Académique Documents
Professionnel Documents
Culture Documents
3
PERSONS & FAMILY RELATIONS
II.
CIVIL LAW
Kristine Bongcaron Patricia Tobias
Subject Editor
I.
ACADEMICS COMMITTEE
Kristine Bongcaron Michelle Dy Patrich Leccio
Editors-in-Chief
Concept of Persons Personality is the quality derived from being a person; it is an attribute of persons. Characteristics 1. It is not a being, but a quality of certain beings. 1. It is not a physical element, but a juridical concept. 2. It is not an object of contract, or of possession, and cannot be impaired by agreement. 2. It is a matter of public interest.
Article 37, Civil Code. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost.
LECTURES COMMITTEE
Michelle Arias Camille Maranan Angela Sandalo
Heads Katz Manzano Mary Rose Beley Sam Nuez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers
LOGISTICS
Charisse Mendoza
SECRETARIAT COMMITTEE
Jill Hernandez
Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members
Kinds of Juridical Capacity 1. Juridical Capacity: aka as Legal Capacity/Personality = Fitness of man to be the subject of legal relations It refers to the aptitude for the holding and enjoyment of rights. It is inherent in every natural person and is lost only through death. This attaches to man by the mere fact of his being a man. 2. Capacity to Act: It refers to the power to do acts with legal effect. It is conditional and variable. It is acquired and may be lost. It requires both intelligence and will. Note: Juridical capacity can exist even without capacity to act; the existence of
Civil
personality
is
The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will.
People v. Tirol, (1981) Criminal liability ends with death BUT civil liability may be charged against the estate.
Article 43, Civil Code. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.
Birth = complete removal of the fetus from the mothers womb; before birth, a fetus is merely part of the mothers internal organs Personality of Conceived Child 1. Limited = only for purposes FAVORABLE to it 2. Conditional = it depends upon the child being born alive later Period of Conception = the first 120 days of the 300 days preceding the birth of the child A conceived child can acquire rights while still in the mothers womb. It can inherit by will or by intestacy. Geluz v CA, (1961) An aborted fetus had conditional personality but never acquired legal rights/civil personality because it was not alive at the time of delivery from the mothers womb. No damages can be claimed in behalf of the unborn child.
Article 41, Civil Code For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.
Note: Article 43 provides a statutory presumption when there is doubt on the order of death between persons who are called to succeed each other (only). Joaquin v. Navarro, (1948) The statutory presumption of Article 43 was not applied due to the presence of a credible eyewitness as to who died first. Presumption in the Rules of Court (Rule 123, sec. 69, par. ii)
1. 2. 3. 4. Age Both under 15 Both above 60 One under 15, the other above 60 Both over 15 and under 60; different sexes Both over 15 and under 60; same sex One under 15 or over 60, the other between those ages Presumed Survivor Older Younger One under 15 Male
5. 6.
Note: Applicable only to two or more persons who 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 latter implies that of the former. The capacity or incapacity of persons depends upon the law. Both juridical capacity and capacity to act are not rights but qualities of persons; hence, they cannot be renounced.
test/sign
of
Note: For a fetus that had an intra-uterine life of less than seven months, it is necessary that it lives for at least 24 hours, for it to be considered born.
Chapter I. CIVIL PERSONALITY Article 39, Civil Code. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion. A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law.
B. Juridical Persons
Juridical Persons (Art 44, Civil Code) 1. The State and its Political subdivisions; 2. Other Corporations, Institutions and Entities for public interest or purpose, created by law; 3. Corporations, Partnerships, and Associations for private interest or purpose to which the law grants a juridical personality. Governing Laws (Art 45, Civil Code)
Juridical Person 1. State Governed by Constitution (defines organization and limits rights vis--vis citizens) Charter creating them Charter creating them its its
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PERSONS & FAMILY RELATIONS
2. 3. 4. 5.
General Rule: Incapacitated persons are not exempt from certain obligations arising from his acts or property relations. ________________ 1. Minority
Corporation Code, Articles of Incorporation and By-Laws Stipulations of the parties and suppletorily by the general provisions on partnership of the Civil Code
RA 6809 (1989): An act lowering the age of majority from twenty-one to eighteen years. Effects on Contracts a. they cannot give consent to a contract [Art 1327 (1), CC] b. a contract where one of the parties is a minor is voidable [Art 1390(1),CC] c. a contract is unenforceable when both of the parties are minors (incapable of giving consent) [Art 1403(3), CC] d. minority cannot be asserted by the other party in an action for annulment (Art 1397, CC) e. not obliged to make restitution except insofar as he has been benefited (Art 1399, CC) f. minor has no right to demand the thing/price voluntarily returned by him (Art 1426, CC) g. minor has no right to recover voluntarily paid sum or delivered thing, if consumed in good faith (Art 1427, CC) h. must pay reasonable amount for necessaries delivered to him (Art 1489, CC)
Rules 1. Juridical persons may acquire and possess property of all kinds, incur obligations, and bring civil or criminal actions (Art. 46, CC) 2. Upon dissolution of corporations or institutions and other entities for public interest, their property and assets shall be disposed of in pursuance of the law or charter creating them. (Art. 47, CC)
B. Restrictions
Article 38, Civil Code. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements.
Mercado v. Espiritu, (1918) Estoppel works against minors who misrepresent their ages in a contract and are compelled to comply with its terms. Bambalan v. Maramba, (1928)
Braganza v. Villa Abrille, (1959) Minors are obliged to make restitution insofar as they have been benefited (Art 1399) Effects on Marriage a. May not yet contract marriage (Art 5, FC) b. marriages, where one of the parties is below 18, even with the consent of parents/guardians, are VOID (Art 35, FC) 2. Insanity Insanity includes many forms of mental disease, either inherited or acquired. A person may not be insane but only mentally deficient (idiocy, imbecility, feeblemindedness). Effect on Contracts a. incapacity to give consent to a contract [Art 1327(2), CC] b. contracts entered into during lucid intervals are valid (Art. 1328, CC) c. restitution of benefits (Art 1399, CC) Effect on Crimes a. General rule: EXEMPTED from criminal liability b. Exception: acted during lucid interval Effect on Marriage a. may be annulled if either party was of unsound mind unless the such party after coming to reason, freely cohabited with the other [Art 45(2), FC] b. action for annulment of marriage must be filed by the sane spouse who had no knowledge of the others insanity; or by any relative/guardian of the insane; or by the insane spouse during a lucid interval or after regaining sanity [Art 47(2), FC]
4. Prodigality Martinez v. Martinez, (1902) A spendthrift or a prodigal is a person, who, by excessive drinking, gambling, idleness or debauchery of any kind shall so spend, waste or lessen his estate as to expose himself or his family to want or suffering. The acts of prodigality must show a morbid state of mind. Note: It is not the circumstance of prodigality, but the fact of being under guardianship that restricts capacity to act. 5. Civil Interdiction a. It is an accessory penalty imposed upon persons who are sentenced to a principal penalty not lower than reclusion temporal (article 41, Revised Penal Code). b. offender is deprived of rights of parental authority, or guardianship, of marital authority, of the right to manage his property and of the right to dispose of such (Art 34, RPC) c. for the validity of marriage settlements, the participation of the guardian shall be indispensible (Art 123, CC) 6. Family Relations a. justifying circumstance if acted in defense of person/rights of spouse, ascendants, descendants, brothers/sisters, and other relatives up th to the 4 civil degree [Art 11(2), RPC] b. mitigating circumstance if acted in the immediate vindication of a grave offense/felony committed against his spouse, ascendants or relatives of the same civil degree [Art 12(5), RPC] c. incestuous and void marriages: between ascendants and descendants of any degree; between brothers and sisters, whether full or half-blood. (Art 37, FC) d. donations/grants of gratuitous advantage between spouses during the marriage shall be VOID, except moderate gifts during family occasions (Art 87, FC)
3. State of Being Deaf-Mute a. cannot give consent to a contract if he/she also does not know how to write [Art 1327(2), CC] b. can make a valid WILL, provided: the contents of the same have either been
When a minor made no active misrepresentation as to his minority and such minority is known to the other party, the contract is voidable (Art 1403) as to the minor.
c.
read personally by him or communicated to him by 2 persons (Art 807, CC) cannot be a witness to the execution of a will (Art 820, CC)
7. Absence
Article 390, Civil Code. 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) Art. 391, Civil Code. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: 1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; 2. A person in the armed forces who has taken part in war, and has been missing for four years; 3. A person who has been in danger of death under other circumstances and his existence has not been known for four years.
Article 124, FC a. administration and enjoyment of the CPG shall belong to both spouses jointly b. in case of disagreement, husbands decision shall prevail, subject to recourse to the court by the wife for proper remedy c. if one spouse is incapacitated/unable to administer, sole powers of administration may be assumed by the other spouse. d. General Rule: This power does not include disposition/encumbrance. Exception: judicial authority or written consent of other spouse
e. descendants cannot be compelled to testify in a criminal case, against his parents and grandparents UNLESS: crime was against the descendant OR by one parent against the other (Art 215, FC) f. spouses cannot sell property to each other, except: absolute separation is agreed upon in the marriage settlements judicial separation of property (Art 1490, CC)
B. Kinds of Domicile
1. Domicile of Origin Domicile of parents of a person at the time he was born. 2. Domicile of Choice Domicile chosen by a person, changing his domicile of origin. A 3rd requisite is necessary intention not to return to ones domicile as his permanent place. 3. Domicile by Operation of Law (i.e., Article 69, domicile of minor) Romualdez-Marcos vs. Comelec (1995) A married woman does not lose her domicile to her husband.
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PERSONS AND FAMILY RELATIONS
I.
1. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution; 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4. Those who are naturalized in accordance with law. (Art IV, 1, 1987 Philippine Constitution) Note: These have superseded the rules on citizenship enumerated in the Civil Code. Citizen = owes allegiance to the state and is entitled to its protection
II. Domicile
For Natural Persons the place of their habitual residence (Art. 50, CC). For Natural Persons the place where their legal representation is established, or where they exercise their primary functions, unless there is a law or other provision that fixes the domicile (Art. 51, CC). Domicile vs. Residence While domicile is permanent (there is intent to remain), residence is temporary and may be changed anytime (there is no necessary intent to remain). ________________
Chapter III. MARRIAGE quasi-delict and is governed by the provisions of this Chapter.
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PERSONS AND FAMILY RELATIONS
I.
EXPENSES or other incidents that directly arose from the contract to marry can be claimed IF the breach of promise was done in a manner considered as contrary to morals, good customs or public policy (cost of wedding preparations). (Wassmer v Velez) LOST WAGES arising from voluntary dismissal in anticipation of marriage can be sued for. (Tanjanco v CA) EXPENSES made for the renovation of an anticipated conjugal home can be sued for. (Piccininni v. Hajus-US Jurisprudence)
Breach of Promise to Marry (asked in 09 bar exam) 1. As a general rule breach of promise to marry is not an actionable wrong (Tanjanco v CA, Wassmer v Velez) and cannot give rise to liability for damages in line with the principle of freedom of consent in marriage (Art 2(2) Family Code). (Reyes) 2. However damages may be claimed based on the principles laid down in Art 19-21 & 2176 of the CC
Art. 19, Civil Code. 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. Art. 20, Civil Code. Every person who, contrary to law, wilfully or negligently causes damage to another shall indemnify the latter for the same. Art. 21, Civil Code. 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. Art. 2176, Civil Code. 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 pre-existing contractual relation between the parties, is called a
Defect
of
Essential
Absence VOID - marriage entered into by a person <18 (Art 35 (1)) - marriage entered into by persons of the same sex (Jones v Hallahan) - marriage contracted through mistake of one contracting party as to the identity of the other (Art 35 (5))
Defect VOIDABLE - consent of either party was obtained through fraud, force, intimidation or undue influence (Art 45 (3) (4)FC)
Effect
Absence VOID
Illustration
Marriage is void when solemnized by a priest not duly authorized by his Church to solemnize marriage. (Art 7 FC)
Irregularity No effect on validity but party responsible will be liable. lack of valid notification of both parties desiring a ceremony in a remote place was held to be only a mere IRREGULARITY (Navarro vs. Domagtoy 1996)
Marriage License 1. Marriages Exempt from marriage license requirement (AREC) a. Marriage in Articulo mortis (Art. 27, FC) b. Marriage in Remote and inaccessible places (Art. 28, FC) c. Marriages by Muslims and Ethnic cultural minorities provided they are solemnized in accordance with their customs, rites or practices. (Art. 33, FC) d. Marriage by parties who have Cohabited for at least 5 years without any legal impediment. (Art. 34, FC, Ninal v Badayog (2000)) 2. Absence & Irregularity of Marriage License
Effect Absence VOID Irregularity No effect on validity but party responsible will be liable. mere IRREGULARITIES in the marriage license, such as a
Illustration
to avoid prosecution for rape is void for total lack of consent. The accused did not intend to be married. He merely used such marriage to escape criminal liability.
d. A Military commander of a unit may solemnize marriages in articulo mortis between persons within the zone of military operation. (Art 7,32 FC) e. Consul-general, consul or vice-consul may solemnize marriages between Filipino citizens abroad. (Art 7,10 FC) f. Municipal and City Mayors (LGC sec 444 and 455) 2. Marriage is void when solemnized by any person not legally authorized to perform marriages unless either or both parties believed in good faith that the solemnizing officer had legal authority to do so. (Art 35 (2)) 3. Absence & Irregularity of Authority of a solemnizing officer
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CIVIL LAW REVIEWER Absence DUE SEARCH AND INABILITY TO FIND the application of a marriage license means its absence, thus rendering the marriage VOID. (Republic v CA) Before a marriage can be solemnized, a valid marriage license MUST FIRST BE PRESENTED, otherwise the marriage is VOID. (Moreno v Bernabe) Irregularity typographical error, do not affect the validity of a marriage. (Alcantara v Alcantara)
Note: In a marriage in articulo mortis, when one or both parties are unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to write the name of said party, which shall be attested by the solemnizing officer. (Art 6, par. 2) 3. Places where marriage SHALL be solemnized: (CCO) a. Chambers of Judge or an open court b. Church, Chapel or Temple c. Office of the consul general, consul or vice consul (Art. 8, FC) Exception: a. Marriages in articulo mortis b. Marriages in remote places c. Written request from both parties.
3. Things to do at the local civil registrar: a. File an application of marriage license at the proper local civil registrar. (Art. 11, FC) b. Present birth or baptismal certificate. (Art. 12, FC) c. If aged 18-21 years, present parental consent. (Art. 14, FC) d. If aged 21-25, present parental advice. (Art. 15, FC) e. If aged 18-25, present certificate of marriage counseling from your priest. (PD 965) f. Pay the required fees. (Art 19, FC) g. If foreigner, present certificate of legal capacity issued by diplomat or consular officials. (Art. 21, FC) Marriage Ceremony 1. No prescribed form or religious rite for the solemnization of marriage is required. (Art. 6, FC The couple's written agreement where they declare themselves as husband and wife, signed by them before a judge and two capable witnesses, even though it was independently made by them, still counts as a valid ceremony. (Martinez v Tan, 12 Phil 731) 2. Minimum requirements prescribed by law: (AP-PMS)
a. Appearance of contracting parties personally before the solemnizing officer (Art 3 FC) b. Personal declaration that they take each other as husband and wife. (Art 3 FC) c. Presence of at least two witnesses of legal age. (Art 3 FC) d. The declaration shall be contained in the Marriage certificate. (Art 6 FC) e. Marriage certificate shall be Signed by the contracting parties and their witnesses and attested by the solemnizing officer. (Art. 6, FC)
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2. The presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage is satisfactory if uncontradicted. (Sec. 3 (aa), Rule 131, ROC) 3. In marriages of exceptional character, the existence of the marriage is presumed, even in the TOTAL ABSENCE of a marriage license. (Vda. De Jacob v CA, 1999) 4. if a marriage certificate is missing, and all means HAVE NOT YET BEEN EXHAUSTED to find it, then the marriage is presumed to exist (Sevilla v Cardenas, 2006) 5. Absence of a marriage certificate is not proof of absence of marriage. To prove the fact of marriage, the following would constitute competent evidence: (1) the testimony of witnesses to matrimony; (2) the couples public cohabitation; and (3) birth and baptismal certificates of children born during the union. (Trinidad v CA, 1998)
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PERSONS AND FAMILY RELATIONS
I.
Grounds
Art. 4(1): The absence of any essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (a). VOID AB INITIO MARRIAGES:
Note: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 and Barcelona vs. CA (2003) provide that expert opinion is not a condition sine qua non for proof of psychological incapacity. The root cause may be proven by the totality of evidence in actual trial. The incapacity must be proven to be existing at the time of the celebration of the marriage. d. Such incapacity must also be shown to be medically or clinically permanent or incurable. e. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. f. The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children. g. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. h. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification. Note: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 provide that the appearance of the prosecuting attorney or fiscal and the Solicitor-General is no longer mandatory. Santos v. Bedia-Santos, (1995): Laid down 3 characteristics for determining psychological incapacity: gravity, antecedent, and incurability. Tsoi v. CA, (1997) Refusal of husband to have sex was interpreted to be PI. A man who can but wont is PI c.
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts, (d) clearly explained in the decision.
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General Rule Marriage contracted by any person during the subsistence of a previous marriage is void. Exceptions: The following subsequent marriage of the present spouse is valid: 1. Subsequent marriage due to ordinary absence where: a. the prior spouse had been absent for 4 consecutive years; b. the spouse present had a well-founded belief that absent spouse is dead; and c. judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse). 2. Subsequent marriage due to extraordinary absence where: a. the prior spouse had been missing for 2 consecutive years; b. there is danger of death attendant to the disappearance; c. the spouse present had a well-founded belief that the missing person is dead; and d. judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse). Note: Institution of a summary proceeding is not sufficient. There must also be a summary judgment. (BALANE) Only the deserted spouse can file or institute an action a summary proceeding for the declaration of presumptive death of the absentee (Bienvenido case) There must have been diligent efforts on the part of the deserted spouse to locate the absent spouse. These diligent efforts correspond to the requirement of the law for a well-founded belief. Exception to the exception When both parties to the subsequent acted in bad faith (Art. 44) Connected Provisions
Art. 390, Civil Code. After an absence of 7 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
C. Article 37 (Incestuous)
1. Between ascendants and descendants of any degree, legitimate or illegitimate 2. Between brothers and sisters, whether of the full or half blood, legitimate or illegitimate
Marcos vs. Marcos (2000) Psychological incapacity maybe established by the totality of the evidence presented. Personal medical examination could be dispensed with. Republic vs. San Jose (2007) There is no requirement that the respondent be medically examined first. Antonio v. Reyes, (2006): pathological liar, Molina guidelines met.
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CIVIL LAW REVIEWER purpose of opening his succession till after an absence of 10 years. If he disappeared after the age of 75 years, an absence of 5 years shall be sufficient in order that his succession may be opened. Art. 391, Civil Code. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (SAAD) 1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; 2. A person in the armed forces who has taken part in war, and has been missing for four years; 3. A person who has been in danger of death under other circumstances and his existence has not been known for four years.
Atienza v. Brillantes, (243 SCRA 32) A judges first marriage contracted in 1965 was void for not having a marriage license, but the requirement for a judicial declaration of nullity in Art. 40 applies for his subsequent marriage contracted in 1991. Apiag v. Cantero, (1997) Where both marriages were contracted prior to the effectivity of the FC, the requirement of Art. 40 does not apply to the second marriage where a right is already vested and which the FC cannot have retroactive effect. Judicial declaration of nullity of a marriage is now an absolute requirement: a. For the validity of any subsequent marriage b. For the subsequent marriage not to be considered as bigamous Domingo v. CA, (1993) The judicial declaration of nullity can be invoked for purposes other than remarriage. Article 40 was interpreted as being a requirement for purposes of remarriage but not limited for that purpose. Separation of property is also a valid purpose for filing for a judicial declaration of nullity. Borja-Manzano v. Sanchez, (2001) Legal separation does not severe marital bonds. Cohabitation under Art. 34 merely exempts the spouses from obtaining a marriage license, and is not met when there exists legal impediment to marry during the period of cohabitation.
Note: Although seven years is required for the presumption of death of an absentee in the Civil Code, Art. 41 of the Family Code makes an exception for the purpose of remarriage by limiting such requirement to four years. Art. 41 also limits the required four years in Art. 391 for absence under exceptional circumstances to only two years.
who
Both spouses of a subsequent marriage acted in bad faith in case where a previous spouse was an absentee
G. Article 53 (Non-Recording)
Subsequent marriage of spouses where the requirements of recording under Art. 52 for void marriages shall not have been complied with
H. Article 40 Nullity)
(Judicial
Declaration
of
Art. 40, Civil Code. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.
File
Action
or
Raise
Under the Civil Code (superseded by the Family Code), there was no need for a judicial declaration of nullity of a previous marriage for a subsequent marriage to be valid (People v. Mendoza). However, Article 40 of the FC now requires a final judgment to declare a previous marriage void for a subsequent marriage to be valid. (Terre v. Terre, Atienza v. Brillantes)
Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (as amended by R.A. 8533) The phrase "However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after
Terre v. Terre, (1998) A lawyer was disbarred for grossly immoral conduct by convincing the other party that a judicial declaration of nullity was not required and subsequently contracting another marriage while his first marriage was subsisting.
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3. In the partition, the conjugal dwelling and lot shall be adjudicated to the spouse with whom majority of the common children remain (Art. 102 and 129) [Art. 50(4)] 4. Presumptive legitimes, computed as of the date of the final judgment, shall be delivered in cash, property or sound securities a. unless the parties, by mutual agreement judicially approved, had already provided for such [Art. 51(1)] b. the children/guardian/trustee may ask for the enforcement of the judgment [Art. 51(2)] c. the delivery of the presumptive legitimes shall not prejudice the ultimate successional rights, but the value of the properties already received shall be considered as advances on their legitime [Art. 51(3)] 5. Either of the former spouses may marry again AFTER compliance with the requirements of Article 52, otherwise, the subsequent marriage is void (Art. 53) Requirement (Art. 52) recording in the appropriate civil registry AND registries of property: a. judgment of annulment/absolute nullity of marriage b. partition and distribution of the properties of the spouses c. delivery of the childrens presumptive legitimes otherwise, these shall not affect third persons
this Code shall taken effect" has been deleted by Republic Act No. 8533 [Approved February 23, 1998]). It must be noted that under the new Supreme Court Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003, nullity of the marriage can still be collaterally attacked. As to the parties allowed to file the action Enrico v. Heirs of Sps. Medinaceli (2007): Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and, hence, can only question the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. (also reiterated in Carlos vs. Sandoval, 2008)
Effects of Other Void Marriages 1. 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 [Art. 50(1)] 2. Final judgment in such cases shall provide for the liquidation, partition, and distribution of the: a. properties of the spouses b. custody and support of the common children c. delivery of their presumptive legitimes unless such matters had been adjudicated in previous judicial proceedings [Art. 50(2)] all creditors (of the spouses/property regime) shall be notified of the proceedings for liquidation [Art. 50(2 and 3)]
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Void marriages can be attacked collaterally and do not prescribe De Castro v. Assidao-de Castro, (2008) Validity of marriage was attacked collaterally in an action for support for determining legitimacy of the child.
6. Generally, children born or conceived within void marriages are illegitimate. Exception: children conceived or born before the judgment under Article 36 has become final and executory children conceived or born of subsequent marriages under Article 53 Nial v. Badayog, (2000) Children of first marriage assailed the validity of the second marriage contracted by their father without a marriage license and after the latters death.
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consummating the marriage (impotence; this is different from sterility). S 6. Either party has a serious and incurable sexually-transmissible disease, even if not concealed.*
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PERSONS AND FAMILY RELATIONS
TOLENTINO Action to Annul: action in rem, concerns status of parties; res is relation bet parties or marriage tie; jurisdiction depends on nationality or domicile not the place of celebration
I.
Marriage may be annulled on the ff grounds existing at time of marriage: P I F F I S P 1. One of the parties is 18 or above but below 21, and there is no parental consent. 2. Either party was of unsound mind (insanity). 3. The consent of either party was obtained through fraud (different from mistake in identity): a. through non-disclosure of a previous conviction of a crime involving moral turpitude; b. through concealment by the wife of the fact at the time of the marriage that she was pregnant by another man; c. through concealment of a sexually-transmitted disease, regardless of its nature, existing at the time of marriage; d. through concealment of drug addiction, habitual alcoholism or homosexuality/lesbianism. (Art.46, FC) 4. The consent of either party was obtained through force, intimidation, or undue influence. 5. Either party is physically incapable of
b. No other misrepresentation or deceit of CHARACTER, HEALTH, RANK, FORTUNE OR CHASTITY shall constitute FRAUD c. TOLENTINO: fraud must relate to fact material to the marital relation; PRINCIPLE OF ENUMERATION; no other cases of fraud can be ground for annulment; INCLUSIO UNIUS EST EXCLUSIO ALTERIUS d. Conviction of Crime: requisites are moral turpitude conviction e. Concealment of Pregnancy fraud against very essence of marriage; importance of procreation of children; an assault to the integrity of the union by introducing ALIEN BLOOD If husband knew of pregnancy, the marriage cannot be annulled on the ground of concealment. Three (3) months after the celebration of the marriage, a baby was born. Annulment was refused because of advanced stage of pregnancy, which must be patent to the husband (Buccat v Mangonon) If there was coitus before marriage & wife was pregnant at time of marriage although he may not be the father, marriage cannot be annulled because man knows wife is unchaste. Principle: one cannot go to court with unclean hands. Prof. Balane: An isolated case and is not doctrinal. f. Marriage cannot be annulled on ground that wife concealed the fact that she had been lewd & corrupt and had illegitimate child (Shrady v Logan) g. Maybe ratified upon cohabitation after knowledge of fraud Buccat v Buccat, 72 Phil. 19 Wife gave birth 3 months after marriage celebration. Husband filed for annulment. Ground: concealment of non-virginity. Court held that it was unbelievable that wife could have concealed 6 months of pregnancy. Aquino v Delizo, 109 Phil. 21 The Supreme Court granted annulment because the wife concealed the fact that she was 4 months pregnant during the time of the marriage. It argued that since Delizo was naturally plump, Aquino could hardly be expected to know, by
mere looking, whether or not she was pregnant at the time of the marriage. Almelor v. RTC, (2008) It is the concealment of homosexuality, and not homosexuality per se, that vitiates the consent of the innocent party. Such concealment presupposes bad faith and intent to defraud the other party in giving consent to the marriage. Corpuz v. Ochoterena, (2004) In a legal separation or annulment case, the prosecuting attorney must first rule out collusion as a condition sine qua non for further proceedings. A certification by the prosecutor that he was present during the hearing and even crossexamined the plaintiff does not suffice to comply with the mandatory requirement. STD: Art. 45 vs. Art. 46
Art. 46 STD The STD is a type of fraud which is a ground for annulment Must be concealed Need not be serious nor incurable It is the concealment that gives rise to the annulment
19
PERSONS AND FAMILY RELATIONS
Does not have to be concealed Must be serious and incurable The STD itself is the ground for annulment
Effect of Cure to Fraud in Art. 46: Recovery or rehabilitation from STD, drug addiction, and habitual alcoholism will NOT BAR ACTION for annulment; defect: not the disease, but the FRAUD which VITIATED CONSENT
4. Force, intimidation, undue influence a. FORCE must be one as to prevent party from acting as a free agent; will destroyed by fear/compulsion b. INTIMIDATION must be one as to compel the party by reasonable/wellgrounded fear/evil imminent upon person/properties c. DEGREE OF INTIMIDATION: age, sex, condition of person borne in mind d. A threat to enforce claim thru competent authority, lawful or not, does not vitiate consent e. VIOLENCE or INTIMIDATION annul obligation even if by third person (Art. 1336, CC) f. UNDUE INFLUENCE when improper advantage of his power over the will of
another, depriving freedom of choice. (Art. 1337, CC) EXAMPLE: confidentiality, family relations, suffering from mental weakness, in financial distress g. Threat to FILE A CASE OF immorality on bar candidate where he does not marry a girl who he has impregnated does not vitiate consent (Ruiz v Atienza) h. Threat or intimidation as no to act as FREE AGENT; threatened of armed demonstrations by brother is ANNULLABLE (Tiongco v Matig-a) i. Man rapes a girl, marries her & has no intention to live with the girl; marriage is annullable (People v Santiago) j. Committee added undue influence, maybe compelled to enter out of REVERENTIAL FEAR e.g., fear of causing distress to parents, grandparents, etc 5. Impotency a. should exist at the time of celebration marriage b. should continue to the time of trying annulment case c. should appear incurable d. should be unknown to the other party e. physical condition: sexual intercourse with a person of the opposite sex is impossible, not mere sterility f. only potent spouse can file action (principle: one cannot come to court with unclean hands) g. must exist at time of marriage, must be continuous, must be incurable; thus if removable by operation, NOT ANNULLABLE (Sarao v Guevarra, CA, 40 O.G. 155 Supp. 263) h. both spouses impotent, marriage cannot be annulled because neither spouse is aggrieved i. impotency due to old age, marriage cannot be annulled j. POTENCY PRESUMED; party who alleges impotency has burden of proof (Jimenez v Canizares) k. Although potency is presumed, there is a doctrine in England called TRIENNIAL COHABITATION that if wife remains virgin after 3 yrs, husband presumed impotent & has burden to prove otherwise (Tompkins v Tompkins) l. REFUSAL of wife to be examined DOES NOT PRESUME impotency because Filipino women are inherently shy & bashful; TC must order physical examination because w/o proof of
m.
n.
o.
p.
impotency, she is presumed potent; to order her to undergo physical exam does not infringe constitutional rights against self-incriminating (Jimenez v Canizares) Villanueva vs. CA (2006): Absence of cohabitation is not a ground for annulment. NOTE: if wife continues to refuse to undergo physical exam, she can be held for CONTEMPT & ordered to be confined in jail until she does so RELATIVE IMPOTENCY: may now be invoked because there are cases where one is impotent with respect to his spouse but not with other men or women. EXAMPLE: penile erection to other women possible; unusually large penis can fit with abnormally large vagina
20
PERSONS AND FAMILY RELATIONS
6. Sexually-transmissible disease serious and incurable a. should exist at the time of the marriage b. should be found serious c. should appear to be incurable d. Should be unknown to other party e. reason: danger to the health of spouse & offspring/s f. same as incurable impotency g. Ratification or Convalidation of Voidable Marriages: by cohabitation or prescription cannot be ratified or convalidated: prior subsisting marriage; would result in anomalous relationship vitiated by impotency remains as long as afflicted vitiated by affliction of STD remains as long as afflicted Affliction of STD is unknown to the other spouse (BALANE) The other spouse must also be free from a similar STD. (BALANE) h. 2 & 3 prescribe w/in 5 yrs by Art. 47(5)
21
PERSONS AND FAMILY RELATIONS
Fraud
2. During lucid interval or after regaining sanity, and before death Five years after discovery of fraud Five years after disappearance of force or intimidation Five years after marriage Five years after marriage
Free cohabitation after having full knowledge of fraud Free cohabitation after the force has ceased or disappeared Deemed ratified when action prescribes Deemed ratified when action prescribes
to
1. One spouse is incurably impotent (Art. 47 prescription: 5 years) 2. One spouse has an incurable STD (Art. 47 prescription: 5 years) 3. Sane spouse marries an insane spouse w/o knowledge of insanity 4. Prior subsisting marriage
Prior Voidable Marriage: UNLESS final judgment or dissolved by death, subsequent marriage NULL & VOID Status of Subs Marriage: during subsisting marriage, remarriage is BIGAMOUS & VOID. EXCEPT: 1. absentee four years or for two under special circumstances 2. absence gives rise to presumption of death w/c is required to be declared in SUMMARY PROCEEDING to enable to remarry Period of Absence: 1. GENERALLY, under CC, 7 years required for declaration of presumptive death For REMARRIAGE, reduced to 4 years by FC 2. EXCEPT in cases, CC 4 years & FC 2 years IF a. ON BOARD VESSEL lost at sea voyage, airplane b. ARMED FORCES in war c. DANGER OF DEATH under other circumstances, existence not known Good Faith: PERIOD of absence for PRESUMPTIVE DEATH is MANDATORY thus cannot be shortened by good faith and if be done so will be VOID Burden of Proof: two successive marriages, nd presumption on validity of 2 marriage and ND burden on party ATTACKING VALIDITY OF 2 MARR. PRESUMPTION in favor of INNOCENCE prevails over PRESUMPTION of ST CONTINUANCE OF LIFE OF 1 SPOUSE & MARITAL RELATIONS. Meaning of Absent spouse 1. Absent for 4 years having well-founded belief of death 2. period of 4 years reduced to 2 years in danger of death in A391 CC where: a. on board vessel lost at sea or airplane (includes all kinds of watercraft & aircraft) b. armed forces in war (all military operations involving armed fighting; does not apply to nurses, doctors, reporters or cameramen) c. danger of death
As to In order to remarry, Declaration of remarriage summary presumptive death proceeding is is not necessary necessary As to who can institute the action Can be instituted by The spouses the present spouse, themselves any interested party, and the subsequent spouse Upon reappearance, judicial proceeding is necessary to declare marriage null and void
As to Subsequent effect on marriage is subsequen automatically t marriage terminated by the recording of an affidavit of reappearance of the absent spouse As to ground
Well founded belief Generally believed that the absent to be dead spouse is dead
Actions/Decree
1. The court shall provide for the support of the spouses, 2. The custody and support of the common children, giving paramount consideration to their moral and material welfare, their choice of parent with whom they wish to remain. 3. The court shall also provide for visitation rights of other parent.
period elapsed from time the absentee was last heard not from judicial declaration. After 7 years, presumptive death arises w/o need for judicial declaration
22
Art. 363 (CC): No child under 7 years shall be separated from the mother unless there is a compelling reason to do so.
Legitimacy of children
How to impugn
attacked must be
VI. Jurisdiction
Tamano v. Ortiz, (1998) PD No. 1083 (Code of Muslim Personal Laws of the Philippines) does not provide for a situation where the parties were married both in civil and Muslim rites. Consequently, the shari'a courts are not vested with original and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws. Hence, the Regional Trial Courts have jurisdiction over such cases.
Art. 48 (FC): To prevent collusion between the parties, fabrication or suppression of evidence, the prosecuting attorney or fiscal shall appear on behalf of the State.
23
c.
6. Lesbianism or homosexuality of respondent. Same as rules on drug addiction 7. Contracting by respondent of a subsequent bigamous marriage, whether in the Philippines of abroad. 8. Sexual infidelity or perversion. a. No conviction is required. 9. Attempt on the life of petitioner by respondent. a. There is no need for criminal conviction. Only a preponderance of evidence is required. 10. Abandonment of petitioner by respondent without justifiable cause for more than one year.
I.
(asked in 75, 76, 79, 80, 82, 89, 94, 96, 97, 02, 03, 06, and 07 bar exams) (Art. 55, FC) [V A P I D H B I L A] Note: The grounds for legal separation are exclusive. V 1. Repeated physical violence or grossly abusive conduct directed against petitioner, a common child, or a child of the petitioner. 2. Physical violence or moral pressure to compel petitioner to change religious or political affiliation. 3. Attempt of respondent to corrupt or induce petitioner, a common child, or child of petitioner, to engage in prostitution or connivance in such corruption or inducement. 4. Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned (executive pardon, not pardon from offended party). 5. Drug addiction or habitual alcoholism of respondent. a. When it existed from the time of celebration, and concealed from petitioner, can be a ground for annulment of marriage. b. When it occurred only after the marriage, it is only a ground for
People v. Zapata and Bondoc, 88 Phil 688 (1951) Adultery is not a continuing crime, but is consummated and exhausted at the moment of carnal union. As such, every sexual act is a ground for legal separation. Gandioco v Pearanda, 155 SCRA 725 (1989) In sexual infidelity as a ground for legal separation, there is no need for prior conviction for concubinage, because legal separation only requires a preponderance of evidence, as opposed to proof beyond reasonable doubt required in concubinage. Lapuz Sy v. Eufemio, 43 SCRA 177 (1972) The death of one party in a legal separation case abates the action. This is because the death of either spouse automatically dissolves the marriage. An action for legal separation is also purely personal between the spouses. Dela Cruz. v. Dela Cruz 22 SCRA 333 Abandonment is not mere physical estrangement but also financial and moral desertion. There must be an absolute cessation of marital relations, duties, and rights with the intention of perpetual separation.
legal separation, whether concealed or not. Drug addiction or habitual alcoholism may be supervening.
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II. Defenses
Grounds for denying legal separation (Art. 56, FC) [4CMPRD] 1. Condonation by aggrieved party 2. Consent by aggrieved party to the commission of the offense 3. Connivance between parties in the commission of the offense 4. Mutual guilt or Recrimination between spouses in the commission of any ground for legal separation 5. Collusion between parties to obtain decree of legal separation 6. Prescription of action for legal separation (Art. 57: 5 years from occurrence of the cause of action) 7. Reconciliation of parties during pendency of action (Art. 66 par.1) 8. Death of either party during pendency of action (Lapuz-Sy v Eufemio, supra) Bugayong v. Ginez, 100 Phil. 616 (1956) Continued cohabitation despite full knowledge of the spouses infidelity constitutes implied condonation.
E. Collusion
The court shall assign the prosecuting attorney or fiscal to make sure that there is no collusion between the parties, and that evidence is not fabricated or suppressed (Art. 60, par. 2, FC)
B. Reconciliation Period
Action cannot be tried before six months have elapsed from the filing of the petition (Art. 58. FC) Note: without prejudice to judicial determination of custody of children, alimony, and support pendente lite
for
Legal
C. Attempts on Reconciliation
Action cannot be tried unless the court has attempted to reconcile the spouses, and determined that despite such efforts, reconciliation is highly improbable (Art. 59, FC)
D. Confession
No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment (Art. 60, par. 1. FC)
1. The spouses can Live separately (Art. 63. FC) 2. The ACP or CPG shall be dissolved and liquidated, and the share of the guilty spouse shall be forfeited in favor the common children, previous children, or innocent spouse, in that order (Art. 63. cf. Art. 43, par. 2). 3. Custody of the minor children shall be awarded to the innocent spouse (Art. 63. FC, cf. Art 213) 4. Guilty spouse shall be disqualified from Inheriting from innocent spouse by intestate succession. The provisions in favor of the guilty party in the will of the innocent spouse shall also be revoked by operation of law. (Art. 63, FC) 5. Donations in favor of the guilty spouse may be revoked (Art. 64. FC) 6. Innocent spouse may also revoke designation of guilty spouse as beneficiary
Note: Art. 60 par. 1 applies only if the judgment was based solely on the stipulation of facts. Thus, if other grounds were used, Art. 60 par. 1 is not applicable. (BALANE)
25
Art. 26(2), Civil Code. 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 Philippines law.
VI. Reconciliation
A. How Done
Should the spouses reconcile, they should file a corresponding joint manifestation under oath of such reconciliation. (Art. 65, FC)
B. Effects of Reconciliation
1. Proceedings for legal separation shall be terminated at whatever stage. (Art. 66, FC) 2. If there is a final decree of legal separation, it shall be set aside. (Art. 66, FC) 3. The separation of property and forfeiture of share of guilty spouse shall subsist, unless the spouses agree to revive their former property regime or to institute another property regime. ( Art. 66 cf. Art. 67, FC) 4. Joint custody of children is restored. 5. The right to intestate succession by guilty spouse from innocent spouse is restored. The right to testamentary succession depends on the will of the innocent spouse.
Valid Foreign Divorce a. valid marriage between a Filipino citizen and a foreigner b. divorce is validly obtained by the alien spouse c. alien spouse becomes capacitated to remarry Result: the Filipino spouse shall likewise have the capacity to remarry under Philippine law Van Dorn v. Romillo, 139 SCRA 139 (1985) Before the effectivity of the FC, the SC applied Article 15 of the CC, from the foreigners perspective, to decree the validity of a divorce with respect to the Filipino spouse to prevent the unjust result to the Filipino spouse as the alien spouse is already capacitated to remarry. Quita v. Dandan, 300 SCRA 406 (1998) The time of obtaining foreign citizenship is necessary to determine the validity of divorce obtained by the spouse who applied for foreign citizenship. It must be ascertained that when that spouse obtained the divorce, he/she was no longer bound by Philippine domestic law Llorente v. CA, 345 SCRA 592 (2000) nd A 2 marriage obtained by a Filipino who is already a US citizen at the time of the nd divorce and the remarriage makes the 2 marriage completely valid. Garcia v. Recio, 366 SCRA 437 (2001) Philippine courts do not take cognizance of foreign laws. The foreign law granting divorce as well as the nature of the divorce granted (w/n it was absolute) must be proven. Republic vs. Orbecido, (2005) The period of reckoning to determine citizenship for the purpose of the application of Art.26 par.2 is the time of securing a divorce.
VII. Divorce
(asked in 87, 90, 96, 97, 99, 02, 06 bar exams) General Rule Divorce is not allowed in the Philippines and even for Filipinos abroad. Exception Foreign and Muslim divorces. Foreign Divorces (asked in 09 bar exam)
Art. 15, Civil Code. Laws relating to family rights and duties, or to the status, condition and legal capacity of the persons are binding upon citizens of the Philippines, even though living abroad.
in an Insurance policy, even if such stipulations are irrevocable (Art. 64. FC, cf. PD 612, sec. 11). 7. Obligation for Mutual support ceases, but the court may order the guilty spouse to support the innocent spouse. (Art. 198, FC) 8. The wife shall continue to use the Surname of the husband even after the decree for legal separation. (Art. 372, CC)
Effect: Filipinos living abroad could not obtain a valid divorce even in countries where divorce is legally permissible.
26
Chapter VI. LEGAL SEPARATION, DIVORCE, and DE FACTO SEPARATION 2. Judicial authorization may be obtained when the consent of one spouse is required by law for any transaction of the other (subject to Art. 239), and 3. The separate property of both spouses shall be solidarily liable for the support of the family in the absence of sufficient community property. The spouse present shall be given judicial authority to administer or encumber any specific separate property of the absent spouse and use the fruits thereof to satisfy the latters share. Art. 127. Same rules as above, but for Conjugal Partnership of Gains Procedural Rules for Art. 100/127, par. 2: 1. In the case of Art 100/127 par. 2, a verified petition may be filed in court, attaching the proposed deed or description of the transaction and the reason why the other spouses consent has not been secured. (Art. 239) 2. Court shall issue a notice for the initial conference and shall notify the other spouse to show cause why petition should not be granted. (Art. 242) 3. If the petition is not resolved at the initial conference, then the court shall decide in a summary hearing. (Art. 246) 4. Its decision shall be final and executory. (Art. 247)
Muslim Divorces Presidential Decree 1083 (Code of Muslim Personal Laws) 7 forms of Muslim divorces (Art. 45) (TFKILTZ) a. talaq- repudiation of the wife by the husband b. ila- vow of continence by the husband c. zihar- injurious assimilation of the wife by the husband d. lian- acts of imprecation e. khul- redemption by the wife f. tafwid- exercise by the wife of the delegated right to repudiate g. faskh- judicial decree Grounds for faskh (Art. 52) a. The marriage bond shall be severed and the spouses may contract another marriage b. The spouses shall lose their mutual rights of inheritance c. The custody of children shall be determined in accordance with Article 78 of the code d. The wife shall be entitled to recover from the husband her whole dower in case the talaq has been affected after the consummation of the marriage, or onehalf thereof if effected before its consummation e. The husband shall not be discharged from his obligation to give support in accordance with Article 67 f. The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved and liquidated. Yasin v. Sharia District Ct, 241 SCRA 606 (1995) A Muslim divorce dissolves the marital bond and therefore a woman may use her maiden name and surname without any special proceeding in court.
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PERSONS AND FAMILY RELATIONS
Perez v. CA, 255 SCRA 661 (1996) Applicability of the tender years presumption of Art. 213 (No child under 7 years of age shall be separated from the mother) to de facto separation, save for compelling reasons such as neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of child, insanity, communicable disease.
VIII.
De Facto Separation
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PERSONS AND FAMILY RELATIONS
I.
settlement applies to all Filipinos, regardless of the place of the marriage and their residence. Exceptions 1. Where both spouses are aliens 2. As to the extrinsic validity of contracts 3. Contrary stipulation Requirements for Marriage Settlements (Art. 77, FC) (WiSER) 1. Must be in writing (public or private) 2. Signed by the parties 3. Executed before the celebration of the marriage 4. Must be registered in local civil registry to affect third persons (If not registered, will not prejudice third persons, ACP will apply) 5. If party needs parental consent (age 18-21), parent/guardian must be a party to the settlement (Art. 78) 6. If party is under civil interdiction or other disability (not including insanity), court appointed guardian must be a party (Art. 79) General Rule: All modifications to the marriage settlement must be made before the marriage is celebrated. (Art. 76) Exceptions: Legal Separation (Art. 63 (2), FC) o The property regime is dissolved. Revival of the former property regime upon reconciliation if the spouses agree (Art. 66 (2)) A spouse may petition the court for: o Receivership o Judicial separation of property, or o The authority to be the sole administrator of the conjugal partnership If the other spouse abandons the other without just cause or fails to comply with his or her obligations to the family. (Art. 128) Judicial Dissolution (Arts. 135 and 136) Furthermore: Marriage settlements are considered ACCESSORY to the marriage Stipulations in consideration of future marriage and donations will be void if the marriage does NOT take place. (Art. 81, FC)
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PERSONS AND FAMILY RELATIONS
I.
General Provisions
(asked in 76, 86, 91, 92, 94, 95, 96, 97 and 05 bar exams) Order to be followed (Arts. 74, 75, FC) 1. Marriage settlements before marriage spouses can agree to whatever regime they want (ACP, CPG, complete separation or any other property regime to be agreed upon prior to the celebration of the marriage). 2. Family Code If there are no marriage settlements, or if the regime agreed upon is void, the Absolute Community of Property will be followed 3. Local Customs General Rule (Art. 80, FC) Property relations between Filipino spouses are governed by Philippine laws, regardless of the place of marriage and their residence (Nationality Rule- Art 15, NCC). Hence The rule that ACP is the default mode of property relations absent any marriage
Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES DONATIONS PROPTER NUPTIAS May be made by minors (Art. 78) May include future property If present property is donated and property is not absolute community, limited to 1/5 (Art. 84) Grounds for revocation In Art. 86 ORDINARY DONATIONS Cannot be made by minors Cannot include future property No limit to donation of present property provided legitimes are not impaired Grounds for revocation in donation laws
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PERSONS AND FAMILY RELATIONS
Rules 1. Before Marriage General Rule: Future spouses cannot donate to each other more than 1/5 of their present property (excess shall be considered void) (Art. 84, FC) Exception: If they are governed by ACP 2. During Marriage General Rule: Spouses cannot donate to each other, directly or indirectly (donations made by spouses to each other during the marriage are void) (Art. 87, FC) Exception: Moderate gifts on the occasion of any family rejoicing. Matabuena v Cervantes, (1971) The donation between common-law spouses falls within the provision prohibiting donations between spouses during marriage. Harding v. Commercial Union, (1918) The prohibition on donations can only be assailed by persons who bear such relation to the parties or the property itself, that their rights are being interfered with. Here, the insurance company of the donated car cannot assail the validity of the donation. In addition, the codal exception of moderate gifts depends on the income class of the spouses and a car could be considered a moderate gift that does not infringe the prohibition of donation between spouses. Sumbad v. CA, (1999) The donation made by a man to a woman was held valid because no proof was shown that they were still living in a common-law relationship at the time of the donation. Subject to
Rules to Follow in Donation Propter Nuptias 1. Family Code provisions (Arts. 82-87) 2. Ordinary Donation provisions (Art. 83, FC; Title III of Book III of the NCC) 3. Provisions on testamentary succession and the formalities of wills for donations on future property (Art. 84, par. 2) Distinguished from Ordinary Donations
DONATIONS PROPTER NUPTIAS Does not require express acceptance ORDINARY DONATIONS Express acceptance necessary
Grounds for Revocation of Donation Propter Nuptias (Art. 86, FC) (CAVaLRI) 1. If the marriage is not celebrated or judicially declared void ab initio, except donations made in settlements. 2. When the marriage takes place without the consent of the parents or guardians, as required by law. 3. When the marriage is annulled, and the donee acted in bad faith. 4. Upon legal separation, if the donee is the guilty spouse. 5. If there is a resolutory condition, and it is not complied with. 6. When donee has committed an act of ingratitude: (Art. 765, CC) (PCS) a. An offense against person or property of donor, or his wife or children under parental authority. b. An imputation to the donor of any criminal offense, or any act involving moral turpitude, even if proven, unless the crime is committed against the donee, his wife or children under his authority. c. Refusing to support the donor, if he/she is legally required to do so. *The action for filing for revocation of donation prescribes.
C. Charges Upon the ACP (Art. 94, FC) (4 debts, 2 taxes, 2 expenses, support, donation)
(asked in 76 bar exam) 1. Support Spouses Even if not living together except when a spouse leaves conjugal home without just cause Even during pendency of action for legal separation or annulment of marriage Common children Legitimate children of previous marriage
1. Are considered valid. 2. In case of foreclosure a. if property value < obligation, donee shall not be liable b. if property value > obligation, donee shall be entitled to the excess (Art. 85, FC)
c.
When the marriage is dissolved (by death of one of the spouses) d. When the marriage is annulled
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2.
3.
4. 5.
6. 7.
8.
9.
10.
Illegitimate children - follow the provisions on Support and (9) Debts and Obligations Contracted During Marriage Either by both spouses or one of them, with the consent of the other. In (2) and (3), creditors need not prove that the debts benefited the family. Debts Contracted by one Spouse Without Consent of the other ACP liable only to the extent that the debt benefited the family. Tax, Liens, Repairs on Community Property Includes both major and minor repairs Taxes and Expenses for Mere preservation of Separate properties Applies only to separate properties by either spouse being used by the family, not those that do not benefit the family. Expenses limited to minor repairs. Expenses for professional, Vocational, or Self-Improvement Course of Spouses Ante-nuptial Debts that Benefited the Family If the ante-nuptial debt did not benefit the family, applicable rule is (9). Donations by Both Spouses to Common Legitimate Children Purpose: professional, vocational courses or activities for selfimprovement Ante-Nuptial Debts not under (7), Support of Illegitimate Children, Liabilities of Either Spouse Arising from Crime or Quasi-Delict Only ff the debtor-spouse has no exclusive property or his or her property is insufficient. The payments by the ACP are deemed advances to be deducted from the share of the guilty spouse upon the liquidation of the absolute community. Expenses of Litigation between Spouses Except when suit is groundless
presumed that she agreed with the husbands decision. (Art. 96, FC) Except When the other spouse is incapacitated, or unable to participate in the administration (e.g. when abroad). The powers refer solely to administration; disposition or encumbrance requires consent of the absent or incapacitated spouse. Homeowners Savings & Loan Bank v. Dailo (2005) In the absence of (court) authority or written consent of the other spouse, any disposition or encumbrance of the conjugal property shall be void. Disposition of Property Either spouse may, through a will, dispose his/her interest in the community property. (Art. 97, FC) However, the will should refer only to his/her own share in the community property Donation of Property General Rule Donation of one spouse without the consent of the other is not allowed (Art. 98, FC) Exceptions a. Moderate donations to charity due to family rejoicing or distress; b. Moderate gifts by each spouse to the other due to family rejoicing. (Note: Whats moderate depends on the socioeconomic status of the family)
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PERSONS AND FAMILY RELATIONS
E. Dissolution of ACP
ACP terminates upon (Art. 99, FC) 1. Death of either spouse follow rules in Art. 103 2. Legal Separation follow rules in Arts. 63 and 64 3. Annulment or judicial declaration of nullity follow rules in Arts. 50 to 52 4. Judicial separation of property during marriage follow rules in Arts. 134 to 138 Rules on De Facto Separation (ART. 100, FC) De facto separation does not affect the ACP; EXCEPT that: 1. Spouse who leaves the conjugal home without just cause shall not be entitled to support. He/She, however, is still required to support the other spouse and the family. 2. If consent is necessary for transaction but is withheld or otherwise unobtainable,
If community property is insufficient except in (9), spouses are solidarily liable for the unpaid balance from their separate properties. Gambling losses shall be borne by the losing spouses separate property, winnings shall accrue to the community property. (Art. 95, FC)
and
Administration of property Belongs to both spouses jointly. If they disagree the husbands decision prevails. However, the wife has five years from the date of the decision to go to court for recourse. Otherwise, it is
3. 4. 5.
6.
Abandonment (Art. 101, FC) Present spouse may petition the court for: 1. receivership; 2. judicial separation of property; or 3. authority to be the sole administrator of the absolute community, subject to precautionary conditions that the court may impose. Spouse is prima facie considered to have abandoned the other spouse and the family if: 1. he/she has left for a period of three months, 2. he/she has failed to inform his/her whereabouts for a period of three months.
Rules in Case of Termination of Marriage by Death of One of the Spouses (Art. 103, FC) 1. The community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased spouse. 2. If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate the community property either judicially or extra-judicially within one year from the death of the deceased spouse. a. If no liquidation is made within the period, any disposition or encumbrance involving community property of the terminated marriage shall be void. b. Non-compliance with liquidation procedures would mean that a subsequently contracted marriage will follow a regime of complete separation of property. Procedure for Liquidation of Community Properties of Two Marriages (Art. 104, FC) 1. Determine the capital, fruits, and income of each community upon such proof as may be considered according to the rules of evidence. 2. In case of doubt as to which community the existing properties belong, they shall be divided between two communities in proportion to the capital and duration of each. Onas v. Javillo, (1934) Javillo contracted 2 marriages. SC ruled that each absolute community should be considered owner of the parcels of land acquired during its existence. Death discontinues ACP. Vda. De Delizo v. Delizo, (1976 In case of doubt as to which community the existing properties belong, the same shall be divided between the different communities in proportion to the capital and duration of each.
4. Balance, or net remainder is divided equally between the spouses, irrespective of how much each brought into the community. 5. If personal obligations of a spouse exceed his/her separate property, creditor can go after the share of the spouse on the net remainder of the ACP, without prejudice to
authorization may be obtained from the court. Support for family will be taken from the ACP. If ACP is insufficient, spouses shall be solidarily liable. If it is necessary to administer or encumber separate property of spouse who left, spouse present may ask for judicial authority to do this. If ACP is not enough and one spouse has no separate property, spouse who has property is liable for support, according to provisions on support.
the provisions of law on forfeitures and delivery of presumptive legitimes. 6. After covering all community obligations and obligations of spouses, balance of separate properties shall be delivered to respective spouses or their heirs, and they will also divide into two equal shares whatever is left of the community assets, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes.
33
34
PERSONS AND FAMILY RELATIONS
and
Depends upon respective capitals of partners, or upon their agreement General rule is that all partners have equal rights in administration, management, and control of partnership. Considered a juridical person At the time agreed upon by partners By agreement of parties; subsidiarily, by law For profit Death, insolvency, civil interdiction, termination of term, express will of any partner, etc. (Arts 1830-1931) Surviving partners may choose to continue partnership There can be division of profits without dissolution Same as individual partners, except when one or more partners designated as managers. ACP Properties become part of community property Becomes community property Net remainder of ACP divided equally between spouses or heirs Mutual trust and confidence between spouses; fosters oneness of spouses
4. Equality
for
1. Property acquired before marriage. 2. Property acquired during marriage 3. Upon dissolution of marriage 4. Basis
5. Liquidation
Easier to liquidate because net remainder of community properties are simply divided between spouses or heirs.
Note: CPG begins at the precise moment the marriage celebrated (Art 107)
(OGRE)
(1) Property brought into marriage by each spouse as his/her own (2) Property acquired by either spouse during the marriage by gratuitous title (3) Property acquired by right of redemption, by barter, or by exchange with property belonging to either spouse (4) Property purchased with exclusive money of either spouse
Moral damages arising from a contract paid from CPG are also awarded to the CPG (Zulueta v. Pan-Am, 1973). Loans contracted during the marriage are conjugal, and so is any property acquired therefrom (Mendoza v. Reyes, 1983).
E. Rules
1. presumption that property is conjugal: all property acquired during the marriage, whether made, contracted, or registered in the name of one spouse, are presumed conjugal unless the contrary is proven (Art. 116, FC). As a condition sine qua non for the operation of the presumption in favor of the conjugal partnership the party who invokes the presumption must first prove that the property was acquired during the marriage. (Acabal v. Acabal, 2005) "X married to Y" as it appears in land titles is not conclusive of the conjugal status of the property (Jocson v. CA, 1989). Exclusive property brought into a second marriage remains exclusive property of that spouse under CPG regime; ACP is not retroactive for marriages celebrated under the Civil Code (Francisco v. CA, 1998). 2. property purchased by installment (paid partly with conjugal funds and partly with exclusive funds) Art. 118: conjugal property if full ownership was vested during the marriage CPG shall reimburse the owner-spouse exclusive property if full ownership was vested before the marriage ownerspouse shall reimburse the CPG Exclusive property brought into a second marriage remains exclusive property under CPG regime. ACP is not retroactive for marriages celebrated under the Civil Code (Castillo v. Pasco, 1964). Even if the installment is completed after the marriage, the property is exclusive if
2. Other Separate Property: (CSI) a. Collection of credits belonging to one spouse exclusively but the interests shall belong to the CPG (Art 119) b. Sale of separate property of a spouse c. Indemnity paid in case of expropriation of separate property or under an insurance policy covering separate property. Spouses retain the ownership, possession, administration and enjoyment of their exclusive properties (Art 110, par 1.) Possession by one spouse of the separate property the other spouse does not affect ownership Transfer of administration of a spouses exclusive property to the other spouse must be made in a public instrument recorded in the registry of property of the place where the property is located (Art 110, FC) but ownership is not conferred to the administrator spouse (Rodriguez v. de la Cruz, 1907).
4. Share of either spouse in hidden treasure, whether as finder or owner of property where treasure is found 5. Acquired through occupation such as fishing or hunting 6. Livestock existing at dissolution of partnership in excess of what is brought by either spouse to the marriage 7. Acquired by chance, such as winnings from gambling or betting
35
ownership was vested in one spouse before the marriage (Lorenzo v. Nicolas, 1952). 3. rules on improvement on exclusive property: (Art. 120) accession - if original value is greater than new value (value of land + value of improvements + net change in value), then land remains exclusive property of the owner-spouse; subject to reimbursement of the cost of improvement reverse accession - if original value is less than new value, then land becomes conjugal property; subject to the reimbursement of the value of the property of the owner-spouse at the dissolution of the CPG. Change of ownership takes place at the time when the improvements are made (Calimlim-Canullas v. Fortun, 1984). 4. If winning ticket is bought by conjugal funds, prize is conjugal; otherwise, it is exclusive property of spouse who owns the ticket. 5. Property belonging to one spouse converted into another kind totally different in nature from its original form during marriage becomes conjugal in the absence of proof that the expenses of conversion were exclusively for the account of the original owner-spouse, subject to reimbursement of the value of the original property from the conjugal partnership 6. Money received under the Social Security Act is not conjugal, although the employee-spouse contributes to the SSS with his salaries, but belongs to the designated beneficiary under the Social Security Law. 7. Intellectual property, like copyright or patent, should, according to Tolentino, citing Planiol and Ripert, be considered separate property of the spouse who produces or invents or discovers it. 8. Business property (e.g. trade-marks, trade names, service marks, business goodwill) are merely accessories to some commercial establishment or product, so that if such establishment or product is separate property of one spouse, then the business property is separate property; but all benefits or earnings derived from these different kinds of property during the marriage should belong to the conjugal property (Tolentino, id., citing the same authority).
36
PERSONS AND FAMILY RELATIONS
* Same as the rule governing ACP Categorization of CPG Charges (Pangalangan notes)
Debts & Obligations (2) Debts incurred: (a) by administratorspouse for the benefit of the family; (b) by both spouses; (c) by one spouse with the consent of the other (3) by one spouse without the consent of the other for the Taxes & Expenses (4) maintenance of CPG properties Support (1) support of spouses and common children
CIVIL LAW REVIEWER benefit of the family (7) antenuptial debts for the benefit of the Family Properties (9) litigation expenses, unless the suit is groundless (8) education of common children, only for value of donation
Debts incurred in the exercise of a spouses profession are charged on the CPG (Javier v. Osmea, 34 PHIL 336). Debts incurred during the marriage are presumed to be conjugal and thus are charged on the CPG (Cobb-Perez v. Lantin, 23 SCRA 637) Loan contracts signed by both spouses are conjugal, and they are jointly liable for payment, even if only one spouse signs a subsequent promissory note (DBP v. Adil, 161 SCRA 307). Debts incurred for the benefit of third persons are not charged on the CPG (Luzon Surety Co. v. De Garcia, 30 SCRA 111).
I.
1. Procedure (Art. 129) IAR-DRIN-PC a. Prepare an inventory of all properties b. Amounts advanced by CPG in payment of personal debts and obligations shall be credited to CPG c. Reimburse each spouse for the use of his/her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. d. Debts and obligations of CPG shall be paid out of the conjugal assets, otherwise both spouses are solidarily liable with their exclusive property. e. Remains of the exclusive properties shall be delivered to respective ownerspouses
Homeowners Savings & Loan Bank v. Dailo (2005) In the absence of (court) authority or written consent of the other spouse, any disposition or encumbrance of the conjugal property shall be void.
37
f.
Indemnify loss or deterioration of movables belonging to either spouse, even due to fortuitous event, used for the benefit of the family g. Net remainder of CPG shall the constitute the profits which shall be divided equally between husband and wife except when: o A different proportion or division was agreed upon in the marriage settlements o There has been a voluntary waiver or forfeiture of such share as provided in the FC h. Presumptive legitimes delivered to common children per Art. 51 i. Conjugal dwelling goes to: o Spouse with whom majority of common children choose to remain (below 7yrs deemed to have chosen the mother) o Whoever the court chooses in case of lack of majority 2. Rules Property must be recorded in the registry of property in order to affect third persons dealing with registered property. Spouses are not co-owners of CPG during the marriage and cannot alienate the supposed interest of each in the said properties. The interest of the spouses in the CPG is only inchoate or a mere expectancy and does not ripen into title until it appears after the dissolution and liquidation of the partnership that there are net assets. (De Ansaldo v. Sheriff of Manila, 1937) Rules on liquidation upon death and liquidation of CPG of 2 or more marriages same as in ACP (Art. 103 & 104) Support to surviving spouse & children during liquidation is charged against the fruits or income of their shares in the properties. (Art. 133) Personal debt acquired during marriage of either spouse is not chargeable against community property (Go v. Yamane, 2006)
V. Separation Marriage
of
Properties
During
38
PERSONS AND FAMILY RELATIONS
Art. 134, Family Code. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause.
Judicial separation of property may either be (1) voluntary or (2) for sufficient cause.
(2)
of
(5) Restoration of parental authority to the spouse previously deprived of it (4) When the spouse who left the conjugal home without legal separation resumes common life with the other (3) When the court, being satisfied that the spouse granted the power of administration in will not again abuse that power, authorizes the resumption of said administration (6) Reconciliation and resumption of common life of the spouse who have separated in facts for at least 1 year
(6) At the time of the petition, the spouses have been separated in fact for at least 1 year and reconciliation is highly improbable.
(7) When after voluntary dissolution of the ACP or CPG has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property
CIVIL LAW REVIEWER regime. No voluntary separation of property may thereafter be granted.
39
PERSONS AND FAMILY RELATIONS
B. Rules
1. Each spouse shall contribute to the family expenses, in proportion to their income. In case of insufficiency, the market value of their separate properties. (Art. 146 par. 1) 2. Liability of spouses to the creditors of the family shall be SOLIDARY. (Art. 146, par. 2) Abandonment is defined as the lack of intention to return to the conjugal home, without justifiable cause (Dela Cruz v. Dela Cruz)
of
property
1. ACP or CPG is dissolved and liquidated (Art. 137) 2. Provisions on complete separation of property applies after dissolution of ACP/CPG (Art. 138) a. Liability spouses to creditors shall be solidary with their separate properties b. mutual obligation to support each continues except when there is legal separation 3. Petition and final judgment of separation of property must be filed in the appropriate registries (Art. 139)
Art. 148
In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES Art.147 1. man and woman 2. living together as husband and wife 3. with capacity to marry (Art.5 without any legal impediment) a. at least 18 years old b. not Art. 37 (incestuous void marriage) c. not Art. 38 (void marriage by reason of public policy) d. not bigamous 4. other void marriages due to absence of formal requisite Owned in equal shares Remains exclusive provided there is proof Art.148 1. 2. 3. 4. 5. 6. 7. man and woman living together as husband and wife NOT capacitated to marry (Art.35(1) under 18 years old) adulterous relationship (e.g. concubinage) bigamous/polygamous marriage (Art.35(4)) incestuous marriages under Art.37 Void marriages by reason of public policy under Art.38
40
PERSONS AND FAMILY RELATIONS
Applicability
Salaries and wages Properties acquired through exclusive funds Properties acquired by both through work or industry
Separately owned by parties Remains exclusive Owned in common in respective contribution proportion to
Governed by rules on co-ownership Owned in equal shares since it is presumed to have been acquired through joint efforts if one party did not participate in acquisition, presumed to have contributed through care and maintenance of family and household
No presumption of joint acquisition. When there is evidence of joint acquisition but none as to the extent of actual contribution, there is a presumption of equal sharing If one party is validly married to another his/her share in the co-owned properties will accrue to the ACP/CPG of his/her existing valid marriage If the party who acted in bad faith is not validly married to another, his/her share shall be forfeited in the same manner as that provided in Art 147 The same rules on forfeiture shall apply if both parties are in bad faith
Forfeiture
When only one of the parties is in good faith, the share of the party in bad faith shall be forfeited: 1. In favor of their common children 2. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants 3. In the absence of such descendants, such share belongs to the innocent party
Yaptinchay v. Torres, (1969) Application of Article 148; there was no proof of actual contribution, while there was a subsisting marriage apart from the union without marriage, therefore, the N. Forbes house goes to the CPG of subsisting marriage Juaniza v. Jose, (1979) Property acquired by a married party during cohabitation with another not his spouse belongs to the CPG of the marriage, and the other party cannot be held jointly/severally liable for it Villanueva v. CA, (2004) Transfer of certificate and tax declarations are not sufficient proof of joint contribution.
Joaquino v. Reyes (2004) Prohibitions against donations between spouses must likewise apply to donations between persons living together in illicit relations;
41
PERSONS AND FAMILY RELATIONS
II.
I.
Family
(asked in 91 bar exam) Basic social institution which public policy cherishes and protects hence, no suit between members of the family shall prosper unless compromise between parties has failed.
A. General Rule
The family home is exempt from (EFA): 1. Execution 2. Forced sale 3. Attachment
B. General Rule
For a suit between members of the same family to prosper, the following are required: 1. Earnest efforts towards a compromise have been made 2. Such efforts have failed 3. Such earnest efforts and the fact of failure must be alleged Note: The case will be dismissed if it is shown that no such efforts were made.
B. Exceptions in the exemption of the family home from execution (Art. 156)
1. Nonpayment of taxes. 2. Debts incurred prior to the constitution of the family home. 3. Debts secured by mortgages on the premises before or after such constitution. 4. Debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building.
C. Exceptions (VJLAFF)
1. 2. 3. 4. 5. 6.
to
the
general
Civil status of persons, Validity of marriage or a legal separation, Any ground for legal separation, Future support, Jurisdiction of courts, Future legitime Hontiveros v. RTC, (1999) Whenever a stranger is a party in a case involving family members, the requisite showing of earnest efforts to compromise is no longer mandatory, as such inclusion of a
those
3. They are dependent for legal support on the head of the family Requirements for the sale, alienation, donation, assignment, or encumbrance of the family home 1. the written consent of the person constituting it, 2. his/her spouse, and 3. majority of the beneficiaries of legal age Note: If there is a conflict, the Court will decide.
Patricio v. Dario III, (2006) WON the grandson of the deceased is a beneficiary according to Art. 154 FC. The beneficiary should satisfy all requisites; he must be dependent on the head of the family. Arriola v. Arriola, (2008) This case involves half brothers and a second wife; the family home includes the land it is built on. The rule in Art. 159 of the FC regarding the 10 year period is applied, the parties involved must wait.
In case of death (ART. 159) - The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years, or as long as there is a minor beneficiary. - The heirs cannot partition the home unless the court finds compelling reasons therefor.
Versola v. Mandolaria, (2006) The proof that the house is the family home must be alleged against creditors; Applied the rule in Art. 160, FC.
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I.
Kinds of Filiation
De Castro v. Assidao-De Castro, (2008) Common children born before the annulment are legitimate, and therefore entitled to support from each of the spouses.
(Arts. 163, 164, 165 FC) 1. Natural a. Legitimate b. Illegitimate 2. Legal Fiction (Adoption) Legitimate Children (asked in 79, 82, 84, 85, 99 and 03 bar exams) Conceived or born during the marriage of parents May be thru natural means or by artificial insemination. 1. Natural/Biological Liyao v. Liyao, (2002): A child conceived or born during a valid marriage is presumed to belong to that marriage, regardless of the existence of extramarital relationships. 2. Artificial Insemination (Art. 164) Requisites for children conceived through artificial insemination to be considered legitimate: a. Artificial insemination made on wife b. Sperm comes any of the following: Husband Donor husband and donor c. In case of donor sperm, husband and wife must authorize/ratify insemination in a written instrument Executed & signed by husband and wife before the birth of the child. Recorded in the civil registry together with the birth certificate of the child. Illegitimate Children (asked in 80, 82, 83, 84, 90, 93, 99, 00, 07, 08 and 09 bar exams) General Rule: Those conceived and born outside of a valid marriage. Exceptions: a. Children of marriages void under Art.36 (psychological incapacity).
b. And under Art. 53 (the second marriage of a widow or widower who has not delivered to his or her children by his or her first marriage the legitime of said children). (SEMPIO-DIY)
43
Baluyut v. Baluyut, (1990) Unsigned birth certificates are not evidence of recognized filiation. Acebedo v. Arquero, (2003) Baptismal certificates are only conclusive of the sacrament administered, and cannot be used as proof of filiation. Lim v. CA, (1975) Marriage certificates cannot be used as proof of filiation. Jison v. CA, (1998) Rule 130, Sec. 40 is limited to objects commonly known as family possessions reflective of a family's reputation or tradition regarding pedigree like inscriptions on tombstones, monuments, or coffin plates. Eceta v. Eceta (2004) Signature of the father on the birth certificate is considered as an acknowledgement of paternity and mere presentation of a duly authenticated copy of such certificate will successfully establish filiations. Heirs of Rodolfo Baas v. Heirs of Bibiano Baas, (1985) "Su padre [Your father]" ending in a letter is only proof of paternal solicitude and not of actual paternity. Signature on a report card under the entry of "Parent/Guardian" is likewise inconclusive of open admission. De Jesus v. Syquia, (1933) By "open and continuous possession of the status of a legitimate child" is meant the enjoyment by the child of the position and privileges usually attached to the status of a legitimate child, like bearing the paternal surname, treatment by the parents and family of the child as legitimate, constant attendance to the child's support and education, and giving the child the reputation of being a child of his parents. Agustin v. CA, (2005) DNA evidence can be used as proof of paternity. De Jesus v. Estate of Decedent Juan Gamboa Dizon (2001) The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing, is
If the birth of the child has been concealed or was unknown to the husband, the above periods shall be counted: 1. from the discovery or knowledge of the birth of the child, or 2. from the discovery or knowledge of its registration, 3. whichever is earlier. Sayson v. CA Legitimacy can only be attacked directly General Rule: Only the husband can impugn the legitimacy of a child. If he does not bring action within the prescribed periods, he cannot file such action anymore thereafter, and this is also true with his heirs. Exception: That the heirs of the husband may file the action or continue the same if it has already been filed a. If the husband died before the expiration of the period fixed for bringing his action b. If he should die after the filing of the complaint without having desisted c. If the child was born after the death of the husband.
A. Rules
Legitimate or illegitimate children may prove their filiation in the same way and on the same evidence. General Rule: They may only prove their status using the following pieces of evidence:
1. 2. Their record of birth appearing in the civil registry. An admission of his filiation (legitimate or illegitimate) by his parent or parents in a public document or a private handwritten instrument and signed by said parent or parents. (SEMPIO-DIY) Proof of open and continuous possession of status as legitimate or illegitimate child Any other means stated by the rules of court or special laws
3. 4.
1. Within 1 year if husband or any heirs reside in the same city or municipality where the child was born or his birth was recorded. 2. Within 2 years if the husband or all heirs live in the Philippines but do not reside in the same city or municipality where the child's birth took place or was recorded 3. Within 3 years if the husband or all heirs live outside the Philippines when the child's birth took place or was recorded in the Philippines
Mendoza v. Melia, 17 SCRA 788 Baptismal certificates are given probative value only for births before 1930. Birth certificates must be signed by the parents and sworn for it to be admitted as evidence.
44
in itself a consummated act of acknowledgement of the child, and no further court action is required. Gono-Javier vs. Court of Appeals, (1994) Mere possession of status as an illegitimate child does not make a recognized illegitimate child but is only a ground for bringing an action to compel judicial recognition by the assumed parent. Herrera v. Alba, (2005) In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: a. How the samples were collected, b. How they were handled, c. The possibility of contamination of the d. e. f.
samples, The procedure followed samples, Whether the proper procedures were followed tests, and the qualification of conducted the tests. in analyzing the standards and in conducting the the analyst who
because either or both of them were below eighteen (18) years of age at the time of childs conception may be legitimated. Grounds for impugning legitimation
1. 2. 3. The subsequent marriage of the child's parents is void. The child allegedly legitimated is not natural. The child is not really the child of the alleged parents. (SEMPIO-DIY)
45
PERSONS AND FAMILY RELATIONS
3. Support
Estate of Rogelio Ong v. Diaz, (2007) DNA evidence can still be used even after the death of the parent.
Republic v. Vicencio, (1998) A legitimate child's use of the father's surname is mandatory. De Asis v. CA, (1999) Obligation to support a legitimate child cannot be waived or compromised. David v. CA, (1995) Parental authority over an illegitimate child belongs to the mother. Tonog v. CA, (2002) However, this may be temporarily denied to the mother by reason of her incapacity. Mossesgeld v. CA, (1998) The father cannot force the use of his surname without first establishing legitimacy. Under RA 9255, only an acknowledgment by the father is necessary for the use of the father's surname. Capote v. CA, (2007) An illegitimate child already given the father's surname without the latter's acknowledgment, must revert to using the mother's surname.
"Legitimated" children are illegitimate children who because of the subsequent marriage of their parents are, by legal fiction, considered legitimate. Requisites for legitimation
1. 2. The child was conceived and born outside of wedlock. General rule: The parents, at the time of the child's conception, were not disqualified by any impediment to marry each other.
ADOPTION
(Asked in 76, 77, 85, 94, 95, 96, 00, 01, 03, 04, 05, 07, 08 bar exams)
LEGITIMATION The law merely makes legal what exists by nature ADOPTION The law merely creates by fiction a relation which did not in fact exist Generally applies to strangers Always by judicial decree Husband and wife adopt jointly with exceptions (RA8552) Creates a rel. only between the child and the adopting parents
Only children
natural
2. Aliens a. Possession of the same as the qualifications for Filipinos b. His/her country has diplomatic relations with the Philippines c. Has been living continuously for 3 years (provided that absences not exceeding 60 days per 1 year for professional, business, or emergency reasons are allowed) in RP prior to the filing of application and maintains such residence until the decree is entered d. Has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country e. His/her government allows the adoptee to enter his/her country as his/her adoptee f. Has submitted all the necessary clearances and such certifications as may be required **Items numbers c, d and e may be waived under the following circumstances: a. Adopter is a former Filipino Citizen who th seeks to adopt a relative within the 4 degree of consanguinity or affinity b. One who seeks to adopt the legitimate or illegitimate child of his/her Filipino spouse c. One who is married to a Filipino Citizen and seeks to adopt jointly with his/her th spouse a relative within the 4 degree of consanguinity or affinity of the Filipino spouse 3. Guardians With respect to theirs ward after the termination of the guardianship and clearance of his/her accountabilities. Husband and wife shall adopt jointly; Except 1. if one spouse seeks to adopt the legitimate child of the other
Effect
Same status and rights with that of a legitimate child not only in relation to the legitimizing parents but also to other relatives
I.
d. Has not been convicted of any crime involving moral turpitude e. Emotionally and psychologically capable of caring for children f. At least sixteen (16) years older than adoptee, except when adopter is biological parent of the adoptee or is the spouse of the adoptees parent g. In a position to support and care for his/her children in keeping with the means of the family
46
Chapter XI. ADOPTION Missing Child Tri-Media (2) Declaration Abandonment (3) Declaration Availability Adoption Case Study Report in of of for Application for Adoption Case Study Report Matching Placement Supervised Trial Custody Home Study Report Recommendation and Consent Petition for Adoption Adoption Decree
A. Pre-Adoption Services
The DSWD shall provide for the following services: 1. Counseling services for the biological parents, prospective parents, and prospective adoptee 2. Exhaust all efforts to locate the biological parents, if unknown
2. if one of the spouse seeks to adopt his/her illegitimate child provided that other spouse has signified his/her consent 3. if spouses are legally separated from each other ** if spouses jointly adopt, parental authority shall be exercised jointly
47
rectification exist, and other requirements as determined by the Department. Tamargo v. CA (1992) Where the petition for adoption was granted after the child had shot and killed a girl, the Supreme Court did not consider that retroactive effect may be given to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted child. Retroactive effect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the adopting parents so as to burden them with liability for a tortuous act that they could not have foreseen and which they could not have prevented would be unfair and unconscionable. Lazatin v. Campos, (1979) Adoption is a juridical Act, proceeding in rem. Because it is artificial, the statutory requirements in order to prove it must be strictly carried out. Petition must be announced in publications and only those proclaimed by the court are valid. Adoption is never presumed. Santos v. Aranzanso, (1966) Validity of facts behind a final adoption decree cannot be collaterally attacked without impinging on that courts jurisdiction. DSWD v. Belen, (1997) Participation of the appropriate government instrumentality in performing the necessary studies and precautions is important and is indispensable to assure the childs welfare. Landingin v. Republic, (2006) Consents for adoption must be written and notarized. Sayson v. CA. (1992) Adopted children have a right to represent their adopters in successional interests. (I dont know the basis for this doctrine but according to SCRA and my notes, the decision in this case was: Although an adopted child shall be deemed to be a legitimate child and have the same rights as the latter, these rights do not include the right of representation. The relationship created by the adoption is between only the
48
PERSONS AND FAMILY RELATIONS
adopting parents and the adopted child. It does not extend to the blood relatives of either party.)
49
PERSONS AND FAMILY RELATIONS
D. Application Should Be Supported By The Following Documents Written And Officially Translated In English (Sec. 10)
1. Birth Certificate of applicants 2. Marriage Contract and Divorce decree, if applicable 3. Written consent of their biological or adoptive children above 10 years of age in the form of sworn statement, 4. Physical, medical and psychological evaluation by a duly licensed physician and psychologist 5. Income Tax Returns or any document showing the financial capability of the applicant 6. Police Clearance 7. Character reference from the local church/minister, applicants employer and a member of the immediate community who have known the applicant for at least 5 years 8. Recent postcard-sized pictures of the applicant and his immediate family
50
PERSONS AND FAMILY RELATIONS
Unjustified refusal to support ones children or spouse is a sufficient cause for disinheriting a spouse (Art. 921, CC).
I.
Support
Consists of everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family (Art. 194). The right and duty to support, especially the right to education, subsists even beyond the age of majority (Art. 194). The amount of support is in proportion to the means of the provider and the needs of the receiver, and can be reduced or increased if such circumstances change (Arts. 201 202). The obligation to give support shall be DEMANDABLE from the time the person who has a right to receive the same needs it for maintenance, but it shall not be PAYABLE except from the date of judicial or extra-judicial demand (Art. 203). When, WITHOUT THE KNOWLEDGE of the person obliged to give support, it is given by a stranger, the stranger has the right to claim the same from the person obliged, unless it appears that he gave it without intention of being reimbursed (Art. 206). When the person obliged to give support UNJUSTLY REFUSES OR FAILS to give support when urgently needed, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This particularly applies when the father or mother of a minor child unjustly refuses to support or fails to give support to the child when urgently needed (Art. 207). Future support cannot be the subject matter of a compromise; such are void (Art. 2035, CC).
Spouses are jointly responsible for the family's support. Support expenses shall be paid from the CP, or in absence thereof, the income/fruits of their separate properties, or in insufficiency/absence of such, from the separate properties (Art. 70). ___________
A. Kinds of Support
1. Legal that which is required to be given by law 2. Judicial that which is required to be given by court order whether pendente lite or in a final judgment 3. Voluntary or Conventional by agreement
Refusal to support children or descendants without justifiable cause is a sufficient condition for the disinheritance of parents or ascendants, whether legitimate or illegitimate (Art. 920, CC).
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[NOTE: Tolentino says that the above preference given to a child under parental authority over the spouse should prevail only if the person obliged to support pays it out of his own separate property. So if the support comes from ACP or CPG, the above rule of preference for the child does not apply.] Pelayo v. Lauron, (1909) Even if the parents-in-law were the ones who called for the physicians services for the childbirth of their daughter-in-law, it is the womans husband who is bound to pay the fees due to the physician. Lacson v. Lacson, (1968) Man is still liable for support in arrears since the mother advanced it from a stranger (the uncle of the daughters). Lacson v. Lacson, (2006) Acknowledgment of and commitment to comply with support obligation through a note in his own handwriting is proof that a demand was made.
4. Legitimate brothers and sisters, whether of full or half-blood; 5. Illegitimate brothers and sisters, EXCEPT when the need for support of one (of age) is due to a cause imputable to his/her fault or negligence (Art. 196).
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A. Custody
Parental Preference Rule The natural parents, who are of good character and who can reasonably provide for the child, are ordinarily entitled to custody as against all persons (Santos v CA, 1995). Who exercises authority in cases of death, absence, remarriage, or separation of parents In case one parent is absent or already dead, the present or surviving parent (Art. 212 FC) Remarriage shall not affect the parental authority over the children (Art. 212 FC) In case of a void/annulled marriage, and there is no agreement bet. spouses, the parent designated by the court (Art. 43 FC par 1; Art. 49 FC). Innocent spouse gets custody of minor children in legal separation (Art. 63 FC par 3). 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 (Art. 213 FC par 1). Tender Years Presumption NO child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. (Art. 213 FC par 2; Gamboa v. CA, 2007) Examples of compelling reasons are: When the mother is insane; with a communicable disease that might endanger the life or health of the child; is maltreating the child; or has another child by another man who lives with her. (Cervantes v. Fajardo, 1989) [NOTE: Prostitution or infidelity to husband does not make a mother unfit as parent.]
I.
Parental Authority
(asked in 94, 03 and 05 bar exams) (patria potestas): Its the mass of rights and obligations which parents have in relation to the person and property of their children until their emancipation, and even after this under certain circumstances (Manresa). Parental authority includes (Art. 209 FC): 1. The caring for and rearing of children for civic consciousness and efficiency; 2. The development of the moral, mental and physical character and well-being of said children Rules as to the exercise of parental authority: 1. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary (Art. 211 FC) 2. If the child is illegitimate, parental authority is with the mother (Art.176 FC; see also Chapter 10). Cases when parental authority and responsibility may be transferred or renounced: Adoption; Guardianship; or Commitment of the child in an entity or institution engaged in child care or in a childrens home Characteristics of parental authority: 1. It is a natural right and duty of the parents (Art. 209 FC) 2. It cannot be renounced, transferred or waived, except in cases authorized by law (Art 210 FC) 3. It is jointly exercised by the father and the mother (Art. 211 FC)
cannot
be
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[NOTE: The same order applies to the appointment of judicial guardian] Special parental authority exercised by (Art. 218 FC) 1. School, its administrators and teachers, or 2. The individual, entity or institution engaged in child care.
Substitute Parental Authority It is exercised in case of death, absence, or in case of unsuitability of parents. Special Parental Authority
Duties of Parents upon their children Support and upbringing in accordance to their means (Art. 220 par 1) Educate, instruct, and provide them with moral and spiritual guidance, and love and understanding (Art. 220 par 3 Defend them against unlawful aggression Answer for damages caused by their fault or negligence, and for civil liability for crimes committed by them (Art. 221 FC) Give their lawful inheritance Liability of parents for torts committed by their minor children (Art. 221 FC; Art. 2180 CC) Parents and other persons exercising parental authority are civilly liable for the torts of their unemancipated children: Provided they are living in their company, and Subject to the appropriate defenses provided by law, like observing the diligence of a good father of a family to prevent the damage (Libi v. IAC, 1992) If the minor child is, therefore, not living with the parents but has been entrusted to the care of other persons, or is an intern in school, the liability does not apply. This liability of the parents and those exercising parental authority over the child is solidary and primary and direct, not subsidiary
It is exercised concurrently with the parental authority of the parents and rests on the theory that while the child is in the custody of the person exercising special parental authority, the parents temporarily relinquish parental authority over the child to the latter.
St. Marys Academy v. Carpitanos, (2002) The special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution.
Liability of those exercising special parental authority over the child (Art. 219 FC) 1. They are principally and solidarily liable for damages caused by the acts or missions of the minor child while under their supervision, instruction or custody. HOWEVER, this liability is subject to the defense that the person exercising parental authority exercised proper diligence. 2. The parents and judicial guardians of the minor or those exercising substitute parental authority over the minor are subsidiarily liable for said acts and omissions of the minor. Effects of Parental Authority Upon the Property of the Child (Art. 225 FC) The Father and Mother shall jointly exercise legal guardianship over the property of the minor child without court appointment In case of disagreement, the fathers decision shall prevail, unless there is judicial order to the contrary If the market value of the property or the annual income of the child exceeds P50,000, the parent is required to furnish a bond of not less than 10% of the value of the childs property or income
and
Special
Parental
(Asked in 2003 bar exam) Substitute parental authority exercised by (in order): 1. The surviving grandparent (Art. 214 FC) 2. Oldest brother or sister, over 21 years old, unless unfit or unqualified (Art. 216 FC par 2).
Administer the property of a child for her/his support and education, unless title/transfer provides otherwise (Art. 226 FC par 1) Administer the fruits and income (ONLY) of the childrens property primarily to support the child and secondarily to use for the daily needs of the family (Art. 226 FC par 2) To give or withhold consent on marriage, pre-nuptial, donation propter nuptias, adoption, and employment To disinherit them for just cause
3. Childs actual custodian, over 21 years old, unless unfit or unqualified (Art. 216 FC par 3)
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Termination
of
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PERSONS AND FAMILY RELATIONS
Grounds for Suspension of Parental Authority (CLEBC; Art. 230-31 FC) 1. Conviction of parent for crime punished w/ civil interdiction 2. Treats child with excessive harassment and cruelty 3. Gives corrupting orders, counsel or example 4. Compels child to beg 5. Subjects or allows acts of lasciviousness Parental Authority Permanently Terminates (Art. 228 FC) 1. Upon death of parents 2. Upon death of child 3. Upon emancipation of child 4. If the parents exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse (Art. 232 FC) Termination of parental authority which can be revived by final judgment (Art. 229 FC) 1. Upon adoption of the child; 2. Upon the appointment of a general guardian for the child; 3. Upon judicial declaration
Duties of Children: Art. 357, NCC obey and honor his parents or guardian respect old relatives and persons holding substitute parental authority exert his utmost for his education and training cooperate with the family in matters for his own good Art. 4, PD603 strive to live an upright and virtuous life love, obey, respect his parents and cooperate with them in strengthening the family extend his love to his brothers and sisters exert his utmost to develop his potentials
Art. 305, Civil Code. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. Art. 306, Civil Code. Every funeral shall be in keeping with the social position of the deceased. Art. 307, Civil Code. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family. Art. 308, Civil Code. No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in articles 294 and 305. Art. 309, Civil Code. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral. Art. 310, Civil Code. The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses, and shall be chargeable to the conjugal partnership property, if the deceased is one of the spouses.
Guidelines in making funeral arrangements The persons who preferred in the right to make funeral arrangements may waive the right expressly or impliedly in which case the right and duty immediately descend to the person next in the order It must be in keeping with the social position of the deceased. Law shall prevail over the will of the persons who have the right to control the burial of deceased exhumation, evidential purpose, disposition of corpse by deceased, mutilation of corpses and autopsies. Corpses which are to be buried at public expenses may also be used for scientific purposes under certain conditions. Expressed wishes of the deceased is given priority provided that it is not contrary to law and must not violate the legal and reglamentary provisions concerning funerals and disposition of the remains (time, manner, place or ceremony) In the absence of expressed wishes, his religious beliefs or affiliation shall determine the funeral rights. In case of doubt, the persons in Art. 199 shall decide. Any person who disrespects the dead or interferes with the funeral shall be liable for material and moral damages.
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PERSONS AND FAMILY RELATIONS
Duty and Right to make funeral arrangements (in relation to Art. 199 FC) 1. Spouse 2. Descendants in nearest degree 3. Ascendants in nearest degree 4. Brothers and sisters 5. Municipal authorities if there are no persons who are bound to support or if such persons are without means