos services. According to Art. 142 and 143 of the Old Civil Code, spouses are bound by mutual support to render medical assistance in case of illness, hence it is only the husband liable to pay for the services of the doctor. It doesnt

matter that Lauron and Abella were the ones who called for Pelayo. Pelayo still could recover his fees if the action would be directed at the husband of the deceased.

D. MANAGEMENT OF THE HOUSEHOLD


Art. 71, FC The management of the household shall be the right and duty of both spouses. The expenses for such management shall be paid in accordance with Article 70. Art. 115, CC The wife manages the affairs of the household. She may purchase things necessary for the support of the family, and the conjugal partnership shall be bound thereby. She may borrow money for this purpose, if the husband fails to deliver the proper sum. The purchase of jewelry and precious objects is voidable, unless the transaction has been expressly or tacitly approved by the husband, or unless the price paid is from her paraphernal property. (62a) The Civil Code considered the wife as the queen of the household, but the Family Code breaks away from this stereotype. However, the law is silent on resolving disagreements about management of the household itself. Still, according to Tolentino, the wifes position should be given priority, as has been customary in the Philippines.

Young vs. Hector Young is an architect who appealed a trial courts decision to award custody of his two children to the mother, Hector, an attorney, alleging that it was arrived at because of gender bias. The court upheld the lower courts decision also on the basis of the guardian ad litems observations. First, that the attorney was not given custody just because she earned a lot of money as a partner in a top law firm; it was more because the father, since their relocation to Miami after his business in New Mexico collapsed, had hardly shown any interest to find employment again, mainly on the ground that he was computer illiterate. Second, that the attorney was the constant factor in the lives of the children, no matter how much time the architect had been spending as a doting father to the children during the last few years. The mother was the go to figure in the lives of the kids, and while she was away for the greater part of the day, she was around during evenings and on weekends, and through the fathers long periods of absence. Third, that the mother had better control of her anger, unlike the father. The court ruled in favor of the mother but as it remanded the case to the trial court, recommended that they give the father liberal and frequent access to the children. It was also important for the court to note before deciding on the case that the couple did not have specific agreements on who shall stay home to look after the children before they moved to Miami, and that therefore, the architects was unemployment was not just out of his dedication to child -rearing, but rather, for lack of more profitable things to do.

E. EXERCISE OF PROFESSION

Art. 73 (FC) 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 accrued 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 benefit accrued 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. The husbands objection on valid, serious and moral grounds must not be taken lightly. (Yes, the commentaries are more specific regarding the objection of husbands.) Tolentino says, the respect for the newly-acquired liberty of the wife cannot prevail over the requirements of morality and family stability. Thus, the preservation and upkeep of the home, household, the family, will always take precedence over a womans careerif a job must take her places and this keeps her from functioning in the home or providing her share in its management, the husband may object. However, theres something wrong with this law, or at least its wording. The last phrase of the second to the last paragraph reads the spouse who has not obtained consent, when in the first place, the article begins by stating that the spouses no longer need each others consent.

Art. 117 (CC) The wife may exercise any profession or occupation or engage in business. However, the husband may object, provided: (1) His income is sufficient for the family, according to its social standing, and (2) His opposition is founded on serious and valid grounds. In case of disagreement on this question, the parents and grandparents as well as the family council, if any, shall be consulted. If no agreement is still arrived at, the court will decide whatever may be proper and in the best interest of the family. On the other hand, the Civil Code provision is specific in saying that the husband is the only one who may object to the wifes profession. Furthermore, the objection on the basis of the husbands supports sufficiency implies that the wife could only work to assist in th e familys expenses if the husband could not provide for it entirely.

RA 7192 (enacted 1992) An Act Promoting the Integration of Women as Full and Equal Partners of Men in Development and Nation-Building and for Other Purposes Basically, RA 7192 puts the NEDA in charge of developing programs and policies for womens better exercise of their professions, businesses, etc., equal rights as their husbands and male counterparts in business, state services, etc.
Sec. 2. Declaration of Policy. The State recognizes the role of women in nation building and shall ensure the fundamental equality before the law of women and men. The State shall provided women rights and opportunities equal to that of men. women in national development and their integration therein: (1) Formulate and prioritize rural or countryside development programs or projects, provide income and employment opportunities to women in the rural areas and thus, prevent their heavy migration from rural to urban or foreign countries; (2) Include an assessment of the extent to which their programs and/or projects integrate women in the development process and of the impact of said programs or projects on women, including their implications in enhancing the self-reliance of women in improving their income; (3) Ensure the active participation of women and women's organizations in the development programs and/or projects including their involvement in the planning, design, implementation, management, monitoring and evaluation thereof; (4) Collect sex-disaggregated data and include such data in its program/project paper, proposal or strategy; (5) Ensure that programs and/or projects are designed so that the percentage of women who receive assistance is approximately proportionate to either their traditional participation in the targeted activities or their proportion of the population, whichever is higher. Otherwise, the following should be stated in the program/project paper, proposal or strategy; (a) The obstacle in achieving the goal; (b) The steps being taken to overcome those obstacles; and (c) To the extent that steps are not being taken to overcome those obstacles, why they are not being taken. (6) Assist women in activities that are of critical significance to their self-reliance and development.

To attain the foregoing policy: (1) A substantial portion of official development assistance funds received from foreign governments and multilateral agencies and organizations shall be set aside and utilized by the agencies concerned to support programs and activities for women; (2) All government departments shall ensure that women benefit equally and participate directly in the development programs and projects of said department, specifically those funded under official foreign development assistance, to ensure the full participation and involvement of women in the development process; and (3) All government departments and agencies shall review and revise all their regulations, circulars, issuances and procedures to remove gender bias therein.

Sec. 3. Responsible Agency. The National Economic and Development Authority (NEDA) shall primarily be responsible for ensuring the participation of women as recipients in foreign aid, grants and loans. It shall determine and recommend the amount to be allocated for the development activity involving women. . Sec. 4. Mandate. The NEDA, with the assistance of the National Commission on the Role of Filipino Women, shall ensure that the different government departments, including its agencies and instrumentalities which, directly or indirectly, affect the participation of

Sec. 5. Equality in Capacity to Act. Women of legal age, regardless of civil status, shall have the capacity to act and enter into contracts which shall in every respect be equal to that of men under similar circumstances.

men except for those minimum essential adjustments required by physiological differences between sexes. Sec. 8. Voluntary Pag-IBIG, GSIS and SSS Coverage. Married persons who devote full time to managing the household and family affairs shall, upon the working spouse's consent, be entitled to voluntary Pag-IBIG (Pagtutulungan Ikaw, Bangko, Industriya at Gobyerno), Government Service Insurance System (GSIS) or Social Security System (SSS) coverage to the extent of one-half (1/2) of the salary and compensation of the working spouse. The contributions due thereon shall be deducted from the salary of the working spouse. The GSIS or the SSS, as the case may be, shall issue rules and regulations necessary to effectively implement the provisions of this section. Sec. 9. Implementing Rules. The NEDA, in consultation with the different government agencies concerned, shall issue rules and regulations as may be necessary for the effective implementation of Sections 2, 3 and 4, of this Act within six (6) months from its effectivity.

In all contractual situations where married men have the capacity to act, married women shall have equal rights.

To this end: (1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangement under the same conditions as men; (2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans and non-material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs; (3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and (4) Married women shall have rights equal to those of married men in applying for passport, secure visas and other travel documents, without need to secure the consent of their spouses. In all other similar contractual relations, women shall enjoy equal rights and shall have the capacity to act which shall in every respect be equal to those of men under similar circumstances.

Sec. 6. Equal Membership in Clubs. Women shall enjoy equal access to membership in all social, civic and recreational clubs, committees, associations and similar other organizations devoted to public purpose. They shall be entitled to the same rights and privileges accorded to their spouses if they belong to the same organization. Sec. 7. Admission to Military Schools. Any provision of the law to the contrary notwithstanding, consistent with the needs of the services, women shall be accorded equal opportunities for appointment, admission, training, graduation and commissioning in all military or similar schools of the Armed Forces of the Philippines and the Philippine National Police not later than the fourth academic year following the approval of this Act in accordance with the standards required for

RA 9710 (enacted 2009) MAGNA CARTA OF WOMEN (Paraphrased)

Section 12. Equal Treatment Before the Law. To Amend or Repeal existing laws discriminatory to women within three years after the enactment of the RA. Section 13. Equal Access and Elimination of Discrimination in Education, Scholarships, and Training . Elimination of gender stereotypes in educational materials; encouragement of enrollment of women in vocational and tertiary levels; outlawing of expulsion of women on the grounds of premarital pregnancy; Section 14. Women in Sports. Development of athletic programs for women and girls. Sports events cannot provide different prizes to men and women in the same category, and tournaments must be divided into male and female divisions. Section 15. Women in the Military. Elimination of discrimination in policies and practices in the military, police and other similar services. Section 16. Nondiscriminatory and Nonderogatory Portrayal of Women in Media and Film. Formulation of policies and programs for the advancement of public consciousness with regard to the role of women in society. For women in marginalized sectors: Section 22. Right to Decent Work. - The State shall progressively realize and ensure decent work standards for women that involve the creation of jobs of acceptable quality in conditions of freedom, equity, security, and human dignity. Section 23. Right to Livelihood, Credit, Capital, and Technology. - The State shall ensure that women are provided with equal access to employment, formal sources of credit, capital, etc. esp. returning women migrant workers. Section 24. Right to Education and Training. Availability of skills training venues to women migrant workers before taking on a foreign job, gender-sensitive training and seminars, scholarships, especially for those interested in research and development aimed towards women-friendly farm technology.

F. USE OF SURNAME
Civil Code Provisions Art. 370. A married woman may use: B. (2) (3) Her maiden first name and surname and add her husband's surname Her maiden first name and her husband's surname or Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs."

The use of the word may as opposed to shall in article 370 implies that it is not imperative upon a married woman to use her husbands name or surname. However, there may be good reasons for married women to use her husbands name/surname (e.g. Identification purposes, etc.)

In Yasin v. Judge, Sharia District Court, the Hatima C. Yasin filed a petition to resume the use of her maiden name with the respondent court after her divorce with Hadji Idris Yasin was granted in accordance with Islamic laws. The respondent court held that the petition is insufficient to fulfill the requirements of changing ones name in accordance with Rule 103 of the Rules of Court. Held: The petitioner does not seek to change her registered maiden name as it appears on the civil registry. Even under the Civil Code, the use of the wife of the husbands surname during the marriage, after annulment of the same or after the death of the husband is merely permissive and not obligatory. Therefore, since the marriage ties no longer exist, petitioner need not seek a judicial declaration for her to revert to her maiden name since using her husbands name isnt obligatory in the first place.

Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370.

Art. 377. Usurpation of a name and surname may be the subject of an action for damages and other relief. The case of Tolentino v. CA explains that usurpation is present when: a. b. c. there is an actual use of anothers name, the use is of the name is unauthorized and the use of anothers name is to designate personality or identity of the person

Art. 378. The unauthorized or unlawful use of another person's surname gives a right of action to the latter. In the case of Silva v. Peralta an action was instituted against Esther Peralta by Elenita Ledesma-Silva. The former wants to enjoin the latter from representing herself as Esther Peralta-Silva and demands that she be paid for moral, exemplary and nominal damages. Held: Esther should stop using the surname Silva since there was no valid marriage that occurred between her and Saturnino Silva although there was strong evidence supportive of a common-law marriage arrangement between them. Moreover, when the purported marriage took place, Saturnino was still married to one Prescilla Isabel. While Art. 373 clearly states that a widow may still use the deceased husbands surname, Philippine law is silent as to whether a divorced woman can still use the surname of her previous husband. In Tolentino v. CA, the petitioner Constancia Tolentino, who is the current wife of Arturo Tolentino believes that Consuelo David is guilty of unlawfully using the surname Tolentino. Though she was already divorced to Arturo, she has continued to use his surname with the consent of Arturos family. It is for this reason th at she brought an action against Counselo praying that the latter be enjoined from using the surname Tolentino. Held: Our laws at

present does not provide an answer as to whether a divorced woman can still use her former husbands surname since there is no divorce law in this jurisdiction. Besides, as Arturo Tolentino himself said, the wife cannot claim an exclusive right to use the husbands surname. She cannot be prevented from using it, but neither can she restrain others from using it. Moreover, none of the elements of usurpation were present in this case.

G. RELIEF FROM COURTS


a. Art. 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. (116a)
i. Scenarios covered 1. Neglect of duties to conjugal union 2. Acts which tend to bring danger, dishonor or injury ii. Types of injury contemplated 1. Physical 2. Moral 3. Emotional 4. Psychological iii. What relief may be granted? 1. The court has full freedom to determine the kind of relief that may be given. 2. The relief must be lawful. iv. What can the court do if the guilty spouse refuses to heed the court order? 1. Admonish 2. Issue injunction order 3. Threaten with contempt of court b. Cases: i. Perez vs. Tuason de Perez 1. FACTS: Antonio Perez, as guardian ad litem of his adoptive son, Benigno Perez y Tuason, initiated a civil case against defendant Angela Tuason de Perez, his wife and Benignos mother, stating 3 causes of action: a. She was squandering her estate on a young man named Jose Antonio Campos Boloix. Thus, she should be declared a prodigal and placed under guardianship, a suitable person/institution should be appointed to administer her properties, and a writ of injunction should be issued to prevent the continued waste and dissipation of her properties. b. By virtue of her alleged acts of prodigality, the conjugal partnership of gains was being dissipated to the prejudice of both spouses. c. She had repeatedly advised him and other persons that she intended to marry Boloix and have a child with him or any other person, just to put Antonio in a ridiculous and embarrassing situation. CFI dismissed the case for lack of jurisdiction. Antonio and Benigno appealed.

2. ISSUE: WON the case fell under the jurisdiction of the CFI 3. HELD: CFI had no jurisdiction. It was the Juvenile and Domestic Relations Court of the City of Manila that had its jurisdiction, as provided by Sec. 38 of R.A. No. 1401, which states that the court shall have

exclusive original jurisdiction to hear and decidecases involving custody, guardianship, adoption, paternity and acknowledgement; proceedings brought under the provisions of Art. 116 [now Art. 72: When one of the spousesbrings danger, dishonour or material injury upon the other, the injured party may apply to the court for relief.]of the Civil Code.
a. 2nd cause of action: Angelas prodigal acts resulted in the dissipation of the CPG MATERIAL INJURY b. 3rd cause of action: Angela avowed openly her intention marry and have a child by Campos Boloix, or if not, by anyone else DISHONOR ii. Arroyo vs. Vazquez de Arroyo 1. FACTS: Plaintiff Mariano Arroyo and defendant Dolores Vazquez de Arroyo were married in 1910, and since then, with a few short intervals of separation, lived together in Iloilo City. On July 4, 1920, Dolores went away from their common home with the intention of living thenceforth separate from Mariano. She claimed that she was compelled to leave without her husbands consent due to his cruel treatment. She in turn prayed for: a. Decree of separation b. Liquidation of their conjugal partnership c. Allowance for counsel fees and permanent separate maintenance. Lower court gave judgment in her favour, granting her alimony of P400/month + also attorneys fees of P1000. In response, Mariano sought the restitution of conjugal rights. It was supposed in the petitory part of the complaint that he was entitled to a permanent mandatory injunction requiring Dolores to return to the conjugal home and live with him as a wife according to the precepts of law and morality. 2. ISSUES: a. WON defendant had sufficient cause for leaving the conjugal home b. WON plaintiff may be granted the restitution of conjugal rights or absolute order or permanent mandatory injunction 3. HELD: a. NO! The evidence showed that Dolores was afflicted with a disposition of jealousy towards her husband in an aggravated degree. The tales of cruelty on the part of Mariano towards her were no more than highly coloured versions of personal wrangles. Her abandonment of the marital home was without sufficient justification in fact.

NO! It is not within the province of the courts to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course, where the property rights of 1 of the pair are invaded, an action for restitution of such rights can be maintained. But the Court was disinclined to sanction the doctrine that an order, enforceable by process of contempt, may be entered to compel the restitution of the purely personal right of consortium. At best, such an order could be effective for no other purpose than to compel the spouses to live together under the same roof; and the experience of those countries where the courts of justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable.