Vous êtes sur la page 1sur 445

CIVIL LAW REVIEW

Introduction
TOLENTINO, CIVIL CODE, Commentaries &
Jurisprudence, Volume 1, hereinafter cited as
Tolentino:
Concepts of Law - The term law may be
understood in 2 concepts: in the general or
abstract sense, and in the specific or material
sense.
In the general sense, law is defined as
the science of moral rules, founded on the
rational nature of man, w/c govern his free
activity, for the realization of the individual &
social ends, of a nature both demandable &
reciprocal. (Sanchez Roman.)
In the specific sense, it is defined as
a rule of conduct, just, obligatory,
promulgated by legitimate authority, & of
common observance & benefit. (ibid.)

it commands that something be done, in


w/c case it is mandatory;
it commands that something should not be
done, in w/c case it is prohibitory; &
it commands that what it permits to be
done should be tolerated or respected,
in w/c case it is permissive.
Codification of Laws.
A code is a collection of laws of the same
kind; a body of legal provisions
referring to a particular branch of law.
Reasons for codification:
the necessity of simplifying & arranging the
many juridical rules scattered in
several laws & customs;
the necessity of unifying various legislation
in the same country; &
the necessity of introducing reforms
occasioned by social changes.

Foundation of Law.-- Law rests upon the


concepts of order, co-existence, & liberty.

Balane:

Characteristics of Law:
1. it is a rule of human conduct;
2. promulgated by competent authority;
3. obligatory and
4. of general observance.

There are two great models of a


modern civil code, the French Civil Code
(Code Napoleon) and the German Civil
Code {BGB or Buogeoliches Gesetzbuch
[Beuo w/c means "town," "that w/c has
reference to a citizen;" buch w/c means
"book;" BGB means "a law book governing
citizens."]

General Divisions of Law.-- Law in its


most comprehensive sense has been divided
into 2 general groups: divine law & human
law. By divine law is meant that in w/c God
himself is the legislator who has promulgated
the law; by human law is meant that w/c is
promulgated by man to regulate human
relations.
Human law is in turn divided into 2
main classes:
general or public law &
individual or private law. These in turn are
sub-divided as follows:
General or public law:
International law;
Constitutional law;
Administrative law;
Criminal law;
Religious law.
Individual or private law:
Civil law;
Mercantile law;
Procedural law.
Kinds of Specific Law.-- Every law
commands, bec. it is obligatory; but it
commands in 3 different ways:

Changes fr. the Old Civil Code in the


New Civil Code:
Creation of new rights.-- E.g., in the case of
spurious children who were given rights
for the first time (successional right,
right of support, etc.). New provisions
on Human Relations (Articles 33-36),
Reformation of Instruments (Art. 1359),
two additional quasi-contracts (Art.
2174 & 2175), moral & nominal
damages (Arts. 2217 & 2221).
Adoption of new solutions like Art. 461
(change in the river course), Art. 1256
(consignation), Art. 1658 (lease.)
Clarification of old provisions like Art. 275
(Legitimation), Art. 992 (illegitimate
children's right to inherit ab intestato),
Art. 1410 (void contracts)
Omission of certain subjects, e.g., dowry
w/c is very western. In the Phils., we
have the opposite of dowry, the bigay-

kaya. These contracts were abolishedcensos, usus & habitation (subsumed in


easement & lease.)

UMALI V. ESTANISLAO 209 SCRA 446


(1992)

Civil Law Defined.


the mass of precepts w/c determine &
regulate the relations of assistance, authority
& obedience among the members of a family,
& those w/c exist among members of a
society for the protection of private
interests. (Sanchez Roman.)

Facts:
RA 7167 was enacted granting
certain tax exemptions. Sec.3 of such law
stated that the law would take effect upon
its approval. The law was approved on
Dec.19, 1991 by the President. It was
published in a newspaper of general
circulation on Jan.14, 1992.

Art. 1. This Act shall be known as the


Civil Code of the Philippines.

Issue: Did RA 7167 take effect upon its


approval on Dec.19, 1991 or on Jan.30,
1992, 15 days after its publication?

Tolentino:
Civil Code defined.-- A civil code is a
collection of laws w/c regulate the private
relations of the members of civil society,
determining their respective rights &
obligations, w/ reference to persons, things, &
civil acts.
Sources of the Civil Code:
The Civil Code of 1889;
The codes, laws, & judicial decisions, as well
as the works of jurists of other countries,
such as Spain, the various states of the
American Union, etc.;
Doctrines laid down by the SC of the Phils.;
Filipino customs & traditions;
Philippine statutes, such as the Marriage Law,
the Divorce Law, the Code of Civ. Proc. &
the Rules of Court.
The Code Commission itself
Works of jurists & commentators of various
nations (added by Jurado, CIVIL LAW
REVIEWER.)
Art. 2. Laws shall take effect after fifteen
days following the completion of their
publication either in the Official Gazette or in
a newspaper of general circulation in the
Philippines, unless it is otherwise provided.
(as amended by EO 200.)

Balane:
The Civil Code took effect on August 30, 1950
according to the case of Lara v. del Rosario
(isang letter na lang, ako na to a! Obiter
Master), one year after its publication,
reckoned fr. the date of actual release

Held: Reiterating Tanada v. Tuvera, the


clause unless it is otherwise provided
refers to the date of effectivity & not to the
requirement of publication itself w/c cannot
in any event be omitted. This clause does
not mean that the legislator may make the
law effective immediately upon approval,
or on any other date w/o its previous
publication.
Publication is indispensable in every
case, but the legislature may in its
discretion provide that the usual fifteen
(15) day period shall be shortened or
extended.
BALANE CASES:
PESIGAN V. ANGELES 129 SCRA 174
Held: The word laws in Art. 2 includes
circulars & regulations w/c prescribe
penalties.
Publication is necessary to
apprise the public of the contents of the
regulations & make the said penalties
binding on the persons affected thereby.
PEOPLE V. VERIDIANO 132 SCRA 523
Held: When PR Go Bio, Jr. committed the
act complained of in May '79, there was no
law penalizing such act. BP 22 became
effective only on June 29, 79, 15 days after
its publication. Before the public may be
bound by its contents, especially its penal
provisions, the law must be published & the
people officially informed of its contents.
For, if a statute had not been published
before its violation, then, in the eyes of the
law, there was no such law to be violated
&, consequently the accused could not
have committed the alleged crime.
TANADA V. TUVERA 136 SCRA 27
Held: The publication of all presidential
issuances of a public nature or of
2

general applicability is mandated by law.


The clear object of the law is to give the
general public adequate notice of the various
laws w/c are to regulate their actions &
conduct as citizens.
W/o such notice &
publication, there would be no basis for the
application of the maxim ignorantia legis non
excusat. It would be the height of injustice to
punish or otherwise burden a citizen for the
transgression of a law of w/c he had no notice
whatsoever, not even a constructive one. It
is needless to say that the publication of
presidential issuances of a public nature or
of general applicability is a requirement of
due process. It is a rule of law that before a
person may be bound by law, he must first be
officially & specifically informed of its
contents.
TANADA V. TUVERA 146 SCRA 446
Held: [T]he clause "unless it is otherwise
provided" refers to the date of effectivity &
not to the requirement of publication itself,
w/c cannot in any event be omitted. This
clause does not mean that the legislature
may make the law effective immediately
upon approval, or on any other date, w/o its
previous publication.
Publication is indispensable in every
case, but the legislature may in its discretion
provide that the usual 15-day period shall be
shortened or extended.
It is not correct to say that under the
disputed
clause
publication
may
be
dispensed w/ altogether. The reason is that
such omission would offend due process
insofar as it would deny the public knowledge
of the laws that are supposed to govern it.
Conclusive presumption of knowledge
of the law.-- The conclusive presumption that
every person knows the law presupposes that
the law has been published if the
presumption is to have any legal justification
at all.
The term laws should refer to all laws
& not only to those of general application, for
strictly speaking all laws relate to the people
in general albeit there are some that do not
apply to them directly.
RULE: All statutes, including those of
local application & private laws, shall be
published as a condition for their effectivity,
w/c shall begin 15 days after publication
unless a different effectivity date is fixed by
the legislature.
Coverage.-- Covered by this rule are
PDs & EOs promulgated by the Pres. in the
exercise of legislative powers. Administrative
rules & regulations must also be published if
their purpose is to enforce or implement
existing law pursuant to a valid delegation.

Interpretative regulations & those


merely internal in nature, i.e., regulating
only the personnel of the administrative
agency & not the public, need not be
published. Neither is publication required
of the so-called letters of instructions
issued
by
administrative
superiors
concerning the rules or guidelines to be
followed by their subordinates in the
performance of their duties.
Publication must be in full or it is no
publication at all since its purpose is to
inform the public of the contents of the
laws. The mere mention of the number of
the PD, the title of such decree, its
whereabouts, the supposed date of
effectivity, & in a mere supplement of the
OG
cannot
satisfy
the
publication
requirement. This is not even substantial
compliance.
Balane:
General application of the provision:
The law takes effect on the 16th day.
General rule: It must be published either
in the OG or in a newspaper of gen. circ.
Exception: The law itself may provide for
a different mode of publication, either as to
form (published in some other way
provided it is a reasonable mode of
publication)
or
effectivity
date
(a
reasonable period fr. publication; cannot be
immediately upon approval).
Rationale.-- The rationale for requiring
publication is to give notice to the public in
determining their actions so as to conform
to the law. "How can I follow something
the existence of w/c I do not know?"
Q: Is a law granting citizenship required to
be published?
A: Yes. The SC ruled that The term laws
should refer to all laws & not only to those
of general application, for strictly speaking,
all laws relate to the people in general
albeit there are some that do not apply to
them directly. (Tanada v. Tuvera, 146 S
446, 453.)
Art. 3. Ignorance of the law excuses no
one fr. compliance therew/.
Tolentino:
Reasons
for
Presumption
of
Knowledge of Law.
If laws will not be binding until they are
actually known, then social life will be
impossible, bec. most laws cannot be
enforced due to their being unknown to
many;
3

it is absurd to absolve those who do not know


the law & increase the obligations of
those who know it;
it is almost impossible to prove the contrary,
when a person claims ignorance of the
law;
in our conscience, we carry norms of right &
wrong, & a sense of duty, so that our
reason indicates many times what we
have to do; & in more complicated
juridical relations, there are lawyers who
should be consulted.
What Laws Covered.-- Philippine laws are
covered. There is no conclusive presumption
of knowledge of foreign laws.
Even our
courts cannot take judicial notice of them.
Ignorance of a foreign law will not be a
mistake of law but a mistake of fact.
And w/ respect to local laws, the
article is limited to mandatory & prohibitory
laws. It does not include those w/c are
merely permissive. (Manresa.)
No Exceptions Admitted.-- The rule is
based on public interest & is designed
precisely to avoid abuse through allegation
that the law has not come to the knowledge
of a party. But it has been held by our CA
that the rule should not be applied w/ equal
force to minors who, due to their lack of
intelligence, must be treated differently.
(Peo. v. Navarro, 51 OG 4062.)
Mistake of Fact.-- Ignorance may either be
of law or of fact.
Ignorance of fact
(ignorantia facti) may excuse a party fr. the
legal consequences of his conduct; but not
ignorance of law, for ignorantia juris
neminem excusat.
Difficult Question of Law.-- In specific
instances provided by law, mistake as to
difficult legal questions has been given the
same effect as a mistake of fact, e.g., Art.
526, par. 3 w/c provides: Mistake upon a
doubtful or difficult question of law may be
the basis of good faith.
Balane:
Art.
3
creates
a
conclusive
presumption w/c in some instances may be
unreasonable or harsh. But the alternative is
worse, w/c is anarchy. Bec. the law realizes
its severity, it is sometimes mitigated in
several provisions such as Art. 526, par.3
(quoted above).

BALANE CASE:
KASILAG V. RODRIGUEZ 69 PHIL 217
Held: Gross & inexcusable ignorance of
the law may not be the basis of GF but
excusable ignorance may be such basis (if
it is based upon ignorance of a fact.) It is a
fact that the petitioner is not conversant w/
the laws bec. he is not a lawyer.
In
accepting
the
mortgage
of
the
improvements he proceeded on the wellgrounded belief that he was not violating
the prohibition regarding the alienation of
the land. In taking possession thereof & in
consenting to receive its fruits, he did not
know, as clearly as a jurist does, that the
possession & enjoyment of the fruits are
attributes of the contract of antichresis &
that the latter, as a lien, was prohibited by
Sec. 116. Thus, as to the petitioner, his
ignorance of the provisions of sec. 116 is
excusable & may be the basis of GF.

Art. 4. Laws shall have no retroactive


effect, unless the contrary is provided.

Tolentino:
Concept of Retroactive Law.-A
retroactive law is one intended to affect
transactions w/c occurred, or rights w/c
accrued, before it became operative, & w/c
ascribes to them effects not inherent in
their nature, in view of the law in force at
the time of their occurrence.
It is one w/c creates a new
obligation & imposes a new duty, or
attaches a new disability, in respect to
transactions or considerations already
past. (Balane quoting Tolentino.)
Reason for the Article.-- A law that has
not yet become effective cannot be
considered as conclusively known by the
people. To make a law binding even before
it has taken effect may lead to arbitrary
exercise of legislative power.
Exceptions to Rule:
When the law itself so expressly provides.-However, this has two exceptions:
when the retroactivity of a penal statute
will make it an ex post facto law, &
when the retroactive effect of the statute
will constitute an impairment of the
obligation of contract.
4

In case of Penal statutes.-- Penal laws


shall have retroactive effect insofar as
they favor the accused who is not a
habitual criminal, even though at the time
of the enactment of such laws final
sentence has already been rendered.
(Art. 22, RPC.)
In case of Remedial statutes.-- Remedial
statutes are those w/c refer to the method
of enforcing rights or of obtaining redress
of their invasion.
In case of Curative statutes.-- Curative
statutes are those w/c undertake to cure
errors & irregularities, thereby validating
juridical or administrative proceedings,
acts of public officers, or private deeds &
contracts w/c otherwise would not
produce their intended consequences by
reason of some statutory disability or the
failure to comply w/ come technical
requirement. But these statutes cannot
violate constitutional provisions, nor
destroy vested rights of a 3rd person.
They cannot affect a judgment that has
become final.
In case of laws interpreting others.-These are laws w/c are intended to clarify
doubts or interpret an existing law.
In case of laws creating new rights.-The principle that a new law shall not
have retroactive effect only governs
rights arising fr. acts done under the rule
of the former law; but if a right be
declared for the first time by a new law it
shall take effect fr. the time of such
declaration, even though it has arisen fr.
acts subject to the former laws, provided
that it does not prejudice another
acquired right of the same origin.
If the law is of an emergency measure &
authorized by the police power of the
State. (added by Balane.)
Art. 5. Acts executed against the
provisions of mandatory or prohibitory laws
shall be void, except when the law itself
authorizes their validity.

Tolentino:
Mandatory & Directory Laws.
Directory laws are those provisions w/c are
mere matter of form, or w/c are not
material, do not affect any substantial
right, & do not relate to the essence of
the thing to be done, so that compliance
is a matter of convenience rather than
substance.
Mandatory laws are statutory provisions w/c
relate to matters of substance, affect

substantial rights & are the very


essence of the thing required to be
done.
Balane:
A mandatory law is one w/c
prescribes some element as a requirement,
e.g., Art. 804 w/c requires that a will must
be in writing.
A prohibitory law is one w/c forbids
something, e.g., Art. 818 w/c forbids joint
wills.
Balane quoting Jurado:
Exceptions to the above provision.
When the law itself authorizes its validity.-Law here refers to the juridical order
in its totality.
Where the law itself authorizes its validity,
but punishes the violator (e.g., where
the marriage was solemnized by a
person who does
not have legal
authority, but the party or parties
believing in GF, that such person has
authority to do so, then the marriage is
valid but the person who solemnized
the same shall be criminally liable.)
Where the law merely makes the act
voidable (e.g., a marriage celebrated
through violence or intimidation or
physical incapacity or fraud is valid until
it is annulled).
Where the law declares the act as void, but
recognizes legal effects arising fr. it
(e.g., children born of void marriage are
classified
as
illegitimate
children
entitled to the rights in Art. 176, FC).
Art. 6. Rights may be waived, unless
the waiver is contrary to law, public order,
public policy, morals, or good customs, or
prejudicial to a third person w/ a right
recognized by law.
Tolentino:
Elements of Right.-- Every right has 3
elements: (1) the subjects, (2) the object,
& (3) the efficient cause.
The subjects of rights are persons; rights
exist only in favor of persons. There
are 2 kinds of subjects:
the active subject, who is entitled to
demand the enforcement of the right; &
the passive subject, who is duty-bound to
suffer its enforcement.
Things & services constitute the object of
rights.
The efficient cause is the fact that gives
rise to the legal relation.
5

Kinds of Rights.-- Rights may be classified


into political & civil; the former include those
referring to the participation of persons in the
gov't of the State, while the latter include all
others.
Civil rights may be further classified into:
the rights of personality;
family rights; &
patrimonial rights.

debtor (as in case of remission or


condonation) the renunciation of a real
right is unilateral & depends upon the
exclusive will of the owner of the right.

The rights to personality & family


rights are not subject to waiver; but
patrimonial rights can generally be waived.

Facts: PR was charged w/ rebellion. After


the filing of the information, a petition for
habeas corpus was filed. Said petition was
dismissed on the basis of the agreement of
the parties under w/c PR would remain in
the legal custody & would face trial before
the court having custody over his person.
On June 1987, Pres. Aquino issued EO 187
w/c restored the penalty for rebellion to
prision mayor. PR filed a petition for bail,
w/c was granted.

Renunciation or Waiver.-Waiver is
defined as the relinquishment of a known
right w/ both knowledge of its existence & an
intention to relinquish it. Voluntary choice is
the essence of waiver.
Balane:
Exceptions to the Rule that Rights can
be waived:
If the waiver is contrary to one of the 5
considerations (law, public order, public
policy, morals or good customs);
if the waiver would be prejudicial to a 3rd
party w/ a right recognized by law.
Elements of a Valid Waiver:
Existence of a right;
Knowledge of existence thereof;
An intention to relinquish the right (implied in
this is the capacity to dispose of the
right.) (Balane quoting Herrera v.
Borromeo, 152 S 171.)
Tolentino:
The renunciation must be made in a
clear & unequivocal manner. The formality
required by law for such renunciation, if any,
should be followed; if no particular formality
is required, the renunciation may even be
tacit, provided the intent to renounce can be
clearly established.
Scope of Waiver.-- The doctrine of waiver
is generally applicable to all rights &
privileges to w/c a person is legally entitled,
w/n secured by contract, conferred by
statute, or guaranteed by the Consti.,
provided such rights & privileges rest in the
individual & are intended for his sole benefit.
Waiver of Obligations.-Generally,
obligations cannot be renounced.
But a
person may exempt himself fr. an obligation
w/c is inherent in a right, upon the
renunciation of such right. For example, see
Art. 628.
Renunciation of Real Rights.-- According
to Valverde, while the renunciation of a
personal right requires the consent of the

PEOPLE V. DONATO 198 SCRA 130


(1991)

Issue: Did PR waive his right to bail when


he entered into the agreement?
Held: While it is true that bail cannot be
denied to PR for he is charged w/ a bailable
offense, he is not entitled to the same as
he had waived his right to bail when he
agreed to remain in legal custody.
The doctrine of waiver extends to
the rights & privileges of any character, &
since the word waiver covers any
conceivable right, it is the general rule that
a person may waive any matter w/c affects
his property, & any alienable right or
privilege of w/c he is the owner or w/c
belongs to him or to w/c he is legally
entitled to, provided such rights & privileges do not infringe on the rights of
others, & further provided the waiver of the
right or privilege is not forbidden by law, &
does not contravene public policy.
Rights guaranteed to one accused
of a crime fall naturally into two classes: (a)
Those in w/c the state, as well as the
accused, is interested, & (b) those w/c are
personal to the accused, w/c are in the
nature of personal privileges. Those of the
first class cannot be waived, those of the
second may be.
This Court has recognized waivers
of constitutional rights such as the rights
against unreasonable searches & seizures,
the right to counsel & to remain silent, &
the right to be heard. The right to bail is
another of the constitutional rights w/c can
6

be waived. It is a right personal to the


accused & whose waiver would not be
contrary to law, public order, morals or good
customs, or prejudicial to a third person w/ a
right recognized by law.

Art. 7.
Laws are repealed only by
subsequent ones, & their violation or nonobservance shall not be excused by disuse,
or custom or practice to the contrary.
When the courts declare a law to be
inconsistent w/ the Constitution, the former
shall be void & the latter shall govern.
Administrative or executive acts, orders &
regulations shall be valid only when they are
not contrary to the laws or the Constitution.
Balane: Leges posteriores priores contrarias
abrogant.
Tolentino:
Reason for the Article.-- Since laws are
promulgated by competent authority of the
State, they can cease to have effect only
through the will of the State.
Repeal of Laws. - 2 kinds of repeal of a
law:
express or declared repeal, contained in a
special provision of a subsequent law, &
implied or tacit repeal, w/c takes place when
the provisions of the subsequent law are
incompatible or inconsistent w/ those of
an earlier law.
Requisites of Implied Repeals:
the laws cover the same subject matter, &
the latter is repugnant to the earlier.
Repeal of Repealing Law.-- When a law
w/c expressly repeals a prior law is itself
repealed, the law first repealed shall not be
revived unless expressly so provided. But if
the prior law was repealed, not expressly but
by implication, the repeal of the repealing law
will revive the prior law, unless the language
of the last law provides otherwise.
Lapse of Laws. There are laws w/c, w/o
any repeal, cease to have effect bec. they
lapse by their own terms, as a (1) law for a
fixed period, or (2) w/o express provision; the
intent of the law may indicate that its
effectivity shall be for a limited period, as the
case of the Emergency Powers Act.

Art. 8. Judicial decisions applying or


interpreting the laws or the Constitution
shall form a part of the legal system of the
Philippines.

Balane: This is a common law principle.


This shows that our New Civil Code is not a
full-blooded Civil Law scion.
Tolentino:
Decisions
not
Source
of
Law.-Jurisprudence, in our system of gov't,
cannot be considered as an independent
source of law; it cannot create law. But the
Court's
interpretation
of
a
statute
constitutes part of the law as of the date it
was
originally
passed,
since
the
construction
merely
establishes
contemporaneous legislative intent that
the interpreted law carried into effect.
Doctrine of stare decisis.-- The doctrine
of stare decisis is based on the principle
that once a question of law has been
examined & decided, it should be deemed
settled & closed to further argument. The
doctrine, however, is flexible; so, that
when, in the light of changing conditions, a
rule has ceased to be of benefit & use to
society, the courts may rightly depart fr. it.
PEOPLE V. LICERA 65 SCRA 270 (1975)
Facts: In 1965, Licera was charged w/
illegal possession of firearms. He invoked
as his legal justification for his possession
of the Winchester rifle his appointment as
secret agent by Governor Leviste.
He
claims that as secret agent, he was a
peace officer &, thus, pursuant to People
vs. Macarandang, was exempt fr. the
requirements relating to the issuance of
license to possess firearms.
Issue: Is he exempt?
Held:
In the case of People vs.
Macarandang, the SC interpreted Sec .879,
RAC that the appointment of a civilian as a
secret agent to assist in the maintenance
of peace & order sufficiently places him
w/in the category of a peace officer,
thereby exempted fr. the requirements
relating to firearm licenses.
Art. 8, NCC decrees that judicial
decisions applying or interpreting the laws
or the Constitution form part of this
7

jurisdiction's legal system. These decisions,


although in themselves not law, constitute
evidence of what the laws mean.
The
application or interpretation placed by the
courts upon a law is part of the law as of the
date of the enactment of the said law since
the Court's application or interpretation
merely establishes the contemporaneous
legislative intent that the construed law
purports to carry into effect.
People
vs.
Mapa
revoked
the
Macarandang precedent only in 1967.
Certainly, a new doctrine abrogating an old
rule should only operate prospectively &
should not adversely affect those favored by
the old rule, especially those who relied
thereon & acted on good faith thereof.
PEOPLE V. PINUILA 55 O.G. 23 P. 4228
(1958)
Facts: Pinuila was charged w/ murder. In the
course of the trial, the court dismissed the
case on question of jurisdiction.
Upon
appeal, the SC remanded the case, following
the doctrine in People vs. Salico w/c held that
an appeal by the government fr. an order of
dismissal for lack of jurisdiction when such
jurisdiction really existed, w/c order of
dismissal was based on or prompted by a
MTD filed by the accused himself, did not
place him in jeopardy. Pinuila was convicted.
He appeals.
Meanwhile, the SC had
abandoned the Salico doctrine, it not being in
accordance w/ the law on double jeopardy.
Issue: Will the new doctrine apply to Pinuila?
Held: No. The new doctrine cannot be
applied to this case. The doctrine enunciated
in People v. Salico has long become final &
conclusive & has become the law of the case.
It may be erroneous, judged by the law on
double jeopardy as recently interpreted by
the SC. Even so, it may not be disturbed &
modified. The SC's recent interpretation of
the law may be applied to new cases, but
certainly not to an old one finally &
conclusively determined. The rule is founded
on the policy of ending litigation, & to be
necessary to enable an appellate court to
perform its duties satisfactorily & effectively.
Paras, dissenting: This is a criminal case,
hence, an interpretation favorable to the
accused must be given retroactive effect.

CO VS. CA 227 SCRA 444


Facts: In payment for his share of the
expenses of a salvaging operation,
petitioner issued a check on Sept.1, 1983
in favor of the salvaging firm. This was
dishonored by the bank. Petitioner was
then charged w/ violation of BP 22. The
lower court convicted him. Upon appeal,
petitioner alleged that the lower court
should not have relied upon the ruling in
Que vs. People, w/c stated that a check
issued
merely
to
guarantee
the
performance
of
an
obligation
is
nevertheless covered by BP 22.
He
contends that when he issued the check,
the delivery of a bouncing check as
guarantee for an obligation was not
considered a punishable offense, as
pronounced in Circular No.4 dated Dec.15,
1981 of the Ministry of Justice. The CA
rejected his argument & affirmed his
conviction; it stated that the Que doctrine
did not amount to the passage of new law
but was merely a construction or
interpretation of an existing one.
Held:
Judicial decisions applying or
interpreting the laws or the Constitution
shall form a part of the legal system of the
Philippines (Art.8, NCC).
SC decisions,
although in themselves not laws, are
nevertheless evidence of what the laws
mean. However, when a SC doctrine is
overruled & a different view is adopted, the
new
doctrine
should
be
applied
prospectively, & should not apply to parties
who had relied on the old doctrine & acted
on the faith thereof.

Art. 9. No judge or court shall decline to


render judgment by reason of the silence,
obscurity or insufficiency of the laws.
Balane:
In a situation contemplated by
this Art., the judge will be guided by
customs & principles of right & justice.
Tolentino:
Applicability of Article.-- This article
does not apply to criminal prosecutions,
bec. when there is no law punishing an act,
8

the case must be dismissed, however,


reprehensible the act may seem to the judge.
Obscurity or Deficiency of Law.-- If the
law is vague or obscure, the court should
clarify it in the light of the rules of statutory
construction; if it is silent or insufficient, the
court should fill the deficiency by resorting to
customs or general principles of law.
Concept of Customs.-- Custom may be
defined as the juridical rule w/c results fr. a
constant & continued uniform practice by the
members of a social community, w/ respect
to a particular state of facts, & observed w/ a
conviction that it is juridically obligatory.
Requisites of Custom:
plurality of acts, or various resolutions of a
juridical question raised repeatedly in life;
uniformity, or identity of the acts or various
solutions to the juridical questions;
general practice by the great mass of the
social group;
continued performance of these acts for a
long period of time;
general
conviction
that
the
practice
corresponds to a juridical necessity or
that it is obligatory; &
the practice must not be contrary to law,
morals or public order.
Custom distinguished fr. Law.-- As to
origin, custom comes fr. the society, while
law comes fr. the governmental power of the
State; the former is a spontaneous, while the
latter is a conscious creation.
As to form, custom is tacit, being
manifested in acts or usages, while law is
express, manifested in solemn & official form.
The former is unwritten law, the latter is
written law.
What Custom Applied.-- When the place
where the court is located & the domicile of
the parties are different, & each place has a
different custom, it is to be presumed that
they knew the custom of their domicile & not
that of the court's location. If the domiciles of
the parties are different & they have different
customs, Manresa believes that there is no
reason for making a preference, & the matter
should be treated as if there is no custom.
Sanchez Roman sustains the view, however,
that in the absence of reasons for preference,
the general rule should be to apply the
custom of the place for the performance or
consummation of the juridical act.
Art. 10.
In case of doubt in the
interpretation or application of laws, it is
presumed that the lawmaking body intended
right & justice to prevail.

Art. 11. Customs w/c are contrary to


law, public order or public policy shall not
be countenanced.

Balane:
Custom can be applied
suppletorily only if custom is not contrary
to any law.
Tolentino: The Courts will not recognize
the force of a custom in opposition to
positive law.
Art. 12. A custom must be proved as a
fact, according to the rules of evidence.

Tolentino:
Requisites of Custom. In order that
custom may have the force of suppletory
rule, it must have the following requisites:
plurality of acts, or various resolutions of a
juridical question raised repeatedly in
life;
uniformity, or identity of the acts or various
solutions to the juridical question;
general practice by the great mass of the
social group;
continued performance of these acts for a
long period of time;
general conviction that the practice
corresponds to a juridical necessity or
that it is obligatory; &
the practice must not be contrary to law,
morals, or public order.
Non-existence of Custom. When the
alleged custom or usage is not known to
those who have the best means of knowing
it, this ignorance is, in some sense, positive
evidence of its non-existence.
BALANE CASE:
YAO KEE V. SY-GONZALES
737

167 SCRA

Held: Custom is defined as a rule of


conduct formed by repetition of acts,
uniformly observed (practiced) as a social
rule, legally binding & obligatory. The law
requires that a custom must be proved as
a fact, according to the rules of evidence.
On this score the Court had occasion to
state that a local custom as a source of
right can not be considered by a court of
justice unless such custom is properly
established by competent evidence like
any other fact. The same evidence, if not
one of a higher degree, should be required
of a foreign custom.
9

Art. 13. When the laws speaks of years,


months, days or nights, it shall be understood
that years are of three hundred sixty-five
days each; months, of thirty days; days of
twenty-four hours; & nights fr. sunset to
sunrise.
If months are designated by their name,
they shall be computed by the number of
days w/c they respectively have.
In computing a period, the first day shall
be excluded, & the last day included.

Balane: Art. 13 has been superseded by


Sec. 31, Book I of EO 292 (Administrative
Code of 1987) w/c provides that:
Sec. 31. Legal Periods.-- "Year" shall be
understood to be twelve (12) calendar
months; "months" of thirty (30) days, unless
it refers to a specific calendar month in w/c
case it shall be computed according to the
number of days the specific month contains;
"day," to a day of twenty four (24) hours; &
"nights," fr. sunset to sunrise.

Baviera:
This article applies only to
legal provisions & not to contracts,
where the parties may stipulate on the
manner of computing years, months &
days.

Tolentino:
Meaning of Week.-- The term week,
when computed according to the calendar,
means a period of 7 days beginning on
Sunday & ending on Saturday, but where the
word is used simply as a measure of duration
of time & w/o reference to the calendar, it
means a period of 7 consecutive days w/o
regard to the day of the week on w/c it
begins.
Meaning of Month.-- There are several
senses in w/c the term month may be
understood. A lunar mo. is composed of 28
days. A calendar mo. as designated in the
calendar, w/o regard to the no. of days it may
contain, etc. The Code, however, does not
use month in either of these senses, but
strictly in a legal sense, as a period
composed of 30 days.
Computation of Time.-- When the act &
the period are contractual, not required by

law, court order, or rule of court, the


exception referring to Sundays & holidays
does not apply, & the act must be done on
the last day, even if the latter should be a
Sunday or a holiday. This is in consonance
w/ the rule that the contract is the law
between the contracting parties.

NAMARCO V. TECSON
(1969)

29 SCRA 70

Facts:
On Oct.14, 1955, the CFI-Mla.
rendered judgment in a civil case, Price
Stabilization Corp. vs. Tecson, et al. Copy
of this decision was served on Oct.21, 1955
upon defendants in said case. On Dec.21,
1965, NAMARCO, as successor to all the
properties, assets, rights, & choses in
action of Price, as pltff in that case &
judgment creditor therein, filed w/ the
same
court,
a
complaint
against
defendants for the revival of the judgment
rendered therein. Def. Tecson moved to
dismiss said complaint, upon the ground of
prescription of action, among others. The
motion was granted by the court. Hence,
the appeal to the CA w/c was certified to
the SC, upon the ground that the only
question raised therein is one of law.
Issue: WON the present action for the
revival of a judgment is barred by the
statute of limitations.
Held: Pursuant to Art. 1144 (3), NCC, an
action for judgement must be brought w/in
10 yrs fr. the time the judgment sought to
be revived has become final. This in turn,
took place on Dec.21, 1955 or 30 days fr.
notice of the judgment. The issue is thus
confined to the date on w/c the 10 yrs fr.
Dec.21, 1955 expired. Pltff alleges that it
was Dec.21, 1965, but appellee maintains
otherwise. He alleges that when the law
speaks of years, it shall be understood that
years are of 365 days each. And, 1960 &
1964 being leap years, therefore 10 yrs of
365 days each, or an aggregate of 3650
days, fr. Dec.21, 1955, expired on Dec.19,
1965.
The action to enforce a judgment
w/c became final on December 21, 1955
prescribes in 10 years. Since the Civil Code
computes years in terms of 365 days
each, the action has prescribed on
10

December 19, 1955, since the two


intervening leap years added two more days
to the computation. It is not the calendar
year that is considered.

are; they must, therefore, obey its laws, &


may prosecuted for violating them.

76 SCRA 560

On the other hand, aliens enjoy the


civil rights guaranteed by the Consti to all
the inhabitants of the State. They come
under the protection of the Bill of Rights in
the same manner as citizens.

Facts: Petitioners were charged w/ serious


oral defamation, a crime w/c prescribes in 6
months.
They moved to quash the
information on the ground that the offense
charged had prescribed. Petitioners counted
the months according to their number of
days. The lower court denied their motion,
computing the months as having 30 days.

Exemption under International Law.-Under the theory of extraterritoriality,


foreigners may be exempted fr. the
operation of the Phil. laws in the following
cases:
when the offense is committed by a foreign
sovereign while in Phil. territory;
when the offense is committed by
diplomatic representatives; &
when the offense is committed in a public
or armed vessel of a foreign country.

QUIZON V. BALTAZAR
(1977)

Held: The RPC provides that an action for


serious oral defamation prescribes in six
months. The months should be computed by
the regular 30 days, not the calendar months.
Hence, where the crime was committed on
November 11, 1963, & the action was filed
exactly 180 days later, said action was filed
on time.

Art. 14.
Penal laws & those of public
security & safety shall be obligatory upon all
who live or sojourn in Philippine territory,
subject
to
the
principles
of
public
international law & to treaty stipulations.

Offenses in Merchant Vessels.-A


merchant vessel of foreign registry does
not enjoy the extraterritorial privilege of
foreign public or war vessels. An offense
committed on such vessel while it is in a
Phil. port, constituting a breach of public
order & a viol. of the policy established by
the legislature, is triable in Phil. ports.
Art. 15. Laws relating to family rights
& duties, or to the status, condition & legal
capacity of persons are binding upon
citizens of the Philippines, even though
living abroad.

Tolentino:
Balane:
There are 2 principles involved here:
Territoriality - means that our criminal laws
are enforceable only w/in Phil. territory.
Exception to the territoriality principle is
Art. 2 of RPC.
Generality - means that w/in the Phil.
territory, our criminal laws will apply to
anyone, citizen or alien. Exceptions: (1)
treaty stipulations w/c exempted some
persons w/in the jurisdiction of the Phil.
courts. & (2) ambassadors (consuls are
subject to the jurisdiction of our criminal
courts) (Schneckenburger v. Moran.)
Tolentino:
Applicability of Laws to Aliens. Every
sovereign state has absolute & exclusive
power of government w/in its own territory.
Aliens owe a local & temporary allegiance to
the government of the country where they

Theories on Personal Law.


Domiciliary theory the personal laws of a
person are determined by his domicile.
Nationality theory the nationality or
citizenship determines the personal
laws of the individual. This is followed
by our Civil Code.
Capacity to Contract.-- If under the law
of the State of w/c a party to a contract is a
citizen, he is already of age at the time he
enters into the contract, he cannot set such
contract aside on t he ground of minority,
even if under the laws of the Phils. he is
still a minor. (Government vs. Frank, 13 P
238.)
Renunciation of Allegiance.-The
question of how a citizen may strip himself
of the status as such citizen is governed by
his national law.
BALANE CASES:
TENCHAVEZ V. ESCANO 15 SCRA 355
11

Held: At the time the divorce decree was


issued, Escano, like her husband, was still a
Filipino citizen. She was then subject to
Philippine law under Art. 15, NCC. Philippine
law, under the NCC then now in force, does
not admit absolute divorce but only provides
for legal separation.
For Phil. courts to recognize foreign
divorce decrees bet. Filipino citizens would be
a patent violation of the declared policy of
the State. Moreover, recognition would give
rise to scandalous discrimination in favor of
wealthy citizens to the detriment of those
members of our society whose means do not
permit them to sojourn abroad & obtain
absolute divorce outside the Phils. Therefore,
a foreign divorce bet. Filipino citizens, sought
& decreed after the effectivity of the NCC, is
not entitled to recognition as valid in this
jurisdiction.
VAN DORN V. ROMILLO 139 SCRA 139
Held: Only Phil. nationals are covered by the
policy against absolute divorces, the same
being considered contrary to our concept of
public policy & morality. However, aliens may
obtain divorces abroad, w/c may be
recognized in the Phils., provided they are
valid according to their national law.
In this case, the divorce in Nevada
released PRs fr. the marriage according to
American law, under w/c divorce dissolves
the marriage. Thus, pursuant to his national
law, Upton is no longer the husband of
petitioner. He would have no standing to sue
in the case below as petitioner's husband
entitled to exercise control over conjugal
assets.
Art. 16. Real property as well as personal
property is subject to the law of the country
where it is situated.
However, intestate & testamentary
successions, both w/ respect to the order of
succession & to the amount of successional
rights & to the intrinsic validity of
testamentary provisions, shall be regulated
by the national law of the person whose
succession is under consideration, whatever
may be the nature of the property &
regardless of the country wherein said
property may be found.

Tolentino:
Law on Property. Property is subject to
the laws of the country in w/c it is located;
Savigny bases this principle upon a
voluntary submission to local laws implied
in the holding of property w/in the country.
Real property is governed by lex situs, the
law of the space where the land is situated.
Personal property follows the modern
doctrine mobilia sequuntur personam
(movables follow the owner).
Law on Succession.-- The law governing
succession may be considered fr. the point
of view of (a) the execution of wills, & (b)
the distribution of property. The formalities
of execution of will are generally governed
by the law of the place of execution (Art.
17, par. 1.) But the distribution of the
estate is governed by the law of the nation
of the deceased.
The distribution of the estate may
involve various questions:
The order of succession in cases of
intestacy;
The intrinsic validity of the testamentary
provisions in case of testate succession;
The extent or amount of property w/c each
heir is entitled to inherit;
The capacity of certain heirs to succeed, &
Questions of preterition, disinheritance, &
collation.
All these matters are governed by
the law of the nation of the decedent,
irrespective of the nature & location of the
properties left by him at the time of his
death.
Applicability of Foreign Law.-The
second par. of this article can be invoked
only when the deceased was vested w/ a
descendible interest in prop. w/in the
jurisdiction of the Phils.
The
intrinsic
validity
of
the
provisions of the will of a foreigner who
dies in the Phils. is to be determined by the
laws of his own state or country, & not by
those of the Phils. Thus, a condition in a
will of a foreigner that his legatee respect
his order that his prop. be distributed
according to the laws of the Phils. instead
of the laws of his own country, was held
illegal & considered as not written.

Balane:
In Art. 16 par. 1 provides that the lex
situs or lex rei sitae governs real or personal
prop. This rule applies even to incorporeal
property. In Tayag v. Benguet Consolidated,
the SC said that Phil. courts have jurisdiction
over shares of stocks located in the Phils.

Art. 17. The forms & solemnities of


contracts, wills, & other public instruments
shall be governed by the laws of the
country in w/c they are executed.

12

When the acts referred to are executed


before the diplomatic or consular officials of
the Republic of the Philippines in a foreign
country, the solemnities established by
Philippine laws shall be observed in their
execution.
Prohibitive laws concerning persons, their
acts or property, & those w/c have for their
object public order, public policy & good
customs shall not be rendered ineffective by
laws or judgments promulgated, or by
determinations or conventions agreed upon
in a foreign country.

Issue: Which law should apply, Philippine


law or California law?
Held: Where the testator was a citizen of
California, & domiciled in the Philippines,
the amount of successional rights should
be governed by his national law. However,
since the conflicts of law rules of California
provides that in case of citizens who are
residents of another country, the law of the
country of domicile should apply, then
Philippine law on legitimes was applied.
Hence,
under
Philippine
laws,
the
acknowledged natural daughter cannot be
deprived of her legitime.

Balane: The rule in par. 1 is known as the


lex loci celebrationis.
Tolentino:
Validity & Effects of Obligations.-- The
code fails to mention the law w/c shall govern
the validity & effects of obligations:
First, the law designated by the parties shall
be applied;
If there is no stipulation on the matter, & the
parties are of the same nationality, their
national law shall be applied;
If this is not the case, the law of the place of
perfection of the obligation shall govern
its essence & nature, & the law of the
place of the performance shall govern its
fulfillment;
However, if these places are not specified &
they cannot be deduced fr. the nature &
circumstances of the obligation, then the
law of the domicile of the passive subject
shall apply. (Manresa & Valverde.)
AZNAR V. GARCIA 61 O.G. NO. 46 P. 7303
(1963)
Facts: Edward Christensen, a U.S. citizen
executed a will in Manila where he
bequeathed to Maria Helen Christensen
P3,600 & the rest of his property to his
daughter Maria Lucy.
The executor thus
made the project of partition in accordance
w/ the will. Helen opposed said partition
insofar as it deprived her of her legitime as
an acknowledged natural child & that the
distribution should be governed by Phil. laws.
The lower court ruled that since the deceased
was a U.S. citizen, the successional rights &
intrinsic validity of his will are to be governed
by California Law under w/c a testator has the
right to dispose of his property in the way he
desires.

BELLIS V. BELLIS 20 SCRA 358 (1967)


Facts: Amos Bellis, born in Texas & an
American citizen, had 5 legitimate children
w/ his 1st wife, 3 legitimate children w/ his
2nd wife & 3 illegitimate children.
He
executed a will in the Philippines where he
bequeathed P120T to his 3 illegit children &
the rest of his estate to all his legit
children. He died while a resident of Texas.
The will was admitted to probate. Two
illegit children filed their opposition to the
project of partition on the ground that they
were deprived of their legitimes. The lower
court overruled the opposition, applying
Art.16, NCC where the national law of the
decedent (in this case, Texan law) would
govern & w/c did not provide for legitimes.
Held: Renvoi is not applicable where the
decedent is the national & the domiciliary
of the same country. Where the testator
was a citizen of Texas & domiciled in Texas,
the intrinsic validity of his will should be
governed by his national law. Since Texas
law does not require legitimes, then his will
w/c deprived his illegitimate children of the
legitimes is valid. Whatever the public
policy or good customs involved in our
system of legitimes, Congress has not
intended to extend the same to the
succession of foreign nationals for it has
specifically chosen to leave the amount of
successional rights to the decedents
national law.
13

Baviera:
Baviera:
Why was Texas law applied
when there was no proof of Texas law?

Other Conflict of Law Rules:


Art. 829. A revocation done outside the
Philippines, by a person who does not have
his domicile in this country, is valid when it is
done according to the law of the place where
the will was made, or according to the law of
the place in w/c the testator had his domicile
at the time; & if the revocation takes place in
this country, when it is in accordance w/ the
provisions of this Code.
Art. 1039.
Capacity to succeed is
governed by the law of the nation of the
decedent.
Art. 1753. The law of the country to w/c
the goods are to be transported shall govern
the liability of the common carrier for their
loss, destruction or deterioration.
Art. 26, FC. All marriages solemnized
outside the Philippines in accordance w/ the
laws in force in the country where they were
solemnized, & valid there as such, shall also
be valid in this country, except those
prohibited under Articles 35 (1), (4), (5) & (6),
36, 37 & 38.
Where a marriage between a Filipino
citizen & a foreigner is validly celebrated & a
divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.

Q: Would the ruling in Tenchavez still be the


same, even after the amendment introduced
in Art. 26 by EO 227?
A: Yes, bec. the Tenchavez spouses are
Filipinos. Art. 26 par. 2 does not apply to
them.
Requisites of Art. 26 par. 2:
one of the spouses is a foreigner
a divorce decree is obtained
the divorce decree is obtained at the
instance of the foreign spouse
under the divorce decree, the foreignerspouse acquires the capacity to remarry.

Q:
Suppose at the time of the
marriage, both spouses are Filipinos.
Afterwards, one becomes naturalized.
Would Art. 26 par. 2 still be applied?
A: No. This would be a circumvention
of the law. The 2nd paragraph applies
only to mixed marriages fr. the very
beginning
&
not
when
one
subsequently becomes naturalized. It
contemplates a situation where one
party was already a foreigner at the
time of the marriage
This refers to the formal or
extrinsic requirements only, namely:
1. authority of the solemnizing officer
2. valid marriage license
3. marriage ceremony
The national law of the parties
govern the essential or intrinsic
requirements, namely:
1. legal capacity
2. consent
Art. 80, FC.
In the absence of a
contrary
stipulation
in
a
marriage
settlement, the property relations of the
spouses shall be governed by Philippine
laws, regardless of the place of the
celebration of the marriage & their
residence.
This rule shall not apply:
Where both spouses are aliens;
With respect to the extrinsic validity of
contracts affecting property not situated in
the Philippines & executed in the country
where the property is located; &
With respect to the extrinsic validity of
contracts entered into in the Philippines but
affecting property situated in a foreign
country whose laws require different
formalities for their extrinsic validity.
HUMAN RELATIONS
Art. 19.
Every person must, in the
exercise of his rights & in the performance
of his duties, act w/ justice, give everyone
his due, & observe honesty & good faith.
14

Art. 20. Every person who, contrary to


law, willfully or negligently causes damage to
another, shall indemnify the latter for the
same.
Art. 21. Any person who willfully 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.

GLOBE MCKAY V. CA
(1989)

176 SCRA 778

Facts: PR was an employee of Globe McKay.


He discovered some fraudulent transactions
w/c he reported to the GM. The GM later
accused him of being the crook & that he was
a swindler. He was asked to leave his things
& desk open for inspection.
Police
investigation was also conducted w/c found
him innocent. The lie detector test also
showed
negative
results.
These
notw/standing, 6 criminal cases for estafa
were filed against him. In the meantime, he
was dismissed fr. work. Pending the case, he
sought employment in another company, w/c
rejected him in view of a letter sent by
Globes GM labeling him as dishonest. PR
thus filed for damages against Globe. The
lower court ruled for PR.
Held: Affirmed. While an employer has the
right to dismiss an employee who was
involved in anomalous transactions, the right
of dismissal should not be exercised in an
abusive manner, such as by making
accusations of being a crook, forcing him to
take a forced leave, threatening to file a
hundred suits against him. Hence, the
employer is liable for damages.
Although Art.19 provides only for the
rule of conduct for the guidance of human
relations & maintenance of social order &
does not provide a remedy for its violation,
an action for damages under Art. 21 or 22
would be proper. Art. 21 was adopted to
remedy the countless gaps in the statutes,
w/c leave so many victims of moral wrongs
helpless, even though they have actually
suffered material & moral injury. In view of
the circumstances of the case, PR has a right
to recover damages under Art. 19 in relation
to Art. 21.

VELAYO V. SHELL 54 O.G. NO. 46 P.


7303 (1956)
Facts:
CALI, a domestic corporation
engaged in the air transportation business
was a debtor of Shell Phils. It called for a
meeting w/ all its principal creditors to
inform the latter of its state of insolvency.
In the meeting, a C-54 plane owned by
CALI, w/c was in the U.S., was mentioned.
As the creditors failed to reach an
agreement as to the division of its assets, a
committee was formed w/ Shells GM as its
head. Unknown to the other creditors, bec.
of the information fr. the meeting, Shell
Phils assigned its credit to Shell U.S., w/c
immediately brought a collection suit
against CALI & had the C-54 plane
attached. Thus, this action by Velayo, as
the assignee of CALIs assets.
Held: Shell Phils. acted in bad faith when
it made a hasty assignment of its credits
w/o informing the other creditors, in
violation of the agreement among all the
creditors of CALI to settle the division of
CALIs assets amicably.
Such move
enabled Shell Phils. to collect the entire
amount of its credit to the prejudice of
other preferred creditors. Such betrayal of
confidence violated Art. 19 as implemented
by Art.21.
PNB V. CA 83 SCRA 237 (1978)
Facts: PR entered into a contract of lease
of sugar allotment w/ a certain Tuason. PR
offered the use of her sugar quota at
P2.50/picul. But, as the sugar quota was
mortgaged to PNB bec. of a loan by PR, the
lease had to be approved by PNB. The
branch manager recommended the price to
be raised to P2.80/picul, to w/c Tuason
agreed.
However, the BOD of PNB
disapproved said lease, requiring at least
P3/picul. Because of this, the contract did
not materialize & PR suffered losses.
Held: The law makes it imperative that
every person must in the exercise of his
rights & in the performance of his duties,
act w/ justice, give everyone his due, &
observe honesty & good faith. This PNB
failed to do. Time was of the essence in
the approval of lease of sugar quota
allotments since the same must be utilized
15

during the milling season, otherwise it may


be reallocated. Certainly, PNB knew that the
agricultural year was about to expire & that
by its disapproval of the lease, PR would be
unable to utilize her sugar quota. While the
BOD of PNB had the power to approve the
lease of the sugar quota allotments of its
debtor, its act in unduly refusing to grant
such approval when the terms of the lease
were reasonable constitutes a violation of Art.
21 of the Civil Code.
Baviera: The Board of Directors should
have been held liable, not the bank.

BALANE V. YU CHIANG 54 O.G. NO. 3, P.


687 (1957)
Facts: Marcela Balane, a 19-year old girl,
agreed to cohabit w/ Yu Chiang in view of a
notarial instrument signed by the latter. In
such instrument, it provided that as he could
not yet marry Marcela due to some
inconveniences, it is their understanding &
agreement to live together, that Yu Chiang
obliges himself to support Marcela & their
offspring.
When Marcela got pregnant &
asked Yu to marry her, he refused.
He
similarly refused to support the child. The
lower court ruled in Marcelas favor in her
action for support & recognition.
Held: Evidence shows that at the time of
cohabitation, there was no impediment to
their marriage.
The instrument tends to
show that there was a promise of marriage.
Even w/o the latter, Yu is liable for damages
for defloration & cohabitation. Under the
NCC, it is not necessary that there is a breach
of a promise of marriage in order that
Marcela may recover damages. Art. 21 is
applicable.
There is not question that
Marcela suffered moral damages by reason of
having been induced to live w/ Yu in a
manner that is contrary to morals & good
customs, as a result of w/c she bore a child
w/c Yu now refuses to recognize & support.

Art. 22. Every person who through an act


of performance by another, or any other
means, acquires or comes into possession of
something at the expense of the latter w/o
just or legal ground, shall return the same to
him.

Art. 23.
Even when an act or event
causing damage to another's property was
not due to the fault or negligence of the
defendant, the latter shall be liable for
indemnity if through the act or event he
was benefited.
Art. 24. In all contractual, property or
other relations, when one of the parties is
at a disadvantage on account of his moral
dependence, ignorance, indigence, mental
weakness, tender age or other handicap,
the courts must be vigilant for his
protection.
Art. 25. Thoughtless extravagance in
expenses for pleasure or display during a
period of acute public want or emergency
may be stopped by order of the courts at
the instance of any government or private
charitable institution.
Art. 26. Every person shall respect the
dignity, personality, privacy & peace of
mind of his neighbors & other persons. The
following & similar acts, though they may
not constitute a criminal offense, shall
produce a cause of action for damages,
prevention & other relief:
Prying into the privacy of another's
residence;
Meddling w/ or disturbing the private
life or family relations of another;
Intriguing to cause another to be
alienated fr. his friends;
Vexing or humiliating another on
account of his religious beliefs, lowly
station in life, place of birth, physical
defect, or other personal condition.

LAGUNZAD V. GONZALES 92 SCRA 476


(1979)
Facts: Petitioner began the filming of The
Moises Padilla Story. Because Padillas
mother & her sisters objected to some
parts of the story relating to Moises private
life, a licensing agreement was entered into
between them where P agreed to pay a
certain sum to the family. P failed to pay
fully so an action was filed against him.
The lower court ruled for PR.

16

Held: Affirmed. Being a public figure ipso


facto does not automatically destroy in toto a
person's right to privacy. The right to invade
a person's privacy to disseminate public
information does not extend to fictional or
novelized representation of a person, no
matter how public a figure he or she may be.
The licensing agreement is valid & has the
force of law between the parties as the
provisions thereof are not contrary to law,
morals, good customs, public order or public
policy. Petitioner should comply w/ it in good
faith.
That said agreement violates his
freedom of expression cannot be upheld.
The right of freedom of expression,
indeed, occupies a preferred position in the
hierarchy of civil liberties. However, it is
limited by the clear & present danger rule &
the balancing of interest test. The latter
requires the court to take conscious &
detailed consideration of the interplay of
interest observable in a given situation. The
interests observable in this case are the right
to privacy & freedom of expression. Taking
into account the interplay of those interest,
we
hold
that
under
the
particular
circumstances presented, & considering the
obligations in the contract, the validity of
such contract must be upheld bec. the limits
of freedom of expression are reached when
expression
touches
upon
matters
of
essentially private concern.
AYER V. CAPULONG 160 SCRA 865 (1988)
Facts:
Ayer Productions Ltd. started the
filming of The Four Day Revolution. PR
Senator Enrile manifested that he would not
approve of the use, appropriation or
exhibition of his name, picture, or that of his
family in said production. PR claimed that
the film violated his right to privacy.
Held: Senator Enrile cannot object to his
inclusion in the movie on the EDSA
Revolution by invoking his right to privacy.
The right of privacy is not an absolute right. A
limited intrusion into a person's privacy has
long been regarded as permissible where that
person is a public figure & the information
sought to be elicited fr. him or to be
published about him constitutes matters of a
public character. Succinctly put, the right of
privacy cannot be invoked to resist
publication & dissemination of matters of
public interest. The right of privacy of a public

figure is necessarily narrower than that of


an ordinary citizen.
As distinguished fr. Lagunzad v.
Gonzales, w/c involved a film biography
necessarily including at least his immediate
family, the subject matter of the movie in
this case is one of public concern & does
not relate to the individual or public life of
Senator Enrile.

Art. 29.
When the accused in a
criminal prosecution is acquitted on the
ground that his guilt has not been proved
beyond reasonable doubt, a civil action for
damages for the same act or omission may
be instituted. Such action requires only a
preponderance of evidence. Upon motion
of the defendant, the court may require the
plaintiff to file a bond to answer for
damages in case the complaint should be
found to be malicious.
If in a criminal case the judgment of
acquittal is based upon reasonable doubt,
the court shall so declare. In the absence of
any declaration to that effect, it may be
inferred fr. the text of the decision whether
or not the acquittal is due to that ground.

MENDOZA
(1961)]

V.

ALCALA

[2

1032

Facts:
Def Mendoza was charged w/
estafa. While the crim case was pending,
plaintiff Alcala filed a civil case based on
the very same receipt upon w/c the crim
axn was predicated.
The crim court
acquitted the def. The civ court ruled
against Mendoza. On appeal, the appellate
court dismissed plaint Alcala on the ground
that when the court makes an express
finding that the facts upon w/c the decision
may be based do not exist, the same is
conclusive & is a bar to the prosecution
based on the same set of facts.
Issue:
WON the def could still be
prosecuted for the collection of the amount
stated in the said receipt in a civil case
after he had been acquitted by the court on
a charge of estafa based on the said
receipt.

17

Held: Yes. Nowhere in the decision rendered


in the crim case is found an express
declaration that the fact fr. w/c the civ axn
might arise did not exist. The phrase that
the guilt of the def has not been satisfactorily
established is held to be equivalent to a
declaration that the acquittal was based on
reasonable doubt & does not preclude a suit
to enforce the civ liab for the same act or
omission under Art 29.
MENDOZA V. ARRIETA [91 S 113 (1979)]
Facts: Three-way vehicular collision resulted
in the crim prosecution of Montoya, truck
driver & Salazar, jeepney driver. Mendoza,
owner of the Benz filed a crim vs. Montoya &
a civ case vs. Salazar. The court rendered a
decision absolving Salazar fr. any liability in
view of its findings that the collision was the
result of Montoyas negligence. Montoya was
found guilty of damage to property thru
reckless imprudence but Salazar was
acquitted & absolved fr. civ & crim liab. No
damages were awarded to Mendoza since he
filed civ case vs. Salazar & not Montoya.
Mendoza again filed a civ case vs. Salazar &
Timbol, the owner of the truck.
Issue:
WON
complaint vs. Timbol

res

judicata

bars

Held: NO. There is no res judicata, the


parties & causes of action being different.
Furthermore, under Art. 31 of the Civil Code,
When the civil action is based on an obligation not arising fr. crime, the civil action
may proceed independently of the criminal
proceedings regardless of result of the latter.
Citing Garcia v. Florido, "As we have stated at
the outset, the same negligent act causing
damages may produce a civil liability arising
fr. crime or create an action for quasi-delict or
culpa extra-contractual. The former is a
violation of the criminal law, while the latter
is a distinct & independent negligence,
having always had its own foundation &
individuality. Some legal writers are of the
view that in accordance w/ Article 31, the civil
action based upon quasi-delict may proceed
independently of the criminal proceeding for
criminal negligence & regardless of the result
of the latter. Hence, the proviso in Section 2
of Rule 111 (requiring reservation of civil
actions) w/ reference to Articles 32, 33, & 34
of the Civil Code, is contrary to the letter &
spirit of the said articles, for these articles
were drafted & are intended to constitute as

exceptions to the general rule stated in


what is now Section 1 of Rule 111. The
proviso, w/c is procedural, may also be
regarded as an unauthorized amendment
of substantive law, Articles 32, 33 & 34 of
the Civil Code, w/c do not provide for the
reservation required in the proviso."
However, a civil action for damages
against the owner-driver of the jeep would
not prosper bec. civil liability arising fr.
crime co-exists w/ criminal liability in
criminal cases. Hence, the offended party
had the option to prosecute on civil liability
arising fr. crime or fr. quasi-delict. His
active participation in the criminal case
implies that he opted to recover the civil
liability arising fr. crime. Hence, since the
acquittal in the criminal case, w/c was not
based on reasonable doubt, a civil action
for damages can no longer be instituted.
REPUBLIC V. BELLO [120 S 203 (1983)]
Facts:
Def Arceno was a cashier &
disbursing officer of the Capiz Agric School.
He was charged for malversation of public
funds. He was acquitted by the CFI. The
prov fiscal then filed a civ case for the
recovery of the amount he failed to
account. The court dismissed said case on
the ground that it was barred by prior
judgment.
Issue: WON the acquittal of Arceno in the
crim case bars the filing of the civ axn vs.
him.
Held: NO. The evid of the prosecution is
not enough to establish the guilt of the
accused as it opens an avenue leading to a
belief that the accused might be innocent.
The evid presented by the state did not
remove the possibility that Arceno might
not be guilty. In the crim case, the LC
declared that his acquittal was upon a
finding that the evid of the prosec was not
suff to establish the guilt of A beyond
reasonable doubt. There is no finding that
fact upon w/c the civ case is based does
not exist. The civ axn barred by such a
declaration is the civ liab arising fr. the
offense charged w/c is impliedly instituted
w/ the crim axn.
A person may be
acquitted of malversation but he could be
liable for the restoration or at least proper
18

accting of the funds if he shld spend them for


purposes w/c are unauthorized.

separate civ axn. Instead, she filed a sep


civ axn arising fr. the same defamatory
words. LC dismissed the case.
Issue: WON plaintiff is barred fr. filing the
sep civ axn.

PADILLA V. CA [129 S 558 (1990)]


Facts:
The Mayor was sued for grave
coercion. TC convicted them. CA reversed &
acquitted them on the ground of reasonable
doubt but at the same time ordered them to
pay actual damages.
Issue:
WON the acquittal based on
reasonable doubt extinguishes the civ liab of
accused.
Held: NO. Such acquittal will not bar a civil
case for damages arising fr. the demolition of
petitioner's market stalls. The acquittal on
the ground that their guilt has not been
proven beyond reasonable doubt refers to the
element of Grave Coercion (the acts should
have been denominated malicious mischief/
threat) & not to the fact of that the stalls
were demolished. Under the Rules of Court,
the extinction of penal action carries w/ it the
extinction of civil only if there is a declaration
that facts fr. w/c civil may arise did not exist.
Also, Art. 29 of the Civil Code does not state
that civil liability can be recovered only in a
separate civil action. The civil liability can be
recovered either in the same or a separate
action. The purpose of recovering in the same
action is to dispense w/ the filing of another
civil action where the same evidence is to be
presented, & the unsettling implications of
permitting reinstitution of a separate civil
action. However, a separate civil action is
warranted when (1) additional facts are to be
established; (2) there is more evidence to be
adduced; (3) there is full termination of the
criminal case & a separate complaint would
be more efficacious than a remand. Hence,
CA did not err in awarding damages despite
the acquittal.
REYES V. SEMPIO-DY [141 S 208 (1986)]
Facts: A crim complaint for intriguing vs.
honor was filed vs. D.
She immediately
pleaded guilty & was sentenced to pay P50
as fine. Reyes, represented by her private
prosecutor, was not able to adduce evid to
prove damages & neither was she able to
make a reservation of her rt. to file a

Held: NO. The failure of the plaint Reyes


to file a sep civ axn did not foreclose her rt.
to file a sep complaint for damages. Under
A33, there is no requirement that as a
condition precedent to the filing of a sep
civ axn for damages a reservation to file
said civ axn be first made in the crim case
& such reservation is not necessary,
provision of R111 S2 notw/standing.
MAXIMO
(1986)]

V.

GEROCHI

[144

326

Facts: Panghilasan was charged w/ estafa.


Maximo intervened in the case thru her
private prosec. LC acquitted Panghilasan
for failure to establish her guilt beyond
reasonable doubt & found if the accused
had any oblig, it is simply civil in nature
that could be properly ventilated w/in the
context of civ law.
MFR was filed by
plaintiff praying that the accused who
admitted her civ liab be sentenced to pay
the value of the checks. LC denied.
Issue: WON the LC should ruled on the civ
liab of the accused.
Held: YES. Citing Padilla v. CA, the court
may acquit & at the same time order
payment of civil liability in the same case.
The rationale is that there is no reason to
require a separate civil action where the
facts to be proved in the civil case have
been proven in the criminal case, & due
process has already been accorded to the
accused, & to prevent needless clogging of
court dockets & unnecessary duplication of
litigation.

Art. 33. In cases of defamation, fraud &


physical injuries, a civ axn for damages,
entirely separate & distinct fr. the criminal
action, may be brought by the injured
party. Such civil action shall proceed
independently of the criminal prosecution,
& shall require only a preponderance of
evidence.

19

Art. 34. When a member of a city or


municipal police force refuses or fails to
render aid or protection to any person in case
of danger to life or property, such peace
officer shall be primarily liable for damages,
& the city or municipality shall be subsidiarily
responsible therefor. The civil action herein
recognized shall be independent of any
criminal proceedings, & a preponderance of
evidence shall suffice to support such action.
Rule 111, Sec. 2. Institution of separate
civil action. - Except in the cases provided for
in Section 3 hereof, after the criminal action
has been commenced, the civil action w/c
has been reserved cannot be instituted until
final judgment has been rendered in the
criminal action.
(a) Whenever the offended party shall
have instituted the civil action (arising fr. the
crime - Baltic) as provided for in the first
paragraph of section 1 hereof before the
filing of the criminal action is subsequently
commenced, the pending civil action shall be
suspended, in whatever stage before final
judgment it may be found, until final
judgment in the criminal action has been rendered. However, if no final judgment has
been rendered by the trial court in the civil
action, the same may be consolidated w/ the
criminal action upon application w/ the court
trying the criminal action. If the application is
granted, the evidence presented & admitted
in the civil action shall be deemed
automatically reproduced in the criminal
action, w/o prejudice to the admission of
additional evidence that any party may wish
to present. In case of consolidation, both the
criminal & the civil actions shall be tried &
decided jointly.
(b) Extinction of the penal action does not
carry w/ it extinction of the civil, unless the
extinction proceeds fr. a declaration (need
not be an express declaration- Baltic) in a
final judgment that the fact fr. w/c the civil
might arise did not exist. (Rules of Court.)
Sect 3. When civ axn may proceed
independently. - In the cases provided for in
Arts 32,33,34 & 2176 of the CC, the
independent civ axn w/c has been reserved
may be brought by the offended party, shall
proceed independently of the crim axn, &
shall require only a preponderance of evid.

Sec 5. Elements of prejudicial Q - The 2


essential elements of a prej Q are: a) the
civ axn involves an issue similar or
intimately related to the issue raise in the
crim axn; & b) the resolution of such issue
determines WON the crim axn may
proceed.
Sec. 6.
Suspension by reason of
prejudicial Q. - A petition for suspension of
the crim axn based upon the pendency of a
prejudicial Q in a civ axn may be filed in
the office of the fiscal or the court
conducting the preliminary investigation.
When the crim axn has been filed in court
for trial, the petition to suspend shall be
filed in the same crim axn at any time
before the prosecution rests.

ABELLANA
(1974)]

V.

MARAVE

[57

106

Facts: Abellana was charged w/ physical


inj thru reckless imprudence.
He was
found guilty & sentenced to pay damages
in favor of Rs. However, A appealed the
case tot he CFI w/c reversed & tried the
case de novo. In the meantime, Rs waived
their rt. to the civ axn impliedly instituted
w/ the crim case & reserved their rt. to file
a sep axn.
Issue: WON Rs can still reserve their rt. to
file a sep civ axn before the CFI.
Held: YES. The argument that a sep civ
axn can be legally filed & allowed only at
the institution of the crim axn & never on
appeal is untenable. This ignores what is
explicitly prov in S7 of R123, that an
appealed case shall be tried in all respects
anew in the CFI as if it had been orig.
instituted in that court. The fact that an
offended party failed at the initial stage to
seek recovery for damages in a civ suit
thru oversight is not a bar to the institution
of an indep civ axn bec a substantive rt.
granted by S33 CC may not be frittered
away by a construction w/c would render it
nugatory. Also, grant of power given to SC
to promulgate rules relating to pleading,
etc, does not extend to any diminution,
increase or modif of substantive rts.

20

ESCUETA
(1974)]

V.

FANDIALAN

[61

278

Facts: D was convicted of physical injuries


by the CFI w/c was affirmed by the CA. This
became final on 8/31/55. On 6/56, plaintiff
having reserved his rt. to institute a sep civ
axn, filed w/ the CFI a complaint to enforce
defs civil liab under A100 RPC, but such was
later dismissed for lack of interest in 1962.
After 7 yrs, plaintiff refiled the civ case. CFI
dismissed on the ground of prescription--the
phys injuries having been committed 16 yrs
ago.
Issue: Under A33, when does the plaints
cause of axn accrue: fr. the date of the
commission or fr. final conviction?
Held: WHEN COMMITTED. Applic period is 4
years. Plaints civ axn for damages would
have been implicitly instituted w/ the crim
axn but plaint expressly reserved his rt. to
institute the civ axn sep & independently of
the crim axn. Such sep civ axn under A33
may be brought even w/o reservation &
proceeds to trial & final judgment irrespective
of the result of the crim axn. Plaints civ axn
did not arise fr. nor depend upon the result of
the crim axn but fr. the defs act of infliction
of phys injuries.
Plaint derived no
enforceable rt. fr. the judgment of conviction.
MADEJA V. CARO [126 S 295 (1983)]
Facts:
Madeja filed a crim case vs. Japzon
for homicide thru reckless imprudence. She
reserved her rt. to file a sep civ axn for
damages. While the crim case was pending,
she filed a civ axn for damages. Judge Caro
dismissed the civ case bec under R111S3(a),
the axn may be instituted only after final
judgment has been rendered in the crim axn.
Issue: WON the civ axn vs. J may proceed
independently of the crim axn vs. her.
Held: YES. An independent civil action
under Art. 33 may proceed independently of
the criminal case. Citing Carandang v.
Santiago [97 P 94 (1955)], "The term
"physical injuries" is used in the generic
sense, not the crime of physical injuries
defined in the Revised Penal Code. It includes
not only physical injuries but consummated,
frustrated
&
attempted
homicide."
Defamation & fraud are also used in their
generic sense bec. there are no specific

provisions in the Revised Penal Code using


these terms as means of offenses defined
therein.
Baviera:
The separate civil action
should have been based on 2176
because the death here was caused
by negligence.
If the death is
intentional, A33 will apply.
This
provision was based on the US
concept of intentional torts, such as
battery, defamation. If physical inj
were caused by negligence, clearly
A2176 on Q-delict should apply.

Art. 35. When a person, claiming to be


injured by a criminal offense, charges
another w/ the same, for w/c no
independent civil action is granted in this
Code or any special law, but the justice of
the peace finds no reasonable ground to
believe that a crime has been committed,
or the prosecuting attorney refuses or fails
to institute criminal proceedings, the
complainant may bring a civil action for
damages against the alleged offender.
Such civil action may be supported by a
preponderance of evidence. Upon the
defendant's motion, the court may require
the plaintiff to file a bond to indemnify the
defendant in case the complaint should be
found to be malicious.
If during the pendency of the civil
action, an information should be presented
by the prosecuting attorney, the civil action
shall be suspended until the termination of
the criminal proceedings.
Art. 36. Pre-judicial questions, w/c must
be decided before any criminal prosecution
may be instituted or may proceed, shall be
governed by rules of court w/c the
Supreme Court shall promulgate & w/c
shall not be in conflict w/ the provisions of
this Code.
Rule 111, Sec. 5. Elements of prejudicial
question. - The two (2) essential elements
of a prejudicial question are:
(a) the civil action involves an issue
similar or intimately related to the issue
raised in the criminal action;

21

(b) the resolution of such issue


determines whether or not the criminal action
may proceed. (Rules of Court.)
Rule 111, Sec. 6. Suspension by reason of
prejudicial question. - A petition for
suspension of the criminal action based upon
the pendency of a prejudicial question in a
civil action may be filed in the office of the
fiscal or the court conducting the preliminary
investigation. When the criminal action has
been filed in court for trial, the petition to
suspend shall be filed in the same criminal
action any time before the prosecution rests.
(ibid.)

Balane:
Bigamy - Art. 349, RPC. Contracting of
second or subsequent marriage:
before legal dissolution of first marriage
before declaration of presumptive death of
absent spouse.
MERCED V. DIAZ [109 P 156 (1960)]
Facts:
Merced filed a complaint for
annulment of second marriage w/ EC. EC
filed a complaint for bigamy vs. M. LC held
that the judicial declaration of nullity of a
second & bigamous marriage is not
necessary; there is no need in this case to
decide the nullity of the second marriage or
to determine the existence of the grounds for
annulling the same.
Issue: WON an axn to annul the second
marriage is a prejudicial Q in a prosec for
bigamy
Held: YES. The civil case for annulment is a
prejudicial question to be determined before
the criminal case can proceed. Consent is an
essential element of a valid marriage.
Without consent, the marriage is void. But
the question of invalidity cannot ordinarily be
decided in the criminal action for bigamy &
since the prosec for bigamy does not lie
unless the elements of the second marriage
appear to exist, it is necessary that a decision
in a civil axn to the effect that the second
marriage contains all the essentials of
marriage must first be secured.
LANDICHO V. RELOVA [22 S 731 (1968)]

Facts: First wife filed a complaint vs. P for


bigamy. One month later, Ps second wife
filed a petition to annul their marriage on
the ground that P forced, threatened &
intimidated her into marrying him.
P
moved to suspend the hearing of the crim
case pending the decision on the Q of the
validity of the second marriage. This was
denied.
Issue: WON a prejudicial Q exists.
Held: Parties to a second marriage should
not be permitted to judge for themselves
its nullity, only competent courts having
such authority. Prior to such declaration of
nullity, the validity of the first marriage is
beyond Q. A party who contracts a second
marriage then assumes the risk of being
prosecuted for bigamy.
"The mere fact that there are
actions to annul the marriages entered into
by accused in a bigamy case does not
mean that "prejudicial questions" are
automatically raised in civil actions as to
warrant the suspension of the criminal
case. In order that the case of annulment
of marriage be considered a prejudicial
question to the bigamy case against the
accused, it must be shown that petitioner's
consent to such marriage must be the one
that was obtained by means of duress,
force & intimidation to show that his act in
the second marriage must be involuntary &
cannot be the basis of his conviction for the
crime of bigamy. The situation in the
present case is markedly different. At the
time the petitioner was indicted for
bigamy, the fact that two marriage ceremonies had been contracted appeared to be
indisputable. And it was the second spouse,
not the petitioner who filed the action for
nullity on the ground of force, threats &
intimidation. And it was only later that
petitioner as defendant in the civil action,
filed a third party complaint against the
first spouse alleging that his marriage w/
her should be declared null & void on the
ground of force, threats & intimidation.
Assuming the first marriage was null & void
on the ground alleged by petitioner, that
fact would not be material to the outcome
of the criminal case.
Parties to the
marriage should not be permitted to judge
for themselves its nullity, for the same
must be submitted to the judgment of a
competent court & only when the nullity of
22

the marriage is so declared can it be held as


void, & so long as there is no such
declaration, the presumption is that the
marriage exists. Therefore, he who contracts
a second marriage before the judicial declaration of nullity of the first marriage assumes
the risk of being prosecuted for bigamy."

Art. 43.
If there is a doubt, as between
two or more persons who are called to
succeed each other, as to w/c 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 & there shall be no
transmission of rights fr. one to the other.
Tolentino:
This article applies only when the question of
survivorship involves persons "who are
called to succeed each other." Hence, it
cannot apply to other cases w/c do not
involve succession.
When the persons involved would succeed
each other, however, then this article
applies, whether the death be actual or
merely presumed fr. absence or other
circumstances.
Are Rules of Court Repealed?-- There is
every indication that the Code Commission
intended to repeal the presumptions on
survivorship under the Rules of Court, bec.
the presumptions laid down therein are
sometimes absurd & mere guesswork. [I
Tolentino 176]
Compare w/ Rule 131, Sec. 5 (jj), (kk)

Rule 131, Sec. 5 (jj). That except for


purposes of succession, when two persons
perish in the same calamity, such as wreck,
battle, or conflagration, & it is not shown who
died first, & there are no particular
circumstances fr. w/c it can be inferred, the
survivorship is determined fr. the probabilities
resulting fr. the strength & age of the sexes,
according to the following rules:
1. If both were under the age of fifteen
years, the older is deemed to have survived;
2. If both were above the age of sixty, the
younger is deemed to have survived;
3. If one is under fifteen & the other
above sixty, the former is deemed to have
survived;

4. If both be over fifteen & under sixty,


& the sex be different, the male is deemed
to have survived; if the sex be the same,
the older;
5. If one be under fifteen or over sixty,
& the other between those ages, the latter
is deemed to have survived.
(kk) That if there is a doubt, as between
two or more persons who are called to
succeed each other, as to w/c of them died
first, whoever alleges the death of one
prior to the other, shall prove the same; in
the absence of proof, they shall be
considered to have died at the same time.
(Rules of Court.)

BALANE CASE:
JOAQUIN V. NAVARRO [93 P 257]
Where there are facts, known or
knowable, fr. w/c a rational conclusion can
be made, the presumption (in the Rules of
Court) does not step in, & the rules of
preponderance of evidence controls.
Are there particular circumstances
on record fr. w/c reasonable inference of
survivorship bet. AJ & her son can be
drawn?
Is Francisco Lopez'
(the sole
witness) testimony competent & sufficient
for the purpose?
It is our opinion that the testimony
contains facts quite adequate to solve the
problem of survivorship bet. AJ & JN, Jr. &
keep the statutory presumption out of the
case. It is believed that in the light of the
conditions painted by Lopez, a fair &
reasonable inference can be arrived at,
namely: that JN, Jr. died before his mother.
While the possibility that the mother
died before the son can not be ruled out, it
must be noted that this possibility is
entirely speculative & must yield to the
more rational deduction fr. proven facts
that it was the other way around. JN, Jr.,
was killed, while running, in front of, & 15
meters fr. the Club. Still in the prime of life,
30, he must have negotiated that distance
in 5 seconds or less, & so died w/in that
interval fr. the time he dashed out of the
bldg. AJ could have perished w/in those 5
or fewer seconds, but the probabilities that
she did seem very remote.
According to Lopez' testimony, the
collapse of the club occurred about 40
minutes after JN, Jr. died, & it was the
collapse that killed AJ. The CA said that the
interval bet. JN, Jr.'s death & the breaking
down of the edifice was "minutes." Even
so, it was much longer than 5 seconds,
23

long enough to warrant the inference that AJ


was still alive when her son expired.
The CA mentioned several causes,
besides the bldg.s collapse, by w/c AJ could
have been killed.
All these causes are
speculative. xxx Nor was AJ likely to have
been killed by falling beams bec. the bldg.
was made of concrete & its collapse, more
likely than not, was sudden. As to fumes,
these do not cause instantaneous death;
certainly, not w/in the brief space of 5
seconds bet. her son's departure & his death.
It will be said that all this is indulging
in inferences that are not conclusive. Sec. 69
(ii) of R 123 does not require that the
inference
necessary
to
exclude
the
presumption therein provided be certain. It is
the "particular circumstances fr. w/c it
(survivorship) can be inferred" that are
required to be certain as tested by the rules
of evidence. In speaking of inference the rule
can not mean beyond doubt, for "inference is
never certainty, but it may be plain enough
to justify a finding of fact."
In conclusion, the presumption that AJ
died before her son is based purely on
surmises, speculations, or conjectures w/o
any sure foundation in evidence.
The
opposite theory is deduced fr. established
facts w/c, weighed by common experience,
engender the inference as a very strong
probability.
Gauged by the doctrine of
preponderance of evidence by w/c civil cases
are decided, this inference ought to prevail.
Balane:
In Sec. 5 (jj) of R 131, there is no presumption
of simultaneity but of survivorship.
Q: Did the court in Joaquin v. Navarro rule
w/c of the 2 presumptions prevail over the
other? Did it apply either presumption?
A: No to both questions.
The presumption applies only if there
is no evidence as to who died first. If there
are enough facts to go by, you do not use
either presumption. Art. 43 as well as Sec. 5
(jj) of R 131 cannot be applied if there are
facts to go by.
In questions other than succession
(like insurance, resolutory conditions, reserva
troncal, donation inter vivos), apply Rule 131,
Sec. 5 (jj)
The case did not resolve the issue as
to w/n there is a conflict bet. Art. 43 & R 131,
Sec. 5 (jj) of the ROC. To reconcile the two,
the following rules may be of help:
Art. 43 applies only when succession is
involved; ROC [referring to Sec. 5 (jj) R
131] applies only when 2 persons perish
in the same calamity.

When succession is involved but the


persons did not perish in the same
calamity, apply Art. 43; When the
persons perished in the same calamity
but succession is not involved, apply
ROC.
When neither element is present, neither
provision will apply.
The conflict will arise only when succession
is involved & 2 persons died in the
same calamity. In case of conflict, Art.
43 will apply (this is only an opinion.)
RAM: The 1988 Revised Rules on Evidence
removed whatever conflict there was bet.
the ROC & Art. 43 of the NCC. In fact, Art.
43 is now substantially reproduced as Sec.
5 (kk) of R 131 of the ROC.
LAW ON PERSONS
Tolentino:
Concept of Person.-- In a juridical sense,
the term "person" is now understood as
any being, physical or moral, real or
juridical & legal, susceptible of rights &
obligations, or of being the subject of legal
relations. (Sanchez Roman.)
Classes of Persons.-- (1) human beings
or men, called natural persons; & (2)
entities formed by the association of men,
known as juridical persons, or as artificial,
fictitious, abstract, or moral persons.
Status of persons.-- The status of a
person is the legal condition or class to w/c
one belongs in society; it is the legal or
juridical position of the individual in society,
or w/ regard to the rest of the community.
The status of a person may be
political or civil.
Civil status may be grouped into 3
classes: (a) status as a member of the
society; (b) status as member of a family;
& (c) status w/ respect to the person
himself.
The qualities w/c create a status are
only those inherent in the person himself.
Characteristics of status.-- The status
of a person is outside the commerce of
man; hence, (1) it is inalienable, (2) it is
imprescriptible, (3) it cannot be the object
of compromise, (4) the action to claim it
cannot be renounced, & (5) the rights
arising fr. it cannot be exercised by
creditors.
I. Civil Personality
24

Tolentino:
Personality is the quality derived fr. being a
person.
While a person is any being
susceptible
of
rights
&
obligations,
personality is the aptitude of that becoming
the subject, active or passive, of juridical
relations.
Characteristics.-It is not a being, but a quality of certain
beings;
it is not a physical element, but a juridical
concept;
it is not an object of contract, or of
possession, & cannot be impaired by
agreement;
it is a matter of public interest.

this capacity requires both intelligence


& will; xxx Thus, JC can exist w/o CA,
but the existence of the latter implies
that of the former.
Balane: JC has no degrees, either you
have it or not. CA has degrees.
JURIDICAL
CAPACITY
fitness to be the
subject of legal
relations
inherent in every
natural person
lost through death

CAPACITY
TO
ACT
power to do acts w/
legal effect
acquired & may be
lost
subject
to
restrictions:
minority, etc.

A. ELEMENTS
Art. 37. Juridical capacity, w/c is the
fitness to be the subject of legal relations, is
inherent in every natural person & is lost only
through death. Capacity to act, w/c is the
power to do acts w/ legal effect, is acquired &
may be lost.
Art 38. Minority, insanity or imbecility,
the state of being a deaf-mute, prodigality &
civil interdiction are mere restrictions on
capacity to act & do not exempt the
incapacitated person fr. certain obligations,
as when the latter arise fr. his acts or fr.
property relations, such as easements.

Tolentino:
Capacity of Public Interest.-The
capacity or incapacity of persons depends
upon the law & cannot be modified,
extended, or restricted by agreement.
Both JC & CA are not rights, but qualities of
persons; hence, they cannot be alienated
or renounced.

B. RESTRICTIONS
ACT

ON

CAPACITY

TO

1. MINORITY.

Tolentino:

Tolentino:

Capacity may be (1)


juridical
capacity, & (2) capacity to act. The union of
these 2 forms the full civil capacity. (Balane
calls the 2 the constitutive elements of
personality.)

The unemancipated minor cannot


enter into contracts (Art. 1327); but he
may be estopped fr. disavowing his
contract if he has misled the other party as
to his age. The SC has held that:

Juridical capacity is synonymous to


legal capacity & to personality. They all refer
to the aptitude for the holding & enjoyment
of rights. On the other hand, capacity to act
refers to the aptitude for the exercise of
rights, & is often referred to merely as
"capacity."

xxx [T]he sale of real estate,


effected by minors who have already
passed the ages of puberty & adolescence
& are near the adult age, when they
pretend to have already reached their
majority, while in fact they have not, is
valid, & they cannot be permitted
afterwards to excuse themselves fr.
compliance w/ the obligation assumed by
them or seek their annulment.
This
doctrine is entirely in accord w/ the
provisions of our law on estoppel.
(Mercado vs. Espiritu, 37 Phil. 215.

Comparison.-Juridical capacity (JC) is just one, indivisible,


irreducible, & essentially the same for all
men; it is an inherent & ineffaceable
attribute of man, & attaches to him by the
mere fact of his being a man.
But capacity to act (CA) is conditional &
variable. It is acquired & may be lost.
The mere existence of man is not
sufficient to confer capacity to act, bec.

But there is authority to the effect


that misrepresentation of an incapacitated
person does not bind him.

25

"xxx Misrepresentation made by a


party as to his age does not estop him fr.
denying that he was of age or fr. asserting
that he was under age, at the time he
entered into the contract, for the breach of
w/c an action is brought. Under the principle
of
estoppel,
the
liab.
resulting
fr.
misrepresentation has its juridical source in
the capacity of the person making the
misrepresentation to bind himself.
If the
person making the misrepresentation cannot
bind himself by contract, he cannot also be
bound by any misrepresentation he may
have made in connection therew/. A person
entering into a contract must see to it that
the other party has sufficient capacity to bind
himself." (Young vs. Tecson, 39 OG 953.)
RA 6809 An Act Lowering the age of
majority fr. 21 to 18 years
Sec 1. Art 234 of EO 209, the Family code
is hereby amended to read as follows:
Art 234. Emancipation takes place by
the attainment of majority.
Unless o/w
provided, majority commences at the age of
18 years.
Sec 2. Arts 235 & 237 of the same Code
is also hereby amended to read as follows:
Art 236. Emancipation shall terminate
parental autho over the person & property of
the child who shall then be qualifies &
responsible for all acts of civil life, save the
excs established by existing laws in special
cases.
Contracting marriage shall require
parental consent until the age of 21.
Nothing in this Code shall be construed
to derogate fr. the duty or responsibility of
parents & guardians for children & wards
below 21 yrs of age mentioned in the second
& third pars of 2180 of CC.
Sec 4. Upon the effectivity of this Act,
existing wills, bequests, donations, grants,
insurance policies & similar instruments
containing references & provisions favorable
to minors will retroact to their prejudice.
Sec 5. This act shall take effect upon
completion of its publication in at least 2
newspapers of gen circulation.
Approved, Dec 13, 1989.

A.

CIVIL ACTS

Art 797. Persons of either sex under 18


yrs of age cannot make a will.
Art 1489.
All persons who are
authorized in this Code to obligate
themselves, may enter into a K of sale,
saving the modifications contained in the
ff. articles.
Where necessaries are sold & delivered
to a minor or other person w/o capacity to
act, he must pay a reasonable price
therefor. Necessaries are those referred to
in Art 290.
Art 14 FC. In case either or both of the
contracting parties, not having been
emancipated by a previous marriage, are
between the ages of 18 & 21, they shall, in
addition to the requirements of the
preceding articles, exhibit tot he local civil
registrar, the consent to their marriage of
their father, mother, surviving parent or
guardian, or persons having legal charge of
them, in the order mentioned.
Such
consent shall be manifested in writing by
the interested party, who personally
appears before the proper local civil
registrar, or in the form of an affidavit
made in the presence of 2 witnesses &
attested bef any official authorized by law
to administer oaths.
The personal
manifestations shall be recorded in both
application for marriage license, & the
affidavit, if one is executed instead, shall
be attached to said applications.
B.

DELICTS

Art 101. par 3 RPC. Should there be no


person having such insane, imbecile or
minor
under
his
authority,
legal
guardianship or control, or if such person
be insolvent, said insane, imbecile or minor
shall respond w/ their own property,
excepting prop exempt fr. execution, in
accordance w/ civil law.

C.

QUASI-DELICTS

Art 2182 NCC. If the minor or insane


person causing damage has no parents or
guardian, the minor or insane person shall
26

be answerable w/ his own property in an axn


vs. him where a guardian ad litem shall be
appointed.

2. INSANITY

OR IMBECILITY.

Tolentino:
Insanity includes the various forms of mental
disease, either inherited or acquired, in
w/c there is a perversion of the mentality,
as when the person is suffering fr.
illusions, hallucinations, or delusions,
unnatural exaltation or depression, or
insane ideas of persecution or power.
An insane person cannot make a valid will or
testament (Art. 798); & he cannot validly
give consent to contracts (Art. 1327, par.
2.)
Imbecility is a defect in the quantity of
mental development. The mental ages
up to the completed eighth year are
included.
A.

CIVIL ACTS
Art 1323. An offer becomes ineffective
upon the death, civil interdiction, insanity, or
insolvency of either party before acceptance
is conveyed.
Art 1327. The ff. cannot give consent to
a K:
1) Unemancipated minors;
2) Insane or demented persons, &
deaf-mutes who do not know how to write.
Art 1399. When the defect of the K
consists in the incapacity of one of the
parties, the incapacitated person is not
obliged to make any restitution except insofar
as he has been benefited by the thing or
price received by him.

3. DEAF-MUTISM
Tolentino
can make a valid will, so long as its content
have been communicated or made known
to him in some practicable manner (Art.
807.) But when the deaf-mute does not
know how to read & write, he cannot give
consent to contracts (1327, par. 2, & he
cannot personally accept or repudiate an
inheritance (1048.)

Art 1327. The ff. cannot give consent to a


K:

1) Unemancipated minors;
2) Insane or demented persons, &
deaf-mutes who do not know how to write.
Art 820. Any person of sound mind & of
the age of 18 yrs or more, & not blind, deaf
or dumb & able to read & write, may be a
witness to the execution of a will
mentioned in 805 of this Code.

4. CIVIL INTERDICTION
Tolentino:
This is an accessory penalty imposed upon
persons who are sentenced to a principal
penalty not lower than reclusion temporal
(Art. 41, RPC.) Art. 34 of the RPC provides:
Art. 34. Civil interdiction shall deprive
the offender during the time of his
sentence of the rights of parental authority,
or guardianship, either as to the person or
property of any ward, of marital authority,
of the right to manage his property, & of
the right to dispose of such property by any
act or any conveyance inter vivos.
Art. 135.
Any of the ff. shall be
considered
suff
cause
for
judicial
separation of property:
1) that the spouse of the petitioner has
been sentenced to a penalty w/c carries w/
it civil interdiction;
xxx
Art 142.
The administration of all
classes of exclusive property of either
spouse may be transferred by the court to
the other spouse:
xxx
3) When one spouse is sentenced to a
penalty w/c carries w/ it civil interdiction;
xxx

5. PRODIGALITY.
R 92 Sec 2. Under this Rule, the
word incompetent includes persons
suffering the penalty of civil interdiction or
who are hospitalized lepers, prodigals,
deaf & dumb who are unable to read &
write, those who are of unsound mind,
even though they have intervals, &
persons not being of unsound mind, but by
reason of age, disease, weak mind, &
27

other similar causes, cannot w/o outside aid,


take care of themselves, & manage their
property, becoming thereby an easy prey for
deceit & exploitation.
Tolentino:
A spendthrift or 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.
Prodigality in itself does not limit the capacity
of a person to act. It seems erroneous to
include prodigality in the Art. 38 bec. as a
circumstance w/c limits capacity, bec.
there is no specific provision of law w/c
implements this general provision. It is
not the circumstance of prodigality, but
the fact of being under guardianship, that
restricts the capacity to act of the
spendthrift.
6. INSOLVENCY.

Art 1919. Agency is extinguished:


xxx
3) By the death, civil interdiction, insanity
or insolvency of the principal or agent;
xxx
Art 1810. The property rts of a partner
are:
1) His rts in the specific partnership
property;
2) His interest in the partnership; &,
3)
His rt. to participate in the
management.
Art 2238.
So long as the conjugal
partnership or absolute community subsists,
its property shall not be among the assets to
be taken possession of by the assignee for
the payment of the insolvent debtors
obligations, except insofar as the latter have
redounded to the benefit of the family. If it is
the
husband
who
is
insolvent,
the
administration of the conjugal partnership or
absol community may, by order of the court,
be transferred to the wife or to a third person
other than the assignee.
ACT NO. 1956 (INSOLVENCY LAW)
Art 70. If any debtor, being insolvent, or
in contemplation of insolvency, w/in 30 days
before the filing of a petition by or vs. him, w/
a view of giving preference to any creditor or

person having a claim vs. him or who is


under any liability for him, procures any
part of his property to be attached,
sequestered, or seized on execution, or
makes any payment, pledge, mortgage,
assignment, transfer, sale or conveyance of
any part of his property, either directly or
indirectly, absolutely or conditional, to
anyone, the person receiving such
payment, pledge, mortgage, assignment,
transfer, sale or conveyance, or to be
benefited thereby, or by such attachment
or seizure, having reasonable cause to
believe that such debtor is insolvent & that
such attachment, sequestration, seizure,
payment, pledge, mortgage, conveyance,
transfer, sale or assignment is made w/ a
view to prevent his property fr. coming to
his assignee in insolvency, or to defeat the
object of, or in anyway hinder, impede or
delay the operation of or to evade the
provisions of this Act, such attachment,
sequestration, seizure, payment, pledge,
mortgage, transfer, sale, assignment or
conveyance is void, & the assignee or the
receiver, may recover the property of the
value thereof as assets of such insolvent
debtor.
If such payment, pledge,
mortgage, conveyance, sale, assignment,
or transfer is not made in the usual &
ordinary course of business of the debtor,
or if such seizure is made under a
judgment w/c the debtor has confessed or
offered to allow, that fact shall be prima
facie evidence of fraud. Any payment,
pledge, mortgage, conveyance, sale,
assignment, or transfer of property or
whatever character made by the insolvent
w/in one month before the filing of the
petition in insolvency by or vs. him, except
for a valuable pecuniary consideration
made in GF, shall be void. All assignments,
transfers, conveyances, mortgages, or
encumbrances of real estate shall be
deemed under this section, to have been
made at the time the instrument conveying
or affecting such realty was filed or
recorded in the office of the Reg. of Deeds
of the province or city where the same is
situated.
Tolentino:
When a person has been adjudicated an
insolvent, he cannot dispose of his
prop. existing at the time of the
commencement of the insolvency
proceedings; & no payments of prop. or
credit can be made to him.
28

The President shall subsequently notify


the Congress of every contract entered into
in accordance w/ this provisions w/in thirty
days fr. its execution.

7. ALIENAGE
Constitution
Art. XII, Sec. 2. All lands of the public
domain, waters, minerals, coal, petroleum &
other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife,
flora & fauna, & other natural resources are
owned by the State. With the exception of
agricultural lands, all other natural resources
shall not be alienated. The exploration,
development, & utilization of natural
resources shall be under the full control &
supervision of the State. Such activities may
be directly undertaken by the State, or it may
enter into co-production, joint venture,
production-sharing agreements w/ Filipino
citizens, or corporations or associations at
least sixty per centum of whose capital is
owned by such citizens. Such agreements
may be for a period of not exceeding twentyfive years, renewable for not more than
twenty-five years, & under such terms &
conditions as may be provided by law. In
cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than
the development of water power, beneficial
use may be the measure & limit of the grant.
The State shall protect the
marine wealth in its archipelagic
territorial sea, & exclusive economic
reserve its use & enjoyment to
citizens.

nation's
waters,
zone, &
Filipino

The Congress may, by law, allow smallscale utilization of natural resources by


Filipino citizens, as well as cooperative fish
farming, w/ priority to subsistence fishermen
& fishworkers in rivers, lakes, bays, &
lagoons.
The President may enter into agreements
w/ foreign-owned corporations involving
either technical or financial assistance for
large-scale exploration, development, &
utilization of minerals, petroleum, & other
mineral oils according to the general terms &
conditions provided by law, based on real
contributions to the economic growth &
general welfare of the country. In such
agreements, the State shall promote the
development, & use of local scientific &
technical resources.

Art. XII, Sec. 7.


Save in cases of
hereditary succession, no private lands
shall be transferred or conveyed except to
individuals, corporations, or associations
qualified to acquire or hold lands of the
public domain.
Art. XII, Sec. 8.
Notw/standing the
provisions of Section 6 of this Article, a
natural-born citizen of the Philippines who
has lost his Philippine citizenship may be a
transferee of private lands subject to
limitations provided by law.
Art. XII, Sec. 11.
No franchise,
certificate,
or
any
other
form
of
authorization for the operation of a public
utility shall be granted except to citizens of
the Philippines or to corporations or
associations organized under the laws of
the Philippines at least sixty per centum of
whose capital is owned by such citizens,
nor shall such franchise, certificate or
authorization be exclusive in character or
for a longer period than fifty years. Neither
shall any such franchise or right be granted
except under the condition that it shall be
subject to amendment, alteration, or repeal
by Congress when the common good so
requires. The State shall encourage equity
participation in public utilities by the
general public. The participation of foreign
investors in the governing body of any
public utility shall be limited to their proportionate share in its capital, & all
executive & managing officers of such
corporation or association must be citizens
of the Philippines.
Art. XVI, Sec. 11. (1) The ownership &
management of mass media shall be
limited to citizens of the Philippines, or to
corporations, cooperatives or associations,
wholly owned & managed by such citizens.
The Congress shall regulate or prohibit
monopolies in commercial mass media
when the public interest so requires. No
combination in restraint of trade or unfair
competition therein shall be allowed.

29

(2) The advertising industry is impressed


w/ public interest, & shall be regulated by law
for the protection of consumers & the
promotion of the general welfare.
Only Filipino citizens or corporations or
associations at least seventy per centum of
the capital of w/c is owned by such citizens
shall be allowed to engage in the advertising
industry.
The participation of foreign investors in
the governing body of entities in such
industry
shall
be
limited
to
their
proportionate share in the capital thereof, &
all the executive & managing officers of such
entities must be citizens of the Philippines.

obligations arising fr. law, such as those


imposed on family relations.
Incapacitated persons are also
civilly liable for crimes committed by them,
even if they are exempted fr. criminal liab.
(Art. 101, RPC.) They are liable for quasidelicts, under the express provisions of
Articles 2181 & 2182.
They are liable on quasi-contracts,
on the principle that nobody can unjustly
enrich himself at the expense of another.
Where necessaries are delivered to
a minor or other incapacitated person, he
must pay a reasonable price therefore.
(Art. 1489.)

Art. XIV, Sec. 4. (2)


Educational
institutions, other than those established by
religious groups & mission boards, shall be
owned solely by citizens of the Philippines, or
corporations or associations at least sixty per
centum of the capital of w/c is owned by such
citizens. The Congress may, however, require
increased Filipino equity participation in all
educational institutions.

Art. 39. The following circumstances,


among others, modify or limit capacity to
act: age, insanity, imbecility, the state of
being a deaf-mute, penalty, prodigality,
family
relations,
alienage,
absence,
insolvency
&
trusteeship.
The
consequences of these circumstances are
governed by this Code, other codes, the
Rules of Court, & in special laws. Capacity
to act is not limited on account of religious
belief or political opinion.

The control & administration of all


educational institutions shall be vested in
Filipino citizens.

A married woman, eighteen years of


age or over, is qualified for all acts of civil
life, except in cases specified by law.

No educational institution shall be


established exclusively for aliens & no group
of aliens shall comprise more than one-third
of the enrolment in any school. The
provisions of this subsection shall not apply
to schools established for foreign diplomatic
personnel & their dependents &, unless
otherwise provided by law, for other
temporary foreign residents.

Tolentino:
Citizenship may affect the right of persons in
matters where the State may validly
discriminate between aliens & its citizens
for reasons of public policy, w/o doing
violence to the equal protection of the
laws. See constitutional provisions, infra.
Balane:
Incapacitated persons (fr. Tolentino)-They may have obligations arising fr. all
sources, except contracts.
They have

Balane:
There is a lapse in the enumeration. Art.
38
enumerates
6
circumstances
limiting,
modifying
or
restricting
capacity to act whereas Art. 39
enumerates 11. The two articles could
have been merged into one article.
Tolentino:
The enumeration made here is not
exclusive of other circumstances modifying
capacity to act.
Guardianship of Incompetents.-- For
definition of incompetents, see Rule 93,
Sec. 2, ROC, infra.
Even w/o guardianship, persons
under civil interdiction, deaf-mutes who do
not know how to read & write, & those of
unsound mind, are of limited capacity. W/
respect, however, to hospitalized lepers,
prodigals, & those who cannot take care of
themselves & manage their prop., it is the
30

fact of guardianship w/c will limit their


capacity to act.

first 120 days of the 300 days preceding


the birth of the child.

Family
Relations.-Ascendants
&
descendants, brothers & sisters, & collateral
relatives w/in the 4th civil degree (as
cousins), cannot validly marry; their marriage
would be incestuous or against public policy
& void. Husband & wife, during the marriage,
cannot give donations to each other.

The ff. provisions of the NCC are


relevant:

Absence.-- A person is absent when he


disappears fr. his domicile, & his whereabouts
are unknown (381.)
He cannot properly
administer his properties, & so another
person is appointed to administer them.
Physical condition.-- Physical incapacity to
enter into the married state, or impotence, is
a ground for annulment of marriage [Art.
55(5), FC], & a person who is blind, or deaf or
dumb, cannot be a witness to the execution
of a will. (820.)
II. KINDS OF PERSONS

ART. 742.
Donations made to
conceived & unborn children may be
accepted by those persons who would
legally represent them if they were already
born.
ART. 1025. In order to be capacitated
to inherit, the heir, devisee or legatee
must be living at the moment the
succession opens, except in case of
representation, when it is proper.
A child already conceived at the time of
the death of the decedent is capable of
succeeding provided it be born later under
the conditions prescribed in article 41.

A. NATURAL PERSONS
BALANE/ BAVIERA CASE:
1.
COMMENCEMENT
PERSONALITY

OF

ART. 37.
Juridical capacity, w/c is the
fitness to be the subject of legal relations, is
inherent in every natural person & is lost only
through death. Capacity to act, w/c is the
power to do acts w/ legal effect, is acquired &
may be lost.
ART. 40. Birth determines personality; but
the conceived child shall be considered born
for all purposes that are favorable to it,
provided it be born later w/ the conditions
specified in the following article.

Tolentino:
Personality fr. Birth.-- Birth means the
removal of the fetus fr. the mother's womb.
Conceived Child.-- The personality of the
conceived child has 2 characteristics: (1) it
is essentially limited, bec. it is only for
purposes favorable to the child, & (2) it is
provisional or conditional, bec. it depends
upon the child being born alive later, such
that if it is not born alive, its personality
disappears as if it had never existed.
Period of Conception.-Legally, in a
normal child, the period of conception is the

GELUZ V. CA [2 S 801 (1961)]


FACTS: Nita Villanueva came to know the
defendant (Antonio Geluz) for the first time
in 1948-- thru her aunt. In 1950, she
became pregnant by her present husband
before they were legally married. During to
conceal her pregnancy fr. her parent, she
had herself aborted by def.
After the
marriage w/ the pltff., she again became
pregnant. As she was employed in the
COMELEC & her pregnancy proved to be
inconvenient, she had herself aborted
again by def. in Oct 1953. Less than 2
years later, she again became pregnant.
On 2/21/55, she again repaired to the def's
clinic. Nita was again aborted of a 2-month
old fetus, in consideration of the sum of
P50.
It is the third & last abortion that
constitutes pltff's basis in filing this action
& award of damages The CA & the trial
court predicated the award of damages
upon the provisions of the initial par. of Art.
2206 of the NCC.
HELD: This award, we believe, to be error
for the said art., in fixing an award for the
death of a person, does not cover the case
of an unborn fetus that is not endowed w/
personality.
31

Parents of unborn fetus cannot sue


for damages on its behalf. A husband of a
woman who voluntarily procured her abortion
could not recover damages fr. the physician
who caused the same. (1) Since an action for
pecuniary damages on account of personal
injury or death pertains primarily to the
injured, no such right of action could derivatively accrue to the parents or heirs of an
unborn child. In fact, even if a cause of action
did accrue on behalf of the unborn child, the
same was extinguished by its pre-natal
death, since no transmission to anyone can
take place fr. one that lacked juridical
personality
(or
juridical
capacity,
as
distinguished fr. capacity to act). It is no
answer to invoke the provisional personality
of a conceived child (conceptus pro nato
habetur) under Article 40 of the Civil Cod,
bec. that same article expressly limits such
provisional personality by imposing the
condition
that
the
child
should
be
subsequently born alive: "provided it be born
later w/ the condition specified in the
following article." In the present case, there is
no dispute that the child was dead when
separated fr. its mother's womb.
(2) This is not to say that the parents
are not entitled to collect any damages at all.
But such damages must be those inflicted
directly upon them, as distinguished fr. the
injury or violation of the rights of the
deceased, his right to life & physical integrity.
Because the parents cannot expect either
help, support or services fr. an unborn child,
they would normally be limited to moral
damages for the illegal arrest of the normal
development of the spes hominis that was
the fetus, i.e., on account of distress &
anguish attendant to its loss, & the
disappointment of their parental expectations
(Art. 2217, CC), as well as to exemplary
damages, if the circumstances should
warrant them (Art. 2230, CC). But in this
case, there is no basis for an award of moral
damages, evidently bec. the husband's
indifference to the previous abortions clearly
indicates that he was unconcerned w/ the
frustration of his parental hopes & affection.

ART. 41. For civil purposes, the fetus is


considered born if it is alive at the time it is
completely delivered fr. the mother's womb.
However, if the fetus had an intrauterine life

of less than seven months, it is not deemed


born if it dies w/in twenty-four hours after
its complete delivery fr. the maternal
womb.

Tolentino:
Separation from Mother.-This is
produced by the cutting of the umbilical
cord, whether the removal takes place
naturally or by surgical operation.
Alive at Birth.-- The duration of extrauterine life is immaterial; for acquisition of
juridical personality, it is enough that the
child lives even for an instant.
Test of Life.-- The general opinion is that
independent life required for juridical
personality can be shown only by complete
respiration. The cry of the child, although it
is not a necessary sign of life, is evidence
that it has acquired complete respiration.
Another indication of complete respiration
is the floating of the lungs when placed in
water; this means that air has penetrated
into the lungs by breathing.
Viability Not Required.-Viability
means that the child is capable of living, &
this is determined by the extent of the
development of its organs.
Premature Birth.-- In this case, if the
child does not live 24 hours completely
separated fr. the mother's womb, it does
not acquire juridical personality. This is an
absolute requirement for fetuses w/c have
an intrauterine life of less than 7 mos.
(Balane quoting Manresa & JBL.)
"The aborted creature does not
reach the category of a natural person &
consequently
is
not
born
in
the
contemplation of law."
(Geluz v. CA,
supra.)
This is so, even if the child is killed
before the period lapses & it can be proved
that it could have survived that period if it
had not been prevented by the willful act of
another.
On the other hand, juridical
personality is acquired even if the survival
for 24 hours is caused only by medical or
scientific means w/o w/c the child would
have died before the lapse of that period.
Balane:
Outline of Articles 40 & 41
1. For civil personality to be acquired, one
must be born.-- A fetus is born after it is
completely separated fr. the mother's
womb w/c is produced by the cutting of the
32

umbilical cord; after the separation, the child


now survives by itself.
There was an additional requirement
in the OCC: only that fetus is considered born
w/c has a "uniform form." This has been
taken out in the NCC.
The question of determining the exact
duration of intrauterine life is a problem even
medical science is not equipped to answer as
of the moment.
2.
Once birth occurs, personality for
favorable purposes retroacts fr. the moment
of conception.-The retroactivity rule is
qualified-- only for purposes favorable to the
child.
2. EXTINGUISHMENT
A.

CONTRACTS

ART. 42. Civil personality is extinguished


by death. The effect of death upon the rights
& obligations of the deceased is determined
by law, by contract & by will.

Tolentino:
Natural Death.-- This art. refers to natural
or physical death, bec. this is the only kind of
death recognized by present legislation. The
law does not recognize the so-called "civil
death," known to legislation in the past, by
virtue of w/c a man who was alive was
considered dead for all purposes bec. of a
conviction for crime or of the taking of a
religious profession.
Balane: Physical death & legal death are the
same.
ART. 777. The rights to the succession
are transmitted fr. the moment of death of
the decedent.
ART. 776. The inheritance includes all the
property, rights & obligations of a person w/c
are not extinguished by his death.
ART. 1919. Agency is extinguished:
(3) By the death, civil interdiction,
insanity or insolvency of the principal or of his
agent.
xxx

ART. 1830. Dissolution (of partnership)


is caused:
xxx
(5) By the death of any partner.
xxx
ART. 603. Usufructuary is extinguished:
(1) By the death of the usufructuary,
unless a contrary intention clearly appears;
ART. 1311. Contracts take effect only
between the parties, their assigns & heirs,
except in case where the rights &
obligations arising fr. the contract are not
transmissible by their nature, or by
stipulation or by provision of law. The heir
is not liable beyond the value of the
property he received fr. the decedent.

RUFO MAURICIO CONST. VS. IAC


FACTS: Cabiliza was charged w/ homicide
& damage to prop. thru reckless
imprudence when the dump truck he was
driving sideswiped a car owned by Solidum
causing the latters death.
During the
pendency of his appeal of the TCs
conviction, C died. A Notice of death w/
manifestation of the intention of RMC as er
of C to proceed w/ the case was filed bec.
RMC
was subsid liable.
The criminal
liability of C was extinguished but the civil
liability was not & bec C was insolvent, a
subsid writ of exec was enforced vs. RMC
HELD: The contention of RMC (P) that Cs
death wiped out not only his primary civil
liability but also his ers subsidiary liability
is w/o merit. The death of the accused
during the pendency of his appeal or
before the jdmt vs. him became final &
exec extinguishes his crim. Liability but not
his civil liability should the obligation arise
not fr. a crime (since no crime was
committed, the accused not having been
convicted by final jdmt-still innocent) but fr.
quasi-delict as in this case. The liability of
the er would not be subsidiary but solidary
w/ his driver (unless said er can prove there
was no negligence on his part at all, that is,
if he can prove due diligence in the
selection & supervision of his driver). And
in CAB since er was not a party in the crim.
Case, he is given the opportunity to
33

present his defense so the hearing on the


motion to quash the subsid WOE must be
reopened.
PEOPLE VS. BAYOTAS
FACTS:
Bayotas was charged w/ rape &
during the pendency of his appeal of his
conviction, he died. The SC dismissed the
crim aspect of the case & the only issue left
to be resolved is WON Bs civil liability arising
fr. the offense survives his death.
HELD: The SC held that it depends on the
kind of civil liability you are enforcing against
the accused.
If the civil liab arises fr. CRIME
Death of the accused pending appeal of his
conviction extinguishes his crim. liability
AS WELL AS THE CIVIL LIAB BASED
SOLELY ON THE CRIMINAL ACT
In recovering civil liab ex delicto, the same
has to be determined in the crim action,
rooted as it is in the cts pronouncement
of guilt or innocence of the accused. In
such cases, extinction of the crim action
due to the death of the accused pending
appeal inevitably signifies concomitant
extinction of the civil liab. MORS OMNIA
SOLVI death dissolves all things.
If the claim for civil liab is predicated on a
SOURCE OF OBLIGATION OTHER THAT
THE DELICT
The claim survives notw/standing the death
of the accused. Art 1157 of the NCC
enumerates these other sources of oblig
fr. w/c the civil liab may arise as a result
of the same act/omission.
Where the civil liability survives, an action for
recovery therefor may be pursued but
only by way of filing a SEPARATE CIVIL
ACTION & subject to Sec. 1, R111 of the
1985 Rules on Crim. Pro.
This separate civil action may be enforced
either against the executor/admin of the
accused, depending on the source of oblig
upon w/c the same is based.

they were issued to guarantee payment of


obligation (pursuant to Min. of Justice
Circular. The TC also held that no civil
liability can be enforced due to acquittal of
both accused. Civil liab can be enforced
only in a sep. action on the agmt.
guaranteed by the checks. While MBC
appealed the case in the CA, TTS died.
HELD: The civil liab cannot be enforced
bec it was not the personal liab of TTS but
of the corp. MBC is actually enforcing a
contractual, not a tortuous liability.
Assuming that it is a tortuous claim, it must
still be addressed against the corp. bec the
checks were issued for the corps obligs.
Necessarily, any claim for tortuous liability
must be ventilated in a separate action vs.
the proper party.
Bayotas ruling reiterated, adding
that: Finally, the private offended party
need not fear a forfeiture of his right to file
this separate civil action by prescription, in
cases where during the prosecution of the
criminal action & prior to its extinction, the
private-offended party instituted together
therew/ the civil action. IN such case, the
statute of limitations on the civil liability is
deemed interrupted during the pendency
of the crim case, conformably w/ provisions
of Art. 1155 of the NCC, that should
thereby avoid any apprehension on a
possible
deprivation
of
right
by
prescription.
B.

CRIM LIABILITY

ART. 89. How criminal liability is totally


extinguished. - Criminal liability is totally
extinguished:
(1) By the death of the convict, as to
the personal penalties; & as to pecuniary
penalties, liability therefor is extinguished
only when the death of the offender occurs
before final judgment.

MANSION BISCUIT CORP VS. CA


FACTS: Ty Tek Suan (TTS) as pres. Of ETBC
ordered biscuits fr. MBC issuing 4 postdated
checks w/c later bounced. An information for
violation of BP 22 was filed against TTS & his
co-signee SG. The LC granted the MTD bec.
the checks were not covered by BP 22 bec

B. JURIDICAL PERSONS

ART. 44.
persons:

The following are juridical

34

(1) The State & its political subdivisions;


(2) Other corporations, institutions &
entities for public interest or purpose, created
by law; their personality begins as soon as
they have been constituted according to law;
(3)
Corporations,
partnerships
&
associations for private interest or purpose to
w/c the law grants a juridical personality,
separate & distinct fr. that of each
shareholder, partner or member.

Tolentino:
Concept -- A juridical person is an abstract
being, formed for the realization of collective
purposes to w/c the law has granted capacity
for rights & obligations. The members may
change but the juridical person remains
subsisting w/o alteration. Its personality is
manifested only in the realm of patrimonial
relations; it has no family & personal rights.
Balane:
A juridical person is an organic unit resulting
fr. a group of persons or mass or property to
w/c the State grants or recognizes personality
& capacity to hold patrimonial rights
independent
of
those
of
component
members. (quoting Ruggiero.)
BALANE CASE:
BARLIN V. RAMIREZ [7 P 41]
Facts:
The def., Ramirez, having been
appointed by the pltff parish priest, took
possession of the church on 7/5/01.
He
administered if as such under the orders of
his superiors until 11/14/02. His successor
having been then appointed, the latter made
a demand on this def. for the delivery to him
of the church, convent, & cemetery, & the
sacred ornaments, books, jewels, money, &
other prop. of the church. The def., by a
written document of that date, refused to
make such delivery, stating that "the town of
Lagonoy, in conjunction w/ the parish priest
of thereof, has seen fit to sever connection w/
the Pope at Rome & his representatives in
these Islands, & to join the Filipino Church,
the head of w/c is at Mla.
In 1/4, the pltff. brought this action
against def., alleging in his amended
complaint that the Roman Catholic Church
was the owner of the church bldg., the
convent, cemetery, the books, money, &
other prop. belonging thereto, & asking that it
be restored to the possession thereof & that
the def. render an account of the prop. w/c he

had received & w/c was retained by him, &


for other relief. The CFI-Ambos Camarines
ruled in favor of the pltff.
HELD: It is suggested by the appellant
that the Roman Catholic Church has no
legal personality in the Philippine Islands.
This suggestion, made w/ reference to an
institution w/c antedates by almost a
thousand years any other personality in
Europe, & w/c existed "when Grecian
eloquence still flourished in Antioch, &
when idols were still worshipped in the
temple of Mecca," does not require serious
consideration.
ART. 45. Juridical persons mentioned in
Nos. 1 & 2 of the preceding article are
governed by the laws creating or
recognizing them.
Private corporations are regulated by
laws of general application on the subject.
Partnerships & associations for private
interest or purpose are governed by the
provisions of this Code concerning
partnerships.

Tolentino:
What Governs Juridical Persons.-- The
State is governed by the provisions of the
Consti; provinces & municipalities are
governed by the Local Gov't Code & the
Revised Admin. Code; & chartered cities,
by their respective charters.
Corporations created by special
charter are governed primarily by such
charter; & those created under general law
are governed by the Corporation Code.
Partnerships & associations must be
governed primarily by their contracts of
association, & only secondarily by law, bec.
partnerships are created by contract, & it is
a fundamental rule that the contract has
the force of law between the contracting
parties.
ART. 46. Juridical persons may acquire
& possess property of all kinds, as well as
incur obligations & bring civil or criminal
actions, in conformity w/ the laws & regulations of their organization.
Tolentino:
Capacity of Juridical Persons.-The
juridical person is not completely at par w/
35

natural persons as to capacity, bec. it cannot


exercise rights w/c presuppose physical
existence, such as family rights, making of
wills, etc.
Extinguishment of Capacity.-The
juridical capacity of artificial persons is
extinguished upon the termination of its
existence in accordance w/ the law governing
it or w/ its articles of asso. or incorp.
ART. XII, SEC. 3. Lands of the public
domain are classified into agricultural, forest
or timber, mineral lands, & national parks.
Agricultural lands of the public domain shall
be limited to agricultural lands.
Private
corporations or associations may not hold
such lands of the public domain except by
lease, for a period not exceeding twenty-five
years, renewable for not more than twentyfive years, & not to exceed one thousand
hectares in area. Citizens of the Philippines
may lease not more than five hundred
hectares, or acquire not more than twelve
hectares thereof by purchase, homestead, or
grant in excess of twelve hectares.
Taking into account the requirements of
conservation, ecology & development &
subject to the principles of agrarian reform,
the Congress shall determine, by law, the size
of lands of the public domain w/c may be
acquired, developed, held or leased & the
conditions therefor.
ART. XII, SEC. 7.
Save in cases of
hereditary succession, no private lands shall
be transferred or conveyed except to
individuals, corporations, or associations
qualified to acquire or hold lands of the public
domain. (ibid.)
(not in Baviera's outline)
ART. 47.
Upon the dissolution of
corporations, institutions & other entities for
public interest or purpose mentioned in No. 2
of article 44, their property & other assets
shall be disposed of in pursuance of law or
the charter creating them. If nothing has
been specified on this point, the property &
other assets shall be applied to similar
purposes for the benefit of the region,
province, city or municipality w/c during the
existence of the institution derived the
principal benefits fr. the same.

ART. 48. Superseded by Art. IV, Sec. 1


of the 1987 Constitution
ART. IV, SEC. 1.
The following are
citizens of the Philippines:
(1)
Those who are citizens of the
Philippines at the time of the adoption of
this Constitution;
(2) Those whose fathers or mothers are
citizens of the Philippines;
(3) Those born before January 17, 1973
of Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority; &
(4)
Those who are naturalized in
accordance w/ law.
ART. 49. Naturalization & the loss &
reacquisition
of
citizenship
of
the
Philippines are governed by special laws.
ART. 50. For the exercise of civil rights
& the fulfillment of civil obligations, the
domicile of natural persons is the place of
their habitual residence.

Balane:
Requisites of Domicile: (1) physical
presence; (2) animus manendi (intent to
remain) (Gallego v. Vera, 73 P 453.)
Three kinds of Domicile:
Domicile of Origin.-Domicile of the
parents of a person at the time he was
born
Domicile of Choice.-- Domicile chosen by a
person to change his original domicile.
Aside fr. the 2 requisites mentioned
above, a third requisite must be present
in domicile of choice, animus non
revertendi (intention not to return to
one's old domicile as his permanent
place.)
Domicile by Operation of Law.-- E.g., Art.
69, FC.
Three Rules in Domicile:
A man must have a domicile somewhere.
A domicile once established remains until a
new one is acquired.
A man can have only 1 domicile at a time.
Domicile & Residence. Domicile is not
the same as residence.
Domicile is
residence plus habituality.

36

Importance of Understanding Domicile.-In case of revocation of wills (Art. 829), place


of performance of obligation (Art. 1251, par.
3), renvoi (Aznar v. Garcia.)
ART. 51.
When the law creating or
recognizing them, or any other provision does
not fix the domicile of juridical persons, the
same shall be understood to be the place
where
their
legal
representation
is
established or where they exercise their
principal functions.

Tolentino:

FAMILY CODE
NOTE: The FC took effect on August 3, 1988
following its complete publication in the
Manila Chronicle on August 4, 1987.
(Arts. 1-54
Outline)

follow

ART. 1. Marriage is a special contract


of permanent union between a man & a
woman entered into in accordance w/ law
for the establishment of conjugal & family
life. It is the foundation of the family & an
inviolable social institution whose nature,
consequences, & incidents are governed by
law & not subject to stipulation, except that
marriage settlements may fix the property
relations during the marriage w/in the
limits provided by this Code.

Prof.

Ruben

Balane's

MARRIAGE
A. DEFINITION
Tolentino:

Marriage
a
Social
Institution.-Marriage is a contract only in form, but in
essence it is an institution of public order,
founded on custom & morality. It is a
contract sui generis w/c cannot be
compared to any other contract.
Characteristics:
(1)
It is civil in
character, bec. it is established by the
State independently of its religious aspect;
(2) it is an institution of public order or
policy, governed by rules established by
law w/c cannot be made inoperative by the
stipulation of the parties; (3)
it is an
institution of natural character, bec. one of
its objects is the satisfaction of the intimate
sentiments & needs of human beings for
the organic perpetuation of man.

Definitions of Marriage.-The term


marriage has 2 distinct meanings. In one
sense, it is limited to the procedure by w/c a
man & a woman become husband & wife. In
this concept, it is defined as "that act by w/c
a man & a woman unite for life, w/ the intent
to discharge towards society & one another
those duties w/c result fr. the relation of
husband & wife."

Balane:

In the second sense, marriage is a


status involving duties & responsibilities w/c
are no longer matter for private regulations,
but the concern of the State. xxx As such, it is
defined as "the civil status of one man & one
woman, legally united for life, w/ rights &
duties w/c, for the establishment of families
& the multiplication of the species, are, fr.
time to time may thereafter be, assigned by
law to matrimony." (Balane quoted Tolentino
on the meaning of marriage.)

Tolentino:

Purposes of Marriage.-- In general: (1)


reproduction, (2) education of the offspring,
& (3) mutual help. The immediate purpose
is the constitution of a complete & perfect
community bet. 2 individuals of different
sexes;
the
remote
purpose
is
the
preservation of the human race.

Marriage is a contract. Art. 52, NCC


provides that M is not a mere contract. Art.
1, FC, on the other hand provides that M is
a special contract. Both emphasize that M
is not just a contract.

Differentiated fr. Ordinary Contracts:


As to parties: Ordinary contracts (0C)
may be entered into by any no. of
persons, whether of the same or
different sex, while marriage (M) can be
entered into only by one man & one
woman;
As to contractual rights & obligations:
In OC, the agreement of the parties
have the force of law bet. them while in
M, the law fixes the duties & rights of
the parties;
As to termination: OC can be terminated
by mutual agreement of the parties,
37

while M cannot be so terminated; neither


can it be terminated even though one of
the
parties
subsequently
becomes
incapable of performing his part; &
As to breach: Breach of OC gives rise to an
action for damages, while breach of the
obligations of a husband or a wife does
not give rise to such an action; the law
provides penal & civil sanctions, such as
prosecution for adultery or concubinage,
& proc. for legal sep.;
As to effect: OC do not create status, M
does. (no. 5 was added by Balane.)
Balane:
Quite logically, marriage is the
starting point of any family relation bec. in
our legal system, the family is the keystone
of society, the basic unit of society. And
marriage is the keystone of the family. This is
a value judgement. Marriage does not have
to be the keystone of the family. But we
choose it to be that way.
xxx
Much arguments have been
raised regarding the status of children on the
distinction of legitimate fr. illegitimate
children. There are those who propose the
abolition of the distinction as it is not the fault
of the illegitimate child that he is such. But
one of the unintended consequence of
abolishing the distinction is to erode the
institution of marriage. Are we ready to take
that path?
Tolentino:
Principal Effects of Marriage:
personal & economic relations bet. the sps.,
w/c become sources of impt. rights &
duties;
the legitimacy of sexual union & of the
family;
the personal & economic relations bet.
parents & children, w/c gives rise to
considerable rights & duties;
the family rel'p, fr. w/ flow various juridical
consequences, such as impediments to
marriage, right to support, & rights to
inheritance;
incapacity of the sps. to make donations to
each other;
disqualification of the sps. to testify against
each other;
modification of crim. liab., such as by way of
exemption when one spouse defends the
other fr. unlawful aggression or is his
accessory after the fact, or mitigation
when the crime is committed in
vindication of a grave offense to the
spouse, or aggravation when the injured
is the spouse of the offender, such as in
parricide.

Contract to Marry.-Where parties


mutually agree to marry each other at
some future time, there is a contract to
marry. xxx It can be distinguished fr. an
ordinary contract in that the promise of
either party cannot be enforced by court
action, bec. the consent to the actual
marriage must be purely voluntary.
Breach
of Promise.-There is
repudiation where before the time set for
the performance of the marriage, one party
declares that he will not carry it out, or
refuses to further communicate w/ or
maintain a suitor's relation w/ the other
party, or puts himself in a position where
he cannot execute the contract, as when
he marries another.
Damages for Breach.-- [T]he action for
breach of promise to marry has no standing
in the civil law, apart fr. t he right to
recover money or property advanced by
the plaintiff upon the faith of such
promise." (De Jesus v. Syquia, 58 P 866.)
We believe that an action based
purely on breach of the contract to marry,
will not lie. xxx It is true that she may
suffer fr. wounded feelings & mental
anguish, & these are recognized as
elements of moral damages under article
2217; but before such damages can be
recovered, there must first be a right of
action, & there is no law granting a right of
action on breach of contract to marry.
However, we believe that if the action for
damages is based on tort or quasi-delict, or
on articles 19, 21, or 22 of the present
Code, there would be a sufficient legal
basis or right of action for damages.
Effect of Seduction.-- xxx [I]t is possible
legally to base an action upon the carnal
knowledge of the pltff. by the def., or upon
the seduction, as a fact separate fr. the
contract to marry. The promise to marry
would only be the means of accomplishing
the seduction. If the offended woman has
been led to submit to carnal intercourse by
the promise of marriage, she should be
entitled to damages, not only on the basis
of tort or quasi-delict, but under the
provisions of art. 21.
xxx
The essence of the action
would not be the breach of the contract,
but the tortuous or wrongful act or
seduction
accomplished
through
the
deceitful promise.
Abuse of right.-- Even when there has
been no seduction, we believe that under
art. 19, damages, may under certain
circumstances, be recovered against a
party who repudiates a contract to marry;
but the basis of the action cannot be the
mere breach of contract itself, but some
act constituting an abuse of right.
38

Unjust enrichment.-- Another legal basis in


connection w/ a breach of contract to marry
is art. 22 on unjust enrichment. xxx Gifts to
the person to whom the donor is engaged to
be married are considered legally as
conditional,
&
upon
breach
of
the
engagement by the donee, may be recovered
by the donor. (see Domalagan v. Bolifer, 33 P
471.)
Oral Agreement.-Under 1403 "an
agreement made
in consideration of
marriage, other a mutual promise to marry,"
shall be unenforceable by action, unless the
same, or some note or memorandum thereof,
be in writing, & subscribed the party sought
to be charged. (Statute of Frauds.)
It seems to us that the writing is not
necessary in an action for damages for
breach of a contract to marry. First, where
the party who sues for damages has already
given the consideration for the promise of the
def., it is unjust to deny the action on the plea
of the Statute of Frauds. Second, the Statute
should apply only when the action is to
enforce the contract; but not when it is for
damages for breach.
GOITIA V. CAMPOS RUEDA [35 P 252]
FACTS: This is an action for support by G
(wife) against R (husband). After 1 mo. of
marriage, R repeatedly demanded fr. G to
perform "unchaste & lascivious acts on R's
genitals." Bec. of G's refusal, R maltreated G
by word & deed, inflicting bodily injuries on G.
To escape R's lewd designs & avoid further
harm, G left the conjugal home & took refuge
in her parent's house. G filed an action for
support w/ the trial court. this was dismissed
on the ground that R could not be compelled
to give support if G lived outside of the
conjugal home, unless there was legal sep. G
appealed.
HELD: Marriage is something more than a
mere contract. It is a new relation, the rights,
duties, & obligations of w/c rest not upon the
agreement of the parties but upon the
general law w/c defines & prescribes those
rights, duties, & obligations. Marriage is an
institution, in the maintenance of w/c in its
purity the public is deeply interested. It is a
relation for life & the parties cannot
terminate it at any shorter period by virtue of
any contract they may make. The reciprocal
rights arising fr. this relation, so long as it
continues, are such as the law determines fr.
time to time & none other. When the legal
existence of the parties is merged into one by

marriage, the new relation is regulated &


controlled by the state or gov't. upon
principles of public policy for the benefit of
society as well as the parties. And when
the object of a marriage is defeated by
rendering its continuance intolerable to one
of the parties & productive of no possible
good to the community, relief in some way
should be obtainable.
The law provides that the H, who is
obliged to support the wife, may fulfill this
obligation either by paying her a fixed
pension or by maintaining her in his own
home at his option. However, the option
given by law is not absolute. The law will
not permit the H to evade or terminate his
obligation to support his wife if the wife is
driven away fr. the conjugal home bec. of
the H's own wrongful acts. In this case,
where the wife was forced to leave the
conjugal abode bec. of the lewd designs &
physical assaults of the H, the W may claim
support fr. the H for separate maintenance
even outside of the conjugal home.
B.
REQUISITES
MARRIAGE

OF

VALID

ART. 4. The absence of any of the


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

Balane:
There are two kinds of requisites, the
essential & the formal.
There are three essential requisites:
legal capacity of the contracting parties,
consent freely given &
difference in sex (other commentators
opine that this third is already included
in legal capacity.)
39

3 formal requisites:
(1) authority of the solemnizing officer,
(2) a valid marriage license &
(3) some form of ceremony.
Distinction.-Absence,
Irregularity of Requisites:

Defect,

Absence of a requisite, whether essential or


formal, renders the marriage void. Absence
means a total want of a requisite.
E.g., the total absence of a marriage
license (absence of a formal requisite)
w/c renders the M void.
A defect in the essential requisite makes the
marriage voidable
was

ART. 39. The action or defense for the


declaration of absolute nullity of a marriage
shall not prescribe. xxx

E.g., where the consent of either party


vitiated by intimidation.

An irregularity in the formal requisite does


not
affect the validity of the marriage but this is
w/o
prejudice
to
the
criminal,
civil
or
administrative
liability of erring officials.
E.g., where the marriage license was
issued w/o complying w/ the 10-day
posting requirement. (Art. 17, FC.)
1.
Difference in Sex (an essential
requisite)-- Arts. 2 par. 1, 4 par. 1, 39
ESSENTIAL

ART. 2. No marriage shall be valid, unless


these essential requisites are present:
Legal capacity of the contracting parties
who must be a male & a female;
Consent freely given in the presence of
the solemnizing officer.

Balane: The phrase "who must be a male &


a female" was not found in the NCC.
ART. 4.
The absence of any of the
essential or formal requisites shall render the
marriage void ab initio, except as stated in
Article 35 (2).
xxx

1. A. LEGAL CAPACITY

ART. 5. Any male or female of the age


of eighteen years or upwards not under
any of the impediments mentioned in Arts.
37 & 38, may contract marriage.
ART. 37.
Marriages between the
following are incestuous & void fr. the
beginning,
whether
the
relationship
between the parties be legitimate or
illegitimate:
Between ascendants & descendants of
any degree; &
Between brothers & sisters, whether of
the full or half blood.
ART. 38. The following marriages shall
be void fr. the beginning for reasons of
public policy:
Between collateral blood relatives,
whether legitimate or illegitimate, up to the
fourth civil degree;
Between step-parents & step-children;
Between parents-in-law & children-inlaw;
Between the adopting parent & the
adopted child;
Between the surviving spouse of the
adopting parent & the adopted child;
Between the surviving spouse of the
adopted child & the adopter;
Between an adopted child & a
legitimate child of the adopter;
Between adopted children of the same
adopter; &
Between parties where one, w/ the
intention to marry the other, killed that
other persons spouse or his or her own
spouse.

1. B. CONSENT
CONTRACTING PARTIES

OF

40

ART. 14. In case either or both of the


contracting parties, not having been
emancipated by a previous marriage, are
between the ages of eighteen & twenty-one,
they shall, in addition to the requirements of
the preceding arts., exhibit to the local civil
reg., the consent to their marriage of their
father, mother, surviving parent or guardian,
or persons having legal charged of them, in
the order mentioned. Such consent shall be
manifested in writing by the interested party,
who personally appears before the proper
local civil registrar, or in the form of an
affidavit made in the presence of two
witnesses & attested before any official
authorized by law to administer oaths. The
personal manifestation shall be recorded in
both application for marriage license, & the
affidavit, if one is executed instead, shall be
attached to said application.
ART. 15. Any contracting party between
the age of 21 & 25 shall be obliged to ask
their parents or guardian for advice upon the
intended marriage. If they do not obtain such
advice, or if it be unfavorable, the marriage
license shall not be issued till after 3 months
following the completion of the publication of
the application therefore. A sworn statement
by the contracting parties to the effect that
such advice has been sought, together w/ the
written advice given, if any, shall be attached
to the application for marriage license.
Should the parents or guardian refuse to give
any advice, this fact shall be stated in the
sworn statement.
ART. 16. In the cases where parental
consent or parental advice is needed, the
party or parties concerned shall, in addition
to the requirements of the preceding articles,
attach a certificate issued by a priest, imam
or minister authorized to solemnize marriage
under Art. 7 of this Code or a marriage
counselor duly accredited by the proper govt
agency to the effect that the contracting
parties have undergone marriage counseling.
Failure to attach said certificate of marriage
counseling shall suspend the issuance of the
marriage license for a period of three months
fr. the completion of the publication of the
application. Issuance of the marriage license
w/in the prohibited pd shall subject the
issuing officer to administrative sanctions but
shall not affect the validity of the marriage.

Should only one of the contracting


parties need parental consent or parental
advice, the other party must be present at
the counseling referred to in the preceding
paragraph.

EIGENMANN VS. GUERRA


FACTS: E filed an action for annulment of
his marriage to G based on the ff. Grounds:
1. P was between 16-20 at the time of the
celebration of the marriage & the same
was done w/o the consent of his mother; &
2. His consent was obtained thru threats,
intimidation & force exerted by Gs father.
LC dismissed the complaint.
HELD:
In his application for marriage
license, E represented himself to be over
25 yrs of age, making G believe that he
was capacitated to marry him w/o need of
parental consent. Now he is precluded
under the doctrine of estoppel fr. asserting
or proving otherwise.
The claim of P that his consent was
not freely given is w/o factual basis. The
remark of Gs father was merely an
admonition expected fr. parents & not the
kind of threat envisioned by law as would
invalidate a marriage.
With respect to the interpretation of
Art. 15 & 45 (1), the written & sworn
consent refers only to the issuance of a
marriage license, & such formal reqt is not
essential to the validity of a marriage
solemnized under a license if the other
requisites are present. In fact, what the
art. Declares as a voidable marriage is one
solemnized w/o the consent of the parent,
etc, & it may be inferred that the consent
may be given in any form-written or oral, or
even implied fr. the acts. CAB Es mother
was present at the time of the celebration
of the marriage & did not object thereto.
FORMAL
2. Some Form of Ceremony (a formal
requisite.)-- Articles 3 par. 3, 4 par. 1,
6

41

ART. 3. The formal requisites of marriage


are:
Authority of the solemnizing officer;
A valid marriage license except in the
cases provided for in Chapter 2 of this Title; &
A marriage ceremony w/c takes place w/
the appearance of the contracting parties
before the solemnizing officer & their
personal declaration that they take each
other as husband & wife in the presence of
not less than two witnesses of legal age.

2.a Authority of the Solemnizing Officer

solemnize marriages expired on May 1,


1970 & the ceremony took place on May
14, 1970.
Second requirement that was lacking was
an essential req.: W, being a foreigner,
was required by law to secure fr. his
countrys diplomatic or consular services a
certificate of legal capacity to marry, w/c
he did not do.
Also there was no proof that FP,
being under 23, had secured a sworn
statement that she had sought parental
advice.

ART. 7. Marriage may be solemnized by:


Any incumbent member of the judiciary
w/in the courts jurisdiction;
Any priest, rabbi, imam, or minister of any
church or religious sect duly authorized by his
church or religious sect & registered w/ the
civil registrar general, acting w/in the limits of
the written authority granted him by his
church or religious sect & provided that at
least one of the contracting parties belongs
to the solemnizing officers church or
religious sect;
Any ship captain or airplane chief only in
the cases mentioned in Art. 31; (articulo
mortis)
Any military commander of a unit to w/c a
chaplain is assigned, ;in the absence of the
latter, during military operation, likewise only
in the cases mentioned in Art. 32;
Any consul general, consul or vice-consul
in the case provided in Art. 10

Tolentino:
Ceremony
of
Marriage.-The
requirement of a marriage ceremony
prevents the recognition in the Phils. of
what are known as "common law
marriages." A common law marriage is a
present agreement bet. a man & a woman
w/ capacity to enter into such rel'p, to take
ea. other as H & W, followed by
cohabitation.
Art. 4. The absence of any of the
essential or formal requisites shall render
the marriage void ab initio, except as
stated in Article 35 (2).
xxx

FACTS: W was a 21 yr.-old American who


married FP in 1969. FP discovered in the
local civil registrar a marriage K between W &
one GP. P was charged w/ bigamy & was
convicted.

Art. 6. No prescribed form or religious


rite for the solemnization of the marriage is
required. It shall be necessary, however for
the
contracting
parties
to
appear
personally before the solemnizing officer &
declare in the presence of not less than two
witnesses of legal age that they take each
other as husband & wife. This declaration
shall be contained in the marriage
certificate w/c shall be signed by the
contracting parties & their witnesses &
attested by the solemnizing officer.

HELD: In order that a person may be held


guilty of bigamy, the second & subsequent
marriage must have all the essential
elements of a valid marriage. IN CAB, the 2 nd
marriage was not validly celebrated, there
were certain formal & essential requisites
that were lacking.

In case of a marriage in articulo mortis,


when the party at the point of death is
unable to sign the marriage certificate, it
shall be sufficient for one of the witnesses
to the marriage to write the name of said
party, w/c fact shall be attested by the
solemnizing officer.

First was the lack of authority of the


solemnizing officer. Rev. Diazs authority to

Balane:

PEOPLE VS. WHIPKEY

42

Requisites of some form of ceremony:

circumstances, what took place before the


justice of the peace amounted to a
marriage.

Personal appearance of the contracting


parties in the presence of the solemnizing
officer. This rules out proxy marriages.

(not in Balanes outline)

The declaration that they declare in some


manner that they take each other as H &
W.
This provision is worded broadly.
There is no set formula for the
declaration, no particular words are
required. It does not even have to be oral
provided
that
there
is
sufficient
manifestation of their will that they take
each other as H & W.
Presence of at least 2 witnesses of legal age.
Some say that the absence of this 3rd
requisite renders the marriage void.
Others say it is only an irregularity.
Tolentino:
It is not necessary to the validity of
the marriage that the contracting parties
should recite precisely the words of the
statute.
It is enough that the words
employed evidence mutual consent.
Failure to Sign or Issue Certificate.-- The
certificate is merely of evidentiary value, &
failure to sign the same does not render the
marriage a nullity.
The consent can be
proved by other competent evidence, such as
the testimony of the solemnizing officer, of
the parties themselves, of the witnesses to
the marriage, & of others present at the
wedding.
MARTINEZ V. TAN [12 P 731]
Facts: Pltff. Rosalia Martinez commenced
this action for the cancellation of the cert. of
marriage & for damages. Pltff. claimed that
what took place before the justice of the
peace did not constitute a legal marriage
under Gen. Orders No. 68, Sec. 6, "No
particular form for the ceremony of marriage
is required, but the parties must declare, in
the presence of the person solemnizing the
marriage, that they take each other as
husband & wife." CFI found for def.
HELD:
The parties addressed a signed
petition to the justice of the peace stating
that they had agreed to marry, & asking the
justice of the peace to marry them. Before
the justice of the peace, they stated under
oath that they ratified the contents of their
petition & insisted on what they asked for.
This statement was signed by them, in the
presence of witnesses that they produced. A
certificate was then made out by the justice
of the peace, signed by him & the witnesses,
stating the parties had been married by him.
Both the parties knew the contents of the
document w/c they signed.
Under the

Art. 8.
The marriage shall be
solemnized publicly in the chambers of the
judge or in open court, in the church,
chapel or temple, or in the office of the
consul-general, consul or vice-consul, as
the case may be, & not elsewhere, except
in cases of marriages contracted at the
point of death or in remote places in
accordance w/ Article 29 of this Code, or
where both of the parties request the
solemnizing officer in writing in w/c case
the marriage may be solemnized at a
house or place designated by them in a
sworn statement of that effect.

Sempio-Dy:
This provision is only
directory, not mandatory, so that noncompliance therew/ will not invalidate the
marriage.
SAN GABRIEL V. SAN GABRIEL [56 O.G.
P. 3555 (1960)]
The mere fact that the marriage
took place on a Sunday also would not
necessarily vitiate the marriage on the
ground that it constitutes a violation of the
requirement that the marriage shall be
solemnized publicly in the office of the
judge in open court.
2.b Marriage License

Art. 9. A marriage license shall be


issued by the local civil registrar of the city
or municipality where either contracting
party
habitually
resides,
except
in
marriages where no license is required in
accordance w/ Chapter 2 of this Title.
Sempio-Dy: The solemnizing officer is not
required to investigate w/n the license was
issued in the place required by law.
(People v. Jansen 54 P 176.)
Art. 10. Marriages between Filipino
citizens abroad may be solemnized by a
consul- general, consul or vice-consul of
the Republic of the Philippines. The
issuance of the marriage license & the
duties of the local civil registrar & of the
43

solemnizing officer w/ regard to the


celebration of marriage shall be performed by
said consular official.

Sempio-Dy: By "Filipinos citizens abroad"


may mean Filipinos permanently residing
abroad or who are mere transients or on
vacation there. Consuls on home assignment
in the Phils. cannot solemnize marriages.
Salonga, Private International Law II,
1995 ed. (hereinafter Salonga):
Consular Marriages.-- xxx The prevailing
rule is that a marriage performed before a
consular or diplomatic agent empowered by a
sending State to officiate marriages is valid in
the receiving State only if the latter has
agreed to his acting in that capacity.
2. REQUIREMENTS

FOR ISSUANCE

A. APPLICATION

Art. 11. Where a marriage license is


required, each of the contracting parties shall
file separately a sworn application for such
license w/ the proper local civil registrar w/c
shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age & date of birth;
(4) Civil Status;
(5) If previously married, how, when &
where the previous marriage was dissolved or
annulled;
(6) Present residence & citizenship;
(7) Degree of relationship of the
contracting parties;
(8) Full name, residence & citizenship of
the father;
(9) Full name, residence & citizenship of
the mother; &
(10) Full name, residence & citizenship of
the guardian or person having charge, in case
the contracting party has neither father nor
mother & is under the age of 21 years.
The applicants, their parents or guardians
shall not be required to exhibit their
residence certificates in any formality in
connection w/ the securing of the marriage
license.

B.

PROOF

OF CAPACITY

Art. 12. The local civil registrar, upon


receiving such application, shall require the
presentation
of
the
original
birth
certificates or, in default thereof, the
baptismal certificates of the contracting
parties or copies of such documents duly
attested by the persons having custody of
the originals. These certificates or certified
copies of the documents required by this
Article need not be sworn to & shall be
exempt fr. the documentary stamp tax. The
signature & official title of the person
issuing the certificate shall be sufficient
proof of its authenticity.
If either of the contracting parties is
unable to produce his birth or baptismal
certificate or a certified copy of either bec.
of the destruction or loss of the original, or
if it is shown by an affidavit of such party or
of any other person that such birth or
baptismal certificate has not been received
though the same has been required of the
person having custody thereof at least 15
days prior to the date of the application,
such party may furnish in lieu thereof his
current
residence
certificate
or
an
instrument drawn up & sworn to before the
local civil registrar concerned or any public
official authorized to administer oaths.
Such instrument shall contain the sworn
declaration of two witnesses of lawful age,
setting forth the full name, residence &
citizenship of such contracting party & of
his or her parents, if known, & the place &
date of birth of such party. The nearest of
kin of the contracting parties shall be
preferred as witnesses, or in their default,
persons of good reputation in the province
or the locality.
The presentation of birth or baptismal
certificate shall not be required if the parents of the contracting parties appear
personally before the local civil registrar
concerned & swear to the correctness of
the lawful age of said parties, as stated in
the application, or when the local civil
registrar shall, by merely looking at the
applicants upon their personally appearing
before him, be convinced that either or
both of them have the required age.

44

Tolentino:
Documents Required.-- To prove the ages
of the contracting parties, the ff. may be
required by the local civ. registrar:
Original or certified copies of birth
certificates.
In the absence of birth certs., the original or
certified copies of baptismal certs.
In the absence of the above documents, the
party may present his residence cert. or
the affidavit of 2 witnesses.
When Proof of Age Dispensed With:
When the parents of the contracting parties
appear personally bef. the local civ. reg.
& swear to the correctness of their ages;
When the local civ. reg. is convinced, by
merely looking at the parties that they
have the required ages;
When a party has formerly married, but is
widows, or divorced, or the previous
marriage has been invalidated. (see art.
13.)
Art. 27. In case either or both of the
contracting parties are at the point of death,
the marriage may be solemnized w/o the
necessity of a marriage license & shall
remain valid even if the ailing party
subsequently survives.
Art. 28. If the residence of either party is
so located that there is no means of
transportation to enable such party to appear
personally before the local civil registrar, the
marriage may be solemnized w/o the
necessity of a marriage license.
Art. 29. In the cases provided for in the
two preceding articles, the solemnizing
officer shall state in an affidavit executed
before the local civil registrar or any other
person legally authorized to administer oaths
that the marriage was performed in articulo
mortis or that the residence of either party,
specifying the barrio or barangay, is so
located that there is no means of
transportation to enable such party to appear
personally before the local civil registrar &
that the officer took the necessary steps to
ascertain the ages & relationship of the
contracting parties & the absence of a legal
impediment to the marriage.
Art. 30. The original of the affidavit
required in the last preceding article,
together w/ a legible copy of the marriage
contract, shall be sent by the person

solemnizing the marriage to the local civil


registrar of the municipality where it was
performed w/in the period of 30 days after
the performance of the marriage.
Art. 31. A marriage in articulo mortis
between passengers or crew members may
also be solemnized by a ship captain or by
an airplane pilot not only while the ship is
at sea or the place is in flight, but also
during stopovers at ports of call.
Art. 32. A military commander of a
unit, who is a commissioned officer, shall
likewise have authority to solemnize
marriages in articulo mortis between
persons w/in the zone of military
operations, whether members of the armed
forces or civilians.
Art. 33. Marriages among Muslims or
among members of the ethnic cultural
communities may be performed validly w/o
the necessity of marriage license, provided
that they are solemnized in accordance w/
their customs, rites or practices.
Art. 34. No license shall be necessary
for the marriage of a man & a woman who
have lived together as husband & wife for
at least five years & w/o any legal
impediment to marry each other. The
contracting parties shall state the foregoing
facts in an affidavit before any person
authorized by law to administer oaths. The
solemnizing officer shall also state under
oath that he ascertained the qualifications
of the contracting parties & found no legal
impediment to the marriage.

Tolentino:
This art. intends to facilitate & encourage
the marriage of persons who have been
living together in a state of concubinage for
more than 5 yrs. The publicity & other
attendant inconveniences in securing the
marriage license, might be embarrassing to
such persons & deter them fr. legalizing
their union.
Sempio-Dy: Besides, the marriage of the
parties will result in the legitimization of
natural children born to them during their
cohabitation.

45

Note:
The fact of absence of legal
impediment bet. the parties must be present
at the time of the marriage, not during their
5-yr. cohabitation.
PEOPLE VS. DAVID
FACTS: D & complainant EG applied for a
marriage license & were issued, in lieu of
Prov. Form #95A, an official receipt, for lack
of the regular form. Subsequently, they were
married. EG found out that D was previously
married to LG so she filed a suit for bigamy.
Ds defense was that the 2nd marriage was
void for lack of a valid marriage license
HELD: A mere defect or irregularity in the
issuance of a license does not affect the
validity of the marriage. It is the complete
absence of a license w/c makes such
marriage void.
IN CAB, since the regular
form was not available, the OR issued by the
proper official served as the license itself &
not just a mere evidence of payment. Since
all the req. for the issuance of the license has
been fulfilled, the receipt can be considered a
valid license for all intents & purposes. Thus,
D is guilty of bigamy!
LORIA VS. FELIX
FACTS: F & M had been living together as
Husband & Wife. During the early part of the
liberation, M became seriously ill. The priest,
upon learning that these 2 souls have been
living together w/o the benefit of marriage
asked them to ratify their union accdg to
Catholic rites. The marriage was celebrated
in articulo mortis. M recovered for a while,
but she died a yr. later. The Ps, claiming to
be Ms grandnephews & nieces, demanded
that F deliver the props left by their grant
aunt. F claims his right over the props as Ms
widower.
HELD: F is entitled to the props bec the
marriage was valid.
Ps allege that the
marriage was invalid bec the priest failed to
make & file the affidavit required by Secs. 2021. SC- It was the priests obligation-noncompliance w/ it should bring no serious
consequences to the married pair, specially
where it was caused by the emergency.
The law permits marriages in articulo
mortis w/o marriage license but it requires
the priest to make the affidavit & file it. Such
affidavit contains the date usually required
for the issuance of a Marriage license & it

substitutes for the latter. If a marriage


celebrated w/o the license is not voidable,
then this marriage should not also be
voidable for lack of such affidavit.
2.C. MARRIAGE CEREMONY
ART. 6. No prescribed form or religious
rite for the solemnization of the marriage is
required. It shall be necessary, however for
the
contracting
parties
to
appear
personally before the solemnizing officer &
declare in the presence of not less than two
witnesses of legal age that they take each
other as husband & wife. This declaration
shall be contained in the marriage
certificate w/c shall be signed by the
contracting parties & their witnesses &
attested by the solemnizing officer.
In case of a marriage in articulo
mortis, when the party at the point of
death is unable to sign the marriage
certificate, it shall be sufficient for one of
the witnesses to the marriage to write the
name of said party, w/c fact shall be
attested by the solemnizing officer.
ART. 8.
The marriage shall be
solemnized publicly in the chambers of the
judge or in open court, in the church,
chapel or temple, or in the office of the
consul-general, consul or vice-consul, as
the case may be, & not elsewhere, except
in cases of marriages contracted at the
point of death or in remote places in
accordance w/ Article 29 of this Code, or
where both of the parties request the
solemnizing officer in writing in w/c case
the marriage may be solemnized at a
house or place designated by them in a
sworn statement of that effect.
Art. 22.

SAN GABRIEL V. SAN GABRIEL


FACTS: This is an action for support by the
wife & her child. Husband counter-claimed
for annulment of the marriage on the
grounds of irregularity in the celebration of
the marriage & the issuance of the
marriage license.
HELD: The mere fact that the marriage
took place on a Sunday also would not
46

necessarily vitiate the marriage on the


ground that it constitutes a violation of the
requirement that the marriage shall be
solemnized publicly in the office of the judge
in open court.
The facts that the applications were
signed by a clerk & not by the Assistant Local
Reg. And that the marriage license itself was
not signed by the LCR but by a clerk do not
necessarily vitiate the marriage if all the
essential requisites for its validity were
complied w/.
These irregularities are
primarily for the lookout of the subscribing
officer.

Q: If the victim of the crimes of rape,


seduction,
abduction,
&
acts
of
lasciviousness happens to be a girl less
than 18 yrs. old, can she validly marry the
offender?
A: We believe that she can. It is submitted
that the circumstances contemplated by
the RPC are of an exceptional character, &
should be considered as an exception to
the provisions of the FC on the legal
capacity to marry. xxx If merely bec. she
is below the age of consent she will not be
permitted to marry the offender, then we
will have the absurd case where the law
gives a remedy w/ one & denies it w/ the
other hand.

essential

Art. 35. The following marriages shall


be void fr. the beginning:

Art. 2. No marriage shall be valid, unless


these essential requisites are present:

(1) Those contracted by any party


below eighteen years of age even w/ the
consent of parents or guardians;
xxx

3.
Legal Capacity (an
requisite.)-- Art. 2 par. 1

(1) Legal capacity of the contracting


parties who must be a male & a female; xxx
A.

Balane:
There is here an absolute
absence of an essential requisite.

AGE.

Art. 5. Any male or female of the age of


eighteen years or upwards not under any of
the impediments mentioned in Articles 37 &
38, may contract marriage.

Art. 45. A marriage may be annulled


for any of the following causes, existing at
the time of the marriage:

Balane: 18 yrs. old is an absolute minimum.

(1) That the party in whose behalf it is


sought to have the marriage annulled was
18 years of age or over but below 21, & the
marriage was solemnized w/o the consent
of the parents, guardian or person having
substitute parental authority over the
party, in that order, unless after attaining
the age of 21, such party freely cohabited
w/ the other & both lived together as
husband & wife;
xxx

Tolentino:

Tolentino:

Tolentino:
Age of Consent.-- The age for each party
provided in Art. 5 is generally known as the
"age of consent." for marriage. Eighteen yrs.
is the "age of consent" bec. below this age, a
party to a marriage cannot give a binding
valid consent.

Age of Legal Capacity.-- For a


consent that would result in a valid
marriage, the parties should be 21
age. The age of 21 is, thus, the "age
capacity" to marry.

perfect
binding
yrs. of
of legal

Effect of Penal Law.-- Under Art. 344, RPC,


the marriage of the offender w/ the offended
party shall extinguish the criminal action or
remit the penalty already imposed upon him.

Want of Parental Consent.-- The law


does not expressly authorize the parent
whose consent is required, to ratify the
marriage. xxx We believe that xxx the
ratification by the parent whose consent is
wanting must be recognized as sufficient to
validate the marriage, provided such
ratification is made before the party to the
M reaches 21 yrs. old. Art. 47, par. 1
recognizes the right of such parent to ask
for the A of the M bef. the child who has
married w/o parental consent reaches the
47

age of 21. This right can be waived. Besides,


if the nullity proceeds fr. the absence of
consent, there is no juridical reason why such
defect cannot be cured by subsequent
confirmation. xxx

Between the adopting parent & the


adopted child;

Art. 47.
The action for annulment of
marriage must be filed by the following
persons & w/in the periods indicated herein:

Between the surviving spouse of the


adopted child & the adopter;

(1) For causes mentioned in number 1 of


Article 45 by the party whose parent or
guardian did not give his or her consent, w/in
five years after attaining the age of 21; or by
the parent or guardian or person having legal
charge of the minor, at any time before such
party reached the age of 21;
xxx

Balane:
This kind of marriage can be ratified by
cohabitation for a reasonable period of time
after the minor reaches the age of 21. Here
ratification can set in even before the
prescription sets in.
Art. 39. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. xxx
B.

RELATIONSHIP.

Art. 37. Marriages between the following


are incestuous & void fr. the beginning,
whether the relationship between the parties
be legitimate or illegitimate:

Between the surviving spouse of the


adopting parent & the adopted child;

Between an adopted child


legitimate child of the adopter;

&

Between adopted children of the same


adopter; &
xxx
Tolentino:
Collateral Blood Relatives.-- Marriages
bet. nephews & aunts, uncles & nieces, &
first cousins are prohibited under par. (1).
This prohibition is based on scientific
opinion as well as on public opinion. They
are contrary to good morals. Although not
conclusive, there is scientific & expert
opinion that, except in rare cases, children
of first cousins suffer fr. organic defects, &
in many instances are idiots, weak-minded,
deaf, nearsighted, etc., in other words,
their marriage tends to weaken the race.
Art. 39. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. xxx

c. Prior Marriage.
Balane:

(1) Between ascendants & descendants of


any degree; &
(2) Between brothers & sisters, whether
of the full or half blood.

There are 3 kinds of marriage that are


void bec. of a prior marriage:

Art. 38. The following marriages shall be


void fr. the beginning for reasons of public
policy:

There are 3 requisites under Art. 41:

Between
collateral
blood
relatives,
whether legitimate or illegitimate, up to the
fourth civil degree;
Between step-parents & step-children;
Between parents-in-law & children-in-law;

A bigamous or polygamous marriage, not


falling under Art. 41.

Absence of the prior spouses for at


least 4 consecutive yrs. or at
least 2 consecutive yrs. if it falls
under Art. 391, NCC.
The spouse present has a wellfounded belief that the absent
spouse was already dead.
The institution by the spouse
present
of
a
summary
proceeding
of
presumptive
death of the absent spouse. A
declaration by the court of the
48

presumptive death is of course


required.
In Art. 40 where the marriage was contracted
after a void ab initio marriage w/c has not
been declared void by final judgment.
In Art. 53 in case of a subsequent marriage
w/c does not comply w/ the requirements
of Art. 52.
In Art. 52, you have to do 3 things:
Judgment of annulment or nullity of
marriage must be registered in the
appropriate registry.
The registration of the partition &
distribution of the properties of the
spouses in the appropriate civil
registry.
The delivery of the common children's
presumptive legitime.
Art. 35. The following marriages shall be
void fr. the beginning:
xxx
(4)
Those bigamous or polygamous
marriages not falling under Article 41;
xxx.
(6) Those subsequent marriages that are
void under Article 53.
Art. 40. The absolute nullity of a previous
marriage may be invoked for purposes of
remarriage on the basis solely of a final
judgment declaring such previous marriage
void.

Tolentino:
[F]or purposes of remarriage it would be
necessary to such void M to secure a final
judgement declaring it null & void fr. the
beginning. W/o such final judgment, the
previous void marriage would constitute an
impediment to the remarriage, & a marriage
license may be denied. This article applies
only when a license is to be obtained for a
subsequent marriage.
DOMINGO V. CA [226 SCRA 572 (1993)]
A spouse may petition for the declaration of
nullity of her marriage for a purpose other
than her remarriage.

Facts: Delia Domingo filed a pet. for decl.


of nullity of her marriage w/ Roberto
Domingo, on the ground that, unknown to
her, he was previously married at the time
of their marriage. She prays that their
marriage be declared null & void &, as a
consequence, to declare that she is the
exclusive owner of all properties she
acquired during the marriage & to recover
them fr. him.
Roberto moved to dismiss the
petition on the ground that the marriage
being void ab initio, the petition for decl. of
nullity is unnecessary citing Peo. v. Aragon
& Peo. v. Mendoza. Roberto claims that
decl of nullity is necessary under Art. 40,
FC only for the purpose of remarriage. The
lower court denied the motion. CA affirmed
the denial.
HELD:
The Declaration of nullity of a
marriage under Art. 40 may be resorted to
even for a purpose other than remarriage.
Crucial to the proper interpretation
of Art. 40 is the position of the word
"solely." xxx. As it is placed, it is meant to
qualify "final judgment." Had the provision
been stated as follows:
"The absolute
nullity of a previous marriage may be
invoked
solely
for
purposes
of
remarriage...," the word "solely" will qualify
"for purposes of remarriage" & the husband
would have been correct.
That Art. 40 as finally formulated
included the significant clause denotes that
such final judgment declaring the previous
marriage void need not be obtained only
for purposes of remarriage.
ATIENZA V. BRILLANTES [243 SCRA 32
(1995)]
Facts: This is an administrative complaint
filed by Atienza for Gross Immorality &
Appearance of Impropriety against J.
Brillantes, Presiding Judge of MTC, Mla. It
was alleged in the complaint that Brillantes
has been cohabiting w/ Yolanda De Castro
(w/ whom Atienza had 2 children) when he
(Brillantes) was already married to one
Zenaida Ongkiko w/ whom he has 5
children. xxx Resp. denies having been
married to Ongkiko, although he admits
having 5 children w/ her. He alleges that
while he & Ongkiko went through a
49

marriage ceremony, the same was not valid


for lack of marriage license. The second
marriage bet. the two also lacked the
required license. He claims that when he
married De Castro in LA, California, he
believed, in all GF & for all legal intents &
purposes, that he was single bec. his first
marriage was solemnized w/o a license.
HELD: Under the FC, there must be a judicial
decl. of the nullity of a previous marriage bef.
a party thereto can enter into a 2nd
marriage. (Art. 40.) Art. 40 is applicable to
remarriages entered into after the effectivity
of the FC regardless of the date of the first
marriage.
Said art. is given "retroactive
effect insofar as it does not prejudice or
impair vested or acquired rights in
accordance w/ the NCC or other laws." (Art.
256, FC.) This is particularly true w/ Art. 40
w/c is a rule of procedure. Resp. has not
shown any vested right that was impaired by
the application of Art. 40 to his case.
The fact that procedural statutes may
somehow affect the litigants' rights may not
preclude their retroactive application to
pending actions. The retroactive application
of procedural laws is not violative of any right
of a person who may feel that he is adversely
affected. The reason is that as a general rule
no vested right may attach to, nor arise fr.,
procedural laws.

Art. 41.
A marriage contracted by any
person during the subsistence of a previous
marriage shall be null & void, unless before
the celebration of the subsequent marriage,
the prior spouse had been absent for four
consecutive years & the spouse present had
a well-founded belief that the absent spouse
was already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of
only 2 years shall be sufficient.
For the purpose of contracting the
subsequent marriage under the preceding
paragraph, the spouse present must institute
a summary proceeding as provided in this
Code for the declaration of presumptive
death of the absentee, w/o prejudice to the
effect of reappearance of the absent spouse.

Article 391. The following shall be


presumed dead for all purposes, including
the division of the estate among the heirs:
(1) A person on board a vessel lost
during a sea voyage, or an aeroplane w/c 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, & has been missing
for four years;
(3) A person who has been in danger of
death under other circumstances & his
existence has not been known for four
years.

Tolentino: The period was reduced in the


FC to 2 years in the foregoing cases.
REPUBLIC V. NOLASCO [220 SCRA 20
(1993)]
The declaration of presumptive death
under Art. 41, FC is available only for the
purpose of remarriage.
Facts: Gregorio Nolasco was a seaman.
During one of the calls of his ship to
England, he met Janet Monica Parker, a
British subject. From that chance meeting,
Janet lived w/ Nolasco on his ship for 6
mos. When Nolasco's contract expired in
1960, Janet went w/ him in returning home
to San Jose, Antique. In Jan. 1982, Nolasco
married Janet in Catholic sites in Antique.
After
the
marriage,
Nolasco
obtained another employment contract as
a seaman, leaving his pregnant wife w/ his
parents. Sometime, in 1/83, while working
overseas, Nolasco received a letter fr. his
mother informing him that Janet had
already given birth to his son. The letter
also informed him that Janet left Antique
after giving birth. xxx
In 88, or 5 yrs. after the
disappearance of Janet, Nolasco filed an
action for the decl. of presumptive death of
his wife Janet under Art. 41, FC, claiming
that all his efforts to look for her proved
fruitless.
50

xxx
The trial court granted the
petition. CA affirmed the ruling. Hence this
petition for review.
HELD:
A petition to declare an absent
spouse presumptively dead may not be
granted in the absence of any allegation that
the spouse present will remarry.
There are 4 requisites for the declaration of
presumptive death under Art. 41:
That the absent spouse has been missing for
4 consecutive years, or 2 consecutive yrs.
if the disappearance occurred where
there is a danger of death under the
circumstances laid down in Art. 391.
That the spouse present wishes to remarry
That the spouse present has a well-founded
belief that the absentee is dead.
That the present spouse files a summary
proceeding for the declaration of
presumptive death of the absentee.
The Court believes that resp. Nolasco
failed to conduct a search for his missing wife
w/ such diligence as to give rise to a "wellfounded belief" that she is dead. The Court
considers
the
investigation
allegedly
conducted by Nolasco in his attempt to
ascertain the whereabouts of Janet as to
sketchy to form the basis of a reasonable or
well-founded belief that she was already
dead.
For instance, when he arrived in
Antique, instead of seeking the help of local
authorities or of the British Embassy, he
secured another seaman's contract & went to
London. We do not consider that walking into
a major city w/ a simple hope of somehow
bumping into one particular person there xxx
can be regarded as a reasonable diligent
search. The Court also views Nolasco's claim
that Janet declined to give any info. as to her
personal background even after marrying
Nolasco as too convenient an excuse to
justify his failure to locate her.
BIENVENIDO V. CA
[237 SCRA 676
(1994)]
When a man contracts a subsequent
marriage while the first marriage is
subsisting, the second marriage as a general
rule is void for being bigamous. He who
invokes that the second marriage is voidable
for being an exception under Art. 83 of the
NCC has the burden of proving it.

Facts: Aurelio Camacho married Conseja


Velasco in '42. In '62, w/o this marriage
being dissolved, Aurelio married Luisita
Camacho in Tokyo. In '67, Aurelio met
Nenita Bienvenido. Aurelio courted & won
her & they cohabited until Aurelio's death
in '88. In '82, Aurelio bought a house & lot.
In the deed of sale & in the TCT in his
name, he was described as single. In '84,
he sold the said house & lot to Nenita.
When Aurelio died, Luisita filed an action to
annul the sale to Nenita alleging that it was
in fraud of her as the legitimate wife of
Aurelio.
Nenita opposed the action
claiming that she was a buyer in GF. The
trial court upheld the sale in favor of
Nenita. The CA reversed. Hence, this
petition for review.
HELD: There is no presumption that the
marriage bet. Aurelio & Luisita is valid. As
a general rule, under Art. 83, NCC, a
subsequent marriage contracted while the
previous one is still subsisting is void.
There are exceptions to this rule but he
who is invoking the exception has the
burden of proving the existence of the
conditions for the said exception to arise.
In the case at bar, the burden of proof was
on Luisita to show that at the time of her
marriage to Aurelio, Aurelio's first wife had
been absent for at least 7 yrs. & that he
had no news that she was alive. She failed
to discharge this burden. What applies,
therefore, is the general rule
xxx.
Consequently, there is no basis for holding
that the prop. in question was prop. of his
conjugal partnership bet. Luisita & Aurelio
bec. there was no partnership in the first
place.
Art. 42. The subsequent marriage
referred to in the preceding Article shall be
automatically terminated by the recording
of the affidavit of reappearance of the
absent spouse, unless there is a judgment
annulling the previous marriage or
declaring it void ab initio.
A sworn statement of the fact &
circumstances of reappearance shall be
recorded in the civil registry of the
residence of the parties to the subsequent
marriage at the instance of any interested
person, w/ due notice to the spouses of the
subsequent marriage & w/o prejudice to

51

the fact of reappearance being judicially


determined in case such fact is disputed.
Balane:
Marriage under Art. 41 is valid unless
terminated under Art. 42. Notice that the law
uses the term "terminated" & not annulled.
This is bec. marriage under Art. 41 is a good
marriage.
The effect of the affidavit of
reappearance is that the subsequent
marriage is terminated unless it is judicially
challenged.
Tolentino:
If both parties to the subsequent marriage
acted in BF (knowing that the absent spouse
is alive), the said marriage is void ab initio
under Art. 44.
Q: If only one party has acted in BF, is the M
valid?
A: If the spouse who contracted the 2nd M
knew that in spite of the absence of his
spouse for the period provided in 41 said
absent spouse was alive, his 2nd M should
be considered void as bigamous under
35(4), bec. an essential element in 41 to
make it an exception is wanting.
If such present spouse has acted in GF
& the declaration of presumptive death has
been obtained, the BF of the 2nd spouse will
not affect the validity of the M, but the
provisions of 43 will operate against him,
such as the revocation of donations by
reason of M made to him, of his designation
as beneficiary in any insurance of the
innocent spouse, & his disqualification to
inherit fr. the innocent spouse.
When No Action Taken.-- If the absentee
reappears, but no step is taken to terminate
the subsequent M, either by affidavit or by
court action, his mere reappearance, even if
made known to the spouses in the 2nd M, will
not terminate such M.
[I]t is incorrect to say that the first M
is dissolved by the celebration of the 2nd. It
would be more accurate to say that since the
2nd M has been contracted bec. of a
presumption that the former spouse is dead,
such presumption continues in spite of his
physical reappearance, & by fiction of law, he
must be regarded as legally an absentee,
until the subsequent M is terminated as
provided by law. The result of this is the
suspension of the legal effects of M as to him
as long as the 2nd M subsists.

GOMEZ V. LIPANA [38 S 615 (1958)]


Where a husband & his second wife fr.
whom he concealed his first marriage,
acquired properties during their marriage,
the second marriage being void, is subject
to collateral attack in the intestate
proceedings instituted by the judicial
administratrix for the forfeiture of the
husband's share under Article 1417,
Spanish Civil Code (no longer in force) .
"The legal situation arising fr. these facts is
that while insofar as the second wife was
concerned, she having acted in good faith,
her marriage produced civil effects & gave
rise, just the same, to the formation of the
conjugal partnership wherein she was
entitled
to
an
equal
share
upon
dissolution." The only JUST AND EQUITABLE
solution is to give one-half of the properties
to the second wife, & the other half to the
conjugal partnership of the first marriage.
CONSUEGRA V. GSIS [37 S 315 (1971)]
Where the husband designated his
second family as beneficiaries of his life
insurance policy, upon his death, both his
first wife & second family share 50-50 in
the benefits. Since the first marriage has
not been dissolved, his wife remains as his
legal heir. Although the second marriage is
presumed void, having been contracted
during the subsistence of the first
marriage, there is a need for a judicial
declaration of its nullity, w/c is no longer
possible, the death of the husband having
terminated
the
second
conjugal
partnership of gains.
Baviera: The court should not have
applied Gomez v. Lipana, since there
is no provision in the Civil Code giving
effect to a void marriage in good
faith.

PEOPLE V. MENDOZA [95 S 845 (1954)]


A subsequent marriage contracted by any
person during the lifetime of his spouse is
illegal & void fr. its performance, & no
judicial decree is necessary to establish its
invalidity. A prosecution for bigamy based
on said void marriage will not lie.

52

PEOPLE V. ARAGON [100 P 1033 (1957)]


- cited People v. Mendoza

Baviera: As a defense in bigamy, there


is no need for judicial declaration of
nullity of a void marriage; as far as
determination of property relations is
concerned, there is a need for such
judicial declaration for purposes of
remarriage.

Art. 43.
The termination of the
subsequent marriage referred to in the
preceding Article shall produce the following
effects:
(1) The children of the subsequent
marriage conceived prior to its termination
shall be considered legitimate, & their
custody & support in case of dispute shall be
decided by the court in a proper proceeding;
(2) The absolute community of property
or the conjugal partnership, as the case may
be, shall be dissolved & liquidated, but if
either spouse contracted said marriage in
bad faith, his or her share of the net profits of
the
community
property
or
conjugal
partnership property shall be forfeited in
favor of the common children or, if there are
none, the children of the guilty spouse by a
previous marriage or, in default of children,
the innocent spouse;
(3) Donations by reason of marriage shall
remain valid, except that if the donee
contracted the marriage in bad faith, such
donations made to said donee are revoked by
operation of law;
(4) The innocent spouse may revoke the
designation of the other spouse who acted in
bad faith as beneficiary in any insurance
policy, even if such designation be stipulated
as irrevocable; &
(5) The spouse who contracted the
subsequent marriage in bad faith shall be
disqualified to inherit fr. the innocent spouse
by testate & intestate succession.
Art. 44.
If both spouses of the
subsequent marriage acted in bad faith, said

marriage shall be void ab initio & all


donations by reason of marriage &
testamentary dispositions made by one in
favor of the other are revoked by operation
of law.

Tolentino:
If the subsequent marriage is not
terminated
by
the
subsequent
reappearance or by judicial declaration, but
by death, do these effects arise?
A:
It is submitted that generally if a
subsequent M is dissolved by the death of
either spouse, the effects of dissolution of
valid M shall arise. The GF or BF of either
spouse can no longer be raised, bec., as in
annullable or voidable M, the M cannot be
questioned except in a direct action for
annulment.
But if both parties acted in BF,
under 44, the M is void ab initio. In such
case, the validity of the M can be attacked
collaterally at any time, & the effects
provided on 44 can be applied even if the
dissolution is by death of one of the
spouses.
Art. 53. Either of the former spouses
may marry again after complying w/ the
requirements of the immediately preceding
Article;
otherwise,
the
subsequent
marriage shall be null & void.
Art. 52. The judgment of annulment or
of absolute nullity of the marriage, the
partition & distribution of the properties of
the spouses, & the delivery of the
children's presumptive legitimes shall be
recorded in the appropriate civil registry &
registries of property; otherwise, the same
shall not affect third persons.
Art. 39. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. xxx

D.

CRIME.

Art. 38. The following marriages shall


be void fr. the beginning for reasons of
public policy:
Xxx
53

(9) Between parties where one, w/ the


intention to marry the other, killed that other
person's spouse, or his or her own spouse.

Balane:
Art. 38 (9) used to be Art. 80 (6) of the NCC.
Two changes were made: (1) the killing must
be w/ the intention to marry the other; (2)
conviction is not required, a preponderance
of evidence being sufficient.
Tolentino:
Killing of Spouse.-- It is submitted that a
criminal conviction for the killing is not
necessary to render the marriage void under
the FC. The removal of the requirement by
the FC must be taken as deliberate.
Art. 39. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. xxx

E.

PHYSICAL

xxx The physical incapacity referred to by


the law as a ground for A of M, is
impotence [impotentia copulandi/ coeundi
as distinguished fr. impotentia generandi
(sterility)], or that physical condition of the
H or the W in w/c sexual intercourse w/ a
normal person of the opposite sex is
impossible.
Impotence refers to lack of power to
copulate, the absence of the functional
capacity for the sexual act. The defect
must be lasting to be a ground for
annulment. The test of impotence is not
the capacity to reproduce, but the capacity
to copulate. (Sarao v. Gueverra.)
The refusal of the wife to be
examined does not create the presumption
of her impotency bec. Filipino girls are
inherently shy & bashful. The trial court
must order the physical examination of the
girl, bec. w/o proof of impotency, she is
presumed to be potent. To order her to
submit to a physical examination does not
infringe on her constitutional right against
self-incrimination
(Sempio-Dy
citing
Jimenez v. Canizares, Aug. 31, 1960.)
Triennial Cohabitation.-- This doctrine
provides that if the wife be a virgin & apt
after 3 yrs. of cohabitation, the H will be
presumed to be impotent, & the burden will
be upon him to overcome the presumption
& does not prevent impotency to be proved
by another proper evidence.

CAPABILITY.

Art. 45. A marriage may be annulled for


any of the following causes, existing at the
time of the marriage:
xxx

Balane: Some commentators say that this


is disputable presumption is applicable in
our jurisdiction.

(5)
That either party was physically
incapable of consummating the marriage w/
the other, & such incapacity continues &
appears to be incurable;
xxx

Tolentino:

Balane:
Physical Incapacity: Requisites: (1) The
incapacity exists at the time of the
celebration of the M; (2) Such incapacity
must be permanent (it continues to the time
when the case for annulment is being tried) &
incurable ; (3) It must be unknown to the
other contracting party; (4) the other spouse
must not himself/ herself be impotent.
This kind of marriage
ratified by ratification.

cannot be

Action Barred.-The action on this


ground is barred in the following cases: (1)
If the other party had knowledge of the
incurable impotence bef. the M, bec. this
would imply that he renounces copulation,
w/c is a personal right; (2) If both spouses
are impotent, & such impotence existed
bef. the M, continues, & appears incurable,
bec. in this case an impotent pltff could not
have expected copulation w/ the other
spouse.
Art. 47. The action for annulment of
marriage must be filed by the following
persons & w/in the periods indicated
herein:
xxx

Tolentino:
54

(5) For causes mentioned in numbers 5 &


6 of Article 45, by the injured party, w/in five
years after the marriage.

F.PSYCHOLOGICAL INCAPACITY.

Art. 36. A marriage contracted by any


party who, at the time of the celebration, was
psychologically incapacitated to comply w/
the essential marital obligations of marriage,
shall likewise be void even if such incapacity
becomes
manifest
only
after
its
solemnization. (As amended by E.O. No. 227)

Sempio-Dy:
Provision is Taken fr. Canon Law.-- Par. 3
of Can 1095 of the New Code of Canon Law
provides that:
"Matrimonial Consent
The following are incapable of contracting
marriage:
xxx
3.
Those who, bec. of causes of a
psychological nature, are unable to assume
the essential obligations of marriage.
The Committee decided to adopt par.
3 of the New Code of Canon Law as a ground
for the declaration of nullity of marriage for
the following reasons: (1) As a substitute for
divorce; (2) As a solution to the problem of
Church-annulled marriages; (3)
As an
additional remedy to parties who are
imprisoned by a marriage that exists in name
only as they have long separated bec. of the
inability of one of them to perform the
essential obligations of marriage.
Psychological Incapacity Distinguished
fr. Vice of Consent.-Psychological
incapacity is not a question of defective
consent but a question of fulfillment of a valid
consent.

Committee would like the judge to interpret


the provision on a case-to-case basis,
guided by experience, the findings of
experts & researchers in psychological
disciplines, & by decisions of Church
tribunals w/c, although not binding on the
civil courts, may be given persuasive effect
since the provision was taken fr. Canon
Law.
Q:
Is
the
Psychologically
Incapacitated Person Disqualified fr.
Marrying Again?
A: The Committee believes that there is no
need to disqualify the psychologically
incapacitated
fr.
contracting
another
marriage bec. the fact of his psychological
incapacity for marriage would be revealed
anyway when he applies for a marriage
license for the 2nd marriage, & the other
party is thus placed on guard to conduct
discreet investigation about the matter.
General
Characteristics
of
term
"Psychological Incapacity":
It must
exhibit gravity, antecedence & incurability:
(1) Gravity, if the subject cannot carry out
the normal & ordinary duties of marriage &
family shouldered by any average couple
existing under ordinary circumstances of
life & work; (2) antecedence, if the roots of
the trouble can be traced to the history of
the subject before the marriage although
its overt manifestation appear only after
the wedding; & (3)
incurability, if
treatments required exceed the ordinary
means of the subject, or involve time &
expense beyond the reach of the subject.
Q: Who can File the Action to Declare
the Marriage Void?
A:
Either party,
i.e., even the
psychologically incapacitated can file the
action.
Q: What is the Status of the Children
under this Article?
A: The children conceived or born before
the decree of nullity of marriage are
considered legitimate (Art. 54.)
SANTOS V. CA [240 SCRA 20 (1995)]

Psychological Incapacity Distinguished


fr. Insanity.-- Mental incapacity or insanity
of some kind, like physical incapacity, is a
vice
of
consent,
while
psychological
incapacity is not a species of vice of consent.

Meaning of "psychological incapacity"


confined to the most serious cases of
personality disorders demonstrative of
insensitivity or inability to give meaning &
significance to the marriage.

Q:
Why Were No Examples of
Psychological Incapacity Given in this
Article?
A: The Committee did not give any examples
of psychological incapacity for fear that the
giving of examples would limit the
applicability of the provisions under the
principle of ejusdem generis. Rather, the

Facts: On 9/20/86, Leouel Santos & Julia


Rosario Bedia exchanged vows bef. a mun.
trial judge of Iloilo City. They lived w/ the
wife's parents. One yr. later, a child was
born of their marriage. Quarrels marred
the marriage bec. of frequent interference
55

by Julia's parents. On 5/18/88, Julia left for


the US to work as a nurse despite Leouel's
pleas. For the first time in 7 mos. Julia called
him up by long distance promising to return
home once her contract expires in 1/89. She
never did. When Leouel was in the US in
1990 to undergo a training program under
the auspices of the AFP, he tried to locate
Julia, but to no avail. Hence this action in
Negros Oriental, under Art. 36, FC. Summons
was served by publication. Julia opposed the
complaint, claiming it was Leouel who had
been irresponsible & incompetent. But she
filed a manifestation stating she would
neither appear nor submit evidence. From an
order of the lower court dismissing the
complaint for lack of merit, & the CA
affirming said order, Leouel filed this petition
for certiorari.
HELD: It should be obvious, looking at all the
disquisition, including, & most importantly,
the deliberations of the FC Revision
Committee itself, that the use of the phrase
"psychological incapacity" in Art. 36 has not
been meant to comprehend all such possible
cases of psychoses as, likewise mentioned by
some ecclesiastical authorities, extremely low
intelligence,
immaturity,
&
like
circumstances. xxx Art. 36 cannot be taken
& construed independently of, but must
stand in conjunction w/, existing precepts in
our marriage law.
Thus correlated,
psychological incapacity should refer to no
less than a mental (not physical) incapacity
that causes a party to be truly incognitive of
the
basic
marital
covenants
that
concomitantly
must
be
assumed
&
discharged by the parties to the marriage w/,
as so expressed by Art. 68, FC include their
mutual obligations to live together, observe
love, respect & fidelity & render help &
support.
(Balane:
This is a tentative
definition of psychological incapacity.) There
is hardly any doubt that the intendment of
the law has been to confine the meaning of
"psychological incapacity" to the most
serious cases of personality disorders clearly
demonstrative of an utter insensitivity or
inability to give meaning & significance to the
marriage. This psychological condition must
exist at the time the marriage is celebrated.
xxx.

Art. 39. The action or defense for the


declaration of absolute nullity of a marriage
shall not prescribe. However, in the case of

marriages celebrated before the effectivity


of this Code & falling under Article 36, such
action or defense shall prescribe in 10
years after this Code shall have taken
effect. (As amended by E.O. No. 227)

Tolentino:
Retroactivity of Art. 36.-- By providing
for a 10-yr prescriptive period for marriages
of this nature solemnized bef. the
effectivity of the FC, the latter has actually
given a retroactive effect to the present
article.
We submit that this is a juridical
mistake. It is like an ex post facto provision
translated into the filed of civil law. It
contravenes the provisions of Art. 255 w/c
allows retroactivity of the FC provisions
only when it does not impair or prejudice
vested or acquired rights.
C. VOID MARRIAGES

ART. 35. The following marriages shall


be void fr. the beginning:
Those contracted by any party below
eighteen years of age even w/ the consent
of parents or guardians;
Those solemnized by any person not
legally authorized to perform marriages,
unless such marriages were contracted w/
either or both parties believing in good
faith that the solemnizing officer had the
legal authority to do so;
Those solemnized w/o license, except
those covered by the preceding Chapter;
Those
bigamous
or
polygamous
marriages not falling under Article 41;
Those contracted through mistake of
one contracting party as to the identity of
the other; &
Those subsequent marriages that are
void under Article 53.
ART. 36. A marriage contracted by any
party who, at the time of the celebration,
was psychologically incapacitated
to
comply w/ the essential marital obligations
of marriage, shall likewise be void even if
such incapacity becomes manifest only
after its solemnization. (As amended by
E.O. No. 227)

Tolentino:
56

Originally, this article provided that


the action to declare the nullity of this
marriage shall prescribe in 10 yrs. after its
celebration. This was repealed by EO227,
even before the FC took effect. Therefore,
the action for the declaration of nullity of this
marriage does not prescribe.
But if the marriage had been
solemnized before the FC took effect, EO 227
provides that the actions shall prescribe in 10
yrs. after the effectivity of the FC or on Aug.3,
1998.
NOTE: THERE IS A NEW LAW PASSED THIS
YR. OR LAST YEAR REMOVING THE 10 YR
PRESCRIPTIVE
PERIOD
FOR
THOSE
MARRIAGES CELEBRATED BEFORE THE FAMILY
CODE. IN OTHER WORDS, THE ACTION TO
DECLARE THE MARRIAGE NULL AND VOID,
WHETHER IT WAS CELEBRATED BEFORE OR
AFTER THE FC, IS IMPRESCRIPTIBLE.
ART. 37. Marriages between the following
are incestuous & void fr. the beginning,
whether the relationship between the parties
be legitimate or illegitimate: :
(1)
Between
ascendants
&
descendants of any degree; &
(2) Between brothers & sisters, whether
of the full or half blood.
ART. 38. The following marriages shall be
void fr. the beginning for reasons of public
policy:
(1) Between collateral blood relatives,
whether legitimate or illegitimate, up to the
fourth civil degree;
(2) Between step-parents & step-children;
(3) Between parents-in-law & children-inlaw;
(4) Between the adopting parent & the
adopted child;
(5) Between the surviving spouse of the
adopting parent & the adopted child;
(6) Between the surviving spouse of the
adopted child & the adopter;
(7) Between an adopted child & a
legitimate child of the adopter;
(8) Between adopted children of the same
adopter; &
(9) Between parties where one, w/ the
intention to marry the other, killed that other
persons spouse or his or her own spouse.
ART. 39. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. (However, in the case of

marriage celebrated before the effectivity


of this Code & falling under Art. 36, such
action or defense shall prescribe in 10 yrs.
after this code shall have taken effect-now
repealed)
ART. 40. The absolute nullity of a
previous marriage may be invoked for
purposes of remarriage on the basis solely
of a final judgment declaring such previous
marriage void.
ART. 41. A marriage contracted by any
person during the subsistence of a previous
marriage shall be null & void, unless before
the
celebration
of
the
subsequent
marriage, the prior spouse had been
absent for four consecutive years & the
spouse present had a well-founded belief
that the absent spouse was already dead.
In case of disappearance where there is
danger of death under the circumstances
set forth in the provisions of Article 391 of
the Civil Code, an absence of only 2 years
shall be sufficient.
For the purpose of contracting the
subsequent marriage under the preceding
paragraph, the spouse present must
institute a summary proceeding as
provided in this Code for the declaration of
presumptive death of the absentee, w/o
prejudice to the effect of reappearance of
the absent spouse.

ART. 42. The subsequent marriage


referred to in the preceding Article shall be
automatically terminated by the recording
of the affidavit of reappearance of the
absent spouse, unless there is a judgment
annulling the previous marriage or
declaring it void ab initio.
A sworn statement of the fact &
circumstances of reappearance shall be
recorded in the civil registry of the
residence of the parties to the subsequent
marriage at the instance of any interested
person, w/ due notice to the spouses of the
subsequent marriage & w/o prejudice to
the fact of reappearance being judicially
determined in case such fact is disputed.
ART. 43. The termination of the
subsequent marriage referred to in the
57

preceding Article shall produce the following


effects:
(1) The children of the subsequent
marriage conceived prior to its termination
shall be considered legitimate, & their
custody & support in case of dispute shall be
decided by the court in a proper proceeding;
(2) The absolute community of property
or the conjugal partnership, as the case may
be, shall be dissolved & liquidated, but if
either spouse contracted said marriage in
bad faith, his or her share of the net profits of
the
community
property
or
conjugal
partnership property shall be forfeited in
favor of the common children or, if there are
none, the children of the guilty spouse by a
previous marriage or, in default of children,
the innocent spouse;
(3) Donations by reason of marriage shall
remain valid, except that if the donee
contracted the marriage in bad faith, such
donations made to said donee are revoked by
operation of law;
(4) The innocent spouse may revoke the
designation of the other spouse who acted in
bad faith as beneficiary in any insurance
policy, even if such designation be stipulated
as irrevocable; &
(5) The spouse who contracted the
subsequent marriage in bad faith shall be
disqualified to inherit fr. the innocent spouse
by testate & intestate succession.
ART. 44.
If both spouses of the
subsequent marriage acted in bad faith, said
marriage shall be void ab initio & all
donations by reason of marriage &
testamentary dispositions made by one in
favor of the other are revoked by operation of
law.

SANTOS V. CA
Meaning
of
"psychological
incapacity"
confined to the most serious cases of
personality disorders demonstrative of
insensitivity or inability to give meaning &
significance to the marriage.
FACTS:
On 9/20/86, Leouel Santos &
Julia Rosario Bedia exchanged vows bef. a

mun. trial judge of Iloilo City. They lived w/


the wife's parents. One yr. later, a child
was born of their marriage.
Quarrels
marred the marriage bec. of frequent
interference by Julia's parents. On 5/18/88,
Julia left for the US to work as a nurse
despite Leouel's pleas. For the first time in
7 mos. Julia called him up by long distance
promising to return home once her contract
expires in 1/89. She never did. When
Leouel was in the US in 1990 to undergo a
training program under the auspices of the
AFP, he tried to locate Julia, but to no avail.
Hence this action in Negros Oriental, under
Art. 36, FC.
Summons was served by
publication. Julia opposed the complaint,
claiming it was Leouel who had been
irresponsible & incompetent. But she filed
a manifestation stating she would neither
appear nor submit evidence.
From an
order of the lower court dismissing the
complaint for lack of merit, & the CA
affirming said order, Leouel filed this
petition for certiorari.
HELD: It should be obvious, looking at all
the
discussions,
including,
&
most
importantly, the deliberations of the FC
Revision Committee itself, that the use of
the phrase "psychological incapacity" in
Art. 36 has not been meant to comprehend
all such possible cases of psychoses as,
likewise mentioned by some ecclesiastical
authorities, extremely low intelligence,
immaturity, & like circumstances. xxx Art.
36 cannot be taken & construed
independently of, but must stand in
conjunction w/, existing precepts in our
marriage
law.
Thus
correlated,
psychological incapacity should refer to no
less than a mental (not physical) incapacity
that causes a party to be truly incognitive
of the basic marital covenants that
concomitantly must be assumed &
discharged by the parties to the marriage
w/, as so expressed by Art. 68, FC include
their mutual obligations to live together,
observe love, respect & fidelity & render
help & support.
(Balane:
This is a
tentative
definition
of
psychological
incapacity.) There is hardly any doubt that
the intendment of the law has been to
confine the meaning of "psychological
incapacity" to the most serious cases of
personality disorders clearly demonstrative
of an utter insensitivity or inability to give
meaning & significance to the marriage.
This psychological condition must exist at
the time the marriage is celebrated. Xxx
58

In the book, Canons & Commentaries


on Marriage, this psychological incapacity
consists of the ff:
true inability to commit oneself to the
essential of marriage;
this inability to commit oneself must refer to
the essential obligations of marriage: the
conjugal act, the community of life &
love, the tendering of mutual help, the
procreation & education of offspring;
the inability must be tantamount to a
psychological abnormality.
The mere
difficulty of assuming these obligs, w/c
could be overcome by normal effort,
obviously does not constitute incapacity.
The
canon
contemplates
a
true
psychological disorder w/c incapacitates
a person fr. giving what is due. It must
be proved not only that the person is
afflicted by a psychological defect, but
that the defect did in fact deprive the
person at the moment of giving consent,
of the ability to assume the essential
duties of marriage & consequently of the
possibility of being bound by these
duties.

under a void marriage or w/o benefit of a


marriage. Under this prop regime, property
acquired by both spouses through their
work & industry shall be governed by the
rules on equal co-ownership & any prop
acquired during the union is prima facie
presumed to have been obtained through
their joint efforts. A party who did not
participate in the acquisition of the prop
shall still be considered as having
contributed thereto jointly if said partys
efforts consisted in the care & maintenance
of the family household. (Unlike CPG, fruits
of sep. prop. are not included in coownership)
Art. 148 This applies when the commonlaw spouses suffer fr. a legal impediment to
marry each other or when they do not live
exclusively w/ each other as husband &
wife. Only the prop acquired by both of
them
through
their
ACTUAL
joint
contributions of money, prop or industry
shall be owned in common & in proportion
to
respective
contributions.
Said
contributions are prima facie presumed to
be equal.

PI should be characterized by
gravity;
juridical antecedent; &
incurability.

Arts. 50-52 in rel to Art 102 & 109


apply only to voidable /valid marriages &
exceptionally to void marriages under Art.
40.

VALDEZ VS. RTC

DOMINGO V. CA

FACTS: AV (h) & CG(s) were married & they


begot 5 children. AV sought the declaration
of nullity of their marriage on the ground of
mutual psychological incapacity (PI) to
comply w/ their essential marital obligations.
The RTC granted said petition & ordered them
to liquidate their properties accdg to Art. 147
of the FC in relation to Arts. 50-52 .
The
question is WON Arts. 50-52 in relation to
Arts. 102 & 109 govern such liquidation of
prop in void ab initio marriages based on Art.
36.

A spouse may petition for the declaration


of nullity of her marriage for a purpose
other than her remarriage.

HELD: NO. In void marriages, regardless of


the cause thereof, the prop. relations of the
parties during the pd of cohabitation is
governed by Arts. 147 or 148.
Art. 147 This peculiar kind of ownership
applies when a man & a woman, suffering no
legal impediment to marry each other, so
exclusively live together as husband & wife

FACTS:
Delia Domingo filed a pet.
for decl. of nullity of her marriage w/
Roberto Domingo, on the ground that,
unknown to her, he was previously married
at the time of their marriage. She prays
that their marriage be declared null & void
&, as a consequence, to declare that she is
the exclusive owner of all properties she
acquired during the marriage & to recover
them fr. him.
Roberto moved to dismiss the
petition on the ground that the marriage
being void ab initio, the petition for decl. of
nullity is unnecessary citing Peo. v. Aragon
& Peo. v. Mendoza. Roberto claims that
decl of nullity is necessary under Art. 40,
FC only for the purpose of remarriage. The
59

lower court denied the motion. CA affirmed


the denial.

litigation was characterized by a no-holds


barred contest & not by collusion.

HELD:
The Declaration of nullity of a
marriage under Art. 40 may be resorted to
even for a purpose other than remarriage.

GOMEZ V. LIPANA

Crucial to the proper interpretation of


Art. 40 is the position of the word "solely."
xxx. As it is placed, it is meant to qualify
"final judgment." Had the provision been
stated as follows: "The absolute nullity of a
previous marriage may be invoked solely for
purposes of remarriage...," the word "solely"
will qualify "for purposes of remarriage" & the
husband would have been correct.
That Art. 40 as finally formulated
included the significant clause denotes that
such final judgment declaring the previous
marriage void need not be obtained only for
purposes of remarriage.
TUASON VS. CA
FACTS: VT filed a pet for annulment or
declarations of nullity of her marriage to ET
on grds of psy incapacity of ET who was a
druggie, physically abusive, etc. ET in his
answer alleged that it was VT who was a
druggie. Bec ET was not able to attend one
of the scheduled hearings, the LC decided on
the basis of VTs evid & ruled in her favor. VT
filed for Dissolution of their CPG. ET filed a
pet for Relief of Jdmt of the dec. annulling the
marriage.
HELD: The order for annulment of their
marriage was valid. A final & executory jdmt
or order of the RTC may be set aside on the
grd of fraud, accident, mistake or excusable
negligence (FAME). The failure of his counsel
to notify his in not excusable bec notice sent
to counsel is binding upon the client.
The absence of the prosecuting officer
did not render the order void although in
granting annulment of marriage & legal sep,
the pros. Atty. or fiscal is ordered to appear
on behalf of the State for the purpose of
preventing any collusion bet. the parties & to
take care that their evidence is not fabricated
or suppressed(Arts. 48 & 60 of FC), bec in the
CAB, ET actively participated in the
proceedings by filing several pleadings &
cross-examining the witnesses of his wife. It
is crystal clear that every stage of the

FACTS: J contracted 2 marriages in his life,


one w/ M in 1930 & another w/ I in 1939. In
1943 J & I acquired a lot in Cubao. In 1958
I died intestate. Pets, as Is heirs, filed an
action for forfeiture of Js share in the prop.
Under the existing law (OCC), a party who
has caused the nullity of the marriage shall
have no part in the CPG.
HELD: Where a husband & his second wife
fr. whom he concealed his first marriage,
acquired properties during their marriage,
the second marriage being void, is subject
to collateral attack in the intestate
proceedings instituted by the judicial
administratrix for the forfeiture of the
husband's share under Article 1417,
Spanish Civil Code (no longer in force) .
"The legal situation arising fr. these facts is
that while insofar as the second wife was
concerned, she having acted in good faith,
her marriage produced civil effects & gave
rise, just the same, to the formation of the
conjugal partnership wherein she was
entitled
to
an
equal
share
upon
dissolution." The only JUST AND EQUITABLE
solution is to give one-half of the properties
to the second wife, & the other half to the
conjugal partnership of the first marriage.
VDA. DE CONSUEGRA V. GSIS
FACTS: JC contracted 2 marriages. One w/
RD & the 2nd w/ BB (iloveyoubb!). When JC
died, the proceeds of his LIFE INSURANCE
POLICY were paid to BB & children bec they
were the beneficiaries named in the policy.
JC also had RETIREMENT INSURANCE
BENEFITS but w/o any beneficiaries named.
RD filed a claim as JCs only legal heir. BB
also filed a claim stating that since they
were the beneficiaries in the Life insurance
policy, they are the ones entitled to receive
the ret. Ins benefits. The GSIS & the LC
ruled that RD was entitled to 1/2 & BB &
children were also entitled to 1/2.
HELD: Affirmed. The LC correctly cited
the case of Lao v. Dee Tim wherein it was
held that: since the first marriage has not
been dissolved or declared void, the CPG
established by that marriage has not
ceased. Nor has the first wife lost or
60

relinquished her status as putative heir of her


husband under the NCC, entitled to share in
his estate upon his death should she survive
him.. Although the second marriage is
presumed void ab initio, having been
contracted during the subsistence of the first
marriage, there is a need for a judicial
declaration of its nullity. And inasmuch as the
conjugal partnership formed by the 2nd
marriage was dissolved before judicial
declaration of nullity, the only just &
equitable solution in this case would be to
recognized the right of the 2nd wife to her
share of 1/2 in the prop acquired by her
husband, & consider the other half as
pertaining to the CPG of the first marriage.

by 2nd marriage bec their marriage was


void by operation of law.
PEOPLE V. ARAGON
Same as People v. Mendoza
Baviera: As a defense in bigamy, there
is no need for judicial declaration of
nullity of a void marriage; as far as
determination of property relations is
concerned, there is a need for such
judicial declaration for purposes of
remarriage.

D. VOIDABLE MARRIAGE
Baviera:
The court should not have
applied Gomez v. Lipana, since there is
no provision in the Civil Code giving
effect to a void marriage in good faith.

NOTES: Under the NCC, there is a need for a


jud declaration of nullity of marriage for the
purpose of marrying again. The old rule that
a marriage w/c is void ab initio need no
judicial decree of nullity is abandoned for the
purpose of remarriage. Thus, under the FC,
even if the marriage is one that is void fr. the
beginning, the 2nd marriage would still be
void if the parties to the 1 st marriage did not
have that marriage decreed a nullity.
This is also for the purpose of
protecting the parties of the 2nd marriage fr.
prosecution for bigamy.
PEOPLE V. MENDOZA
FACTS: M married J in 1936. During the
subsistence of this marriage, M again married
O in 1941. The 1st wife died in 1943 so M
married C in 1949. This last marriage gave
rise to his prosecution for bigamy.
HELD: M is not liable for bigamy. The law in
force at the time M contracted the 2nd
marriage provided that a subsequent
marriage contracted by any person during
the lifetime of his spouse is illegal & void fr.
its performance, & no judicial decree is
necessary to establish its invalidity.
Thus, when M married C, he was
suffering NO impediment as it can be
considered that he has no spouse by 1st
marriage bec. she died, & he had no spouse

1. GROUNDS
ANNULMENT

FOR

Art. 45 FC. A marriage may be annulled


for any of the following causes, existing at
the time of the marriage:
That the party in whose behalf it is
sought to have the marriage annulled was
18 yrs. old or over but below 21, & the
marriage was solemnized w/o the consent
of the parents, guardian or person having
substitute parental authority over the
party, in that order, unless after attaining
the age of 21, such party freely cohabited
w/ the other & both lived together as
husband & wife;
That either party was of unsound mind,
unless such party after coming to reason,
freely cohabited w/ the other as husband &
wife;
That the consent of either party was
obtained by fraud, unless such party
afterwards, w/ full knowledge of the facts
constituting the fraud, freely cohabited w/
the other as husband & wife;
That the consent of either party was
obtained by force, intimidation or undue
influence, unless the same
having
disappeared or ceased, such party
thereafter freely cohabited w/ the other as
husband & wife;
That either party was physically
incapable of consummating the marriage
w/ the other, & such incapacity continues &
appears to be incurable; or

61

That either party was afflicted w/ a


sexually-transmissible diseases found to be
serious & appears to be incurable.

agreement to marry Cruz in fear. Marias


grandfather testified that his son (uncle)
pointed a gun at him when he tried to stop
the latter fr. forcing Maria to marry Cruz.

JIMENEZ VS. CANIZARES (109 P 273)

Concurring (Gatmaitan):
Marriage
license was secured on the same day that
it was applied for. It was therefore void for
lack of the required 10 days of publication.

Facts: J filed an axn for annulment of his


marriage on the ground that the orifice of his
wifes genitalia was too small to allow the
penetration of a male organ for copulation.
The wife did not file an answer nor attend the
hearings. She refused to submit to a medical
examination.
Issue :WON marriage may be annulled solely
on the basis of the husbands testimony
Held : No.
The existence of the legal
grounds enumerated by law must be proved
by indubitable evidence to annul a marriage.
The presumption is in favor of potency; the
husbands testimony alone is insufficient
evidence. The wife must submit to a physical
examination w/c in CAB is not selfincriminating as she isnt being charged w/ a
crime. Wifes refusal to be examined doesnt
give rise to the presumption arising out of
suppression of evidence, i.e., that it is
adverse. Women of this country are shy by
nature & wouldnt submit to a physical
examination unless compelled by competent
authority.
PAULINO V. CRUZ (4 C.A. REP 1207)
Facts: Maria Paulino filed an axn to annul her
marriage to Cruz on the ground that her
uncle made her sign documents - w/c turned
out to be an application for a marriage
license & marriage contract - through force,
threat,
intimidation
&
fraudulent
misrepresentation. Maria didnt cohabit w/
Cruz, but was convicted of adultery when she
ran away w/ Patricio Cabrera 19 days after
the alleged marriage.
Issue: WON marriage may
despite conviction of adultery

be

annulled

Held: Yes. The conviction of adultery is


immaterial;
a married woman may be
convicted of adultery even if the marriage is
subsequently declared void.
Marias
testimony showed that her uncle slapped her
& pushed her head against a post so that
Maria signed what was supposed to be an

TOLENTINO :
Party of Unsound Mind. (45.2) -- The
test of unsoundness of mind is WON the
party at the time of the M was capable of
understanding the nature & consequences
of the M. Insanity must exist at the time of
the M, to avoid it.
Somnambulism has the same effect
as insanity. (Sanchez Roman.)
Burden of Proof -- Presumption of the law
is generally in favor of sanity, & he who
alleges the insanity of another has the
burden of proving it. But once general
insanity is proved to exist, it is presumed to
continue; & if a recovery or a lucid interval
is alleged, the burden to prove such
allegation is on the person making it.
Ratification -- Par. 2 gives the right of
action to annul to the insane spouse &
provides for ratification after regaining
reason. No right of action is given to the
sane spouse; this is based on the
assumption that he knew of the insanity of
the other party & is placed in estoppel. But
if he did not know of such insanity at the
time of the M, he is given a right of action
under Art. 47 par. 2, any time before the
death of the insane spouse.
Sexually Transmissible Disease. (45.6)
-- The reason for this cause for A is the
danger to the health of the other spouse &
offspring, giving rise to possibility of
avoidance of sexual relations, & the failure
to attain one of the purpose of M, that is,
the procreation of children & raising of a
family.
Ratification of Voidable Marriage.-The law does not fix a definite period
during w/c this cohabitation should last in
order to constitute ratification. xxx It is
submitted that when the cohabitation has
continued for such a length of time, after
the cause of nullity has ceased to exist, as
to give rise to a reasonable inference that
the party entitled to bring the action for
nullity prefers to continue w/ the M, there is
ratification w/c purges the M of its original
defect.

62

Ratification refers to the right of


action itself; prescription refers only to the
remedy. There can be no remedy where
there is no more right of action.
Marriages Not Subject to Ratification
(the law does not provide for their
ratification):
Where one of the spouses is incurably
impotent;
Where one of the spouses has an incurable
sexually transmissible disease;
The defect of the M in these 2 cases is
not one that merely affects consent.
Ratification cures a defect in consent; it
cannot cure a physical defect.
The action to annul in these cases will
exist as long as the period of prescription has
not expired.
A marriage where a sane spouse marries an
insane spouse w/o the knowledge of the
insanity. Although the insane spouse can
ratify the M after recovering reason, the
sane spouse cannot be barred fr. asking
for A even if he has continued to cohabit
w/ the insane spouse after learning of
such insanity.
BALANE :
Force, Intimidation & Undue Influence.-Definitions of "violence," "intimidation," &
"undue influence" are in Arts. 1335 to 1337
NCC.
Art. 1335. There is violence when in
order to wrest consent, serious or irresistible
force is employed.
There is intimidation when one of the
contracting parties is compelled by a
reasonable & well-grounded fear of an
imminent & grave evil upon his person or
property, or upon the person or property of
his spouse, descendants or ascendants, to
give his consent.
To determine the degree of intimidation,
the age, sex & condition of the person shall
be borne in mind.
A threat to enforce one's claim through
competent authority, if the claim is just or
legal, does not vitiate consent.
Art. 1336. Violence or intimidation shall
annul the obligation, although it may have

been employed by a third person who did


not take part in the contract.
Art. 1337. There is undue influence
when a person takes improper advantage
of his power over the will of another,
depriving the latter of a reasonable
freedom of choice. The ff. circumstances
shall be considered:
the confidential,
family, spiritual & other relations between
the parties, or the fact that the person
alleged to have been unduly influenced
was suffering fr. mental weakness, or was
ignorant or in financial distress.
Sexually-Transmissible
Disease.
-Requisites: (1) Disease must be sexually
transmissible; (2) Disease is found to be
serious; (3)
It must be apparently
incurable; (4) STD must exist at the time
of the marriage; (5) It was unknown to the
other party when the M was solemnized; &
(6) the other party must himself/ herself
be free fr. STD. A marriage where either
party was afflicted w/ STD may not be
ratified by cohabitation bec. cohabitation
may be suicidal.
Note: There are 2 voidable marriages w/c
cannot be ratified: (1) voidable marriage
bec. of impotence (here, there will be
contradiction in terms; how can you
cohabit if you are impotent?); & (2)
voidable marriage due to STD.
Art. 46 FC.
Any of the following
circumstances
shall
constitute
fraud
referred to in No. 3 of the preceding Article:
(1) Non-disclosure of a previous
conviction by final judgment of the other
party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact
that at the time of the marriage, she was
pregnant by a man other than her
husband;
(3)
Concealment
of
sexually
transmissible disease, regardless of its
nature, existing at the time of the
marriage; or;
(4) Concealment of drug addiction,
habitual alcoholism or homosexuality or
lesbianism existing at the time of the
marriage.

63

No other misrepresentation or deceit as to


character, health, rank, fortune or chastity
shall constitute such fraud as will give
grounds for action for the annulment of
marriage.

BUCCAT VS. BUCCAT [72 P 19]


There has been no misrepresentation
or fraud when the husband at the time of the
marriage knew that the wife was pregnant;
the marriage cannot be annulled. The child
was born less than 3 months after the
celebration of the marriage. As the woman
was at an advanced stage of pregnancy at
the time of the marriage, such condition must
have been patent to the husband.
ANAYA VS. PALAROAN [36 S 97]
Husbands non-disclosure to his wife of his
premarital relationship w/ another woman,
who was his relative, does not constitute the
fraud w/c is a ground for annulment of
marriage. Fraud as a vice of consent in
marriage is limited exclusively by law to
those kinds or species of fraud enumerated in
the provision. Congress intention to confine
the circumstances that can constitute fraud
as a ground for annulment may be deduced
fr. the fact that, of all the causes of nullity
enumerated in the article, fraud is the only
one given special treatment in a subsequent
article w/in the chapter on void & voidable
marriages.
TOLENTINO :
Marriage through Fraud.-- FC limits the
cases w/c would constitute fraud sufficient for
annulment of M to those enumerated in Art.
46. Bec. of the enumeration, w/c must be
considered as restrictive, no other case of
fraud may be admitted.
Concealment of Pregnancy.-- Where a
man has had sexual intercourse w/ his wife
before the M, & she is pregnant at the time of
M, although he may not be the author of the
pregnancy, the M will not be annulled. This is
based on the theory that there is no fraud,
bec. the man knows his wife to be unchaste,
as he was himself a party to her premarital
immorality.
Concealment of Diseases.-- Compared w/
Art. 45 (6):

Under 45 (6), STD is an independent cause


for annulment. Under 46, concealment
of a STD constitutes fraud under par. 3.
Under 45 (6), the STD existing at the time
of the M must be found to be serious &
appear to be incurable. Under Art. 46
(3), the STD need not be serious or
incurable. To be aground for A, it must
have been "concealed" by the sick
party. It is the fraud that is the ground
for A.
This difference has a very impt.
consequence. If the disease falls under Art
45 (6), the M is not subject to ratification
by continued cohabitation. If the disease
falls under Art. 46 (3), the ground for A is
fraud, & the M is ratified under par. 3 of Art.
45, if the spouse who is well, after knowing
of the disease of the other, continues to
cohabit w/ him or her as H & W.
Effect of Cure
-- Rehabilitation or
recovery will not bar the action. The defect
of the M is not the disease, addiction or
alcoholism itself but the fraud w/c vitiated
the consent of the other party.
BALANE:
To find what crimes involve moral
turpitude, you go by decisions of the SC.
Crimes against property are generally
considered crimes of moral turpitude.
Homosexuality.-- Sexual orientation is
not enough. One has to be a practicing
homosexual.
2. ACTION

FOR

ANNULMENT

Art. 47 FC. The action for annulment of


marriage must be filed by the following
persons & w/in the periods indicated
herein:
(1) For causes mentioned in no. 1 of
Art. 45, by the party whose parent or
guardian did not give his or her consent
w/in 5 years after attaining the age of 21,
or by the parent or guardian or person
having legal charge of the minor, at any
time before such party has reached the age
of 21;
(2) For causes mentioned in no. 2 of
Art. 45, by the sane spouse, who had no
knowledge of the other's insanity or by any
relative or guardian or person having legal
charge of the insane at any time before the
death of either party, or by the insane
64

spouse during a lucid interval


regaining sanity;

or after

(3) For causes mentioned in no. 3 of Art.


45, by the injured party, w/in five years after
discovery of the fraud;
(4) For causes mentioned in no. 4 of Art.
45, by the injured party, w/in five years fr. the
time the force, intimidation or undue
influence disappeared or ceased;
(5) For causes mentioned in nos. 5 & 6 of
Art. 45, by the injured party, w/in 5 years
after the marriage.

BAVIERA:
What in 1988 if wife
discovered husband had a venereal
disease 2 years after the marriage?
A: Apply Art. 47(5)

ART. 48 FC. In all cases of annulment or


declaration of absolute nullity of marriage,
the Court shall order the prosecution atty. or
fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion
between the parties & to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding
paragraph, no judgment shall be based upon
a stipulation of facts or confession of
judgment.
Art. 49 FC. During the pendency of the
action & in the absence of adequate
provisions in a written agreement between
the spouses, the Court shall provide for the
support of the spouses & the custody &
support of their common children. The Court
shall give paramount consideration to the
moral & material welfare of said children &
their choice of the parent w/ whom they wish
to remain as provided for in Title IX. It shall
also provide for appropriate visitation rights
of the other parent.

TOLENTINO VS. VILLANUEVA [56 S 1]


Facts: Tolentino filed an axn to annul his
marriage to Helen based on fraud, as he
discovered immediately after the marriage
that Helen was pregnant despite their having
no sexual relations (i.e., Helen left the house

immediately
after
the
marriage
celebration). Helen was declared in default
when she failed to file a responsive
pleading despite service of summons. CFI
also ordered the fiscal to determine WON
there was collusion, but Tolentino refused
to show his evidences to the fiscal & to
submit to his interrogation.
Issue: WON CFI correctly dismissed the
axn due to the fiscals lack of intervention
Held: Yes. The fiscals investigation is a
prerequisite to annulment where the
defendant defaulted.
Marriage is more
than a mere contract, thus, the prohibition
against annulling a marriage based on a
stipulation of facts or by confession of
judgment or by non-appearance of
defendant. When the defendant fails to
appear, the law enjoins the Court to direct
the prosecuting officer to intervene for the
State.
JOCSON VS. ROBLES [22 S 521]
Facts :Gloria Jocson filed an axn for
annulment & for damages on the ground
that her marriage to Robles was bigamous
(she discovered that he had married a
Josefina Fausto 1st). Robles also claimed
that their marriage was invalid bec. he had
been coerced to marry her by her parents
& brothers. He filed a M for summary
judgment supported by affidavits of the
Gloria's father & brothers. Gloria also
submitted the case for judgment on the
pleadings.
The court denied both, &
dismissed the case when both failed to
attend a scheduled hearing..
Issue: WON
correct

denials

&

dismissal

was

Held: Yes. The court correctly denied the


motion for summary judgment in view of
the Civil Code provisions (Arts. 88 & 1011)
expressly prohibiting the rendition of a
decree of annulment of marriage upon a
stipulation of facts or a confession of
judgment.
The affidavits of the wife's
father & brothers amounts to these
methods not countenanced by the Civil
Code.

65

VILLAROMAN VS. ESTEBAN


11736]

[73 O.G.

Facts: Jorge V. & Carmencita E. claimed that


they were 25 & 23 yrs. old, respectively,
when they applied for their marriage license.
Jorge was really only 18 yrs. old. For awhile,
Jorge stayed w/ Carmencita in Manila on
weekends but stayed & studied in Baguio (as
shown by his transcripts) most of the time,
but when he turned 19 & 9 mos. old, he
abandoned her & their child. Jorge filed an
axn to annul the marriage on the basis of age
& lack of parental consent.
Carmencita
contends that he is estopped as he himself
stated that he was 25 on the marriage
license.
Issue: WON marriage was null & void
Held: Yes. The principle of estoppel cannot
apply to defeat a suit for annulment on the
ground that plaintiff was not of age when he
contracted marriage. The legal capacity of
the contracting parties is a matter of law.
The causes for annulment enumerated by
(then) Art. 85 CC, including the ages (<20
yrs. if male & <18 yrs. if female) of the
contracting
parties
requiring
parental
consent, cannot be modified or altered by
their joint acts or omissions, or by that of
either of them. Further, staying w/ the wife
only on Sats. & Sundays indicates transient
sexual intercourse, not cohabitation. This, &
the conduct of the man in abandoning his
wife before reaching the age of majority or
even, accdg to his wife, 9 mos. after he
attained legal age, negates the intention on
his part to confirm or ratify a defective
marriage by cohabiting & living w/ the
woman as her husband.
TOLENTINO :
Insanity. Where the sane spouse knew of
the insanity of the other, he is estopped to
seek annulment where he has lived w/ the
wife claimed to have been insane for several
years & children have been born to them.
Conviction of Crime: Requisites: (1) The
crime involves moral turpitude & (2) There
has been a conviction.
Effect of Collusion.-- If the parties succeed
in obtaining a decree of annulment by
collusion notw/standing observance of Art.
48, such decree must be held to be
absolutely void if no cause really existed. It
would be against public policy.

Action to Annul Marriage.-- Annulment


of M is an action in rem, for it concerns the
status of the parties, & status affects or
binds the whole world. The res is the
relation bet. the parties, or their marriage
tie.
BALANE :
Marriage under 45(3) & 47(3) can
be ratified by cohabitation for a reasonable
period w/c may set in even before the 5-yr.
prescriptive period has expired.
3. EFFECT

OF

ANNULMENT

Art. 50 FC. The effects provided for by


paragraphs (2), (3), (4) & (5) of Article 43 &
by Article 44 shall also apply in the proper
cases to marriages w/c are declared void
ab initio or annulled by final judgment
under Articles 40 & 45.
The final judgment in such cases shall
provide for the liquidation, partition &
distribution of the properties of the
spouses, the custody & support of the
common children, & the delivery of their
presumptive legitimes, unless such matters
had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of
the absolute community or the conjugal
partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling &
the lot on w/c it is situated, shall be adjudicated in accordance w/ the provisions of
Articles 102 & 129.
Art. 51 FC. In said partition, the value of
the presumptive legitimes of all common
children, computed as of the date of the
final judgment of the trial court, shall be
delivered in cash, property or sound
securities, unless the parties, by mutual
agreement judicially approved, had already
provided for such matters.
The children or their guardian, or the
trustee of their property, may ask for the
enforcement of the judgment.
The delivery of the presumptive
legitimes herein prescribed shall in no way
66

prejudice the ultimate successional rights of


the children accruing upon the death of
either or both of the parents; but the value of
the properties already received under the
decree of annulment or absolute nullity shall
be considered as advances on their legitime.
NOTE: The word 'delivered' in par. 1 is
wrong according to DLC as it is violative
of Art. 777; it is contrary to principles of
succession.

Art. 52 FC. The judgment of annulment or


of absolute nullity of the marriage, the
partition & distribution of the properties of
the spouses, & the delivery of the children's
presumptive legitimes shall be recorded in
the appropriate civil registry & registries of
property; otherwise, the same shall not affect
their persons.
Art. 53 FC. Either of the former spouses
may marry again after complying w/ the
requirements of the immediately preceding
Article; otherwise, the subsequent marriage
shall be null & void.
Art. 54 FC. Children conceived or born
before the judgment of annulment or
absolute nullity of the marriage under Article
36 has become final & executory shall be
considered legitimate. Children conceived or
born of the subsequent marriage under
Article 53 shall likewise be legitimate.
Art. 165 FC. Children conceived & born
outside a valid marriage are illegitimate,
unless otherwise provided in this Code.
(referring to Art. 54.)

BAVIERA: If child was conceived or born


before final judgment of a void or
annullable
marriage,
it
is
still
legitimate.
TOLENTINO:
Effects of Voidable Marriages.-A
voidable marriage is valid & produces all its
civil effects, until it is set aside by judgment
of a competent court in an action for
annulment.
Under the FC, the rule applicable to
marriages void fr. the beginning applies to
voidable marriages. (see Art. 50, FC. )

As to children born in voidable


marriages, the NCC & the FC have the
same rule; the children are legitimate.
Effects of the Setting Aside Any
Defective Marriages (whether void ab
initio, or voidable, or a subsequent
marriage terminated upon reappearance of
a spouse presumed to be dead):
(1) There will be a liquidation, partition, &
distribution of the properties of the
spouses.
Liquidation involves the inventory of
the properties & payment of the obligations
of the spouses & of the marriage.
Partition is the process in w/c the
remaining properties will be divided into
the various portions to be allocated to all
the parties.
Distribution is the delivery to the
spouses & the children, in the proper cases,
of the shares or properties allocated to
them respectively in the partition.
(2)
In determining the share of each
spouse in the properties of the M, the
properties, or their value, that had been
donated in consideration of M by the
innocent spouse to the spouse in BF, shall
be revoked by operation of law & returned
to the innocent spouse to become part of
his distributable prop.
(3) The children conceived or born bef. the
judgment becomes final are considered
legitimate. The judgment shall provide for
their custody & support. Their presumptive
legitime fr. each parent (as if the parent
died & they inherit fr. him or her on the
date of final judgment) shall be delivered to
them in cash, prop. or securities.
(4) The innocent spouse may revoke the
designation of the spouse in BF as
beneficiary in the former's life insurance
policy.
(5) The spouse in BF shall be disqualified
to inherit fr. the innocent spouse even
under a will or testament.
(6) The conjugal dwelling & the lot on w/c
it is built will be given to the spouse w/
whom the common children choose to
remain, unless the parties agree otherwise.
(7)
If both spouses acted in BF, all
donations by reason of M fr. one to the
other, & all testamentary provisions made
by one in favor of the other, are revoked by
operation of law.

67

(8) The judgment, the partition & distribution


of the prop. of the spouses, & the delivery of
the children's presumptive legitimes shall be
recorded in the appropriate civil registry.
(9)
After all the foregoing, the former
spouses are free to marry again; otherwise,
the subsequent M shall be void.
Liability for Damages.-- [I]t is submitted
that in an appropriate case, damages may be
recovered by an injured party fr. another
responsible for the nullity of a void or
voidable marriage. The basis of the liability
will be the commission of an unlawful act or
BF. Arts. 20 & 21 of the NCC can serve as the
legal basis for an action for damages.
BALANE:
General rule:
Children of voidable marriage are legitimate.
Children conceived & born of a void marriage
are illegitimate. There are two exceptions
(Art. 54 FC):
1. Art. 36 (psychological incapacity)
2. Art. 53
E. CONFLICT OF LAW RULE

Art. 26 FC. All marriages solemnized


outside the Philippines in accordance w/ the
laws in force in the country, where they were
solemnized, & valid there as such, shall also
be valid in this country, except those
prohibited under Articles 35 (1), (4), (5) & (6),
36, 37, 38.
Where a marriage between a Filipino
citizen & a foreigner is validly celebrated & a
divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.
(as amended by E.O. 227, dated July 17,
1987.)
Art. 35
(1) - below 18
(4) - bigamous or polygamous
(5) - mistake as to identity
(6) - non-registration w/ the LCR of the ff:
judgment of annulment or absolute nullity
of the marriage
partition & distribution of properties of the
spouses
delivery of the children's presumptive
legitimes

Art. 36 - psychological incapacity


Art. 37 - incestuous marriages
Art. 38 - marriages that are void as
against public policy.

BAVIERA: Art. 26 par. 2 applies only to


mixed marriages & not to a spouse
who has become naturalized, i.e.,
doesnt apply to a Filipino spouse who
thereafter becomes a US citizen &
then divorces his spouse, who is still a
Filipino.
Bar Q: In 1971, A & B, both Filipinos,
got
married.
In
1980,
they
established life in the US. In 1987,
they both applied for & were granted
US citizenship.
In 1989, A, the
husband, successfully applied for
divorce. In 1990, he married another
woman. Valid?
A: Divorce was valid. Both became
US citizens before they filed for
divorce. American law governs.

VAN DORN VS. ROMILLO [139 S 139 ]


Facts: Alice Reyes is a Filipino citizen. She
married Richard Upton, a US citizen, in HK.
They resided in the Phils. & had 2 children.
In 1982, they obtained a divorce in Nevada,
where Alice later remarried Theodore Van
Dorn. In 1983, Upton filed a suit in RTCPasay City to ask for an accounting & to
obtain the right to manage Alices shop
(The Galleon Shop in Ermita), alleging that
it was conjugal property.
Issue: Effect of foreign divorce on the
parties
Held: Pursuant to his national law, Upton
is no longer Alices husband & he has no
standing to sue as her husband entitled to
exercise control over conjugal assets. He is
estopped by his own representation before
the Nevada court fr. asserting his rights
over alleged conjugal property in the Phils.
To maintain, as the husband does, that
under our laws, the wife has to be
considered still married to him & still
subject to a wife's obligations under CC
cannot be just. In CAB, the wife should not
68

be obliged to live together w/, observe


respect & fidelity, & render support to her
husband, & he should not continue to be one
of her heirs w/ possible rights to conjugal
property. She should not be discriminated
against in her own country if the ends of
justice are to be served.

Art. 26 par. 1 of the FC is a


domestic, internal rule applicable only to
Filipino nationals.
However, universally
incestuous marriages-- such as those bet.
parents & children or bet. brothers &
sisters-will be considered void here,
whatever may be the nationality of the
spouses.

BAVIERA: The second paragraph of Art.


26 was brought about by the ruling of
the SC in Van Dorn v. Romillo.

As a general rule, a marriage should


be upheld if valid according to the law of
the place of celebration, unless the M itself
or the enjoyment of the incidents of the
marital relationship would offend the
strongly-held notions of decency & morality
of a State that has a close relationship to
the contracting parties.

JOVITO SALONGA, Private International


Law II, 1995 ed. :
Philippine Law on Formal Validity.-- Phil.
law adheres to the imperative rule: a
marriage formally valid where celebrated is
valid elsewhere (the maxim locus regit actum
is applied compulsorily; the law of the place
of celebration, the lex loci celebrationis, is
solely decisive.)
Par. 1 of Art. 17, NCC
embodies the maxim locus regit actum: "The
forms & solemnities of contracts, wills, &
other public instruments, shall be governed
by the laws of the country in w/c they are
executed."
To establish a valid foreign marriage, 2
things must be proven, namely, (1) the
existence of the foreign law as a question of
fact; & (2) the alleged foreign marriage by
convincing evidence.
(Yao Kee v. SyGonzales, supra.)
Marriage by Proxy.-Proxy marriages,
where permitted by the law of the place
where the proxy participates in the marriage
ceremony, are entitled to recognition in
countries
adhering
to
the
lex
loci
celebrationis rule, at least insofar as formal
validity is concerned.
BAVIERA:
Marriage by proxy abroad
affects formal requisite only. It can be
argued as valid.

SALONGA (contd.):
Philippine Law on Substantive Validity.-W/ reference to marriages celebrated abroad,
Phil. law primarily refers to the law of the
place of celebration. xxx The general rule
expressed in the formula "valid where
celebrated, valid everywhere" admits of at
least 2 exceptions: (1) in the case of Filipino
nationals who marry abroad before Phil.
consular or diplomatic officials; (2) in the
saving clause of Art. 26 par. 1.

Art. 26 par. 2 applies to a situation


where the alien spouse was the one who
obtained the divorce decree abroad
capacitating him or her to remarry, in w/c
case the Filipino spouse shall likewise have
the capacity to remarry.
TOLENTINO:
This rule seems to place a Filipino citizen
on a plane of inequality. The reason for this
is that our law does not allow the Filipino to
seek a foreign divorce, hence, if he obtains
one, it is not recognized in the Phils. He is
subject to the Phil. law on status, wherever
he goes.
BALANE:
If the marriage w/c is solemnized abroad is
void under Phil. law, it is considered void in
the Phils.
Exceptions: Art. 35, paragraphs 2 & 3.
This is the only instance where we
recognized foreign divorce. Take note that
the requirements in Art. 52 need not be
complied w/ bec. there is no such
requirement in Art. 26, par. 2.
Requisites.-- There are four requisites for
this Article to apply:
The marriage must be one between a
Filipino & a foreigner
Divorce is granted abroad.
Divorce must have been obtained by the
alien spouse
Divorce must capacitate the alien spouse
to remarry.
Query: Suppose the foreign spouse was a
former Filipino citizen.
Does the law
require that the foreign spouse was already
a foreigner at the time the marriage was
contracted?
A: There is no Supreme Court ruling on
this. But a 1993 DOJ opinion tells us that
69

Art. 26 does not require that the alien spouse


was already a foreigner at the time of the
marriage.
F. MUSLIM CODE (P.D. 1083)
Art. 13. (1) Application. The provisions of
this Title shall apply to marriage & divorce
wherein both parties are Muslims, or wherein
only the male party is a Muslim & the marriage is solemnized in accordance w/ Muslim
law or this Code in any part of the Philippines.
(2) In case of a marriage between a
Muslim & non-Muslim, solemnized not in
accordance w/ Muslim law or this Code
(Muslim Code), the Civil Code of the
Philippines shall apply.
Art. 29. (1) (Subsequent Marriage) By
divorcee - (1) No woman shall contract a
subsequent marriage unless she has
observed an idda of three monthly courses
counted fr. the date of divorce. However, if
she is pregnant at the time of the divorce,
she may remarry only after delivery.

BAVIERA: Q: A Christian woman married


a Muslim under the Muslim Code. Then
they got married under Catholic rites.
Muslim divorced her.
Can the wife
remarry?
A: Yes, if she observes the conditions of
Art. 29, PD 1803. The first marriage
celebrated under the Muslim Code
governs. The church rites just ratified
the first marriage.

G. PENAL SANCTIONS - ACT 3613,


THE MARRIAGE LAW, SECS. 30-42
* Secs. 30-36 were superseded by New Civil
Code; now Title I of Family Code
Sec. 37. Influencing parties in religious
respects. - Any municipal secretary or clerk of
the Municipal Court (now Local Civil
Registrar), who directly or indirectly attempts
to influence any contracting party to marry or
refrain fr. marrying in any church, sect, or
religion or before any civil authority, shall be
guilty of a misdemeanor & shall, upon
conviction
thereof,
be
punished
by

imprisonment for not more than one month


& a fine of not more than two hundred
pesos.
Sec. 38. Illegal issuance or refusal of
license. - Any municipal secretary (now
Local Civil Registrar) or clerk of the
Municipal Court of Manila (Local Civil
Registrar) who issues a marriage license
unlawfully or who maliciously refuses to
issue a license to a person entitled thereto
or fails to issue the same w/in twenty-four
hours after the time when, according to
law, it was proper to issue the same, shall
be punished by imprisonment for not less
than one month nor more than two years,
or by a fine of not less than two hundred
pesos nor more than two thousand pesos.
Sec. 39.
Illegal solemnization of
marriage. - Any priest or minister
solemnizing marriage w/o being authorized
by the Director of the Philippine National
Library (now Director of National Library) or
who, upon solemnizing marriage, refuses to
exhibit his authorization in force when
called upon to do so by the parties or
parents, grandparents, guardians, or
persons having charge; & any bishop or
officer, priest, or minister of any church,
religion or sect the regulations & practices
whereof require banns or publications
previous to the solemnization of a marriage
in accordance w/ section ten (superseded
by Art. 60, New Civil Code, now under Art.
12, EO No. 209, as amended), who
authorizes the immediate solemnization of
a marriage that is subsequently declared
illegal; or any officer, priest or minister
solemnizing marriage in violation of the
provisions of this act, shall be punished by
imprisonment for not less than one month
nor more than two years, or by a fine of not
less than two hundred pesos nor more than
two thousand pesos.
Sec. 40. Marriages in improper places. Any officer, minister, or priest solemnizing
marriage in a place other than those
authorized by this Act, shall be punished by
a fine of not less than twenty five pesos nor
more than three hundred pesos, or both, in
the discretion of the court.
Sec. 41. Failure to deliver marriage
certificate. - Any officer, priest or minister
failing to deliver to either of the contracting
70

parties one of the copies of the marriage


contract or to forward the other copy to the
authorities w/in the period fixed by law for
said purpose, shall be punished by
imprisonment for not more than one month
or by a fine of not more than three hundred
pesos, or both, in the discretion of the court.
Sec. 42. Affidavit on marriage "in articulo
mortis." - Any officer, priest, or minister who,
having solemnized a marriage in articulo
mortis or any other marriage of exceptional
character, shall fail to comply
w/ the
provisions of Chapter II of this Act (Chapter 2,
Title III, New Civil Code, now Title I, Family
Code), shall be punished by imprisonment for
not less than one month nor more than two
years, or by a fine of not less than three
hundred pesos nor more than two thousand
pesos, nor both, in the discretion of the court.
Sec. 43.
Unlawful signboards. - Any
person who, not being authorized to
solemnize marriage, shall publicly advertise
himself, by means of signs or placards placed
on his residence or office or through the
newspapers, as authorized to solemnize
marriage, shall be punished by imprisonment
for not less than one month nor more than
two years, or by a fine of not less than fifty
pesos nor more then two thousand pesos, or
both, in the discretion of the court.
Sec. 44. General penal clause. - Any
violation of any provision of this Act not specifically penalized, or of the regulations to be
promulgated by the proper authorities, shall
be punished by a fine of not more then two
hundred pesos or by imprisonment for not
more than one month, or both, in the
discretion of the court.
Sec. 45.
Disqualification of priests &
ministers. - Any priest or minister of the
gospel or any denomination, church, sect, or
religion convicted of the violation of any of
the provisions of this Act or of any crime
involving moral turpitude, shall, in addition to
the penalties incurred in each case, be
disqualified to solemnize marriage for a
period of not less than six months nor more
than six years at the discretion of the court.
(As amended by Act No. 4236).

IV.

LEGAL SEPARATION

TENCHAVEZ VS. ESCANO [15 S 355


(1965)]
Facts: Vicenta E., a sheltered colegiala
fr. Cebu, secretly but validly married Pastor
T., an ex-army officer & engineer. They
eventually became estranged bec. of the
opposition of Vs parents to the marriage.
Due to the scandal, V went to Misamis
Occidental & then to the US to study. In
the US, she secured a divorce fr. a Nevada
court, while her parents got her a decree of
annulment fr. the Church. V later married
Russel Moran, w/ whom she had children.
They live in California;
V became an
American citizen on Aug. 1958. In 1955,
Pastor filed a complaint against V for legal
separation against Vs parents. He asked
for P1M damages.
Issue: WON legal sepn should be granted
Held: YES. A foreign divorce between
Filipino citizens, sought & decreed after the
effectivity of the NCC, is not entitled to
recognition in the Phils., & neither is the
marriage contracted w/ another party by
the divorced consort subsequent to the
foreign decree of divorce, entitled to
validity in this country.
A marriage
celebrated after a foreign decree of divorce
is adulterous, & justifies an action for legal
separation on the part of the innocent
consort of the 1st marriage. The invalid
divorce also entitles the innocent spouse to
recover damages (P25th moral damages;
basis - 2176). However, an action for
alienation of affection against the parents
of ones consort does not lie in the absence
of proof of malice or unworthy motives on
their part.
BAVIERA:
What is important is the
citizenship at the time of marriage.
Loophole: supposing the wife became
an
American
citizen first, then
divorced her Filipino husband, would
it still constitute as adultery giving
rise to legal separation? [NO]

BAVIERA:
This resulted fr. the Tripoli
Agreement.
71

Annulment
&
Legal
Separation
Distinguished:
(1)
Annulment (A) is
caused by some circumstance existing at the
time of the M, while the cause of legal
separation (LS) arises after the celebration of
the M; (2) an A of M terminates the marital
bond bet. the parties while LS does not; & (3)
A of M, once final, cannot be set aside so as
to restore the marital relation, while LS may
be terminated & marital relations resumed by
the reconciliation of the parties.
Tolentino:
Divorce & Its Kinds.-Divorce is the
dissolution or partial suspension, by law, of
the marital relation; the dissolution being
termed divorce fr. the bond of matrimony, or
a vinculo matrimonii; the suspension being
known as divorce fr. bed & board, or a mensa
et thoro. The former is sometimes also called
absolute, & the latter relative divorce.
Legal Separation & Separation of
Property.-In the former, there is a
suspension of common marital life, both as to
person & property, while in the latter, only
the property relation is affected, & the
spouses may be actually living together.
Legal Separation & Separation of
Spouses.-- Legal Separation (LS) can be
effected only be decree of the court; but the
spouses may be separated in fact w/o any
judgment of the court. Under the NCC, any
contract for personal separation between
husband & wife shall be void & of no effect.
[Art. 221 (1), NCC.] With the repeal of Art.
221, & the omission fr. the FC of a similar
provision, the rule prior to the NCC is
restored, & such agreements are again valid.
Foreign Divorces.-- A foreign divorce bet.
Filipino citizens, sought & decreed after the
effectivity of the NCC, is not entitled to
recognition as valid in the Phils. This is still
the rule under the FC.
A. GROUNDS

ART. 55. A petition for legal separation


may be filed on any of the following grounds:
(1) Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a child of the
petitioner;
(2) Physical violence or moral pressure to
compel the petitioner to change religious or
political affiliation;
(3) Attempt of respondent to corrupt or
induce the petitioner, a common child, or a

child of the petitioner, to engage in


prostitution, or connivance in such
corruption or inducement;
(4) Final judgment sentencing the
respondent to imprisonment of more than
six years, even if pardoned;
(5)
Drug
addiction
or
habitual
alcoholism of the respondent;
(6) Lesbianism or homosexuality of the
respondent;
(7) Contracting by the respondent of a
subsequent bigamous marriage, whether in
the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against
the life of the petitioner; or
(10) Abandonment of petitioner by
respondent w/o justifiable cause for more
than one year.
For purposes of this Article, the term
"child" shall include a child by nature or
adoption.

BALANE:
This is an exclusive enumeration.
Observe that some grounds would
tend to overlap w/ the grounds for
annulment. In such a case, the aggrieved
party has the option, either to bring an
action for annulment or for LS.
Par. (1).-- TOLENTINO: The violence
must be of a serious degree, but does not
have to amount to an attempt against the
life of the petitioner., w/c is covered by par.
(9). The violence must be repeated, to the
extent that common life w/ def. becomes
extremely difficult for the plaintiff.
It is submitted that the repeated
physical violence or the grossly abusive
language should be committed only by one
spouse & not by both to each other.
Par. (2).-- TOLENTINO: The physical
violence or moral pressure to compel the
plaintiff to change religious or political
affiliation need not be repeated. A single
incident would be enough.
BALANE: The pressure must be undue. It
becomes undue when the other spouse is
deprived of the free exercise of his or her
will.
Par. (3).-- TOLENTINO: If both spouses
agree that the wife or a daughter engage in
prostitution, neither one should be allowed
72

to obtain LS, on the principle that a person


should come to court w/ clean hands.
Par. (4).-- TOLENTINO: The crime for w/c
the def. was convicted is immaterial.
Par. (5).-- BALANE: This ground does not
have to exist at the time of the marriage.
Distinguish this fr. Art. 46 (4).
Par. (6).-- BALANE: Questions.-- (1) Will
knowledge of one party that the other was a
lesbian or a homosexual bar the action for
LS? (2) Does homosexuality contemplate
sexual orientation or does it contemplate only
homosexual practice?
BAVIERA :
Homosexuality refers to
practice, not by nature; if by nature,
then Art. 36 will apply.
TOLENTINO:
On pars. 5 & 6.-- These grounds can be
reason for actions for LS only when they
come to exist after the celebration of the
marriage. If the defect had existed at the
time of the marriage, but the marriage had
been ratified by continued cohabitation or the
action to annul has prescribed, it is submitted
that the action for LS may not be
subsequently brought.
Par. (7).-- TOLENTINO: Would this include
a subsequent marriage by a person after a
declaration of presumptive death of the other
spouse?
It is submitted that every
subsequent marriage, where there is a
subsisting prior marriage, should give the
other spouse the right to ask for LS.
Par. (8).-TOLENTINO:
Sexual
Infidelity.-- Under the NCC, the act of a wife
in having sexual intercourse w/ any other
man not her husband will constitute adultery.
On the other hand, concubinage is committed
by the husband in three ways:
(1) by
maintaining a mistress in the conjugal
dwelling: (2) by having sexual intercourse w/
the
other
woman
under
scandalous
circumstances; & (3) by cohabiting w/ her in
any other place.
xxx
To equalize the
situation of husband & wife in this respect,
the FC makes "sexual infidelity" sufficient
ground for either to justify the grant of LS.
Sexual Perversion.-This includes all
unusual or abnormal sexual practices w/c
may be offensive to the feelings or sense of
decency of either the husband or the wife.
But if the act of sexual perversion is by free
mutual agreement, neither party can ask for
LS, bec. they are equally guilty of the
perverse act.

BALANE: Sexual Perversion is a flexible


concept. It is basically, a cultural thing.
GANDIONCO VS. PENARANDA
SCRA 725]

[155

A civil action for LS based on concubinage


may proceed ahead, or simultaneously w/,
a criminal action for concubinage, bec. said
civil action is not one "to enforce the civil
liability arising fr. the offense" even if both
the civil & criminal actions arise fr. or are
related to the same offense. A decree of
LS, on the ground of concubinage may be
issued upon proof of preponderance of
evidence in the action for LS. No criminal
proceeding or conviction is necessary.
Par. (9).-TOLENTINO:
An attempt
against the life of the plaintiff spouse, as a
ground for LS, implies that there is intent to
kill. xxx [But] the act against the life of
the plaintiff spouse must be wrongful in
order to constitute a ground for LS.
BAVIERA:
Even if repeated physical
violence, this can fall under No. 1.
Par. (10).-- TOLENTINO: Under Art. 101,
"the spouse who has left the conjugal
dwelling for a period of three months or
has failed w/in the same period to give any
information as to his or her whereabouts
shall be prima facie presumed to have no
intention of returning to the conjugal
dwelling.
Art. 56.
The petition for legal
separation shall be denied on any of the
following grounds:
Where the aggrieved party has
condoned the offense or act complained of;
Where the aggrieved party has
consented to the commission of the offense
or act complained of;
Where there is connivance between the
parties in the commission of the offense or
act constituting the ground for legal
separation;
Where both parties have given ground
for legal separation;
Where there is collusion between the
parties to obtain the decree of legal
separation; or
73

Where
the
prescription.

action

is

barred

by

TOLENTINO: LS is a personal right & does


not survive death.
BALANE: There are other grounds not found
in Art. 56 :
(1) Death of either party pendente lite.
(Lapuz v. Eufemio, supra.) and
(2) Reconciliation pendente lite. (Art. 66 par.
1.)
Par. (1).-- TOLENTINO: Condonation as
Defense.-- Condonation is the forgiveness
of a marital offense constituting a ground for
LS, & bars the right to LS.
It may be express or implied. It is express
when signified by words or writing, & it is
implied when it may be inferred fr. the acts of
the injured party.
BALANE: Condonation is pardon w/c comes
after the offense.
MATUBIS VS. PRAXEDES
(1960)]

[109 P 788

Facts: Socorro Matubis & Zoilo Prexedes


were married in 1943. In 1944, they agreed
to live separately. In 1948, they executed an
agreement whereby each relinquished his/her
right over the other as husband/wife, couldnt
prosecute the other for concubinage or
adultery, wasnt entitled to support nor could
claim anything fr. the other. In 1955, Zoilo
cohabited & had a child w/ another woman.
Alleging abandonment & concubinage,
Socorro filed an axn for legal sepn.
Issue: WON agreement contained consent
w/c barred the axn for legal sepn
Held: Yes.
The wifes condonation &
consent are necessarily the import of par.
6(b) of the agreement. The second part of the
agreement constituted a license to commit a
ground for legal sepn. The condonation &
consent were express. The law (then Art. 100
CC) provides that legal separation may be
claimed only by the innocent spouse provided
the latter has not condoned or consented to
the adultery or concubinage committed by
the other spouse; plaintiff having condoned
&/or consented in writing to the concubinage
committed by the defendant husband, she is
now undeserving of the court's sympathy.

BAVIERA: The stipulation, though void,


was equivalent to express consent.

Par. (2).-Consent.-TOLENTINO:
Consent is the agreement or conformity in
advance of the commission of the act w/c
would be a ground for LS.
Par. (3).-Connivance.-TOLENTINO:
Connivance is distinguished fr. consent in
that consent is unilateral, or an act of only
one
spouse.
Connivance
implies
agreement, express or implied, by both
spouses to the ground for LS.
Par. (4).-- Recrimination.-- TOLENTINO:
Recrimination is a countercharge in a suit
for LS that the complainant is also guilty of
an offense constituting a ground for LS.
This defense is based on the principle that
a person must come to court w/ clean
hands.
Par. (5).-Effect of Collusion.-TOLENTINO: Collusion is the agreement
bet. husband & wife for one of them to
commit, or to appear to commit or
presented in court as having committed, a
matrimonial offense, or to suppress
evidence of a valid defense, for the
purpose of enabling the other to obtain LS.
B. LIMITATION OF ACTION
Art. 57. In action for legal separation
shall be filed w/in five years fr. the time of
the occurrence of the cause.
TOLENTINO:
Law does not encourage LS, & provides for
prescription of the action even when the
offended party has not had knowledge of
the cause. xxx If plaintiff does not come
to know of the ground for LS, & 5 yrs.
expire fr. the date of its occurrence, he
cannot sue for LS.
BROWN VS. YAMBAO
(1957)]

[54 O.G. 1827

Facts: While Brown was interred by the


Japanese fr. 1942-45, Juanita Yambao, his
wife, committed adultery w/ Carlos Field &
bore the latters child. Brown found out
only when he was released in 1945. They
executed an agreement liquidating the
conjugal partnership & assigning some
74

properties to Yambao. Thereafter, they lived


separately, & Brown had children w/ another
woman. In 1955, he filed an axn for legal
separation on the ground of adultery, praying
that the agreement be ratified. CFI-Manila
denied it on the ground of consent,
connivance & prescription under Art. 102
NCC (axn prescribes 1 year fr. time plaintiff
became cognizant of the cause & w/in 5
years fr. the causes occurrence).
Issue: WON Browns axn is already barred
Held: Yes. Brown did not petition for LS until
10 years after he learned of his wifes
adultery. Even if the wife did not interpose
the defense of prescription, the courts can
take cognizance thereof, bec. actions seeking
a decree of legal separation or annulment of
marriage involve public interest, & it is the
policy of our law that no such decree be
issued if any legal obstacles thereto appear
on the record. Also, the husband was guilty of
commission of the same offense by living w/
another woman. Evidence of his misconduct
& the wifes failure to set it up as a defense
were proper subjects of the fiscals inquiry /
intervention.
BAVIERA: This is an exception to the
Rules of Court provision that defenses
not raised in the pleadings will not be
considered,
since
provisions
on
marriage are substantive in nature.
Prescription here is not a mere statute
of limitations but a substantive right.

DE OCAMPO V. FLORENCIANO (2/23/60)


Facts: De Ocampo & Florenciano married in
1938. In 1951, De Ocampo discovered that
his wife was having illicit relations.
De
Ocampo sent here to Manila to study beauty
culture, but the wife still dated around. In
1952, they began living apart. In 1955, De
Ocampo surprised his wife in the act w/ a
Nelson Orzame. He told her he would file a
petn for legal sepn. Wife agreed so long as
she wasnt criminally charged w/ adultery.
CFI & CA denied petn bec. there was
confession of judgment, condonation &
consent.
Issue: WON there
judgment & collusion

was

confession

of

Held: NO. Decree granted. Art. 101 NCC


doesnt exclude as evidence an admission
or confession made by the guilty spouse
outside the court. It merely prohibits a
decree of sepn based solely on such
confession.
Here, there was other
evidence to prove adultery. The confession
of judgment prohibited is when the
defendant confesses in court the right of
the plaintiff to the judgment sought or files
a pleading expressly agreeing to the
plaintiffs demand.
Further, collusion
cannot be inferred fr. the mere fact that the
guilty party confesses to the offense, &
proof that the defendant desires the sepn
& makes no defense is not by itself
collusion.
C. HEARING

Art. 58. An action for legal separation


shall in no case be tried before six months
shall have elapsed since the filing of the
petition.

TOLENTINO: This is intended to give the


spouses a chance to reconcile.
BALANE: Incidental matters may be heard
even during the six-month cooling-off
period.
RUFUS RODRIGUEZ, The FAMILY CODE
of the Philippines Annotated, 2nd ed.:
During the six month period, the court may
still act to determine the custody of the
children, alimony & support pendente lite.
SOMOSA-RAMOS VS. VAMENTA [46 S
110 (1972)]
Facts: Lucy Somosa-Ramos sued her
husband Clemente for legal sepn on the
grounds of concubinage & for attempting
against her life. She also sought a writ of
preliminary mandatory injunction so that
her paraphernal & exclusive property under
Clementes management could be returned
to her. Clemente moved to suspend the
hearing of the petition due to the 6 month
cooling-off period; Judge Vamenta granted
his motion.
Held: An ancillary remedy of preliminary
mandatory injunction is not barred by the
75

six-month statutory suspension of trial in an


action for legal separation. Art. 103 NCC is
not an absolute bar to the hearing of a
motion for prel. injunction prior to the
expiration of the 6 months period. The law
remains cognizant of the need in certain
cases for judicial power to assert itself, e.g.,
Art. 104 NCC (now Art. 61, FC), in w/c there
appears to be a recognition that the question
of management of the spouses' respective
property need not be left unresolved even
during the 6 months period. An administrator
may even be appointed for the management
of the prop. of the conjugal partnership.
ARANETA VS. CONCEPCION
(1956)]

[99 P 709

Facts:Luis Araneta filed an axn for LS


against Emma, his wife. After the issues were
joined, Emma filed an Omnibus petition to
secure custody of their 3 minor children, a
monthly support of P5th, the return of her
passport, & to enjoin Luis fr. ordering his
hirelings fr. harassing her. Luis prayed that
the parties be required to submit their
evidences, alleging that his wife isnt entitled
to custody bec. she abandoned the children &
that CPG assets cannot justify her claim for
support.
Judge Concepcion denied Luis
prayer but granted Emmas petn on the
ground that Art. 103 NCC (now Art. 58 FC)
prohibits the introduction of any evidence on
the merits or incidents of the case.
Issue: WON evidence may be admitted
Held: Yes. The 6 month cooling-off period
does not override other provisions, e.g.,
determination of the childrens custody,
alimony, & support pendente lite.
Law
expressly
enjoins
that
these
should
determined by the court accdg to the
circumstances.
Evidence not affecting the
cause of separation, like the actual custody of
the children, the means conducive to their
welfare & convenience during the pendency
of the case, should be allowed so that the
court may determine w/c is best for their
custody.

Art. 59 FC. No legal separation may be


decreed unless the Court has taken steps
toward the reconciliation of the spouses & is
fully satisfied, despite such efforts, that
reconciliation is highly improbable.

TOLENTINO: The effort of the Court is not


limited to the period before trial (at least 6
mos.) but may be continued even after trial
& before judgment is rendered.
PACETE VS. CARRIAGA
321]

[231 SCRA

Art. 58 FC mandates that an action for LS


must "in no case be tried before six months
shall have elapsed since the filing of the
petition," obviously in order to provide the
parties a "cooling-off" period.
In this
interim, the court should take steps toward
getting the parties to reconcile.
Art. 60 FC. No decree of legal
separation shall be based upon a
stipulation of facts or a confession of
judgment.
In any case, the Court shall order the
prosecuting attorney or fiscal assigned to it
to take steps to prevent collusion between
the parties & to take care that the evidence
is not fabricated or suppressed.
See De Ocampo case, supra, for ruling on
confession of judgment.
1. RIGHTS & OBLIGS
OF PARTIES

Art. 61 FC. After the filing of the petition


for legal separation, the spouses shall be
entitled to live separately fr. each other.
The court, in the absence of a written
agreement between the spouses, shall
designate either of them or a third person
to administer the absolute community or
conjugal
partnership
property.
The
administrator appointed by the court shall
have the same powers & duties as those of
a guardian under the Rules of Court.

SABALONES VS. CA

[230 SCRA 79]

In an action for legal separation, where the


spouses did not agree as to who will
administer the conjugal partnership, the
Court may appoint one of the spouses.
76

Such appointment may be implied, as when


the trial court denied the petitioner any share
in the conjugal properties (thus also
disqualifying him as administrator thereof.)
That designation was in effect approved by
the CA when it issued in favor of the resp.
wife the preliminary injunction now under
challenge.
Art. 62 FC. During the pendency of the
action for legal separation, the provisions of
Article 49 shall likewise apply to the support
of the spouses & the custody & support of the
common children.
Art. 49 FC. During the pendency of the
action & in the absence of adequate
provisions in a written agreement between
the spouses, the Court shall provide for the
support of the spouses & of their common
children. The Court shall give paramount
consideration to the moral & material welfare
of said children & their choice of the parent
w/ whom they wish to remain as provided for
in Title IX. It shall also provide for appropriate
visitation rights of the other parent.

TOLENTINO:
Effects of Filing Petition:
The spouses can live separately fr. each other
The administration of the common prop.,
whether in absolute community or
conjugal partnership of gains, shall be
given by the Court to either of the
spouses or to a third person, as is best for
the interests of the community.
In the absence of a written agreement of the
spouses, the Court shall provide for the
support bet. the spouses & the custody &
support of the common children, taking
into account the welfare of the children &
their choice of the parent w/ whom they
wish to remain.
When the consent of one spouse to any
transaction of the other is required by
law, judicial authorization shall be
necessary, unless such spouse voluntarily
gives such consent.
Alimony "pendente lite."-During the
pendency of the suit for legal separation
upon a complaint filed & admitted, it is the
duty of the court to grant alimony to the wife
& to make provisions for the support of the
children not in the possession of the father.
Should def. appear to have means to pay
alimony & refuses to pay, either an order of
execution may be issued or a penalty for
contempt may be imposed, or both.
Custody of the Children.-While the
action is pending, the custody of the children

may be determined in one of two ways: (1)


by agreement of the spouses w/c shall not
be disturbed unless prejudicial to the
children; & (2) by court order, w/c shall be
based on the sound discretion of the judge,
taking into account the welfare of the
children as the ruling consideration.
LERMA VS. CA [61 S 440 (1974)]
Facts: Lerma filed a criminal complaint for
adultery against Diaz, the wife, & Ramirez.
3 months later, Diaz filed an axn against
Lerma for legal sepn &/or separation of
properties, custody of their children &
support, & an urgent petition for support
pendente lite for her & the youngest son.
Lerma opposed, setting up the adultery
charge as his defense. Trial court & CA
granted Diazs application for support
pendente lite. A year later, Diaz was found
guilty of adultery.
Issue: WON adultery may be invoked as a
defense against a claim for support
pendente lite
Held: Yes.
The wife having been
convicted of adultery, she is not entitled to
support pendente lite.
Art. 292 NCC
contemplates the pendency of a court
action & a prima facie showing that the
action will prosper; it doesnt preclude the
loss of the right in certain cases. Diaz
having been convicted of adultery, the
probable failure of her suit for legal sepn
can be foreseen. Further, the right to
separate
support
&
maintenance
presupposes the existence of a justifiable
cause to claim legal separation. The loss of
the substantive right to support in such a
situation is incompatible w/ any claim for
support pendente lite.
2. EFFECT OF DEATH OF
A SPOUSE
LAPUZ SY VS. EUFEMIO
(1972)]

[43 S 177

Facts: Carmen Lapuz Sy was abandoned


by
her husband, Eufemio.
She later
discovered that he was cohabiting w/
another woman. She filed a petn for legal
separation.
Before the trial could be
completed, Carmen died in a vehicular
accident. Eufemio moved for dismissal.
77

Granted. Carmens self-assumed substitute,


Lapuz, appealed.
Issue: WON death of a party abates an axn
for legal sepn, even if the axn involves
property rights.
Held: Yes. Death of the plaintiff before a
decree of legal separation abates such
action. "An action for legal separation w/c
involves nothing more than bed-& board
separation of the spouses is purely personal.
The NCC recognizes this by: (1) allowing only
the innocent spouse (& no one else) to claim
legal separation; (2) providing that the
spouses can, by their reconciliation, stop or
abate the proceedings & even rescind a
decree of LS already granted. Being personal,
it follows that the death of one party to the
action causes the death of the action itself actio personalis moritur cum persona." Even
if property rights are involved, bec. these
rights are mere effects of the decree of legal
separation, being rights in expectation, these
rights do not come into existence as a result
of the death of a party. Also under the ROC,
an action for legal separation or annulment of
marriage is not one w/c survives the death of
spouse.
MACADANGDANG V. CA
[108 S 314
(1981)]
Facts: Filomena & Antonio Macadangdang
were able to expand their buy & sell business
in Davao del Norte into merchandising,
trucking,
transportation,
milling
etc.
However, their marriage deteriorated. They
separated. Upon returning fr. Cebu, Filomena
discovered Antonios illicit affairs.
She
instituted an axn for legal sepn, w/c the trial
court granted. She filed a petn for the
appointment of an administrator of the CPG.
TC granted, CA affirmed. Antonio appealed
to SC, but died during the pendency of the
appeal.
Issue: Effect of his death on the appt. of an
administrator
Held: The death of a spouse after a final
decree of legal separation has no effect on
the decree. The law (Art. 106 NCC) clearly
spells out the effect of a final decree of legal
separation on the conjugal property, i.e.,
dissolution & liquidation of the CPG or ACP.
Upon
the
liquidation
&
distribution
conformably w/ the law on the effects of a
final decree of LS, the law on intestate

succession should take over the disposition


of the remaining properties w/c were
allocated to the deceased spouse, i.e.,
properties allocated to the deceased
spouse by virtue of the liquidation of
conjugal assets shall be distributed in
accordance w/ the laws on intestate
succession.
D.
DECREE
SEPARATION

OF

LEGAL

1. EFFECTS
Art. 63. The decree of legal separation
shall have the following effects:
(1) The spouses shall be entitled to live
separately fr. each other, but the marriage
bonds shall not be severed;
(2) The absolute community or the
conjugal partnership shall be dissolved &
liquidated but the offending spouse shall
have no right to any share of the net profits
earned by the absolute community or the
conjugal partnership, w/c shall be forfeited
in accordance w/ the provisions of Article
43 (2);
Art. 43. The termination of the
subsequent marriage referred to in the
preceding Article shall produce the
following effects:
xxx
(2) The absolute community of property
or the conjugal partnership, as the case
may be, shall be dissolved & liquidated, but
if either spouse contracted said marriage in
bad faith, his or her share of the net profits
of the community property or conjugal
partnership property shall be forfeited in
favor of the common children or, if there
are none, the children of the guilty spouse
by a previous marriage or, in default of
children, the innocent spouse;
(3) The custody of the minor children
shall be awarded to the innocent spouse,
subject to the provisions of Article 213 of
this Code; &
Art. 213. In case of separation of the
parents, parental authority shall be
exercised by the parent designated by the
Court. The Court shall take into account all
78

relevant considerations, especially the choice


of the child over seven years of age, unless
the parent chosen is unfit.

conjugal assets.
v.CA)

No child under seven years of age shall


be separated fr. the mother, unless the court
finds compelling reasons to order otherwise.

Art. 64. After the finality of the decree


of legal separation, the innocent spouse
may revoke the donations made by him or
by her in favor of the offending spouse, as
well as the designation of the latter as a
beneficiary in any insurance policy, even if
such
designation
be
stipulated
as
irrevocable. The revocation of the donation
shall be recorded in the registries of
property in the places where the properties
are
located.
Alienations,
liens
&
encumbrances registered in good faith
before the recording of the complaint for
revocation in the registries of property shall
be respected. The revocation of or change
in the designation of the insurance
beneficiary shall take effect upon written
notification thereof to the insured.

(4) The offending spouses shall be


disqualified fr. inheriting fr. the innocent
spouse by intestate succession. Moreover,
provisions in favor of the offending spouse
made in the will of the innocent spouse shall
be revoked by operation of law.

BALANE:
There are four (4) other effects
Donation propter nuptias may be revoked by
the innocent spouse. (Art. 64.)
Designation of the guilty spouse in the
insurance policy may be revoked. (id.)
Cessation of the obligation of mutual support.
(Art. 198.)
Wife may continue using the surname before
the decree of legal separation. (Art. 372,
NCC.)

The action to revoke the donation


under this Article must be brought w/in 5
years fr. the time the decree of legal
separation become final.

2. RECONCILIATION

TOLENTINO:
Support & Assistance.-- After the decree
of LS, the obligation of mutual support bet.
the spouses ceases; however, the court may
order the guilty spouse to give support to the
innocent spouse. (Art. 198.)
Successional Rights.-- The guilty spouse,
by virtue of the decree of LS becomes
disqualified to succeed the innocent spouse.
She would not even be entitled to the
legitime. xxx But if the will is executed after
the decree, the disposition in favor of the
offender shall be valid.
LEDESMA VS. INTESTATE
PEDROSA
[219 SCRA 806]

(citing Macadangdang

ESTATE

OF

The law mandates the dissolution &


liquidation of the prop. regime of the spouses
upon finality of the decree of LS.
Such
dissolution & liquidation are necessary
consequences of the final decree. This legal
effect of the decree of legal separation ipso
facto or automatically follows, as an
inevitable
incident
of,
the
judgment
decreeing the LS for the purpose of
determining the share of each spouse in the

Art. 65. If the spouses should reconcile,


a corresponding joint manifestation under
oath duly signed by them shall be filed w/
the court in the same proceeding for legal
separation.

TOLENTINO:
Concept
of
Reconciliation.-Reconciliation is a mutual agreement to
live together again as husband & wife. It
must be voluntary mutual agreement.
It is submitted that the fact of
resuming common life is the essence of
reconciliation & terminates the legal
separation even if the joint manifestation
has not been filed in court.
BALANE:
Contrary view.-- Technically, what will set
aside the decree of LS is the filing of a joint
verified manifestation of reconciliation.
Without that, the court cannot act motu
proprio.

79

Art. 66. The reconciliation referred to in


the preceding Article shall have the following
consequences:

not listed or not notified, unless the debtorspouse has sufficient separate properties to
satisfy the creditor's claim.

(1) The legal separation proceedings, if


still pending, shall thereby be terminated at
whatever stage; &

TOLENTINO:

(2) The final decree of legal separation


shall be set aside, but the separation of
property & any forfeiture of the share of the
guilty spouse already effected shall subsist,
unless the spouses agree to revive their
former property regime.
The court order containing the foregoing
shall be recorded in the proper civil registries.

New Regime.-The FC authorizes the


spouses to agree to "revive their former
property regime." We submit that this is
not restrictive & does not limit the spouses
to the regime they had before the decree
of LS. The spouses are placed in the same
position as before the marriage & could
establish the property regime they want, as
if making a marriage settlement. xxx If
they do not agree on any system, then by
law their new regime will be that of
separation of property.

BALANE:
Effects of Reconciliation:
Custody over the children.-- Joint custody is
restored.
Compulsory & intestate succession is
restored.
Testamentary succession.-There is no
revival. Reconciliation will not necessarily
revive the institution of the guilty spouse
in the will of the innocent spouse.
Donation propter nuptias will remain revoked.
Art. 67. The agreement to revive the
former property regime referred to in the
proceeding Article shall be executed under
oath & shall specify:
(1) The properties to be contributed anew
to the restored regime;
(2) Those to be retained as separated
properties of each spouse; &
(3) The names of all their known
creditors, their addresses & the amounts
owing to each.
The agreement of revival & the motion for
its approval shall be filed w/ the court in the
same proceeding for legal separation, w/
copies of both furnished to the creditors
named therein. After due hearing, the court
shall, in its order, take measures to protect
the interest of creditors & such order shall be
recorded in the proper registries of
properties.
The recording of the order in the registries
of property shall not prejudice any creditor

V. RIGHTS AND OBLIGATIONS


BETWEEN HUSBAND AND WIFE
Tolentino:
Dual Aspect of Family Relations.-- There
are 2 aspects in family relations, one
internal & another external. In the internal
aspect, w/c is essentially natural & moral,
the family is commonly known to be sacred
& inaccessible even to the law. It is only in
the external aspects, where third persons &
the public interest are concerned, that the
law fixes rules regulating family relations.
A. IN GENERAL

Art. 68. The husband & wife are obliged


to live together, observe mutual love,
respect & fidelity, & render mutual help &
support.

BALANE:
These are called legal obligations but they
are more of a statement of policy. An
action for specific performance is not
proper to enforce these obligations. The
only possible consequences are found in
Art.100 for ACP & 127 for CPG.
With regard to the mutual obligation of
fidelity, there are consequences both civil
& criminal (adultery or concubinage.).
80

With respect to support, there are legal


provisions in the FC w/c carry out the duty.
TOLENTINO:
Right of Cohabitation.-- Marriage entitles
the husband & wife to each other's society,
that is, they are mutually entitled to
cohabitation or consortium. This means that
they shall have a common life, under the
same roof, to better fulfill those obligations
inherent in the matrimonial status.
Scope of Right.-- The right of cohabitation
includes domestic & sexual community of the
spouses, the extent of both of w/c will differ
according to the circumstances. xxx [T]he
spouses will be considered as living together,
although
driven
by
the
stress
of
circumstances or pecuniary difficulties to
separate, if there is no intention on the part
of either to sever their marital relations
permanently.
But for the purpose of the law, only
the tangible & material aspect of cohabitation
can be taken into account.
The law is
powerless to impose that intimacy of life w/c
is the basis of conjugal peace & happiness.
Sexual Relations.-- Although a husband is
entitled to sexual relations w/ his wife, & it is
not rape to force the wife to have sexual
relations against her will, this right is not
absolute. The right involves only normal
intercourse.
Legal
Sanction
for
Cohabitation.-Cohabitation by the parties must be
spontaneous & cannot be imposed by the law
or the courts. The only possible sanction is
patrimonial in nature. If the husband refuses
to live w/ the wife, he can be compelled to
pay her a pension, & indemnity for damages;
& if the wife refuses to live w/ the husband,
he can refuse to support her.
Use of Force.-- The husband cannot by the
use of force, even of public authority, compel
the wife to return home. Such remedy would
be a violation of personal dignity & security.
xxx Modern law abhors imprisonment for
debt, & coercive measures to compel the wife
to live w/ the husband would be worse than
imprisonment for debt.
Remedies for Interference.--Any person
who interferes w/ the right of the spouses to
cohabitation may be held liable for damages
under Art. 26, FC.
Mutual Fidelity.-- This fidelity is the loyalty
w/c each should observe toward the other,
the wife having nothing to do w/ another
man, nor the husband w/ another woman.
Mutual Help.-- Mutual help involves care
during sickness, & bearing the inconvenience
caused by such sickness, of the other spouse.

The
however,
assistance
extends to
assistance,

obligation of mutual help,


is not limited to material
& care during sickness.
It
everything that involves moral
& mutual affection & regard.

There are positive legal provisions


w/c reveal the scope of this duty &
implement the general rule laid down in
the present article. Among them are: (1)
the legitimacy of defense of a spouse (Art.
11, RPC); (2) the increase in penalty in a
crime by one spouse against the person of
the other (Art. 246, id.); (3) the incapacity
of one spouse to testify against the other
(R123, Sec. 26, ROC); (4) the right of one
spouse to object to adoption of or by the
other (Arts. 185 & 188); & (5)
the
prohibition of donations between them (Art.
87.)
Legal Sanction.-- The only aspect of the
obligation of mutual help for w/c there is a
legal sanction is the duty to support. This
can be enforced by court action. But the
law cannot penetrate to the intimate
relations in the home in order to enforce
the mutual obligations of care, of moral
assistance, & of mutual affection & regard.
Position of Spouses in the Family.-The perfect parity of rights & duties of H &
W has to be reconciled w/ the need for
unity of direction in the family. Since the
power of direction cannot be vested at the
same time in 2 persons, the existence of a
head of the family becomes imperative; &
both nature & tradition have given this
prerogative to the husband
This power of the H as head of the
family, however, is not composed of rights
&
prerogatives,
but
of
duties
&
responsibilities, bec. the H does not use it
for his personal benefit but for the greater
& higher interests of the family.
Chastisement of Wife.-- Chastisement
is unlawful, & it has been held that the H
should not be permitted to inflict personal
chastisement upon his wife, even for the
grossest outrage.
The only possible
exception to this rule under our law is that
given in Art. 247 of the RPC, w/c provides
that:
Art. 247. Any legally married person
who, having surprised his spouse in the act
of committing sexual intercourse w/
another person, shall kill any of them or
both of them in the act or immediately
thereafter, or shall inflict upon them any
serious physical injury, shall suffer the
penalty of destierro. If he shall inflict upon
them physical injuries of any other kind, he
shall be exempt fr. punishment.
81

Love Between Spouses.-Mutual love


cannot be compelled or imposed by court
action.
Art. 69. The husband & wife shall fix the
family domicile. In case of disagreement, the
court shall decide.
The court may exempt one spouse fr.
living w/ the other if the latter should live
abroad or there are other valid & compelling
reasons for the exemption. However, such
exemption shall not apply if the same is not
compatible w/ the solidarity of the family.
BALANE: The power to fix residence is joint.
Whatever residence is fixed should bind both
parties.
TOLENTINO: The right to fix family domicile
includes the right to change it, so long as the
spouses agree to the transfer.
Separate Residence.-- It can be said that
any of the grounds for LS would be sufficient
for a spouse to have a separate domicile, if
he or she prefers that to LS.
Art. 70. The spouses are jointly
responsible for the support of the family. The
expenses for such support & other conjugal
obligations shall be paid fr. the community
property &, in the absence thereof, fr. the
income of or fruits of their separate
properties. In case of insufficiency or absence
of said income or fruits, such obligations shall
be satisfied fr. their separate properties.

BALANE:
Art. 70 is an implementation of the third duty
of the spouses, that of support. Correlate this
w/ Art. 194.
Where to get the funds? There are three
sources in the order of priority:
1. From the common property
2. From the income or fruits of the separate
property
* Note: Numbers 1 & 2 are different
sources only if the property relationship is
ACP. In CPG, numbers 1 & 2 will be the same.
3. From the separate property themselves.

Art. 71. The management of the


household shall be the right & duty of both
spouses.
The
expenses
for
such
management shall be paid in accordance
w/ the provisions of Article 70.

TOLENTINO:
What Properties Answerable.-- The
order of liability for family support of the
different properties of the marriage is:
first, the community prop., then the income
of the spouses or fruits of their separate
properties,
&
finally,
the
separate
properties of the spouses. The liability of
the spouses for the support of the family
being joint, this may mean that they
contribute equally, regardless of the value
of the respective properties of the spouses.
However, this would not be equitable. The
better rule seems to be that the
contribution should be proportionate to the
properties of the spouses.
Management of Household.-- In view of
the silence of the law on how the
disagreement bet. the spouses in the
management of the household shall be
settled, the custom should be observed, &
the wife's position should be given priority.
Art. 72.
When one of the spouses
neglects his or her duties to the conjugal
union or commits acts w/c tend to bring
danger, dishonor or injury to the other or to
the family, the aggrieved party may apply
to the court for relief.

Tolentino:
What Relief May Be Granted.-- Under the
NCC, when one party applies for relief bec.
of the acts or negligence of the other
spouse, "the court may counsel the
offender to comply w/ his or her duties, &
take such measures as may be proper."
Notw/standing this omission in the FC, we
believe that the court has full freedom to
determine the kind of relief that may be
given. The relief, however, must be lawful.

Art. 73.
Either spouse may exercise
any legitimate profession, occupation,
business or activity w/o the consent of the
other. The latter may object only on valid,
serious, & moral grounds.
82

In case of disagreement, the court shall


decide whether or not:
(1) The objection is proper, &
(2) Benefit has accrued to the family prior
to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting
obligation shall be enforced against the
community property. If the benefit accrued
thereafter, such obligation shall be enforced
against the separate property of the spouse
who has not obtained consent.
The foregoing provisions shall not
prejudice the rights of creditors who acted in
good faith. (words in italics were omitted in
the text that Malacaang released.)

TOLENTINO:
Disposition of Products of Activity.-May the husband or wife engaged in a
profession or business freely dispose of the
products of such activity?
A distinction
should be observed.
If the disposition is in the course of
the professional or commercial activity, the
spouse should be free to dispose of the
products of such activity. xxx But if the
funds will be used to buy real estate, then the
spouse should act jointly, if the property
regime of the marriage is absolute
community or conjugal partnership of gains,
bec. such funds are common prop. of the
marriage.
B.
OBLIGATION
TOGETHER

TO

LIVE

ARROYO VS. ARROYO [42 P 54 (1921)]


Facts: In 1920, Dolores Arroyo left the
conjugal home. After Marianos unsuccessful
efforts to induce her to resume marital
relations, he initiated this action to compel
her to return to the matrimonial home & live
w/ him as a dutiful wife. The wife admitted
the fact of marriage & that she had left w/o
her husbands consent, but averred as a
defense that she had been compelled to
leave by her husbands cruel treatment of
her.
Issue: WON court can compel cohabitation

Held: Youre kidding, right? It is not w/in


the province of the courts to compel one of
the spouses to cohabit w/ & render
conjugal rights to the other. Where the
property rights a spouse are invaded, an
action for restitution of such rights can be
maintained. But SC is disinclined to
sanction the doctrine that an order,
enforceable by process of contempt, may
be entered to compel the restitution of the
purely personal rights of consortium. At
best, an order can be effective to compel
the spouses to live under the same roof;
however, the experience of countries
where courts compelled the cohabitation of
married people shows that the policy of the
practice is extremely questionable.
As
such, the only remedy the husband is
entitled to is a judicial declaration that his
wife has absented herself w/o sufficient
cause. She is admonished that it is her
duty to return.
PEREZ VS. PEREZ [109 P 656 (1960)]
Facts: Antonio Perez, on his own behalf &
as guardian ad litem of his adoptive son,
Benigno, filed a civil case against Angela
Tuason de Perez, his wife & Benigno's
mother founded on 3 causes of action. The
1st & 2nd causes alleged that Angela was
squandering her estate, & the CPG,
respectively on Jose Boloix, & that she
should be placed under guardianship due
to her prodigality. In the 3rd COA, Antonio
asked for P185th in damages bec. the wife
kept threatening to have a child by another
man just so she could put Antonio in an
embarrassing position. Angela filed a MTD.
Trial court dismissed the case on the
ground that it lacked jurisdiction over the
subject matter bec. only the Domestic
Relations Court had jurisdiction over COA's
falling under Art. 116CC.
Issue: WON injury as used in Art. 116 CC
(now Art. 72 FC) refers to economic
damage
Held: No. "Material injury" as used in Art.
116 (now Art. 72 FC) does not refer to
patrimonial (economic) injury or damage,
but to personal (i.e., physical or moral)
injury to one of the spouses, since Art. 116
lies in the chapter concerning personal
relations between husband & wife.
However, TC was correct: this COA is
primarily predicated on the grant of
83

guardianship due to the alleged prodigality of


the wife, since that allegation is reiterated &
the remedy of injunction sought against
further or future acts of disposition (no
annulment of her past transactions is
demanded) must be based on the wife's
being subject to guardianship.
Thus, all
COA's in Antonios complaint were exclusively
cognizable by the Domestic Relations Court
at that time.
V.
PROPERTY
RELATIONS
BETWEEN HUSBAND AND WIFE
A. IN GENERAL

Art. 74. The property relations between


husband & wife shall be governed in the
following order:
(1) By marriage settlements executed
before the marriage;
(2) By the provisions of this Code; &
(3) By the local customs.
Tolentino:
A marriage settlement is a contract executed
before the marriage, between the intended
husband & wife, by w/c the enjoyment or
devolution of property is regulated. It is also
called an ante-nuptial contract.
Balane:
The husband & wife can agree on anything
they want.
This follows the principle of
autonomy of contract. Note the order given
in Art 74: (1) the marriage settlement; (2)
the provisions of the Family Code; (3) local
custom.
In the absence of a marriage
settlement,
or
when
such
marriage
settlement is void, the ACP regime governs.
An exception to the immediately
preceding rule is when the 1st marriage is
dissolved by reason of death, & the 2nd
marriage was entered into before the
liquidation of the 1st....the Code requires a
mandatory separation of property (130(3))
All modifications to the marriage
settlement must be made before the
marriage is celebrated, except: Art. 66, 67,
128, 135 & 136.

General
rule:
once
marriage
is
celebrated, there is already a property
regime & this cannot be changed:
Except:
legal separation (ACP/CPG is dissolved)
revival of former property regime upon
reconciliation
petition of one spouse for separation in
case of abandonment or failure to
comply w/ marital obligations
judicial dissolution of regime: joint petition
or petition by one spouse for cause.
(Art 135/136)
Art. 75. The future spouses may, in the
marriage settlements, agree upon the
regime of absolute community, conjugal
partnership of gains, complete separation
of property, or any other regime. In the
absence of marriage settlements, or when
the regime agreed upon is void, the system
of absolute community of property as
established in this Code shall govern.
Property regimes w/c may govern:
1.Absolute Community of Property
2.Conjugal Partnership of Gains
3.Separattion of Property
4.If that agreed upon is void, or if none
agreed on, then ACP
Art. 76. In order that any modification
in the marriage settlements may be valid,
it must be made before the celebration of
the marriage, subject to the provisions of
Articles 66, 67, 128, 135 & 136.
Art. 66. The reconciliation referred to in
the preceding Article shall have the
following consequences:
(1) The legal separation proceedings, if
still pending, shall thereby be terminated at
whatever stage; &
(2) The final decree of legal separation
shall be set aside, but the separation of
property & any forfeiture of the share of
the guilty spouse already effected shall
subsist, unless the spouses agree to revive
their former property regime.

84

The court order containing the foregoing


shall be recorded in the proper civil registries.
Art. 67. The agreement to revive the
former property regime referred to in the
preceding Article shall be executed under
oath & shall specify:
(1) The properties to be contributed anew
to the restored regime;
(2) Those to be retained as separated
properties of each spouse; &
(3) The names of all their known
creditors, their addresses & the amounts
owing to each.
The agreement of revival & the motion for
its approval shall be filed w/ the court in the
same proceeding for legal separation, w/
copies of both furnished to the creditors
named therein. After due hearing, the court
shall, in its order, take measures to protect
the interest of creditors & such order shall be
recorded in the proper registries of
properties.
The recording of the order in the
registries of property shall not prejudice any
creditor not listed or not notified, unless the
debtor-spouse
has
sufficient
separate
properties to satisfy the creditor's claim.
Art. 128. If a spouse w/o just cause
abandons the other or fails to comply w/ his
or her obligations to the family, the aggrieved
spouse
may
petition
the
court
for
receivership, for judicial separation of
property, or for authority to be the sole
administrator of the conjugal partnership
property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in
the preceding paragraph refer to marital,
parental or property relations.
A spouse is deemed to have abandoned
the other when he or she has left the
conjugal dwelling w/o intention of returning.
The spouse who has left the conjugal dwelling
for a period of three months or has failed w/in
the same period to give any information as to
his or her whereabouts shall be prima facie
presumed to have no intention of returning to
the conjugal dwelling.

Art. 135. Any of the following shall be


considered sufficient cause for judicial
separation of property:
(1) That the spouse of the petitioner
has been sentenced to a penalty w/c
carries w/ it civil interdiction;
(2) That the spouse of the petitioner
has been judicially declared an absentee;
(3) That the loss of parental authority of
the spouse of the petitioner has been
decreed by the court;
(4) That the spouse of the petitioner
has abandoned the latter or failed to
comply w/ his or her obligations to the
family as provided for in Article 101.
(5) That the spouse granted the power
of
administration
in
the
marriage
settlements has abused that power; &
(6) That at the time of the petition, the
spouses have been separated in fact for at
least one year & reconciliation is highly
improbable.
In the cases provided for in Numbers
(1), (2) & (3), the presentation of the final
judgment against the guilty or absent
spouse shall be enough basis for the grant
of the decree of judicial separation of
property.
Art. 136. The spouses may jointly file a
verified petition w/ the court for the
voluntary dissolution of the absolute
community or the conjugal partnership of
gains, & for the separation of their common
properties.
All creditors of the absolute community
or of the conjugal partnership of gains, as
well as the personal creditors of the
spouse, shall be listed in the petition
notified of the filing thereof. The court shall
take measures to protect the creditors &
other persons w/ pecuniary interest.

Tolentino:
Rule:
Whatever regime of property
relation that the spouses may adopt is
unchangeable & cannot be altered, once
the marriage has been celebrated. Spouses
cannot even abandon the agreement made
in the marriage settlement & substitute the
regime of ACP bec. such is only suppletory
in character, to be applied when there is no
agreement in a marriage settlement.
85

Exception: In the case of judicial separation


during the marriage.
Art. 77. The marriage settlements & any
modification thereof shall be in writing,
signed by the parties & executed before the
celebration of the marriage. They shall not
prejudice third persons unless they are
registered in the local civil registry where the
marriage contract is recorded as well as in
the proper registries of property.
Baviera:
Marriage
settlement/
modification
1. in writing
2. signed by the parties
3. executed before the marriage
4. not prejudice 3Ps unless registered

affidavit, if one is executed instead, shall


be attached to said applications.

Re: Title IX (Parental Authority)


Balane:
The rule here remains unchanged
by R.A. 6809...a minor between 18-21 can
enter into a marriage settlement but the
parents or guardians must sign (not
enough that they simply give their consent;
signing indispensable).
A creditor is entitled to assume that
the property regime is ACP if the marriage
settlement is not recorded...except where
the creditor had actual knowledge.
Tolentino:

Balane:

Persons who must sign (in order)-

Formal
requirement
of
a
marriage
settlement:
in writing
in a public or private instrument
to bind third persons, it must be
recorded in the registry of
property.

1. Father
2. Mother
3. Surviving Parent or Guardian
4. Person w/ legal charge of them

Art. 78. A minor who according to law


may contract marriage may also enter into
marriage settlements, but they shall be valid
only if the persons designated in Article 14 to
give consent to the marriage are made
parties to the agreement, subject to the
provisions of Title IX of this Code.
Art. 14. In case either or both of the
contracting parties, not having been
emancipated by a previous marriage, are
between the ages of 18 & 21, they shall, in
addition to the requirements of the preceding
articles, exhibit to the local civil registrar, the
consent to their marriage of their father,
mother, surviving parent or guardian, or
persons having legal charge of them, in the
order mentioned. Such consent shall be
manifested in writing by the interested party,
who personally appears before the proper
local civil registrar, or in the form of an
affidavit made in the presence of two
witnesses & attested before any official
authorized by law to administer oaths. The
personal manifestation shall be recorded in
both applications for marriage license, & the

Art. 79.
For the validity of any
marriage settlements executed by a person
upon whom a sentence of civil interdiction
has been pronounced or who is subject to
any
other
disability,
it
shall
be
indispensable for the guardian appointed
by a competent court to be made a party
thereto.
Art. 80. In the absence of a contrary
stipulation in a marriage settlements, the
property relations of the spouses shall be
governed by Philippine laws, regardless of
the place of the celebration of the marriage
& their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity
of contracts affecting property not situated
in the Philippines & executed in the country
where the property is located; &;
(LEX SITUS- contract - abroad - property
- abroad)
(3) With respect to the extrinsic validity
of contracts entered into in the Philippines
86

but affecting property situated in a foreign


country whose laws require different
formalities for their extrinsic validity.

Art. 81...Void
Art. 86...revocable
If the marriage is not celebrated,
the DPN should be void.
Donation Propter Nuptias (requisites)

Balane:
Does this article imply that the couple can
validly stipulate that a foreign law shall
govern their relation?

made before marriage


in consideration of marriage -consideration
must be understood in layman's terms,
i.e. what motivates one to make the
donation.
in favor of one or both of the betrothed.

Art. 80(3) seems inconsistent w/ Art. 17 (1)


NCC....Balane believes that this article (80(3))
should be suppressed.

Recipient may be one or both of the


betrothed
Donor can be anybody.

Tolentino:

Tolentino:

When the spouses are both Filipinos, or when


one is a Filipino & the other is a foreigner,
their property relations shall be governed by:

The marriage settlement is an accessory


contract dependent for its existence upon
the marriage; thus, if the marriage does
not exist, the terms of the marriage
settlement cannot subsist.

Their marriage settlement where they


may stipulate what laws shall
govern their property relations;
If there is no such stipulation, the laws
of the Philippines
shall apply
regardless of where they live &
where the marriage is celebrated.
However, the laws of the Philippines
will not apply w/ respect to property located
in a foreign country, whether the marriage
settlement is entered into in the Philippines
or in the country where the property is
located. Art. 16, NCC: real property as well
as personal property is subject to the law of
the country where it is stipulated.
Art. 81. Everything stipulated in the
settlements or contracts referred to in the
preceding articles in consideration of a future
marriage, including donations between the
prospective spouses made therein, shall be
rendered void if the marriage does not take
place.
However, stipulations that do not depend
upon the celebration of the marriage shall be
valid.

B.
CAPACITY
TO
EXECUTE
MARRIAGE SETTLEMENT
MINOR

Art. 78. A minor who according to law


may contract marriage may also enter into
marriage settlements, but they shall be
valid only if the persons designated in
Article 14 to give consent to the marriage
are made parties to the agreement, subject
to the provisions of Title IX of this Code.

Baviera:
Art. 14 - father, mother, surviving
parent or guardian, or persons having
legal charge of them, in the order
mentioned.
Title IX - Parental authority

CIVIL INTERDICTION
Balane:
This article is inconsistent w/ Art. 86(1)
Suppose that donation propter nuptias
are made but the marriage is not
celebrated...what happens to the donations?

Art. 79.
For the validity of any
marriage settlements executed by a person
upon whom a sentence of civil interdiction
has been pronounced or who is subject to
any
other
disability,
it
shall
be
87

indispensable for the guardian appointed by


a competent court to be made a party thereto.

C. FORMALITY

F. DONATIONS BY REASON OF
MARRIAGE

Art. 76. In order that any modification in


the marriage settlements may be valid, it
must be made before the celebration of the
marriage, subject to the provisions of Articles
66, 67, 128, 135, & 136.
Art. 77. The marriage settlements & any
modification thereof shall be in writing,
signed by the parties, & executed before the
celebration of the marriage. They shall not
prejudice third persons unless they are
registered in the local civil registry where the
marriage contract is recorded as well as in
the proper registries of property.

D. CONFLICT OF LAW

1. Before the celebration of marriage


2. In consideration of marriage
3. In favor of one or both of the future
spouses
1. NATURE
Art. 82. Donations by reason of
marriage are those w/c are made before its
celebration, in consideration of the same, &
in favor of one or both of the future
spouses.
Tolentino:

Art. 80. In the absence if a contrary


stipulation in a marriage settlement, the
property relations of the spouses shall be
governed by Philippine laws, regardless of the
place of the celebration of the marriage &
their residence.

The marriage is the very reason for


the existence of the donation; it is the
purpose & determining cause w/o w/c there
is no donation.
This article pertains to donation propter
nuptias, w/c excludes:
1. donations made in favor of the spouses
after the celebration of the marriage

This rule shall not apply:


(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of
contracts affecting property not situated in
the Philippines & executed in the country
where the property is located; &
(3) With respect to the extrinsic validity of
contracts entered into in the Philippines but
affecting properties situated in a foreign
country whose laws require different
formalities for their extrinsic validity.
E. EFFECT OF MARRIAGE
TAKING PLACE

rendered void if the marriage does not take


place. However, stipulations that do not
depend upon the celebration of the
marriage shall be valid.

NOT

Art. 81.
Everything stipulated in the
settlements or contracts referred to in the
preceding articles in consideration of a future
marriage, including donations between the
prospective spouses made therein, shall be

2. donations in favor of future spouses,


made before the celebration of the
marriage, but not in consideration of the
marriage
3. donations made in favor of persons other
than the spouses, even though they may
be founded on the marriage.
Such donations are governed by the
provisions on ordinary donations.
Donations in consideration of marriage
may be given:
1.by the spouses to each other
2.by the parents to one or both of the
spouses
3. by third persons to either or both of the
spouses

88

2. FORM
SERRANO V. SOLOMON
Facts: Before the marriage, the future
husband, Melchor Solomon, executed a purported donation propter nuptias w/c provides
that (1) he donates all his properties to his
future children, if any; or (2) if there are none
& he dies before his wife, one-half of his
properties & those acquired during the
marriage shall go to his brothers & sisters; or
(3) if there are no children & his wife dies
before him, one half of all his properties &
those acquired during the marriage shall go
TO THOSE WHO REARED HIS WIFE (plaintiff).
His wife, Alejandra, predeceased him, dying
w/o issue.
Estanislao Serrano, who had
reared Alejandra, filed an action to enforce
the donation. CFI declared the donation null
& void.
Issue: WoN this was a donation proper
nuptias & if so, WoN it was a valid donation
Held: There is no valid donation propter
nuptias. While the donation was made before
the marriage, it was not made in consideration of marriage, bec. marriage was not the
only consideration for the donation since
other conditions were imposed. The marriage
would have to be childless & one of the
spouses would have to die before the other
before the donation would operate. And even
if in consideration of the marriage, it was not
in favor of one or both of the spouses, but IN
FAVOR OF 3rd PERSONS or persons other
than the spouses.

Art. 83. These donations are governed


by the rules on ordinary donations
established in Title III of Book III of the Civil
Code, insofar as they are not modified by
the following articles.

Tolentino:
The principal modifications under the
Family Code of the general rules on
donations are:
Donations propter nuptias do not require
express acceptance by the donee.
If made by minors (below 21), they must
be w/ the consent of those required to give
consent to the marriage.
They cannot exceed 1/5 of the present
property of the donor, when made by the
future spouses to each other.
They can include future property.
They are not revoked by the subsequent
birth or appearance of children.
They are revoked by the non-performance
of the marriage & other causes under Art.
86, FC.
Art. 84.
If the future spouses agree
upon a regime other than the absolute
community of property, they cannot donate
to each other in their marriage settlements
more than one-fifth (1/5) of their present
property. Any excess shall be considered
void.

It is not a valid donation inter vivos


bec. it was not accepted by the donee in the
same or a different instrument. It is not a
donation mortis causa bec. it did not comply
w/ the formalities of wills. Hence, the
donation is void.

Donations of future property shall be


governed
by
the
provisions
on
testamentary succession & the formalities
of wills.

Art. 85. Donations by reason of marriage


of property subject to encumbrances shall be
valid. In case of foreclosure of the
encumbrance & the property is sold for less
than the total amount of the obligation
secured, the donee shall not be liable for the
deficiency. If the property is sold for more
than the total amount of said obligation, the
donee shall be entitled to the excess.

An
oral
donation
requires
the
simultaneous delivery of the thing or of the
document representing the right donated.

Art. 748. The donation of a movable


may be made orally or in writing.

If the value of the personal property


donated exceeds five thousand pesos
(P5,000), the donation & the acceptance
shall be made in writing. Otherwise, the
donation shall be void. (Civil Code.)
Art. 749. In order that the donation of
an immovable may be valid, it must be
89

made in a public document, specifying


therein the property donated & the value of
the charges w/c the donee must satisfy.
The acceptance may be made in the
same deed of donation or in a separate public
document, but it shall not take effect unless it
is done during the lifetime of the donor.
If the acceptance is made in a separate
instrument, the donor shall be notified
thereof in an authentic form, & this step shall
be noted in both instruments.

Balane:
This article applies only if the
regime agreed upon is one other than the
ACP. If the regime is ACP, there is really no
sense in making DPN's to each other, bec.
DPN's made between the two become
community property. In a CPG & a regime of
Absolute Separation, DPN's made are not
communalized.
The ordinary limitations to donations apply.
i.e. one cannot donate all of his/her property,
leaving nothing to him/herself.
With regard to future property, a donation
may be made only by will, & only as to the
disposable portion.
3.

DISTINGUISHED
INTER VIVOS
A.

FR.

DONATIONS

CONSIDERATION & DONEE

Art. 87. Every donation or grant of


gratuitous advantage, direct or indirect,
between the spouses during the marriage
shall be void, except moderate gifts w/c the
spouses may give each other on the occasion
of any family rejoicing. The prohibition shall
also apply to persons living together as
husband & wife w/o a valid marriage.

Balane:
This article does not refer to
donation propter nuptias.
Tolentino:
The basis of this provision is the
principle of unity of personality of the
spouses during the marriage, & is intended to
avoid possible transfer of property fr. one
spouse to the other due to passion or avarice.
It also applies to the parties in what
are called common law marriages;
otherwise, the condition of those who

incurred guilt would turn out to be better


than those in legal union.
Rule: Donations made by one spouse to
the other during the marriage are patent
nullity.
Exception: Gifts of moderate value.
To determine this, consider the social
position of the family, its usages or
customs, & other circumstances of the
parties.
Art. 82. Donations by reason of
marriage are those w/c are made before its
celebration, in consideration of the same, &
in favor of one or both of the future
spouses.

NAZARENO V. BIROG
Facts: Juan Abeno was married to Andrea
Rodriguez. They had a daughter, Alberia,
the mother of Bonifacio. When Juan died,
Andrea married Cirilo Braganza. they did
not have any children but their grandson
Bonifacio lived w/ them.
Braganza
executed a deed of donation of a parcel of
land in favor of Bonifacio, who was then a
minor.
Donation was accepted by his
parents.
However, Cirilo remained in
possession of the land, & later sold
different portions to Ariola & Birog.
Bonifacio filed an action to recover said
property.
Issue:
Won Bonifacio has a cause of
action against them
Held.
NONE.
A donation made to a
grandchild of a wife by a previous marriage
falls under the prohibition Article 133 of the
Civil Code (Art. 87, FC). Said prohibition
applies notw/standing the fact that the
provision mentions only legitimate children.
(9 Manresa 236).
MATABUENA V. CERVANTES
Facts: Felix Matabuena & Petronila
Cervantes lived as common law spouses
During said relationship, Matabuena made
a donation inter vivos of a parcel of land in
favor of Cervantes. Six years later, they
were legally married. Matabuena died. His
sister, Cornelia, filed an action to recover
the land, claiming the donation made in
90

favor of Cervantes was void under Art. 133 of


the NCC, w/c prohibits donations made
between the spouses during the marriage,
except donations mortis causa & moderate
gifts. LC for Cervantes.
Issue: WoN the prohibition against donation
inter vivos between the spouses during the
marriage
applies
to
common
law
relationships?
Held: YES. Art. 133 of the Civil Code (Art. 87
FC) considers as void a "donation between
the spouses during the marriage". Policy
considerations of the most exigent character
as well as the dictates of morality require that
the same prohibition should apply to a
common-law
relationship.
Citing
Buenaventura v. Bautista, if the policy of the
law is to prohibit donations in favor of the
other consort & his descendants bec. of fear
of undue & improper pressure & influence
upon the donor, a prejudice deeply rooted in
our ancient law, then there is every reason to
apply the same prohibitive policy to persons
living together as husband & wife w/o the
benefit of nuptials. For it is not to be doubted
that assent to such irregular connection for
thirty years bespeaks greater influence of
one party over the other, so that the danger
that the law seeks to avoid is correspondingly
increased. Moreover, it would not be just that
such donation should subsist, lest the
condition of those who incurred guilt should
turn out to be better. So long as marriage
remains the cornerstone of our family law,
reason & morality alike demand that the
disabilities attached to marriage should
likewise attach to concubinage.
B.

REVOCATION

Art. 765.
The donation may also be
revoked at the instance of the donor, by
reason of ingratitude in the following cases:
(1) If the donee should commit some
offense against the person, honor or the
property of the donor, or of his wife or
children under his parental authority;
(2) If the donee imputes to the donor any
criminal offense, or any act involving moral
turpitude, even though he should prove it,
unless the crime or the act has been
committed against the donee himself, his
wife or children under his authority;

(3) If he unduly refuses to give him


support when the donee is legally or
morally bound to give support to the donor.
Balane: For acts of ingratitude, refer to
Art. 765 of the NCC.
Art. 760.
Every donation inter vivos,
made by a person having no children or
descendants, legitimate or legitimated by
subsequent marriage, or illegitimate, may
be revoked or reduced as provided in the
next article, by the happening of any of
these events:
(1) If the donor, after the donation,
should have legitimate or legitimated or
illegitimate children, even though they be
posthumous;
(2) If the child of the donor, whom the
latter believed to be dead when he made
the donation, should turn out to be living;
(3) If the donor should subsequently
adopt a minor child. (Civil Code.)
Art. 86.
A donation by reason of
marriage may be revoked by the donor in
the following cases:
(1) If the marriage is not celebrated or
judicially declared void ab initio except
donations
made
in
the
marriage
settlements, w/c shall be governed by
Article 81;
Art. 81. Everything stipulated in the
settlements or contracts referred to in the
preceding articles in consideration of a
future
marriage,
including
donations
between the prospective spouses made
therein, shall be rendered void if the
marriage does not take place. However,
stipulations that do not depend upon the
celebration of the marriage shall be valid.
(2) When the marriage takes place w/o
the consent of the parents or guardian as
required by law;
(3) When the marriage is annulled, &
the donee acted in bad faith;
(4) Upon legal separation, the donee
being the guilty spouse;
(5) If it is w/ a resolutory condition &
the condition is complied w/;
(6) When the donee has committed an
act of ingratitude as specified by the
91

provisions of the Civil Code on donations in


general.
Art. 43. The termination of the
subsequent marriage referred to in the
preceding Article (Marriage after declaration
of presumptive death of absent spouse) shall
produce the following effects:
xxx
(3) Donations by reason of marriage shall
remain valid, except that if the donee
contracted the marriage in bad faith, such
donations made to said donee are revoked by
operation of law.
Art. 50.
The effects provided for by
paragraphs (2), (3), (4), & (5) of Article 43, &
44 shall also apply in the proper cases to
marriages w/c are declared void ab initio or
annulled by final judgment under Articles 40
& 45.
The final judgment in such cases shall
provide for the liquidation, partition & distribution of the properties of the spouses, the
custody & support of the common children, &
the delivery of their presumptive legitimes,
unless such matters had been adjudicated in
previous judicial proceedings.
All creditors of the spouses as well as
of the absolute community or the conjugal
partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling
& the lot on w/c it is situated, shall be
adjudicated in accordance w/ the provisions
of Articles 102 & 129.

Baviera: Art. 86 FC compared to Art. 43


FC
Even if marriage does not take place,
can be revoked
Need for action to revoke bec. the law
says "may"
If in bad faith, no need for action to
revoke, Art. 60 FC, by operation o law.

SOLIS V. BARROSO
Facts:
Juan Lambino & Maxima Barroso
made a donation propter nuptias of some
lands in favor of their son Alejo Lambino &
Fortunata Solis, in a private document, in
consideration of their marriage. One of the
conditions is that in case of death of one of

the donees, 1/2 of those lands would revert


to the doors while the surviving donee
would retain the other half.
The two
eventually got married, & the donors
delivered the possession of the land to
them. Later, Alejo died. In the same year,
Juan died, after w/c Maxima recovered
possession of the donated lands. Solis filed
an action against Barroso, demanding that
she execute the proper deed of donation &
transfer 1/2 of the property. LC for plaintiff.
Issue: Can Fortunata compel the execution
of the said deed?
Held: NO. A donation propter nuptias of
lands in a private instrument is not valid
bec. the law requires donations of real
property to be made in a public instrument.
A donation propter nuptias is not onerous &
thus must necessarily be contained in a
public instrument. While the marriage is
indeed its consideration it is not so in the
sense of being necessary to give birth to
the obligation. In fact, a donation propter
nuptias remains valid even if the marriage
does not take place, provided it is not
revoked w/in the period allowed by law. The
marriage in donation propter nuptias is
rather a resolutory condition w/c, as such,
presupposes the existence of the birth of
the obligation.
The only exceptions to the rule
requiring the donation to be contained in a
public document are:
1) onerous &
remuneratory donations insofar as they do
not exceed the value of the charge
imposed, & 2) those w/c are to take effect
upon the donors death, w/c are governed
by the rules on testamentary succession.
C.

EXTENT

OF

PROPERTY DONATED

Art. 752. The provisions of article 750


notw/standing, no person may give or
receive, by way of donation, more than he
may give or receive by will.
The donation shall be inofficious in all
that it may exceed this limitation. (Civil
Code.)

Baviera:
92

as to spouses, not > 1/5 of present


property
as to 3Ps, not limit provided not
officious (Art. 750 CC)
donee beware that donation revocable!

Art. 750. The donation may comprehend


all the present property of the donor, or part
thereof, provided he reserves, in full
ownership or in usufruct, sufficient means for
the support of himself, & of all relatives who,
at the time of the acceptance of the
donation, are by law entitled to be supported
by the donor. Without such reservation, the
donation shall be reduced on petition of any
person affected.
Art. 751. Donations cannot comprehend
future property.
By future property is understood anything
w/c the donor cannot dispose of at the time
of the donation.
Art. 1070. Wedding gifts by parents &
ascendants consisting of jewelry, clothing, &
outfit, shall not be reduced as inofficious
except insofar as they may exceed one-tenth
of the sum w/c is disposable by will.
Art. 84. If the future spouses agree upon a
regime other than the absolute community of
property, they cannot donate to each other in
their marriage settlements more than onefifth of their present property. Any excess
shall be considered void.
Donations of future property shall be
governed by the provisions on testamentary
succession & the formalities of wills.

MATEO V. LAGUA
Facts: Souses Cipriano & Alejandra Lagua
donated 2 lots to their son Alejandro in
consideration of the latters marriage to
Bonifacia Mateo. Alejandra later died, &
Bonifacia lived w/ her in-laws, who cultivated
said lots. Bonifacia was given the owners
share of the harvest until 1956. Said lots
were later sold by Cipriano to his younger son
Gervacio. Bonifacia sued the spouses. LC
declared the sale null & void. Cipriano &
Gervacio also filed suit for the annulment of

the donation on the ground that it


prejudiced the legitime of Gervacio. LC
dismissed the suit on the ground of
prescription. CA reversed, but merely
reduced the donation.
Issue: WoN the donation propter nuptias
may be reduced for being inofficious/
Held: YES. A donation propter nuptias
may be revoked for being inofficious. It is
wrong to say that a donation propter
nuptias has an onerous consideration, the
marriage in this case being merely the
occasion or motive, not the causa. Being
liberalities,
they remain
subject to
reduction for being inofficious upon the donor's death if it infringes on the legitime of
any of the donor's heirs. The donation in
this case was not annulled in its entirety,
but only to the extent that it infringed on
the legitime of the donor's heir.
Note that under Art 43(3), a
donation is revoked by operation of law,
under the circumstances therein provided.
However, Art. 86(1) provides that any
revocation in elective, not automatic.
G. ABSOLUTE COMMUNITY
Tolentino:
Under this regime, the husband & the
wife are joint owners of all the
properties of the marriage.
The
properties w/c each spouse brings
into the marriage, & those w/c they
acquire during the marriage, all form
a
common
mass,
w/c,
after
dissolution of the marriage or of the
community, is divided between the
spouses, or their respective heirs,
equally or in proportion the parties
have establish4ed, irrespective of the
value each one may have originally
owned.
When commences
Art. 88. The absolute community of
property between spouses shall commence
at the precise moment that the marriage is
celebrated. Any stipulation, express or
implied, for the commencement of the
93

community regime at any other time shall be


void.

Balane:
There is ACP when:
-there is no marriage settlement
-there is a marriage settlement & the
parties agree on ACP
-the marriage settlement is void.
Importance: see Art. 92 (1)
Tolentino:
The property regime of the
spouses commences at the precise moment
(not the date) the marriage is celebrated.
Waiver not allowed
Art. 89. No waiver of rights, interests,
shares & effects of the absolute community
of property during the marriage can be made
except in case of judicial separation of
property.
When the waiver takes place upon a
judicial separation of property, or after the
marriage has been dissolved or annulled, the
same shall appear in a public instrument &
shall be recorded as provided in Article 77.
Art. 77. The marriage settlements & any
modification thereof shall be in writing,
signed by the parties & executed before the
celebration of the marriage. They shall not
prejudice third persons unless they are
registered in the local civil registry where the
marriage contract is recorded as well as in
the proper registries of property.
The creditors of the spouse who made
such waiver may petition the court to rescind
the waiver to the extent of the amount
sufficient to cover the amount of their credits.

Tolentino:
The article limits itself to prohibiting the
waiver of the benefits of such community.
Such waiver may be made by a spouse in
favor of a particular person, in w/c case there
is an assignment of rights; or it may be made
in general terms, in w/c case the share
renounced accrues to the other spouse or his
heirs. The renunciation, however, does not
deprive the spouse renouncing of his right to
his separate property or capital, nor does it
relieve him of personal obligations.

Co-ownership
Art. 90. The provisions on co-ownership
shall apply to the absolute community of
property between the spouses in all
matters not provided for in this Chapter.

What Constitutes Community Property


Art. 91. Unless otherwise provided in
this
Chapter
or
in
the
marriage
settlements, the community property shall
consist of all the property owned by the
spouses at the time of the celebration of
the marriage or acquired thereafter.

Tolentino:
The patrimony of either spouse
existing at the time of the marriage is
automatically
converted
into
common property, w/o the necessity
of any juridical act transmitting
ownership of the individual objects.
Exceptions
Art. 92. The following shall be excluded
fr. the community property:
(1) Property acquired during the
marriage by gratuitous title by either
spouse, & the fruits as well as the income
thereof, if any, unless it is expressly
provided by the donor, testator or grantor
that they shall form part of the community
property;
(2) Property, for personal & exclusive
use of either spouse. However, jewelry
shall form part of the community property;
(3) Property acquired before the
marriage by either spouse who has
legitimate descendants [under CC children
only,
but
JBL
loved
his
grandchildren] by a former marriage, & the
fruits as well as the income, if any, of such
property.

Baviera: Relate to Art. 51 & 53

94

Balane:
Suppose A & B married under the Family
Code. A inherited fr. his father before the
marriage & this becomes community
property. If A inherits fr. his mother during the
marriage, this becomes paraphernal property.
The fruits of separate property remain
separate under the ACP but become
community property under the CPG.
The following example illustrates an instance
where the CPG regime is stricter:
A marries B (ACP). They bring nothing
into the marriage. All that they inherit, they
get during the marriage. The property thus
inherited is separate, & the fruits thereof are
likewise separate.
Given the same set of facts, except
that the governing regime is CPG, what the
spouses inherit during the marriage is
separate, but the fruits are communalized. It
is in this sense that the CPG regime is stricter.
Tolentino: The properties mentioned under
this article are known as reserved property.
Absent any agreement excluding certain
properties, all the patrimony of the spouses
are reserved.
Presumption
Art. 93. Property acquired during the
marriage is presumed to belong to the
community, unless it is proved that it is one
of those excluded therefr.

Charges Upon & Obligations


Absolute Community
Art. 94. The absolute
property shall be liable for:

of

the

community of

(1) The support of the spouses, their


common children, & legitimate children of
either spouse; however, the support of
illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts & obligations contracted
during the marriage by the designated
administrator- spouse for the benefit of the
community, or by both spouses, or by one
spouse w/ the consent of the other;
(3) Debts & obligations contracted by
either spouse w/o the consent of the other to
the extent that the family may have been
benefited;

(4) All taxes, liens, charges & expenses,


including major or minor repairs, upon the
community property;
(5) All taxes & expenses for mere
preservation made during marriage upon
the separate property of either spouse
used by the family;
(6) Expenses to enable either spouse to
commence or complete a professional or
vocational course, or other activity for selfimprovement;
(7) Ante-nuptial debts of either spouse
insofar as they have redounded to the
benefit of the family;
(8) The value of what is donated or
promised by both spouses in favor of their
common legitimate children for the
exclusive purpose of commencing or
completing a professional or vocational
course
or
other
activity
for
selfimprovement;
(9) Antenuptial debts of either spouse
other than those falling under paragraph
(7) of this Article, the support of illegitimate
children of either spouse, & liabilities
incurred by either spouse by reason of a
crime or a quasi-delict, in case of absence
or insufficiency of the exclusive property of
the debtor-spouse, the payment of w/c
shall be considered as advances to be
deducted fr. the share of the debtor-spouse
upon liquidation of the community; &
(10) Expenses of litigation between the
spouses unless the suit is found to be
groundless.
If the community property is insufficient
to cover the foregoing liabilities, except
those falling under paragraph (9), the
spouses shall be solidarily liable for the
unpaid
balance
w/
their
separate
properties.

Balane:
Liabilities of the ACP.
94.1 in case of illegitimate children of
either spouse, the community is only
subsidiarily liable.
94.2 all that is required in this case is a
determination of the purpose of the
obligation contracted
Tolentino:
The ACP is liable for the
support of the spouses, their common
children, & legitimate children of either
spouse in a previous marriage.
95

LUZON SURETY V. DE GARCIA


Held: Any debt contracted by the husbandadministrator w/ the intention of binding the
community property, must redound to the
community property's benefit. Any obligation
incurred by the husband to be chargeable
against the community property, must be
incurred in the legitimate pursuit of his
career, profession, business, & w/ an honest
belief that he is doing right for the benefit of
the family.
GELANO V. C.A.
Held: It was an error for the court to hold the
spouses liable jointly & severally on an
obligation that redounded to the benefit of
the community. The community partnership,
as a single & separate entity, should be liable
for the obligation.
G-TRACTORS V. C.A.
Held: The
obligation
incurred
here
redounded to the benefit of the community
partnership, & thus was a partnership
obligation.
The land where the logging
concession was located belonged to the
family & not to the husband exclusively.
Furthermore, the obligation was incurred to
enhance
productivity for the logging
business, a commercial enterprise for gain,
w/c the husband, as administrator had every
right to enter into on behalf of the community
partnership. The realization of actual profits
& benefit on the part of the partnership is not
required, it being sufficient to show that the
transaction normally benefits the partnership.
Gambling
Art. 95. Whatever may be lost during the
marriage in any game of chance, betting,
sweepstakes, or any other kind of gambling,
whether permitted or prohibited by law, shall
be borne by the loser & shall not be charged
to the community but any winnings therefr.
shall form part of the community property.

Ownership, Administration, Enjoyment


&
Disposition
of
the
Community
Property

Art.
96.
The
administration
&
enjoyment of the community property shall
belong to both spouses jointly. In case of
disagreement, the husband's decision shall
prevail, subject to recourse to the court by
the wife for proper remedy, w/c must be
availed of w/in five years fr. the date of the
contract implementing such decision.
In the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
common properties, the other spouse may
assume sole powers of administration.
These powers do not include the powers of
disposition or encumbrance w/c must have
the authority of the court or the written
consent of the other spouse. In the
absence of such authority or consent, the
disposition or encumbrance shall be void.
However,
the
transaction
shall
be
construed as a continuing offer on the part
of the consenting spouse & the third
person, & may be perfected as a binding
contract upon the acceptance by the other
spouse or authorization by the court before
the offer is w/drawn by either or both
offerors.

Baviera:
ratified
weird

Better: unenforceable until


void tapos = continuing offer -

Balane:
Ownership, administration, enjoyment &
disposition of Community property-all
joint responsibility & right of both
spouses.
In case of a spouse's
unjustified refusal to give his/her
consent, the other may go to court.
There is no provision on alienation &
encumbrance but it is understood that
the same is included.
Art. 97. Either spouse may dispose by
will of his or her interest in the community
property.
Art. 98.
Neither spouse may donate
any community property w/o the consent of
the other. However, either spouse may, w/o
the consent of the other, make moderate
donations fr. the community property for
charity or on occasions of family rejoicing
or family distress.
96

Balane: All donations must be made jointly,


except moderate donations.
Dissolution of Absolute Comm Regime
Art. 99.
terminates:

The

absolute

community

(1) Upon the death of either spouse;


(2) When there is a decree of legal
separation;
(3) When the marriage is annulled or
declared void; or
(4) In case of judicial separation of
property during the marriage under Articles
134 to 138.
Art. 134. In the absence of an express
declaration in the marriage settlements, the
separation of property between spouses
during the marriage shall not take place
except by judicial order. Such judicial
separation of property may either be
voluntary or for sufficient cause.
Art. 135. Any of the following shall be
considered sufficient cause for judicial
separation of property:
(1) That the spouse of the petitioner has
been sentenced to a penalty w/c carries w/ it
civil interdiction;
(2) That the spouse of the petitioner has
been judicially declared an absentee;
(3) That loss of parental authority of the
spouse of petitioner has been decreed by the
court;
(4) That the spouse of the petitioner has
abandoned the latter or failed to comply w/
his or her obligations to the family as
provided for in Article 101;
Art. 101. If a spouse w/o just cause
abandons the other or fails to comply w/ his
or her obligations to the family, the aggrieved
spouse may petition the court for receivership, for judicial separation of property or for
authority to be the sole administrator of the
absolute community, subject to such
precautionary conditions as the court may
impose.
The obligations to the family mentioned in
the preceding paragraph refer to marital,
parental or property relations.

A spouse is deemed to have abandoned


the other when he or she has left the
conjugal
dwelling
w/o
intention
of
returning. The spouse who has left the
conjugal dwelling for a period of three
months or has failed w/in the same period
to give any information as to his or her
whereabouts
shall be prima facie
presumed to have no intention of returning
to the conjugal dwelling.
(5) That the spouse granted the power
of
administration
in
the
marriage
settlements has abused that power; &
(6) That at the time of the petition, the
spouses have been separated in fact for at
least one year & reconciliation is highly
improbable.
In the cases provided for in Numbers
(1), (2) & (3), the presentation of the final
judgment against the guilty or absent
spouse shall be enough basis for the grant
of the decree of judicial separation of
property.
Art. 136. The spouses may jointly file a
verified petition w/ the court for the
voluntary dissolution of the absolute
community or the conjugal partnership of
gains, & for the separation of their common
properties.
All creditors of the absolute community
or of the conjugal partnership of gains, as
well as the personal creditors of the
spouse, shall be listed in the petition
notified of the filing thereof. The court shall
take measures to protect the creditors &
other persons w/ pecuniary interest.
Art. 137. Once the separation of
property has been decreed, the absolute
community or the conjugal partnership of
gains shall be liquidated in conformity of
this Code.
During
the
pendency
of
the
proceedings for separation of property, the
absolute community or the conjugal
partnership shall pay for the support of the
spouses & their children.
Art. 138.
After dissolution of the
absolute community or of the conjugal

97

partnership, the provisions on


separation property shall apply.

complete

Balane:
Note that dissolution of the ACP is not
synonymous w/ dissolution of the marriage.
In cases involving 99.2 & 99.4, there is
dissolution of the ACP although the marriage
is not dissolved.
But dissolution of the marriage
automatically results in dissolution of the ACP.
Note that when a marriage is declared
as a nullity, there is no ACP to dissolve. The
dissolution in this case is governed by the
rules on co-ownership.
In case of liquidation, the following provisions
apply:
(1) dissolution under 99.1...Art 103 governs
liquidation
(2) dissolution under 99.2...Art 63 & 64 apply
(3) dissolution under 99.3...Art 50-52 apply
(4) dissolution under 99.4...Art 134-137 apply
Effect of separation in fact
Art. 100. The separation in fact between
husband & wife shall not affect the regime of
absolute community except that:
(1) The spouse who leaves the conjugal
home or refuses to live therein, w/o just
cause, shall not have the right to be
supported;
(2) When the consent of one spouse to
any transaction of the other is required by
law, judicial authorization shall be obtained in
a summary proceeding;
(added in FC)
(3) In the absence of sufficient community
property, the separate property of both
spouses shall be solidarily liable for the
support of the family. The spouse present
shall, upon proper petition in a summary
proceeding, be given judicial authority to
administer or encumber any specific
separate property of the other spouse & use
the fruits or proceeds thereof to satisfy the
latter's share.

Tolentino:
Separation in fact refers to the actual
definite separation of the
persons of
husband & wife, thereby terminating
cohabitation or common life under the
same roof, w/o judicial order. As a rule, the
ACP is not affected by such separation,
except as provided in this article. The
spouse who leaves the conjugal home w/o
justification, & refuses to return thereto,
loses his right to be supported by the other
spouse; but his obligation to support the
other is not extinguished. If there is no
one at fault, the obligation to support each
other & the common children continues.
Art. 101. If a spouse w/o just cause
abandons the other or fails to comply w/
his or her obligations to the family, the
aggrieved spouse may petition the court
for receivership, for judicial separation of
property or for authority to be the sole
administrator of the absolute community,
subject to such precautionary conditions as
the court may impose.
The obligations to the family mentioned
in the preceding paragraph refer to marital,
parental or property relations.
A spouse is deemed to have abandoned
the other when he or she has left the
conjugal
dwelling
w/o
intention
of
returning. The spouse who has left the
conjugal dwelling for a period of three
months or has failed w/in the same period
to give any information as to his or her
whereabouts shall be prima facie presumed
to have no intention of returning to the
conjugal dwelling.

Baviera: This applies even if husband


gives support.

Tolentino:
Abandonment implies a departure w/ the
avowed intent never to return, followed by
prolonged absence w/o just cause, & w/o in
the meantime providing in the least for
ones family although able to do so. There
must be absolute cessation of marital
relations, duties & rights, w/ the intention
of perpetual separation.

(note: need for judicial authority)


98

Liquidation of the Absolute Community


Assets & Liabilities
How liquidated
Art. 102. Upon dissolution of the absolute
community regime, the following procedure
shall apply:
(1) An inventory shall be prepared, listing
separately all the properties of the absolute
community & the exclusive properties of each
spouse.
(2) The debts & obligations of the
absolute community shall be paid out of its
assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the
unpaid balance w/ their separate properties
in accordance w/ the provisions of the second
paragraph of Article 94.
(Forfeiture of net profits)
Art. 94. The absolute
property shall be liable for:

community of

(1) The support of the spouses, their


common children, & legitimate children of
either spouse; however, the support of
illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts & obligations contracted
during the marriage by the designated
administrator-spouse for the benefit of the
community, or by both spouses, or by one
spouse w/ the consent of the other;
(3) Debts & obligations contracted by
either spouse w/o the consent of the other to
the extent that the family may have been
benefited;
(4) All taxes, liens, charges & expenses,
including major or minor repairs, upon the
community property;
(5) All taxes & expenses for mere
preservation made during marriage upon the
separate property of either spouse used by
the family;
(6) Expenses to enable either spouse to
commence or complete a professional or
vocational course, or other activity for selfimprovement;
(7) Antenuptial debts of either spouse
insofar as they have redounded to the benefit
of the family;
(8) The value of what is donated or
promised by both spouses in favor of their

common legitimate children for the


exclusive purpose of commencing or
completing a professional or vocational
course
or
other
activity
for
selfimprovement;
(9) Antenuptial debts of either spouse
other than those falling under paragraph
(7) of this Article, the support of illegitimate
children of either spouse, & liabilities
incurred by either spouse by reason of a
crime of a quasi-delict, in case of absence
or insufficiency of the exclusive property of
the debtor-spouse, the payment of w/c
shall be considered as advances to be
deducted fr. the share of the debtor-spouse
upon liquidation of the community; &
(10) Expenses of litigation between the
spouses unless the suit is found to be
groundless.
If the community property is insufficient
to cover the foregoing liabilities, except
those falling under paragraph (9), the
spouses shall be solidarily liable for the
unpaid
balance
w/
their
separate
properties.)
(3) Whatever remains of the exclusive
properties of the spouses shall thereafter
be delivered to each of them.
(4) The net remainder of the properties
of the absolute community shall constitute
its net assets, w/c shall be divided equally
between husband & wife, unless a different
proportion or division was agreed upon in
the marriage settlements, or unless there
has been a voluntary waiver of such share
as provided in this Code. For purposes of
computing the net profits subject to
forfeiture in accordance w/ Articles 43, No.
(2) & 63, No. (2), the said profits shall be
the increase in value between the market
value of the community property at the
time of the celebration of the marriage &
the market value at the time of its
dissolution.
Art. 43. The termination of the
subsequent marriage referred to in the
preceding Article shall produce the
following effects:
xxx
(2) The absolute community of property
or the conjugal partnership, as the case
may be, shall be dissolved & liquidated, but
if either spouse contracted said marriage in
99

bad faith, his or her share of the net profits of


the
community
property
or
conjugal
partnership property shall be forfeited in
favor of the common children or if there are
none, the children of the guilty spouse by a
previous marriage or, in default of children,
the innocent spouse.
Art. 63. The decree of legal separation
shall have the following effects:
xxx
(2) The absolute community or the
conjugal partnership shall be dissolved &
liquidated but the offending spouse shall
have no right to any share of the net profits
earned by the absolute community or the
conjugal partnership, w/c shall be forfeited in
accordance w/ the provisions of Article 43 (2).
xxx
(5) The presumptive legitimes of the
common children shall be delivered upon
partition, in accordance w/ Article 51.
Art. 51. In said partition, the value of the
presumptive legitimes of all common
children, computed as of the date of the final
judgment of the trial court, shall be delivered
in cash, property or sound securities, unless
the parties, by mutual agreement judicially
approved, had already provided for such
matters.
The children or their guardian, or the
trustee of their property may ask for the
enforcement of the judgment.
The delivery of the presumptive legitimes
herein prescribed shall in no way prejudice
the ultimate successional rights of the
children accruing upon the death of either or
both of the parents; but the value of the
properties already received under the decree
of annulment or absolute nullity shall be
considered as advances on their legitime.)
(6) Unless otherwise agreed upon by the
parties, in the partition of the properties, the
conjugal dwelling & the lot on w/c it is
situated shall be adjudicated to the spouse w/
whom the majority of the common children
choose to remain. Children below the age of
seven years are deemed to have chosen the
mother, unless the court has decided
otherwise. In case there is no such majority,
the
court
shall
decide,
taking
into
consideration the best interests of said
children.

Balane:
Basic steps in liquidation:
1) inventory (Art. 102) -3 sets: community
property
list of separate property of wife
list of separate property of husband
2) payment of community debts - pay out
of community assets first...if not enough,
then pay out of separate property...the
husband & the wife shall be solidarily liable
3) deliver to each spouse his or her
respective share
4) division of the net community assets
-note the special rule w/ regard to the
family home...also take note that even
after death, the family home remains
undivided.
5) delivery of presumptive legitimes
The presumptive legitimes are given in the
following cases:
reappearance of former spouse (102.5;
43.2) w/c terminates the second
marriage
annulment, not the declaration of nullity, of
the marriage
legal separation (102.5;63.2)
other cases of dissolution of the ACP/CPG
Effect of death
Art. 103. Upon the termination of the
marriage by death, the community
property shall be liquidated in the same
proceeding for the settlement of the estate
of the deceased.
If no judicial settlement proceeding is
instituted, the surviving spouse shall
liquidate the community property either
judicially or extra-judicially w/in one year fr.
the death of the deceased spouse. If upon
the lapse of the said period, no liquidation
is made, any disposition or encumbrance
involving the community property of the
terminated marriage shall be void.

Should the surviving spouse contract a


subsequent marriage w/o compliance w/
100

the foregoing requirements, a mandatory


regime of complete separation of property
shall govern the property relations of the
subsequent marriage.

Balane:
Liquidation of the ACP may be done in the
settlement proceedings of the deceased
spouse's estate. Liquidation in such a case
(death) may likewise be done judicially or
extrajudicially.
The
law
requires
that
liquidation be done w/in one(1) year fr.
death...if
not:
any
disposition
or
encumbrance is VOID (103.2) & the
subsequent marriage shall be made subject
to a mandatory regime of separation of
property...the 2nd marriage shall be valid, but
subject to mandatory absolute separation of
property.
Art. 104. Whenever the liquidation of the
community properties of two or more
marriages contracted by the same person
before the effectivity of this Code is carried
out simultaneously, the respective capital,
fruits & income of each community shall be
determined upon such proof as may be
considered according to the rules of
evidence.
In case of doubt as to w/c
community the existing properties belong,
the same shall be divided between the
different communities in proportion to the
capital & duration of each.

Baviera: No actual case yet

Balane:
The application of this article is possible only
for marriages contracted before 3 August
1988. e.g., In 1955 A married B. A died.
ACP/CPG was not liquidated. In 1965,
B
remarried to C. 1995 C died. B wants to
liquidate both marriages. He will then have
to apply Art. 104. For property whose origin
he is unsure of, the ratio/proportion;
peso/years formula may be used.
x = no. of years of marriage 1
y = capital of marriage 1
A = duration of marriage 2
B = capital of marriage 2
x = 8 years
y = P2 M
A = 30
B = P3 M

formula:
xy
x value of the property
marriage 1
xy + AB

= share of

AB
x value of the property
marriage 2
xy = AB

= share of

Note that in cases of marriages under the


Family Code made subject to mandatory
absolute separation, Art. 104 will never
apply.
H. CONJUGAL PARTNERSHIP OF
GAINS
Tolentino:
This is a partnership formed by the
marriage of the husband & wife, by virtue
of w/c, they place in a common fund the
fruits of their separate properties & of their
work or industry & divide in equal parts,
upon the dissolution of the union, the
profits & benefits indiscriminately obtained
by either of the spouses during the
marriage. It is formed by the husband &
the wife, each of whom has his or her own
property & debts. the legislator did not
intend to effect a mixture of the debts or
properties between the spouses. The law
establishes
complete
separation
of
capitals--a complete independence of the
capital account fr. the account of benefits
pertaining to the conjugal partnership.
This
constitutes
an
insurmountable
obstacle to the presumption of solidarity
between the spouses.
General Provisions
Art. 105. In case the future spouses
agree in the marriage settlements that the
regime of conjugal partnership of gains
shall govern their property relations during
the marriage, the provisions in this Chapter
shall be of supplementary application.
The provisions of this Chapter shall
also apply to conjugal partnerships of gains
already established between spouses
before the effectivity of this Code, w/o
prejudice to vested rights already acquired
101

in accordance w/ the Civil Code or other laws,


as provided in Article 256.

contract is recorded as well as in the proper


registries of property.

Art. 256. This Code shall have retroactive


effect insofar as it does not prejudice or
impair vested or acquired rights in
accordance w/ the Civil Code or other laws.

Tolentino:

Art. 106. Under the regime of conjugal


partnership of gains, the husband & wife
place in a common fund the proceeds,
products, fruits & income fr. their separate
properties & those acquired by either or both
spouses through their efforts or by chance, &
upon dissolution of the marriage or of the
partnership, the net gains or benefits
obtained by either or both spouses shall be
divided equally between them, unless
otherwise
agreed
in
the
marriage
settlements.

Balane:
Note that at the start of the
marriage, the common fund is at 0 balance.

There is no co-ownership between the


spouses in the properties of the CPG.
Hence, neither spouse can alienate in favor
of another his/her interest in the
partnership or in any property belonging to
it; neither spouse can ask for a partition of
the properties before the partnership is
legally dissolved.

Art. 108. The conjugal partnership shall


be governed by the rules on the contract of
partnership in all that is not in conflict w/
what is expressly determined in this
Chapter or by the spouses in their marriage
settlements.

ANSALDO V. SHERIFF
Art. 107. The rules provided in Articles 88
& 89 shall also apply to conjugal partnership
of gains.
Art. 88.
The absolute community of
property between spouses shall commence
at the precise moment that the marriage is
celebrated. Any stipulation, express or
implied, for the commencement of the
community regime at any other time shall be
void.
Art. 89. No waiver of rights, interests,
shares & effects of the absolute community
of property, or after the marriage has been
dissolved or annulled, the same shall appear
in a public instrument & shall be recorded as
provided in Article 77. The creditors who
made such waiver may petition the court to
rescind the waiver to the extent of the
amount sufficient to cover the amount of
their credits.
Art. 77. The marriage settlements & any
modification thereof shall be in writing,
signed by the parties & executed before the
celebration of the marriage. They shall not
prejudice third persons unless registered in
the local civil registry where the marriage

Held: The bank accounts garnished herein


were conjugal property & the same may
not be levied upon to pay for personal
obligations.
The money in the bank
accounts were earned as fruits derived fr.
paraphernal property.
As such, they
became assets of the conjugal partnership.
No proof was shown here that the
obligations were contracted for the benefit
of the partnership. Furthermore, the sheriff
may not levy on 1/2 of the amount in these
accounts as the supposed share of the
husband. A spouse's share in the conjugal
assets is merely inchoate & cannot be
determined until after dissolution of the
partnership.
1. EXCLUSIVE PROPERTY
SPOUSE

OF

EACH

Art. 109. The following shall be the


exclusive property of each spouse:
(1) That w/c is brought to the marriage
as his or her own; [PLATA V. YATCO]
(2) That w/c each acquires during the
marriage by gratuitous title;
(3) That w/c is acquired by right of
redemption, by barter or by exchange w/
102

property belonging to only one of the


spouses; &
(4) That w/c is purchased w/ exclusive
money of the wife or of the husband.
Tolentino: All property already owned by a
spouse prior to the marriage, & brought to
the marriage, is considered his or her
separate property.
Balane:
Although the terms are used interchangeably,
the technical definitions of the following
terms are as follows:
1. paraphernal property: exclusive property of
the wife
2. capital: exclusive property of the husband.
The owner has absolute dominion over his
separate property.
With regard to separate property, the owner
spouse may sue alone. With regard to
the fruits of such separate property, since
the same belongs to the partnership, both
spouses must join in initiating suit.
e.g. In a case where the separate
property is being leased out...the owner
spouse may sue alone for eviction, but must
be joined by the other spouse in a suit over
rentals.
Art. 110. The spouses retain ownership,
possession, administration & enjoyment of
their exclusive properties.
Either spouse may, during the marriage,
transfer the administration of his or her
exclusive property to the other by means of a
public instrument, w/c shall be recorded in
the registry of property of the place where
the property is located.

ONG V. CA
Held: The mere use of the surname of the
husband in the tax declaration of the subject
property is not sufficient proof that said
property was acquired during the marriage &
is therefore conjugal. It is undisputed that
the subject parcel of land was declared solely
in the wife's name, although the house built
thereon was declared in the name of the
spouses.
Under such circumstances, the
Court held that the subject lot was the
paraphernal property of the wife & thus liable
for her personal debts.

Art. 111.
A spouse of age may
mortgage, encumber, alienate or otherwise
dispose of his or her exclusive property,
w/o the consent of the other spouse, &
appear alone in court to litigate w/ regard
to the same.

Balane: The proceeds of the loan pertain


to the borrower. The borrower in this case
was the partnership, regardless of the fact
that the separate property of the wife was
used as a security in obtaining the loan.
PALANCA V. SMITH BELL
Held: When a loan is negotiated by a
husband upon property belonging to his
wife, w/ the consent of the latter, the
money becomes conjugal property, & if the
funds are later invested in the construction
of a house, the building is likewise conjugal
property & is liable for debts of the
husband. The property in question was a
parcel of land belonging to the wife w/c
was given by the husband as a guaranty
for a loan contracted by him. The money
obtained through the loan was later used
for the construction of the house.

Art. 112.
The alienation of any
exclusive
property
of
a
spouse
administered by the other automatically
terminates the administration over such
property & the proceeds of the alienation
shall be turned over to the owner-spouse.
Art. 113. Property donated or left by
will to the spouses, jointly & w/ designation
of determinate shares, shall pertain to the
donee-spouse as his or her own exclusive
property, & in the absence of designation,
share & share alike, w/o prejudice to the
right of accretion when proper.
Art. 753. When a donation is made to
several persons jointly, it is understood to
be in equal shares, & there shall be no right
of accretion among them, unless the donor
has otherwise provided.
The preceding paragraph shall not be
applicable to donations made to the
husband & wife jointly, between whom
there shall be a right of accretion, if the
contrary has not been provided by the
donor. (Civil Code.)
103

Accretion - The right of heirs or legatees to


unite or aggregate w/ their shares or portions
of the estate the portion of any co-heir or
legatee who refuses to accept it, fails to
comply
w/
a
condition,
becomes
incapacitated to inherit, or dies before, the
testator. (Black's Law Dictionary, p. 19)

married to each other. The prior marriage


to Begosa to someone else does not
necessarily exclude the possibility of a valid
subsequent marriage to Plata. However,
Villanueva could not ignore the paraphernal
character of the property in question, w/c
had been acquired by Plata while still
single.

Tolentino: When property is donated or left


by will, to the spouses jointly w/ express
designation of shares, the designated share
of each spouse is his or her own separate
property. If there is no designation of shares,
they share equally.

It is true that Begosa signed the


mortgage as a co-mortgagor, but by itself
alone that circumstance would not suffice
to convert the land into conjugal property,
considering it was paraphernal in origin.

Art. 114. If the donations are onerous, the


amount of the charges shall be borne by the
exclusive property of the donee-spouse,
whenever they have been advanced by the
conjugal partnership of gains.
Art. 115. Retirement, benefits, pensions,
pensions, annuities, gratuities, usufructs &
similar benefits shall be governed by the
rules on gratuitous or onerous acquisitions as
may be proper in each case.
PLATA VS. YATCO
FACTS: Amalia Plata purchased a parcel of
land in Caloocan for w/c the Provincial
Register of Deeds issued a TCT in Platas
name. She sold the property to Saldana who
obtained a TCT. 7 months afterwards, Saldana
resold the same property to Plata married to
Begosa & a new title issued to Plata.
Plata, in consideration of a loan of
P3,000, mortgaged to Villanueva married to
Leano, the identical property of w/c the
mortgagor Plata declares to be hers as
absolute owner. For failure to pay the
mortgage, the same was extrajudicially
foreclosed & sold to the mortgagee
Villanueva as the highest bidder. Villanueva,
sued Begosa alone for illegal detainer &
obtained judgment vs. him. A WOE was duly
issued, but Plata resisted all efforts to eject
her fr. the property & she claimed a 3rd party
claim averring ownership of the property.
ISSUE: WON P Plata is bound by the detainer
judgment vs. Begosa in civil case
HELD: NO. There may be a well-known
presumption that persons openly living
together as husband & wife are legally

Since the property was paraphernal,


& the creditors & purchasers were aware of
it, the fact being clearly spread on the land
records, it is plain that Platas possession,
therefore was not derived fr. Begosa. The
illegal detainer judgment vs. the husband
alone cannot bind or affect the wifes
possession of her paraphernal, w/c by law
she holds & administers independently, &
w/c she may even encumber or alienate
w/o his knowledge or consent. (Art. 136,
137, 140 CC)
A. PROPERTY ACQUIRED BY RIGHT OF
REDEMPTION OR EXCHANGE

ROSETE V. PROVINCIAL SHERIFF


Facts:
Rosetes husband, Fularon was
convicted of murder & sentenced to
indemnify the heirs of the victim. A writ of
execution was issued & four parcels of land
belonging to the CPG were levied upon.
Wife later redeemed said properties using
money obtained fr. her father. An alias
writ of execution was issued to satisfy the
balance of the indemnity & 2 parcels of
land were levied upon.
Sale was
conducted. Wife asked that the sale be
declared null & void.
Issue:
WoN the properties redeemed by
P w/ funds obtained fr. her father has
become paraphernal property & as such
beyond the reach of further execution
Held: YES. Sale is null & void. The
properties were part of the paraphernal
property of the wife & as such beyond the
reach of further execution. A PROPERTY IS
CONSIDERED TO BELONG EXCLUSIVELY TO
THE WIFE WHEN ACQUIRED BY HER BY
104

RIGHT OF REDEMPTION, AND WITH MONEY


BELONGING EXCLUSIVELY TO HER.
The interest w/c a wife has in conjugal
partnership property in this jurisdiction may
be likened to that of a wife in a homestead in
American jurisdiction. That interest in known
as inchoate right of dower or contingent
interest. By virtue of this inchoate right, a
wife has a right of redemption of a
homestead as successor in interest of her
husband.
Notes:
The right of redemption belongs to the
conjugal partnership
Successor in interest-right to succeed to the
interest of the debtor by operation of law
2. CONJUGAL PARTNERSHIP PROPERTY

Art. 116. All property acquired during the


marriage, whether the acquisition appears to
have been made, contracted or registered in
the name of one or both spouses, is
presumed to be conjugal unless the contrary
is proved.
TORELA V. TORELA
Held: While it is true that all property
acquired during the marriage is presumed to
be conjugal, as above stated, nonetheless,
the party who invokes the presumption must
first prove that the property was acquired
during the marriage. This proof is a condition
sine qua non for the application of the
presumption.
MENDOZA V. REYES
Held: The presumption of conjugality is a
strong one.
Proof of acquisition of the
property in dispute during the marriage suffices to render the statutory presumption
operative.
MAGALLON V. MONTEJO
Held: The presumption of conjugality does
not apply in a case where there is no proof of
marriage between the spouses.

Art. 117.
The following are conjugal
partnership properties:

(1) Those acquired by onerous title


during the marriage at the expense of the
common fund, whether the acquisition be
for the partnership, or for only one of the
spouses;
(2) Those obtained fr. the labor,
industry, work or profession of either or
both of the spouses;
(3) The fruits, natural, industrial, or
civil, due or received during the marriage
fr. the common property, as well as the net
fruits fr. the exclusive property of each
spouse;
(4) The share of either spouse in the
hidden treasure w/c the law awards to the
finder or owner of the property where the
treasure is found;
(5) Those acquired through occupation
such as fishing or hunting;
(6) Livestock existing upon the
dissolution of the partnership in excess of
the number of each kind brought to the
marriage by either spouse; &
(7) Those w/c are acquired by chance,
such as winnings fr. gambling or betting.
However, losses therefr. shall be borne
exclusively by the loser-spouse.

CASTILLO V. PASCO
Facts: Marcelo Castillo married Macaria
Pasco, a widow who survived 2 husbands. C
later died & P married a fourth time. During
the marriage of C & P, the spouses
Gonzales sold the litigated fishpond to
them. for P6T, to be paid in 3 installments:
P1T upon execution of the deed; P2T on
1/25/33, & P3T w/in a year after. Upon Cs
death, the loan was still unpaid.
P
consigned P12,300 & P752.43 as down
payment. Petitioner heirs of C claim it
should be considered conjugal property for
having been acquired during the marriage.
CA ruled it was paraphernal as it was
bought w/ the exclusive funds of the wife.
It said wifey was a woman of means, while
C died w/o enough assets to pay his debts.
Issue: to whom does the fishpond belong?
Held: The fishpond is 1/6 paraphernal &
5/6 conjugal. The first P1000 was paid out
of the paraphernal property of the wife. Of
this amount, P600 was a debt owed to the
wife by the vendor. It is presumed that this
105

debt could bind only the wife since there was


no showing that the husband authorized the
wife to contract this debt. The P400 was paid
out of proceeds fr. the sale of the wife's
paraphernal property.
The rest of the
purchase price was paid out of partnership
funds. The fact that the loan entered into to
pay this purchase price was secured by
mortgages
over
paraphernal
property
belonging to the wife did not make these
obligations (loans) paraphernal.
The
mortgage
was
merely
an
accessory
obligation. The principal obligation w/c is the
loan pertained to the conjugal partnership.
Under the applicable law, the Spanish
Civil Code, the property acquired for onerous
consideration during the marriage was
deemed conjugal or separate property
depending on the source of funds employed
for its acquisition.
ZULUETA V. PAN AM
Facts: Spouses Z & their daughter were
passengers aboard the plane. Mr. Z was late.
He was ordered by the captain to have their
baggage examined, & he refused so they
were refused passage. Upon arrival, he filed
this suit to recover damages. The spouses
separated & the wife agreed to a compromise
w/ Pan-Am for P50,000. Because of such,
she moved to have the case dismissed
insofar as she is concerned. P hubby argues
that the wife cannot bind the CPG w/o the
husbands consent except in cases provided
by law.
Issue; Can the wife bind the CPG w/o her
husbands consent?
Held: NO. The payment is effective insofar
as it is deductible fr. the award & bec. it is
due fr. the defendant Pan Am, w/ or w/o the
compromise agreement.
However, the
compromise agreement is ineffective insofar
as the CPG is concerned.
The damages involved belong to the
CPG bec. they arose fr. a breach of K of
carriage for w/c the plaintiffs paid their fare
using funds presumably belonging to the
CPG. The said damages fall under 153 (1),
the right thereto having been acquired by
onerous title during marriage.
Thus,
damages belong to the CPG.

Notes:
No conjugal partnership as the contract of
carriage is personal to the passenger
spouse
Actual damages are conjugal property bec.
the ticket is presumed to have been
bought using common funds.
What about moral damages? Not conjugal.
Arose out of the personal anguish of the
spouse (of being late for take-off when
he had to take a shit at the beach).
Balane:
Rule: Under 117.1, where conjugal funds
were spent, then the property acquired
belongs to the partnership
Except: 109.3 (pacto de retro acquisition
where the right to redemption belongs to
one spouse)
CHEESMAN V. IAC
Held: Even if the wife used conjugal funds
to purchase the lot in question, petitioner,
who is an alien, cannot recover or hold the
lot so acquired in view of the constitutional
prohibition
against
aliens
acquiring
residential lots other than by hereditary
succession.
He
therefore
had
no
personality to question the subsequent sale
of the same property by his wife on the
theory that in so doing, he is merely
exercising the prerogative of a husband in
respect to conjugal property. To sustain
such a theory would permit indirect
controversion
of
the
constitutional
prohibition.
A.

BOUGHT

ON INSTALLMENTS

Art. 118.
Property bought on
installments paid partly fr. exclusive funds
of either or both spouses & partly fr.
conjugal funds belongs to the buyer or
buyers if full ownership was vested before
the marriage. In either case, any amount
advanced by the partnership or by either or
both spouses shall be reimbursed by the
owner or owners upon liquidation of the
partnership.

Baviera: In case of property bought on


installment,
partly
fr.
exclusive
106

property & partly fr. conjugal funds, the


test to determine ownership is to look
at when ownership vested. If ownership
vested before marriage, then the
property is exclusive. If ownership
vested after marriage, then property is
conjugal.

e.g.
1985 - A buys property fr. BF payable in
installments...A
pays
installments
w/
exclusive property
1990 - A marries B.
The subsequent
amortizations on the property are then paid
w/ conjugal funds.
Test: when title was vested.
if title was vested before 1990, then the
property is exclusive.
if title was vested only after full payment of
amortizations, then the property is
conjugal.
JOVELLANOS V. CA
Facts:
Daniel married Leonor in 1955.
During this marriage, Daniel entered into a
contract of lease & conditional sale w/
Philam. In 1959, Leonor died. In 1967,
Daniel married Annette. In 1975, the full
amount of the lease was paid. Thus Philam
executed in favor of Daniel
a deed of
absolute sale. Daniel died in 1985. Annette
claims that the property is part of the CPG.
of her marriage to Daniel .
Petitioner
children of the first marriage claim that said
property is CPG of the first marriage.
Issue: WoN the property in dispute belongs
to the 2nd marriage?
Held;
YES..
Under the agreement, the
lessee had only the right of possession over
the prop, as well as the temporary use &
enjoyment of the same. The conditional sale
was thus in the nature of a contract to sell
whereby ownership is not transferred upon
delivery but only upon full payment of the
purchase price. The right of Daniel over the
contract was merely an inchoate & expectant
right. Full ownership was vested only upon
the execution of the absolute deed of sale in
1975.
Historical Background

PLATA V. YATCO, SUPRA


ALVAREZ V. ESPIRITU
Facts: The Director of Lands issued in favor
of Consolacion Evangelista sales certificate
involving friar lands administered under Act
No. 1120. The same was payable in 18
annual installment , the first on July 1,
1910. In 1923, she married Pedro Espiritu.
During their marriage, the installments
were paid w/ conjugal funds, & 1927
completed payments.
Evangelista later
assigned the sales certificate in her favor
to Espiritu. Later, spouses sold 1/2 of the
property to Martin, w/ a right to redeem in
12 years.
Evangelista died w/ a will,
bequeathing her 1/2 interest in the unsold
portion of the land to her husband. Her
husband & collateral relatives survived her.
Meanwhile, Espiritu completed payments
for the redemption of the property fr.
Martin. Thus, a deed of resale issued in his
favor.
Plaintiff collateral heirs of
Evangelista filed suit, claiming the lot was
the paraphernal property of Evangelista
w/c she brought into the marriage.
Husband claims the lot was conjugal. TC
ruled Espiritu owned the entire lot (both
halves)
since
the
payments
were
completed during their marriage. This
appeal.
Issue: WoN the lot was the paraphernal
property of Evangelista or the property of
her conjugal partnership w/ Espiritu
Held: Paraphernal. Ownership of the lot
vested in Evangelista upon the issuance to
her in 1910 of a sales certificate, resulting
in the lot becoming her property long
before her marriage in 1923. The equitable
& beneficial title to the land passes to the
purchaser the moment the first installment
is paid & a certificate of sale is issued.
Friar lands bought by a woman before her
marriage were her paraphernal properties,
although some of the installment were paid
for w/ conjugal funds during the marriage.
The conjugal partnership would only be
entitled
to
reimbursement
for
the
expenses.
Assignment of the sales certificate
to Espiritu was null & void as it falls under
the prohibition against donations between
the spouses during the marriage.
107

The lot being the paraphernal


property of Evangelista before the sale, its
redemption must be deemed as having
revested ownership in her heirs.
What
Espiritu had for the portion redeemed by him
is a lien for the amount he paid.

Art. 119. Whenever an amount or credit


payable w/in a period of time belongs to one
of the spouses, the sums w/c may be
collected during the marriage in partial
payments or by installments on the principal
shall be the exclusive property of the spouse.
However, interests falling due during the
marriage on the principal shall belong to the
conjugal partnership.

Balane:
Test is when is payment due.
Suppose:
A lent P1M to B
in the promissory note, it is stipulated that
payment shall be on 100 equal monthly
installments & that interest shall be at
20% p.a.
payments start on Oct 1985
A marries B in August 1986
all installments due before August 1986 are
paraphernal
for installments due after August 1986:
principal is exclusive property
interest during the marriage pertain to
the partnership...already civil fruits.
B. IMPROVEMENTS AT EXPENSE OF
CONJUGAL FUNDS OR THROUGH WORK
OR INDUSTRY OF A SPOUSE

Art.
120.
The
ownership
of
improvements,
whether
for
utility
or
adornment, made on the separate property
of the spouses at the expense of the
partnership or through the acts or efforts of
either or both spouses shall pertain to the
conjugal partnership, or to the original ownerspouse, subject to the following rules:
When the cost of the improvement made
by the conjugal partnership & any resulting
increase in value are more than the value of
the property at the time of the improvement,
the entire property of one of the spouses

shall belong to the conjugal partnership,


subject to reimbursement of the value of
the property of the owner-spouse at the
time of the improvement; otherwise, said
property shall be retained in ownership by
the owner-spouse, likewise subject to
reimbursement of the cost of the
improvement.
In either case, the ownership of the
entire property shall be vested upon the
reimbursement, w/c shall be made at the
time of the liquidation of the conjugal
partnership.

HISTORICAL BACKGROUND
VITUG V. MONTEMAYOR [93 P 939
(1953)]
Facts: Clodualdo Vitug begot 3 children
during his first marriage, one of them is
herein Pet., Florencia Vitug. After his first
wife died, Clodualdo married Donata,
herein Respondent. During their marriage,
R inherited land fr. her parents valued at
P9,000 w/c was converted by the joint
industry & efforts of the spouses into a
fishpond & sold at profit (P116,000). The
proceeds of w/c were used to buy 30
parcels of land. The deed of sale & the TCT
were executed in the name of Donata.
When Clodualdo died, R did not include in
the inventory of his property said 30
parcels of land. P opposed, claiming the
lots are conjugal, thus they have a share fr.
their fathers half.
Held: The 30 parcels of land are conjugal.
Upon the failure to prove by concrete
evidence that the conversion of the
agricultural lands were done using the
exclusive funds of R, the PRESUMPTION IS
THAT THE EXPENSE WAS CONJUGAL. Also,
since the conversion was done w/ the
industry & efforts of both spouses & that
the value of the improvements on the
paraphernal property of the wife exceeded
its original value, the entire property
became conjugal property subject to
reimbursement of the value of the
agricultural land at the time of liquidation
of the conjugal partnership. The name in
the deed of sale & the TCT are of no
moment.
108

MARAMBA V. LOZANO [20 S 474 (1967)]


Facts: In an action by Pltf Maramba vs.
Defendant (D) Spouses Lozano, jmt was
rendered ordering D to pay P3,500. A WOE
was issued & the land titled in the name of D
was levied upon. D opposed contending that
the land was her paraphernal property & the
obligation is joint. The lower court ruled that
the liability of D & her husband was joint, so
D is liable only to 1/2 of the jmt debt. Pltf
contends that the land levied upon, even if
originally paraphernal became conjugal by
virtue of the construction of a house thereon
at the expense of the CPG, hence it may be
made to answer for the entire indebtedness.
Held: Since there is no showing that the
property was acquired during the marriage,
the fact that the title is in the wife's name
determines that it is paraphernal property.
The construction of a house built fr. conjugal
funds on the exclusive property of one of the
spouses does not automatically make it
conjugal. It is true that in the meantime, the
conjugal partnership may use both the land &
the building, but it does so not as an owner
but in the sense of the right of usufruct. The
ownership of the land remains the same until
the value thereof is paid & payment can only
be demanded upon the liquidation of the CPG
(w/c is not shown in the CAB). Consequently,
the property being paraphernal, it cannot be
levied upon to answer for the liability of the
deceased husband.
The land belonging to one of the
spouses upon w/c the spouses have built a
house becomes conjugal property only when
the conjugal partnership is LIQUIDATED & the
INDEMNITY PAID to the owner of the land.
However, see CANULLAS V. FORTUN
CALTEX V. FELIAS [108 P 873 (1960)]
Facts: Felias spouses donated to their
daughter a parcel of land, making it her
paraphernal property. When she got married
a jmt was rendered against her husband &
the lot she inherited & the house thereon
were levied upon.
Held: While it is true that bldg. constructed
at the expense of the partnership on the land
belonging to one of the spouse would
automatically make the lot conjugal subject

to reimbursement, said rule will not apply


in the case at bar. The CA found that at the
time the bldg. was constructed on the lot,
said property still belonged to the parents /
Felias spouses bec. the donation was not
made to their daughter until March 1928,
whereas the bldg. was constructed in 1927.
The rule applicable w/ respect to the
building constructed thereon before the
donation is that of accessory following the
principal. The donation transmitted to her
the rights of a landowner over a building
constructed on it. Thus, being paraphernal,
the lot & the building are not answerable
for the obligations of the husband.
DOMINADO V. DERAYUNAN [49 S 452
(1926)]
Facts: Domingo, the late husband of petr
Elisa, was the exclusive owner of the land
in question. Using conjugal funds, almost
1,500 coconut trees were planted on it.
When Domingo died, the probate court
adjudicated to his widow 1/2 of the
expenses incurred in sowing said trees.
Widow objected, claiming that she should
receive not 1/2 of the expenses incurred
but 1/2 of all the coconut trees.
Held: Untenable. To the owner of realty
also belongs, by right of accession, the
improvements made thereon. Buildings,
crops & other improvements upon the land
belong to the owner of the realty. To this
rule there is an exception in case of
married persons. Par. 2 of Art. 1404 CC
(now Art. 120, FC) provides that buildings
constructed during the marriage, on land
belonging to one of the spouses, are
conjugal property, but the owner of the
realty shall be entitled to credit for the
value of the land. This exception, however,
is limited to buildings & does not apply to
crops & other improvements, w/ respect to
w/c the general rule applies. Expenses
incurred in making such crops &
improvements are conjugal expenses, for
w/c the conjugal property must be
reimbursed. [Tabotabo v. Molero, 22 P 418]
CAB, widow is entitled only to be
reimbursed for the expenses.
Case rule: ART. 120 only refers to
"BUILDINGS" not crops, however, see NOTE
below.

109

NOTE: Under the FC, there is a uniform rule,


that is, whether or not the improvement
consists of a bldg., trees or other ornaments,
one rule would apply, ART. 120.
CANULLAS
(1984)]

V.

FORTUN

[129

675

Facts: The Canullas family lived in a house


owned by the husband's father. When the
latter died, the husband inherited the land,
but later abandoned his family to live w/ a
concubine to whom he sold the land. Upon
the husband's death, the concubine filed an
action to quiet title, w/c the wife opposed on
the ground that the house & coconut trees
planted on the land came fr. conjugal funds &
therefore became conjugal property.
Held: SC annulled the sale to the concubine,
considering that the construction of the
house on the exclusive property of the
husband IPSO FACTO made the land conjugal
property, w/ the conjugal partnership liable to
the husband for the value of the land, to be
reimbursed at the liquidation of the CPG.
The better rule than Maramba v.
Lozano, is Padilla v. Paterno, w/c held that the
conversion of the paraphernal properties to
conjugal assets should be deemed to retroact
to the time the conjugal buildings were first
constructed thereon or at the very least, to
the time immediately before the death of the
owner spouse that ended the conjugal
partnership. They can not be considered to
have become conjugal property only as of the
time their values were paid to the estate of
the deceased spouse bec. by that time the
conjugal partnership no longer existed & it
could not acquire the ownership of said
properties. The acquisition by the partnership
of these properties was subject to the
suspensive condition that their values would
be reimbursed to the owner spouse at the
liquidation of the conjugal partnership; once
paid, the effects of the fulfillment of the
condition should be deemed to retroact to the
date the obligation was constituted. [Art.
1187, NCC].
NOTES: This cannot be applied bec. there is
no conjugal partnership of the first marriage
w/c has been dissolved, nor has there been a
reimbursement yet. But the SC made a
somersault to do justice & remove the land fr.
the hands of the concubine. The cited
decision in Padilla was taken out of context
since it was not even the ratio but a mere
statement of JBL Reyes.

BALANE REVIEWER
A. Cases
PADILLA V. PADILLA
The mere construction of a building
fr. common funds does not automatically
convey the ownership of the wife's land
(paraphernal) to the conjugal partnership.
The ownership of the land is retained by
the wife until she is paid the value of the
lot as a result of the liquidation of the
conjugal partnership.
The partnership
maintains a usufructuary right over the
said property during the marriage & until
liquidation.
PADILLA V. PATERNO
The separate properties in this case
never became conjugal bec. the conjugal
improvements constructed thereon were
destroyed before the value of the
paraphernal
land
on
w/c
these
improvements were erected was paid to
the spouse who owned the paraphernal
land. As held in Padilla v. Padilla, payment
of such value occurs only at final
liquidation.
B. Notes
'Plus
value'
refers
to
what
the
improvement contributes to the increase in
the value of the whole thing.
Suppose:
land P3M
irrigation ditches P2M
but bec. of the irrigation ditches, the value
of the land increases to P4.8M
the plus value in this case is P1.8M
the net value of the improvement is P3.8 M
in this case, the entire property becomes
conjugal.
Under the Family Code, the value to be
paid as reimbursement shall be such value
at the time of improvement...in this sense,
the Family Code departs fr. the Padilla
ruling
Whether or not the FC modifies the
Padilla ruling insofar as it held that
ownership shall vest only after full payment
at the time of liquidation...Balane is unsure.
Art. 120 applies only on the assumption
that the improvement exists at the time of
liquidation...if the property is destroyed
before liquidation, then 120 does not apply.
If prior to dissolution, the property &
the improvement thereon is sold--then the
110

right of the CPG under 120 follows the


property...the right of the CPG under 120 is
inchoate.
Notes:
The following are the steps to be followed in
liquidating the CPG:
1. inventory of CP assets
2. restitution of advances made to each
spouse e.g. Art. 122.3
3. payment of debts to each spouse e.g. Art.
120
4. payment of obligations to 3rd parties
5. delivery of exclusive properties
6. payment of losses & deterioration of
movables belonging to each spouse (reason:
CPG is a mere usufructuary of separate
properties...not true for ACP)
7. division
8. delivery of presumptive legitimes
3. OBLIGATIONS & CHARGES
CONJUGAL PARTNERSHIP

OF

Art. 121 The conjugal partnership shall be


liable for:
(1) The support of the spouses, their
common children, & the legitimate children of
either spouse; however, the support of
illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts & obligations contracted
during the marriage by the designated
administrator- spouse for the benefit of the
conjugal partnership of gains, or by both
spouses or by one of them w/ the consent of
the other;
(3) Debts & obligations contracted by
either spouse w/o the consent of the other to
the extent that the family may have been
benefited;
(4) All taxes, liens, charges & expenses,
including major or minor repairs upon the
conjugal partnership property;
(5) All taxes & expenses for mere
preservation made during the marriage upon
the separate property of either spouse;
(6) Expenses to enable either spouse to
commence or complete a professional,
vocational, or other activity for selfimprovement;
(7) Antenuptial debts of either spouse
insofar as they have redounded to the benefit
of the family;

(8) The value of what is donated or


promised by both spouses in favor of their
common legitimate children for the
exclusive purpose of commencing or
completing a professional or vocational
course
or
other
activity
for
selfimprovement; &
(9) Expenses of litigation between the
spouses unless the suit is found to be
groundless.
If the conjugal partnership is insufficient
to cover the
foregoing liabilities, the
spouses shall be solidarily liable for the
unpaid
balance
w/
their
separate
properties.
Art. 123. Whatever may be lost during
the marriage in any game of chance, or in
betting, sweepstakes, or any other kind of
gambling whether permitted or prohibited
by law, shall be borne by the loser & shall
not be charged to the conjugal partnership
but any winnings therefr. shall form part of
the conjugal partnership property.
A.
CONTRACTUAL
OBLIGATIONS
ASSUMED BY EITHER SPOUSE

Art. 122. The payment of personal


debts contracted by the husband or the
wife before or during the marriage shall not
be charged to the conjugal partnership
except insofar as they redounded to the
benefit of the family.
Neither shall the fines & pecuniary
indemnities imposed upon them be
charged to the partnership.
However, the payment of personal
debts contracted by either spouse before
the marriage, that of fines & indemnities
imposed upon them, as well as the support
of illegitimate children of either spouse,
may be enforced against the partnership
assets after the responsibilities enumerated in the preceding Article have been
covered, if the exclusive property or if it
should have no exclusive property or if it
should be insufficient; but at the time of
the liquidation of the partnership, such
spouse shall be charged for what has been
paid for the purposes above-mentioned.

111

CUATICO
(1964)]

V.

MORALES

[61

O.G.

869

Facts: Cuatico filed a collection case against


the Morales spouses. A money jmt was
rendered
against
the
husband,
who
contracted the loan, signing the promissory
note alone. A WOE was issued & a writ of
garnishment was issued against the salary of
the husband. Husband opposed contending
that the salaries of spouses are conjugal &
therefore, may not be liable for personal
obligations of one of the spouses absent
proof of benefit to the family.
Held: The salaries of the spouses constitute
part of the conjugal partnership w/c may
answer only for charges upon & liabilities of
the conjugal partnership. In order to make
the conjugal partnership liable for the
personal obligations of the spouses, it must
be shown that the debt was contracted
during the marriage by the husband for the
benefit of the conjugal partnership. Under the
New Civil Code, there is NO PRESUMPTION
that debts & obligations contracted during
the marriage by the husband are conjugal.
(De la Cruz v. De Gula).
On the contention that at least 1/2 of
the CPG belongs to the husband & thus,
could be validly levied upon, it must be said
that as long as the conjugal partnership
subsists, there can be no one-half share of
the husband or wife. Only when the conjugal
partnership is liquidated, & there is a net
remainder, may the same be divided equally
between husband & wife. The interest of each
in the conjugal partnership property is
inchoate & is a mere expectancy. Any levy on
the conjugal partnership property to satisfy
the money judgment against the husband is
null & void. (Ansaldo v. Sheriff of Manila)
LUZON SURETY V. DE GARCIA [30 S 111
(1969)]
Facts: Husband Vicente Garcia acted as a
guarantor on a surety bond. Principal debtor
defaulted & the surety was sued. A jmt was
rendered against the husband & a writ of
garnishment was issued against the sugar
quedans belonging to the Garcia spouses.
Held: The conjugal partnership is not liable
on an indemnity agreement executed by the
husband to accommodate a third party in
favor of a surety company in the absence of

proof of any
partnership.

benefit to

the

conjugal

PEREZ V. LANTIN [23 S 367 (1968)]


Facts: Petr, Damaso Perez purchased shoe
leather in connection w/ his business, & for
failure to pay the same, a collection suit
was filed against him. Judgment was held
for the creditor & the shares of stocks
owned by the husband were attached for
the satisfaction of the judgment debt. Wife
of Perez opposed, alleging that the said
shares were conjugal assets w/c could not
be made to answer for the liability of Petr.
Held: Untenable. All properties of the
marriage are presumed to belong to the
conjugal partnership unless it is proved
otherwise. The party who invokes this
presumption must first prove that the
property was acquired during the marriage.
Hence, proof of acquisition during the
coverture is a condition sine qua non for
the operation of the presumption. In this
case, there is no evidence as to when the
shares of stocks were acquired, the fact
that they are registered in the name of the
husband alone is an indication that the
shares belong exclusively to him.
Also, the contention of P that the
debt was personal is devoid of merit. The
obligation was contracted for use in Ps
business. It is well-settled that debts
contracted by the husband for & in the
exercise of the industry & profession by w/c
he contributes to the support of the family
cannot be deemed to be his exclusive &
private debts. (In short, it was presumed
that the debts by H redounded to the
familys benefit.)
B.

CHARGES
PARTNERSHIP

UPON

CONJUGAL

Art. 122, par. 3. However, the payment


of personal debts contracted by either
spouse before the marriage, that of fines &
indemnities imposed upon them, as well as
the support of illegitimate children of either
spouse, may be enforced against the
partnership assets after the responsibilities
enumerated in the preceding Article have
been covered, if the spouse who is bound
112

should have no exclusive property or if it


should insufficient; but at the time of the
liquidation of the partnership, such spouse
shall be charged for what has been paid for
the purposes above-mentioned.

ALVAREZ V. LIM [61 O.G. 1529 (1964)]


Facts: Pltf filed an action for support of 4
minor illegitimate children begotten by her w/
defendant. TC ordered D to pay pltf monthly
support. D appealed contending that his
income fr. business, being conjugal is not
liable for his illegitimate children.
Held: The illegitimate children of the
husband should be supported fr. his exclusive
property. In the absence of exclusive property
of the husband or in case of its insufficiency,
the support of said illegitimate children may
be imposed against the partnership assets
after the responsibilities enumerated in Art.
161 CC (Art. 121 FC) have been covered,
provided that at the time of the liquidation of
the partnership the husband shall be charged
for what has been paid for the purpose.
PEOPLE V. LAGRIMAS [29 S 153 (1969)]
Facts: Husband was convicted of murder. A
WOE was issued & conjugal properties were
levied upon to enforce his civil liability. On
appeal by the wife, the judge declared the
attachment null & void on the ground that
fines & indemnities imposed against either
spouses may be imposed only after the
charges enumerated under Art. 161 have
been covered. Hence, there must first be a
liquidation of the CPG.
Held: Reversed. Fines & indemnities imposed
upon either husband or wife may be enforced
against
partnership
assets
after
the
responsibilities imposed in Art. 161 CC (Art.
121 FC) have been covered, if the spouse
who is bound should have no exclusive
property or if it should be insufficient. The
reason is that if they were allowed to be
enforced only after liquidation, the effect
would be to exempt the accused fr. civil
liability & the heirs of the offended party
would be made to suffer still further.

4. ADMINISTRATION
PARTNERSHIP

OF

CONJUGAL

Art. 124.
The administration &
enjoyment of the conjugal partnership
property shall belong to both spouses
jointly. In case of disagreement, the
husband's decision shall prevail, subject to
recourse to the court by the wife for proper
remedy, w/c must be availed w/in five
years fr. the date of the contract
implementing such decision.
In the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
conjugal properties, the other spouse may
assume sole powers of administration.
These powers do not include the powers of
disposition or encumbrance w/c must have
the authority of the court or the written
consent of the other spouse. In the
absence of such authority or consent, the
disposition shall be void. However, the
transaction shall be construed as a
continuing offer on the part of the
consenting spouse & the third person, &
may be perfected as a binding contract
upon the acceptance by the other spouse
or authorization by the court before the
offer is w/drawn by either or both offerors.
Art. 125. Neither spouse may donate
any conjugal partnership property w/o the
consent of the other. However, either
spouse may, w/o the consent of the other,
make moderate donations fr. the conjugal
partnership property for charity or on
occasions of family rejoicing or family
distress.

5. DISSOLUTION
Art. 126. The conjugal partnership
terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal
separation;
(3) When the marriage is annulled or
decreed void;
(4) In case of judicial separation of
property during the marriage under Articles
134 to 138.
113

Art. 134. In the absence of an express


declaration in the marriage settlements, the
separation of property between spouses
during the marriage shall not take place
except by judicial order. Such judicial
separation of property may either be
voluntary or for sufficient cause.
Art. 135. Any of the following shall be
considered sufficient cause for judicial
separation of property:
(1) That the spouse of the petitioner has
been sentenced to a penalty w/c carries w/ it
civil interdiction;
(2) That the spouse of the petitioner has
been judicially declared an absentee;
(3) That loss of parental authority of the
spouse of petitioner has been decreed by the
court;
(4) That the spouse of the petitioner has
abandoned the latter or failed to comply w/
his or her obligations to the family as
provided for in Article 101;
(5) That the spouse granted the power of
administration in the marriage settlements
has abused that power; &
(6) That at the time of the petition, the
spouses have been separated in fact for at
least one year & reconciliation is highly
improbable.
In the cases provided for in Numbers (1),
(2), (3), the presentation of the final
judgment against the guilty or absent spouse
shall be enough basis for the grant of the
decree of judicial separation of property.
Art. 136. The spouses may jointly file a
verified petition w/ the court for the voluntary
dissolution of the absolute community or the
conjugal partnership of gains, & for the separation of their common properties.
All creditors of the absolute community or
of the conjugal partnership of gains, as well
as the personal creditors of the spouse, shall
be listed in the petition notified of the filing
thereof. The court shall take measures to
protect the creditors & other persons w/
pecuniary interest.
Art. 137. Once the separation of property
has been decreed, the absolute community
or the conjugal partnership of gains shall be
liquidated in conformity w/ this Code.

During
the
pendency
of
the
proceedings for separation of property, the
absolute community or the conjugal
partnership shall pay for the support of the
spouses & their children.
Art. 138. After dissolution of the
absolute community or of the conjugal
partnership, the provisions on complete
separation of property shall apply.
Art. 127. The separation in fact
between husband & wife shall not affect
the regime of conjugal partnership, except
that:
(1) The spouse who leaves the conjugal
home or refuses to live therein, w/o just
cause, shall not have the right to be
supported;
(2) When the consent of one spouse to
any transaction of the other is required by
law, judicial authorization shall be obtained
in a summary proceeding;
(3) In the absence of sufficient conjugal
partnership property, the separate property
of both spouses shall be solidarily liable for
the support of the family. The spouse
present shall, upon petition in a summary
proceeding, be given judicial authority to
administer or encumber any specific
separate property of the other spouse &
use the fruits or proceeds thereof to satisfy
the latter's share.
Art. 128. If a spouse w/o just cause
abandons the other or fails to comply w/
his or her obligations to the family, the
aggrieved spouse may petition the court
for receivership, for judicial separation of
property, or for authority to be the sole
administrator of the conjugal partnership
property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned
in the preceding paragraph refer to marital
parental or property relations.
A spouse is deemed to have abandoned
the other when he or she has left the
conjugal
dwelling
w/o
intention
of
returning. The spouse who has left the
conjugal dwelling for a period of 3 months
or has failed w/in the same period to give
any information as to his or her
whereabouts shall be prima facie presumed
114

to have no intention of returning to the


conjugal dwelling.

6. LIQUIDATION OF THE CONJUGAL


PARTNERSHIP ASSETS & LIABILITIES
Art. 129. Upon the dissolution of the
conjugal partnership regime, the following
procedure shall apply:
(1) An inventory shall be prepared, listing
separately all the properties of the conjugal
partnership & the exclusive properties of
each spouse.
(2) Amounts advanced by the conjugal
partnership in payment of personal debts &
obligations of either spouse shall be credited
to the conjugal partnership as an asset
thereof.
(3) Each spouse shall be reimbursed for
the use of his or her exclusive funds in the
acquisition of property or for the value of his
or her exclusive property, the ownership of
w/c has been vested by law in the conjugal
partnership.
(4) The debts & obligations of the
conjugal partnership shall be paid out of the
conjugal assets. In case of insufficiency of
said assets, the spouses shall be solidarily
liable for the unpaid balance w/ their
separate properties, in accordance w/ the
provisions of paragraph (2) of Article 121.
Art. 121. xxx
If
the
conjugal
partnership
is
insufficient to cover the foregoing liabilities,
the spouses shall be solidarily liable for the
unpaid balance w/ their separate properties.)
(5) Whatever remains of the exclusive
properties of the spouses shall thereafter be
delivered to each of them.
(6) Unless the owner had been
indemnified fr. whatever source, the loss or
deterioration of movables used for the
benefit of the family, belonging to either
spouse, even due to fortuitous event, shall be
paid to said spouse fr. the conjugal funds, if
any. ( e.g. car, even if lost due to FE, unlike
in ordinary usufruct)
(7) The net remainder of the conjugal
partnership properties shall constitute the
profits, w/c shall be divided equally between
husband & wife, unless a different proportion
or division was agreed upon in the marriage
settlements or unless there has been a

voluntary waiver or forfeiture of such share


as provided in this Code.
(8) The presumptive legitimes of the
common children shall be delivered upon
partition in accordance w/ Article 51.
Art. 51. In said partition, the value of
the presumptive legitimes of all common
children, computed as of the date of the
final judgment of the trial court, shall be
delivered in cash, property or sound
securities, unless the parties, by mutual
agreement judicially approved, had already
provided for such matters.
The children or their guardian, or the
trustee of their property, may ask for the
enforcement of the judgment.
The delivery of the presumptive
legitimes herein prescribed shall in no way
prejudice the ultimate successional rights
of the children accruing upon the death of
either or both of the parents; but the value
of the properties already received under
the decree of annulment or absolute nullity
shall be considered as advances on their
legitime.

NOTES: Presumptive only; collationable,


considered as donations bec. of collation
- actual computation at the time of death of
the parent; legitime at the time of death
can even be less than the presumptive
legitimes.)
(9) In the partition of the properties, the
conjugal dwelling & the lot on w/c it is
situated shall, unless otherwise agreed
upon by the parties, be adjudicated to the
spouse w/ whom the majority of the
common children choose to remain.
Children below the age of seven years are
deemed to have chosen the mother, unless
the court has decided otherwise. In case
there is no such majority, the court shall
decide, taking into consideration the best
interests of said children.
Art. 130. Upon the termination of the
marriage
by
death,
the
conjugal
partnership property shall be liquidated in
the same proceeding for the settlement of
the estate of the deceased.

115

If no judicial settlement proceeding is


instituted, the surviving spouse shall liquidate
the conjugal partnership property either
judicially or extra-judicially w/in one year fr.
the death of the deceased spouse. If upon
the lapse of the said period no liquidation is
made, any disposition or encumbrance
involving the conjugal partnership property of
the terminated marriage shall be void.
Should the surviving spouse contract a
subsequent marriage w/o compliance w/ the
foregoing requirements, a mandatory regime
of complete separation of property shall
govern the property relations of the
subsequent marriage.
Art. 131. Whenever the liquidation of the
conjugal partnership properties of two or
more marriages contracted by the same
person before the effectivity of this Code is
carried out simultaneously, the respective
capital, fruits & income of each partnership
shall be determined upon such proof as may
be considered according to the rules of
evidence. In case of doubt as to w/c
partnership the existing properties belong,
the same shall be divided between & among
the different partnerships in proportion to the
capital & duration of each.
Art. 132. The Rules of Court on the
administration of estates of deceased
persons shall be observed in the appraisal &
sale of property of the conjugal partnership,
& other matters w/c are not expressly
determined in this Chapter.
Art. 133. From the common mass of
property support shall be given to the
surviving spouse & to the children during the
liquidation of the inventoried property & until
what belongs to them is delivered; but fr. this
shall be deducted that amount received for
support w/c exceeds the fruits or rents
pertaining to them.

E. SEPARATION

OF

PROPERTY

1. DURING MARRIAGE
Art. 134. In the absence of an express
declaration in the marriage settlements, the
separation of property between the spouses
during the marriage shall NOT take place
except by judicial order. Such judicial

separation of property may either be


voluntary or for sufficient cause.

TODA V. COURT OF APPEALS


The separation of property is not affected
by the mere execution of the contract or
agreement of the parties but by the decree
of the court approving the same. The
conjugal partnership is dissolved only upon
the issuance of a decree of separation of
property.
Balane: A petition may be filed for the
dissolution of the AC or the CP by:
both
spouses:
voluntary
dissolution
(134/136)
petition for sufficient cause (135)
cannot dissolve extrajudicially
subsistence of marriage

during

Art. 135. Any of the following shall be


considered sufficient cause for judicial
separation of property:
(1) That the spouse of the petitioner
has been sentenced to a penalty w/c
carries w/ it civil interdiction;
(2) That the spouse of the petitioner
has been judicially declared an absentee;
(3) That loss of parental authority of the
spouse of petitioner has been declared by
the court;
(4) That the spouse of the petitioner
has abandoned the latter or failed to
comply w/ his or her obligations to the
family as provided for in Article 101;
Art. 101. If a spouse w/o just cause
abandons the other or fails to comply w/
his or her obligations to the family, the
aggrieved spouse may petition the court
for receivership, for judicial separation of
property or for authority to be the sole
administrator of the absolute community,
subject to such precautionary conditions as
the court may impose.
The obligations to the family mentioned
in the preceding paragraph refer to marital,
parental or property relations.
A spouse is deemed to have abandoned
the other when he or she has left the
conjugal
dwelling
w/o
intention
of
116

returning. The spouse who has left the


conjugal dwelling for a period of three
months or has failed w/in the same period to
give any information as to his or her
whereabouts shall be prima facie presumed
to have no intention of returning to the
conjugal dwelling.
(5) That the spouse granted the power of
administration in the marriage settlements
has abused that power; &
(6) That at the time of the petition, the
spouses have been separated in fact for at
least one year & reconciliation is highly
improbable.
In the cases provided for in Numbers (1),
(2) & (3), the presentation of the final judgment against the guilty or absent spouse
shall be enough basis for the grant of the
decree of judicial separation of property.
Balane: Under Art. 135.4, Balane believes
that Art. 128 should be included here.
Art. 136. The spouses may jointly file a
verified petition w/ the court for the voluntary
dissolution of the absolute community or the
conjugal partnership of gains, & for the
separation of their common properties.
All creditors of the absolute community or
of the conjugal partnership of gains, as well
as the personal creditors of the spouse, shall
be listed in the petition notified of the filing
thereof. The court shall take measures to
protect the creditors & other persons w/
pecuniary interest.
Art. 137. Once the separation of property
has been decreed, the absolute community
or the conjugal partnership of gains shall be
liquidated in conformity w/ this Code.
During the pendency of the proceedings
for separation of property, the absolute
community or the conjugal partnership shall
pay for the support of the spouses & their
children.
Art. 138. After dissolution of the absolute
community or of the conjugal partnership,
the provisions on complete separation of
property shall apply.

Art. 139. The petition for separation of


property & the final judgment granting the
same shall be recorded in the proper local
civil registries & registries of property.
Art. 140. The separation of property
shall not prejudice the rights previously
acquired by creditors.
Art. 141. The spouses may, in the same
proceedings where separation of property
was decreed, file a motion in court for a
decree reviving the property regime that
existed
between
them
before
the
separation of property in any of the
following instances:
(1)
When
the
civil
interdiction
terminates;
(2) When the absentee spouse
reappears;
(3) When the court, being satisfied that
the spouse granted the power of
administration in the marriage settlements
will not again abuse that power, authorizes
the resumption of said administration;
(4) When the spouse who has left the
conjugal home w/o a decree of legal
separation resumes common life w/ the
other;
(5) When the parental authority is
judicially restored to the spouse previously
deprived thereof;
(6) When the spouses who have
separated in fact for at least one year,
reconcile & resume common life; or
(7) When after voluntary dissolution of
the absolute community of property or
conjugal partnership has been judicially
decreed upon the joint petition of the
spouses, they agreed to the revival of the
former property regime. No voluntary
separation of property may thereafter be
granted.
The revival of the former property
regime shall be governed by Article 67.
Art. 67. The agreement to revive the
former property regime referred to in the
preceding Article shall be executed under
oath & shall specify:
(1) The properties to be contributed
anew to the restored regime;
(2) Those to be retained as separated
properties of each spouse; &

117

(3) The names of all their known


creditors, their addresses & the amounts
owing to each.
The agreement of revival & the motion for
its approval shall be filed w/ the court in the
same proceeding for legal separation, w/
copies of both furnished to the creditors
named therein. After due hearing, the court
shall, in its order, take measures to protect
the interest of creditors & such order shall be
recorded in the proper registries of
properties.
The recording of the order in the registries
of property shall not prejudice any creditor
not listed or not notified, unless the debtorspouse has sufficient separate properties to
satisfy the creditor's claim.
Art. 142. The administration of all classes
of exclusive property of either spouse may be
transferred by the court to the other spouse:
(1) When one spouse becomes the
guardian of the other;
(2) When one spouse is judicially declared
an absentee;
(3) When one spouse is sentenced to a
penalty w/c carries w/ it civil interdiction; or
(4) When one spouse becomes a fugitive
fr. justice or is in hiding as an accused in a
criminal case.
If the other spouse is not qualified by
reason of incompetence, conflict of interest,
or any other just cause, the court shall
appoint a suitable person to be the
administrator.

3.
REGIME
PROPERTY

OF

SEPARATION

OF

Art. 143. Should the future spouses agree


in the marriage settlements that their
property relations during the marriage shall
be governed by the regime of separation of
property, the provisions of this Chapter shall
be of suppletory application.
Art. 144. Separation of property may
refer to present or future property or both. It
may be total or partial. In the latter case, the

property not agreed upon as separate shall


pertain to the absolute community.
Art. 145.
Each spouse shall own,
dispose of, possess, administer & enjoy his
or her own separate estate, w/o need of
the consent of the other. To each spouse
shall belong all earnings fr. his or her
profession, business or industry & all fruits,
natural, industrial or civil, due or received
during the marriage fr. his or her separate
property.
Art. 146. Both spouses shall bear the
family expenses in proportion to their
income, or, in case of insufficiency or
default thereof, to the current market value
of their separate properties.
The liability of the spouses of creditors
for family expenses shall, however, be
solidary.

VII. UNION

W/O MARRIAGE

Art. 147. When a man & a woman who


are capacitated to marry each other, live
exclusively w/ each other as husband &
wife w/o the benefit of marriage or under a
void marriage, their wages & salaries shall
be owned by them in equal shares & the
property acquired by both of them through
their work or industry shall be governed by
the rules on co-ownership.
[no provision in OCC, judicial decisions
only; only in NCC; Baviera says the use of
the words "capacitated" & "void marriage"
is malabo; jigsaw puzzle provision]
In the absence of proof to the contrary,
properties acquired while they lived
together shall be presumed to have been
obtained by their joint efforts work or
industry, & shall be owned by them in
equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly
in the acquisition thereof if the former's
efforts consisted in the care & maintenance
of the family & of the household.

118

[basis: MAXEY V. CA - H & W, equality of


the sexes]
Neither party can encumber or dispose by
acts inter vivos of his or her share in the
property acquired during cohabitation &
owned in common, w/o the consent of the
other, until after the termination of their
cohabitation.
[Baviera - so that it won't be better than
legal relationships]
When only one of the parties to a void
marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In
case of default of or waiver by any or all of
the common children or their descendants,
each vacant share shall belong to the
respective surviving descendants. In the
absence of descendants, such share shall
belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of
the cohabitation.
[Baviera
there
is
a
right
of
representation even by the grandchildren]
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 &
corresponding shares are presumed to be
equal. The same rule & presumption shall
apply to joint deposits of money & evidences
of credit.
If one of the parties is validly married to
another, his or her share in the co-ownership
shall accrue to the absolute community or
conjugal partnership existing in such valid
marriage. If the party who acted in bad faith
is not validly married to another, his or her
share shall be forfeited in the manner
provided in the last paragraph of the
preceding Article.
The foregoing rules on forfeiture shall
likewise apply even if both parties are in bad
faith.

Baviera: If no common children, no


surviving descendant, kanino ngayon?
apply exclusive property

YAPTINCHAY V. HON. TORRES &


VIRGINIA YAPTINCHAY [28 S 489
(1969)]
Facts: Isidro Yaptinchay had 3 children by
his legal wife, Josefina; one of w/c is the
respondent in this case. However, he lived
w/ his paramour Teresita (petr) for 19
years. When Isidro died intestate, Teresita
was appointed as admntrix of the
properties incl. a North Forbes house where
Isidro & Teresita lived in for years. But the
appointment was opposed by the first wife.
CFI sustained the opposition & appointed
Virginia (the daughter) to be the admntrix
& ordered T to deliver possession of the
North Forbes house to V.
Held: Where a married man & his mistress
lived together for 19 years, & the mistress
seeks to repossess their love nest in Forbes
Park,
she
must
show
her
actual
contribution in the construction of the
house during the cohabitation in order for
the rules on co-ownership to apply. Her
unsupported assertions cannot override the
prima facie presumption that the house,
having been constructed on the lot of the
man during his marriage to his legitimate
wife constitutes conjugal property.
JUANIZA V. JOSE [89 S 306 (1979)]
Facts:
Eugenio Jose is the registered
owner of a jeepney w/c was involved in an
accident & was held liable for damages. He
was married to Socorro Ramos but had
been cohabiting w/ defendant-appellant
Rosalia Arroyo for 16 years. CFI ordered
both Euguenio & Rosalia to pay damages,
jointly & severally, based on Art. 144 CC.
Arroyo opposed this ruling & asked the
Court to absolve her fr. liability.
Held: His common-law wife cannot claim
co- ownership over the jeepney bec. Art.
144 CC (Art. 147 FC) applies only when the
parties are not incapacitated to marry.
Hence, the jeepney belongs to the conjugal
partnership w/ the lawful wife. Also, the
common-law wife not being the registered
owner cannot be held liable for damages
caused by its operation.
119

Baviera disagrees, it is not necessary


that there be no impediment to marry
bec. Art. 147 FC covers even void
marriages.

MAXEY V. CA [129 S 187 (1984)]


Facts: Melbourne Maxey & Regina Morales
started living together as husband & wife in
1903. During this period, Maxey acquired
several parcels of land. They were married
only in 1919, after w/c Regina died. Maxey
then married Julia, & using a power of atty.,
sold the lands to Defs- spouses Macayra.
Plaintiffs are the children of Maxey & Regina
who prayed for the annulment of the sale
alleging that the lots were common
properties of their parents & the sale was w/o
their consent. CFI applied Art. 144 CC w/c
provides that a state of co-ownership governs
relationships w/o the benefit of marriage or
even in void marriages. The CA reversed on
the ground that there was no evidence that
the lots were acquired through joint efforts,
Melbourne being the one who was employed
& Regina was not. Also, Art.144 should not be
applied retroactively.
Held: Under Art. 144 CC (Art. 147 FC), coownership arises even if a common-law wife
does not work or is not gainfully employed.
The Filipino woman traditionally runs the
household & holds the family purse even if
she does not contribute thereto.
The wedding in 1903 was not valid. In
this case, the couple got married only in 1919
after living as common-law spouses before
that. But considerations of justice dictate that
Art. 144 be retroactively applied. Prior to the
NCC, the formation of an informal civil
partnership between a man & a woman not
legally married & their corresponding right to
an equal share in properties acquired through
their joint efforts during cohabitation was
recognized through judicial decisions. Art.
144 of the NCC, codified these judicial
precedents w/ some modifications; coownership arises even if the common-law
wife is not gainfully employed, or does not
work.. Art. 144 recognizes that it would be
unjust & abnormal if a woman who is a wife
in all aspects except for the req. of a valid
marriage, must abandon the home & her
children & go to earn a living or engage in

business before the rules on co-ownership


would apply.
Balane:
As in the case of Maxey, a common-law
wife who is not gainfully employed
contributes to the co-ownership as a
homemaker.
the law in this case provides for a special
kind of co- ownership...w/c cannot be
terminated, & wherein the share may
not be encumbered or disposed of w/o
the consent of the other.
VII. THE FAMILY
A. AS

AN INSTITUTION

ART. 149. The family, being the


foundation of the nation, is a basic social
institution w/c public policy cherishes &
protects. Consequently, family relations are
governed by law & no custom, practice or
agreement destructive of the family shall
be recognized or given effect.
ART. 150.
Family relations include
those:
(1) Between husband & wife;
(2) Between parents & children;
(3) Among other ascendants &
descendants; &
(4) Among brothers & sisters, whether
of the full or half-blood.

BALANE: The enumeration under 150 of


who is a member of a family is exclusive for
the purpose stated in Art. 151
ART. 151. No suit between members of
the same family shall prosper unless it
should appear fr. the verified complaint or
petition that earnest efforts toward a
compromise have been made, but that the
same have failed. If it is shown that no
such efforts were in fact made, the case
must be dismissed.
This rule shall not apply to cases w/c
may not be the subject of compromise
under the Civil Code.
120

BALANE: If on either side of the litigation, a


third party is present in addition to the family
member, then Art. 151 does not apply.
ALAVADO V. CITY GOV'T
HELD: Persons dwelling together in apparent
matrimony are presumed, in the absence of
any counter-presumption or evidence special
to the case, to be in fact married. The reason
is that such is the common order of society, &
if the parties were not what they thus hold
themselves out as being, they would be living
in the constant violation of decency & of law.
B. FAMILY HOME

ART. 152. The family home, constituted


jointly by the husband & the wife or by an
unmarried head of a family, is the dwelling
house where they & their family reside, & the
land on w/c it is situated.

BALANE: An unmarried head of a family


may constitute a family home.
ART. 153. The family home is deemed
constituted on a house & lot fr. the time it is
occupied as a family residence. From the time
of its constitution & so long as any of its
beneficiaries actually resides therein, the
family home continues to be such & is
exempt fr. execution, forced sale or
attachment except as hereinafter provided &
to the extent of the value allowed by law.
ART. 154. The beneficiaries of a family
home are:
(1) The husband & wife, or an unmarried
person who is the head of a family; &
(2)
Their
parents,
ascendants,
descendants, brothers & sisters, whether the
relationship be legitimate or illegitimate, who
are living in the family home & who depend
upon the head of the family for legal support.
ART. 155. The family home shall be
exempt fr. execution, forced sale or
attachment except:
(1) For non-payment of taxes;

(2) For debts incurred prior to the


constitution of the family home;
(3) For debts secured by mortgages on
the premises before or after such
constitution;
(4) For debts due to laborers,
mechanics,
architects,
builders,
materialsmen & others who have rendered
service or furnished material for the
construction of the building.
ART. 156. The family home must be
part of the properties of the absolute
community or the conjugal partnership, or
of the exclusive properties of either spouse
w/ the latter's consent. It may also be
constituted by an unmarried head of a
family on his or her own property.
Nevertheless, property that is the
subject of a conditional sale on installments
where ownership is reserved by the vendor
only to guarantee payment of the purchase
price may be constituted as a family home.
ART. 157.
The actual value of the
family home shall not exceed, at the time
of its constitution, the amount of three
hundred thousand (P300,000) in urban
areas & two hundred thousand (P200,000)
in rural areas, or such amounts as may
hereafter be fixed by law.
In any event, if the value of the
currency changes after the adoption of this
Code, the value most favorable for the
constitution of a family home shall be the
basis of evaluation.
For purposes of this Article, urban areas
are deemed to include chartered cities &
municipalities whose annual income at
least equals that legally required for
chartered cities. All others are deemed to
be rural areas.

BALANE: Under the NCC, there was no


provision for adjustment of the value of the
family home. The ceiling was pegged at
P30,000. Under the FC, this ceiling was
increased. The FC further provided for a
flexibility clause under Art. 157.2 "value
most favorable for the constitution of a
family home shall be the basis..."
ART. 158. The family home may be
sold, alienated, donated, assigned or
encumbered by the owner or owners
121

thereof w/ the written consent of the person


constituting the same, the latter's spouse, &
a majority of the beneficiaries of legal age. In
case of conflict, the court shall decide.

BALANE: Although this article states that


the consent of the head & a majority of the
beneficiaries
is
required
before
alienation/encumbrance of the family home,
the law is not clear as to the consequences of
not obtaining such consent. Under 1403, it
would seem as if the contract shall be
unenforceable.
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 for as long as there is a
minor beneficiary, & the heirs cannot
partition the same unless the court finds
compelling reasons therefor. This rule shall
apply regardless of whoever owns the
property or constituted the family home.
ART. 160. When a creditor whose claim is
not among those mentioned in Article 155
obtains a judgment in his favor, & he has
reasonable grounds to believe that the family
home is actually worth more than the
maximum amount fixed in Article 157, he
may apply to the court w/c rendered the
judgment for an order directing the sale of
the property under execution. The court shall
so order if it finds that the actual value of the
family home exceeds the maximum amount
allowed by law as of the time of its
constitution. If the increased actual value
exceeds the maximum allowed in Article 157
&
results
fr.
subsequent
voluntary
improvements introduced by the person or
persons constituting the family home, by the
owner or owners of the property, or by any of
the beneficiaries, the same rule & procedure
shall apply.
At the execution sale, no bid below the
value allowed for a family home shall be
considered. The proceeds shall be applied
first to the amount mentioned in Article 157,
& then to the liabilities under the judgment &
the costs. The excess, if any, shall be
delivered to the judgment debtor.
ART. 161. For purposes of availing of the
benefits of a family home as provided for in
this Chapter, a person may constitute, or be
the beneficiary of, only one family home.

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

NOTES:
The main change fr. the
provisions of the NCC is that under the FC,
there is de facto or automatic constitution
of the family home
The rationale behind this is to
protect
the
family
fr.
the
tragic
consequence of losing the dwelling to
creditors.
Baviera cases:
MODEQUILLO V. BREVA [185 S 766
(1990)]
FACTS: A judgment was rendered against
Modequillo as a result of w/c certain goods
& chattels belonging to him were levied
upon. M filed a motion to set aside levy of
execution on the ground that the levied
residential land is where the family home is
built. As such, he contended that this land
is exempt fr. execution under Arts. 152 &
153 of the FC.
HELD: Under the Family Code, a family
home is deemed constituted on a house &
lot fr. the time it is occupied as a family
residence. There is NO NEED to constitute
the same judicially or extrajudicially as
required in the Civil Code. If the family
actually resides in the premises, it is,
therefore, a family home as contemplated
by law. Thus, the creditors should take the
necessary precautions to protect their
interest before extending credit to the
spouses or head of the family who owns
the home.
Art. 162 FC simply means that all
existing family residences at the time of
the effectivity of the Family Code (AUGUST
3, 1988), are considered family homes &
are prospectively entitled to the benefits
accorded to a family home under the
Family Code. Art. 162 FC does not state
that the provisions of Chapter 2, Title V
have a retroactive effect.
GAYON V. GAYON
122

HELD: Art. 222 of the CC (Art. 151 NCC) is an


exception to the general rule & should thus
be construed strictly. Inasmuch as a sister-inlaw, nephew, niece are not included in the
enumeration contained in Art. 217, then it
follows that this case does not fall w/in Art.
222. Failure to seek a compromise before the
filing of the complaint does not bar the
action.
WAINRIGHT V. VERSOZA
HELD: Compromise on future support is
proscribed. An attempt to compromise future
support is not a condition precedent to the
filing of a suit therefor & it need not be
alleged in the complaint. A showing of
previous efforts to compromise future support
would be superfluous.
MANACOP VS. CA [215 SCRA 773]
HELD: It does not mean that Articles 152 &
153 FC have a retroactive effect such that all
existing family residences are deemed to
have been constituted as family homes at the
time of their occupation prior to the
effectivity of the FC & are exempt fr.
execution for the payment of obligations
incurred before the effectivity of the FC.
Art. 162 simply means that all existing
family residences at the time of the
effectivity of the FC, are considered family
homes & are prospectively entitled to the
benefits accorded to a family home under the
FC.
Art. 162 does not state that the
provisions of Chapter 2, Title V have a
retroactive effect.

that the same have failed" in his pleadings


in order to comply w/ the requirement.
O'LAO V. CO CHO CHIT
HELD: Earnest
efforts
towards
a
compromise is a condition precedent to
filing of suits between members of the
same family, non-compliance of w/c, the
complaint is assailable at any stage of the
proceedings for lack of cause of action.

ART. 2035. No compromise upon the


following questions shall be valid:
(1) The civil status of persons;
(2) The validity of marriage or a legal
separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (Civil Code.)
ART. 215.
No descendant shall be
compelled, in a criminal case, to testify
against his parents & grandparents, except
when such testimony is indispensable in a
crime against the descendant or by one
parent against the other.

BALANE: Art. 160 provides the remedy of


the creditor where the value of the family
home is in excess of the ceiling
The family home will be sold (but
replacement should exist). The value for
such replacement should be set aside. Any
excess shall accrue to the creditor.

MAGBALETA V. GONONG
HELD: Where one of the parties to a civil
litigation is not a member of the family while
some of the family members are adverse
parties to the said suit, lack of earnest efforts
to reach a compromise should not be
considered a jurisdictional requisite to the
maintenance of an action.
DE GUZMAN V. GENATO
HELD: Substantial
compliance
of
the
requirement of earnest efforts towards a
compromise is enough. It is not necessary
that the plaintiff should expressly use the
terms of the statute, i.e. "that earnest efforts
towards a compromise have been made, but

IX. PATERNITY & FILIATION


Paternity - includes maternity; means the
relationship or status of a person w/
respect to his or her child.
Filiation - means the status of a person
w/ respect to his or her parents.
Note that under the Family Code, there are
no more sub-distinctions under the
classification of illegitimate children.
Art. 163. The filiation of children may
be by nature or by adoption. Natural
filiation may be legitimate or illegitimate.
123

Art. 164.
Children conceived or born
during the marriage of the parents are
legitimate.
Children conceived as a result of artificial
insemination of the wife w/ the sperm of the
husband or that of a donor or both are
likewise legitimate children of the husband &
his wife, provided, that both of them
authorized or ratified such insemination in a
written instrument executed & signed by
them before the birth of the child. The
instrument shall be recorded in the civil
registry together w/ the birth certificate of the
child.

BALANE:
Legitimate - conceived or born during the
marriage; the presumption is always in favor
of legitimacy.
Artificial insemination: 3 ways permissible:
artificial insemination husband (AIH)--using
the sperm of the husband--homologous
artificial
insemination
donor
(AID)
-heterologous
artificial insemination combined (AIC)

Requirements:
authorization/ratification of both spouses;
written instrument;
the document should be executed & signed
before the child's birth;
registration in the Civil Registry is not a
requirement for validity.
Presumption
of
Legitimacy.
The
presumption of legitimacy is an example of a
quasi-conclusive
presumption.
This
presumption may be rebutted only on the
grounds provided in Art. 166.
To impugn legitimacy, show that
during the 1st 120 days of the 300 days
preceding the birth, there was physical
impossibility of access between husband &
wife.
Physical impossibility of access may be
shown by preponderance of evidence:
may show impotence;
that the spouses were living separately &
sexual intercourse was not possible; or
serious illness making sexual intercourse
impossible.
Art. 166.1 has no application when the
conception is by artificial insemination.

Suppose the consent or ratification was


obtained through the means mentioned in
166 (3) but the semen used was that of
the husband...will this rebut the quasiconclusive presumption?
Art. 165. Children conceived & born
outside a valid marriage are illegitimate,
unless otherwise provided in this Code.

BAVIERA: The clause unless otherwise


provided in this Code refers to Art.
54.

Art. 166. Legitimacy of a child may be


impugned only on the following grounds:
(1) That it was physically impossible for
the husband to have sexual intercourse w/
his wife w/in the first 120 days of the 300
days w/c immediately preceded the birth of
the child bec. of:
(a) the physical incapacity of the
husband to have sexual intercourse w/ his
wife;
(b) the fact that the husband & wife
were living separately in such a way that
sexual intercourse was not possible; or
(c) serious illness of the husband, w/c
absolutely prevented sexual intercourse;
(2) That it is proved that for biological
or other scientific reasons, the child could
not have been that of the husband, except
in the instance provided in the second
paragraph
of
Article
164
(artificial
insemination); or
(3) That in case of children conceived
through artificial insemination, the written
authorization or ratification of either parent
was obtained through mistake, fraud,
violence, intimidation, or undue influence.

ANDAL V. MACARAIG [100 SCRA 73]


Facts: The H died on 1/1/43. The boy
whose legitimacy is in question was born
on 6/17/43.
If the boy is deemed
legitimate, then he is entitled to inherit the
land in question. Lower court declared the
boy as the legitimate child of the H &
owner of the land.
124

HELD:
The boy is presumed to be the
legitimate son of said H & his W, he having
been born w/in 300 days following the
dissolution of the marriage. The presumption
can only be rebutted by proof that it was
physically impossible for the H to have access
to her W during the first 120 days of the 300
days next preceding the birth of the child.
The fact that the wife has committed adultery
cannot overcome this presumption. Although
the H was suffering fr. serious tuberculosis,
yet there is no evidence of impotence nor
does it prevent carnal intercourse.
MACADANGDANG V. CA [100 SCRA 73]
HELD: The child Rolando is presumed to be
the legitimate son of resp. & her spouse. This
presumption becomes conclusive in the
absence of proof that there was physical
impossibility of access between the spouses
in the first 120 days of the 300 days w/c
preceded the birth of the child.

Art. 167. The children shall be considered


legitimate although the mother may have
declared against its legitimacy or may have
been sentenced as an adulteress.

BAVIERA: If W, who is married to H, is a


victim of rape, the child conceived shall
not be acknowledged by the rapist.
REASON: It is possible that the child is
the husbands.

CHUA KENG GIAP V. IAC [158 SCRA 18]


HELD: In the case of Sy Kao v. CA, Sy Kao
flatly & unequivocably declared that she was
not the petitioner's mother.
xxx
Who better than Sy Kao herself would
know if Chua Keng Giap was really her son?
More than any one else, it was Sy Kao who
could say-- as indeed she has said these
many years-- that Chua Keng Giap was not
begotten of her womb.
Art. 168. If the marriage is terminated &
the mother contracted another marriage w/in
three hundred days after such termination of

the former marriage, these rules shall


govern in the absence of proof to the
contrary:
(1) A child born before one hundred
eighty days after the solemnization of the
subsequent marriage is considered to have
been
conceived
during
the
former
marriage, provided it be born w/in three
hundred days after the termination of the
former marriage;
(2) A child born after one hundred
eighty days following the celebration of the
subsequent marriage is considered to have
been conceived during such marriage,
even though it be born w/in the three
hundred days after the termination of the
former marriage.
Art. 169. The legitimacy or illegitimacy
of a child born after three hundred days
following the termination of the marriage
shall be proved by whoever alleges such
legitimacy or illegitimacy.
Art. 170. The action to impugn the
legitimacy of the child shall be brought w/in
one year fr. the knowledge of the birth or
its recording in the civil register, if the
husband or, in a proper case, any of his
heirs, should reside in the city or
municipality where the birth took place or
was recorded.
If the husband or, in his default, all of
his heirs do not reside at the place of birth
as defined in the first paragraph or where it
was recorded, the period shall be two years
if they should reside in the Philippines; &
three years if abroad. If the birth of the
child has been concealed fr. or was
unknown to the husband or his heirs, the
period shall be counted fr. the discovery or
knowledge of the birth of the child or of the
fact of registration of said birth, w/cever is
earlier.

LIM

VS.

IAC [166 SCRA 451]

HELD: The finding of the trial court & the


CA that Violeta Cabatbat was not born of
Esperanza Cabatbat is a factual finding
based on the evidence presented at the
trial, & hence, it is conclusive upon Us.

125

Petitioner's recourse to Art. 263, NCC,


now Art. 170, FC is not well-taken. This legal
provision refers to an action to impugn
legitimacy. It is inapplicable to this case bec.
this is not an action to impugn the legitimacy
of a child, but an action of the prvt resps. to
claim their inheritance as legal heirs of their
childless deceased aunt. They do not claim
that petitioner Violeta Cabatbat Lim is an
illegitimate child of the deceased, but that
she is not the decedent's child at all. Being
neither a legally adopted child, nor an
acknowledged natural child, nor a child by
legal fiction of Esperanza, Violeta is not a
legal heir of the deceased.

Art. 171. The heirs of the husband may


impugn the filiation of the child w/in the
period prescribed in the preceding article
only in the following cases:
(1) If the husband should die before the
expiration of the period fixed for bringing his
action;
(2) If he should die after the filing of the
complaint, w/o having desisted therefr.; or
(3) If the child was born after the death of
the husband.

BALANE: Art. 170-171 .Anent who can


impugn the legitimacy of a child--the period
for such must be reckoned fr. knowledge of
either the birth or the recording of such
birth...choice of reckoning point...except
when birth is concealed, then the reckoning
period is fr. discovery or knowledge of birth or
discovery or knowledge of recording, w/cever
is earlier.
Art. 172.
The filiation of legitimate
children is established by any of the
following:
(1) The record of birth appearing in the
civil register or a final judgment; or
(2) An admission of legitimate filiation in a
public document or a private handwritten
instrument & signed by the parent
concerned.
In the absence of the foregoing evidence,
the legitimate filiation shall be proved by:
(1) The open & continuous possession of
the status of a legitimate child; or
(2) Any other means allowed by the Rules
of Court & special laws.

BAVIERA:
Under the NCC:
Recognition
Filiation other than legitimate

of

Voluntary Recognition
Putative father acknowledges child as
his in the record of birth under oath &
signed by him.
Acknowledgment is contained in a last
will & testament.
Acknowledges child before a court of
record.
Acknowledgment is contained in an
authentic document, e.g., ITR, SSS
Application.
Compulsory Recognition
To compel the father to acknowledge
the child, e.g., the rapist is compelled
to acknowledge child begotten thru
rape.
Proof: Open & continuous possession
of status as child not secret; known
to the community.
Proof: Where there is cohabitation,
that the conception coincided w/ the
period of cohabitation.
Proof: In an authentic handwriting of
the father handwritten instrument
signed by him.
HOWEVER, the child has to bring
action during lifetime of putative
parent. EXCEPTION: Putative parent
dies during minority of the child.

BALANE:
With regard to open &
continuous possession of the status of a
legitimate child...the possession in this
case of such status must not be sporadic or
intermittent possession of such status for
an appreciable time is sufficient...it need
not be for the lifetime of the child.
DIAZ

VS.

CA [129 SCRA 621]

HELD: Absence of maternal surname of the


decedent in his certificate of admission to
126

the Phil. Bar does not disprove legitimacy, as


dropping of maternal surname in documents
is commonplace.

child during the lifetime of the putative


parent is abated by the death of such
parent.

Although the last will & testament


cannot prove pedigree, it is not considered as
independent evidence but collectively w/
other evidence on record to prove decedent's
legitimacy.

Art. 174. Legitimate children shall have


the right:
(1) To bear the surnames of the father
& the mother, in conformity w/ the
provisions of the Civil Code on Surnames;
(2) To receive support fr. their parents,
their ascendants, & in proper cases, their
brothers & sisters, in conformity w/ the
provisions of this Code on Support;
(3) To be entitled to the legitime &
other successional rights granted to them
by the Civil Code.

Art. 173. The action to claim legitimacy


may be brought by the child during his or her
lifetime & shall be transmitted to the heirs
should the child die during minority or in a
state of insanity. In these cases, the heirs
shall have a period of five years w/in w/c to
institute the action.
The action already commenced by the
child shall survive notw/standing the death of
either or both of the parties.

Art. 175. Illegitimate children may


establish their illegitimate filiation in the
same way & on the same evidence as
legitimate children.

BAVIERA:
Unless it falls under the 2
exceptions,
(1) child dies during minority
(2) child is in a state of insanity
the right to file this action is not
transmissible to heirs.

BALANE: The action in this case is generally


intransmissible except when the child dies
during minority, or the child dies in a state of
insanity or the child dies pendente lite
MARQUINO VS. IAC [233 SCRA 348]
HELD: Under Art. 285 (Civil Code), the right
of action for the acknowledgment of natural
children can never be transmitted -- her
death tolled the action. In an action for
compulsory recognition, the party in best
position to oppose the same is the putative
parent himself. (However, Art. 285 was
already superseded by Art. 173, FC, Child can
now bring the action during his lifetime even
after the death of parents. But Art. 173
cannot be given retroactive effect bec. it will
prejudice the vested rights of the heirs of the
putative parent transmitted to them after the
latter's death.
DLC:
The action for compulsory
recognition commenced by the illegitimate

BAVIERA: The action must [MAY - typo


error corrected by Baviera]
be
brought
w/in
the
same
period
specified in Article 173, except when
the action is based on the second
paragraph of Article 172, in w/c case
the action may [MUST - Baviera] be
brought during the lifetime of the
alleged parent.

Balane:
The FC rules were meant to
liberalize the rules of the NCC on
illegitimacy...there is no more need for
recognition (w/c was required under the
NCC) proof of illegitimacy is now sufficient.
JAO VS. CA [152 SCRA 359]
HELD: Blood grouping tests are conclusive
as to non-paternity but not as to paternity.
The fact that the blood type of the child is a
possible product of the mother & the
alleged father does not inconclusively
prove that the child is born by such
parents; but if the blood type of the child is
not the possible blood type when the blood
of the mother & the alleged father are
crossmatched, then the child cannot
possibly be that of the alleged father.
127

The cohabitation between the mother


& the supposed father cannot be a ground for
compulsory recognition if such cohabitation
could not have produced the conception of
the child.
This would be the case, for
instance, if the cohabitation took place
outside of the period of conception of the
child. Likewise, if it can be proved by blood
tests that the child & the supposed father
belong to different blood groups, the
cohabitation by itself cannot be a ground for
recognition.
UYGUANGCO VS. CA

[178 SCRA 684]

HELD: Case cites Art. 172 (2nd par.): when


the action is based on second par. of Art.172,
the action may be brought during the lifetime
of the alleged parent. 2nd par of 172: In the
absence of the foregoing evidence, the
legitimate filiation shall be proved by: a) open
& continuous possession, b) other means
allowed by the Rules of Court.
While PR admits that he has none of
the documents mentioned in par.1, he insists
that he has nevertheless been in "open &
continuous possession of the status of a
legitimate child." The problem of PR is that
since he seeks to prove his filiation under par.
2, he is now barred bec. of his alleged
father's death in 1975. The putative father's
death in 1975, made the Civil Code
applicable to him & not the Family Code.
Thus, PR cannot prove his illegitimate filiation
bec. of his father's death.

MENDOZA VS. CA

[201 SCRA 675]

HELD: To establish "the open & continuous


possession of the status of an illegitimate
child," it is necessary to comply w/ certain
jurisprudential requirements. "Continuous"
does not mean that the concession of status
shall continue forever but only that it shall
not be of an intermittent character while it
continues. The possession of such status
means that the father has treated the child
as his own, directly & not through others,
spontaneously & w/o concealment though
w/o
publicity
(since
the
relation
is
illegitimate.)
There must a showing of
permanent intention of the suppose father to
consider the child as his own, by continuous
& clear manifestation of affection & care.

Art. 176. Illegitimate children shall use


the surname & shall be under the parental
authority of their mother, & shall be
entitled to support in conformity w/ this
Code. The legitime of each illegitimate
child shall consist of one half of the
legitime of a legitimate child.

BALANE: Anent the right of an illegitimate


child
in
compulsory
&
intestate
succession...the illegitimate child shall be
entitled to 1/2 of the share of the legitimate
child.
Art. 177. Only children conceived &
born outside of wedlock of parents who, at
the time of the conception of the former,
were not disqualified by any impediment to
marry each other may be legitimated.

BALANE: Anent legitimated children...the


parents of the child must not be
disqualified fr. marrying one another at the
point of conception.
So if the parents of the child, at the latter's
conception, were 16 & 15 years old, the
child may not be legitimated.
Art. 178. Legitimation shall take place
by a subsequent valid marriage between
parents. The annulment of a voidable
marriage shall not affect the legitimation.
Art. 179. Legitimated children shall
enjoy the same rights as legitimate
children.
Art. 180. The effects of legitimation
shall retroact to the time of the child's
birth.
Art. 181. The legitimation of children
who died before the celebration of the
marriage shall benefit their descendants.
Art.
182.
Legitimation
may
be
impugned only by those who are
prejudiced in their rights, w/in five years fr.
the time their cause of action accrues.

Baviera Cases:
128

TAYAG V. CA 209 S 588 (1992)]


FACTS:
E. Cuyugan, in her capacity as
mother & guardian of minor Chad, filed a
Claim for Inheritance against the admin of
the estate of Tayag. E contended that she
had an amorous relationship w/ & that as a
consequence thereof, she gave birth to C. E
presented as evidence several letters fr. T w/c
provide, inter alia, I have vowed to recognize
him & be my heir. After all, we love each
other & Chad is the product of our love
HELD: An action to compel recognition & an
action to claim inheritance may be joined in
one complaint.
There is no absolute
necessity requiring that the action to compel
acknowledgment should have been instituted
& prosecuted to a successful conclusion prior
to the action in w/c the same plaintiff seeks
additional relief in the character of heir.
Under Art. 285 of the Civil Code, if the
mother or father died during minority, an
action for recognition of natural based on oral
proof may be brought by the child before the
expiration of four years fr. attainment of
majority.
However, under Art. 175 of the Family
Code, if the action is based on oral proof, it
must be filed during the lifetime of the
parent. The Family Code cannot be given
retroactive effect bec. it will impair vested
rights. The right of action of the child has
already vested by the filing of the case under
the Civil Code, before the enactment of the
Family Code . Such right can no longer be
prejudiced or impaired by the enactment of a
new law.
BENITEZ V. CA [229 S 468 (1994)]
FACTS: The spouses Benitez owned several
properties. During their lifetime, they raised
since childhood one Marissa-Benitez Badua.
Upon their death (H & W), the collateral
relatives of the H prayed for the issuance of
letters of admin in their favor alleging that M
is not related to the spouses by blood, nor is
she legally adopted. As such, M should not
be considered a legal heir.
HELD: The claim for inheritance of a child
who is not the biological or adopted child of
deceased was denied, on the ground that
Articles 164, 166, 170, & 171 of the Family
Code do not contemplate a situation where a

child is alleged not to be the child by


nature or biological child of a certain
couple. Rather, these articles govern a
situation where the husband or his heirs
denies as his own a child of his wife.
RODRIGUEZ VS., CA [245 SCRA 150]
FACTS: A. Agbulos brought an action for
recognition & support against Rodriguez.
During the trial, A presented his mother as
a witness. When she was asked to reveal
the identity of As father, Rs lawyer raised
a timely objection.. R contends that the
mother should not be allowed to reveal the
name of As father since it is prohibited by
Art. 280, NCC.
HELD: Art. 280 provides that when the
father or the mother makes the recognition
separately. He or she shall not reveal the
name of the person w/ whom she had the
child; neither shall he or she state any
circumstance whereby the other party may
be identified.
This prohibition merely refers to
VOLUNTARY RECOGNITION & not to a
compulsory one. It merely refers to the act
of recognition & does not prevent inquiry
into the identity of the other party in case
an action is brought in court to contest
recognition.
NOTE:
Arts. 276-280 have been
repealed by the FC. Maam says that
although the mothers testimony is
admissible, its probative value is
insignificant.
BAVIERA: Under the NCC, the family
home is constituted either:
Judicially all creditors are notified.
FH is exempt EXCEPT as to taxes &
encumbrances.
Extrajudicially

mere
sworn
statement registered w/ the Registry
of Deeds. Exempts only as regards
debts contracted AFTER constitution.
Exceptions: taxes, encumbrances.

X. ADOPTION

129

WHAT IS ADOPTION?
A fiction created by law to give (establish) a
relation of people where none previously
existed.

such that the decree made is binding on all


persons, whether personally notified or
merely through constructive notice.

A juridical act, proceeding in rem, w/c creates


between two persons a relationship similar to
that w/c results of legitimate paternity &
filiation.

Consequently, no court may entertain a


petition for adoption unless it has
jurisdiction, not only over the subject
matter of the case & over the parties, but
also, over the res - i.e., the personal status
of both the person to be adopted & person
adopting.

Adoption, in modern trends, is deemed not


merely an act to establish the relation of
paternity & filiation but one w/c gives the
child a legitimate status.

Testamentary & extrajudicial adoptions


practiced in some countries are not
recognized in this jurisdiction.

It is in this sense that adoption is now defined


as a "juridical act w/c creates between two
persons a relationship similar to that w/c
results fr. legitimate paternity & filiation.
Since adoption establishes the relationship of
paternity & filiation, it must as a consequence
involve two perspectives - fr. that of the
adopting parent & fr. that of the adopted
child.
As used in the family law the relationship of
paternity & filiation is that w/c exists between
parents & their children. This tie or
relationship may arise only either fr. nature,
when a child is born, or by legal fiction, as
when a child is legally adopted.
Paternity is the state or condition of being a
father, whereas "filiation" is the descent of
son or daughter, w/ regard to his or her
father, mother, & their ancestors.
Under family law, "paternity" generally
includes "maternity" w/c is the status of
being a mother.
PURPOSE OF ADOPTION
To provide homes, parental care & education
for unfortunate, needy or orphaned children
& give them the protection of society &
family in the person of the adopter, & at the
same time, allow childless couples or persons
to experience the joys of parenthood & give
them legally a child in the person of the
adopted for the manifestation of their natural
parental instincts

WHO MAY ADOPT

Art. 183.
A person of age & in
possession of full civil capacity & legal
rights may adopt, provided he is in a
position to support & care for his children,
legitimate or illegitimate, in keeping w/ the
means of the family.
Only minors may be adopted, except in
the cases where the adoption of a person
of majority age is allowed in this Title
In addition, the adopter must be at
least sixteen years older than the person to
be adopted, unless the adopter is the
parent by nature of the adopted, or is the
spouse of the legitimate parent of the
person to be adopted.

BALANE: This article gives the basic rule:


the adopter need not be married & need
not be childless...the adopter may still
adopt so long as he is able to support his
legitimate or illegitimate children.
Art. 185. Husband & wife must jointly
adopt, except in the following cases:

Promotion of the best interest & welfare of


the child

(1) When one spouse seeks to adopt his


own illegitimate child; or
(2) When one spouse seeks to adopt
the legitimate child of the other.

NATURE OF ADOPTION PROCEEDING

REPUBLIC V. CA [227 SCRA 401]

Adoption as a juridical act is a proceeding in


rem.
Proceedings in rem are court actions where
the whole world is a party, whether w/in or
w/o the territorial jurisdiction of the forum,

FACTS: Hughes, a natural born US citizen


married Mabunay, a Filipina. Subsequently,
M was naturalized as a US citizen. The

130

spouses filed a petition for adoption of the


three minor niece & nephews of M.
ISSUE: WON the couple is allowed by law to
adopt said minors.
HELD:
In cases where the spouses are
required to jointly adopt, both of them must
be qualified to adopt.
While H, a natural born US citizen, is
not permitted to adopt under any of the
exceptional cases enumerated in par. 3 of
Art. 184, M, however, can qualify pursuant to
par. 3 (a) of the same Art. The problem in her
case lies, however, w/ Art. 185 w/c requires H
& W to adopt jointly, a condition that must be
read along together w/ Art. 184. The spouses
who are required by law to adopt jointly must
both be qualified to so adopt. In this case,
while M is qualified, H is not. Hence, they
cannot adopt.

Art. 186. In case husband & wife jointly


adopt or one spouse adopts the legitimate
child of the other, joint parental authority
shall be exercised by the spouses in
accordance w/ this Code.

WHO MAY NOT ADOPT


Art. 184. The following persons may not
adopt:
(1) the guardian w/ respect to the ward
prior to the approval of the final accounts
rendered upon the termination of their
guardianship relation;
(2) Any person who has been convicted of
a crime involving moral turpitude;
(3) An alien, except:
(a) A former Filipino citizen who seeks
to adopt a relative by consanguinity;
(b) One who seeks to adopt the
legitimate child of his or her Filipino spouse;
or
(c) One who is married to a Filipino
citizen & seeks to adopt jointly w/ his or her
spouse a relative by consanguinity of the
latter.
Aliens not included in the foregoing
exceptions may adopt Filipino children in
accordance w/ the rules on inter-country
adoption as may be provided by law.

BALANE: Anent the disqualification of an


alien fr. adopting, RA 8043 provides for
inter-country adoption. The Implementing
Rules & Regulations have already been
approved (Dec.26, 1995)...even if alien is
not in the Philippines, he may now adopt
under ICAL
Q: Suppose A is a foreigner & B is a former
Filipina. B has a nephew C. Can A & B
adopt C?
A: No. B can adopt X under Art. 184.3. But
under Art. 185, B cannot adopt X w/o
joining her husband (Republic v. Toledano)
Art. 184 should be read together w/ Art.
185.
REPUBLIC V. TOLEDANO [233 SCRA 9]
HELD:
In case the husband & wife are
required by law to adopt jointly, both of
them must be qualified to & not
disqualified to adopt.
There can be no question that Alvin
Clouse (a natural born US citizen) is not
qualified to adopt under any of the
exceptions found in Art. 184. In the first
place, he is not a former Filipino citizen. In
the second place, Solomon is neither his
relative by consanguinity nor the legitimate
child of his spouse.
Evelyn, on the other hand, appears
to qualify pursuant to par. 3 (a) of Art. 184.
She was a former Filipino citizen who seeks
to adopt a brother.
Unfortunately, the
petition for adoption cannot be granted in
her favor alone w/o violating Art. 185 w/c
mandates that H & W should adopt jointly.
Art. 185 requires a joint adoption by the H
& W, a condition that must be read along
w/ Art. 184.
WHO MAY BE ADOPTED
General Rule:
adopted.

Only a minor may be

Exception: Art. 182 3rd paragraph... & the


case where prior to adoption, the child had
already been de facto adopted.
WHO MAY NOT BE ADOPTED
131

Art. 187. The following may not be


adopted:
(1) A person of legal age, unless he or she
is a child by nature of the adopter or his or
her spouse, or prior to the adoption, said
person had been consistently considered &
treated by the adopter as his or her own child
during minority.
(2) An alien w/ whose government the
Republic of the Philippines has no diplomatic
relations; &
(3) A person who has already been
adopted unless such adoption has been
previously revoked or rescinded.

BALANE:
Suppose a child has been
previously adopted, but is to be adopted now
by the spouse of the previous adopter.
Applying Art. 187.3 literally, the spouse may
not adopt. There is a need to reconcile the
apparent conflict between Art. 185 & Art.
187.3
WHERE FILED
Sec. 1, Rule 99. Venue. A person desiring
to adopt another or have the custody of a
minor shall present his petition to the CFI of
the province, or the municipal or justice of
the peace court of the city or municipality in
w/c he resides.
In the City of Manila, the proceedings
shall be instituted in the JDRC.
PROCEDURE
Sec. 2, Rule 99. Contents of petition. The
petition for adoption shall contain the same
allegations required in a petition for
guardianship, to wit:
(a) The jurisdictional facts;
(b) The qualifications of the adopter;
(c) That the adopter is not disqualified
by law;
(d) The name, age, & residence of the
person to be adopted & of his relatives or of
the persons who have him under their care;
(e) The probable value & character of
the estate of the person to be adopted.
Sec. 3, Rule 99. Consent to adoption. There shall be filed w/ the petition a written
consent to the adoption signed by the child, if
fourteen years of age or over & not
incompetent, & by the child's spouse, if any,
& by each of its known living parents who is

not insane or hopelessly intemperate, or


has not abandoned such child, or if there
are no such parents by the general
guardian or guardian ad litem of the child,
or if the child is in the custody of an orphan
asylum, children's home, or benevolent
society or person, by the proper officer or
officers of such asylum, home, or society or
by such person; but if the child is
illegitimate & has not been recognized, the
consent of the father to the adoption shall
not be required.
If the person to be
adopted is of age, only his or her consent &
that of the spouse, if any, shall be required.
Art. 188. The written consent of the
following to the adoption shall be
necessary:
(1)The person to be adopted, if ten
years of age or over;
(2) The parents by nature of the child,
the legal guardian, or the proper
governmental instrumentality;
(3) The legitimate & adopted children,
ten years of age or over, of the adopting
parent or parents;
(4) The illegitimate children, ten years
of age or over, of the adopting parent, if
living w/ said parent & the latter's spouse,
if any; &
(5) The spouse, if any, of the person
adopting or to be adopted.

BALANE: 188.2 will not apply to the


father of an illegitimate child...who has no
parental authority over the child.
Sec. 4, Rule 99. Order for hearing. - If
the petition & consent filed are sufficient in
form & substance, the court, by an order
reciting the purpose of the petition, shall fix
a date & place for the hearing thereof, w/c
date shall not be more than six (6) months
after the entry of the order, & shall direct
that a copy of the order be published
before the hearing at least once a week for
three (3) successive weeks in some
newspaper of general circulation published
in the province, as the court shall deem
best.
Sec. 5, Rule 99. Hearing & judgment. Upon satisfactory proof in open court on
the date fixed in the order that such order
has been published as directed, that the
allegations of the petition are true, & that it
132

is a proper case for adoption & the petitioner


or petitioners are able to bring up & educate
the child properly, the court shall adjudge
that thenceforth the child is freed fr. all legal
obligations of obedience & maintenance w/
respect to its natural parents, except the
mother when the child is adopted by her
husband, & is, to all legal intents & purposes,
the child of the petitioner or petitioners, &
that its surname is changed to that of the
petitioner or petitioners.
The adopted person or child shall
thereupon become the legal heir of his
parents by adoption & shall also remain the
legal heir of his parents.
In case of death of the adopted person or
child, his parents & relatives by nature, & not
by adoption, shall be his legal heir.
Sec. 6, Rule 99. Proceedings as to child
whose parents are separated. Appeal. - When
husband & wife are divorced or living
separately & apart fr. each other, & the
question as to the care, custody, & control of
a child or children of their marriage is brought
before a CFI by petition or as an incident to
any other proceeding, the court, upon
hearing the testimony as may be pertinent,
shall award the care, custody, & control of
each such child as will be for its best interest,
permitting the child to choose w/c parent it
prefers to live w/ if it be over ten years of
age, unless the parent so chosen be unfit to
take charge of the child by reason of moral
depravity, habitual drunkenness, incapacity,
or poverty.
If, upon such hearing, it appears that both
parents are improper persons to have the
care, custody, & control of the child, the court
may either designate the paternal or
maternal grandparent of the child, or his
oldest brother or sister, or some reputable &
discreet person to take charge of such child,
or commit it to any suitable asylum,
children's home, or benevolent society.
The court may in conformity w/ the
provisions of the Civil Code order either or
both parents to support or help support said
child, irrespective of who may be its
custodian, & may make any order that is just
& reasonable permitting the parent who is
deprived of its care & custody to visit the
child or have temporary custody thereof.

Either parent may appeal fr. an order


made in accordance w/ the provisions of
this section.
No child under five (5) years of age
shall be separated fr. its mother, unless the
court finds there are compelling reasons
therefor. (as amended by PD 603)
Sec. 7, Rule 99. Proceedings as to
vagrant or abused child. - When the
parents of any minor child are dead or by
reason of long absence or legal or physical
disability have abandoned it, or cannot
support it through vagrancy, negligence, or
misconduct, or neglect or refuse to support
it, or treat it w/ excessive harshness or give
it corrupting orders, counsels, or examples,
or cause or allow it to engage in begging,
or to commit offenses against the law, the
proper CFI, upon petition filed by some
reputable resident of the province setting
forth the facts, may issue an order
requiring such parents to show cause, or, if
the parents are dead or cannot be found,
requiring the fiscal of the province to show
cause, at a time & place fixed in the order,
why the child should not be taken fr. its
parents, if living; & if upon the hearing it
appears that the allegations of the petition
are true, & that it is for the best interest of
the child, the court may make an order
taking it fr. its parents, if living; &
committing it to any suitable orphan
asylum, children's home, or benevolent
society or person to ultimately placed, by
adoption or otherwise, in a home found for
it by such asylum, children's home, society,
or person.
Art. 162, PD 603. Adoption of
Dependent or Abandoned or Neglected
Child. - Upon the filing of an application by
any person to adopt a dependent,
abandoned or neglected child in the
custody of any institution or individual
mentioned in Article 156, it shall be the
duty of the provincial or city fiscal, any
recognized legal association, or any
appointed de officio counsel upon being
informed of such fact, to represent the
DSWD in the proceedings. The costs of
such proceedings shall be de officio.
dependent child - one who is w/o a
parent, guardian or custodian; or one
133

whose parents, guardian or other custodian


for good cause desires to be relieved of his
care & custody; & is dependent upon the
public for support.
abandoned child - one who has no proper
parental care or guardianship, or whose
parents or guardians have deserted him for a
period of at least six continuous months.
Neglected child - one whose basic needs
have been deliberately unattended or
inadequately attended. Neglect may occur in
two ways:
a) physical neglect - when the child is
malnourished, ill clad & w/o proper shelter.
A child is unattended when left by himself
w/o provisions for his needs &/or w/o proper
supervision.
b) emotional neglect - when children are
maltreated, raped or seduced; when children
are exploited, overworked or made to work
under conditions not conducive to good
health; or are made to beg in the streets or
public places, or when children are in moral
danger, or exposed to gambling, prostitution
& other vices.
Art. 156, PD 603. Legal Custody. - When
any child shall have been committed in
accordance w/ the preceding article & such
child shall have been accepted by the DSWD
or any duly licensed child placement agency
or individual, the rights of his natural parents,
guardian, or other custodian to exercise
parental authority over him shall cease.
Such agency or individual shall be
entitled to the custody & control of such child
during his minority, & shall have authority to
care for, educate, train & place him out
temporarily or for custody & care in a duly
licensed child placement agency.
Such agency or individual may intervene
in adoption proceedings in such manner as
shall best inure to the child's welfare.
Sec. 8, Rule 99. Service of judgment. Final orders or judgments under this rule shall
be served by the clerk upon the civil registrar
of the city or municipality wherein the court
issuing the same is situated.
EFFECTS OF ADOPTION

Art. 189.
Adoption shall have the
following effects:
(1) For civil purposes, the adopted child
shall be deemed to be a legitimate child of
the adopters & both shall acquire the
reciprocal rights & obligations arising fr. the
relationship of parent & child, including the
right of the adopted to use the surname of
the adopters;
(2) The parental authority of the
parents by nature over the adopted shall
terminate & be vested in the adopters,
except that if the adopter is the spouse of
the parent by nature of the adopted,
parental authority over the adopted shall
be exercised jointly by both spouses;
(3) The adopted shall remain an
intestate heir of his parents & other blood
relatives.

LAZATIN VS. CAMPOS [92 SCRA 440]


HELD:
Adoption is a juridical act, a
proceeding in rem, w/c creates between
two persons a relationship similar to that
w/c results fr. legitimate paternity &
filiation. Only an adoption made through
the court, or in pursuance w/ the procedure
laid down under Rule 99, RC is valid in this
jurisdiction. It is not of natural law at all,
but is wholly & entirely artificial.
To
establish the relation, the statutory
requirements must be carried out,
otherwise, the adoption is an absolute
nullity.
The fact of adoption is never
presumed, but must be affirmatively
proved by the person claiming its
existence. On the contrary, the absence of
a record of adoption raises the presumption
of its non-existence. Secondary evidence is
admissible only after establishing the prior
existence of the instrument lost or
destroyed. Declarations of the deceased,
made in his lifetime, of any intention to
adopt is not sufficient to establish the fact
of adoption.
(Note: Records of a court order granting
adoption even if not registered w/ the civil
registry, proves such adoption, & cannot be
collaterally attacked in an intestate
proceeding.)
134

Art. 190. Legal or intestate succession to


the estate of the adopted shall be governed
by the following rules:
(1) Legitimate & illegitimate children &
descendants & the surviving spouse of the
adopted shall inherit fr. the adopted, in
accordance w/ the ordinary rules of legal or
intestate succession;
(2) When the parent, legitimate or
illegitimate, or the legitimate ascendants of
the adopted concur w/ the adopters, they
shall divide the entire estate, one-half to be
inherited by the parents or ascendants & the
other half, by the adopters;
(3) When the surviving spouse or the
illegitimate children of the adopted concur w/
the adopters, they shall divide the entire
estate in equal shares, one-half to be
inherited by the spouse or the illegitimate
children of the adopted & the other half, by
the adopters.
(4) When the adopters concur w/ the
illegitimate children & the surviving spouse of
the adopted, they shall divide the entire
estate in equal shares, one-third to be
inherited by the illegitimate children, onethird by the surviving spouse, & one-third by
the adopters;
(5) When only the adopters survive, they
shall inherit the entire estate; &
(6) When only collateral blood relatives of
the adopted survive, then the ordinary rules
of legal or intestate succession shall apply.

BALANE:
This provision is defectively
drafted. It only gives rules w/ regard to
intestate succession...it does not give rules
on legitimes...who are the adopted's
compulsory heirs & how much are their
legitimes.

WHO
MAY
FILE
PETITION
RESCISSION OR REVOCATION?
A

FOR

minor or other incapacitated person,


through a guardian or guardian ad litem

Grounds: for the same causes that authorize


deprivation of parental authority

Grounds:
If the adopted person has attempted
against the life of the adopter;
When the adopted minor has abandoned
the home of the adopter for more than
three (3) years;
When by other acts the adopted person
has repudiated the adoption.
(Sec.
1, Rule 100)
Art. 191. If the adopted is a minor or
otherwise incapacitated, the adoption may
be judicially rescinded upon petition of any
person authorized by the court or proper
government instrumentality acting on his
behalf, on the same grounds prescribed for
loss or suspension of parental authority. If
the adopted is at least eighteen years of
age, he may petition for judicial rescission
of the adoption on the same grounds
prescribed for disinheriting an ascendant.
Art. 192. The adopters may petition
the court for the judicial rescission of the
adoption in any of the following cases:
(1) If the adopted has committed any
act constituting a ground for disinheriting a
descendant; or
(2) When the adopted has abandoned
the home of the adopters during minority
for at least one year, or, by some other
acts, has definitely repudiated the
adoption.
PROCEDURE
Sec. 2, Rule 100. Order to answer. - The
court in w/c the petition is filed shall issue
an order requiring the adverse party to
answer the petition w/in fifteen (15) days fr.
receipt of a copy thereof.
The order & copy of the petition
shall be served on the adverse party in
such manner as the court may direct.
Sec. 3, Rule 99. Judgment. - If upon
trial, on the day set therefor, the court
finds that the allegations of the petition are
true, it shall render judgment ordering the
rescission or revocation of the adoption, w/
or w/o costs, as justice requires.

The adopter
135

Sec. 4, Rule 100. Service of judgment. - A


certified copy of the judgment rendered in
accordance w/ the next preceding section
shall be served upon the civil registrar
concerned, w/in thirty (30) days fr. rendition
thereof, who shall forthw/ enter the action
taken by the court in the register.
Sec. 5, Rule 100. Time w/in w/c to file
petition.- A minor or other incapacitated
person must file the petition for rescission or
revocation of adoption w/in the five (5) years
following his majority, or if he was
incompetent at the time of the adoption, w/in
five (5) years following the recovery fr. such
incompetency.
The adopter must also file the petition to
set aside the adoption w/in five (5) years fr.
the time the cause or causes giving rise to
the rescission or revocation of the same took
place.
EFFECTS
Art. 193. If the adopted minor has not
reached the age of majority at the time of the
judicial rescission of the adoption, the court
in the same proceeding shall reinstate the
parental authority of the parents by nature,
unless the latter are disqualified or
incapacitated, in w/c case the court shall
appoint a guardian over the person &
property of the minor.
If the adopted person is physically or
mentally handicapped, the court shall appoint
in the same proceeding a guardian over his
person or property or both.
Judicial rescission of the adoption shall
extinguish all reciprocal rights & obligations
between the adopters & the adopted arising
fr. the relationship of parent & child. The
adopted shall likewise lose the right to use
the surnames of the adopters & shall resume
his or her surname prior to the adoption.
The court shall accordingly order the
amendment of the records in the proper
registries.

INTERCOUNTRY ADOPTION ACT


BAR Q:
1980 H & W were Filipinos. In
1986, they became naturalized US citizens. 3
years later, they seek to adopt a relative w/in

the 4th degree of consanguinity. Can they


do so?
A: YES. Under RA 8552, as former Filipino
citizens, they are allowed to adopt said
relative.
BAVIERA: RA 8552
TESTAMENTARY:
Adopted
is
a
compulsory heir of adopter but the adopter
is NOT necessarily a compulsory heir of
adopted. Neither is the biological parent a
compulsory heir of the adopted.
Basis: RA 8552 Sec. 17. Compared w/ the
FC, there is no reciprocal rights &
obligations between adopter & adopted.
INTESTATE:
Adopter & adopted have
reciprocal rights & obligations. They are
therefore legal heir of each other.
EXCLUDED: Parents by nature who are not
the adopters. (unlike the FC)
C. Sec. 18 Last sentence is confusing.

XI. SUPPORT
BAVIERA: Judgment of support never
becomes final.
Reason:
always
subject to modification.
RA 6809 Under Art. 2180 of the NCC,
the liability of parents for tortuous
acts of their children BELOW 21 still
exists. (In other words, even if the
age of majority is lowered to 18, for
purposes of Art. 2180, children below
21 are still considered minorsFritzie)

Art. 194. Support comprises everything


indispensable for sustenance, dwelling,
clothing, medical attendance, education &
transportation, in keeping w/ the financial
capacity of the family.
The education of the person entitled to
be supported referred to in the preceding
paragraph shall include his schooling or
training for some profession, trade or
vocation, even beyond the age of majority.
Transportation shall include expenses in
going to & fr. school, or to & fr. place of
work.
136

Art. 195. Subject to the provisions of the


succeeding articles, the following are obliged
to support each other to the whole extent set
forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants & descendants;
(3) Parents & their legitimate children &
the legitimate & illegitimate children of the
latter;
(4) Parents & their illegitimate children &
the legitimate & illegitimate children of the
latter; &
(5) Legitimate brothers & sisters, whether
of the full or half-blood.

BAVIERA: Under the NCC, the illegitimate


children of legitimate children, in other
words illegit grandchild, under (3) & (4)
are not included.

Art. 196. Brothers & sisters not


legitimately related, whether of the full or
half-blood, are likewise bound to support
each other to the full extent set forth in
Article 194, except only when the need for
support of the brother or sister, being of age,
is due to a cause imputable to the claimant's
fault or negligence.
Art. 197. For the support of legitimate
ascendants, descendants, whether legitimate
or illegitimate, & brothers & sisters, whether
legitimately or illegitimately related, only the
separate property of the person obliged to
give support shall be answerable provided
that in case the obligor has no separate
property, the absolute community or the
conjugal partnership, if financially capable,
shall advance the support, w/c shall be
deducted fr. the share of the spouse obliged
upon the liquidation of the absolute
community or of the conjugal partnership.

BALANE:
Support of a legitimate child
should come fr. community property...this
article speaks of legitimate descendants
other than legitimate children
Art. 198. During the proceedings for legal
separation or for annulment of marriage, &
for declaration of nullity of marriage, the
spouses & their children shall be supported fr.

the properties of the absolute community


or the conjugal partnership. After final
judgment granting the petition the
obligation of mutual support between the
spouses ceases. However, in case of legal
separation, the court may order that the
guilty spouse shall give support to the
innocent one, specifying the terms of such
order.

LERMA V. CA [61 SCRA 440]


HELD:- Adultery is a good defense against
a petition for support. TA petition in bad
faith, such as that filed by one who is
himself or herself guilty of an act w/c
constitutes the ground for legal separation,
can't be considered as w/in the intendment
of the law granting separate support.
Under Art. 303, the obligation to give
support shall cease when the recipient, be
he a forced heir or not, has committed
some act w/c gives rise to disinheritance; &
under Art. 291, one of the causes for
disinheriting a spouse is when the spouse
has given cause for legal separation. The
right to separate support or maintenance,
even fr. the conjugal partnership property
presupposes the existence of a justifiable
cause for the spouse claiming such right to
live separately.
REYES V. INES-LUCIANO [88 SCRA 803]
HELD: While it is true that the adultery of
the wife is a defense in an action for
support, the alleged adultery must be
established by competent evidence. Mere
allegation that the wife has committed
adultery will not bar her fr. the right to
receive support pendente lite. During the
hearing of the application for support
pendente lite, adultery must be properly
proved to defeat the action for support.
(Note: But if both spouses are guilty of
infidelity or if there has been consent or
condonation of the acts constituting
infidelity, the right to support remains.)

Art.
persons
liability
persons

199. Whenever two or more


are obliged to give support, the
shall devolve upon the following
in the order herein provided:
137

(1) The spouse;


(2) The descendants in the nearest
degree;
(3) The ascendants in the nearest degree;
(4) The brothers & sisters.

BALANE: It is important to remember the


order of preference given in this article.
Art. 200. When the obligation to give
support falls upon two or more persons, the
payment of the same shall be divided
between them in proportion to the resources
of each.

Art. 203. The obligation to give support


shall be demandable fr. the time the person
who has a right to receive the same needs
it for maintenance, but it shall not be paid
except fr. the date of judicial or extrajudicial demand.
Support pendente lite (See Rule 61)
may be claimed in accordance w/ the Rules
of Court.
Payment shall be made w/in the first
five days of each corresponding month.
When the recipient dies, his heirs shall not
be obliged to return what he has received
in advance.

However, in case of urgent need & by


special circumstances, the judge may order
only one of them to furnish the support
provisionally, w/o prejudice to his right to
claim fr. the other obligors the share due fr.
them.

BALANE: There are two basic rules w/


regard to support: (1) demandable when
needed & (2) payable when demanded

When two or more recipients at the same


time claim support fr. one & the same person
legally obliged to give it, should the latter not
have sufficient means to satisfy all claims,
the order established in the preceding article
shall be followed, unless the concurrent
obligees should be the spouse & a child
subject to parental authority, in w/c case the
child shall be preferred.

Q: X needed support fr. his father Y fr. 1


Jan 1996. However, X called his father to
demand support only on 1 April 1996. On 1
June 1996, he filed a suit against the father
for support The Court orders support to be
given. From what date should the amount
of support be computed?

BALANE: Art. 200 establishes the order for


recipients of support
Q: X is being asked for support by different
people who are entitled to it. What are the
things to remember?
A:
satisfy all if possible
if he does not have enough to satisfy all, then
he should go by the order under Art. 200.
Art. 201. The amount of support, in the
cases referred to in Articles 195 to 196, shall
be in proportion to the resources or means of
the giver & to the necessities of the recipient.
Art. 202. Support in the cases referred to
in the preceding article shall be reduced or
increased proportionately, according to the
reduction or increase of the necessities of the
recipient & the resources or means of the
person obliged to furnish the same.

Demand for support may either be judicial


or extrajudicial.

A:
The entitlement for support shall
retroact to 1 April 1996, the date when
extra-judicial demand was made.
Q: Suppose no extra-judicial demand was
made?
A: Then the reckoning date shall be the
date when the suit is filed..(judicial
demand).
Q:
Suppose demand is made but
subsequently the claimant is able to
support himself?
A: Then he is entitled to support during
such time that he was unable to support
himself...even if payment for such support
is made after he had already recovered &
been able to support himself.
Support in arrears...being an ordinary civil
action, may be renounced...however, the
right to receive future support may not be
renounced. Any renunciation that effect
shall be void.
Art. 204. The person obliged to give
support shall have the option to fulfill the
obligation either by paying the allowance
138

fixed, or by receiving & maintaining in the


family dwelling the person who has a right to
receive support. The latter alternative cannot
be availed of in case there is a moral or legal
obstacle thereto.
Art. 205. The right to receive support
under this Title as well as any money or
property obtained as such support shall not
be levied upon an attachment or execution.
Art. 206. When, w/o the knowledge of the
person obliged to give support, it is given by
a stranger, the latter shall have a right to
claim the same fr. the former, unless it
appears that he gave it w/o intention of being
reimbursed.
Art. 207. When the person obliged to
support another unjustly refuses or fails to
give support when urgently needed by the
latter, any third person may furnish support
to the needy individual, w/ right of
reimbursement fr. the person obliged to give
support. This Article shall apply particularly
when the father or mother of a child under
the age of majority unjustly refuses to
support or fails to give support to the child
when urgently needed.
Art. 208. In case of contractual support or
that given by will, the excess in amount
beyond that required for legal support shall
be subject to levy on attachment or
execution.
Furthermore, contractual support shall be
subject to adjustment whenever modification
is necessary due to changes in circumstances
manifestly beyond the contemplation of the
parties.
SUPPORT PENDENTE LITE

party who shall have three (3) days to


answer, unless a different period of time is
fixed by the court.
Rule 61, Sec. 3. Answer. - The answer
shall be in writing & accompanied by
affidavits, depositions or other authentic
documents supporting the same.
Rule 61, Sec. 4. Hearing. - After the
answer is filed, or after the expiration of
the time for its filing, a day will be set for
hearing. The facts in issue shall be proved
in the same manner as is provided in
connection w/ motions.
Rule 61, Sec. 5, Order. - The court shall
determine provisionally the pertinent facts,
& shall render such order as equity &
justice may require, having due regard to
the necessities of the applicant, the means
of the adverse party, the probable outcome
of the case, & such other circumstances as
may aid in the proper elucidation of the
question involved. If the application is
granted, the court shall fix the amount of
money to be provisionally paid, & the terms
of payment. If the application is denied, the
trial of the principal case on its merits shall
be held as early as possible.
Rule 61, Sec. 5. Enforcement of order. If defendant fails to comply w/ an order
granting support pendente lite, he must be
ordered to show cause why he should not
be punished for contempt. Should the
defendant appear to have means to pay
support & refuses to pay, either an order of
execution may be issued or a penalty for
contempt may be imposed, or both.

XII. PARENTAL AUTHORITY

Rule 61, Sec. 1. Application. - The plaintiff,


at the commencement of the proper action,
or at any time afterwards but prior to final
judgment, may file an application for support
pendente lite, stating the grounds for the
claim & the financial conditions of both
parties, & shall be accompanied by affidavits,
depositions or other authentic documents in
support thereof.

Art. 209. Pursuant to the natural right &


duty of parents over the person & property
of their unemancipated children, parental
authority & responsibility shall include the
caring for & rearing of such children for
civic consciousness & efficiency & the
development of their moral, mental &
physical character & well-being.

Rule 61, Sec. 2. Notice. - Notice of the


application shall be served upon the adverse

MEDINA V. MAKABILI [27 SCRA 502]


139

HELD: While the law recognizes the right of


a parent to the custody of his/her child,
courts must not lose sight of the basis
principle that in all question on the care,
custody, education & property of the children,
the latter's welfare shall be paramount, &
that for compelling reasons, even a child
under seven may be ordered separated fr.
the mother.
Patria potestas has been transformed
fr. "jus vitae ac necis (the right of life &
death) of the Roman Law, under w/c the
offspring was virtually a chattel of his parents
into a radically different institution.
The
obligational aspect of parents to rear & care
for their children is now supreme. The right
of parents to the company & custody of their
children is but ancillary to the proper
discharge of parental duties to provide the
children w/ adequate support, education,
moral, intellectual & civic training &
development.
The best interest of the minor can
override the right of parents to the custody of
their children the parent/s is/are proved to be
remiss in these sacred duties.
UNSON V. NAVARRO [101 SCRA 183]
HELD: Mother of child is having an affair w/
brother-in-law. With this premise in view, it is
in the best interest of the child to be freed fr.
the obviously unwholesome, not to say
immoral influence that the mother has placed
herself. The situation might affect the moral
& social outlook of the child who is in her
formative years & most impressionable stage
in her life.

Art.
210.
Parental
authority
&
responsibility may not be renounced or
transferred except in the cases authorized by
law.

SANTOS

VS.

CA [242 SCRA 407]

HELD: The right of custody accorded to


parents springs fr. the exercise of parental
authority.
Parental authority or patria
potestas in Roman Law is the juridical
institution whereby parents rightfully assume
control & protection of their unemancipated
children to the extent required by the latter's

needs. It is a mass of rights & obligations


w/c the law grants to parents for the
purpose
of
the
children's
physical
preservation & dev't, as well as the
cultivation of their intellect & the education
of their hearts & senses.
As regards
parental authority, "there is no power, but
a task; no complex of rights, but a sum of
duties; no sovereignty but a sacred trust
for the welfare of the minor.
Parental authority & responsibility
are inalienable & may not be transferred or
renounced except in cases authorized by
law.
The right attached to parental
authority, being purely personal, the law
allows a waiver of parental authority only in
cases
of
adoption,
guardianship
&
surrender to a children's home or an
orphan institution. When a parent entrusts
the custody of a minor to another, such as
a friend or godfather, even in a document,
what is given is merely temporary custody
& it does not constitute a renunciation of
parental
authority.
Even if a definite renunciation is
manifested, the law still disallows the
same.
The father & mother, being the natural
guardians of unemancipated children, are
duty-bound & entitled to keep them in their
custody & company
Only in
absence
parental
surviving

cases of the parent's death,


or unsuitability may substitute
authority be exercised by the
grandparent.

Art. 211. The father & the mother shall


jointly exercise parental authority over the
persons of their common children. In case
of disagreement, the father's decision shall
prevail, unless there is a judicial order to
the contrary.
Children shall always observe respect &
reverence toward their parents & are
obliged to obey them as long as the
children are under parental authority.
Art. 212. In case of absence or death of
either parent, the parent present shall
continue exercising parental authority. The
remarriage of the surviving parent shall not
affect the parental authority over children,
unless the court appoints another person to
140

be the guardian of the person or property of


the children.
Art. 213. In case of separation of the
parents, parental authority shall be exercised
by the parent designated by the Court. The
Court shall take into account all relevant
considerations, especially the choice of the
child over seven years of age, unless the
parent chosen is unfit.
No child under seven years of age shall
be separated fr. the mother, unless the court
finds compelling reasons to order otherwise.

ESPIRITU V. CA [242 SCRA 362]


HELD:
Whether a child is under or over
seven years of age, the paramount criterion
must always be the child's interest.
Discretion is always given to the court to
decide who can best assure the welfare of the
child, & award the custody on the basis of
that consideration.

Art. 214. In case of death, absence or


unsuitability of the parents, substitute
parental authority shall be exercised by the
surviving grandparent. In case several
survive, the one designated by the court,
taking into account the same consideration
mentioned in the preceding article, shall
exercise the authority.
Art. 215.
No descendant shall be
compelled, in a criminal case to testify
against his parents & grandparents, except
when such testimony is indispensable in a
crime against the descendant or by one
parent against the other.

Substitute & Special Parental Authority


Art. 216. In default of parents or a
judicially appointed guardian, the following
persons shall exercise substitute parental
authority
over the child in the order
indicated:
(1) The surviving grandparent, as
provided in Art. 214;
(2) The oldest brother or sister, over
twenty one years of age, unless fit or
disqualified; &

(3) The child's actual custodian, over


twenty one years of age, unless unfit or
disqualified.
Whenever the appointment of a judicial
guardian over the property of the child
becomes necessary, the same order of
preference shall be observed.
Art. 217. In case of foundlings,
abandoned, neglected or abused children &
other children similarly situated, parental
authority shall be entrusted in summary
judicial proceedings to heads of children's
homed, orphanages & similar institutions
duly accredited by the proper government
agency.
Art. 218. The school, its administrators
& teachers, or the individual, entity or
institution engaged in child care shall have
special parental authority & responsibility
over the minor child while under their
supervision, instruction or custody.
Authority & responsibility shall apply to
all authorized activities whether inside or
outside the premises of the school, entity
or institution.

EXCONDE V. CAPUNO

[101 P 843]

FACTS: Capuno, a student & a Boy Scout,


attended a Rizal Day parade. He drove a
jeep recklessly resulting in the death of two
passengers. Father was held solidarily
liable for damages.
HELD: SC, in an obiter, exculpated the
school (not a party to the case) on the
ground that it was not a school of arts &
trades. Justice JBL Reyes, w/ whom Padilla
concurred, dissented arguing that it was
the school authorities who should be held
liable. Liability under this rule, he said, was
imposed on (1) teachers in general; & 2)
heads of schools of arts & trades in
particular.
The modifying clause "of
establishment of arts & trades should apply
only to "heads" & not to "teachers".
MERCADO V. CA [109 P 414]
FACTS: A student cut a classmate w/ a
razor blade. Parents of victim sued the
culprit's parents for damages.
141

HELD: SC held in an obiter again (school not


a party again) that the school was not liable;
it's not an establishment of arts & trades.
Custody requirement had not been proved as
this "contemplates a situation where the
student lives & boards w/ the teacher, such
that the control, direction & influence on the
pupil supersedes those of the parents.

PALISOC V. BRILLANTES [41 SCRA 548]


FACTS:
(supersedes obiter in Exconde &
Mercado) A 16 year old student was killed by
classmate w/ fist blows in the school
laboratory.
HELD: Although wrongdoer was already of
age & was not boarding w/ the school, head
& teacher were held solidarily liable w/ him.
The phrase "so long as (the students) remain
in their custody" means the protective &
supervisory custody that the school & its
heads exercise over the pupils & students for
as long as they are at attendance in the
school, including recess time.
There is
nothing in the law that requires that for such
liability to attach, the pupil or student who
commits the tortuous act must live & board in
the school as erroneously held by the lower
court, & the dicta in Mercado (as well as in
Exconde on w/c it relied) must now be
deemed to have been set aside.
Note: (By JBL) Even students already of age
were covered by the provision since they
were equally in the custody of the school &
subject to its discipline.
AMADORA V. CA [160 SCRA 315]
FACTS: Amadora's son was shot to death by
Daffon, a classmate at school auditorium.
The son was in school to submit physics
project.
The school contends that the
semester had already ended.
HELD: It is immaterial whether the semester
has already ended for students were there for
a legitimate purpose. He was still in the
custody of the school authorities. Even the
mere savoring of the company of his friends
in the school premises is a legitimate purpose
w/c would also bring him in the custody of
the school. The school principal & dean are

not liable bec. they are not teachers-incharge, but are merely exercising general
authority, not direct control & influence.
But even the teacher-in-charge is not liable
bec. there is no showing that the teacher
was negligent in enforcing discipline upon
Daffon nor had he waived observance of
school rules & regulations. His absence
when the tragedy happened cannot be
considered against him bec. he was not
supposed or required to report to school on
that day.
So who is liable here? It's
probably the dean of the boys. He had
earlier confiscated an unlicensed gun fr.
one of the students & returned it to the
latter w/o taking disciplinary action or
reporting the matter to higher authorities.
But while he was clearly negligent, it does
not necessarily link him to the shooting
since it was not shown that the gun was
the one used to kill petitioner's son. Who is
really liable here? Nobody, since none of
them was found to have been charged w/
the custody of the offending student, or
has been remiss in the discharge of his
duties. While the court deeply sympathizes
w/ the petitioners, the court cannot extend
material relief as a balm to their grief.
PASCO V. CFI

[160 SCRA 784]

HELD: Art. 2180, NCC w/c refers to liability


of teachers or heads of establishments of
arts & trades for damages caused by
students who are in their custody, does not
apply to the school or the university itself
or to educational institutions w/c are not
schools of arts & trades. The provision
concerned speaks only of "teachers or
heads."
YLARDE V. AQUINO [163 SCRA 697]
HELD: As regards the principal, We hold
that he cannot be made responsible for the
death of child Ylarde, he being the head of
an academic school & not a school of arts
& trades. Under Art. 2180, it is only the
teacher & not the head of an academic
school who should be answerable for torts
committed by their students. This Court
went on to say that in a school of arts &
trades, it is only the head of the school who
can be held liable.
Where the school is academic
rather than technical or vocational in
nature,
responsibility
for
the
tort
142

committed by the student will attach to the


teacher in charge of such student following
the first par. of the provision. This is the gen.
rule. In the case of establishments of arts &
trades, it is the head thereof, & only he, who
shall be held liable as an exception to the
gen. rule. In other words, teachers in general
shall be liable for the acts of their students
except where the school is technical in
nature, in w/c case it is the head thereof who
shall be answerable.

The rules are not limited to schools of arts


& trade...now "all schools".

SALVOSA V. IAC [166 SCRA 274]

Scope of liability of school extends only to


damage caused by the child in the
course of an authorized school activity.

HELD: Under the penultimate par. of Art.


2180, teachers or heads of establishments of
arts & trades are liable for "damages caused
by their pupils & students or apprentices, so
long as they remain in their custody." The
rationale of such liability is that so long as the
student remains in the custody of a teacher,
the latter "stands, to a certain extent, in loco
parentis (as to the student) & (is) called upon
to exercise reasonable supervision over the
conduct of the (student.)
Likewise, "the
phrase used in (Art. 2180)-- so long as the
(students) remain in their custody' means
that the protective & supervisory custody
that the school & its heads & teachers
exercise over the pupils & students for as
long as they are at attendance in the school,
including recess time.

Authority & responsibility apply to activities


inside & outside...provided the activity
is an authorized one.
The liability of the school administrators
&/or teachers is solidary & primary...the
liability of the parents is subsidiary.
Negligence is presumed...the burden is on
the school/teacher to prove diligence.

Q: Suppose the injuries were inflicted on


the student by persons other than fellow
students.
A: Then do not apply 219 nor 2180NCC.
The school is liable in such a case based on
culpa contractual (PSBA v. CA)...school is
liable for injury caused by elements coming
fr. outside of the school.
Liability for injuries caused by students:
A. Below 18 (RA 6809)
school admi/ teachers are principally &
solidarily liable. Negligence is prima
facie presumed.
parents/guardian is subsidiarily liable.

Art. 219. Those given the authority &


responsibility under the preceding Article
shall be principally & solidarily liable for
damages caused by the acts or omissions of
the unemancipated minor. The parents,
judicial guardians or the persons exercising
substitute parental authority over said minor
shall be subsidiarily liable.
The respective liabilities of those referred
to in the preceding paragraph shall not apply
if it is proved that they exercised the proper
diligence required under the particular
circumstances.
All other cases not covered by this & the
preceding articles shall be governed by the
provisions of the Civil Code on quasi-delicts.

BALANE: Arts. 218 & 219


Five (5) points to remember:

B. 18 & above
(Art 2180 NCC continues to apply)
applies to academic
institutions.

&

non-academic

academic institutions: liability attaches to


teacher.
non-academic institutions: liability attaches
to head of establishment.
Effect of Parental Authority Upon the
Persons of the Children

Art. 220. The parents & those


exercising parental authority shall have w/
respect to their unemancipated children or
wars the following rights & duties:
(1) To keep them in their company, to
support, educate & instruct them by right
143

precept & good example, & to provide for


their upbringing in keeping w/ their means;
(2) To give them love & affection, advice
& counsel, companionship & understanding;
(3) To provide them w/ moral & spiritual
guidance, inculcate in them honesty,
integrity, self-discipline, self-reliance, industry
& thrift, stimulate their interest in civic
affairs, & inspire in them compliance w/ the
duties of citizenship;
(4) To enhance, protect, preserve &
maintain their physical & mental health at all
times;
(5) To furnish them w/ good & wholesome
educational
materials,
supervise
their
activities, recreation & association w/ others,
protect them fr. bad company, & prevent
them fr. acquiring habits detrimental to their
health, studies & morals;
(6) To represent them in all matters
affecting their interests;
(7) To demand fr. them respect &
obedience;
(8) To impose discipline on them as may
be required under the circumstances; &
(9) To perform such other duties as are
imposed by law upon parents & guardians.

LUNA V. IAC [137 SCRA 7]


HELD: The manifestation of the child Shirley
that she would kill herself or run away fr.
home if she should be taken away fr. the
petitioners (grandparents) & forced to live w/
her natural parents is a circumstance that
would make the execution of the judgment in
the special proc. inequitable, unfair, unjust, if
not illegal. The threat may be proven empty,
but Shirley has a right to a wholesome family
life that will provide her w/ love, care &
understanding, guidance & counseling, &
moral & material security. But what if the
threat is for real. Besides, in her letters to
the members of the court, Shirley depicted
her biological parents as selfish & cruel &
who beat her often; & that they do not lover
her. To return her to the custody of the
private resps. would be traumatic & cause
irreparable damage to the child.

Art. 221. Parents & other persons


exercising parental authority shall be civilly
liable for the injuries & damages caused by
the acts or omissions of their unemancipated
children living in their company & under their

parental
authority
subject
to
appropriate defenses provided by law.

the

Art. 222. The courts may appoint a


guardian of the child's property, or a
guardian ad litem when the best interests
of the child so require.
Art. 223. The parents or, in their
absence or incapacity, the individual, entity
or institution exercising parental authority,
may petition the proper court of the place
where the child resides, for an order
providing for disciplinary measures over
the child. The child shall be entitled to the
assistance of counsel, either of his choice
or appointed by the court, & a summary
hearing shall be conducted wherein the
petitioner & the child shall be heard.
However, if in the same proceeding the
court finds the petitioner at fault,
irrespective of the merits of the petition, or
when the circumstances so warrant, the
court may also order the deprivation or
suspension of parental authority or adopt
such other measures as it may deem just &
proper.
Art. 224. The measures referred to in
the preceding article may include the
commitment of the child for not more than
thirty days in entities or institutions
engaged in child care or in children's
homes duly accredited by the proper
government agency.
The parent exercising parental authority
shall not interfere w/ the care of the child
whenever committed but shall provide for
his support. Upon proper petition or at its
own instance, the court may terminate the
commitment of the child whenever just &
proper.

Effect of Parental Authority Upon the


Property of the Children

Art. 225. The father & the mother shall,


jointly exercise legal guardianship over the
property of their unemancipated common
144

child w/o the necessity of a court


appointment. In case of disagreement, the
father's decision shall prevail, unless there is
a judicial order to the contrary.
Where the market value of the property
or the annual income of the child exceeds
P50,000, the parent concerned shall be
required to furnish a bond in such amount as
the court may determine, but not less than
10% of the value of the property or annual
income, to guarantee the performance of the
obligations prescribed for general guardians.
A verified petition for approval of the
bond shall be filed in the proper court of the
place where the child resides, or, if the child
resides in a foreign country, in the proper
court of the place where the property or any
part thereof is situated.

The petition shall be docketed as a


summary special proceeding in w/c all
incidents & issues regarding the performance
of the obligations referred to in the second
paragraph of this Article shall be heard &
resolved.
The ordinary rules on guardianship should
be merely suppletory except when the child
is under substitute parental authority, or the
guardian is a stranger, or a parent has
remarried, in w/c case the ordinary rules on
guardianship shall apply.

PINEDA V. CA [226 SCRA 754]


HELD: It is clear fr. Art. 225 that regardless
of the value of the unemancipated common
child's property, the father & mother ipso jure
become the legal guardian of the child's
property. However, if the market value of the
prop. or the annual income of the child
exceeds P50,000, a bond has to be posted by
the parents concerned to guarantee the
performance of the obligations of a general
guardian. It must, however, be noted that
the 2nd par. of Art. 225 speaks of the market
value of the property or the annual income of
the child," w/c means, therefore, the
aggregate of the child's prop. or annual
income; if this exceeds P50T, a bond is
required. There is no evidence that the share
of each of the minors in the proceeds of the

group policy in question is the minor's only


property. W/o such evidence, it would not
be safe to conclude that, indeed, that is his
only property.

Art. 226. The property of the


unemancipated child earned or acquired w/
his work or industry or by onerous or
gratuitous title shall belong to the child in
ownership & shall be devoted exclusively to
the latter's support & education, unless the
title or transfer provides otherwise.
The right of the parents over the
fruits & income of the child's property shall
be limited primarily to the child's support &
secondarily to the collective daily needs of
the family.
Art. 227. If the parents entrust the
management or administration of any of
their properties to an unemancipated child,
the net proceeds of such property shall
belong to the owner. The child shall be
given a reasonable monthly allowance in
an amount not less than that w/c the owner
would have paid if the administrator were a
stranger, unless the owner, grants the
entire proceeds to the child. In any case,
the proceeds thus given in whole or in part
shall not be charged to the child's legitime.

BALANE:
This
article
refers
to
profectitious property owned by the
parents & given to the child for administration
The child is entitled to reasonable
allowance...not less than what a 3rd person
would get if management was entrusted to
such 3rd person, administration belongs to
the child.
Suspension or Termination of Parental
Authority

Art. 228. Parental authority terminates


permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child;
(3) Upon emancipation of the child.
Art. 229. Unless subsequently revived
by a final judgment, parental authority also
terminates:
145

(1) Upon adoption of the child;


(2) Upon appointment of a general
guardian;
(3)
Upon
judicial
declaration
of
abandonment of the child in a case filed for
the purpose;
(4) Upon final judgment of a competent
court divesting the party concerned of
parental authority; or
(5) Upon judicial declaration of absence or
incapacity of the person exercising parental
authority.
Art. 230. Parental authority is suspended
upon conviction of the parent or the person
exercising the same of a crime w/c carries w/
it the penalty of civil interdiction. The
authority is automatically reinstated upon
service of the penalty or upon pardon or
amnesty of the offender.
Art. 231. The court in an action filed for
the purpose or in a related case may also
suspend parental authority if the parent or
the person exercising the same:
(1) Treats the child w/ excessive
harshness or cruelty;
(2) Gives the child corrupting orders,
counsel or example;
(3) Compels the child to beg, or
(4) Subject the child or allows him to be
subjected to acts of lasciviousness.
The grounds enumerated above are
deemed to include cases w/c have resulted fr.
culpable negligence of the parent or the
person exercising parental authority.
If the degree of seriousness so warrants,
or the welfare of the child so demands, the
court shall deprive the guilty party of parental
authority or adopt such other measures as
may be proper under the circumstances.
The suspension or deprivation may be
revoked & the parental authority revived in a
case filed for the purpose or in the same
proceeding if the court finds that the cause
therefor has ceased & will not be repeated.

CHUA V. CABANGBANG [27 SCRA 792]


HELD: Abandonment is one of the grounds
for depriving parents of parental authority
over their children.

Petitioner surrendered the custody


of her child to the Cabangbangs in 1958.
She waited until 1963, or after the lapse of
a period of 5 long years, before she
brought action to recover custody. Her
claim that she did not take any step to
recover her child bec. the Cabangbangs
were powerful & influential, does not
deserve any modicum of credence.
For 5 long yrs. & thereafter, she did
not once move to recover the child. She
continuously shunned the natural & legal
obligations w/c she owed to the child;
completely w/held her presence, her love,
her care, & the opportunity to display
maternal affection; & totally denied her
support & maintenance. Her silence &
inaction have been prolonged to such a
point that her abandonment of the child &
her total relinquishment of parental claim
over her, can & should be inferred as a
matter of law.

Art. 232. If the person exercising


parental authority has subjected the child
or allowed him to be subjected to sexual
abuse, such person shall be permanently
deprived by the court of such authority.
Art. 233. The person exercising
substitute parental authority shall have the
same authority over the person of the child
as the parents.
In
no
case
shall
the
school
administrator,
teacher
or
individual
engaged in child care exercising special
parental
authority,
inflict
corporal
punishment upon the child.

XII. EMANCIPATION AND AGE


OF MAJORITY

RA No. 6809 - An Act lowering the age


of majority fr. 21 to 18 years
Sec. 1. Art. 234 of the FC is hereby
amended to read as follows:
Art. 234. Emancipation takes place
by the attainment of majority. Unless
otherwise provided, majority commences
at the age of eighteen years.
146

Sec. 2. Arts 235 & 237 of the FC are also


amended to read as follows:
Art. 236. Emancipation shall terminate
parental authority over the person & property
of the child who shall then be qualified &
responsible for all acts of civil life, save the
exceptions established by existing laws in
special cases.
Contracting marriage shall require
parental consent until the age of twenty-one.
Nothing in this Code shall be
construed to derogate fr. the duty or
responsibility of parents & guardians for
children & wards below 21 years of age
mentioned in the 2nd & 3rd pars. Of Art. 2180
NCC.
Sec. 4. Upon the effectivity of this Act,
existing wills, bequests, donations, grants,
insurance policies & similar instruments
containing references & provisions favorable
to minors will not retroact to their prejudice.
Sec. 5. This Act shall take effect upon
completion of its publication in at least 2
newspapers of general circulation.
Approved, Dec. 13, 1989.

TOLENTINO:
RA 6809 provides that its
effectivity on existing wills, bequests,
donations, grants, insurance policies &
similar instruments containing references &
provisions favorable to minors will not
retroact to their prejudice.
Art. 235. (Repealed by RA 6809)
Art. 236. Emancipation shall terminate
parental authority over the person & property
of the child who shall then be qualified &
responsible for all acts of civil life, save the
exceptions established by existing laws in
special cases.
Contracting
marriage
shall
parental consent until the age of 21.

require

Nothing in this Code shall be construed to


derogate fr. the duty or responsibility of
parents & guardians for children & wards
below 21 years of age mentioned in the
second & third paragraphs of Article 2180 of
the Civil Code (as amended by RA 6809)

TOLENTINO:
Requisites of Marriage.-- A marriage of a
person bet. 18 & 21 years will still require
parental consent, w/o w/c the marriage will
be voidable.
This is an anomalous
situation. An emancipated person, who
can enter into any contract & qualified for
all acts of civil life, is still required to have
parental consent for marriage.
The
provisions on marriage should have been
adjusted.
Quasi-delicts of Children.
Art. 2180. xxx The father &, in case of
his death or incapacity, the mother, are
responsible for the damages caused by the
minor children who live in their company.
Guardians are liable for damages
caused by the minors or incapacitated
persons who are under their authority &
live in their company. (Civil Code.)

TOLENTINO: The last par. of Art. 236 is


even more anomalous. Upon emancipation
of a child after reaching 18 years, parental
authority ceases, & yet responsibility for
his torts continues until he reaches 21
years of age.
This is a case of
responsibility w/o authority.
BALANE: Under the present law, there are
2 classifications of emancipation:
Perfect
emancipation
where
the
emancipated is qualified for all acts of
civil life.
Perfect emancipation is
attained upon reaching the age of 21
yrs. old.
Imperfect Emancipation.
An 18 yr.-old,
although emancipated needs parental
consent for marriage.
Parents or
guardians continue to be liable under
Art. 2180 until he reaches the age of 21
yrs. old.
BALIWAG TRANSIT V. CA [169 S 849]
HELD: Since the suit is one for breach of
contract of carriage, the Release of Claims
executed by the victim, as the injured
party, discharging Fortune Insurance &
Baliwag fr. any & all liability is valid. He
was then of legal age, a graduating student
147

of Agricultural Engineering, & had the


capacity to do acts w/ legal effect (Art. 37 in
relation to Art. 402.) Thus, he could sue & be
sued even w/o the assistance of his parents.

Art. 237. (Repealed by RA 6809)

XIV.
SUMMARY
JUDICIAL
PROCEEDINGS IN THE FAMILY
LAW
Scope of Application

Art. 238. Until modified by the Supreme


Court, the procedural rules in this Title shall
apply in all cases provided for in this Code
requiring summary court proceedings. Such
cases shall be decided in an expeditious
manner w/o regard to technical rules.
Separation in Fact Between Husband &
Wife
Art. 239. When a husband & wife are
separated in fact, or one has abandoned the
other & one of them seeks judicial
authorization for a transaction where the
consent of the other spouse is required by
law but such consent is w/held or cannot be
obtained, a verified petition may be filed in
court alleging the foregoing facts.
The petition shall attach the proposed
deed, if any, embodying the transaction, &, if
none, shall describe in detail the said
transaction & state the reason why the
required consent thereto cannot be secured.
In any case, the final deed duly executed by
the parties shall be submitted to & approved
by the court.
Art. 240. Claims for damages by either
spouse, except costs of the proceedings, may
be litigated only in a separate action.
Art. 241. Jurisdiction over the petition
shall, upon proof of notice to the other
spouse, be exercised by the proper court
authorized to hear family cases, if one exists,
or in the regional trial court or its equivalent,
sitting in the place where either of the
spouses resides.

Art. 242. Upon the filing of the petition,


the court shall notify the other spouse,
whose consent to the transaction is
required, of said petition, ordering said
spouse to show cause why the petition
should not be granted, on or before the
date set in said notice for the initial
conference.
The
notice
shall
be
accompanied by a copy of the petition &
shall be served at the last known address
of the spouse concerned.
Art. 243. A preliminary conference shall
be conducted by the judge personally w/o
the parties being assisted by counsel. After
the initial conference, if the court deems it
useful, the parties may be assisted by
counsel at the succeeding conferences &
hearings.
Art. 244. In case of non-appearance of
the spouse whose consent is sought, the
court shall inquire into the reasons for his
failure to appear, & shall require such
appearance, if possible.
Art. 245. If, despite all efforts, the
attendance of the non-consenting spouse is
not secured, the court may proceed ex
parte & render judgment as the facts &
circumstances may warrant. In any case,
the judge shall endeavor to protect the
interests of the non-appearing spouse.
Art. 246. If the petition is not resolved
at the initial conference, said petition shall
be decided in a summary hearing on the
basis of affidavits, documentary evidence
or oral testimonies at the sound discretion
of the court. If testimony is needed, the
court shall specify the witnesses to be
heard & the subject matter of their
testimonies, directing the parties to
present said witnesses.
Art. 247. The judgment of the court
shall be immediately final & executory.
Art. 248. The petition for judicial
authority to administer or encumber
specific
separate
property
of
the
abandoning spouse & to use the fruits or
proceeds thereof for the support of the
family shall also be governed by these
rules.
Incidents involving Parental Authority
148

Art. 249. Petitions filed under Articles


223, 225 & 235 of this Code involving
parental authority shall be verified.
Art. 223. The parents or, in their absence
or incapacity, the individual, entity or
institution exercising parental authority, may
petition the proper court of the place where
the child resides, for an order providing for
disciplinary measures over the child. The
child shall be entitled to the assistance of
counsel, either of his choice or appointed by
the court, & a summary hearing shall be
conducted wherein the petitioner & the child
shall be heard. However, if in the same
proceeding the court finds the petitioner at
fault, irrespective of the merits of the
petition, or when the circumstances so
warrant, the court may also order the
deprivation or suspension of parental
authority or adopt such other measures as it
may deem just & proper.
Art. 225. The father & mother shall, jointly
exercise legal guardianship over the property
of their unemancipated common child w/o
the necessity of a court appointment. In case
of disagreement, the father's decision shall
prevail, unless there is a judicial order to the
contrary.
Where the market value of the property
or the annual income of the child exceeds
P50,000, the parent concerned shall be
required to furnish a bond in such amount as
the court may determine, but not less than
10% of the value of the property or annual
income, to guarantee the performance of the
obligations prescribed for general guardians.
A verified petition for approval of the
bond shall be filed in the proper court of the
place where the child resides, or, if the child
resides in a foreign country, in the proper
court of the place where the property or any
part thereof is situated.
The petition shall be docketed as a
summary special proceeding in w/c all
incidents & issue regarding the performance
of the obligations referred to in the second
paragraph of this Article shall be heard &
resolved.
The ordinary rules on guardianship shall
be merely suppletory except when the child

is under substitute parental authority, or


the guardian is stranger, or a parent has
remarried, in w/c case the ordinary rules on
guardianship shall apply.
Art. 235. (Repealed by RA 6809)
Art. 250. Such petitions shall be filed in
the proper court of the place where the
child resides.
Art. 251. Upon the filing of the petition,
the court shall notify the parents or in their
absence or incapacity, the individuals,
entities or institutions exercising parental
authority over the child.
Art. 252. The rules in Chapter 2 hereof
shall also govern summary proceedings
under this Chapter insofar as they are
applicable.
Other Matters Subject to Summary
Proceedings
Art. 253. The foregoing rules in
Chapters 2 & 3 hereof shall likewise govern
summary proceedings filed under Article
41, 51, 69, 73, 96, 124 & 217, insofar as
they applicable.
Art. 41. A marriage contracted by any
person during the subsistence of a previous
marriage shall be null & void, unless before
the
celebration
of
the
subsequent
marriage, the prior spouse had been
absent for four consecutive years & the
spouse present had a well-founded belief
that the absent spouse was already dead.
In case of disappearance where there is
danger of death under the circumstances
set forth in the provisions of Article 391 of
the Civil Code, an absence of only two
years shall be sufficient.
For the purpose of contracting the
subsequent marriage under the preceding
paragraph, the spouse present must
institute a summary proceeding as
provided in this Code for the declaration of
presumptive death of the absentee, w/o
prejudice to the effect of reappearance of
the absent spouse.
Art. 51. In said partition, the value of
the presumptive legitimes of all common
children, computed as of the date of the
149

final judgment of the trial court, shall be


delivered in cash, property or sound
securities, unless the parties, by mutual
agreement judicially approved, had already
provided for such matters.
The children or their guardian, or the
trustee of their property, may ask for the
enforcement of the judgment.
The delivery of the presumptive legitimes
herein prescribed shall in no way prejudice
the ultimate successional rights of the
children accruing upon the death of either or
both of the parents; but the value of the
properties already received under the decree
of annulment or absolute nullity shall be
considered as advances on their legitime.
Art. 69. The husband & wide shall fix the
family domicile. In case of disagreement, the
court shall decide.
The court may exempt one spouse fr.
living w/ the other if the latter should live
abroad or there are other valid & compelling
reasons for the exemption. However, such
exemption shall not apply if the same is not
compatible w/ the solidarity of the family.
Art. 73. Either spouse may exercise any
legitimate profession, occupation, business or
activity w/o the consent of the other. The
latter may object only on valid, serious, &
moral grounds.
In case of disagreement, the court shall
decide whether or not:
(1) The objection is proper, &
(2) Benefit has accrued to the family prior
to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting
obligation shall be enforced against the
separate property of the spouse who has not
obtained consent.
The foregoing provisions shall not
prejudice the rights of creditors who acted in
good faith.
Art. 96. The administration & enjoyment
of the community property shall belong to
both spouses jointly. In case of disagreement,
the husband's decision shall prevail, subject
to recourse to the court by the wife for proper
remedy, w/c must be availed of w/in five

years fr. the date of the


implementing such decision.

contract

In the event that one spouse is


incapacitated or otherwise unable to
participate in the administration of the
common properties, the other spouse may
assume sole powers of administration.
These powers do not include the powers of
disposition or encumbrance w/c must have
the authority of the court or the written
consent of the other spouse. In the
absence of such authority or consent, the
disposition or encumbrance shall be void.
However,
the
transaction
shall
be
construed as a continuing offer on the part
of the consenting spouse & the third
person, & may be perfected as a binding
contract upon the acceptance by the other
spouse or authorization by the court before
the offer is w/drawn by either or both
offerors.
Art.
124.
The
administration
&
enjoyment of the conjugal partnership
property shall belong to both spouses
jointly. In case of disagreement, the
husband's decision shall prevail, subject to
recourse to the court by the wife for proper
remedy, w/c must be availed of w/in five
years fr. the date of the contract
implementing such decision.
In the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
conjugal properties, the other spouse may
assume sole powers of administration.
These powers do not include the powers of
disposition or encumbrance w/c must have
the authority of the court or the written
consent of the other spouse. In the
absence of such authority or consent, the
disposition or encumbrance shall be void.
However,
the
transaction
shall
be
construed as a continuing offer on the part
of the consenting spouse & the third
person, & may be perfected as a binding
contract upon the acceptance by the other
spouse or authorization by the court before
the offer is w/drawn by either or both
offerors.
Art. 217. In case of foundlings,
abandoned, neglected or abused children &
other children similarly situated, parental
authority shall be entrusted in summary
150

judicial proceedings to heads of children's


homes, orphanages & similar institutions duly
accredited by the proper government agency.
XV. FINAL PROVISIONS
Art. 254. If any provision of this Code is
held invalid, all the other provisions not
affected thereby shall remain valid.
Art. 255. This Code shall have retroactive
effect insofar as it does not prejudice or
impair vested or acquired rights in
accordance w/ the Civil Code or other laws.
Art. 256. Effectivity (August 3, 1988)
XVI. CARE AND EDUCATION OF CHILDREN
Art. 363. In all questions on the care,
custody, education & property of children, the
latter's welfare shall be paramount. No
mother shall be separated fr. her child under
seven years of age, unless the court finds
compelling reasons for such measure.

Baviera Cases:
FLORES V. ESTEBAN [51 O.G. 9, P. 4525
(1955)]
FACTS: Flores (father) filed a petition for
habeas corpus in order to get the custody of
his legitimate son who is living w/ Fs mother
in law. However, it was shown that it was not
the father who was claiming custody but the
paternal grandfather.
HELD: As against the paternal grandparent,
the maternal grandparent may be given
substitute parental authority if it will be for
the best interest & welfare of the child. It
should be considered that the maternal
grandmother is almost a mother to the child
since he was 20 days old, & there exists
mutual love between the grandmother & the
child. This is w/o prejudice to the obligation of
the father to contribute to his maintenance.
LUNA V. IAC [137 S 7 (1985)]
FACTS: Luna is married to Hizon, the latter
having an illegitimate child, Santos. Santos

got married to Salumbides & they had a


child, Shirley, the subject of this child
custody case.
Several months after Shirleys birth,
her parents gave her to the Luna couple.
However, when the Lunas returned fr. their
trip to the US, they learned that Shirleys
natural parents took her & refused to
return her to the Lunas. The SC ruled that
Shirleys natural parents are entitled to the
childs custody.
Said judgment had
become final & executory.
HELD: In child custody cases, an execution
of final judgment of appellate courts
awarding child custody to the child's
biological parents may be stayed where
during hearings on execution the child
manifests that she will kill herself & escape
if given to custody of her biological parents.
In child custody cases, the child's welfare &
future is paramount & execution of a final
judgment, w/c may run contrary thereto,
may be set aside. The best interest of the
minor can override procedural rules & even
the rights of parents to custody of their
child.
SANTOS V. CA [242 S 407]
FACTS: Santos (father) was married to
Bedia. They had a child, Leoul, who had
been in the custody of his maternal
grandparents since birth. When the child
turned 3, S abducted the boy. The Bedias
then filed a Petition for Custody of the boy.
HELD: Since the Bedias failed to show that
S is an unfit & unsuitable father, S is
entitled to the custody of his son.
Parental authority is inalienable &
may not be transferred or renounced
except in cases of adoption, guardianship &
surrender to a childrens home or an
orphan institution. When a parent entrusts
the custody of a minor to another, such as
a friend, even in a document, what is given
is merely TEMPORARY CUSTODY & it does
not constitute a renunciation of parental
authority.
Further, only in case of the parents
death, absence or unsuitability may
substitute parental authority be exercised
by the surviving grandparent.
151

XVII. FUNERALS

Art. 305. The duty & the right to make


arrangements for the funeral of a relative
shall be in accordance w/ the order
established for support, under Art. 294. In
case of descendants of the same degree, or
of brothers & sisters, the oldest shall be
preferred.
In case of ascendants, the
paternal shall have a better right.
Art. 306.
Every funeral shall be in
keeping w/ the social position of the
deceased.
Art. 307.
The funeral shall be in
accordance w/ 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. No human remains shall be
retained, interred, disposed of or exhumed
w/o the consent of the persons mentioned in
Articles 294 & 305.
Art. 309.
Any person who shows
disrespect to the dead, or wrongfully
interferes w/ a funeral shall be liable to the
family of the deceased for damages, material
& moral.
Art. 310.
The construction of a
tombstone or mausoleum shall be deemed a
part of the funeral expenses, & shall be
chargeable to the conjugal partnership
property, if the deceased is one of the
spouses.

XVIII. USE OF SURNAMES


TOLENTINO:
Concept of Name.-- A name is a word or
combination of words by w/c a person is
known & identified, & distinguished fr. others,
for the convenience of the world at large in
addressing him, or in speaking of or dealing
w/ him. (Balane quotes Tolentino on this.)

Characteristics of Name.
It is absolute, intended to protect the
individual fr. being confused w/ others;
it is obligatory in certain respects, for
nobody can be w/o a name;
it is fixed, unchangeable, or immutable, at
least at the start, & may be changed
only for good cause & by judicial
proceedings;
it is outside the commerce of man, &,
therefore, inalienable & intransmissible,
by act inter vivos or mortis causa;
it is imprescriptible.
BALANE:
Surname.-- A surname is that w/c identifies
the family fr. w/c a person belongs & is
passed fr. parent to child.
Basic Principles:
A person's real name is that w/c appears in
the Civil Registry.
If you want to change your real name, you
have
to
go
through
judicial
proceedings, a petition for change of
name.
However, a person can use other names
w/c are authorized by CA 142 as
amended by RA 6085 (re: use of
pseudonym.)
Some guidelines regarding change of
name
In a petition for change of name, courts are
generally strict.
You have to show
sufficient cause;
However, in a petition for injunction or in a
criminal case for violation of CA 142,
courts will generally be more liberal
(Legamia v. IAC, infra. Tolentino v. CA,
infra.) provided it does not cause
confusion, there is no fraud or BF;
In case of adoption where the woman
adopts alone, it is the maiden name
that should be given the child.
(Johnston v. Republic, infra.)
Art. 364.
Legitimate & legitimated
children shall principally use the surname
of the father.

152

REPUBLIC V. MARCOS [182 S 223]


HELD: (1) The trial court did not acquire
jurisdiction over the subject of the
proceedings, i.e., the various names & aliases
of the petitioner w/c she wished to change to
"Mary Pang De la Cruz/" The omission of her
other alias-- "Mary Pang"-- in the captions of
the court's order & of the petition defeats the
purpose of the publication. For a publication
of a petition for a change of name to be valid,
the title thereof should include, first, his real
name, & second, his aliases, if any." (Jesus Ng
Yao Sing v. Republic, 16 S 483.) [T]he reason
for the rule requiring the inclusion of the
name sought to be adopted & the other
names or aliases of the applicant in the title
of the petition or in the caption of the
published order is that the ordinary reader
only glances fleetingly at the caption of the
published order or the title of the petition in a
spec. proc. for a change of name. Only if the
caption or the title strikes him bec. one or all
of the names mentioned are familiar to him,
does he proceed to read the contents of the
order.
(2) The court erred in granting a change of
name. The reasons offered for changing the
name of petitioner's daughter are: (1) that
"her daughter in law grew up w/, & learned to
love & recognize Alfredo De la Cruz as her
own father"; (2) to afford her daughter a
feeling of security; & (3) that Alfredo de la
Cruz agrees to this petition.
Clearly, these are not valid reasons for
a change of name. The general rule is that a
change of name should not be permitted if it
will give a false impression of family
relationship to another where none actually
exists. [O]ur laws do not authorize legitimate
children to adopt the surname of a person not
their father, for to allows them to adopt the
surname of their mother's husband, who is
not their father, can result in confusion of
their paternity.
Another reason for disallowing the
petition for change of name is that it was not
filed by the proper party. The petition must
be filed by the person desiring to change
his/her name, even if it may be signed &
verified by some other person in his behalf.
In this case, however, the petition was filed
by Pang Cha Quen not by May Sia.

Hence, only May Sia herself, alias


Manman Huang, alias Mary Pang, when she
shall have reached the age of majority,
may file the petition to change her name.
The decision to change her name, the
reason for the change, & the choice of a
new name & surname shall be hers alone
to make. It must be her personal choice.

Art. 365. An adopted child shall bear


the surname of the adopter.

JOHNSTON V. REPUBLIC [7 S 1040]


HELD: The provision of law (341, par. 2)
w/c entitles the adopted minor to the use
of the adopter's surname, refers to the
adopter's own surname & not to her
surname acquired by virtue of marriage.
Petitioner-appellant's real surname is
Valdes & not Johnston, & as she made the
adoption singly w/o the concurrence of her
H, & not as a married woman, her name as
adopter was her maiden name.
The
adoption created a personal relationship
bet. the adopter & the adopted, & the
consent of Isabel Valdes' H, to the adoption
by her individually, did not have the effect
of making him an adopting father, so as to
entitle the child to the use of Johnston's
own surname.
Since adoption gives the person
adopted the same rights & duties as if he
were a legitimate child of the adopter (341,
par. 1, NCC), much confusion would indeed
result, if the minor child herein were
allowed to use the surname of the spouse
who did not join in the adoption.

Art. 366. A natural child acknowledged


by both parents shall principally use the
surname of the father. If recognized by
only one of the parents, a natural child
shall employ the surname of the
recognizing parent.

TOLENTINO:
This rule applies even when the recognition
was made first by the mother & later by
the father, bec. no distinction is made in
the law.
It applies to all illegitimate
children.
153

Art. 367. Natural children by legal fiction


shall principally employ the surname of the
father.
Art. 368. Illegitimate children referred to
in article 287 shall bear the surname of the
mother.
Art. 369. Children conceived before the
decree annulling a voidable marriage shall
principally use the surname of the father.
Art. 370. A married woman may use:
(1) Her maiden first name & surname &
add her husband's surname;
(2)
Her maiden first name & her
husband's surname; or
(3) Her husband's full name, but prefixing
a word indicating that she is his wife, such as
"Mrs."

As the title of the petition in this


case & the order setting it for hearing were
deficient, the lower court did not acquire
jurisdiction over the proc.
(2)
A married woman may use her
husband's surname. It is axiomatic that if
she desires judicial authorization to change
the spelling of his surname, her H should
initiate the proceeding. In the instant case,
the anomaly is that the H did not ask for
judicial authority to change the spelling of
his surname. It was his wife who filed the
petition. The irregularity in the petition is
obvious.
It is true that the wife submitted to
the court her H's affidavit of conformity to
the change in the spelling of his surname.
But that would not prevent him & their
children fr. using the old spelling. And in
that event, confusion & error might arise.
TOLENTINO V. CA [162 S 66]

TOLENTINO:
Husband's Surname Optional.-- The word
"may" is used, indicating that the use of the
husband's surname by the wife is permissive
rather than obligatory.
Right of Wife not Exclusive.-The wife
cannot claim an exclusive right to use the
husband's surname.
She cannot be
prevented fr. using it; but neither can she
restrain others fr. using it.
TELMO V. REPUBLIC [73 S 29]
HELD: (1) A change of name is a proc. in
rem. Jurisdiction to hear & determine the
petition for change of name is acquired after
due publication of the order containing
certain data, among w/c is the name sought
to be adopted, w/c should be indicated in the
title of the petition
The reason for the rule is that the
ordinary reader "glances fleetingly at the
captions of the published orders or the titles
of the petitions. Only if the caption or the
title strikes him does the reader proceed to
read on. And the probability is great that the
reader does not at all notice the other names
&/or aliases or the applicant if these are
mentioned only in the body of the order or
petition.

HELD: A divorced woman may continue


using the surname of her former husband..
There is no merit in the petitioner's claim
that to sustain the private resp.'s stand is
to contradict Articles 370 & 371 of the NCC.
It is significant to note that Sen. Tolentino
himself in his commentary on Art. 370
states that "the wife cannot claim an
exclusive right to use the husband's
surname. She cannot be prevented fr. using
it; but neither can she restrain others fr.
using it."
Art. 371 is not applicable to the
case at bar bec. Art. 371 speaks of
annulment while the case before us refers
to absolute divorce where there is a
severance of valid marriage ties.
The
effect of divorce is more akin to the death
of the spouse where the deceased woman
continues to be referred to as the Mrs. of
her H even if the latter has remarried
rather than to annulment since in the latter
case, it is as if there had been no marriage
at all.
The pvt. resp. has established that
to grant the injunction to the petitioner
would be an act of serious dislocation to
her. She has given proof that she entered
into contracts w/ 3rd persons, acquired
prop. & entered into other legal relations
using the surname Tolentino.
The
154

petitioner, on the other hand, has failed to


show that she would suffer any legal injury or
deprivation of legal rights inasmuch as she
can use her H's surname & be fully protected
in case the resp. uses the surname Tolentino
for illegal purposes.
There
is no usurpation of the
petitioner's name & surname in this case so
that the mere use of the surname Tol. by pvt.
resp cannot be said to have injured the
petitioner's rights. The usurpation of name
implies some injury to the interests of the
owner of the name.
It consists in the
possibility of confusion of identity bet. the
owner & the usurper. It exists when a person
designates himself by another name.
The following are the elements of
usurpation of a name: (1) there is an actual
use of another's name by def.; (2) the use is
unauthorized; & (3) the use of another's
name is to designate personality or identify a
person. None of these elements exists in the
case at bar & neither is there a claim by
petitioner that the pvt resp. impersonated
her.

Art. 371.
In case of annulment of
marriage, & the wife is the guilty party, she
shall resume her maiden name & surname. If
she is the innocent spouse, she may resume
her maiden name & surname. However, she
may choose to continue employing her
former husband's surname, unless:
(1) The court decrees otherwise; or
(2) She or the former husband is married
again to another person.
Art. 372. When legal separation has been
granted, the wife shall continue using her
name & surname employed before the legal
separation.

TOLENTINO: This is so bec. her married


status is not affected by the separation, there
being no severance of the vinculum.
Art. 373. A widow may use the deceased
husband's surname as though he were still
living, in accordance w/ article 370.

TOLENTINO: Inasmuch as there is no more


vinculum actually existing w/ the deceased

husband, & considering that the widow has


her own independent personality, the use
of the former husband's surname is
optional, & not obligatory, for her.
Art. 374. In case of identity of names &
surnames, the younger person shall be
obliged to use such additional name or
surname as will avoid confusion.
Art. 375. In case of identity of names &
surnames
between
ascendants
&
descendants, the word "Junior" can be used
only by a son. Grandsons & other direct
male descendants shall either:
(1) Add a middle name or the mother's
surname; or
(2) Add the Roman numerals II, III, & so
on.
Art. 376. No person can change his
name or surname w/o judicial authority.

TOLENTINO:
Sufficient Cause Necessary.-- Examples of
sufficient causes are:
when the name is ridiculous, or tainted w/
dishonor, or extremely difficult to write
or pronounce;
when the right to a new name is a
consequence of a change of status,
such as when a natural child is
acknowledged or legitimated;
when the change is necessary to avoid
confusion;
having continuously used & been known
since childhood by a Filipino name,
unaware of his alien parentage;
A sincere desire to adopt a Filipino name to
erase signs of a former alien nationality
w/c unduly hamper social & business
life. (Republic v. Marcos, supra.)
The imposition in a will or donation of the
condition that the beneficiary change
his name is not sufficient cause.
Effect of Change on Children.-- When a
father changes his name, this will not affect
the names of his children. The children
who are of age are independent of the
father, & their names can be changed only
upon their own petition. The names of the
minor children, however, may be changed
on petition of the father, if the same
justification exists w/ respect to them.
For legal purposes, the true or
official name of a person is that w/c is
recorded in the civil register.
155

REPUBLIC V. AVILA [122 S 483]


HELD: A change of name is a mere privilege
& not a matter of right. It should not be
abused nor allowed for trivial & flimsy
reasons. To justify a change of name, there
must exist a proper & reasonable cause or
compelling reason.
The grant of change of name of resps.
would not eliminate but enhance confusion
as they would be having not only 2 names
but 3, including the names they are seeking.
Pvt. resps. do not only want to legalize their
use of American names, by w/c they claim
they are usually known, but also a new family
name (Yap Tan) w/c includes that of their
mother but w/c they never used before. It
becomes more confusing considering that the
pvt. resps. are not using the family name of
their father (Lim), but that of the first
husband of their mother who was surnamed
Tan.
The supposed ugly meaning of the
name of resp. Tan Ay Gho is not enough
reason to justify change of name. The alleged
offensive-sounding name, being a given
name, was chosen for her, & not one
imposed by law as in the case of a family
name.

Laws), the use of the H's surname during


the marriage, after annulment of the
marriage & after the death of the H is
permissive & not obligatory except in case
of legal separation.
When a woman marries a man, she
need not apply &/or seek judicial authority
to use her H's name by prefixing the word
"Mrs." before her H's full name or by
adding her H's surname to her maiden first
name.
The law grants her such right.
Similarly, when the marriage ties or
vinculum no longer exists as in the case of
death of the H or divorce, the widow or
divorcee
need
not
seek
judicial
confirmation of the change in her civil
status in order to revert to her maiden
name as the use of her former husband's
name is optional & not obligatory for her.

Art. 377.
Usurpation of a name &
surname may be the object of an action for
damages & other relief.

TOLENTINO:
The usurpation of name implies some
injury to the interests of the owner of the
name.
It consists in the possibility of
confusion of identity, or the appearance of
some family relations between the owner &
the usurper.

YASIN V. SHARIA 7 [241 S 606]


HELD: The true & real name of a person is
that given to him & entered in the civil
register. While it is true that under Art. 376
of the NCC, no person can change his name
or
surname
w/o
judicial
authority,
nonetheless, the only name that may be
changed is the true & official name recorded
in the Civil Register.
Petitioner's registered name is Hatima
Centi y Saul.
In the instant petition,
petitioner does not seek to change her
registered maiden name but instead, prays
that she be allowed to resume the use of her
maiden name in view of the dissolution of her
marriage to Hadji Idris Yasin, by virtue of a
decree of divorce granted in accordance w/
Muslim Law.

Elements of Usurpation.
that there is an actual use of another's
name by the defendant;
that the use is unauthorized; &
the use of another's name is to designate
personality or identity of a person.
Art. 378. The unauthorized or unlawful
use of another person's surname gives a
right of action to the latter.

TOLENTINO: This article would seem to


cover cases where one's name is used by
another, but not for the purpose of
designating personality or identifying a
person.

Even under the NCC (w/c applies


suppletorily to the Code of Muslim Personal
156

Art. 379. The employment of pen names


or stage names is permitted, provided it is
done in good faith & there is no injury to third
persons. Pen names & stage names cannot
be usurped.

some of them probably had their own


Corazons.

TOLENTINO

REPUBLIC V. CA 209 S 191

Pseudonym - conventional fictitious name


freely chosen by a person to disguise his
personality.
It designates a person in a
particular activity, & his reputation & the
value of his work are reflected in such
designation.

FACTS:
Wong (formerly Alcala, Jr.), a
Muslim Filipino, was adopted by a Chinese
couple. Upon reaching the age of 22, he
filed a petition to change his name fr. Wong
to Alcala.
Reason:
His surname
embarrassed & isolated him fr. his relatives
& friends since his name suggests a
Chinese ancestry.

Bec. a pseudonym is intended only to


be used in connection w/ a particular
activity-literary, artistic, scientific or
professional-- it should not be employed in
any other sphere of activity. It can never be
used in relations w/ the State.
When Entitled to Protection.-- A pen or stage
name is protected only when it is well known
as the designation of a particular writer or
artist, such that it can be considered as
practically indicating his person in the field of
activity where it is used.
Art. 380.
Except as provided in the
preceding article, no person shall use
different names & surnames.

TOLENTINO: It is the duty of a person in


dealing w/ the govt. & its agents, to use his
true name. In private relations, however, this
is not obligatory, provided there is no
wrongful or unlawful purpose.
Alias Names in Business.-- The law permits
the use of assumed or alias names for
business purposes, provided that such names
are duly registered.
LEGAMIA V. IAC [131 S 479]
HELD: In the case at bar, C had been living
w/ E for almost 20 yrs. He introduced her to
the public as his wife & she assumed that role
& his name w/o any sinister purpose or
personal material gain in mind. She applied
for benefits upon his death not for herself but
for Michael who as a boy of tender years was
under her guardianship.
Surely, the
lawmakers could not have meant to
criminalize what C had done especially bec.

Baviera cases:

HELD: A persons name is the designation


by w/c he/she is known. It is defined as the
word or combination of words by w/c a
person is distinguished fr. other individuals
&, also, as the label or appellation w/c
he/she bears for the convenience of the
world at large addressing him, or in
speaking of or dealing w/ him.
A name has the ff. characteristics:
It is absolute, intended to protect the
individual fr. being confused w/ others;
it is obligatory in certain respects, for
nobody can be w/o a name;
it is fixed, unchangeable, or immutable, at
least at the start, & may be changed
only for good cause & by judicial
proceedings;
it is outside the commerce of man, &,
therefore, inalienable & intransmissible,
by act inter vivos or mortis causa;
it is imprescriptible.
The state has an interest in the names
borne by individuals. A change of name is
not a matter of right but of sound judicial
discretion. Among the grounds w/c have
been held valid for a change of name are:
When the name is ridiculous, dishonorable
or extremely difficult to write or
pronounce;
when the change results as a legal
consequence, as in legitimation;
when the change will avoid confusion;
having continuously used & been known
since childhood by a Fil. Name, unaware
of their alien parentage;
157

sincere desire to adopt a Fil. Name to erase


signs of former alienage, all in good faith
& w/o prejudicing anybody;
when the surname causes embarrassment &
there is no showing that the desired
change of name was for a fraudulent
purpose or that the change of name
would prejudice the public.

about 4 yrs. later Anatacia had relations w/


another man out of w/c Teresita was born.
Shortly after Teresita's (T) birth, Atanacia
(A) brought her to Mla. where all of them
lived w/ A's mother-in-law, Victoria vda. de
Ferrer. T was raised in the household of the
Ferrers, using the surname of Ferrer in all
her dealings & throughout her schooling.

Although the law prescribes the


surname that a person may employ, it does
not go so far as to unqualifiedly prohibit the
use of any other surname provided there is
judicial sanction.

When she was about 20 yrs. old,


she applied for a copy of her birth cert. in
Irosin, Sorsogon, where she was born, as
she was required to present it in connection
w/ a scholarship granted to her. It was
then that she discovered that her
registered surname is Llaneta-- not Ferrer-& that she is the illegitimate child of A & an
unknown father.

An adopted child shall bear the


surname of the adopter. However, it must
nevertheless be borne in mind that the
change of surname of adopted child is more
an incident rather than the object of
adoption. There is therefore no prohibition
against reversion. Further, his adoptive
parents have permitted him to use his former
name.
MOORE V. REPUBLIC 62 OG NO. 34, P.
6100 (1963)
FACTS: Elaine, a US citizen, was formerly
married to Velarde, also a US citizen, out of
whose wedlock a child named William Velarde
was born. The couple got divorced & Elaine
married Moore. The minor William lived w/
the spouses. In view of the harmonious
relationship between the stepdad & stepson,
E filed a petition to change her sons name to
William Velarde Moore.
HELD: Not allowed. If a child born out of
wedlock be allowed to bear the surname of
the 2nd husband of the mother, should the 1st
husband die or be separated by divorce,
there may result a confusion as to the sons
real paternity. In the long run, the change
may redound to the prejudice of the child in
the community.
Besides, the child is still a minor.
When he reaches the age of majority, he may
decide the matter for himself.
For the
present, Es action is premature.
LLANETA V. AGRAVA [57 S 29]
FACTS: Teresita's mother, Anatacia Llaneta,
was once married to Serafin Ferrer w/ whom
she had but 1 child. In 1942 Serafin F. died &

On the ground that her use


thenceforth of the surname of Llaneta,
instead of Ferrer, w/c she had been using
since she acquired reason ,would cause
untold difficulties & confusion, T petitioned
the court below for change of name. After
trial, resp. Judge, denied her petition.
Hence, the present recourse.
HELD:
The petition is granted.
The
petitioner has established that she has
been using the surname Ferrer for as long
as she can remember; that all her records
in school & elsewhere, put her name down
as T. Ferrer; that her friends & associates
know her only as T. Ferrer; & that even the
late Serafin F.'s nearest of kin have
tolerated & still approve of her use of the
surname Ferrer. Indeed, a sudden shift at
this time by the petitioner to the name of T
Llaneta (in order to conform to that
appearing in the birth cert.) would result in
confusion among the persons & entities
she deals w/ & entail endless & vexatious
explanations of the circumstances of her
new name. The petitioner has established
that she has been using the surname Ferrer
for as long as she can remember; that all
her records in school & elsewhere, put her
name down as T. Ferrer; that her friends &
associates know her only as T. Ferrer; &
that even the late Serafin F.'s nearest of kin
have tolerated & still approve of her use of
the surname Ferrer.
The resp. court places reliance on
the decisions of this court w/c disallowed
such change of name as would give the
false impression of family relationship. The
158

principle remains valid but only to the extent


that the proposed change of name would in
great probability cause prejudice or future
mischief to the family whose surname it is
that is involved or to the community in
general.
SILVA V. PERALTA 110 P 57 (1960)
FACTS: Silva, a US citizen & an officer of the
US Army, is married to an Australian. When S
met Peralta, he made her believe that he is
still single. As such, P accepted his marriage
proposal.
The two, according to P, we
married in 1945. However, no documents of
marriage were prepared bec. there were no
available printed forms. The two then started
to live together & fr. such marriage, a son
was born.
S was wounded & was brought to the
US for operation.
During this time, he
divorced his Australian wife. Upon his return
to the Phil., S married Elenita.
ISSUE: WON P is allowed by law to use the
surname of S.
HELD: NO. The alleged marriage between P
& S never took place. No evidence was
presented other than the testimonies of P &
her counsel to prove such alleged marriage.
Further, S vigorously denied that he was
married to P. In view of the non-existence of
Ps marriage w/ S, & the latters marriage w/
E, it is not proper for P to continue
representing herself as Ss wife.
Art. 370 CC authorizes a married
woman to used the surname of her husband;
impliedly, it also excludes others fr. doing
likewise.
BAVIERA:
The remedy to prevent
someone fr. using ones surname is
injunction.

CALDERON V. REPUBLIC 19 S 721 (1967)


FACTS: Gertrudes is an illegitimate child, the
result of a bigamous marriage between del
Prado (M) & Adolfo (F). C alleges that using
the surname del Prado carries w/ it the
stigma of legitimacy.
Calderon is the
surname of her foster father & she, through
her mother, filed this petition in order to be
allowed to use said surname.

HELD: GRANTED. A petition to change


name is granted only where to do so is
clearly for the best interest of the child.
While the NCC provides that a natural child
by legal fiction may use the surname of the
father, this does not mean that such child
cannot adopt anothers surname w/ the
latters consent & for justifiable reasons. If
a legitimate child may secure a change o f
name through judicial proceedings, there is
no reason why an illegitimate child cannot.
Further, a change of name does not alter
family relations, rights or duties, legal
capacity, civil status or citizenship. What is
altered is only the label or appellation by
w/c a person is known.
NALDOZA V. REPUBLIC [112 S 568]
FACTS: Zosima Naldoza was married to
Dionesio Divinagracia on 5/30/70. They
begot 2 children named Dionesio, Jr. &
Bombi Roberto. Zosima's husband left her
after she confronted him w/ his previous
marriage w/ another woman. He never
returned to the conjugal abode.
He
allegedly swindled Cong. Maglana in the
sum of P50, 000, & other persons. The
classmates of Dionesio, Jr. & Bombi
allegedly teased them about their father
being a swindler. Two criminal cases for
estafa were filed in court against the father.
Desirous
of
obliterating
any
connection bet. her 2 minor children & their
scapegrace father, Zosima, on 8/10/78,
filed in CFI-Bohol a petition wherein she
prayed that the surname of their 2 children
be changed fr. Divinagracia to Naldoza, her
surname. After due publication & hearing,
the trial court dismissed the petition.
ISSUE: W/n two minors should be allowed
to discontinue using their father's surname
& should use only their mother's surname.
HELD: No. We hold that the trial court did
not err in denying the petition for change of
name. The 2 minors, who are presumably
legitimate, are supposed to bear principally
the surname Divinagracia, their father's
surname (Art. 364.)
To allow them, at their mother's
behest, to bear only their mother's
surname & to discard altogether their
159

father's surname, thus removing the prima


facie evidence of their paternal provenance
or ancestry, is a serious matter in w/c,
ordinarily, the minors & their father should be
consulted. The mother's desire should not be
the sole consideration.

according to circumstances. (Articles 390396.)


(a)
ordinary presumptive
death
(b)
qualified presumptive
death

The change of name is allowed only


when there are proper & reasonable causes
for such change. Where, as in this case, the
petitioners are minors, the courts should take
into account whether the change of name
would redound (to) their welfare or would
prejudice them.

PROVISIONAL MEASURES IN CASE OF


ABSENCE

To allow the change of surname would


cause confusion as to the minors' parentage
& might create the impression that the
minors are illegitimate since they would carry
the maternal surname only. That would be
inconsistent w/ their legitimate status as
indicated in their birth records.
XVIII. ABSENCE
Tolentino:
Concept of Absence.-Juridically, the
absence referred to in the Code, is that
special legal status of one who is not in his
domicile, his whereabouts being unknown, &
it is uncertain whether he is dead or alive.
(Balane quotes Tolentino on this.)
Where the absentee disappeared
under normal circumstances & w/o apparent
danger, there is ordinary absence; but where
the disappearance was under extraordinary
circumstances, or w/ apparent danger, it is
called qualified absence.
Balane (quoting Castan): Absence has legal
consequences w/c vary according to the
degree or stage of absence.
Stages of Absence:
(1) Temporary or provisional absence w/c
happens as soon as a person disappears fr.
his domicile & his whereabouts are unknown,
leaving no administrator of his prop. (Articles
381-383);
(2) Normal or declared absence w/c is one
juridically declared after 2 yrs. since the last
news was heard fr. him, or 5 yrs. if he left an
administrator (Articles 384-389);
(3) Definite or presumptive death w/c takes
place when after the period provided by law,
a person is presumed dead; the period varies

Art. 381. When a person disappears fr.


his domicile, his whereabouts being
unknown, & w/o leaving an agent to
administer his property, the judge, at the
instance of an interested party, a relative,
or a friend, may appoint a person to
represent him in all that may be necessary.
This same rule shall be observed when
under similar circumstances the power
conferred by the absentee has expired.

Balane:
Requisites for Provisional
Absence:
Absence for an appreciable period w/c
depends upon the circumstances;
Immediate necessity for his representation
in some specific urgent matter;
Absentee left no agent or the agency has
expired
Art. 382. The appointment referred to in
the preceding article having been made,
the judge shall take the necessary
measures to safeguard the rights &
interests of the absentee & shall specify
the powers, obligations & remuneration of
his representatives, regulating them,
according to the circumstances, by the
rules concerning guardians.
Art. 383. In the appointment of a
representative, the spouse present shall be
preferred when there is no legal separation.
If the absentee left no spouse, or if the
spouse present is a minor, any competent
person may be appointed by the court.

Tolentino: Appointment Necessary.-Unless the wife has been appointed an


administratrix or trustee of the properties
of her absent husband, she has no capacity
to maintain an action to recover possession
of such properties.
160

DECLARATION OF ABSENCE

Art. 384. Two years having elapsed w/o


any news about the absentee or since the
receipt of the last news, & five years in case
the absentee has left a person in charge of
the administration of his property, his
absence may be declared.
Tolentino: Computation of Period.-- If
there has been no news of or fr. the absentee
since his disappearance, the period must be
computed fr. the date of disappearance. But
if there has been news fr. or about him, the
period should be counted fr. the time referred
to by the news, or the time when the news
was sent.
Balane: The declaration of absence is has
for its sole purpose to enable the taking of
necessary precautions for the administration
of the prop. (of the absentee.) (quoting Jones
v. Hortiguela, 64 P 179.)
A general power of administration is
granted w/c is broader than that granted for a
mere provisional absence. Notice that in
provisional
absence,
the
power
of
administration is for a specific matter.
REYES V. ALEJANDRO [141 S 65]
Facts: In a petition filed on 10/25/69, Erlinda
Reynoso prayed for the declaration of the
absence of her husband Roberto L. Reyes
alleging that her H had been absent fr. their
conjugal dwelling since 4/62 & since then had
not been heard fr. & his whereabouts
unknown. The petition further alleged that
her H left no will or any prop. in his name nor
any debts.
After hearing,
dismissed the petition
since Roberto Reyes left
necessity to declare
absentee.

the court a quo


on the ground that
no prop there was no
him judicially an

HELD: The need to have a person judicially


declared an absentee is when he has
properties w/c have to be taken cared of or

administered
by
a
representative
appointed by the Court (384) ; the spouse
of the absentee is asking for separation of
prop (191, NCC) or his wife is asking the
court that the administration of all classes
of prop. in the marriage be transferred to
her (196, NCC.) The petition to declare the
husband an absentee & the petition to
place the management of the conjugal
properties in the hands of the wife may be
combined & adjudicated in the same
proceedings.
EASTERN SHIPPING V. LUCERO [124 S
425] Facts:
On 2/16/80, the petitioner co.
received 3 radio messages fr. Capt. Lucero
on board M/V Eastern Minicon, the last of
w/c, received at 9:50 P.M. of that day, was
a call for immediate assistance in view of
the existing "danger;" "sea water was
entering the hatch;" the vessel "was listing
50 to 60 degrees port," & they were
"preparing to abandon the ship any time."
After this message, nothing more has been
heard fr. the vessel or its crew until the
present time.
On 7/16/80, Mrs. Lucero filed a
complaint w/ the National Seamen Board
for payment of her accrued monthly
allotment w/c the Co. had stopped since
3/80 & for continued payment of said
allotments until M/V Minicon shall have
returned to the port of Mla.
On 5/19/81, the Board rendered
judgement in favor of Mrs. L & held that the
presumption of death could not be applied
bec. the 4-yr period [Art. 391(1)] had not
yet expired. On appeal, the NLRC affirmed
said decision.
HELD: We are unable to agree w/ the
reasoning of the resp. NLRC.
There is enough evidence to show
the circumstances attending the loss &
disappearance of the M/V Eastern Minicon
& its crew.
The foregoing facts, quite
logically, are sufficient to lead us to a moral
certainty that the vessel had sunk & that
the persons aboard had perished w/ it.
Upon this premise, the rule on presumption
of death under Art. 391(1) must yield to the
rule of preponderance of evidence. Where
there are facts, known or knowable, fr. w/c
161

a rational conclusion can be made, the


presumption does not step in, & the rule of
preponderance of evidence controls. (Joaquin
v. Navarro, 93 P 257.)
Art. 385. The following may ask for the
declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may
present an authentic copy of the same;
(3) The relatives who may succeed by the
law of intestacy;
(4) Those who may have over the
property of the absentee some right
subordinated to the condition of his death.
Art. 386. The judicial declaration of
absence shall not take effect until six months
after its publication in a newspaper of general
circulation.
Art. 387. An administrator of the
absentee's property shall be appointed in
accordance w/ article 383.
Art. 388. The wife who is appointed as an
administratrix of the husband's property,
cannot alienate or encumber the husband's
property or that of the conjugal partnership,
w/o judicial authority.
Art. 389. The administration shall cease
in any of the following cases:
(1)
When
the
absentee
appears
personally or by means of an agent;
(2) When the death of the absentee is
proved & his testate or intestate heirs
appear;
(3) When a third person appears, showing
by a proper document that he has acquired
the absentee's property by purchase or other
title.
In these cases the administrator shall
cease in the performance of his office, & the
property shall be at the disposal of those who
may have a right thereto.

express purpose of securing a judicial


declaration that a person is presumptively
dead, except for purposes of re-marriage
under the Family Code.
Balane: Under the NCC, no action was
allowed for the declaration of presumptive
death bec. it becomes res judicata w/c is
illogical when the person declared dead
turns out to be alive. But this is no longer
true under the FC w/c requires a
declaration of presumptive death for
purposes of remarriage. (see Art. 41.)
Art. 390. After an absence of seven
years, it being unknown whether or not the
absentee still lives, he shall be presumed
dead for all purposes, except for those of
succession.
The absentee shall not be presumed
dead for the purpose of opening his
succession till after an absence of ten
years. If he disappeared after the age of
seventy-five years, an absence of five
years shall be sufficient in order that his
succession may be opened.
Tolentino: For Re-Marriage of Spouse
Present.-- Under the FC (41), if a spouse
has been absent for 4 yrs. & the spouse
present has a well-founded belief that the
spouse is already dead, the former can ask
for the declaration of presumptive death of
the latter, in a summary proceeding.
Balane: Q: When Does Presumptive
Death Set In?
A: It depends on the age of the
person.
In normal presumptive death (the
absentee was 75 or below), 7 years is
required for all purposes except for
succession, e.g., for insurance, suspensive
condition, retirement benefits, etc. & 10
years for purposes of succession.
In qualified presumptive death (the
absentee is over 75), one single period of 5
yrs. for all purposes. Notice 390 states that
only 5 yrs. of absence is required in order
that succession may be opened. But what
if succession is not involved? If only 5 yrs.
is required in cases involving succession,
w/ more reason should 5 yrs. only be
required if succession is not involved.

PRESUMPTION OF DEATH
Tolentino:
Judicial Declaration Not
Necessary.-- The presumption of death is
created by law, & arises w/o any necessity of
a judicial declaration. The presumption can
be availed of in any action or proc.; but there
can be no independent proceeding for the

Art. 391. The following shall be


presumed dead for all purposes, including
the division of the estate among the heirs;

162

(1) A person on board a vessel lost during


a sea voyage, or an aeroplane w/c 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, & has been missing for four
years;
(3) A person who has been in danger of
death under other circumstances & his
existence has not been known for four years.

Tolentino:
Modification under the FC.-- For purposes
of securing a decl of presumptive death
under these circumstances, under the FC for
purposes of remarriage of a spouse present,
an absence of 2 yrs. of the absent spouse
will be enough.
Presumptive Death of Missing Persons.-The persons presumed dead under this
article cannot be considered as merely
absentees; they are more properly called
missing persons. xxx [T]he
presumptive date of death is fixed on the
very day of the occurrence of the event fr.
w/c the death is presumed; & if such date
cannot be fixed, the court determines the
middle of the period in w/c the event could
have happened.
Loss of Vessel or Aeroplane.-These
terms must be understood in their broad
meanings. Vessels will include all watercraft,
& aeroplanes will include all aircraft.
The loss of the vessel must be during
a sea voyage w/c include not only voyages in
the open sea but also passage along the
mouth or river, canals, etc. in the course of
such voyage. However, trips w/c are only
inland waters are not included.
Missing in War.-The term "war" is
construed generally; it is not limited to war as
understood in international law, but includes
all military operations or undertakings in
armed fighting. The presumption in case of
persons missing in war, applies not only to
soldiers, but also to those who are employed
by or render services to the armed forces
(such as nurses, doctors, etc.), those who
render voluntary service (such as guides &
guerrillas), & those who follow or stay w/ the
armed
forces
(such
as
reporters,
photographers, etc.) It is however, necessary
that such disappearance be during military
operations.
In Danger of Death.-- The death should be
considered to have taken place on the day of
the danger. xxx If the danger continues for
several days, xxx the more logical view
seems to be that the period should be
computed fr. the last day of such danger; in
cases of expeditions or similar ventures of

w/c nothing is heard after it has started,


the date when it should have been
completed, if favorably concluded, is to be
taken into account.
Art. 392. If the absentee appears or
w/o appearing his existence is proved, he
shall recover his property in the condition
in w/c it may be found, & the price of any
property that may have been alienated or
the property acquired therew/; but he
cannot claim either fruits or rents.

Tolentino: The rights of the possessors of


the absentee's prop. are dependent upon
the presumed death of the latter; hence, if
he reappears, those rights cease. For this
reason, the possession is conditional &
cannot be the basis of prescription. Neither
will the action of the absentee to recover
his prop. prescribe.
EFFECT OF
CONTINGENT
ABSENTEE

ABSENCE
RIGHTS

UPON
OF

THE
THE

Art. 393. Whoever claims a right


pertaining to a person whose existence is
not recognized must prove that he was
living at the time his existence was
necessary in order to acquire said right.
Tolentino: For the acquisition of rights by
an absentee, life is not presumed before
the date of presumptive death.
Art. 394. Without prejudice to the
provision of the preceding article, upon the
opening of a succession to w/c an absentee
is called, his share shall accrue to his coheirs, unless he has heirs, assigns, or a
representative. They shall all, as the case
may be, make an inventory of the property.
Art. 395. The provisions of the
preceding article are understood to be w/o
prejudice to the action or petition for
inheritance or other rights w/c are vested in
the absentee, his representative or
successors in interest. These rights shall
not be extinguished save by lapse of time
fixed for prescription. In the record that is
made in the Registry of the real estate w/c
accrues to the co-heirs, the circumstance
163

of its being subject to the provisions of this


article shall be stated.
Art. 396. Those who may have entered
upon the inheritance shall appropriate the
fruits received in good faith so long as the
absentee does not appear, or while his
representatives or successors in interest do
not bring the proper actions.
Art. 43. If there is doubt, as between two
or more persons who are called to succeed
each other, as to w/c 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 & there shall be no transmission of
rights fr. one to the other.
Rule 107, Rules of Court - ABSENTEES
Sec. 1. Appointment of representative. When a person disappears fr. his domicile, his
whereabouts being unknown, & w/o having
left an agent to administer his property, or
the power conferred upon the agent has
expired, any interested party, relative or
friend, may petition the Court of First
Instance of the place where the absentee
resided before his disappearance, for the
appointment of a person to represent him
provisionally in all that may be necessary. In
the City of Manila, the petition shall be filed in
the Juvenile Domestic Relations Court.
Sec. 2. Declaration of absence; who may
petition. - After the lapse of two (2) years fr.
his disappearance & w/o any news about the
absentee or since the receipt of the last
news, or of five (5) years in case the
absentee has left a person in charge of the
administration of his property, the declaration
of his absence & appointment of a trustee or
administrator may be applied for by any of
the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may
present an authentic copy of the same;
(c) The relatives who would succeed by
the law of intestacy; &
(d) Those who have over the property of
the absentee some right subordinated to the
condition of his death.
Sec. 3. Contents of petition. - The petition
for the appointment of a representative, or

for the declaration of absence & the


appointment
of
a
trustee
or
an
administrator, must show the following:
(a) The jurisdictional facts;
(b) The names, ages, & residences of
the heirs instituted in the will, copy of w/c
shall be presented, & of the relatives who
would succeed by the law of intestacy,
(c) The names & residences of creditors
& others who may have any adverse
interest over the property of the absentee;
(d) The probable value, location &
character of the property belonging to the
absentee.
Sec. 4.
Time of hearing; notice &
publication thereof. - When a petition for
the appointment of a representative, or for
the declaration of absence & the
appointment of a trustee or administrator,
is filed, the court shall fix a date & place for
the hearing thereof where all concerned
may appear to contest the petition.
Copies of the notice of the time & place
fixed for the hearing shall be served upon
the known heirs, legatees, devisees,
creditors & other interested persons, at
least ten (10) days before the day of the
hearing, & shall be published once a week
for three (3) consecutive weeks prior to the
time designated for the hearing, in a
newspaper of general circulation in the
province or city where the absentee
resides, as the court shall deem best.
Sec. 5. Opposition. - Anyone appearing
to contest the petition shall state in writing
his grounds therefor, & serve a copy
thereof on the petitioner & other interested
parties on or before the date designated for
the hearing.
Sec. 6. Proof at hearing; order. - At the
hearing, compliance w/ the provisions of
section 4 of this rule must first be shown.
Upon satisfactory proof of the allegations in
the petition, the court shall issue an order
granting the same & appointing the
representative, trustee or administrator for
the absentee. The judge shall take the
necessary measures to safeguard the
rights & interests of the absentee & shall
specify
the
powers,
obligations
&
remuneration of his representative, trustee

164

or administrator, regulating them by the rules


concerning guardians.

deceased; (2) to avoid dangers to the


health of the living; & (3) to allow scientific
investigation & study.

In case of declaration of absence, the


same shall not take effect until six (6) months
after its publication in a newspaper of general
circulation designated by the court & in the
Official Gazette.

Right to the Corpse.-- The corpse is


outside the commerce of man. A contract
for valuable consideration disposing of the
corpse, except when expressly permitted
by law, would be void as contrary to
morals.

Sec. 7. Who may be appointed. - In the


appointment of a representative, the spouse
present shall be preferred when there is no
legal separation. If the absentee left no
spouse, or if the spouse present is a minor or
otherwise incompetent, any competent
person may be appointed by the court.

xxx There is, however, a certain


right to the possession of the corpse, for
the purpose of decent burial, & for the
exclusion of intrusion by third persons who
have no legitimate interest in it.

In case of declaration of absence, the


trustee or administrator of the absentee's
property shall be appointed in accordance w/
the preceding paragraph.
Sec. 8. Termination of administration. The trusteeship or administration of the
property of the absentee shall cease upon
order of the court in any of the following
cases:
(a)
When
the
absentee
appears
personally or by means of an agent;
(b) When the death of the absentee is
proved & his testate or intestate heirs
appear;
(c) When a third person appears, showing
by a proper document that he has acquired
the absentee's property by purchase or other
title.
In
these
cases
the
trustee
or
administrator shall cease in the performance
of his office, & the property shall be placed at
the disposal of those who may have a right
thereto.

XIX. FUNERALS
Tolentino:
Juridical Nature of Corpse.-- The corpse
cannot be the subject of rights, bec. juridical
personality is extinguished by death.
Evidently, it is an object or a thing, but it is
not prop.; it is not susceptible of
appropriation.
Purposes of Legal Protection: (1) to
protect the feelings of those related to the

Any person charged by law w/ the


duty of burying the body of a deceased
person is entitled to the custody of such
body for the purpose of burying it, except
when an inquest is required by law for the
purpose of determining the cause of death;
&, in case of death due to or accompanied
by a dangerous communicable disease,
such body shall until buried remain in the
custody of the local board of health or local
health officer, or if there be no such, then
in the custody of the municipal council.
(Sec. 1104, Revised Admin. Code.)
Art. 305. The duty & the right to make
arrangements for the funeral of a relative
shall be in accordance w/ the order
established for support, under Art. 199 of
the Family Code. In case of descendants of
the same degree, or of brothers & sisters,
the oldest shall be preferred. In case of
ascendants, the paternal shall have a
better right.
Art.
persons
liability
persons

199.
Whenever two or more
are obliged to give support, the
shall devolve upon the following
in the order herein provided:

(1) The spouse;


(2) The descendants in the nearest
degree;
(3)
The ascendants in the nearest
degree;
(4) The brothers & sisters.
(Family
Code.)

Tolentino:
Right to make funeral
arrangements.-- If there are no persons
who are bound to support the deceased, or
if there are but they are w/o means to
defray the funeral expenses, the duty of
burial shall devolve upon the municipal
authorities.
165

Same; Subject to waiver.-- The persons


who are preferred in the right may waive this
right expressly or impliedly, in w/c case the
right & duty immediately descend to the
person next in the order prescribed by law.
Extent of Right.-- Under our law, it seems
that the person entitled to the custody of the
corpse cannot exclude the friends & other
relatives of the deceased; such exclusion,
w/o just cause, would be an abuse of right
prohibited by Art. 19, NCC, or an act contrary
to good customs under Art. 21.
The
members of the family of the deceased, of
course, cannot be excluded, bec. they would
have an inherent right to witness the
interment.
BALANE CASE:
EUGENIO V. VELEZ
HELD: We hold that the provisions of the
NCC unless expressly providing to the
contrary as in Art. 144, when referring to a
"spouse" contemplate a lawfully wedded
spouse. Philippine Law does not recognize
common law marriage. Petitioner vis--vis
Vitaliana was not a lawfully-wedded spouse
to her; in fact, he was not legally capacitated
to marry her in her lifetime (being himself
legally married to another woman.)
Custody of the dead body of Vitaliana
was correctly awarded to her surviving
brothers & sisters. Sec. 1103 (b) of the Rev.
Admin. Code provides:
"If the deceased was an unmarried
man or woman, or a child, & left any kin, the
duty of burial shall devolve upon the nearest
of kin of the deceased, if they be adults &
w/in the Phils. & in the possession of
sufficient means to defray the necessary
expenses."

Art. 306.
Every funeral shall be in
keeping w/ the social position of the
deceased.

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 w/ the other members of the
family.
Art. 308. No human remains shall be
retained, interred, disposed of or exhumed
w/o the consent of the persons mentioned
in Art. 199 of the Family Code & 305 (of the
Civil Code.)

Tolentino: Exhumation of Corpse For


Evidential Purposes.-Although the
present art. prohibits exhumation w/o the
consent of the persons obliged to support
the deceased in life, the right of such
persons must yield to public interests when
the exhumation appears to be absolutely
essential to the administration of justice
such as where there is no other way to
prove a material fact except by exhumation
of a body w/c has been interred.
Disposition of Corpse by Deceased.-Although a person cannot dispose of his
corpse by act inter vivos or mortis causa as
prop., he may provide the manner in w/c it
shall be disposed of by those called upon to
do so.
RA 349 recognizes the validity of an
authorization given by a person to use
parts of his corpse for medical, surgical, &
scientific purposes.
Corpses w/c are to be buried at
public expense may also be used for
scientific
purposes,
under
certain
conditions.
Performance of Autopsies.-An
autopsy may either be private or official. If
it is private, it cannot be performed w/o the
consent of the persons having a right to
the corpse. On the other hand, in the
higher interests of the State, official
autopsies may be performed regardless of
the wishes of the persons entitled to the
corpse.

Tolentino: This article does not provide for a


sanction for its enforcement. However, the
sanctions may be found in other provisions of
the law.

Art. 309.
Any person who shows
disrespect to the dead, or wrongfully
interferes w/ a funeral, shall be liable to the
family of the deceased for damages,
material & moral.

Art. 307.
The funeral shall be in
accordance w/ the expressed wishes of the

Art. 310.
The construction of a
tombstone or mausoleum shall be deemed
166

a part of the funeral expenses, & shall be


chargeable to the conjugal partnership
property, if the deceased is one of the
spouses.

XX. CIVIL REGISTER

Art. 407. Acts, events & judicial decrees


concerning the civil status of persons shall be
recorded in the civil register.

Balane: Correlate Art. 407 w/ Art. 7, PD 603.


Sec. 7. Non-disclosure of Birth Records. The records of a person's birth shall be kept
strictly confidential & no information relating
thereto shall be issued except on the request
of any of the following:
(1) The person himself, or any person
authorized by him;
(2) His spouse, his parent or parents, his
direct descendants, or the guardian or
institution legally-in-charge of him if he is a
minor;
(3) The court or proper public official
whenever
absolutely
necessary
in
administrative, judicial or other official
proceedings to determine the identity of the
child's parents or other circumstances
surrounding his birth; &
(4) In case of the person's death, the
nearest of kin.
Any person violating the prohibition
shall suffer the penalty of imprisonment of at
least two months or a fine in an amount not
exceeding five hundred pesos, or both, in the
discretion of the court. (P.D. 603, The Child &
Youth Welfare Code.)
Art. 408. The following shall be entered in
the civil register:
(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) annulments of marriages;
(6) judgments declaring marriages void fr.
the beginning;
(7) legitimations;
(8) adoptions;

(9) acknowledgements of natural


children;
(10) naturalization;
(11) loss or
(12) recovery of citizenship;
(13) civil interdiction;
(14) judicial determination of filiation;
(15) voluntary emancipation of a minor;
&
(16) change of name.
Art. 409. In cases of legal separation,
adoption, naturalization & other judicial
orders mentioned in the preceding article,
it shall be the duty of the clerk of the court
w/c issued the decree to ascertain whether
the same has been registered, & if this has
not been done, to send a copy of said
decree to the civil registry of the city or
municipality where the court is functioning.
Art. 410. The books making up the civil
register & all documents relating thereto
shall be considered public documents &
shall be prima facie evidence of the facts
therein contained.

BALANE CASE:
SERMONIA V. CA
HELD: (1) The rule on constructive notice
cannot apply in the crime of bigamy
notw/standing the possibility of its being
more favorable to the accused. As the CA
succinctly explains-xxx [T]he principle of constructive
notice should not be applied in regard to
the crime of bigamy as judicial notice may
be taken of the fact that a bigamous
marriage is generally entered into by the
offender in secrecy fr. the spouse of the
previous subsisting marriage.
Also, a
bigamous marriage is generally entered
into in a place where the offender is not
known to be still a married person, in order
to conceal his legal impediment to contract
another marriage.
xxx [T]he criminal cases cited by
the petitioner wherein constructive notice
was applied involved
land or prop.
disputes & certainly, marriage is not prop.
The non-application to the crime of
bigamy of the prin. of constructive notice is
not contrary to the policy that penal laws
167

should be construed liberally in favor of the


accused. To compute the prescriptive period
for the offense of bigamy fr. registration
thereof would amount to almost absolving
offenders thereof for liab. therefor. xxx
(2) The rule on constructive notice will make
de rigueur the routinary inspection or
verification of the marriages listed in the
National Census Office & in various local civil
registries all over the country to make certain
that no subsequent marriage has been
contracted w/o the knowledge of the
legitimate spouse.
(3) More importantly, while Sec. 52 of PD
1529 (Prop. Reg. Dec.) provides for
constructive notice to all persons of every
conveyance, mortgage, lease, lien, etc.
affecting registered land filed or entered in
the office of the Register of Deeds for the
province or city where the land to w/c it
relates lies fr. the time of such registration,
there is no counterpart provision either in Act
3753 (Act to Establish a Civil Register) or in
Arts. 407 to 413, NCC, w/c leads to the
conclusion that there is no legal basis for
applying the constructive notice rule to
documents registered in the Civil Register.

Art. 411. Every civil registrar shall be


civilly responsible for any unauthorized
alteration made in any civil register, to any
person suffering damage thereby. However,
the civil registrar may exempt himself fr. such
liability if he proves that he has taken every
reasonable precaution to prevent the
unlawful alteration.
Art. 412. No entry in a civil register shall
be changed or corrected, w/o judicial order.

Tolentino: Changes or corrections in entries


in the Civil Registry may be sought by 2
different procedures:
(1)
summary
procedure for the correction of clerical errors,
& (2) adversary, litigious, or contentious
procedure for changes of a substantial
character.
Corrections to be made in the civil
register may be either clerical or substantial.
The proceeding under Art. 412 & Rule 108 of
the Rules of Court may either be summary or
adversary in nature. Even substantial or
material errors in the civil register may be
corrected provided the appropriate remedy is
availed of.

RULE 108 - CANCELLATION OR


CORRECTION OF ENTRIES IN THE CIVIL
REGISTRY
Sec. 1, Who may file petition. - Any
person interested in any act, event, order
or decree concerning the civil status of
persons w/c has been recorded in the civil
register, may file a verified petition for the
cancellation or correction of any entry
relating thereto, w/ the Court of First
Instance of the province where the
corresponding civil registry is located.
Sec. 2. Entries subject to cancellation or
correction. - Upon good & valid grounds,
the following entries in the civil register
may be cancelled or corrected;
(a) births;
(b) marriage;
(c) deaths;
(d) legal separations;
(e) judgments of annulments of
marriage;
(f) judgments declaring marriages void
fr. the beginning;
(g) legitimations;
(h) adoptions;
(i)
acknowledgments
of
natural
children;
(j) naturalization;
(k) election, loss or recovery of
citizenship;
(l) civil interdiction;
(m) judicial determination of filiation;
(n) voluntary emancipation of a minor,
&
(o) changes of name.
Sec. 3. Parties. - When cancellation or
correction of an entry in the civil register is
sought, the civil registrar & all persons who
have or claim any interest w/c would be
affected thereby shall be made parties to
the proceeding.
Sec. 4. Notice & publication. - Upon the
filing of the petition, the court shall, by an
order, fix the time & place for the hearing
of the same, & cause reasonable notice
thereof to be given to the persons named
in the petition. The court shall also cause
the order to be published once a week for
three (3) consecutive weeks in a
168

newspaper of general circulation in the


province.
Sec. 5. Opposition. - The civil registrar &
any person having or claiming any interest
under the entry whose cancellation or
correction is sought may, w/in fifteen (15)
days fr. notice of the petition, or fr. the last
date of publication of such notice, file his
opposition thereto.
Sec. 6. Expediting proceedings. - The
court in w/c the proceeding is brought may
make orders expediting the proceedings, &
may also grant preliminary injunction for the
preservation of the rights of the parties
pending such proceedings.
Sec. 7. Order. - After hearing, the court
may either dismiss the petition or issue an
order granting the cancellation or correction
prayed for. In either case, a certified copy of
the judgment shall be served upon the civil
registrar concerned who shall annotate the
same in his record.

Balane: Recapitulate.-- An error in an


entry in the Civil Register can only be
corrected by court order. The proper action
to file depends on whether the error is merely
clerical or substantive. If merely clerical,
summary proceeding for correction is
enough; if substantive, adversary proceeding
is required.
REPUBLIC V. VALENCIA
[141 S 462
(1986)]

involving nationality or citizenship, w/c is


indisputably
substantial
as well
as
controversial, affirmative relief cannot be
granted in a proceeding summary in
nature. However, it is also true that a right
in law may be enforced & a wrong may be
remedied as long as the appropriate
remedy is used. This court adheres to the
principle that even substantial errors in a
civil registry may be corrected & the true
facts established provided the parties
aggrieved by the error avail themselves of
the appropriate adversary proceeding.
xxx
What is meant by appropriate
adversary proceeding?
Black's Law
Dictionary defines "adversary proceeding"
as follows:
"One having opposing parties;
contested, as distinguished fr. an ex parte
application, one of w/c the party seeking
relief has given legal warning to the other
party, & afforded the latter an opportunity
to contest it. xxx"
Provided that the trial court has
conducted proceedings where all relevant
facts have been fully & properly developed,
where opposing counsel have been given
opportunity to demolish the opposite
party's case, & where the evidence has
been thoroughly weighed & considered, the
suit or proceeding is "appropriate."

Facts: Resp. Leonor Valencia, for & in behalf


of her minor children, Bernardo Go & Jessica
Go filed w/ the CFI-Cebu a petition for the
cancellation &/or correction of entries of birth
of her 2 minor children in the Civil Registry of
Cebu. The petition seeks to change the
nationality or citizenship of Bernardo Go &
Jessica Go fr. "Chinese" to "Filipino" & their
status fr. "Legitimate" to "Illegitimate," &
changing also the status of the mother fr.
"married" to "single."
The Local Civil
Registrar of Cebu filed a motion to dismiss on
the ground that the corrections sought are
not merely clerical but substantial. The lower
court denied the motion to dismiss. From the
decision of the lower court, oppositorappellant Republic appealed.

[T]he persons who must be made


parties to a proceeding concerning the
cancellation or correction of an entry in the
civil register are-- (1) the civil registrar, &
(2) all persons who have or claim any
interest w/c would be affected thereby.
Upon the filing of the petition, it becomes
the duty of the court to-- (1) issue an
order fixing the time & place for the
hearing of the petition, & (2) cause the
order for hearing to be published once a wk
for 3 consecutive weeks in a newspaper of
gen. circ. in the province. The following are
likewise entitled to oppose the petition-(1) the civil registrar, & (2) any person
having or claiming any interest under the
entry whose cancellation or correction is
sought.

HELD: [I]f the subject matter of a petition is


not for the correction of clerical errors of a
harmless & innocuous nature, but one

If all these procedural requirements


have been followed, a petition for
correction &/ or cancellation of entries in
169

the record of birth even if filed & conducted


under R 108, ROC can no longer be described
as "summary." There can be no doubt that
when an opposition to the petition is filed
either by the Civil Registrar or any person
having or claiming any interest in the interest
in the entries sought to be cancelled &/ or
corrected & the opposition is actively
prosecuted, the proceedings thereon become
adversary proceedings.
In this case, the court took note of the
fact that all the procedural requirements
have been followed & hence the recorded
proceedings that actually took place could
very well be regarded as that proper suit or
appropriate action.
In the instant case, a pet. for
cancellation &/or correction of entries of birth
of Bernardo Go & Jessica Go in the Civ. Reg.Cebu City was filed by resp. L. Valencia on
1/27/70, & pursuant to the order of the trial
court dated 2/4/70, the said pet. was
published once a wk for 3 consecutive wks. in
the Cebu Advocate, a newspaper of gen. circ.
in the City of Cebu. Notice thereof was duly
served on the Sol-Gen., the Local Civ.
Registrar & Go Eng. The order likewise set
the case for hearing & directed the local civ.
registrar & the other resps. or any person
claiming any interest under the entries whose
corrections were sought, to file their
opposition to the said pet. An opposition to
the pet. was consequently filed by the Rep.
on 2/26/70. Thereafter, a full blown trial
followed w/ resp. L. Valencia testifying &
presenting her documentary evid. in support
of her pet. The Rep. on the other hand,
cross-examined resp. L.V.

BALANE CASES:
BARRETO
MANILA

V.

CIVIL

REGISTRAR

OF

ISSUE: W/n the supposed erroneous entry


as to the sex of Rosario B., as indicated in the
birth record, is a clerical error that may be
changed by means of a petition for correction
filed by one Domingo B. who claims to be the
same person as Rosario B.
HELD: We hold that the petition is not
warranted bec. under the facts of this case,
the alleged error is not clerical in nature. If

the name in the record of birth were


Domingo B. & his sex was indicated therein
as female, it might be argued that the error
would be clerical. But that is not the fact in
the case.
The situation is more
complicated. A person named Domingo B.
claims he is Rosario B. & that the word
"female" in the latter's birth record is a
mistake.
It is settled that the summary proc.
for correction of entries in the civil registry
under Art. 412, NCC & R 108, ROC is
confined to "innocuous or clerical errors,
such as misspellings & the like, errors that
are visible to the eyes or obvious to the
understanding" or corrections that are not
controversial
&
are
supported
by
indubitable evidence.
A clerical error is one made by a
clerk in transcribing or otherwise, &, of
course, must be apparent on the face of
the record, & capable of being corrected by
reference to the record only.
The alleged error in this case cannot
be determined by reference to the record.
There is a need to determine w/n Rosario B.
& Domingo B. are one & the same person &
to ascertain why Domingo was registered
in the record of birth as Rosario.
REPUBLIC V. FLOJO
HELD: The contention is w/o merit. While
the Court has, indeed previously ruled that
changes or corrections authorized under
Art. 412, w/c envisions a summary proc.,
relate only to harmless & innocuous
alterations, such as misspellings or errors
that are visible to the eyes or obvious to
the understanding & that changes in the
citizenship of a person or his civil status are
substantial as well as controversial, w/c can
only
be
established
in
appropriate
adversary proc., the rule has been relaxed
in the case of Rep. v. Valencia.
In the instant case, there is no
doubt that the proc. conducted in the lower
court
was
an
adversary
proc.
&
"appropriate" in that "all relevant facts
have been fully & properly developed,
where the opposing counsel have been
given the opportunity to demolish the
opposite party's case, & where the
evidence has been thoroughly weighed &
considered." The questioned order states
in part:
After the required publ. of the order
of Notice of hrng. dated 8/22/78 in the
Cagayan Valley Weekly Journal, has been
complied w/ & notice to the Sol-Gen,
petitioner adduced evidence on 10/17/78.
No written opposition was interposed by
resp. but at the hrng. , Asst. Prov. Fiscal
170

Gonzales appeared for & in behalf of the SolGen.


REPUBLIC V. BAUTISTA
HELD:
We are constrained to deny the
instant pet. for review. The issue now bef. us
has been resolved in the case of Rep. v .
Valencia wherein the court held that the
proceedings under Art. 412 & Rule 108, ROC
may either be summary or adversary in
nature. If the correction sought to be made
in the civ. reg. is clerical, then the procedure
to be adopted is summary. If the rectification
affects the civil status, citizenship or
nationality of a party, it is deemed
substantial, & the procedure to be adopted is
adversary.
In Rep. v. Valencia, we postulated that
the appropriate remedy may well be a pet.
filed by way of SP for the cancellation &/or
correction of substantial entries in the civ.
reg. w/ the requisite parties, notices,
publications & the proceedings to be taken
thereafter pursuant to Secs. 3, 4 & 5 of R108
bec. then the proc. will be adversary in
character.
In the present case, the records show
that the Pasay City Local Civ. Reg. & the SolGen. were made parties to the pet. The
proper notice was published once a wk for 3
consecutive wks. in the Rizal Weekly Bulletin,
a newspaper of gen. circ. The Rep. appeared
thru a trial atty. of the Office of the Sol-Gen.
who was present & did not object to the
presentation of evidence, xxx.
REPUBLIC V. CARRIAGA
HELD: In the case at bar, not only have the
procedural requirements been complied w/
but a trial was duly conducted wherein the
pvt. resp. was given the chance to present
his evidence while the fiscal was likewise
given every opportunity to present his
opposition.
The safeguards in Rep. v.
Valencia were followed.
True, the City Fiscal decided not to
submit any evidence in opposition to the
averments in the petition, but the pvt. resps
submitted satisfactory evidence to prove his
case.
REPUBLIC V. CFI
HELD: In the instant case, we hold that an
appropriate adversary proc. has taken place.
xxx
The controverted order dated 3/31/73,
by itself, indicates sufficient compliance w/
the requirements of an appropriate adversary
proc.
The publ. requirement has been
complied w/. In the hrng., the pvt. resp.
presented his evidence. Opposition by the
petitioner thereto was received by the court.

And fr. this proc., it was conclusively


established that no marriage bet. pvt. resp.
& Dolores D. Balance, mother of the child,
took place on 1/7/69; that the pvt. resp.
hardly knew Dolores & never had any
extramarital relations w/ her; & that he is
very much a married man & his wife is still
living. The record of the case does not
show any rebuttal of the evidence of the
pvt. resp.
ZAPANTA V. CIVIL REGISTRAR
HELD: The records show that the publ.
requirement has already been complied w/.
The next step would thus be for the court a
quo to consider the pet. before it to be, in
substance, an adversary proc. & to allow
petitioner & all adverse & interested
parties their day in court.
Art. 413. All other matters pertaining to
the registration of civil status shall be
governed by special laws. (See Act No.
3613, as amended)

II. Right of Accession


A. REAL PROPERTY
1. NATURAL INCREMENT.

Art. 441. To the owner belongs:


The natural fruits;
The industrial fruits;
The civil fruits;
Art. 442.
Natural fruits are the
spontaneous products of the soil, & the
young & other products of
animals.
Industrial fruits are those produced by
lands of any kind through
cultivation or
labor.
Civil fruits are the rentals of
buildings, the price of leases of lands &
other property & the amount of perpetual
or life annuities or other similar income.
Art. 443. He who receives the fruits has
the obligation to pay the expenses made
by a third person in their production,
gathering & preservation.
Art. 444. Only such as are manifest or
born are considered as natural or industrial
fruits. With respect to animals, it is
sufficient that they are in the womb of the
mother although unborn.
171

2. BUILDING, PLANTING,
SOWING.

Art. 445. Whatever is built, planted or


sown on the land of another & the
improvements or repairs made thereon,
belong to the owner of the land, subject to
the provisions of the following articles.
Art. 446. All works, sowing & planting are
presumed made by the owner at his expense,
unless the contrary is proved.
Art. 447. The owner of the land who
makes thereon personally or through
another, paintings, constructions or works w/
the materials of another, shall pay their
value; & if he acted in bad faith, he shall also
be obliged in the reparation of damages. The
owner of the materials shall have the right to
remove them only of he can do so w/o injury
to the work constructed, or w/o the plantings,
constructions or works being destroyed.
However, if the landowner acted in bad faith,
the owner of the materials may remove them
in any event, w/ a right to de indemnified for
damages.
Art. 448. The owner of the land on w/c
anything has been built, sown or planted in
good faith, shall have the right to appropriate
as his own the works, sowing or planting,
after payment of the indemnity provided for
in articles 546 & 548, or to oblige the one
who built or planted to pay the price of the
land, & the one who sowed, the proper rent.
However, the builder or planter cannot be
obliged to buy the land if its value is
considerably more than that of the buildings
or trees.
In such case, he shall pay
reasonable rent, if the owner of the land does
not choose to appropriate the buildings or
trees after the proper indemnity. The parties
shall agree upon the terms of the lease, & in
case of disagreement, the court shall fix the
terms thereof.
Art. 449. He who builds, plants or sows
in bad faith on the land of another, loses
what is built, planted or sown w/o right to
indemnity.
Art. 450. The owner of the land w/c
anything has been built, planted or sown in
bad faith may demand the demolition of the
work, or that the planting or sowing be

removed, in order to replace things in their


former condition at the expense of the
person who built, planted or sowed; or he
may compel the builder or planter to pay
the price of the land, & the sower the
proper rent.
Art. 451.
In the cases of the two
preceding articles, the landowner is
entitled to damages fr. the builder, planter
or sower.
Art. 452. The builder, planter or sower
in bad faith is entitled to reimbursement for
the necessary expenses of preservation of
the land.
Art. 453. If there was bad faith, not only
on the part of the person who built, planted
or sowed on the land of another but also on
the part of the owner of such land, the right
of one & the other shall be the same as
though both acted in good faith.
It is understood that there is bad
faith on the part of the landowner
whenever the act was done w/ his
knowledge & w/o opposition on his part.
Art. 454. When the landowner acted in
bad faith & the builder, planter or sower
proceeded in good faith, the provisions of
article 447 shall apply.
Art. 455. If the materials, plants or
seeds belong to a third person who has not
acted in bad faith, the owner of the land
shall answer subsidiarily for their value &
only in the event that the one who made
use of them has no property w/ w/c to pay.
This provision shall not apply if the
owner makes use of the right granted in
article 450. If the owner of the materials,
plants or seeds has been paid by the
builder, planter or sower, the latter may
demand fr. the landowner the value of the
materials & labor.
Art. 456. In the cases regulated in the
preceding articles, good faith does not
necessarily exclude negligence, w/c gives
right to damages under article 2176.

FILIPINAS COLLEGE INC. VS. TIMBANG


106 SCRA 247

172

Facts: There are three parties involved: the


Timbang spouses who own the lot; Blas who
built a school building on said lot; & Filipinas
Colleges Inc. who purchased the building fr.
Blas.
The CA declared that Filipinas
(Petitioners) has acquired the rights of the
Timbangs (Respondents) to the lot & had to
pay value of the land; that should Filipinas fail
to pay, it loses its right to the land & the
Timbangs will become the owners. Thus, the
Timbangs must exercise their option under
article 448 to appropriate the building or
compel Filipinas to acquire the land. Filipinas
was also ordered to pay Blas the value of the
buildings.
Filipinas failed to pay the amount, so
the Timbangs, in exercising their option under
art. 448 chose to compel Filipinas to acquire
the land. The Timbangs contend that since
builder in good faith has failed to pay the
price of the land after they failed to exercise
their option, the builder not only lost their
right of retention under Art. 456 but also that
they, as landowners automatically became
the owners of the land.
Issue: Is there merit in the contention of the
Timbangs?
Held: Without merit.
There is nothing in Art. 448 & Art. 546
w/c would justify the conclusion that upon
failure of the builder to pay the value of the
land, when such is demanded by the
landowner, the latter becomes automatically
the owner of the improvement under Art.
445. So what is the recourse left to the
parties in such an eventuality where the
builder fails to pay the value of the land?
While the Code is silent on this point,
guidance may be had fr. the previous
decisions of this Court:
(1) In Miranda v. Fadullon, the builder might
be made to pay rental only, leave things
as they are, & assume the relation of
lessor & lessee;
(2) In Ignacio v. Hilario, owner of the land
may have the improvement removed; or
(3) In Bernardo v. Bataclan, the land & the
improvement may be sold in a public
auction, applying the proceeds first to the
payments of the value of the land, & the

excess if any, to be delivered to the


owner of the house in payment thereof.
BAVIERA: If bldg. Is sold to pay for the
value of the land, then the builder
becomes part-owner of the land.)

CALAPAN LUMBER CO. V. COMMUNITY


SAWMILL CO. 11 SCRA 346
Facts:
Plaintiff Calapan Lumber Co.
undertook the completion & construction of
a provincial road in Calapan. By virtue of a
Provincial Board Resolution, P was granted
sole right to use the said road provided
that after 20 years, it shall donate the said
road to the province. It also provided that
other grantees of lumber concessions may
use said road only w/ Ps permission. Upon
the recommendation of the Director of
Public Works, on the ground that said road
is a public road, the Provincial Board
revoked the earlier resolution & issued a
new resolution declaring the said road a toll
road, proceeds of w/c are to be paid to P as
reimbursement of expenses it incurred in
finishing the road.
Notw/standing said resolution, P
brought action to prohibit Defendant Lao
Kee at al (other lumber concessionaires) fr.
using said road. The Lower Court ruled for
P, declaring that the questioned road is the
private property of P.
Issue: WON the road in question belongs
to Calapan as the latters private property.
Held: No. Decision reversed.
The fact that the completion of the
road was done at the expense of P does not
convert said road into a private one in the
absence of proof that said land (upon w/c
the road was constructed) was owned by P.
Indeed, P built the road in good faith & as
such it may be argued that P is entitled to
have possession of the road until after it
has been reimbursed of the expenses it has
incurred. However, provisions governing
the rights of builder in good faith on private
land cannot be applied here bec. public
interest is involved.

173

BAVIERA: Art. 448 does not apply bec. it


is public property. Remedy of Calapan is
reimbursement either fr. the toll fees
collection or payment of construction
expense w/ legal interest.

IGNACIO V. HILARIO, 76 PHIL. 605


Facts: The Lower Court declared Plaintiffs
Hilario & Dres the owners of the land in
question but conceded to Defendants
Ignacios the ownership of the houses &
granaries built by them on said lot w/ the
rights of possessor in GF. Thereafter, P filed a
motion praying that since they chose neither
to pay the building nor to sell the land, said
Ds defendants should be ordered to remove
the structures & restore P in the possession
of the lot. LC granted the motion.

There is no evidence that the first


survey was erroneous. Also, the difference
w/ the second survey is only 65 sq. m.
while the land Ps claiming is 87 sq. m.
Besides, said land of Ps is covered by a
Torrens title w/c is indefeasible. However,
CA correctly ruled that Ds constructed a
portion of their house on Ps land in good
faith. Thus, Ps have the option under Art.
448. E.g. (1) appropriate the land upon
payment of proper indemnity or (2) sell to
defendants said portion of land.

Issue: WON order of LC is in accord w/ the


law.

It is the opinion of the Court though


that it would be impractical for Ps to buy
that portion of the house standing on their
land, for that will render the whole building
useless. The more workable solution is for
Ps to sell to Ds that part of the land on w/c
was constructed a portion of Ds house. If
Ds are unwilling to buy, then they must
vacate the land & must pay rentals until
they do so.

Held: No. Decision reversed.

TAYAG V. YUSECO, 103 PHIL. 484

Owner has the option of paying the


value of the building or selling the land, He
cannot, as Ps here did, refuse to either to
pay or sell & compel the owner of the
building to remove it form the land where it is
erected. He is entitled to such remotion only
when, after having chosen to sell the land,
the other party fails to pay for the same.

Facts: As payment to defendant Atty.


Yusecos legal services, Maria offered him 2
parcels of land for D to build a house
thereon. A contract of lease was executed
covering
said
lots.
Thereafter,
D
constructed buildings thereon. Later, said
lands were sold by Maria to her daughter,
the Plaintiff Tayag. P asked D to remove the
house on said lots or pay monthly rentals.
D refused. In the action for ejectment, D
was declared a builder in GF & P was given
the option in Art. 448. P signified his
intention to appropriate the buildings so
proceedings continued to determine its
value. However, after determination of the
value of the buildings, P failed to pay.
However, P alleged that even if she had
already made a choice, she cannot be
compelled to pay the price fixed by the
court bec. of her inability to pay the same.

GRANA V. CA, 60 O.G. 1964


Facts: Plaintiffs Bongato & Sanchez filed an
action to recover 87 sq. m of land fr.
Defendants Grana & Torralba, on the ground
that Ds land originally surveyed to have 295
sq. m., on resurvey was found to have 230
sq. m., the difference being part of their (Ps)
land w/c is adjacent to PRs land. The Ds
have constructed in good faith a portion of
their house on the disputed piece of land.
The Lower Court ordered Ds to vacate
& deliver the said land to Ps & pay monthly
rentals of P10 fr. the time of the filing of the
complaint until they vacate the said land. CA
affirmed.

Issue: WON the owner can validly refuse


to pay for the improvements on his land
constr4ucted in GF?

Issue: WON LC decision is correct.

Once a party has made his choice,


& had duly informed the court of said
choice, & is accordingly ordered to comply
w/ the same by buying the building erected
on his land & pay the value thereof fixed by

Held: Yes. Affirmed.

Held: No.

174

the court, that duty is converted into a


money obligation w/c can be enforced by
execution, regardless of the unwillingness &
inability of the party concerned to pay the
amount.

BAVIERA: Rules on builder in GF not


applicable bec. builder must be in
concept of an owner. In CAB, it was in
the concept of a lessee or usufructuary
only)

FELICES V. IRIOLA, 50 O.G. 3123


Facts: Felices was the grantee of a
homestead over parcel of land. F sold said
land to Iriola w/ the condition that the deed of
absolute sale be executed later after 5 years
or as soon as allowed by law, pursuant to Art.
141. Two years, F tried to recover the land
but I refused unless he was paid the value of
the improvements thereon. Court found that
improvements were made only after he was
informed that P wanted to recover the land
thus in BF so not entitled to reimbursement.
Sale was declared null & void as it violated
the 5-year prohibitive period of sale under
the law. I contends that they both knew that
the sale was void so both are in BF, thus Art.
453 applies.
Issues: WON I should be reimbursed on the
basis of Is theory.
Held: No.
Art. 453 cannot be applied as the
improvements in question were made only
after F had tried to recover the land & even
during the pendency of the action in the LC.
After I refused to restore the land, F could no
longer be regarded as having impliedly
assented or conformed to the improvements
made thereafter. I continued to act in BF
when he made the improvements after he
was asked to restore possession of it to F.
(Note : Penalty for
improvements
w/o
reimbursement.)

bad faith: forfeit


any
right
to

IGNAO V. IAC, 193 SCRA 17

action for partition filed by the P, Lower


Court directed partition of the same,
allotting 2/8 thereof to PRs, & the rest to P.
No actual partition was effected. A few
years later, P brought action to recover
possession against PRs alleging that the
houses built thereon by PRs exceeded
their 2/8 portion. Lower Court held that
PRs were builders in GF & gave P the
option in Art. 448. But adopted Grana
ruling as to the workable solution. Thus, P
was ordered to sell part of the land
occupied by the houses of PRs
Issue: WON Art.448 is applicable to a
builder in GF on a property held in
common.
Held: Yes.
As a rule, Art. 448 cannot apply
where a co-owner builds, plants or sows on
the land owned in common for then he did
not build, plant or sow upon the land that
exclusively belongs to another, but of w/c
he is a co-owner. However, when the coownership is terminated by the partition &
it appears that the house of PRs overlaps
or occupies a portion of the land pertaining
to P w/c PRs obviously built in GF, then Art.
448 should apply.
BAR QUESTIONS.
Q: A owns land worth 500,000.
B built in a house on it worth 100,000 .
Both A & B are in GF.
A: A has the option to buy the house for
the same is a necessary & useful expense.
Q: If As lot increased to P550,000, how
much will A pay to B?
A: A will pay necessary & useful expenses.
Q: Assuming house is P900,000.
A: A can compel B to buy land. Does not
fall under the exception.
Q: In what situations may forced lease
arise?
A: If A chose that B buy the land, but the
value of the land is considerably more than
the value of the bldg.
3.

ALLUVION

Facts: Petitioner Ignao & his uncles, Private


Respondents Juan & Isidro Ignao were coowners of a parcel of land. Pursuant to an
175

Art. 457. To the owners of the lands


adjoining the banks of the rivers belong the
accretion w/c they gradually receive fr. the
effects of the current of the waters.

Tolentino:
takes place when the deposit of sediment
has reached a level higher than the
highest level of water during the year;
must be exclusive work of nature
Requisites:
(1) deposit be gradual & imperceptible
(2) made through the efforts of the current of
the water
(3) land where accretion takes place is
adjacent to the banks of the river
Banks of a River: refer to those lateral
strips or zones of its bed w/c are washed by
the stream only during such high floods as do
not cause inundation or to the point reached
by the river at high tide
Property Reviewer:
deposits made by human intervention are
not included
NB: But if owner constructs
purely defensive purposes
damaging action of the water,
deposits accumulate, the
deemed to be alluvion & will
riparian owner

works for the


against the
& bec. of this,
deposits are
belong to the

The owner of the riparian land does


not have to make an express act of
possession as the alluvion belongs to him fr.
the time that the deposit created by the
current of the water becomes manifest
Reasons for the rule:
(1) to compensate the owners for the losses
w/c they may suffer by erosion due to the
destructive forces of the waters
(2) to compensate them for the burdens of
legal easements w/c are imposed upon
them
(3) bec. it is the owner of the contiguous land
who can utilize the increment to the best
advantage
(4) bec. this is the only feasible solution since
the previous owner can no longer be
identified
(5) definition:
the gradual
deposit of
sediment by natural action of a current of
fresh water, not sea water, the original
identity of the deposit being lost
Art. 458. The owners of estates adjoining
ponds or lagoons do not acquire the land left
dry by the natural decrease of the waters, or

lose
that
inundated
extraordinary floods.

by

them

in

Tolentino:
only for ponds & lagoons
lagoons: a small lake, ordinarily of fresh
water, & not very deep, fed by floods,
the hollow bed of w/c is bound by
elevations of lands
REPUBLIC VS. CA 131 SCRA 532
Facts: Santos del Rio filed an application
for registration of a parcel of land situated
near the shore of Laguna de Bay. Director
of Lands opposed alleging that since a
portion of the land sought to be registered
is covered w/ water 4-5 months a year, the
same is part of the lake bed of Laguna or is
at least a foreshore land w/c brings it under
Art. 502, a property of public dominion and
hence, not subject of registration.
Issue: WON land should be registered in
favor of Santos del Rio
Held: Under A74 of the Law of Waters of
1866, lake bed is defined as the ground
covered by waters when at their highest
ordinary depth.
Meaning, the highest
depth of the water during the dry season,
such depth being the regular, common,
natural one w/c occurs most of the time of
the year. Although lakes are subject to the
same gravitational forces w/c cause
formation of tides in seas & oceans, such is
not a regular daily occurrence in lakes.
Thus, the alternation of high tides & low
tides could hardly account for the rise in
the water level of Laguna de Bay as
observed 4-5 months a year during the
rainy season. Rather, it is the rains w/c
bring about the inundation of a portion of
the land in question.
Water level w/c
causes the submersion of the land occurs
during a shorter period than the level of
water at w/c the land is completely dry.
The latter thus should be considered its
highest ordinary depth.
Neither can it be foreshore land, w/c
is a strip of land that lies between the high
& low water marks & is alternately wet &
dry according to the flow of the tide. The
submersion in water of a portion of the
176

land in question is due to the rains & not due


to the flux & reflux of tides.
IGNACIO VS. DIRECTOR OF LANDS 103
PHIL 335
Facts: Petitioner Ignacio filed an application
for registration of a parcel of mangrove land
in Navotas, alleging that he owned such by
right of accretion. Such land adjoins a parcel
owned by him w/c he acquired fr. the
government by virtue of a free patents title.
It was established that land was formed by
accretion & alluvial deposits caused by the
action of Manila Bay.
Director opposed,
contending that parcel is a foreshore land &
thus, part of the public domain.
Issue: WON the parcel of land is owned by
Ignacio by right of accretion
Held: NO. Land is part of the public domain.
A457 is not applicable since it refers to
deposits on the banks of the rivers , while
accretion in the case at bar was caused by
action of the Manila Bay. Applying the Law of
Waters w/c state that accretions caused by
action of the sea form part of the public
domain. A determination by the Government
that such land is no longer necessary for
purposes of public utility or for the
establishment of special industries or for the
coastguard service & a declaration that they
are part of the property of the owners of the
adjacent estates are required.
COMPANIA GEN. VS. VIDE 56 OG NO. 7,
P. 1418
Facts: Compania General owned a vast tract
of land bounded on the east & southeast by
the Cagayan River.
Vide was granted a
homestead patent & later on, an OCT over a
3 hectare property located east of
Companias land.
Santos filed a sales
application over a 3 hectare land located
south of Companias land. Petitioner sought
to recover said parcels of land fr. Vide &
Santos claiming that they were accretions
formed by the continuous action of the
Cagayan River.
Issue: WON land forms an island or are
accretions to Companias land
Held: Island. Accretion may be defined as
an addition to the riparian land gradually &
imperceptibly made by the water to w/c the

land is contiguous. Here, Compania failed


to show that the addition was gradual &
imperceptible. Also, in order to acquire
land by accretion, there should be a natural
& actual continuity of the accretion to the
land of the riparian owner. Here, there is a
natural depression between the hacienda &
the land w/c served as a natural dividing
line. This shows that at no time was the
disputed land part of the hacienda. The
accretion therefore could not have started
fr. Cs land.
The general rule is that
accretions belong to the land fr. w/c they
begin & in order to entitle the riparian
owner to alluvion, the accretion must begin
fr. his land & not fr. some other point so as
to finally reach his land.
Said land actually started as an
island & therefore part of the public
domain. Where the title to the bed of a
stream rests in the State, islands formed by
accretion to such bed belongs to the State
& not to the owner of either shore, & where
an island springs up in the midst of a
stream, it is an accretion to the soil of the
bed of the river & not to the land of the
riparian owner, although it afterwards
became united w/ the mainland.
YOROBE VS. SORETA 63 OG NO. 4, P.
1133
Facts: Yorobe owns land bounded on the
north by Pualino Galicia, east by Bula
Lake, south by a canal, & on the west by
the Bicol River. He brings this action to
exclude defendants fr. his land who entered
& occupied the northeastern portion
thereof. Defendants contend that Yorobe
bought only 6.7 hectares of land such that
he cannot expand said land by appending
to its eastern part about 30 hectares of
land left by when the water of Bula Lake
recedes after the rainy season, invoking
A458.
Issue: WON a lake is considered a pond or
lagoon & the law applicable is A458
Held: NO.
Lake is a body of water
surrounded by land, or not forming part of
the ocean, & occupying a depression below
the ordinary drainage level of the region.
Pond is a body of stagnant water; smaller
than a lake. And lagoon is a body of
shallow water at the mouth of the river or
177

connected w/ the sea. A pond or lagoon is


not considered as a lake.
What is applicable is A77 of the Law of
Waters w/c provides that lands covered by
the water of a lake only temporarily &
accidentally & for the shorter period of time
of the year are property of private ownership.
Even if the two parcels of land claimed by
appellants may be considered as accretions
gradually
deposited
by
accession
or
sediments fr. the water of Bula Lake, still
plaintiff should be considered as the owner of
the land bec. of A84 (Sorry guys, hindi sinabi
kung ano ang provision)
4. AVULSION
Art. 459. Whenever the current of a river,
creek or torrent segregates an estate on its
bank a known portion of land & transfers it to
another state, the owner of the land to w/c
the segregated portion belongs retains the
ownership of it, provided that he removes the
same w/in two years.
Tolentino:
portion of land must be such that it can
be identified as coming fr. a definite
tenement; must be a compact mass
may also be by other forces of nature, if
no provision on the matter is provided
if not removed, land is adjudicated to
owner of land to w/c it has been
transferred, even if removal is impossible
also applies where land is deposited on
the surface or on top of another
tenement; if known portion is broken or
soil loosens such that it mixes w/ that of
the tenement, there is no more known
portion--> the owner of the tenement w/
w/c the soil is merged becomes owner of
such soil
where known portion does not unite w/
another tenement, owner preserves the
right of ownership over said portion

Reasons for the 2-year restriction:


impractical to preserve w/o qualification
the ownership over the portion
owner of the tenement to w/c the
known portion was moved may be
deprived of the use of a portion of his
property
retention of ownership of known portion
may require the establishment of an
easement over the other tenement
there is a likelihood of cohesion
between the known portion of the land
& the tenement w/c has been
transferred
Effect of owners failure to remove land
w/in the 2-year period: adjudicated to
owner of the land to w/c it has been
transferred
Why? Because the transfer of land
creates a conflict of rights---right of
ownership of the original owner vs. the
right of accession of the owner of the
tenement to w/c it has been transferred.
Thus the remedies of the law are:
to preserve the right of the original
owner to recover & remove his property
to create a prescription in favor of the
person asserting accession if the 2-year
period is waived
Art. 460.
Trees uprooted & carried
away by the current of the waters belong
to the owner of the land upon w/c they may
be cast, if the owners do not claim them
w/in six months. If such owners claim
them, they shall pay the expenses incurred
in gathering them or putting them in a safe
place.

Property reviewer:
article refers to uprooted trees only;
even if the owner of the land upon w/c
the trees may have been cast
transplants them on his own to
preserve them, former owner still
preserves his ownership w/in 6 months

Property Reviewer:
Avulsion refers to the transfer of a
known portion of land fr. one tenement to
another by the force of the current
General Rule is that original owner
retains title to the land w/c has been
transferred to another tenement, except
when there is abandonment or upon
expiration of two years, whether the failure to
remove be voluntary or involuntary, &
irrespective of the area of the known portion
that has been transferred

REPUBLIC VS. CA 132 SCRA 514


Facts: Private
respondents
filed
an
application for the registration of three lots
adjacent to their fishpond property in
Meycauayan, Bulacan alleging that said
lots belong to them due to accretion. This
was opposed by the Republic, contending
that what actually happened was that Prs
merely transferred their dikes further down
the river bed such that whatever accretion
178

may have taken place was man-made & not


natural.
Issue: WON subject lands should
registered in favor of private respondents

be

Held: NO.
There is no accretion. The
requirement that the deposit should be due
to the effect of the current of the river is
indispensable. This excludes those caused
by human intervention. Alluvion must be the
exclusive work of nature. In CAB, evidence
showed that the alleged alluvial deposits
came into being not bec. of the sole effect of
the river current but as a result of the
transfer of the dike towards the river &
encroaching upon it. The land is not even
dry but under two meters of water. What the
respondents claim as accretion is really an
encroachment
of
a
portion
of
the
Meycauayan river by reclamation.
The
reason behind the law giving the riparian
owner the right to any land or aluvion
deposited by a river is to compensate him for
the danger of loss that he suffers bec. of the
location of his land.
Notes: Can a creek left dry be acquired?
NO, creek is actually an arm of a river so part
of the public property w/c can not be
acquired privately
5.ABANDONED RIVER BEDS

Art. 461. River beds w/c are abandoned


through the natural change in the course of
the waters ipso facto belong to the owners
whose lands are occupied by the new course
in proportion to the area lost. However, the
owners of the lands adjoining the old bed
shall have the right to acquire the same by
paying the value thereof, w/c value shall not
exceed the value of the area occupied by the
new bed.

Tolentino:
express act by new owners unnecessary;
automatic
must be a natural change in the course of a
stream; if through works constructed by
concessionaires
authorized
by
the
government, concession may grant it to
the former; if no grant, follow article w/o
prejudice to a superior right of 3rd
persons w/ sufficient title
if river bed dries up, continues to be property
of public dominion

Property Reviewer:
Requisites:
it must be sudden so the old river bed can
be identified (unless river disappears &
abandonment applies)
change must be permanent: rules do not
apply to temporary overflowing
Abandonment by the owner of the bed
- change of bed must be natural;
otherwise, becomes the subject of a state
grant
Art. 462. Whenever a river, changing
its course by natural causes, opens a new
bed through a private estate, this bed shall
become of public dominion.

Tolentino: natural bed of a river: ground


covered by its waters during ordinary
floods; of public ownership
Art. 58, PD 1067 (Water Code) When
the river or stream suddenly changes its
course to traverse private lands, the owner
of the affected lands may not compel the
government to restore the river in its
former bed; nor can they restrain the
government fr. taking steps to revert the
river or stream to its former course. The
owner of the land thus affected, are not
entitled to compensation for any damage
sustained thereby. However, the former
owners of the new bed shall be the owners
of the abandoned bed in proportion to the
area lost by each.
The owners of the affected lands may
undertake to return the river or stream to
its old bed at their own expense, provided
that permit is secured fr. the Secretary of
Public
Works,
Transportation
&
Communication & works pertaining thereto
are commenced w/in 2 years fr. the change
in the course of the river or stream.

HILARIO VS. CITY OF MANILA APRIL


27, 1967
Facts: The Hilario estate was bounded on
the west side by the San Mateo River, & on
the NW side, a bamboo & lumber post dike
or ditch was constructed, further fortified
179

by a stone wall built on the north side. A


great flood occurred & inundated the entire
place. The river destroyed the dike, left its
original bed & meandered into the Hilario
estate, segregating a lenticular piece of land
fr. the rest thereof. The disputed area is on
the eastern side of this strip w/c now stands
between the old river bed site & the new
course.
Issue: When a river, leaving its old bed,
changes its original course & opens a new
one through private property, would the new
riverbanks lining said course be of public
ownership also
Held: YES. Art. 73 of the Law of Waters
defines banks of a river as those lateral strips
or zones of its bed w/c are washed by the
stream only during such high floods as do not
cause inundations The intent of the law is
clear in considering the banks for all legal
purposes as part of the riverbed. Since,
undeniably, all riverbeds are part of public
ownership, it follows that the river banks, w/c
form part of them, are also of public
ownership.

PRESENTACION VS. EUGENIO 51 OG NO.


4, P. 1899
Facts: Plaintiff owns a parcel of land partially
bound on the southeast by the Pampanga
River. A portion of the river was closed by
constructing a fish trap. Consequently, its
bed dried up & the current eroded a portion
of the land lying south of the old bed, leaving
a certain portion of 10 has. This portion, w/c
is sandwiched by the old bed & the new river
became a veritable island & was used for
grazing purposes since 1916.
Defendant
claims that it is part of the land for w/c he
filed a homestead application, & w/c he
subsequently occupied.
Issue: WON the land to the south of the old
river bed belongs to plaintiff or is part of
public domain
Held: PART OF THE PUBLIC DOMAIN. Said
land is not an accession to pltffs property but
a part of the public domain. It cannot be
deemed an accession as there is no proof
that the same was formed subsequent to

pltffs land w/c is north of the Pampanga


River. Plaintiffs land & the land in question
must
have
co-existed
since
time
immemorial, otherwise the old Pampanga
river must have been as wide as a
kilometer or more, covering at this vicinity
as big as 10 hectares, more or less, w/c is
the area of the very land in dispute.
Def. is also not entitled to it. The
consequent abandonment of the bed of a
river, bec. of a change of its course, does
not ipso facto divest the public fr. its
ownership thereof, unless there is an
indication of an intention on the part of the
government to acquiesce in the change of
the course of the stream.
ISLANDS

IN

RIVERBEDS

Art. 463. Whenever the current of a


river divides itself into branches, leaving a
piece of land or a part thereof isolated, the
owner of the land retains his ownership.
He also retains it if a portion of land is
separated fr. the estate by the current.
Art. 464. Islands w/c may be formed on
the seas w/in the jurisdiction of the
Philippines, on lakes, & on navigable or
floatable rivers belong to the State.

Tolentino:
belong to patrimonial property of the State
w/c may sell them
navigable river: one w/c in its natural state
affords a channel for useful commerce
& not such as is only sufficient to float a
banca or canoe
Art. 465. Islands w/c through successive
accumulation of alluvial deposits are
formed in non-navigable & non-floatable
rivers, belong to the owners of the margins
or banks nearest to each of them, or to the
owners of both margins if the island is in
the middle of the river, in w/c case it shall
be divided longitudinally in halves. If a
single island that formed be more distant
fr. one margin than fr. the other, the owner
of the nearer margin shall be the sole
owner thereof.

Tolentino:
180

given to those nearest to the island since


they are in the best position to cultivate &
attend to the exploitation of such island
does not include:
those w/c are formed by the branching of a
river
those w/c are known portions of land fr. a
tenement & deposited in the middle of
the stream (to former owner)
all are effects of action of the water
( Alluvion, Avulsion, Change in River
Current, Formation of Island)
lahar is more of accretion than avulsion
accretion is not automatically covered by
Torrens system but owner has to apply
Notes:
Requisite: the island must have been formed
by deposits ( or the accumulation of
sediment) not identifiable
What are included:
islands formed in non-navigable & nonfloatable rivers because those formed in
navigable & floatable rivers belong to the
state
if equidistant fr. both banks --- goes to the
riparian owners, by halves
if nearer one margin or bank --- to the nearer
riparian owner
islands formed gradually by successive
accumulations of deposits by the waters
of the river, as in alluvion
new isles formed between an existing island
& the opposite river bank
islands formed by the sea
if w/in territorial waters --- belong to the state
if outside territorial waters --- belong to the
first occupant

Held: Eduave. CA has sufficient basis for


the finding that the property of PR actually
existed & was identified prior to the
branching-off or division of the river. Even
if that was not established, Prs are
nevertheless entitled to said land. Clearly,
the land in question is an island that
appears in a non-floatable & non-navigable
river. And it is not disputed that Prs are the
owners of the parcel of land along the
margin of the river & opposite the island.
Applying A465, the island belongs to the
owner of the parcel of land nearer the
margin. More accurately, bec. the island is
longer than the property of Prs, they are
deemed ipso jure to be the owners of that
portion w/c corresponds to the length of
their property along the margin of the river.
If however, the riparian owner fails to
assert his claim thereof, the same may
yield to the adverse possession of the third
parties, as indeed even accretion to land
titled under the Torrens system must itself
still be registered. Ps thus may acquire
said land by acquisitive prescription. But
here, Ps possession cannot be considered
to be in good faith, so 30 years of
possession is needed.
III. ACTION TO QUIET TITLE
ART. 476.

Whenever there is a cloud

on:
JAGUALING VS. COURT OF APPEALS 194
SCRA 607
Facts: Private respondents Eduave, et al are
the owners of land forming part of an island
in a non-navigable river. In 1964, said land
was eroded due to Typhoon Ineng, destroying
the bigger portion & improvements thereon.
Due to the movements of the river deposits
on the land that was not eroded, the area
was increased. Later, Eduave et al allowed
petitioners
to
introduce
improvements
thereon & live there as caretakers.
Petitioners however later denied PRs claim of
ownership so PR filed action to quiet title over
the property. RTC dismissed complaint. CA
reversed, ruling that the island was formed
by the branching off of the Tagalon River &
subsequent thereto, the accumulation of
alluvial deposits. Eduaves were declared as
the lawful & true owner of the land.

title to real property or


any interest therein,
by reason of any:
instrument,
record,
claim,
encumbrance or
proceeding
w/c is apparently valid or effective but
is in truth & in fact:
invalid,
ineffective,
voidable, or
unenforceable, &
may be prejudicial to said title,
an action may be brought to remove
such cloud or to quiet the title.
An action may also be brought to
prevent a cloud fr. being cast upon title to
real property or any interest therein.

Issue: Who has a better right to the island?


181

TOLENTINO:
cloud on title or matter complained of:
must have a prima facie appearance of
validity or legal efficacy
semblance of title appearing in some legal
form
but w/c is in fact unfounded.
invalidity
or
inoperativeness
of
instrument is
not apparent on its face, &
has to be proved by extrinsic evidence

the

illustrations of clouds removable by action:


title or lien w/c appears to have been
procured
by
fraud,
deceit,
or
misrepresentation
forged instrument
unauthorized or prohibited conveyances or
encumbrances by incapacitated persons
conveyance w/c is executed by one whose
title to the property had been divested
grant w/c is shown to have been subject to a
condition precedent, where it appears
that the condition has not been
performed
general rule: cloud w/c may be removed by
a suit to quiet title must be a written
assertion of ownership of or an interest in
property
qualification: a claim of right based on
acquisitive prescription or adverse possession
has been held to constitute a removable
cloud on title
the court has not only the:
power to remove an existing cloud, but also
the
power to prevent the casting of a cloud on
the title to property relief will be granted
if the threatened or anticipated cloud is
one w/c if it existed or completed, will
necessarily cast a cloud upon plaintiffs
title
ART. 477. The plaintiff must have:
legal or
equitable title to, or
interest in the real property
w/c is the subject-matter of the action.
He need not be in possession of said
property.

TOLENTINO:
general rule:
in order to
maintain an action to quiet title or remove a
cloud thereon, the plaintiff must have a legal
title to the property in question or some
interest therein

an action to quiet title or


remove a cloud therefr.
when the:
contract,
instrument or
other obligation
has been:
extinguished or has
terminated, or has been
barred by extinctive prescription.

TOLENTINO:
title & liens w/c have lost their force or
failed to enforce them ;
lien, interest, or title w/c has become
barred & unenforceable by reason of
delay & laches or the running of the
statute of limitations;
ex. mortgages w/c are unenforceable by
reason of the expiration of the period of
limitations;
ex. liens acquired by virtue of judgments
or levies of execution w/c have become
barred by limitations or by delay in
enforcing them;
have been held to be removable as clouds.
ART. 479. The plaintiff must return to
the defendant:
all benefits he may have received fr.
the latter, or
reimburse him for expenses that may
have redounded to the plaintiffs benefit.
ART. 480. The principles of the general
law on the quieting of title are hereby
adopted insofar as they are not in conflict
w/ this Code.

TOLENTINO:
In a suit to quiet title, defendant may set
up equitable as well as legal defenses:
acquisition of title by adverse possession
(however, when the property is in the
possession of the plaintiff, action to
quiet title thereto is imprescriptable)
prior adjudication of the question, under
the rule of res judicata
The court will decree such relief as is
necessary to completely & finally
dispose of the controversy.
In order to afford complete relief to the
parties, the court may determine
incidentally the status & ownership of
the legal title to the property, or the
right to the possession thereof.

ART. 478. There may also be:


182

ART. 481. The procedure for the quieting


of title or the removal of a cloud therefr. shall
be governed by such rules of court as the
Supreme Court shall promulgate.
1997 RULES OF COURT, RULE
Declaratory relief & similar remedies

63.

SECTION 1. Who may file petition. Any


person interested under a:
deed,
will,
contract or
other written instrument,
whose rights are affected by a:
statute,
executive order or
regulation,
ordinance, or
any other governmental regulation
may, before breach or violation thereof,
bring an action in the appropriate Regional
Trial Court:
to determine any question of construction
or validity arising, &
for a declaration of his rights or duties,
thereunder.

In 1947, the Villarin spouses executed a


deed of sale in favor of Josefina. Nicanora
then sought to obtain a separate title for
their portion of the land but Josefina
refused on the ground that the entire land
was still mortgaged w/ the PNB as
guarantee for a loan.
Nicanora continued enjoying possession
of their portion of the land, planting fruit
trees & receiving rentals fr. the buildings.
In 1953, w/ Josefinas consent, Nicanora
had the land resurveyed & subdivided
preparatory to their obtaining separate
titles thereto.
A fence was thereafter
erected to demarcate the division.
Nicanora continued to insist on obtaining a
separate title but Josefina refused.
Nicanora engaged the services of Atty.
Bonifacio Regalado, & then Atty. Aquilino
Pimentel, Jr. to intercede, but to no avail.
Hence, case in TC. TC rendered judgment
for Nicanora.

An action:
for the reformation of an instrument,
to quiet title to real property or remove
clouds therefr., or
to consolidate ownership under Art. 1607
of the Civil Code,
may be brought under this Rule.

On appeal, the CA reversed on the


ground that since Nicanoras right of action
is allegedly based on the receipt executed
in 1946, the same has prescribed pursuant
to Art. 1144 of the CC w/c must be brought
w/in 10 years fr. the time the right of action
accrues. When the complaint was filed, 22
years & 26 days had elapsed. Hence this
appeal.

BUCTON V. GABAR

ISSUE:
Whether or not the action of
Nicanora has prescribed. No!

FACTS: In 1946, Josefina bought a parcel of


land fr. the Villarin spouses, payable in
installments. Josefina, then entered into a
verbal agreement w/ Nicanora whereby the
latter would pay 1/2 of the price (P3,000.00)
& would then own 1/2 of the land.
Nicanora paid P1,000 in 1946 & P400 in
1948.
Both were evidenced by receipts
issued by Josefina.
After payment of the P1,000, Nicanora
took possession of the portion of the land
indicated to them by Josefina & built thereon
a nipa house. Subsequently, the nipa house
was demolished & replaced by a house of
strong materials, w/ 3 apartments for rental
purposes.

HELD:
The real & ultimate basis of
Nicanoras action is their ownership of 1/2
of the lot coupled w/ their possession
thereof, w/c entitles them to a conveyance
of the property.
In Sapto, et. al. vs.
Fabiana, the Court, through J.B.L. Reyes,
explained that under the circumstances, no
enforcement of the contract is needed,
since the delivery of the possession of the
land sold had consummated the sale &
transferred title to the purchaser, & that,
actually, the action for conveyance is one
to quiet title, i.e., to remove the cloud upon
Nicanoras ownership by the refusal of the
Josefina to recognize the sale made. We
held therein: The prevailing rule is that the
right of a plaintiff to have title to land
quieted, as against one who is asserting
183

some adverse claim of lien thereon is not


barred while the plaintiff or his grantors
remain in actual possession of the land,
claiming to be owners thereof. The reason for
this rule being that while the owner in fee
continues being liable to an action,
proceeding or suit upon the adverse claim, he
has a continuing right to the aid of a court of
equity to ascertain & determine the nature of
such claim & its effect on his title, or to assert
any superior equity in his favor. He may wait
until his possession is disturbed or his title is
attacked before taking steps to vindicate his
right.
But the rule that the Statute of
Limitations is not available as a defense to an
action to remove a cloud fr. title can only be
invoked by a complainant when he is in
possession. One who claims property w/c is
in possession of another must, it seems,
invoke his remedy w/in the statutory period.

BAVIERA NOTES: Even though the Civil


Code does not include an action to quiet
title as one of those actions w/c are
imprescriptable, the SC in this case held
that such action is imprescriptable.
BASIS of SC:
Art. 480, CC.
The
imprescriptability of an action to quiet
title is a general principle fr. American
jurisprudence.

GARCIA V.CA
FACTS: In 1918, a deed of sale over 2
parcels of land was executed in favor of 1 st
vendee. The deed w/c itself contains entries
showing that it was annotated on the back of
the OCT was presented for registration. But
for some reason, the deed of sale was not
annotated on the OCT so said title was not
canceled. As a result of registration, TCT was
issued to 1st vendee (but w/o the OCT being
canceled).
Subsequently, 1st vendee
constituted a mortgage on said land & made
transfers.
In 1962, TCT was issued to 2nd vendee
covering the same parcels of land. 2nd vendee
later mortgaged the land & sold a part of it
w/c the 3rd vendee also mortgaged. When
they defaulted, the banks foreclosed the
mortgages. When 1st vendee learned of the
acquisition by 2nd vendee of the land, he
registered an adverse claim over their titles.
1st vendee filed an action to quiet title against
2nd vendee.

ISSUE: Who has better title, 1 st vendee or


2nd vendee? 1st vendee!
HELD: 1st vendee was clearly an innocent
purchaser for value (IPV).
He validly
transmitted to his successors-in-interest his
indefeasible title over the disputed lots.
That title could not be nullified or defeated
by the issuance 43 years later to other
persons of another title over the same lots
due to the failure of the registry of deeds to
cancel the title preceding the title issued to
1st vendee. This must be so considering
that 1st vendee & his successors-in-interest
remained in possession of the disputed lots
& their rival claimants never possessed the
same. Where 2 certificates of title purport
to include the same land, the earlier in date
prevails.

BAVIERA NOTES: Action to quiet title is


appropriate where two seemingly
authentic TCTs are involved.

JALANDONI V. PNB
FACTS: On March 31, 1959, the CFI of
Manila
rendered
judgment
ordering
Jalandoni to pay PNB. Said order became
final & executory.
On March 9, 1964, w/in 5 years fr. the
entry of judgment, the sheriff levied upon a
lot w/ an area of 17 hectares, covered by a
TCT in the name of Jalandoni. The levy was
annotated on the title as a notice of
embargo. No effort was made to have the
land sold at public auction to satisfy the
judgment against Jalandoni.
On April 22, 1974, or more than ten
years after the levy was made, Jalandoni
filed w/ the CFI in a land registration
proceeding, a petition for the cancellation
of the levy on the ground of prescription.
The petition was opposed by the bank.
The lower court asked Jalandoni to ask
the Manila court to quash the writ of
execution on the ground of prescription &
thereafter to refile the petition w/ the lower
court.
for

Jalandoni filed an action to quiet title or


the cancellation of the notice of
184

embargo on the ground that more than 10


years have elapsed fr. the time the levy was
made, & no execution sale have been made.
Therefore, levy had become inefficacious &
was a cloud on his title.
ISSUE: Whether an action to quiet title can
be availed of to cancel a notice of embargo
on the title. Yes!
HELD: An action upon a judgment must be
brought w/in 10 years fr. the time the right of
action accrues (Art. 1144 CC). As clarified in
the Rules of Court, prescriptive period means
that a judgment may be executed on motion
w/in 5 years fr. the date of its entry or fr. the
date it becomes final & executory, & after the
lapse of such time, & before it is barred by
the Statute of Limitations, a judgment may
be enforced by action. In Ansaldo v. Fidelity
& Surety Co., it was held that properties
levied upon on execution must be sold in
public auction w/in the period of ten years
during w/c the judgment can be enforced by
action. The reason for this rule is that an
execution is enforced by levy & sale, not by
levy alone.
The employees of the bank were
negligent. They did not require the sheriff to
sell Jalandonis land at public auction. The
bank is bound by its employees negligence.
The law helps the vigilant & not those who
sleep on their rights. This may serve alike as
a punishment for those who do not look after
their own interests & as a source of
reassurance to those who may have rested in
the belief that their creditors have waived
their rights & also to insure economic stability
& certainty of rights.
The notice of embargo is no longer
enforceable & has become a cloud upon his
title. Following the rule in the Ansaldo case,
he & his heirs have a good cause of action
under Art. 476 of the Civil Code for the
removal of any encumbrance.
Art. 478
provides that there may also be an action to
quiet title or to remove a cloud therefr. when
the contract, instrument or other obligation
has been extinguished or has terminated or
has been barred by extinctive prescription.
A court of equity will remove a cloud cast
upon a title to property by lien, interest or
title w/c has become barred by reason of
laches. Liens w/c were acquired by virtue of
judgments or levies of execution & w/c has
become barred by limitations or delays in

enforcing them have been held removable


as clouds.
LAYNO V. CA
FACTS: In the inventory of the properties
of the deceased, his administrator included
a parcel of land w/ an area of 5,417 square
meters.
But in the title, the area
denominated was 8,752 sq. meters. Upon
survey of the land, administrator found that
the northwestern portion of 3,732 sq.
meters was occupied by a 3rd person. As
the 3rd person-occupant refused to vacate,
administrator filed action for recovery,
while
3rd
person-occupant
sought
reconveyance of the property.
ISSUE: Who has better title, deceased or
the 3rd person-occupant?
3rd personoccupant!
HELD:
Evidence discloses that said
portion was originally possessed openly,
continuously & uninterruptedly in the
concept of an owner by 3rd personoccupants deceased father.
Upon the
latters
death,
3rd
person-occupant
adjudicated said property to herself & paid
taxes thereon.
Tacking the previous
possession of his father, 3rd person had
been in possession for about 45 years. On
the other hand, the deceased, during his
lifetime, never took steps to possess or lay
adverse claim to the portion in question.
Prescription cannot be invoked against
3rd person-occupant for the reason that as
lawful possessor & owner of said portion,
her cause of action for reconveyance w/c,
in effect, seeks to quiet title to the
property, falls w/in settled jurisprudence
that an action to quiet title to property in
ones possession is imprescriptible. Her
undisturbed possession over a period of 52
years gave her a continuing right to seek
aid of a court of equity to determine the
nature of the adverse claim of a third party
& effect on her own title.
BAVIERA NOTES: This was originally an
action for reconveyance based on
implied trust.
In this case the
deceased & the 3rd person-occupant
were relatives. During the lifetime of
the deceased, the two had an
understanding that the 3rd personoccupant would reconvey the portion
185

belonging to the deceased upon the


latters getting title over the whole
property. This action prescribes in 10
years fr. issuance of title on ground of
breach of trust.
However, in the
present case, the action did not
prescribe bec. no repudiation was
made.
The deceased became the
registered owner but did not disturb
possession of the 3rd person-occupant,
who has been in possession since time
immemorial.
Even the administrator
recognized the possessors title.

TOLENTINO:

The SC, however, construed this


action as an action to quiet title w/c is
imprescriptable
as
long
as
in
possession, applying the holding in
BUCTON v. GABOR, applying American
jurisprudence.

alterations
have a more permanent result &
relate to the substance or form of
the thing

But Maam says this is wrong bec.


the title was quieted a long time ago,
the property being covered by an OCT.
IV. CO-OWNERSHIP

ART. 492. For the:


administration &
better enjoyment
of the thing owned in common,
the resolutions of the majority of the coowners shall be binding.
There shall be no majority unless the
resolution is approved by the co-owners who
represent the controlling interest in the object
of the co-ownership.
Should there be:
no majority, or should the
resolution of the majority be seriously
prejudicial to those interested in the property
owned in common,
the court, at the instance of an interested
party, shall order such measures as it may
deem proper, including the appointment of
an administrator.
Whenever a part of the thing belongs
exclusively to one of the co-owners, & the
remainder is owned in common, the
preceding provisions shall apply only to the
part owned in common.

administration & better enjoyment of the


common property contemplates acts or
decisions for the common benefit of all the
co-owners & not for the benefit of only one
or some of them
acts of administration:
refer to the enjoyment & preservation of
the thing
have transitory effects
even alterations w/c do not affect the
substance or form of the thing fall
under this article

query: can a mere majority of the coowners lease real or immovable property
for any length of time?
answer: special powers are required for
leases of real property by an administrator
in the following cases:
when the lease is to be recorded in
the Registry of Property
Art. 1648. Every lease of real property
may be recorded in the Registry of
Property. Unless a lease is recorded, it shall
not be binding upon 3rd persons.
Art. 1647. If a lease is to be recorded in
the Registry of Property, the following
persons cannot constitute the same w/o
proper authority: . . . the manager w/o
special
power.
(the lease ceases to be an act of
administration when it is to be recorded in
the Registry of Property)
Art. 1878 provides that a special power of
attorney shall be necessary to lease any
real property to another person for more
than one year.
Thus, in these two cases, a mere majority
of the co-owners cannot constitute the
lease
Who may manage the property?
The
management of community property lies,
in the first place, in the co-owners
themselves.
In this management, the majority of
interests control, & their decisions are
binding upon the minority. However, in
making decisions, the majority should
186

notify the minority, so that the latter can be


heard.
The majority will be justified in proceeding
w/o previous consultation w/ the minority,
only when the urgency of the case & the
difficulty of the meeting so require.
The administration may be delegated by the
co-owners to one or more persons, whether
co-owners or not.
The powers & duties of such administrators
are governed by the rules on agency. Thus,
the administrator cannot, w/o the unanimous
consent of all the co-owners, compromise on,
donate,
cede,
alienate,
mortgage
or
encumber in any manner the common
property.
When there is no majority, or when the
resolutions of the latter are seriously
prejudicial to the co-ownership, the court
may appoint an administrator, whose powers
& duties as are defined in his appointment
Examples of acts seriously prejudicial:
When the resolution calls for a
substantial change or alteration of
the common property or of the use
to w/c it has been dedicated by
agreement or by its nature
When the resolution goes beyond the
limits of mere administration, or
invades the proprietary rights of
the co-owners, in violation of Art.
491, w/c states, None of the coowners shall, w/o the consent of
the others (unanimous consent),
make alterations in the thing held
in common, even though benefits
for all would result therefr..
However, if the w/holding of
consent by one or more of the coowners is clearly prejudicial to the
common interest, the courts may
afford adequate relief.
When the majority authorize leases,
loans, or other contracts w/o
security, exposing the thing to
serous danger to the prejudice of
the other co-owners
When the resolution, if carried out,
would cause serious injury to the
thing itself, such as an agreement
not to borrow money under
reasonable terms when it is
necessary for urgent repairs for
preservation, or for the payment
of taxes.
ART. 494. No co-owner shall be obliged to
remain in the co-ownership. Each co-owner
may demand at any time the partition of the
thing owned in common, insofar as his share
is concerned.

Nevertheless, an agreement to keep


the thing undivided for a certain period of
time, not exceeding 10 years, shall be
valid. This term may be extended by a
new agreement.
A donor or testator may prohibit
partition for a period w/c shall not exceed
twenty years.
Neither shall there be any partition
when it is prohibited by law.
No prescription shall run in favor of a
co-owner or co-heir against his co-owners
or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.

TOLENTINO:
The mere fact that the partition of the
property may affect the usefulness or
value of the whole is not a valid excuse
for a refusal to have it partitioned
among the co-owners. Such result is a
necessary incident of co-ownership.
Action for partition is imprescriptable, as
long as the co-ownership is recognized.
Gen. Rule: possession by one co-owner
will not be regarded as adverse to the
other co-owners, but in fact as
beneficial to all. Exception: If co-owner
holds the property in exclusive adverse
possession, asserting sole & exclusive
ownership, for the required prescriptive
period, he can acquire sole title to it as
against the co-owners.
It must be
shown by clear & convincing evidence
that he has repudiated the coownership, & that the other co-owners
have been apprised of his claim, before
the prescriptive period begins to run.
Exceptions: Partition can not be asked in
the following cases:
When the co-owners have agreed to
continue in the co-ownership for the
period permitted by law (period of
indivision cannot be more than ten
years; this period may be extended by
the co-owners, provided that each
extension does not exceed ten years;
where parties stipulate a definite period
of indivision exceeding the maximum
period allowed by law, the stipulation
would be void only as to the period
beyond such maximum)
When the co-ownership is imposed as a
condition in a donation or a will
When the partition will render the thing
unserviceable for the use & the purpose
for w/c it is intended, the co-ownership
may be terminated in accordance w/
Art. 498 (sale of the thing & distribution
of its proceeds)
187

SINGSON V. VELOSO

PHILIPPINE WATER CODE, PD 1067

FACTS:
The co-heirs, inherited a parcel of
land. Due to transfers among themselves.
One co-owner became majority owner. She
was also administratrix.
Later, she built
thereon a building & leased it. She credited
the co-ownership w/ rentals for the use of the
land. The rentals of the building, however,
she appropriated for herself since, she claims
that she alone defrayed the expenses for the
building.
The other co-heirs claim that
majority co-owner should account for all the
rentals including that of the building.

All waters belong to the State even


those located in private lands, & cannot be
acquired by prescription. Permit must be
obtained for water use, except for domestic
purposes. Only water collected in tanks &
pools belonging exclusively to the owner of
the land in w/c water is isolated may be
placed under the exclusive control &
disposal of such owner.

ISSUE: Whether or not majority co-owner


must account for all the rentals of the
property, irrespective of whether or not she
defrayed the costs of constructing the
building w/ her own money. Yes!

a. Continuous or intermittent waters


rising on
such
land;
Lakes & lagoons naturally occurring on
such lands;
Rain water falling on such lands;
Subterranean or ground waters; &
Waters in swamps & marshes.

HELD:
The construction of the building is a
definite alteration & should therefore have
the unanimous consent of all co-owners,
otherwise Art 491 would be violated . Even
assuming that it was a mere act of
administration & that as majority owner her
decision prevails, there is a requirement that
before such a decision is made, there should
be notice to the minority co-owners so that
they can be heard. The majority would be
justified in proceeding w/o consultation only
when the urgency of the case & the difficulty
of meeting w/ them render impracticable the
giving of such notice. In this case, the other
co-owners were never given notice. Also, the
term administration & better enjoyment of
property contemplates acts or decisions for
the common benefit of all the co-owners &
not the benefit of only one or some of them.
The construction of the building is for
the account & benefit of the co-ownership.
The majority co-owner should account to the
other co-owners for their shares in the rentals
of said building, deducting the cost of
construction.
BAVIERA NOTES: The co-owners should
share in the rentals but w/ the
obligation to pay their share of the
costs of the building.

ART. 6. The following waters found on


private lands also belong to the State:

The owner of the land where the


water is found may use the same for
domestic purposes w/o securing a permit,
provided that such use shall be registered,
when required by the Council (National
Water Resources Council). The Council,
however, may regulate such use when
there is wastage, or in times of emergency.
ART. 14. Subject to the provisions of this
Code concerning the control, protection,
conservation
&
regulation
of
the
appropriation & use of waters, any person
may appropriate or use natural bodies of
water w/o securing a water permit for any
of the following:
Appropriation of water by means of
hand-carried receptacles; &
Bathing or washing, watering or dipping
of domestic or farm animals, & navigation
of watercrafts or transportation of logs &
other objects by floatation.

VI. POSSESSION
A. RIGHT

TO FRUITS

V. WATERS
188

ART. 544. A possessor in good faith is


entitled to the fruits received before the
possession is legally interrupted.
Natural & industrial fruits are considered
received fr. the time they are gathered or
reserved.
Civil fruits are deemed to accrue daily &
belong to the possessor in good faith in that
proportion.
TOLENTINO:
When the owner or a possessor w/ a better
right comes along, & when he hears the
grounds in support of the adverse
contention, his good faith ceases.
The legal interruption of possession in good
faith, however, takes place when the
action is filed against him & he is served
w/ summons. Hence, all fruits that the
possessor may receive fr. the time that he
is summoned, or when he answers the
complaint, must be delivered or paid by
him to the owner or lawful possessor. If
the property bears no fruits, the
reasonable rents fr. such time should be
paid by the possessor, in the concept of
civil fruits.
Where it is proved, however, that the good
faith of the possessor ceased before the
legal interruption of the possession, then
he must restore the fruits received fr. the
time such good faith ceased.
ART. 545. If at the time:
the good faith ceases,
there should be any
natural or
industrial fruits,
the possessor shall have a
right to a part of the expenses of
cultivation, & to
a part of the net harvest,
both in proportion to the time of the
possession.
The charges shall be divided on the same
basis by the two possessors.
The owner of the thing may, should he so
desire, give the possessor in good faith the
right to finish the cultivation & gathering of
the growing fruits, as an indemnity for his
part of the expenses of cultivation & the net
proceeds; the possessor in good faith who for
any reason whatever should refuse to accept
this concession, shall lose the right to be
indemnified in any other manner.

ART. 549. The possessor in bad faith


shall:
reimburse the
fruits received &
those w/c the legitimate possessor
could have received, &
shall have a right only to the
expenses mentioned in paragraph 1 of
Article 546 (necessary expenses) &
in article 443 (expenses in the
production, gathering, & preservation of
the fruits, if the lawful owner or possessor
chooses to appropriate the fruits).
The expenses incurred in improvements
for

pure luxury or
mere pleasure
shall not be refunded to the possessor
in bad faith; but he may remove the
objects for w/c such expenses have been
incurred, provided that the:
thing suffers no injury thereby & that
the
lawful possessor does not prefer to
retain them by paying the value they may
have at the time he enters into possession.

TOLENTINO:
A possessor in bad faith has no right to
receive any fruits.
Those already
gathered & existing will have to be
returned; w/ respect to those lost,
consumed, or w/c could have been
received, he must pay the value. The
ungathered fruits will go to the lawful
possessor or owner.
The amount of the fruits that could have
been received is determined by the
personal circumstances of the lawful
possessor better facilities, resources,
industry, or skill.
The possessor in bad faith is entitled to
reimbursement for necessary expenses,
but he has no right of retention. As to
useful expenses, he has no right to
reimbursement, bec. the law says he is
entitled only to necessary expenses.
ART. 1123. Civil interruption is produced
by judicial summons to the possessor.
ART. 449. He who builds, plants or sows
in bad faith on the land of another, loses
what is built, planted or sown w/o right to
indemnity.

189

WARD V. DELFIN
FACTS:
Several days before the
occupation, owner brought his car to a friend
for safekeeping. During the occupation, car
owner, being an American, was interned in
UST.
In the meantime, one Major Orais,
succeeded in pressuring his wife to sign a
deed of sale of the car in his favor for P500 in
Mickey mouse money. After liberation, car
owner brought an action to recover said
properly fr. a Bautista to whom the car was
sold by Orais.
Bautista contends that
assuming arguendo that Maj. Orais obtained
the car against the wifes consent & that the
execution of the Deed of Sale was obtained
through improper pressure & compulsion, he
is, nonetheless a purchaser & consequently,
a possessor in good faith. He may be ordered
to return the car to the owner; but he must
be reimbursed necessary expenses (for repair
& improvement) he incurred; & he is entitled
to retain the car until payment. LC ordered
Bautista to pay P2,200 as value of the car &
P300 for damages.
Car owner appeals
alleging that he is entitled to the earnings of
the car while in possession of Bautista who
used it in transporting passengers.
ISSUE: What are the rights & obligations of
Bautista?
HELD: Bautista bought the car fr. the wife in
whose name the car was registered. There
was no evidence that he acted in bad faith.
Thus, since he was a bona fide possessor of
said car, he could therefore lawfully dedicate
it to business & reap its proceeds pursuant to
Art. 544, CC. The car owner has no right to
the earnings of such car while in the good
faith possession of Bautista.

BAVIERA NOTES:
Income fr. the car
lawfully belongs to the possessor in
good faith (PGF). From the time that
PGF was informed of the car owners
adverse claim, he became a PBF. He
was not ordered to account for the
proceeds of the car fr. the time he
became a PBF bec. he also made repair
& improvements in the car. SET-OFF.

MARFORI V. VELASCO
FACTS: Owner of the land filed an action
against the possessors of her land, claiming

that the latter occupied her lands w/o her


consent, & continue to occupy the lands &
to enjoy the fruits thereof despite her
demands for them to vacate.
Possessors, on the other hand, contend
that they occupied the lands pursuant to
the information given them by owners
husband who was then mayor, that they
may clear, occupy, & cultivate the lands, &
that after 10 years of occupation, titles of
ownership would be issued to them.
ISSUE:
Whether or not possessors are
PGF. Yes!
What are the rights & obligations of
such PGF?
HELD:
Inasmuch as PGF introduced
permanent improvements on the land in
good faith, that is, w/o being aware of any
flaw in their mode of acquisition, Art. 448
should apply in the determination of their
rights. Hence, the expenses they incurred
in clearing & improving the land should be
refunded to them.
However, PGF became PBF upon filing of
the complaint herein, for it was then that
they learned of the owners registered title
over the lands. From then on, they lost
their right to the fruits & should account for
those received by them thereafter,
according to Arts. 544 & 549, CC.

BAVIERA NOTES:
Fruits harvested
during possession in bad faith must
be accounted for, minus necessary
expenses during possession in good
faith & possession in bad faith.
B.
RIGHT
IMPROVEMENTS;
DETERIORATION

TO

EXPENSES
RISK

&
OF

Art. 546. Necessary expenses shall be


refunded to every possessor; but only the
possessor in good faith may retain the
thing until he has been reimbursed
therefor.
Useful expenses shall be refunded only
to the possessor in good faith w/ the same
right of retention, the person who has
defeated him in the possession having the
190

option of refunding the amount of the


expenses or of paying the increase in value
w/c the thing may have acquired by reason
thereof.
Art. 547. If the useful improvements can
be removed w/o damage to the principal
thing, the possessor in good faith may
remove them, unless the person who
recovers the possession exercises the option
under par.2 of the preceding article.
Art. 548. Expenses for pure luxury or
mere pleasure shall not be refunded to the
possessor in good faith; but he may remove
the ornaments w/ w/c he has embellished the
principal thing if it suffers no injury thereby, &
if his successor in the possession does not
prefer to refund the amount expended.
Art. 552. A possessor in good faith shall
not be liable for the deterioration or loss of
the thing possessed, except in cases in w/c it
is proved that he has acted w/ fraudulent
intent or negligence, after the judicial
summons.
A possessor in bad faith shall be liable for
deterioration or loss in every case, even if
caused by a fortuitous event.
Art. 450. The owner of the land on w/c
anything has been built, planted or sown in
bad faith may demand the demolition of the
work, or that the planting or sowing be
removed, in order to replace things in their
former condition at the expense of the person
who built, planted or sowed; or he may
compel the builder or planter to pay the price
of the land, & the sower the proper rent.
Art. 2121. Pledges created by operation
of law, such as those referred to in Articles
546, 1731 & 1994, are governed by the
foregoing articles on the possession, care &
sale of the thing as well as on the termination
of the pledge. However, after payment of the
debt & expenses, the remainder of the price
of the sale shall be delivered to the obligor.
ORTIZ V. KAYANAN
Facts: The lot in question was formerly
subject of a homestead application by Martin
Dolorico II, Ortizs ward. Upon Martins death,
Ortiz continued cultivation & possession of
said property w/o filing any application to

acquire title thereon.


Martins heirs
relinquished their rights over the property
in favor of the defendants. The latter filed
their respective sales application, w/c Ortiz
opposed.
The Secretary of Agriculture
dismissed such opposition. On appeal, the
CFI awarded a portion to defendants & the
other portion to be subject of auction sale.
And that should Ortiz not be declared a
successful bidder thereof, the defendants
be ordered to reimburse Ortiz for the
improvements he introduced therein, Ortiz
having the right to retain the property until
after he has been fully paid therefor.
Issue: WON Ortiz is entitled to retain for
his own exclusive benefit all the fruits of
the property?
Held: NO. From the time of the filing of
the action in court, possession in good faith
ceases & all the fruits that the possessor
may receive fr. that time must be delivered
& paid to the owner or lawful possessor.
However, even after GF ceases, the
possessor in fact can still retain the
property until he has been fully reimbursed
for all the necessary & useful expenses
made by him. This right of retention is
accessory to a principal obligation.
Considering that the right of the possessor
to receive the fruits terminates when his
good faith ceases, it is necessary, in order
that this right to retain may be useful, to
concede to the creditor the right to secure
reimbursement fr. the fruits of the property
by utilizing its proceeds for the payment of
the interest as well as the principal of the
debt while he remains in possession.
This right of retention is considered
not a coercive measure to oblige the
debtor to pay, depriving him temporarily of
the enjoyment of the fruits of his property,
but as a means of obtaining compensation
for the debt. The right of retention is
analogous to a contract of antichresis & it
can be considered as a means of
extinguishing the obligation, inasmuch as
the right to retain the thing lasts only for
the period necessary to enable the creditor
to be reimbursed fr. the fruits for the
necessary & useful expenses.
Note: In the contract of antichresis, the
creditor acquires the right to receive the
fruits of an immovable of his debtor w/ the
obligation to apply them to the payment of
191

the interest, if owing, & thereafter to the


principal of his credit. The debtor cannot
reacquire enjoyment of the immovable until
he has actually paid what he owes the
creditor.
CASE V. CRUZ
Facts:
Petitioner owned a truck w/c
disappeared during the Japanese occupation.
After liberation, inquiries revealed that the
defendant had registered in his name a truck
w/ the same motor number.
Petitioner
brought an action for replevin. The LC ruled
for petitioner & ordered defendant to return it
but ordered petitioner to pay defendant, as a
possessor in GF, the amount the latter spent
in rebuilding the engine.
Issue(s) WON Cruz was in bad faith? YES.
WON Cruz should be reimbursed for his
expenses? NO.
Held: Defendant is a possessor in bad faith.
Cruz was bound to suspect the illegal origins
of the motor & chassis, considering that this
was shortly after the Japanese occupation.
The fact that the motor was incomplete w/
several parts missing should have led Cruz to
question the certificate of registration shown
to him by the vendor. Further, necessary
expenses are those incurred for the
preservation of the thing.
In CAB, the
addition of parts to complete the engine &
place it in working condition were not merely
aimed at preserving the motor acquired fr.
further deterioration but for improving the
same.
The good faith of a possessor consists
in the absence of knowledge of a defect that
invalidates his title. It is a belief that the
person fr. whom he received the thing was
the owner thereof & could transmit the title
thereto & w/c belief must be well-founded or
reasonable.
CALANG V. SANTOS
Facts: Petitioners are co-owners of a parcel
of land w/c they sold to defendants w/ right to
repurchase w/in 10 years. Subsequently, the
petitioners sought to repurchase the land &
tendered the amount of P200 but defendants
refused. Petitioners deposited the amount in
court. The LC ruled in petitioners favor &
ordered defendants to convey the land to the
petitioners & to remove all improvements

made at their own expense. Defendants


appealed, claiming that the court erred in
not holding that they were entitled to the
value
of
the
necessary
&
useful
improvements on the property made in
good faith.
Issue: WON the improvements on the
land are necessary or useful, thus entitled
defendants to be paid their value? NO.
Held: Necessary expenses are those made
for the preservation of the thing & w/o w/c
it would be lost. A useful expense is one w/
w/c the thing better serves the purpose for
w/c it was intended & thus adds value to
the same. The improvements made in the
CAB, including the main road, the cutting of
trees & long grasses, removing fallen trees
fr. the area, leveling the sawmill site, etc.,
were useful only to a sawmill operator. The
land in question was intended by the owner
to be agricultural land & never as a
compound for a sawmill. Therefore, the
improvements were inconsistent w/ the
agricultural nature of the land. Therefore,
they cannot be deemed as useful
improvements for w/c they can be
reimbursed.
BAQUIRAN V BAQUIRAN
Facts: 6 parcels of land are held under coownership by plaints & defs. One of the
son of the co-owners, Maximo (P), built his
house on 2 of the 6 lots. In the action for
partition, the court ordered the lots to be
divided bet Ps & Ds exc Max & that the Ps
are entitled to acquire the house or to
compel him to pay them the price of the 2
lots on q/c the house was built. Should the
Ps choose to acquire the house, Max shall
have the rt. to retain the same until the
amount of the house is satisfied. Max is
ordered to pay the rentals until Ps have
acquired his house or until Max shall have
chosen to buy the 2 lots.
Issue: WON Max should be made to pay
rents.
Held: NO. Max cannot be made to pay
the rentals. Max's house falls w/in the
scope of the term useful expenses. Since
he built it in GF he has the rt. to retain it
pending reimbursement. This rt. extends
to the land itself bec the rt. to retain the
improvements while the indemnity is not
192

paid implies the tenancy or possession in fact


of the land on w/c they are built. Thus, the
owner of the land has no rt. to demand rents
for the occupation thereof by the builder in
GF pending the payment of the indemnity or
the sale of the land to the latter, w/cever is
the choice of the said owner.
MARCELINO V MIGUEL
Facts: A patent was issued in favor of def
Miguel over a lot by the Bureau of Lands.
The OCT was issued in his name. The plaint
Marcelino also has a pending applic over a lot
adjoining Mig's. This was also approved but
no patent has been issued. Both Mig & Marce
entered into possessions of their lots &
started cultivating the same. However, it
appears that Marce encroached upon the lot
covered by Mig's patent. Marce erroneously
believed that the portion belonged to them &
cultivated the same.
Marce filed action vs
Mig.
Issue:
WON Mig should be made to
reimburse
Marce
for
the
value
of
improvements (pilapil)
Held: NO Pilapil is not nec & its construction
depends upon the topographical condition of
the ground. It is an ordinary improvement
w/c does not affect the value of the land. Art
546 is not applic bec this refers to nec &
useful expenses. The presence of pilapils in a
rice field does not enhance nor increase the
value of the land itself; it is the production of
the mother soil w/c goes to the benefit of the
farmer or possessor.
CARBONELL V CA
Facts: JP owned a lot w/ improvements. He
mortgaged it to RSBank. RC & EI offered to
buy the lot. JP offered to sell the lot to RC.
RC was to assume the mortgage.
They
executed a private doc. w/c states that JP can
start living on the lot w/o rent & if after 1 yr.
he cld not find a place where to move his
house, he cld still continue occupying the site
but w/ rent. Later, RC went to JP to execute
the formal deed of sale, but JP said they cld
not continue w/ the sale bec he sold the lot to
EI. JP & EI executed a formal deed of sale. EI
took possession of the lot.
RC reg her
adverse claim. 4 days later EI reg her deed
of sale. A TCT w/ RC's adverse claim was
issued to EI.

Issue: Who has better rt. to the land?


Held: RC. If there is an inscription, prior
reg in GF is a pre-condition to superior title.
To merit the protection of A1544 (2), it is
essential that the buyer of realty must act
in GF in registering his deed of sale. RC's
prior purchase of the land was made in GF;
she was the only buyer at that time. Her
GF did not cease after JP told her of the 2nd
sale to EI. The recording of her adverse
claim is done in GF. EI's BF is emphasized
when she reg her deed 4 days later. Since
EI is in BF, their rts to the improvements
they introduced are governed by A546 &
547. Under 546(2), the possessor in GF
can retain the useful improvements unless
the person who defeated him in poss
refunds the useful expenses or pays him
the increased value of the land. Under
547, the possessor in GF also has the rt. to
remove the useful improvements if the
removal can be done w/o damage tot he
land, unless the person w/ the superior rt.
elects to pay for the useful improvements
or reimburse the expenses under 546.
These provisions seem to imply that the
possessor in BF has neither the rt. of
retention of useful improvements nor the
rt. to demand refund for useful expenses.
But if the lawful possessor can retain the
improvements introduced by the possessor
in BF for pure luxury or mere pleasure only
by paying its value at the time he enters
into possession under 549, as a matter of
equity, EI should be allowed to remove the
improvements, altho in BF, unless RC
chooses to pay for their value at the time
they were introduced. No reimbursement
for EI for the current value of the useful
improvements bec they have been
enjoying such for 2 decades w/o rents.

Baviera: This is wrong!!!


1. the 1st sale was made in a private
doc.
so constructive delivery shld
not be construed.
There was
tradicion constitutum possessorium
where owner retains poss in the
concept of a lessee. But the leas was
to take place 1 yr. later so prior this,
no delivery is made to the buyer. The
2nd sale was in a public doc so there
is constructive delivery.

193

2. The court deemed the adverse claim


as constructive notice. But the adverse
claim is not a reg of title under 1544.
Thus,
insofar
as
1st
vendee
is
concerned, there is no reg of title. The
recording of the 2nd sale shld be the
one recognized as reg but the court said
he was not in GF. When the 2nd buyer
bought the lot, he is presumed to be in
GF. So how can the court presume BF
by the mere fact of being neighbors?

1. COMPARE

A.

USUFRUCT

Art. 592. The usufructuary is obliged to


make the ordinary repairs needed by the
thing given in usufruct.
By ordinary repairs are understood such
as are required by the wear & tear due to
the natural use of the thing are
indispensable for its preservation. Should
the usufructuary fail to make them after
demand by the owner the latter may make
them at the expense of the usufructuary.

W/

FLOREZA V EVANGELISTA

TOLENTINO:

Facts: E was the owner of a lot. E borrowed


fr. F P100 as a result, E allowed F to occupy
the lot & build a house of light materials w/o
rents. E again borrowed fr. F. The loans were
in a private doc where it was stated that the
resid lot stands as security. F demolished the
house & constructed one of strong materials.
E sold the lot to F w/ rt. to repurchase w/in 6
yrs. 7 mos bef expiry of repurchase period, E
paid the full repurchase price. E sent F a
written demand to vacate the lot. F refused
until reimburse the value of the house. E
filed a complaint & prayed that she be
declared the owner of h & l w/o need to pay F
indemnity.

Two requisites for ORDINARY REPAIRS

Issue: WON F as builder is entitled to rts


prov in 448, 453 & 1616.

If the ordinary repairs are due to defects


caused by the FAULT of the usufructuary,
he cannot exempt himself fr. liability by
renouncing the usufruct.

Held: NO. 448 453 apply when BPS believes


he had the rt. to BPS bec he thinks he owns
the land or believes himself to have a claim
of title. 1616 is inapplic. F as vendee a retro
is not entitled to the rts under this prov. F did
not construct his house as vendee a retro.
Remember he built a house of light materials.
F incurred no useful expense after the sale.
The house was already there at the tolerance
of E in consideration of several loans
extended to them. Rts of F are more akin to
those of a usufructuary who, under A579 may
make on the property useful improvements
but w/ no rt. to be indemnified therefor. He
may remove such improvements if he could
do so w/o damage to the property.

The deteriorations or defects arise fr. the


NATURAL USE of the thing
The repairs are necessary for the
PRESERVATION of the thing
Deteriorations w/c are caused by time or
age (provided for in Art. 573) & the
destruction or consumption of the thing by
use (provided for in Art. 574) do not fall
w/in the concept of ordinary repairs.
Usufructuary is bound to pay only for the
repairs made during the existence of the
usufruct; not those made before he enters
upon the enjoyment of the thing w/c are
shouldered by the owner.

But if the defects are occasioned by the


ordinary use of the thing, the usufructuary
may exempt himself fr. making the repairs
by returning to the owner the fruits
received during the time that the defects
took place.
The expenses for repairs are a charge upon
the enjoyment of the prop; hence, if the
usufructuary keeps the fruit, s/he must
defray those expenses
Art. 593. Extraordinary repairs shall be
at the expense of the owner. The
usufructuary is obliged to notify the owner
when the need for such repairs is urgent.
194

Art. 594. If the owner should make the


extraordinary repairs, he shall have a right to
demand of the usufructuary the legal interest
on the amount expended for the time that
the usufruct lasts.
Should he not make them when they are
indispensable for the preservation of the
thing, the usufructuary may make them; but
he shall have a right to demand of the
owner, at the termination of the usufruct, the
increase in value w/c the immovable may
have acquired by reason of the repairs.

TOLENTINO:
Defect
or
deteriorations
requiring
extraordinary repairs are of two kinds:
Those
caused
by
EXCEPTIONAL
CIRCUMSTANCES, whether or not they are
necessary for the preservation of the
thing
Those caused by the NATURAL USE of the
thing, but are not necessary for its
preservation.
GENERAL
RULE:
The
expenses
for
extraordinary repairs are borne by the owner
Reason for the rule: The law does not
impose such repairs as an obli of the owner.
The usufructuary is not bound to make such
repairs if the owner chooses not to make
them.
If the need for repairs is urgent (those that
are required for preservation), the law
requires the usufructuary to give notice
thereof to the owner
If the owner does not make the extraordinary
repairs w/c are necessary for preservation,
the usufructuary may make them & he shall
be entitled to indemnity.
Also, the usufructuary is entitled to recover fr.
the owner the increase in the value w/c the
tenement acquired by reason of such works.
Art. 595. The owner may construct any
works & make any improvements of w/c the
immovable in usufruct is susceptible, or make
new plantings thereon if it be rural, provided
that such acts do not cause a diminution in
the value of the usufruct or prejudice the
right of the usufructuary.

TOLENTINO:
Any advantage or increase in the use of
enjoyment of the thing due to the
improvements or plantings introduced
by the owner will inure to the benefit of
the usufructuary.
But the usufructuary is not bound to pay
interest on the investment of the
owner, bec. the improvements have
been made voluntarily by the latter.
Art. 596. The payment of annual
charges & taxes & of those considered as a
lien on the fruits, shall be at the expense of
the usufructuary for all the time that the
usufruct lasts.

TOLENTINO:
Annual charges & taxes are considered by
Manresa as always chargeable against
the usufructuary bec. they are
considered by the law as imposed upon
the fruits.
The more logical view, however, seems to
be that of Sanchez Roman, who
believes that such annual charges &
taxes are to be paid by the
usufructuary only when they can be
considered as a lien on the fruits.
The annual charges & taxes for w/c the
usufructuary is liable cannot include
those levied upon the tenement itself,
but only those levied upon the persons
in possession or enjoyment thereof.
Art. 597. The taxes w/c, during the
usufruct, may be imposed directly on the
capital, shall be at the expense of the
owner.
If the latter has paid them, the
usufructuary shall pay him the proper
interest on the sums w/c may have been
paid in the character, &, if the said sums
have been advanced by the usufructuary,
he shall recover the amount thereof at the
termination of the usufruct.
Art. 579. The usufructuary may make
on the property held in usufruct such useful
improvements or expenses for mere
pleasure as he may deem proper, provided
he does not alter its form or substance; but
he shall have no right to be indemnified
therefor. He may, however, remove such
improvements, should it be possible to do
so w/o damage to the property.

195

TOLENTINO:
Whenever the usufructuary can remove the
improvements w/o injury to the prop. in
usufruct, he has a right to do so, & the
owner cannot prevent him fr. doing so
even upon payment of their value.
But
the
owner
cannot
compel
the
usufructuary
to
remove
the
improvements if he does not wish to
exercise it.
In the exercise of the right granted by this
article, the usufructuary may demolish or
destroy the improvement, such as a
building, provided he leaves the land as it
was before the construction of such
improvement.
The right of the usufructuary to remove
improvements can be enforced only
against the owner, but not against a
purchaser in GF to whom a clean title has
been issued.
Art. 580. The usufructuary may set off the
improvements he may have made on the
property against any damage to the same.

TOLENTINO:
This article refers to compensation of values,
& not of rights & obligations. It is
necessary that the improvements should
have increased the value of the prop. &
that the damages are imputable to the
usufructuary.
The increase in value & the amount of
damages are set off against each other; if
the damages exceed the increase in
value, the difference should be paid by
the usufructuary as indemnity.
B.

LEASE

Art. 1678. If the lessee makes, in good


faith, useful improvements w/c are suitable to
the use for w/c the lease is intended, w/o
altering the form or substance of the property
leased, the lessor upon the termination of the
lease shall pay the lessee one-half of the
value of the improvements at that time.
Should the lessor refuse to reimburse said
amount, the lessee may remove the
improvements, even though the principal
thing may suffer damage thereby. He shall
not, however, cause any more impairment
upon the property leased than is necessary.
With regard to ornamental expenses, the
lessee shall not be entitled to any

reimbursement, but he may remove the


ornamental objects, provided no damage is
caused to the principal thing, & the lessor
does not choose to retain them by paying
their value at the time the lease is
extinguished.

PARAS:
( 4A, i have no Baviera nor Tolentino notes
so Im putting in Peters favorite
commentator instead)
The first paragraph of the article is
intended to prevent the unjust
enrichment of the lessor. The lessor is
bound to pay only 1/2 of the value of
the improvements at the end of the
lease bec. the lessee has already
enjoyed the same.
Good Faith as used in Art. 1678 is NOT
the GF defined in the law of possession.
It refers to a case where the lessee
introduces
improvements
not
calculated to harm or destroy the
property leased.
Rule if the lessor refuses to reimburse: If
the lessee demands for reimbursement
for half the value & the lessor refuses,
the
lessee
CANNOT
insist
on
reimbursement.
BUT the lessee may remove the
improvements even if the leased
premises may suffer some damage.
C.

COMMODATUM

Art. 1941. The bailee is obliged to pay


for the ordinary expenses for the use &
preservation of the thing loaned.

TOLENTINO: Reason for the law: bec. of


the gratuitous use of the property
Art. 1949.The bailor shall refund the
extraordinary expenses during the contract
for the preservation of the thing loaned,
provided the bailee brings the same to the
knowledge of the bailor before incurring
them, except when they are so urgent that
the reply to the notification cannot be
awaited w/o danger.
If the extraordinary expenses arise on
the occasion of the actual use of the thing
by the bailee, even though he acted w/o
fault, they shall be borne equally by both
196

the bailor & the bailee, unless there is a


stipulation to the contrary.
D.

MORTGAGE

GARDNER VS. COURT OF APPEALS


FACTS: Gardner obtained petty cash
advances & a variety of consumer goods fr.
the de Castro spouses worth P7,000. In
consideration of said loans, G executed a
Deed of Sale w/ Rt. of Repurchase in favor
of the spouses, wherein he was given 10
years to pay P7,000 as repurchase price. G
borrowed some more until the total loan
amounted to P10,436.75.. When G tendered
this amount, the spouses refused to accept it
on the ground that the sum is grossly
inadequate
to
compensate
for
the
improvements introduced by them on the
land. G then cons