San Beda College of Law

Persons and Family Relations

Note: Date of effectivity of Municipal
Ordinances is NOT covered by this rule but by
the Local Government Code. (Taada vs.
Tuvera, supra).

Exceptions: (PAVE)
1. The law makes the act valid but punishes
the violator (ex. Marriage solemnized by a
person without legal authority)
2. The law itself authorizes its validity (ex.
Lotto, sweepstakes)
3. The law makes the act only voidable (ex.
Voidable contracts where consent is
vitiated)
4. The law declares the nullity of an act but
recognizes its effects as legally existing
(ex. Child born before annulment of
marriage is considered legitimate)

IGNORANCE OF THE LAW EXCUSES

NO ONE (Art. 3)
Conclusive Presumption every person is
presumed to know the law even if they have
no actual knowledge of the law.
Applies only to mandatory and prohibitory
laws.
Does not apply to foreign laws because
there is no judicial notice of such foreign
laws; it must be proved like any other
matter of fact (Ching Huat vs. Co Heong L1211, January 30, 1947).

WAIVER OF RIGHTS (Art. 6)

General Rule: Rights can be waived.
Requisites for a valid waiver: (CUECF)
1. Full capacity to make the waiver.
2. Waiver must be unequivocal
3. Right must exist at the time of the waiver
4. It must not be contrary to law, public
policy, morals or good customs or
prejudicial to a third person with a right
recognized by law.
5. When formalities are required, the same
must be complied with.

Note: Mistakes in the application or

interpretation of difficult or doubtful provisions
of law may be the basis of good faith and has
been given the same effect as a mistake of
fact, which may excuse one from the legal
consequences of his conduct (Art. 526, 2155,
NCC).
NON RETROACTIVITY OF LAWS
(Art. 4)

Exceptions: (CPEN)
1. Waiver is contrary to law, public order,
public policy, morals or good customs;
2. If the waiver is prejudicial to a third party
with a right recognized by law.
3. Alleged rights which really do not yet exist,
as in the case of future inheritance
4. If the right is a natural right, such as right
to be supported.

General Rule: No retroactive effect.

Exceptions: (P2UT NICE)
1. Tax laws when expressly declared or is
clearly the legislative intent (Cebu Portland
Cement vs. Coll. G.R. No. 18649,
February 27, 1965)
2. Interpretative statutes
3. Procedural or Remedial
4. Curative or Remedial statutes
5. Emergency laws
6. Laws creating new rights (Bona vs.
Briones G.R. No. L-10806, July 6, 1918;
Bustamante et al. vs. Cayas, G.R. Nos. L8562-8563, December 17, 1955)
7. Unless the law otherwise provides
8. Penal laws favorable to the accused.

JUDICIAL DECISIONS FORM PART OF THE

LEGAL SYSTEM or DOCTRINE OF STARE
DECISIS (Art. 8)
DOCTRINE OF STARE DECISIS enjoins
adherence to judicial precedents and is based
on the principle that once a question of law
has been examined and decided, it should be
deemed settled and closed to further
argument.

Exceptions to the Exception: (EI)

1. Ex Post Facto Laws
2. Laws that impair obligation of contracts
(Asiatic Petroleum vs. Llanes, G.R. No. L25386, October 20, 1926)

Judicial decisions, although in themselves not

laws, assume the same authority as the
statute itself (People vs. Licera G.R. No. L39990, July 2, 1975).
No publication required, binding on parties
after the lapse of appeal period, and will
bind all future cases with identical facts,
until reversed by SC.

ACTS CONTRARY TO LAW (Art. 5)

General Rule: Acts contrary to mandatory or
prohibitory laws are VOID.

San Beda College of Law

2010 Centralized Bar Operations
Policy if the Last Day is a Sunday or a
Legal Holiday:
1. If the act to be performed within the period
is prescribed or allowed (1) by the Rules of
Court, (2) by an order of the court, or (3)
by any other applicable statute, the last
day will automatically be considered the
next working day.
2. If the act to be performed within the period
arises from a contractual relationship, the
act will become due despite the fact that
the last day falls on a Sunday or Holiday.

They are part of the law as of the date of the

enactment of said law because the Supreme
Courts interpretation merely establishes the
contemporaneous legislative intent that the
construed law purports to carry into effect
(People v. Licera G.R. No. L-39990, July 2,
1975).
HOWEVER, when a doctrine is overruled and
a different view is adopted, the new doctrine
should be applied prospectively and should
not prejudice parties who relied on the old
doctrine (People v. Jabinal G.R. No. L-30061,
February 27, 1974).

Applicable Laws
1. Penal Laws and laws of public security
(Article 14)
Territoriality rule governs regardless of the
nationality but subject to principles of
international law and to treaty stipulations.
2. Laws relating to family rights and
duties, or to status, condition and legal
capacity of persons.
Nationality rule applies regardless of their
place of residence.

CUSTOMS
(Arts. 11 and12)
Rules of conduct formed by repetition of acts
uniformly observed as a social rule. They are
legally binding and obligatory.
General Rule: Customs must be proved as a
fact according to the rules of evidence.

Exception: Divorce validly obtained

abroad by alien spouse capacitating him
or her to remarry, the Filipino spouse shall
have capacity to remarry under Philippine
law. (Article 26 (2) Family Code)

Exception: A court may take judicial notice of

a custom if there is already a decision
rendered by the same court recognizing the
custom.
Requisites to Make a Custom an Obligatory
Rule: (P2TO)
1. Plurality or repetition of acts;
2. Practiced by the great mass of the social
group;
3. Continued practice for a long period of
time;
4. The community accepts it as a proper way
of acting, such that it is considered as
obligatory upon all.

3. Laws on property (real and personal)

Lex Rei SItae: The law of the country
where the property is situated shall govern
property transactions. (Article 16 (1))

RULE ON PERIODS
(Art. 13)

4. Laws on forms and solemnities

Lex Loci Celebrationis: Forms and
solemnities of contracts, wills, and other
public instruments (extrinsic validity) shall
be governed by the laws of the country in
which they are executed. (Article 17)

1.
2.
3.
4.
5.
6.

Years - 365 days, unless year is identified

Months - 30 days, unless month identified
Days 24 hours
Nights-sunset to sunrise
Calendar week Sunday to Saturday
Week Count 7 days as indicated, not
necessarily Sunday to Saturday

To count the period, first day is excluded,

last day is included.

Exception: Order and amount

successional rights, intrinsic validity
testamentary provisions, and capacity
succeed governed by the national law
decedent. (Article 16 (2))

of
of
to
of

Exceptions:
a. Marriage
between
Filipinos
solemnized abroad shall be void
though valid abroad when void under
Philippine laws. (Article 26(1) FC)
b. Intrinsic Validity of Contracts: Validity
is determined by the following rules:
i. The law stipulated by the parties
shall be applied;

Exception: Rule does NOT apply to

computation of age; each year is counted
based on birth anniversary.

San Beda College of Law

Persons and Family Relations
ii.

iii.

iv.

Lex
Nationalii
Art. 15, CC
Citizenship
is the basis
for
determining
the
personal
law
applicable
Covers
family rights
and duties,
status,
condition
and
legal
capacity of
persons.
Exception:
Art. 26, par.
2 of Family
Code

In default thereof, and the parties

are of the same nationality, their
national law shall be applied;
If the parties are not of the same
nationalities, the law of the place
of the perfection of the obligation
shall govern its fulfillment;
If the above places are not
specified and they cannot be
deduced from the nature and
circumstances of the obligation,
then the law of the passive subject
shall apply.
Lex Rei Sitae
Art. 16, CC
Law of the
place
where
the property is
situated is the
basis
for
determining
law applicable
Covers
real
personal
property

both
and

Exceptions:
(CIAO)
Capacity to
succeed
Intrinsic
validity of the
will
Amount
of
successional
rights
Order
of
succession

Transmission Theory: If the foreign law

refers it to a third country, the said
countrys law shall govern.
6. Doctrine of Processual Presumption
The foreign law, whenever applicable,
should be proved by the proponent
thereof; otherwise, such law shall be
presumed to be exactly the same as the
law of the forum.
Rule on Prohibitive Laws
General Rule: Prohibitive laws concerning
persons, their acts or property, and laws which
have for their object public order, public policy
or good customs are NOT rendered ineffective
by laws, or judgments promulgated or by
determinations or conventions agreed upon in
foreign country. (Art. 17(3))

Lex Loci
Celebrationis
Art. 17, CC
Law of the place
where the contract
was executed is
the
basis
for
determining
law
applicable

Exception: Art. 26, par. 2 Family Code (ex.

Divorce Law)
HUMAN RELATIONS

Covers only the

forms
and
solemnities
(extrinsic validity)

ABUSE OF RIGHT (Art. 19)

Elements: (LEP)
1. Existence of a legal right or duty;
2. Which is exercised in bad faith;
3. For the sole intent of prejudicing or injuring
another.

Exceptions:
1. Art. 26, par. 1 of
Family Code
2. Intrinsic validity
of contracts

Doctine of Violenti Non Fit Injuria (to which

a person assents is not esteemed in law as
injury) refers to self-inflicted injuries or to the
consent to injury which precludes the recovery
of damages by one who has knowingly and
voluntarily exposed himself to danger, even if
he is not negligent in doing so (Nikko Hotel
Manila Garden, et all vs. Roberto Reyes
(Amay Bisaya) G.R. No. 154259, Feb. 28,
2005).

Rules on Personal Law: Domiciliary Rule

and Nationality Rule Distinguished
Domiciliary Rule

Nationality Rule

Damnum Absque Injuria (damage without

injury) A person who exercises his legal right
does no injury. HOWEVER, it cannot be said
that a person exercises a right when he
unnecessarily prejudices another or offends
morals or good customs.
When damages result from a persons
exercise of rights, it is damnum absque
injuria
(ABS-CBN
v.
Republic
Broadcasting Corp. G.R. No. 128690,
January 21, 1999).

Basis for determining Basis for determining

personal law of an personal law is his
individual
is
his CITIZENSHIP
DOMICILE

5. Renvoi Doctrine: Occurs when a citizen

of another country dies as a domiciliary of
another country. Where the conflict rules
of the forum refer to a foreign law, and the
latter refers it back to the internal law, the
law of the forum shall apply.

San Beda College of Law

2010 Centralized Bar Operations
4. He has no other action based on contract,
quasicontract, crime or quasidelict.

ACTS CONTRARY TO LAW (Art. 20)

Every person who is criminally liable shall also
be civilly liable, whether the act is intentional
or unintentional.

Note: For a more comprehensive discussion

of Articles 19-35, please see discussion
thereof under Torts.

ACTS CONTRA BONUS MORES

(Art. 21)

PREJUDICIAL QUESTION
(Art. 36)

Elements: (L-C-I)
1. There is a legal act;
2. But which is contrary to morals, good
customs, public order or public policy; and,
3. It is done with intent to injure.

General Rule: If both criminal and civil cases

are filed in court, the criminal case takes
precedence.
Exceptions:
1. In case of prejudicial questions, the
criminal case is suspended because the
issues in the civil case are determinative
of the outcome of the criminal case.
A prejudicial question is that which
arises in a case, the resolution of
which is a logical antecedent of the
issue involved therein, and the
cognizance of which pertains to
another tribunal (Yap v. Paras, G.R.
No. 101236, January 30, 1992).

Articles 19, 20 and 21 are related to one

another and under these articles, an act which
causes injury to another may be made the
basis for an award of damages (Albenson
Enterprises Corp. v. CA, G.R. No. 88694,
January 11, 1993).
Articles 19 and 21 refer to INTENTIONAL acts
while Article 20 pertains either to WILLFUL or
NEGLIGENT acts, which must be contrary to
law. (Ibid.)

Requisites: (Section 7, Rule 111, Rules of

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

PRINCIPLE OF UNJUST ENRICHMENT

(Art. 22)
Accion In Rem Verso action for recovery of
what has been paid without just cause.
Application:
1. When someone acquires or comes into
possession of something, which means
delivery or acquisition of things; AND
2. Acquisition is undue and at the expense of
another, which means without just or legal
ground.

2. Independent civil action granted by law

(CD-QR)
a. Breach of constitutional and other
rights (Art. 32)
b. Defamation, fraud, physical injuries
(Art. 33)
c. Refusal or failure of city or municipal
police to give protection (Art. 34)
d. Quasi-delict
or
culpa-aquiliana
(Art.2177)

Accion in Rem Verso and Solutio Indebiti

Accion In Rem Verso
It is not necessary that
the payment be made by
mistake, payment could
have
been
made
knowingly and voluntarily
but nevertheless, there
would be recovery of
what has been paid

Solutio Indebiti
(Art. 2154)
Payment was made by
mistake is an essential
element to maintain the
action for recovery.

Note: The Civil Code has SUPPLETORY

application in matters governed by special
laws.

Requisites: (JELA)
1. Defendant has been enriched;
2. Enrichment is without just or legal ground;
3. Plaintiff has suffered a loss; and

San Beda College of Law

Persons and Family Relations

CIVIL PERSONALITY

NATURAL PERSONS
Beginning of Personality
General Rule: Birth determines personality
(actual personality) (Art. 40).

Aptitude of being the subject, active or

passive, of rights and obligations.
Juridical Capacity and Capacity to Act
Juridical Capacity
Fitness to be the
subject of legal relations
(Art. 37)
Passive
Inherent
Lost only through death
Can
exist
without
capacity to act
Cannot be limited or
restricted

Exception: The law considers the conceived

child as born for all purposes favorable to it if
born alive. Therefore, the child has a
presumed personality, which has two
characteristics:
1. Limited; and
2. Provisional/conditional (Quimiguing vs.
Icao, G.R. No. L-26795, July 31, 1970)

Capacity To Act
Power to do act with
legal effects (Art. 37)
Active
Merely acquired
Lost through death and
other causes
Cannot exist without
juridical capacity
Can
be
restricted,
modified or limited

Note: The concept of provisional

personality CANNOT be invoked to obtain
damages for and in behalf of an aborted
child (Geluz vs. CA, G.R. No. L-16439,
July 20, 1961).

Theories on Capacity to Act

Theory of General
Capacities
Applies
to
natural
persons
One has the ability to do
all things with legal
effects except only in
those
specific
circumstances
where
the capacity to act is
restrained

Theory of Special
Capacities
Applies
to
juridical
persons
This limits the power of
juridical persons only to
those that are expressly
conferred upon them or
those which can be
implied therefrom or
incidental thereto

When is a Child Considered Born:

General Rule: For civil purposes, the fetus is
considered born if it is alive at the time it is
completely delivered from the mothers womb.
Exception: If the fetus had an intrauterine life
of less than 7 months, it is NOT deemed born
if it dies within 24 hours after its complete
delivery from the maternal womb (Article 41).

Restrictions on Capacity to Act do not exempt

the incapacitated person from certain
obligations as when the latter arise from his
acts or from property relations such as
easements (Art. 38): (MID-PC)
1. Minority
2. Insanity or imbecility
3. State of being deaf mute
4. Prodigality
5. Civil interdiction

Presumption of Survivorship:
In case of doubt as to which of two or more
persons called to succeed each other died
first:
1. Whoever alleges the death of one prior to
the other, shall prove the same
2. In the absence of proof, the presumption is
that the parties died at the same time and
there shall be no transmission of rights
from one another (Art. 43)

Modifications/ Limitations on Capacity to

Act (Art. 39): (FI3T P2A3D)
1. Family Relations;
2. Insanity;
3. Imbecility;
4. Insolvency;
5. Trusteeship;
6. Penalty;
7. Prodigality;
8. Age;
9. Alienage;
10. Absence; and
11. State of being deaf-mute.

Note: Art. 43 apply when the parties are called

to succeed each other or are heirs to one
another. But if the parties are not called to
succeed each other, Rule 131, Sec. 3 (jj) of
the Rules of Court applies. Both are to be
applied only in the absence of facts.
The legitimacy or illegitimacy of a child
attaches upon his/ her conception (Continental
Steel Manufacturing Corp. v. Hon. Accredited
Voluntary Arbitrator, et al., G.R. No. 182836,
October 13, 2009).

Note: The consequences of the restrictions

and modifications in a persons capacity to act
are provided by the Civil Code, other codes,
special laws, and the Rules of Court.

San Beda College of Law

2010 Centralized Bar Operations

JURIDICAL PERSONS

MARRIAGE

The following are juridical persons:

1. State and its political subdivisions
2. Corporations, institutions and entities for
public purpose or interest
3. Corporations,
partnership
and
associations for private interest or purpose
to which the law grants a juridical
personality, separate and distinct from that
of each shareholder, partner or member
(Art. 44)

A special contract of permanent union

between a man and a woman entered into in
accordance with law for the establishment of
conjugal and family life. It is the foundation of
the family and an inviolable social institution
whose nature, consequences and incidents
are governed by law and not subject to
stipulation (Art. 1).
Although
a
marriage
contract
is
considered a primary evidence of
marriage, its absence is not always proof
that no marriage took place. Testimony of
one of the parties to the marriage,
witnesses or solemnizing officer is
admissible to prove the fact of marriage.
(Balogbog v. CA, G.R. No. 83598, March
7, 1997).
Once the presumption of marriage arises,
other evidence may be presented in
support thereof. The evidence need not
necessarily or directly establish the
marriage but must at least be enough to
strengthen the presumption of marriage.
Every intendment of law leans toward
legitimizing marriage (Delgado vda de De
la Rosa v. Heirs of Marciana vda de
Damian, GR No 155733, January 27,
2006)

Creation:
1. For (1) and (2), by the laws creating or
recognizing
them;
government
corporations are created by their special
charters passed by the legislature
2. Private corporations are governed by BP
68; and
3. Partnerships and associations for private
interest or purpose are governed by the
provisions of this Code concerning
partnerships.
Note: The estate of a deceased should be
considered an artificial or juridical person for
the purposes of the settlement and distribution
of his estate which include the exercise during
the judicial administration thereof of his rights
and the fulfillment of obligations which
survived after his death (Limjoco vs. Intestate
Estate of Pedro Fragrante, No. L770 April 27,
1948).

Marriage
and
Distinguished

Ordinary

Marriage
Special contract
Social institution
Governed by law on
marriage
Not
subject
to
stipulations except in
property relations

Cessation of Civil Personality

1. If natural persons: by death (Art. 42)
The effect of death upon the rights
and obligations of the deceased is
determined by law, contract, and by
will because some rights and
obligations survive the death of a
person
2. If juridical persons: by termination of
existence
Dissolution of private corporations is
governed by Title IV of the
Corporation Code
Dissolution of corporations for public
interest or purposes is governed by
the provisions of their respective
charters and in its absence by the
Corporation Code

Legal
capacity
required

FAMILY CODE
The Family Code of the Philippines took effect
on August 3, 1988.

is

Contract

Ordinary Contract
Merely a contract
Merely a contract
Governed by law on
contracts
Generally subject
stipulations

to

Minors may contract

thru their parents or
guardians or in some
cases by themselves

Contracting
parties
must only be two
persons one is a
female and the other is
a male

Two or more parties

regardless of gender

Permanent Union

Parties can fix a period

for its efficacy to be
ineffective after a few
years

Breach of obligations of
husband and wife does
not give rise to an
action for damages.
The law provides penal
and civil sanctions such
as
prosecution
for

Breach
of
ordinary
contracts gives rise to
an action for damages

San Beda College of Law

Persons and Family Relations
3. Marriage ceremony where the contracting
parties appear before the solemnizing
officer, with their personal declaration that
they take each other as husband and wife
in the presence of not less than two
witnesses of legal age (Art. 3)

adultery
or
concubinage
and
proceedings for legal
separation.
Can be dissolved only
by death or annulment,
not
by
mutual
agreement

Can be dissolved by
mutual agreement and
by other legal causes

Effects of: (Art. 4)

1. ABSENCE of essential or formal
requisites: The marriage is VOID AB
INITIO (ex: expired marriage license,
marriage by way of jest)

Breach of Promise to Marry

General Rule: It is not by itself an actionable
wrong (Hermosisima vs. CA L-14628,
September 30, 1960). One cannot seek
specific performance to compel marriage.

Exception: Marriage is valid where either

or both parties believed in good faith that
the solemnizing officer had legal authority
to do so when he had none at the time of
the solemnization of the marriage (Art.
35(2))

Exceptions: To be actionable, there must be

another act independent of the breach of
promise to marry which gives rise to liability as
where there was financial damage, social
humiliation, and moral seduction.

2. DEFECT in any of the essential requisites:

The marriage is VOIDABLE (ex: consent
obtained through force and intimidation)

1. Mere breach of promise to marry is not an

actionable wrong; but to formally set a
wedding and go through all the
preparations and publicity, only to walk out
of it when the matrimony is about to be
solemnized, is quite different. This is
palpably and unjustifiably contrary to good
customs for which defendant must be held
answerable in damages pursuant to Art.
21 NCC. (Wassmer vs. Velez, No. L20089, December 26, 1964)

3. IRREGULARITY in any of the formal

requisites: Does NOT affect the validity of
the marriage BUT will hold the party
responsible for such irregularity civilly,
criminally and administratively liable
Exception: Marriage is VOIDABLE where
contracting party 18 years old or over but
below 21 without the consent of the
parents

2. Where a mans promise to marry was the

proximate cause of giving herself unto him
in sexual congress and there is proof he
had no intention of marrying her, the
promise being a deceptive device,
damages may be awarded pursuant to Art.
21 NCC because of the fraud and deceit
behind it and the willful injury to her honor
and reputation (Baksh vs. CA, G.R. No.
97336, February 19, 1993).

Authority of Solemnizing Officer

It is not the presence/absence of the
solemnizing officer which constitutes the
formal requirement but the absence/presence
of the authority of such solemnizing officer at
the time of the solemnization of the marriage.
General Rule: The Solemnizing officer is not
duty bound to investigate whether the
marriage license was regularly issued.
Must only determine if it was issued by a
competent official
If so, it may be presumed that the said
official fulfilled the duty to ascertain
whether the contracting parties fulfilled the
requirements of law (People vs. Janssen)

Essential Requisites of Marriage: (LC)

1. Legal capacity of the contracting parties,
who must be a male and a female
a. Eighteen years old or above
b. Not under any impediment mentioned
in Arts. 37 and 38 (Art. 5)
2. Consent freely given in the presence of a
solemnizing officer (Art. 2)
No particular form required
Capable of intelligently understanding
the nature and consequences of the
act

Exception: In cases of marriage in articulo

mortis, in remote places, and between a man
and a woman living together as husband and
wife for at least 5 years without legal
impediment to marry each other
Solemnizing officer must take steps to
ascertain the ages, relationship, and

Formal Requisites of Marriage: (ALM)

1. Authority of the solemnizing officer
2. Valid Marriage License

San Beda College of Law

2010 Centralized Bar Operations
qualifications of contracting parties (Art.
29)

Valid Marriage License

The license is valid in any part of the
Philippines for 120 days from date of issue,
which is the date when the local civil registrar
signed the license.
Automatically canceled at the expiration of
the period if contracting parties have not
made use of it (Art. 20)
The requirement that the parties or one of
them must reside in the place of the
issuance of the license is a mere formal
requirement. If there is no compliance with
the same, the defect is a mere infirmity
that does not affect the validity of the
marriage (Ty vs. Court of Appeals, 2003).
When either or both parties are foreign
citizens, they must first submit a
CERTIFICATE OF LEGAL CAPACITY TO
MARRY
issued
by
their
diplomatic/consular
officials
before
marriage license can be obtained (Art. 21)

Persons
Authorized
to
Solemnize
Marriages (Art. 7): PMJCCC
1. Priest, rabbi, imam or ministers of any
church or religious sect
a. duly authorized by his church or
religious sect
b. registered with the Office of the Civil
Registrar General
c. acting within the limits of the written
authority granted
d. at least one of the parties belongs to
the solemnizing officers church or
religious sect
2. Municipal and city mayors (Local
Government Code, January 1, 1992)
The term Mayor includes a ViceMayor who is the Acting Mayor or
who is merely acting as a Mayor
(People
vs.
Bustamante,
citing
Laxamana vs. Baltazar)
3. Incumbent members of the judiciary within
the courts jurisdiction
4. Ship captains or air plane chiefs (Art. 31)
Only in cases of marriages in articulo
mortis between passengers or crew
members
During the voyage, while plane is in
flight or ship is at sea and during
stopovers at ports of call
Assistant pilot has no authority to
solemnize a marriage even if airplane
chief dies during the trip
5. Commanders of military unit, in the
absence of chaplain (Art. 32)
Must be a commissioned officer rank
should start from second lieutenant,
ensign
and
above
(Webster
Dictionary, 1991 edition)
Only in cases of marriage in articulo
mortis between members of the armed
forces or civilians within the zone of
military operation
6. Consul generals, consuls or viceconsuls
of the Republic of the Philippines abroad
(Art. 10)
Only in cases of marriage between
Filipino citizens abroad
The marriage ceremony is in
accordance with the laws of the
Philippines (Art. 17, NCC)
Also performs the duties of the local
civil registrar
Consuls on home assignment in the
Philippines cannot solemnize marriage

Exception: Marriage of both foreign citizens

will be solemnized by their countrys consulgeneral assigned in the Philippines, if their
countrys law allows the same
Stateless
persons/refugees
from
other
countries shall submit an affidavit stating
circumstances to show capacity to contract
marriage before a marriage license can be
obtained (Art. 21)
Marriages
Exempt
from
License
Requirement (MOLAR) (Art.27)
1. Among Muslims or members of ethnic
cultural communities solemnized in
accordance with their customs, rites and
practices (Art. 33)
2. Solemnized outside the Phil. where no
marriage license is required by the country
where they were solemnized
3. Of a man and a woman who have lived
together as husband and wife for at least 5
years and without legal impediment to
marry each other (Art. 34)
Requisites:
a.
The man and woman
must have been living together as
husband and wife for at least five years
before the marriage;
b.
The parties must have
no legal impediment to marry each other;
c.
The fact of absence of
legal impediment between the parties
must be present at the time of marriage;
d.
The
parties
must
execute an affidavit stating that they have
lived together for at least five years (and

San Beda College of Law

Persons and Family Relations
are without legal impediment to marry
each other); and
e.
The
solemnizing
officer must execute a sworn statement
that he had ascertained the qualifications
of the parties and that he had found no
legal impediment to their marriage
(Manzano v. Sanchez G.R. No. MTJ00
1329, March 08, 2001)

2. Church, chapel or temple

3. Office of consulgeneral, consul or vice
consul
Exceptions:
1. Marriage in articulo mortis;
2. Marriage in remote places;
3. Marriage at a house or place designated
by the parties in a sworn statement to that
effect, with the written request of both
parties to the solemnizing officer

The 5year period should be

computed on the basis of cohabitation
as husband and wife where the only
missing factor is the marriage contract
to validate the union (ex: if both
cohabited at the age of 17, counting
starts when parties reach 18 years)

Note: This provision is only directory and the

requirement that the marriage be solemnized
in a particular or a public place is not an
essential requisite.
FOREIGN MARRIAGE

This 5year period should be the

years immediately before the day of
the marriage and it should be a period
of cohabitation characterized by
EXCLUSIVITY meaning no legal
impediment was present at any time
within the 5 years and CONTINUITY
that is unbroken (Republic v. Dayot,
G.R. No. 175581,March 8, 2008)

Validity of Marriage
General Rule: Where one or both parties to
the marriage are citizens of the Philippines,
the foreign marriage is valid in this country if
solemnized in accordance with the laws of the
country of celebration. (Art. 26)
In case a Filipino contracts a foreign
marriage which is null and void in the
place where it was solemnized, the same
shall also be null and void in the
Philippines even if such was valid if
celebrated under Philippine laws
If both are foreigners, lex loci celebrationis
applies

4. In articulo mortis
Remains valid even if ailing party
subsequently survives (Art. 27)
5. In remote places
Residence of either party is so located
that
there
is
no
means
of
transportation to enable them to
personally appear before the local civil
registrar (Art. 28)

Exceptions: Foreign marriages shall not be

recognized in the Philippines if: (B2MA-PIP)
1. Contracted by a national who is below 18
years of age (Art. 35(1))
2. Bigamous or polygamous except as
provided in Art. 41, FC (Art. 35(4))
3. Contracted through mistake of one party
as to the identity of the other (Art. 35(5))
4. Contracted following the annulment or
declaration of nullity of a previous
marriage but before partition (Art.35(6))
5. Void due to psychological incapacity (Art.
36)
6. Incestuous (Art.37)
7. Void for reasons of public policy (Art. 38)

Marriage Ceremony
There is no particular form prescribed by the
Family Code.
The absence of two witnesses of legal age is
merely an irregularity but the party responsible
for the irregularity shall be civilly, criminally,
and administratively liable.
Marriages by proxy
1. If it was solemnized in the Philippines, the
marriage is VOID because physical
appearance is required under Art. 6.
2. If performed abroad, whether between
Filipinos or foreigners or mixed, the
controlling article is Art. 26 of the Family
Code.

Divorce
General rule: No divorce is allowed in the
Philippines
Exceptions:
1. Between 2 aliens if valid in their national
laws even if marriage was celebrated in
the Philippines

Authorized Venues of Marriage (Art. 8)

General Rule: Must be solemnized publicly,
and not elsewhere, in the:
1. Chambers of the judge or in open court

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2. Between a Filipino and an Alien if (a)
there is a valid marriage celebrated
between a Filipino citizen and a foreigner;
and (b) a valid divorce according to the
national law of the foreigner is obtained
abroad by the alien spouse capacitating
him or her to remarry. Art. 26(2))
The Filipino spouse should likewise be
allowed to remarry as if he or she
was a foreigner at the time of the
solemnization of the marriage. To rule
otherwise would sanction absurdity
and injustice
Party pleading it must prove divorce
as a fact and demonstrate its
conformity to the foreign law allowing
it, which must be proved as courts
cannot take judicial notice of foreign
laws. If a valid divorce decree has
been obtained abroad, there is no
more need to file an action to nullify
the marriage. The plaintiff has no
more personality to sue since the
marriage bond has already been
severed (Felicitas Amor-Catalan vs.
CA, G.R. No. 167109, February 6,
2007).
Article 26 (2) applies where parties
were Filipino citizens at the time of
celebration of the marriage, but later
on, one of them becomes naturalized
as a foreign citizen and obtains a
divorce decree because the reckoning
point is their citizenship at the time a
valid divorce is obtained abroad by the
alien spouse capacitating the latter to
remarry. (Rep. vs. Cipriano Obrecido
III, G.R. No. 154380, Oct. 5, 2005)
In Edgar San Luis v. Felicidad
Sagalongos (G.R. No. 134029,
February 6, 2007), whether a Filipino
who had been divorced by his alien
spouse abroad may validly remarry in
the Philippines considering that the
marriage was solemnized before the
Family Code, it was held that it need
not retroactively apply the provisions
of the Family Code, particularly Article
26, par. (2), considering that there is
sufficient jurisprudential basis allowing
the retroactivity of the Family Code.
There must be a showing that the
divorce decree gave the foreigner
spouse legal capacity to remarry
because
in
some
jurisdictions,
remarriage may be limited or
prohibited (Bayot vs. Bayot, G.R. No.
155635 & 163979, November 7,
2008).

VOID MARRIAGES (Art. 35)

Due to absence of any of the essential
requisites: (BBLAPIS)
1. Contracted by any party below 18 years of
age even with parental consent;
2. Solemnized by any person NOT LEGALLY
authorized to perform marriages UNLESS
one or both of the parties believed in good
faith that the solemnizing officer had the
legal authority to do so;
3. Solemnized WITHOUT a license except
as otherwise provided;
4. Bigamous or polygamous marriages
except Art 41;
5. Marriages contracted through mistake of
one of the parties as to the physical
identity of the other
6. Subsequent marriages that are void under
Article 53 of the Family Code
7. Contracted by a party who at the time of
the
marriage
was
psychologically
incapacitated.
Note: Enumeration in Art 35 is NOT exclusive.
Psychological Incapacity (Art. 36)
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 and discharged by the
parties to the marriage.
Its meaning is
confined to the most serious cases of
personality disorders clearly demonstrative of
an utter insensitivity or inability to give
meaning and significance to the marriage. This
psychological condition must exist at the time
the marriage is celebrated. (Santos vs. CA,
G.R. No. 112019, January 4, 1995)
Requisites
of
Psychological
Incapacity: (JIG)
1. Gravity must be grave/serious such that
the party would be incapable of carrying
out the ordinary duties required in a
marriage;
2. Juridical Antecedence Must be rooted in
the history of the party antedating the
marriage,
although
the
overt
manifestations may emerge only after the
marriage; and
3. Incurability Must be incurable or, even if
it were otherwise, the cure would be
beyond the means of the party involved.
(Santos vs. CA, G.R. No. 112019, January
4, 1995)
May involve a senseless, protracted and
constant refusal to comply with the essential

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marital obligations by one or both of the
spouses although he, she or they are
physically capable of performing such
obligations (Chi Ming Tsoi v. CA, G.R. No.
119190, Jan. 16, 1997)

3.
4.
5.

A person who is unable to distinguish between

fantasy and reality would be unable to
comprehend the legal nature of the marital
bond much less its psychic meaning and the
obligations attached to the marriage, including
parenting. One unable to adhere to reality
cannot be expected to adhere as well to any
legal or emotional commitments (Antonio v.
Reyes, G.R. No. 155800, March 10, 2006)

6.
7.

8.
While disagreements on money matters
would, no doubt, affect the other aspects
of ones marriage as to make the wedlock
unsatisfactory, this is not a sufficient ground to
declare a marriage null and void. In fact, the
Court takes judicial notice of the fact that
disagreements regarding money matters is a
common, and even normal, occurrence
between husbands and wives. (Tongol vs.
Tongol, G.R. No. 157610, October 19, 2007)

i. Sufficiently proven by experts

ii. Clearly explained in the decision
Incapacity proven to be existing at the time
of the celebration of marriage;
Incapacity must be permanent or
incurable;
Illness is grave enough to bring about
disability to assume essential marital
obligations;
Marital obligations refer to Art. 6871,
220,221 and 225 of the FC;
Interpretations of the National Appellate
Matrimonial Tribunal of the Catholic
Church of the Philippines while not
controlling should be given great respect;
Trial court must order the prosecuting
attorney or fiscal and the Solicitor General
to appear for the state.

Note: The SC held in Te vs. Te (G.R. No.

161793, February 13, 200) as decisive the
psychological evaluation made by the expert
witness and thus ruled that the marriage of the
parties is null and void on the ground of both
parties psychological incapacity. The clinical
psychologist did not personally examine the
respondent, and relied only on the information
provided
by
petitioner.
Further,
the
psychological incapacity was not shown to be
attended by gravity, juridical antecedence, and
incurability, deviating from Republic vs. CA
and Molina (1997) ruling, upon the Courts
reasoning that the impositions of the Molina
case were inappropriate, as cases of
psychological incapacity should be decided
not on the basis of a priori assumptions,
predictions or generalizations but according to
its own facts. Courts should interpret the
provision on a case-to-case basis; guided by
experience, the findings of experts and
researchers in psychological disciplines, and
by decisions of church tribunals. The Molina
doctrine has become a strait-jacket, forcing all
sizes to fit into and be bound by it. The Court
in conveniently applying Molina, has allowed
diagnosed
sociopaths,
schizophrenics,
nymphomaniacs, narcissists and the like, to
continuously debase and pervert the sanctity
of marriage.

Petitioner is not entitled to moral damages

based on declaration of psychological
incapacity because the award of moral
damages should be predicated, not on the
mere act of entering into the marriage, but on
specific evidence that it was done deliberately
and with malice by a party who had known of
his or her disability and yet willfully concealed
the same. (Noel Buenaventura v. CA, et al.,
G.R. No. 127358, March 31, 2005)
Essential Elements: (MAVFFCCI)
1. Mental condition
2. Applies to a person who is maritally
contracted to another
3. Marriage entered into with volition
4. Failure to perform or comply with the
essential obligations in marriage
5. Failure to perform is chronic
6. Cause is psychological in nature
7. Cause
is
serious,
with
juridical
antecedence, and must be incurable
8. Incapacity results in the failure of the
marriage.

The wifes promiscuity and the psychiatrists

report that she was suffering from social
personality disorder exhibited by blatant
display of infidelity, emotional immaturity, and
irresponsibility cannot be equated with
psychological incapacity (Dedel vs. Court of
Appeals, G.R. No. 151867, January 29, 2004).

Jurisprudential
Guidelines
(Molina
Doctrine) (Republic v. Molina G.R. No.
108763, February 13, 1997): (PROBE PIG)
1. Plaintiff has burden of proof;
2. Root cause of the psychological incapacity
must be:
a. Medically or clinically identified
b. Alleged in the complaint:

Similarly, the husbands alleged alcoholism,

drunkenness, his habitual verbal and physical

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2010 Centralized Bar Operations
Marriages (A.M. No. 02- 11- 10 SC, March 15,
2003), provides option to the trial judge to refer
the case to a court- appointed psychologist/
expert for an independent assessment and
evaluation of the psychological state of the
parties, in order to assist the court to arrive at
an intelligent and judicious determination of
the case.

abuse of the wife, failure to support the latter

and her children, and unbearable jealousy, do
not
constitute
psychological
incapacity
(Republic vs. Melgar, G.R. No. 139676,March
31, 2006).
In Marcos v. Marcos (GR. NO. 136490,
October 19, 2000), the SC held that
psychological incapacity may be established
by the totality of the evidence presented. The
facts alleged in the petition and the evidence
presented, considered in totality, should be
sufficient to convince the court of the
psychological incapacity of the party
concerned. (Bernardino S. Zamora vs. CA,
G.R. No. 141917, February 7, 2007)

The complete facts should allege the

physical manifestations, if any, as are
indicative of psychological incapacity at
the time of the celebration (Sec. 2(d) A.M.
No. 02-11-10-SC, March 15, 2003)

There is NO REQUIREMENT that the

person
sought
to
be
declared
psychologically incapacitated should be
personally examined by a physician/
psychologist as a condition sine qua non
to arrive at such declaration. It can be
proven by independent means that one is
psychologically incapacitated, There is no
reason why the same should not be
credited. (Republic of the Philippines vs.
Laila Tanyag-San Jose and Manolito San
Jose, G.R. No. 168328, February 28,
2007)

Note: Final judgment denying a petition for

nullity on the ground of psychological
incapacity bars a subsequent petition for
declaration of nullity on the ground of lack of
marriage license. There is res judicata (Mallion
vs. Alcantara, G.R. No. 141528, October 31,
2006).
Incestuous
marriages,
whether
the
relationship is legitimate or illegitimate,
between (Art. 37):
1. Ascendants & Descendants of any degree;
2. Brothers & Sisters whether full or half
blood
Those contrary to public policy contracted
between (Art. 38): (C-KA3PS3)
1. Collateral
blood
relatives
whether
legitimate or illegitimate up to the 4th civil
degree
2. Stepparents & step children
3. Parentsinlaw & childreninlaw
4. The adopting parent & the adopted child
5. The surviving spouse of the adopting
parent & the adopted child
6. The surviving spouse of the adopted child
& the adopter
7. Adopted child & a legitimate child of the
adopter
8. Adopted children of the same adopter
9. Parties where one, with the intention to
marry the other, killed the latters spouse,
or his/her spouse.
There is no need for conviction in a
criminal case of the guilty party. The
fact of killing committed by one of the
parties to the marriage can be proved
in a civil case

Psychological incapacity is not meant to

comprehend all possible cases of psychoses.
The fourth guideline in Molina requires that the
psychological incapacity as understood under
Art. 36 (FC) must be relevant to the
assumption of marriage obligations, not
necessarily to those not related to marriage,
like the exercise of a profession or
employment in a job (Tongol vs. Tongol, G.R.
No. 157610, October 19, 2007).

The following can now marry each other:

(LSG-CA)
1. Brotherinlaw and sisterinlaw;
2. Stepbrother and stepsister;
3. Guardian and ward;
4. Adopted and illegitimate child, parents and
relatives by consanguinity or affinity of the
adopter;
5. Parties who have been convicted of
adultery or concubinage.
6. Collateral relatives by the half blood

The new Rule promulgated by the SC on 4

March 2003 on Annulment and Declaration of
Nullity of Marriage dispensed with the
certification from the Solicitor General, stating
therein his reasons for his agreement or
opposition to the petition. Attachment of expert
opinions to the petition is also dispensed with
(Tongol vs. Tongol, G.R. No. 157610, October
19, 2007).
Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable

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Persons and Family Relations
Void Subsequent Marriages
1. Without judicial declaration of nullity of
previous void marriage (Art. 40)
2. Without judicial declaration of presumptive
death of absent spouse (Art. 41)
3. Where the absent spouse was presumed
dead, and both the present spouse and
wouldbe spouse were in bad faith in
contracting marriage (Art. 44)
4. Failure to comply with Art 52 requiring the
partition and distribution of properties and
delivery
of
childrens
presumptive
legitimes which should be recorded in the
appropriate civil registry and registry of
property after obtaining judgment for
declaration of nullity or annulment (Art.
53).

Note: Failure to record in the civil registry and

registry of property the judgment of annulment
or of absolute nullity of the marriage, partition
and distribution of the property of the spouses
and the delivery of the childrens presumptive
legitimes shall not affect third persons (Arts.
5253).

For purposes other than remarriage, such as

but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement
of estate, dissolution of property regime or
criminal case, other evidence is acceptable to
show the nullity of the marriage and the court
may pass upon the validity of marriage so long
as it is essential to the determination of the
case (Nial vs. Bayadog, G.R. No. 133778,
March 14, 2000).
Collateral attack of marriage is allowed
In a case for concubinage, the accused
need not present a final judgment
declaring his marriage void, for he can
adduce evidence in the criminal case of
the nullity of his marriage other than proof
of a final judgment declaring his marriage
void (Beltran vs. People, G.R. No. 137567,
June 20, 2000).

Void and Voidable Marriage Distinguished

Void
Decree of nullity
Incapable of ratification
Can
be
attacked
directly or collaterally
Coownership
of
properties through joint
actual contributions
Always void
Action for declaration
of nullity does not
prescribe
Only the spouses can
have their marriage
declared void starting
March 15, 2003; but
before such date, any
interested party can do
so

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 question (Landicho vs. Rolova L22579, February 23, 1968).
One who enters into a subsequent
marriage without first obtaining such
judicial declaration is guilty of bigamy.
This principle applies even if the earlier
union is characterized by statute as void.
(Manuel
vs.
People,
G.R.
No.
165842,November 29, 2005)
Interestingly, in Lucio Morigo vs. People,
GR No. 145226, Feb. 6, 2004, the SC
ruled that a judicial declaration of nullity is
NOT NEEDED where NO MARRIAGE
CEREMONY at all was performed by a
duly authorized solemnizing officer, as
where the parties merely signed a
marriage contract on their own without the
presence of the solemnizing officer

Voidable
Decree of annulment
Ratified
by
free
cohabitation
Can be attacked directly
only
Generally
Conjugal
Partnership or Absolute
Community
Valid until annulled
Action prescribes

Those provided under

Art. 47

Who may file Action for Declaration of

Nullity
Before March 15, 2003 Any interested party
can file a direct case for nullity of marriage,
e.g., a father can file a case for declaration of
nullity of a bigamous marriage entered into by
his daughter and a married man.

Judicial Declaration of Nullity

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. 40).
Remarriage is not the sole purpose of
declaration of nullity of a marriage as it
can be declared void for other purposes

March 15, 2003 and onwards A petition for

declaration of absolute nullity of void marriage
may be filed solely by the husband or wife.
A.M. 02-11-10-SC which provides for the
same is prospective in its application. (Juan de
Dios Carlos vs. Falicidad Sandoval, G.R. No.
179922, December 16, 2008)

For purposes of remarriage, the only legally

acceptable basis for declaring a previous
marriage an absolute nullity is a final judgment
declaring such previous marriage void
Parties to a marriage should not be

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Imprescriptibility of Action for Declaration
of Nullity
General Rule: The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe (Art. 39, as amended by
R.A. 8533 approved on February 23, 1998).

Effect of Reappearance of Absent Spouse:

General Rule: The subsequent bigamous
marriage under Article 41 remains valid
despite reappearance of the absentee spouse.
Exception:
Subsequent
marriage
is
automatically terminated if the reappearance
was recorded in a sworn statement in the civil
registry of the residence of the parties to the
subsequent marriage at the instance of any
interested person with due notice to said
spouses, without prejudice to the fact of
reappearance being judicially determined in
case such fact is disputed.

Declaration of Nullity not a Prejudicial

Question
The pendency of the civil action for nullity of
marriage does not pose a prejudicial question
in a criminal case for concubinage. (Beltran vs.
People, G.R. No. 137567, June 20, 2000).
This ruling applies in a case for bigamy by
analogy since both crimes presuppose the
subsistence of a marriage. (Bobis vs. Bobis,
G.R. No.138509, July 31, 2000).

Exception to the exception: If there was a

previous judgment annulling or declaring the
first marriage a nullity, the subsequent
bigamous marriage remains valid.

BIGAMOUS MARRIAGES (Art. 41)

Notes:
If the absentee reappears, but no step is
taken to terminate the subsequent
marriage either by affidavit or by court
action,
such
absentees
mere
reappearance, even if made known to the
spouses in the subsequent marriage will
not terminate such marriage (SSS v.
Bailon, G.R. No 165545, March 24, 2006).
Judgment
declaring
a
spouse
presumptively dead is unappealable
because the proceedings thereon are
summary in nature as per Art. 153 FC.
The remedy is special civil action for
certiorari (Heirs of Maura So vs. Obliosca,
G.R. No. 147082, January 28, 2008).

General Rule: A marriage contracted by any

person during the subsistence of a previous
valid marriage shall be null and void (Gomez
v. Lipana, GR. No. L23214, June 30, 1970)
.
Exception: Before the celebration of the
subsequent marriage, a declaration of
presumptive death is obtained after complying
with the following requirements: (JAB)
1. Absence of the other spouse must have
been for 4 consecutive years, or 2 years
where there was danger of death under
circumstances laid down in Art. 391 of the
NCC
2. Well-founded belief of the present spouse
who wishes to marry that absent spouse is
already dead
3. Judicial declaration of presumptive death;
present spouse must file a summary
proceeding for the declaration of the
presumptive death of the absentee without
prejudice to the latters reappearance

See Comparative Chart on Effects of

Declaration of Nullity, Annulment and
Termination of Marriage in Art. 41 and Legal
Separation.
VOIDABLE MARRIAGES (Art. 45)

Note: This is intended to protect the present

spouse from criminal prosecution for bigamy
under Art 349 of the Rev Penal Code.
However, if the bigamous marriage was
committed abroad, the guilty party cannot be
criminally prosecuted for bigamy in the
Philippines as our penal statutes are territorial
in nature.

Grounds: (UPFAVS) must exist AT THE

TIME of marriage
1. Age of the party in whose behalf the
marriage is sought to be annulled was 18
years of age or over but below 21, and the
marriage was solemnized without the
consent of the parents, guardian or person
exercising substitute parental authority
over the party, in that order;
2. Unsound mind of either party
3. Consent of either party obtained by
fraudulent means as enumerated in Art.
46: (NPSD)
a. Nondisclosure
of
a
previous
conviction by final judgment of the

Exception to the exception: If both spouses

of the subsequent marriage acted in bad faith,
said marriage shall be void ab initio and all
donations made by one in favor of the other
are revoked by operation of law. (Art. 44)

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Persons and Family Relations
other party of a crime involving moral
turpitude;
b. Concealment by the wife of the fact
that at the time of the marriage, she
was pregnant by a man other than her
husband;
Must have been done in bad faith.
If the woman did not expressly
inform the man of her pregnancy
but such physical condition was
readily apparent to the man, he
cannot claim lack of knowledge
thereof. (Buccat vs. Buccat, G.R.
No. 47101, April 25, 1941)
c. Concealment
of
a
sexually
transmissible disease, regardless of
its nature, existing at the time of the
marriage; and
Nature or gravity of disease is
irrelevant; it is enough that there
was concealment at the time of
the ceremony
d. Concealment of drug addiction,
habitual alcoholism, homosexuality or
lesbianism existing at the time of the
marriage
4. Vitiated consent of either party through
force, intimidation or undue influence
Criminal liability attaches to anyone
who uses violence, intimidation and
fraud in contracting a marriage (Art.
350 RPC)
5. Physical incapability of either party to
consummate the marriage with the other,
and such incapacity continues and
appears to be incurable (impotency)
Permanent inability on the part of one
of the spouses to perform the
complete act of sexual intercourse,
arising from physical and other
causes,
including
psychological
causes
Need not be universal; condition may
exist only as to the present spouse
and not as to others

least 3 years from time spouses started

cohabiting.
6. Sexually transmissible disease of either
party found to be serious and appears to
be incurable.
Elements: (ESSA)
a. Existing at the time of marriage
b. Sexually transmissible disease
c. It is serious; and
d. Appears incurable
The enumeration in Article 46 is EXCLUSIVE
(Anaya vs. Palaroan, GR. No. L27930,
November 26, 1970).
Note: Misrepresentation as to character,
health, rank, fortune or chastity is NOT a
ground for annulment.
Persons
Who
May Sue
Injured
party

Prescriptive
Period
W/in
5
years
from the
time the
force,
intimidatio
n,
or
undue
influence
ceased

Fraud

Injured
party

W/in
5
years
from the
discovery
of fraud

Incapability
to
consummate

Injured
party

W/in
5
years
after the

Grounds
(F2I2NS)
Force,
intimidati
on,
or
undue
influence

Requisites for annulment

due to
Impotence: (CUPIN)
a. It exists at the time of the celebration
of the marriage;
b. It is permanent;
c. It is incurable;
d. It is unknown to the other spouse;
e. The other spouse must not also be
impotent.

Insanity

Doctrine of Triennial Cohabitation

Presumption that the husband is impotent
should the wife still remain a virgin for at

celebration

Sane
spouse
who has
no knowledge of
the
insanity
Relative
guardian

or
persons

16

Ratification
Free
cohabitation after
disappearance
of force,
intimidation
/
undue
influence
respecttively
Free
cohabitation even
with
full
knowledge of
facts
constituting
the
fraud
No
ratification
since
defect is

of
the
marriage
Anytime
before the
death of
either
party

permanent

Anytime
before the
death of
either

Free
cohabitation after
insane

Free
cohabitation after
insane
regains
sanity

San Beda College of Law

2010 Centralized Bar Operations
having
legal
charge of
the
insane
Insane
spouse

Non
consent

STD

Parent/
legal
guardian
having
charge of
the no
consent
party
No
consent
party

Injured
party

party

During
lucid
interval or
after
regaining
sanity
Anytime
before the
no
consent
party
reaches
21
W/in
5
years
after
reaching
21
W/in
5
years
after the
celebratio
n of the
marriage

about a matrimonial case even in the absence

of grounds therefor (Ocampo vs. Florenciano,
GR. No. L13553, February 23, 1960).

regains
sanity

However, petitioners vehement opposition to

the annulment proceedings negates the
conclusion that collusion existed between the
parties. Under these circumstances, the non
intervention of a prosecuting attorney to
assure lack of collusion between the
contending parties is not fatal to the validity of
the proceedings in the trial court (Tuason vs.
CA, G.R. No. 116607, April 10, 1996).
Free
cohabitation after
reaching
age of 21

Decision
No judgment on the pleadings, summary
judgment, confession of judgment, or
judgment by default shall be allowed.
If the defendant spouse fails to answer the
complaint, the court CANNOT declare him or
her in default. But instead, should order the
public prosecutor to determine if collusion
exists between the parties.

No
ratification since
defect is
permanent.

Note: The same also applies to Legal

Separation
After court grants petition, it shall issue the
decree of absolute nullity or annulment only
after compliance with the following:
1. Must proceed with the liquidation, partition,
and distribution of the properties of the
spouses including custody and support of
the common children unless such matters
had been adjudicated in previous judicial
proceedings
2. Delivery of the childrens presumptive
legitimes
3. Registration of the entry of judgment
granting petition for declaration of absolute
nullity or annulment in the Civil Registry
where the marriage was celebrated and in
the Civil Registry of the place where the
FC was located
4. Registration of approved partition and
distribution of properties of the spouses in
the proper Registry of Deeds where the
real properties are located

Note: Whichever comes first may convalidate

the marriage: Cohabitation OR Prescription.
Additional Requirements for Annulment or
Declaration of Nullity
Prosecuting attorney or fiscal should:
1. Appear on behalf of the state
2. Take steps to prevent collusion between
the parties
3. Take care that evidence is not fabricated
or suppressed
Collusion
Public Prosecutor shall be ordered by the
court to investigate and to submit a report on
whether parties are in collusion when:
1. No answer is filed or the answer does not
tender an issue;
2. Respondent filed his answer but failed to
appear at the pre-trial (Secs. 8(3) and
13(b), A.M. No. 02-11-12-SC, March 15,
2003)

Note: The same applies to Legal Separation.

In case of annulment or declaration of
absolute nullity of marriage, Art.49 of the
Family Code grants visitation rights to a parent
who is deprived of the custody of the children.
Such visitation rights flow from the natural right
of both parents to each others company.
There being no such parent child relationship
between them, Gerardo has no demandable

Note: The same also applies to Legal

Separation pursuant to Secs. 5(c) and 10(2) of
A.M. No. 02-11-11-SC, March 15, 2003.
There will be collusion only if the parties had
arranged to make it appear that a ground
existed or had been committed although it was
not, or if the parties had connived to bring

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San Beda College of Law

Persons and Family Relations

right to visit the child of Mario with Theresa

(Concepcion vs. CA GR. No. 12345, August
31, 2005).

Sexual perversion includes engaging

in such behavior not only with third
persons but also with the spouse

CoolingOff Period 6-month period from

the filing of the petition designed to give the
parties enough time to further contemplate
their positions with the end in view of attaining
reconciliation between them. No action for
Legal Separation shall be tried during such
period (Art. 58). It is a mandatory requirement
and its non-compliance makes the decision
infirm. (Pacete vs. Carrianga, G.R. No. 53880,
March 17, 1994)

Rule on Declaration of Absolute Nullity of

Void Marriages and Annulment of Voidable
Marriages (A.M. 001101SC)
This took effect on March 15, 2003.
This Rule shall govern petitions for
declaration of absolute nullity of void
marriages and annulment of voidable
marriages under the Family Code of the
Philippines.
The Rules of Court have suppletory
application.

Grounds for Denial of Petition (Art. 56):

(C4MPDR)
1. Condonation of the offense or act
complained of. But failure of the husband
to look for his adulterous wife is NOT
condonation to wife's adultery (Ocampo
vs. Florenciano, G.R. No. L13553,
February 23, 1960).
The act of the husband in having
sexual intercourse with his wife in
spite of his knowledge of the latters
infidelity is an act of implied
condonation. (Ginez v. Bugayong,
G.R. No. L-10033, December 28,
1956)
2. Consent to commission of offense or act
complained of
3. Connivance between
parties
of
commission of offense or act constituting
ground
Connivance is corrupt consenting
4. Collusion between parties
Collusion is corrupt agreement
between the spouses to procure
divorce or legal separation
5. Mutual Guilt or where both parties have
given ground for legal separation
6. Prescription
An action for legal separation shall be
filed within 5 years from time of
occurrence of the cause (Art. 57)
7. Death of either party during the pendency
of the case (LapuzSy vs. Eufemio, G.R.
No. 113842, August 3, 1994)
8. Reconciliation of the spouses during the
pendency of the case
By filing in the same proceeding a joint
manifestation under oath, duly signed
by the spouses (Art. 65)

For a more comprehensive discussion on the

procedural aspects of the Rule, please refer to
the Remedial Law Memory Aid.
LEGAL SEPARATION
Exclusive Grounds: (SAMBALIPAD)
1. Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a child of
the petitioner
2. Attempt of the 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
Refers to prostitution only and
irrespective of the age of the child
3. Attempt by the respondent against the life
of the petitioner
4. Final judgment sentencing the respondent
to imprisonment of more than 6 years
even if pardoned
5. Drug addiction or habitual alcoholism of
the respondent
6. Lesbianism or homosexuality of the
respondent
7. Abandonment of the petitioner by the
respondent without justifiable cause for
more than 1 year
There must be absolute cessation of
marital relations, duties, and rights,
with the intention of perpetual
separation (Partosa-Jo vs. CA, G.R.
No. 82606, December 18, 1992).
Abandonment
implies
total
renunciation of duties.
8. Physical violence or moral pressure to
compel petitioner to change religious or
political affiliation
9. Contracting
by
respondent
of
a
subsequent bigamous marriage; and
10. Sexual infidelity or perversion.

Effects of Filing Petition: (LDS)

1. The spouses shall be entitled to live
separately from each other
2. In the absence of an agreement between
the parties, the court shall designate the

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San Beda College of Law

2010 Centralized Bar Operations
husband, the wife, or a third person to
manage the absolute community or
conjugal partnership property (Art. 61)
3. The husband shall have no more right to
have sexual intercourse with his wife.

properties but the same shall not prejudice

creditors not listed or notified, unless debtorspouse has sufficient separate properties to
satisfy creditors claim.
Rule on Legal Separation (A.M. 021111
SC)
This took effect on March 15, 2003.

Decision
No legal separation may be decreed unless
the Court has taken steps toward the
reconciliation of the spouses and is fully
satisfied,
despite
such
efforts,
that
reconciliation is highly improbable. (Art. 59)

This Rule shall govern petitions for legal

separation under the Family Code in the
Philippines; the Rules of Court shall apply
suppletorily.

Note: The wife who has been granted legal

separation cannot petition to be allowed to
revert to her maiden name.

Please refer to the Remedial Law Memory Aid

for the procedural provisions of the Rule.

Even if the parents are separated de facto, still

in the absence of judicial grant of custody to
one parent, both parents are entitled to the
custody of their child. The remedy of habeas
corpus may be resorted to by the parent who
has been deprived of the rightful custody of
the child (Salientes v. Abanilla, G.R. No.
162734, August 29, 2006).
Note: A decree of legal separation, on the
ground of concubinage, may issue upon proof
of preponderance of evidence in the action for
legal separation. No criminal proceedings or
conviction is necessary.
Effects of Reconciliation of the Spouses
(Art. 66):
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 and any forfeiture of share of the
guilty spouse already effected shall
subsist, unless the spouses agree to
revive their former property regime.
Revival of Property Regime (Art. 67)
Agreement of revival and motion for its
approval shall be filed in court in the same
proceeding for legal separation and shall be
executed under oath and shall specify:
1. Properties to be contributed anew to
restored regime;
2. Those to be retained as separated
properties of each spouse;
3. Names of all known creditors, addresses,
and amounts owing to each
After due hearing, court shall take measures to
protect interest of creditors and such order
shall be recorded in the proper registries of

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