San Beda College of Law

2011 CENTRALIZED BAR OPERATIONS

EFFECT AND APPLICATION OF LAWS

3. No provision as to its effectivity - it
takes effect 15 days following its
The Civil Code took effect on August 30, 1950. publication.

EFFECTIVITY OF LAWS Coverage (PLAC3E)

(Art. 2)
General Rule: Laws take effect after 15 days
following the completion of its publication in
the Official Gazette or in a newspaper of
general circulation (EO No. 200).
The law shall take effect on the 16th day
because in counting the period, the first
day is excluded and the last day included
(Art. 13, NCC).
No one shall be charged with notice of the
statutes provision until publication is
completed and the 15 day period has
expired.
Exception: Unless otherwise provided by the
law (EO No. 200).
The exception refers to the 15-day
period only and not the requirement of
publication.
Publication is indispensable, absence
of which will not render the law effective
(Taada vs. Tuvera GR No. L-63915,
December 29, 1986)
Rules on Period Provided by Statute
1. Shorter/longer period than the 15-day -
such period as provided in the statute shall
prevail.
2. Takes effect immediately - it shall take
effect immediately after publication with
the 15-day period being dispensed with
(Taada vs. Tuvera G.R. No. L-63915,
December 29, 1986).
1. Presidential Decrees
2. Laws which refer to all statutes, including
local and private laws
3. Administrative Rules and Regulations
where purpose is to enforce/implement
existing law pursuant to a valid delegation
4. Charter of a City
5. Circulars issued by the Monetary Board
where purpose is not merely to interpret
but to fill in the details of the Central Bank
Act
6. Circulars and Regulations which prescribe
a penalty for its violation (People vs. Que
Po Lay, G.R. No. L-6791, March 29, 1954)
7. Executive Orders (Taada vs. Tuvera G.R.
No. L-63915, December 29, 1986).
Publication not Required (I L)
1. Interpretative regulations and those
internal in nature, regulating only the
personnel of the administrative agency.
2. Letters of Instructions issued by
administrative superiors on
rules/guidelines to be followed by
subordinates in the performance of their
duties (Taada vs. Tuvera, ibid).
Note: Date of effectivity of Municipal
Ordinances is NOT covered by this rule but by
the Local Government Code. (Taada vs.
Tuvera, supra).

EXECUTIVE COMMITTEE:
EZEKIEL JOSHUA VILLENA overall chairperson, MINISTER MOISES DU chairperson for academics, DJOANIVIE
JOMARE JUNASA chairperson for hotel operations, MARIE MICAELA STA. ANA vice-chairperson for operations,
MIKHAIL MAVERICK TUMACDER vice-chairperson for secretariat, JACKIE LOU LAMUG vice-chairperson for finance,
DIANA JEAN TUAZON vice-chairperson for edp, JASSEN RALPH LEE vice-chairperson for logistics

SUBJECT COMMITTEE:
JESUS ERICK STA. BARBARA subject chair, APRIL ROSE JAVIER assistant subject chair, KRISYL CANCINO edp, INA
BEATRIZ DE VERA and GWYNETH ALIGA persons and family relations, HARLY JAYSON REYES property, IVA
FREYRITZ ERICA CAYABAN wills and succession, JESUS ERICK STA. BARBARA obligations and contracts, DIORY
RABAJANTE sales and lease, STEPHANIE GARAY and JESUS ERICK STA. BARBARA partnership, agency and trust,
RUSKIN PRINCIPE credit transactions, DIANA FAJARDO and GERWIN PANGHULAN torts and damages, MAY
KRISTINE ARELLANO and RAMIL AUSTRIA land titles and deeds, MA. ANGELA BONIFACIO and ANTHONY
VILLAMOR conflict of laws

MEMBERS:
Veda Marie Vedan, Jecky Lamug, Angeli Adriano, Errol Albano, Princess Parreas, Katrine Paula Suyat, Venice
Buagin, Marviglyn Mindo, Mary Jane Perez, Rozzalie Gonzales, Dorothy Kate Punzalan, Ednalyn Saron, Frances
Dyan Lim, Katrina Kalaw, Maria Katrina Rivera, Aizza Gonzales, Kathlyn Jane Cainday, Art John Arongat, , Jose
Angelo David, Mei Suyat, Daryl Ann Tan, Raynan Larosa, Kamille Deanne Lagasca, Karell Marie Lascano, Frances
Dyan Lim, Maris Donna Kwok, Mark Joseph Ayo, Hansel Moraa, Paul Joseph Mercado, Ian Michel Geonanga
 CIVIL LAW
PERSONS AND FAMILY RELATIONS
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
L-1211, January 30, 1947).
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)
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. L-
8562-8563, December 17, 1955)
7. Unless the law otherwise provides
8. Penal laws favorable to the accused.
Exceptions to the Exception: (EI)
1. Ex Post Facto Laws
2. Laws that impair obligation of contracts
(Asiatic Petroleum vs. Llanes, G.R. No. L-
25386, October 20, 1926)
ACTS CONTRARY TO LAW (Art. 5)
General Rule: Acts contrary to mandatory or
prohibitory laws are VOID.
Exceptions: (PAVE)
1. The law makes the act valid but
punishes the violator (ex. Marriage
solemnized by a person without legal
authority)
2
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)
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.
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.
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.
Judicial decisions, although in themselves not
laws, assume the same authority as the
statute itself (People vs. Licera G.R. No. L-
39990, 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.
They are part of the law as of the date of the
enactment of said law because the Supreme
Courts interpretation merely establishes the
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
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).
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: 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.
RULE ON PERIODS
(Art. 13)
1. Years - 365 days, unless year is
identified
2. Months - 30 days, unless month
identified
3. Days 24 hours
4. Nights-sunset to sunrise
5. Calendar week Sunday to Saturday
6. Week Count 7 days as indicated, not
necessarily Sunday to Saturday
To count the period, first day is excluded,
last day is included.
Exception: Rule does NOT apply to
computation of age; each year is counted
based on birth anniversary.
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 (a) by the Rules of
Court, (b) by an order of the court, or (c)
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.
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.
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)
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))
Exception: Order and amount of
successional rights, intrinsic validity of
testamentary provisions, and capacity to
succeed governed by the national law of
decedent. (Article 16 (2))
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)
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
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 CIVIL LAW
PERSONS AND FAMILY RELATIONS

ii. In default thereof, and the parties
are of the same nationality, their
national law shall be applied;
iii. If the parties are not of the same
nationalities, the law of the place
of the perfection of the obligation
shall govern its fulfillment;
iv. 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.
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

Lex Nationalii Lex Rei Sitae Lex Loci General Rule: Prohibitive laws concerning
Celebrationis persons, their acts or property, and laws which
Art. 15, CC Art. 16, CC Art. 17, CC have for their object public order, public policy
Citizenship is Law of the Law of the or good customs are NOT rendered ineffective
the basis for place where place where by laws, or judgments promulgated or by
determining the property is the contract
determinations or conventions agreed upon in
the personal situated is the was executed
law applicable basis for is the basis for foreign country. (Art. 17(3))
determining determining
law applicable law applicable Exception: Art. 26, par. 2 Family Code (ex.
Covers family Covers both Covers only the Divorce Law)
rights and real and forms and
duties, status, personal solemnities
condition and property (extrinsic
HUMAN RELATIONS
legal capacity validity)
of persons.
Exception: Exceptions: Exceptions:
ABUSE OF RIGHT (Art. 19)
Art. 26, par. 2 (CIAO) 1. Art.
of Family Code Capac 26, par. 1 of Elements: (LEP)
ity to Family Code 1. Existence of a legal right or duty;
succeed 2. Intrinsi 2. Which is exercised in bad faith;
Intrins c validity of
contracts
3. For the sole intent of prejudicing or injuring
ic validity of
another.
the will
Amou
nt of Doctine of Violenti Non Fit Injuria (to which
successional a person assents is not esteemed in law as
rights injury) refers to self-inflicted injuries or to the
Order consent to injury which precludes the recovery
of of damages by one who has knowingly and
succession voluntarily exposed himself to danger, even if
he is not negligent in doing so (Nikko Hotel
Rules on Personal Law: Domiciliary Rule and Manila Garden, et all vs. Roberto Reyes
Nationality Rule Distinguished (Amay Bisaya) G.R. No. 154259, Feb. 28,
Domiciliary Rule Nationality Rule 2005).
Basis for determining Basis for determining Damnum Absque Injuria (damage without
personal law of an personal law is his injury) A person who exercises his legal right
individual is his CITIZENSHIP
DOMICILE
does no injury. HOWEVER, it cannot be said
that a person exercises a right when he
unnecessarily prejudices another or offends
5. Renvoi Doctrine: Occurs when a citizen morals or good customs.
of another country dies as a domiciliary of
When damages result from a persons
another country. Where the conflict rules
exercise of rights, it is damnum absque
of the forum refer to a foreign law, and the
injuria (ABS-CBN v. Republic
latter refers it back to the internal law, the
Broadcasting Corp. G.R. No. 128690,
law of the forum shall apply.
January 21, 1999).

ACTS CONTRARY TO LAW (Art. 20)

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 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS

3. Plaintiff has suffered a loss; and

Every person who, contrary to law, willfully or
negligently causes damage to another, shall
indemnify the latter for the same.
4. He has no other action based on contract,
quasicontract, crime or quasidelict.
Note: For a more comprehensive discussion
of Articles 19-35, please see discussion
thereof under Torts.

PREJUDICIAL QUESTION
(Art. 36)
ACTS CONTRA BONUS MORES
(Art. 21) General Rule: If both criminal and civil cases
are filed in court, the criminal case takes
Elements: (L-C-I) precedence.
1. There is a legal act;
2. But which is contrary to morals, good Exceptions:
customs, public order or public policy; and, 1. In case of prejudicial questions, the
3. It is done with intent to injure. criminal case is suspended because the
issues in the civil case are determinative
Articles 19, 20 and 21 are related to one of the outcome of the criminal case.
another and under these articles, an act which A prejudicial question is that which
causes injury to another may be made the arises in a case, the resolution of
basis for an award of damages (Albenson which is a logical antecedent of the
Enterprises Corp. v. CA, G.R. No. 88694, issue involved therein, and the
January 11, 1993). cognizance of which pertains to
another tribunal (Yap v. Paras, G.R.
Articles 19 and 21 refer to INTENTIONAL acts No. 101236, January 30, 1992).
while Article 20 pertains either to WILLFUL or
NEGLIGENT acts, which must be contrary to Requisites: (Section 7, Rule 111, Rules of
law. (Ibid.) Court)
a. Previously instituted civil action
PRINCIPLE OF UNJUST ENRICHMENT involves an issue similar or intimately
(Art. 22) related to the issue raised in the
subsequent criminal action.
b. The resolution of such issue
Accion In Rem Verso action for recovery of
determines whether or not the criminal
what has been paid without just cause.
action may proceed.
Application:
2. Independent civil action granted by law
1. When someone acquires or comes into
(CD-QR)
possession of something, which means
a. Breach of constitutional and other
delivery or acquisition of things; AND
rights (Art. 32)
2. Acquisition is undue and at the expense of
b. Defamation, fraud, physical injuries
another, which means without just or legal
(Art. 33)
ground.
c. Refusal or failure of city or municipal
police to give protection (Art. 34)
Accion in Rem Verso and Solutio Indebiti
d. Quasi-delict or culpa-aquiliana
Solutio Indebiti (Art.2177)
Accion In Rem Verso
(Art. 2154)
It is not necessary that Note: The Civil Code has SUPPLETORY
the payment be made by application in matters governed by special
mistake, payment could Payment was made by laws.
have been made mistake is an essential
knowingly and voluntarily element to maintain the
but nevertheless, there action for recovery. CIVIL PERSONALITY
would be recovery of
what has been paid
Aptitude of being the subject, active or
passive, of rights and obligations.
Requisites: (JELA)
1. Defendant has been enriched; Juridical Capacity and Capacity to Act
2. Enrichment is without just or legal ground;

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 CIVIL LAW
PERSONS AND FAMILY RELATIONS
Juridical Capacity Capacity To Act 4. Insolvency;
Fitness to be the
Power to do acts with
5. Trusteeship;
subject of legal relations 6. Penalty;
legal effects (Art. 37)
(Art. 37) 7. Prodigality;
Passive Active 8. Age;
Inherent Merely acquired 9. Alienage;
Lost through death and 10. Absence; and
Lost only through death
other causes 11. State of being deaf-mute.
Can exist without Cannot exist without
capacity to act juridical capacity
Note: The consequences of the restrictions
Cannot be limited or Can be restricted, and modifications on a persons capacity to act
restricted modified or limited
are provided by the Civil Code, other codes,
special laws and the Rules of Court.
A person is presumed to have capacity to act.
(Standard Oil Co. v. Arenas, et al., 14 Phil.
363) NATURAL PERSONS

Theories on Capacity to Act Beginning of Personality

Theory of General Theory of Special General Rule: Birth determines personality
Capacities Capacities (actual personality) (Art. 40).
Applies to natural Applies to juridical
persons persons Exception: The law considers the conceived
One has the ability to do This limits the power of child as born for all purposes favorable to it if
all things with legal juridical persons only to born alive. Therefore, the child has a
effects except only in those that are expressly
presumptive personality, which has two
those specific conferred upon them or
those which can be
characteristics:
circumstances where 1. Limited and
the capacity to act is implied therefrom or
restrained incidental thereto 2. Provisional or conditional (Quimiguing vs.
Icao, G.R. No. L-26795, July 31, 1970)
Restrictions on Capacity to Act do not
Note: The concept of provisional
exempt the incapacitated person from certain
personality CANNOT be invoked to obtain
obligations as when the latter arise from his
damages for and in behalf of an aborted
acts or from property relations such as
child (Geluz vs. CA, G.R. No. L-16439,
easements (Art. 38): (MID-PC)
July 20, 1961).
1. Minority
Minority does not exempt the minor
from certain obligations, as when the A conceived child is already entitled to support
latter arise from his acts or from from its progenitors. (Quimiguing vs. Icao,
property relations. Thus, he may G.R. No. L-26795, July 31, 1970) and can be
acquire property using the capital of acknowledged even before it is born. (De
his parents, said property to belong to Jesus v. Syquia, 58 Phil. 866)
the latter in ownership and usufruct.
When is a Child Considered Born:
2. Insanity or imbecility
3. State of being deaf mute General Rule: For civil purposes, the fetus is
Deaf mute may either be sane or considered born if it is alive at the time it is
insane. completely delivered from the mothers womb.

4. Prodigality Exception: If the fetus had an intra-uterine life

The state of squandering money or
property with a morbid desire to
prejudice the heirs of a person.
(Martinez v. Martinez, 1 Phil. 182)
5. Civil interdiction
Modifications/ Limitations on Capacity to
Act (Art. 39): (FI3T P2A3D)
1. Family Relations;
2. Insanity;
3. Imbecility;
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).
The legitimacy or illegitimacy of a child
attaches upon conception (Continental Steel
Manufacturing Corp. v. Hon. Accredited
Voluntary Arbitrator, et al., G.R. No. 182836,
October 13, 2009).
How Civil Personality is Extinguished
Civil Personality is extinguished by death.

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 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS

The effect of death upon the rights and 2. Jus Soli by place of birth
obligations of the deceased is determined by 3. Naturalization artificial means
law, by contract and by will. (Art. 42) (judicial or administrative) by which a state
adopts an alien and gives him imprint and
Presumption of Survivorship: endowment of a citizen of that country
In case of doubt as to which of two or more
persons called to succeed each other died
first: Domicile
1. Whoever alleges the death of one For the exercise of civil rights and the
prior to the other shall prove the same fulfillment of civil obligations, the domicile of
2. In the absence of proof, the natural persons is the place of their habitual
presumption is that the parties died at the residence. (Art. 50 NCC)
same time and there shall be no
transmission of rights from one another Residence and Domicile Distinguished
(Art. 43) Residence Domicile
Denotes a fixed
Note: Article 43 applies when the case Indicates a place of permanent residence,
involves two or more persons who are called abode, whether which when absent, one
to succeed each other. But if the parties are permanent or temporary has the intention of
not called to succeed each other, Rule 131, returning
Sec. 3 (jj) of the Rules of Court applies. Both There can be several There can only be one
places of residence place of domicile
are to be applied only in the absence of facts.
No length of residence
It is residence coupled
without intention of
Rule 131 Section 3 (jj). That except for with intention to remain
remaining will constitute
purposes of succession, when two persons for an unlimited time
domicile
perish in the same calamity, such as wreck,
battle, or conflagration, and it is not shown who Elements of Domicile
died first, and there are no particular 1. Physical presence in a fixed place
circumstances from which it can be inferred, 2. Intention to remain permanently in
the survivorship is determined from the said place (animus manendi)
probabilities resulting from the strength and the
age of the sexes, according to the following Kinds of Domicile
rules: 1. Domicile of origin Given by law to a
1. If both were under the age of fifteen person at birth.
years, the older is deemed to have Can only be lost
survived;
2. If both were above the age sixty, the 2. Domicile of choice That which is
younger is deemed to have survived; voluntarily chosen by a sui juris as his
3. If one is under fifteen and the other above more or less permanent home that to
sixty, the former is deemed to have which, whenever he is absent, he intends
survived; to return. (Uytengsu v. Republic, 50 O.G.
4. If both be over fifteen and under sixty, 4781, Oct. 1954)
and the sex be different, the male is No natural person is ever without a
deemed to have survived, if the sex be domicile
the same, the older;
No person can have two or more
5. If one be under fifteen or over sixty, and
domiciles at the same time, except for
the other between those ages, the latter
certain purposes and from different
is deemed to have survived.
legal viewpoints.
Every sui juris may change his domicile.
CITIZENSHIP AND DOMICILE Once acquired, it remains the domicile
unless a new one is obtained.
CITIZENSHIP is the membership in a political
community which is more or less permanent in 3. Constructive domicile assigned to a
nature. Article IV of 1987 Philippine child by law after his birth on account of a
Constitution now governs the rule on legal disability like minority, insanity, etc.
citizenship.
Requirements for the Acquisition of New
Modes of Acquiring Citizenship Domicile
1. Jus Sanguinis by blood, wherever 1. Bodily presence in a new locality
he may be born actual removal or actual change of

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 CIVIL LAW
PERSONS AND FAMILY RELATIONS

domicile Marriage Ordinary Contract

2. Intention to remain therein (animus ineffective after a few
manendi) years
3. Intention to abandon the old domicile Breach of obligations of
(animus non revertendi) husband and wife does
not give rise to an
action for damages.
The law provides penal Breach of ordinary
and civil sanctions such contracts gives rise to
Rules for Determining the Domicile of an action for damages
as prosecution for
Juridical Persons (Article 51):
adultery or
A. Get the domicile provided for in the law concubinage and
creating or recognizing them or in their proceedings for legal
articles of agreement. separation.
B. If not provided for, get the place:
Can be dissolved only Can be dissolved by
1. Where their legal representation is
by death or annulment, mutual agreement and
established. not by mutual by other legal causes
2. Or where they exercise their principal agreement
functions.
If the corporation has head office Breach of Promise to Marry
and with branches, the domicile is
where the head office is located. General Rule: It is not by itself an actionable
wrong (Hermosisima vs. CA L-14628,
FAMILY CODE September 30, 1960). One cannot seek
specific performance to compel marriage.
The Family Code of the Philippines took effect
on August 3, 1988. Exceptions: To be actionable, there must be
another act independent of the breach of
promise to marry which gives rise to liability as
MARRIAGE
where there was financial damage, social
humiliation, and moral seduction.
A special contract of permanent union 1. Mere breach of promise to marry is not an
between a man and a woman entered into in actionable wrong; but to formally set a
accordance with law for the establishment of wedding and go through all the
conjugal and family life. It is the foundation of preparations and publicity, only to walk out
the family and an inviolable social institution of it when the matrimony is about to be
whose nature, consequences and incidents solemnized, is quite different. This is
are governed by law and not subject to palpably and unjustifiably contrary to good
stipulation, except that marriage settlements customs for which defendant must be held
may fix the property relations during the answerable in damages pursuant to Art.
marriage within the limits provided by this 21 NCC. (Wassmer vs. Velez, No. L-
Code (Art. 1). 20089, December 26, 1964)
2. Where a mans promise to marry was the
Marriage and Ordinary Contract Distinguished proximate cause of giving herself unto him
Marriage Ordinary Contract in sexual congress and there is proof he
Special contract Merely a contract had no intention of marrying her, the
Social institution Merely a contract promise being a deceptive device,
Governed by law on Governed by law on damages may be awarded pursuant to
marriage contracts
Art. 21 NCC because of the fraud and
Not subject to
Generally subject to deceit behind it and the willful injury to her
stipulations except in
stipulations honor and reputation (Baksh vs. CA, G.R.
property relations
Minors may contract No. 97336, February 19, 1993).
Legal capacity is through their parents or
required guardians or in some Essential Requisites of Marriage: (LC)
cases by themselves 1. Legal capacity of the contracting
Contracting parties parties, who must be a male and a female
must only be two a. Eighteen years old or above
Two or more parties
persons one is a
regardless of gender b. Not under any impediment mentioned
female and the other is
a male in Arts. 37 and 38 (Art. 5)
Parties can fix a period
Permanent Union 2. Consent freely given in the presence
for its efficacy to be

8
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
of a solemnizing officer (Art. 2)
No particular form required
Capable of intelligently understanding
the nature and consequences of the
act
Formal Requisites of Marriage: (ALM)
1. Authority of the solemnizing officer
2. Valid Marriage License
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)
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)
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))
2. DEFECT in any of the essential
requisites: The marriage is VOIDABLE
(ex: consent obtained through force and
intimidation)
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 without parental
consent where contracting party is 18
years old or over but below 21 is
VOIDABLE.
Marriage Ceremony
No prescribed form or religious rite for
solemnization of marriage is required. (Art. 6)
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.
Authority of Solemnizing Officer
It is not the presence or absence of the
solemnizing officer which constitutes the
formal requirement but the absence or
presence of the solemnizing officers authority
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)
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
qualifications of contracting parties (Art.
29)
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 Vice-
Mayor 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
9
 CIVIL LAW
PERSONS AND FAMILY RELATIONS
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. Commander of a 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 Philippine laws (Art.
17, NCC)
Also performs the duties of the local
civil registrar
Consuls on home assignment in the
Philippines cannot solemnize marriage
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
2. Church, chapel or temple
3. Office of consulgeneral, consul or
viceconsul
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
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.
Valid Marriage License
A formal requisite of marriage
Issued by the local civil registrar of the city
or municipality where EITHER contracting
party habitually resides.
Each of the contracting parties shall file
separately a sworn application with the
10
proper local civil registrar which shall
specify the following:
1. Full name of the contracting party;
2. Place of birth;
3. Age and date of birth;
4. Civil status;
5. If previously married how, when and
where the previous marriage was
dissolved or annulled;
6. Present residence and citizenship;
7. Degree of relationship of the
contracting parties;
8. Full name, residence and citizenship
of the father;
9. Full name, residence and citizenship
of the mother; and
10. Full name, residence and citizenship
of the guardian or person having
charge, in case the contracting party
has neither father nor mother and is
under the age of twenty-one years.
(Art. 11)
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 cancelled at the
expiration of the period if contracting
parties have not made use of it (Art.
20)
Foreign National
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)
Exception: Marriage of both foreign
citizens will be solemnized by their
countrys consul-general assigned in the
Philippines, if their countrys law allows the
same
Stateless persons or 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)
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
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
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
before any person authorized by law
to administer oaths stating that they
have lived together for at least five
years (and 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. MTJ
001329, March 08, 2001)
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).
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)
4. In articulo mortis
Where either or both of the contracting
parties are at the point of death, the
marriage may be solemnized without
the necessity of a marriage license
and shall remain valid even if ailing
party subsequently survives (Art. 27)
May be solemnized by:
a. Ship captain or by airplane pilot
(Art. 31)
b. Military commander of a unit (Art.
32)
c. Other persons authorized to
solemnize marriage.
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)
Marriage Certificate
Best documentary evidence of the
existence of a marriage.
It is not, however, the only evidence.
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)
The marriage certificate, in which the
parties shall declare that they take each
other as husband and wife, shall also
state:
1. The full name, sex and age of each
contracting party;
2. Their citizenship, religion and habitual
residence;
3. The date and precise time of the
celebration of the marriage;
4. That the proper marriage license has
been issued according to law, except
in marriage provided for in Chapter 2
of this Title;
5. That either or both of the contracting
parties have secured the parental
consent in appropriate cases;
6. That either or both of the contracting
parties have complied with the legal
requirement regarding parental advice
in appropriate cases; and
7. That the parties have entered into
marriage settlement, if any, attaching a
copy thereof. (Art. 22)
Note: Marriage certificate is NOT an essential
requisite of marriage and should NOT be
confused with a marriage license.
FOREIGN MARRIAGE
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 CIVIL LAW
PERSONS AND FAMILY RELATIONS
Validity of Marriage
General Rule: Where one or both parties in
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
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)
Note: The existence of the pertinent provision
of the foreign marriage law must be shown to
prove a foreign marriage.
The foreign law is not of judicial notice,
and must therefore be proved as a fact.
(Adong v. Cheong Seng Gee, 43 Phil. 43)
Divorce
General rule: Divorce is not allowed in the
Philippines
Exceptions:
1. Between 2 aliens if valid in their national
laws even if marriage was celebrated in
the Philippines
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
12
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 the
marriage was celebrated, and later on,
one of them becomes naturalized as a
foreign citizen and obtains a divorce
decree: the reckoning point is their
citizenship at the time the 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), it was held that a
Filipino who had been divorced by his
alien spouse abroad may NOT validly
remarry in the Philippines if the
marriage was solemnized BEFORE
the Family Code took effect. It was
noted that there is no need to
retroactively apply Art. 26 paragraph 2
of the Family Code, since there is a
sufficient jurisprudential basis allowing
the Court to rule in the affirmative.
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
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
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 to comply with the essential
marital obligations of marriage.
Note: Enumeration in Art 35 is NOT exclusive.
Other VOID marriages include:
1. Marriages in a play, drama, or movie
2. Marriages between two boys and two girls
3. Marriages in jest
4. Common law marriages
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
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)
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)
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 are
common, and even normal occurrences
between husbands and wives. (Tongol vs.
Tongol, G.R. No. 157610, October 19, 2007)
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.
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:
i. Sufficiently proven by experts
ii. Clearly explained in the decision
3. Incapacity proven to be existing at the
time of the celebration of marriage;
4. Incapacity must be permanent or
incurable;
5. Illness is grave enough to bring about
13
 CIVIL LAW
PERSONS AND FAMILY RELATIONS
disability to assume essential marital
obligations;
6. Marital obligations refer to Art. 6871,
220,221 and 225 of the FC;
7. Interpretations of the National
Appellate Matrimonial Tribunal of the
Catholic Church of the Philippines while
not controlling should be given great
respect;
8. Trial court must order the prosecuting
attorney or fiscal and the Solicitor General
to appear for the state.
Note: In Te vs. Yu-Te (G.R. No. 161793,
February 13, 2009), the SC stressed that it is
the court, on a case to case basis, which
determines whether a party to a marriage is
psychologically incapacitated, and that each
case should be treated differently. In ruling that
the doctrine in Republic vs. CA and Molina
(1997) was inapplicable, the Court declared
that 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. While it was not suggesting the
abandonment of the Molina doctrine, it ruled
that said doctrine has become a strait-jacket,
forcing all sizes to fit into and be bound by
it,and in conveniently applying said doctrine,
has allowed diagnosed sociopaths,
schizophrenics, nymphomaniacs, narcissists
and the like, to continuously debase and
pervert the sanctity of marriage.
In ruling that both parties to the marriage were
psychologically incapacitated, the Court also
stressed that the expert opinion on the
psychological and mental temperament of the
parties must not be discounted, but must
instead be considered as decisive evidence.
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).
Similarly, the husbands alleged alcoholism,
drunkenness, his habitual verbal and physical
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).
14
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)
There is NO REQUIREMENT that the person
sought to be declared psychologically
incapacitated should be personally examined
by a physician or 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)
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).
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
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
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.
The following can now marry each other:
(LSG-C2A)
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
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).
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
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
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 L-
22579, 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.
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).
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).
Only the Spouses can File Petition for
Declaration of Nullity
Pursuant to A.M. No. 02-11-10-SC (SC
Resolution which took effect on March 15,
15
 CIVIL LAW
PERSONS AND FAMILY RELATIONS
2003), a petition for declaration of absolute
nullity of void marriage may be filed solely by
the husband or the wife. Thus, compulsory or
intestate heirs can question the validity of the
marriage of the spouses, not in a proceeding
for declaration of nullity, but upon the death of
a spouse in a proceeding for the settlement of
the estate of the deceased spouse filed in the
regular courts. (Enrico v. Heirs of Medinaceli,
G.R. No. 173614, September 28, 2007)
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).
Void and Voidable Marriage Distinguished
Void Voidable
Decree of nullity Decree of annulment
Ratified by free
Incapable of ratification
cohabitation
Can be attacked Can be attacked directly
directly or collaterally only
Can still be impugned Can no longer be
even after death of impugned after death of
parties one of the parties
Coownership of Generally Conjugal
properties through joint Partnership or Absolute
actual contributions Community
Always void Valid until annulled
Action for declaration
of nullity does not Action prescribes
prescribe
BIGAMOUS MARRIAGES (Art. 41)
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;
16
present spouse must file a summary
proceeding for the declaration of the
presumptive death of the absentee without
prejudice to the latters reappearance
There is no well-founded belief that the absent
spouse is already dead when the present party
fails to conduct a diligent search for the
missing party. (Republic v. Nolasco, G.R. No.
94053, March 17, 1993)
Note: This is intended to protect the present
spouse from criminal prosecution for bigamy
under Art 349 of the Revised 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.
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)
Effect of Reappearance of Absent Spouse:
General Rule: The subsequent bigamous
marriage under Art. 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.
Exception to the exception: If there was a
previous judgment annulling or declaring the
first marriage a nullity, the subsequent
bigamous marriage remains valid.
Notes:
If the absentee reappears, but no step is
taken to terminate the subsequent
marriage either by affidavit or by court
action, the 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 not appealable
because the proceedings thereon are
summary in nature as per Art. 153 FC. The
remedy is special civil action for certiorari
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
(Heirs of Maura So vs. Obliosca, G.R. No.
147082, January 28, 2008).
See Comparative Chart on Effects of
Declaration of Nullity, Annulment and
Termination of Marriage in Art. 41 and Legal
Separation.
VOIDABLE MARRIAGES (Art. 45)
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
The true test is whether the party
concerned could intelligently consent;
that is, that he knew what contract he
was entering into. (Hoadley v.
Hoadley, 244 N.Y. 424)
Intoxication which results in lack of
mental capacity to give consent is
equivalent to unsoundness of mind.
(McKnee v. McKnee, 49 Nev. 90)
So is somnambulism at the time of
wedding. (15 Sanchez Roman 528)
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
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
Note:
The enumeration in Article 46 is
EXCLUSIVE (Anaya vs. Palaroan,
GR. No. L27930, November 26,
1970).
Misrepresentation as to character,
health, rank, fortune or chastity is NOT
a ground for annulment.
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
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.
Doctrine of Triennial Cohabitation
Presumption that the husband is impotent
should the wife still remain a virgin for at
least 3 years from time spouses started
cohabiting.
Refusal on the part of a Filipino girl to
submit to a physical examination to
determine impotency does NOT raise the
presumption of impotency because of the
natural modesty of our native girls.
(Jimenez v. Canizares, L-12790, August
31, 1960)
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 CIVIL LAW
PERSONS AND FAMILY RELATIONS

6. Sexually transmissible disease of Persons Prescrip-

Grounds Ratifi-
either party found to be serious and (F2I2NS)
Who May tive
cation
appears to be incurable. Sue Period
During
Elements: (ESSA) lucid
a. Existing at the time of marriage Insane interval or
spouse after
b. Sexually transmissible disease
regaining
c. It is serious; and sanity
d. Appears incurable Parent/ Anytime
legal before the
guardian no
having consent
charge of party Free
the no reaches cohabita-
Non
Persons Prescrip- consent 21 tion after
Grounds Ratifi- consent
Who May tive party reaching
(F2I2NS) cation Within 5 age of 21
Sue Period
No years
Free
consent after
Within 5 cohabita-
party reaching
years tion after
Force, Injured 21
from the disap-
intimida- party Within 5 No
time the pearance
tion, or years ratifica-
force, of force,
undue Injured after the tion since
intimida- intimida- STD
influence party celebratio defect is
tion, or tion /
undue undue n of the perma-
influence influence marriage nent.
ceased respect-
tively Note: Whichever comes first may convalidate
Free the marriage: Cohabitation OR Prescription.
cohabita-
tion even Additional Requirements for Annulment or
Within 5
with full Declaration of Nullity
years
Injured know- Prosecuting attorney or fiscal should:
Fraud from the
party ledge of
discovery 1. Appear on behalf of the state
facts
of fraud
constitu- 2. Take steps to prevent collusion between
ting the the parties
fraud 3. Take care that evidence is not fabricated
Within 5 or suppressed
No
Incapabi- years
ratification
lity to Injured after the There will be collusion only if the parties had
since
consum- party celebration arranged to make it appear that a ground
defect is
mate of the existed or had been committed although it was
permanent
marriage
not, or if the parties had connived to bring
Insanity Sane Anytime
spouse before the Free
about a matrimonial case even in the absence
who has death of cohabita- of grounds therefor (Ocampo vs. Florenciano,
no know- either tion after GR. No. L13553, February 23, 1960).
ledge of party insane
the regains However, petitioners vehement opposition to
insanity sanity the annulment proceedings negates the
conclusion that collusion existed between the
Relative Anytime Free parties. Under these circumstances, the non
guardian before the cohabita- intervention of a prosecuting attorney to
or death of tion after
assure lack of collusion between the
persons either insane
party regains contending parties is not fatal to the validity of
having
legal sanity the proceedings in the trial court (Tuason vs.
charge of CA, G.R. No. 116607, April 10, 1996).
the
insane Pendency of Action
During the pendency of the action and in the
absence of adequate provisions in a written
agreement between the spouses, the court

18
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
shall:
1. Provide for the support of the spouses and
the custody and support of common
children
2. Give paramount consideration to the moral
and material welfare of the said children
and their choice of the parent with whom
they wish to remain.
3. Provide for appropriate visitation rights.
(Art. 49)
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
right to visit the child of Mario with Theresa
(Concepcion vs. CA GR. No. 12345, August
31, 2005).
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; instead, it should order the
public prosecutor to determine if collusion
exists between the parties.
If aside from a stipulation of facts or a
confession of judgment, sufficient evidence
was presented, the court may render a
judgment annulling the marriage. (Ocampo vs.
Florenciano, GR. No. L13553, February 23,
1960).
Note: The rule 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 in cash, property or sound
securities unless otherwise mutually
agreed upon and judicially approved.
Delivery shall in no way prejudice the
ultimate successional rights of the
children accruing upon the death of
either or both parents
The value of the properties received
shall be considered as advances.
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: The rule applies to Legal Separation.
Effects of Nullity
1. Either of the former spouses may marry
again after complying with the
requirements of Art. 52. (Art. 53)
2. On Children (Art. 54)
a. Those conceived or born before the
judgment or annulment or absolute
nullity of the marriage under Art. 36
has become final and executory, shall
be considered legitimate.
b. Those conceived or born of the
subsequent marriage under Art. 53
shall likewise be legitimate
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.
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 CIVIL LAW
PERSONS AND FAMILY RELATIONS
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.
Sexual perversion includes engaging
in such behavior not only with third
persons but also with the spouse
Note: Mere preponderance of evidence will
suffice to prove the existence of these grounds
EXCEPT the 4th ground.
RA 9262 Anti-Violence Against Women and
Children (March 8, 2004)
Acts of Violence:
1. Causing physical harm to the woman or
her child;
2. Threatening to cause the woman or her
child physical harm;
3. Attempting to cause the woman or her
child physical harm;
4. Placing the woman or her child in fear of
imminent physical harm;
5. Attempting to compel or compelling the
woman or her child to engage in conduct
which the woman or her child has the right
to desist from or desist from conduct which
the woman or her child has the right to
engage in, or attempting to restrict or
restricting the woman's or her child's
freedom of movement or conduct by force
or threat of force, physical or other harm or
threat of physical or other harm, or
intimidation directed against the woman or
child. This shall include, but not limited to,
the following acts committed with the
purpose or effect of controlling or
restricting the woman's or her child's
movement or conduct:
a. Threatening to deprive or actually
depriving the woman or her child of
custody to her/his family;
b. Depriving or threatening to deprive the
woman or her children of financial
support legally due her or her family,
or deliberately providing the woman's
children insufficient financial support;
c. Depriving or threatening to deprive the
woman or her child of a legal right;
d. Preventing the woman in engaging in
any legitimate profession, occupation,
business or activity or controlling the
victim's own money or properties, or
20
solely controlling the conjugal or
common money, or properties;
6. Inflicting or threatening to inflict physical
harm on oneself for the purpose of
controlling her actions or decisions;
7. Causing or attempting to cause the
woman or her child to engage in any
sexual activity which does not constitute
rape, by force or threat of force, physical
harm, or through intimidation directed
against the woman or her child or her/his
immediate family;
8. Engaging in purposeful, knowing, or
reckless conduct, personally or through
another that alarms or causes substantial
emotional or psychological distress to the
woman or her child. This shall include, but
not be limited to, the following acts:
a. Stalking or following the woman or her
child in public or private places;
b. Peering in the window or lingering
outside the residence of the woman or
her child;
c. Entering or remaining in the dwelling
or on the property of the woman or her
child against her/his will;
d. Destroying the property and personal
belongings or inflicting harm to
animals or pets of the woman or her
child; and
e. Engaging in any form of harassment
or violence;
9. Causing mental or emotional anguish,
public ridicule or humiliation to the woman
or her child, including, but not limited to,
repeated verbal and emotional abuse, and
denial of financial support or custody of
minor children of access to the woman's
child/children. (Sec. 5, RA 9262)
Note:
In cases of legal separation, where
violence as specified in RA 9262 is
alleged, Article 58 of the Family Code on
the 6 months cooling-off period shall NOT
apply. The court shall proceed on the main
case and other incidents of the case as
soon as possible. The hearing on any
application for a protection order filed by
the petitioner must be conducted within
the mandatory period specified. (Sec. 19,
RA 9262)
The woman victim of violence shall be
entitled to the custody and support of her
child/children. Children below seven (7)
years old older but with mental or physical
disabilities shall automatically be given to
the mother, with right to support, unless
the court finds compelling reasons to order
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
otherwise. A victim who is suffering from
battered woman syndrome shall not be
disqualified from having custody of her
children. In no case shall custody of minor
children be given to the perpetrator of a
woman who is suffering from Battered
woman syndrome. (Sec. 28, RA 9262)
Grounds for Denial of Petition (Art. 56):
(C4MPDR)
1. Condonation of the offense or act
complained of.
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
Consent is prior to the act;
condonation comes after. (People v.
Schneckenburger, 73 Phil 413)
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)
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. Carriaga, G.R. No. 53880,
March 17, 1994)
The cooling-off period does not mean the
overruling of provisions as custody,
alimony, and support pendente lite.
A writ of preliminary mandatory injunction
for the return of the wifes paraphernal
property can in the meantime be heard
and granted during the 6-month period.
(Semosa-Ramos v. Vamenta, 46 SCRA
110 )
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
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.
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)
Note: The wife who has been granted legal
separation cannot petition to be allowed to
revert to her maiden name.
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). 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.
Reconciliation
If the spouses should reconcile, the
corresponding joint manifestation under oath
duly signed by them shall be filed with the
court in the same proceeding for legal
separation. (Art. 65)
Effects of Reconciliation of the Spouses
(Art. 66):
1. The legal separation proceedings, if
21
 CIVIL LAW
PERSONS AND FAMILY RELATIONS

still pending, shall thereby be terminated 3. Names of all known creditors, addresses,
at whatever stage. and amounts owing to each.
2. The final decree of legal separation
shall be set aside, but the separation of After due hearing, court shall take measures to
property and any forfeiture of share of the protect interest of creditors and such order
guilty spouse already effected shall shall be recorded in the proper registries of
subsist, unless the spouses agree to properties but the same shall not prejudice
revive their former property regime. creditors not listed or notified, unless debtor-
spouse has sufficient separate properties to
Revival of Property Regime (Art. 67) satisfy creditors claim.
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;

Termination Declaration of Nullity Annulment Legal Separation

(Art.41) (Art. 40) (Art. 45) (Art. 55)
Marital Status
Subsequent marriage Previous marriage, void ab Valid until annulled or No dissolution of marriage,
automatically initio terminated only separation of bed-and-
terminated by affidavit board; entitled to live
of reappearance separately
Status of Children Born/Conceived Before Termination
Legitimate Illegitimate except those as Legitimate Legitimate
provided in Art. 36 and 53
Custody of Children
Custody in case of During Pendency:
dispute shall be 1. Written Agreement
decided by the court 2. Absence thereof, court decides based on best interest of child and may award it in
in separate the following order of preference:
proceedings for a. Both parents jointly
custody but same b. Either parent, may consider choice of child over 7 years unless parent chosen
considerations as in is unfit
Declaration of Nullity c. Surviving grandparent, if several then choice of child over 7 years unless
grandparent chosen is unfit/disqualified
d. Eldest brother/sister over 21unless unfit/ disqualified
e. Any other person deemed suitable by court

After Decree:
To the innocent spouse but no child under 7 shall be separated from the mother unless
there are compelling reasons
Child Support
Support in case of During pendency:
dispute shall be 1. Written agreement
decided by the court 2. In the absence thereof, from properties of the absolute community of property
in separate (ACP) or conjugal partnership (CP)
proceedings for
custody but same After Decree:
considerations as in Either parent/ both may be ordered by court to give an amount necessary for support in
Declaration of Nullity proportion to resources/means of giver and necessities of recipient
Spousal Support
During pendency:
1. Written agreement
2. In the absence thereof, from properties of the ACP or CP, considered as advance to
be deducted from share during liquidation
3. Restitution if after final judgment court finds that person providing support pendente
lite is not liable therefor (Sec. 7, Rule 61, ROC)
Property Relations
1. ACP or CP shall be dissolved and liquidated 1. ACP or CP shall be

22
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
Termination Declaration of Nullity Annulment Legal Separation
(Art.41) (Art. 40) (Art. 45) (Art. 55)
2. If either spouse contracted marriage in bad faith, he or she has no right to dissolved and liquidated.
any share of net profits earned by ACP or CP 2. Offending spouse has no
3. Net profits shall be forfeited in favor of common children, or if none, right to any share of net
children of guilty spouse by previous marriage, or in default thereof, the profits earned by ACP or
innocent spouse CP
4. In all other cases of void marriage, Art. 147 and 148 applies (Valdes vs. 3. Net profits shall be
RTC) forfeited in favor of
common children, or if
In addition, for marriages under Art. 40 and 45: none, children of guilty
1. All creditors of spouses and of the ACP or CP shall be notified of the spouse by previous
proceedings for liquidation marriage, or in default
thereof, the innocent
2. Conjugal dwelling and lot on which it is situated shall be adjudicated spouse
pursuant to Art. 102 and 129
Presumptive Legitime
1. Delivery of presumptive legitime of all common
children computed as of date of final judgment
without prejudice to ultimate successional rights
of children accruing upon death of either or both
parents
2. Shall be considered as advances on common
childrens legitime (Art. 51)
Donation Propter Nuptias
1. Shall remain 1. Shall remain valid, 1. Shall remain valid, 1. Donor is given option to
valid, unless unless donee unless donee revoke; if donor decides
donee contracted contracted marriage in contracted to revoke, must do so
marriage in bad bad faith, in which case, marriage in bad within 5 years from finality
faith, in which donation is revoked by faith, in which of decree
case, donation is operation of law. case, donation is 2. But if ground for legal
revoked by 2. If both spouses of revoked by separation is sexual
operation of law. subsequent marriage operation of law. infidelity (adultery or
2. If both spouses of acted in bad faith, (Art. 43(3)) concubinage), donation
subsequent donations propter 2. No conflict with between persons guilty
marriage acted in nuptias made by one in Art. 86(2) as such thereof at time of donation
bad faith, favor of the other are does not require is void (Art. 739(1)NCC)
donations propter revoked by operation of that marriage be
nuptias made by law (Art. 44) annulled first
one in favor of 3. If both spouses in good before donor may
the other are faith, donor after finality revoke donation
revoked by of decree may revoke donor has 5 years
operation of law pursuant to Art. 86(1) from time he had
4. If marriage not knowledge of lack
celebrated: of consent; cannot
a. Those stipulated in revoke if there
marriage was knowledge
settlement are void before the
(Art. 81) marriage
b. Those excluded 3. Conflict with Art.
from marriage 86(3) but Art.
settlement or if no 43(3) prevails
such contract, may more in harmony
be revoked by with general
donor (Art. 86(1)) purpose/intent of
act (Ibid.)
Insurance Policy
Innocent spouse may revoke designation of spouse in bad faith as beneficiary Innocent spouse may revoke
even if stipulated as irrevocable (Art. 43(4)) donations made by him or her
in favor of offending spouse
as well as designation of latter
as beneficiary even if
stipulated as irrevocable (Art.
64). Action to revoke donation
must be brought within 5
years from finality of decree

23
 CIVIL LAW
PERSONS AND FAMILY RELATIONS
Termination Declaration of Nullity Annulment Legal Separation
(Art.41) (Art. 40) (Art. 45) (Art. 55)
Succession
1. Spouse in bad faith disqualified to inherit from innocent spouse by testate 1. Offending spouse
or intestate succession disqualified from inheriting
2. If both spouses of subsequent marriage acted in bad faith, testamentary from innocent spouse by
dispositions made by one in favor of the other are revoked by operation of intestate succession
law (Art. 44) 2. Provisions in favor of
offending spouse made in
the will of innocent
spouse are revoked by
operation of law (Art.
63(4))

24
 CIVIL LAW
PERSONS AND FAMILY RELATIONS
RIGHTS AND OBLIGATIONS BETWEEN
THE HUSBAND AND THE WIFE
(JL-FORM)
1. Live together
Act of living together is a voluntary act
of the spouses which cannot be
compelled by any proceeding in court.
Only the moral obligation of the
spouses constitutes the motivating
factor for making them observe the
said duties and obligations which are
highly personal (Ramirez-Cuaderno v
Cuaderno, 12 SCRA 505)
If the wife refuses unjustifiably to live
with her husband, the court will
admonish but not order her return; and
even if an order is made, contempt
proceeding against the wife will not
prosper. The only remedy here for the
husband is to refuse to grant support.
(Mariano B. Arroyo v. Dolores C.
Vasquez de Arroyo, 42 Phil. 54)
2. Observe mutual love, respect and fidelity
3. Render mutual help & support
4. Fix the family domicile
a. Both husband and wife shall fix the
family domicile. In case of
disagreement, the court shall decide.
b. The court may exempt one spouse
from living with the other if the latter
should live abroad or there are other
valid and compelling reasons for the
exemption. However, such exemption
shall not apply if the same is not
compatible with the solidarity of the
family. (Art 69)
5. Joint responsibility for the support of the
family
a. Expenses shall be paid from the
community property
b. In the absence thereof, from income
or fruits of their separate properties
c. In the absence or insufficiency thereof,
from their separate properties (Art. 70)
6. Joint management of the household
Expenses for such management shall
be paid in accordance with Art. 70
Effect of Neglect of Duty
When one of the spouses neglects his or
her duties to the conjugal union or
commits acts which tend to bring danger,
dishonor or injury to the other or to the
family, the aggrieved party may apply to
the court for relief. (Art 72.)
The relief may take on many forms: filing a
24
case for legal separation if there are
grounds for the same; filing an action for
declaration of nullity based on Art 36 if the
neglect is such that it does not create a
functional marital life; petitioning the court
for receivership, for judicial separation of
property, or for authority to be the sole
administrator of community property or
conjugal partnership.(Sta Maria, Melencio
Jr. S., Persons and Family Relations
Law,page 408 ex., 3-4 [2010])
Exercise of Profession
General Rule: Both can engage in any lawful
enterprise or profession WITHOUT the
consent of the other.
Exception: The other spouse may object only
on valid, serious and moral grounds.
In case of disagreement, court shall decide
whether (1) the objection is proper; and (2) the
benefit accrued to the family prior to the
objection or thereafter.
If a husband compels the wife to desist from
pursuing a profession or any other conduct
which the wife has the right to engage in, this
can be considered acts of violence against
women under RA 9262. (Persons and Family
Relations Law, p. 409 [2010])
Rule if Business Benefited Family
1. Benefit accrued to family before objection
absolute community of property or
conjugal partnership is liable for
damages/obligations incurred
Exception: Separate property of erring
spouse shall be liable if profession is
seriously invalid and immoral, even if
benefits actually accrued in favor of the
family
Exception to exception: When spouse
has knowledge of other spouses
engagement in an immoral activity, it is as
if there was actually no disagreement.
2. Benefit accrued after objection separate
property of spouse who did not secure
consent of other shall be solely liable
After objection by the innocent spouse,
any obligation incurred by the erring
spouse that redounded to the benefit of
the family shall be borne by the absolute
community of property or conjugal
property.
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
3. Creditors who acted in good faith are
protected if spouse transacted with
creditor without the consent of the other
but creditor had no knowledge thereof, the
absolute community of property (ACP) or
conjugal partnership of gains (CPG) shall
be liable.
PROPERTY RELATIONS BETWEEN THE
HUSBAND AND THE WIFE
Governed By:
1. Marriage settlements (MS) executed
before the marriage or ante nuptial
agreements
1. Provisions of the Family Code
2. Local customs when spouses
repudiate ACP
When parties stipulate in their MS that
local custom shall apply or that ACP
regime shall not govern but fail to
stipulate what property regime will be
applied
3. In the absence of local custom, rules
on coownership will apply (Art. 74)
Commencement
It commences at the precise moment of the
celebration of the marriage. (Art. 88 for ACP
and 107 for CPG)
Marriage Settlement (MS)
It is a contract entered into by the future
spouses fixing the matrimonial property regime
that should govern during the existence of the
marriage.
In the absence of MS or when regime agreed
upon is void, ACP shall govern. (Art. 75)
Requisites: (NBF-WASP)
1. Made before celebration of marriage
2. In writing (even modifications)
Oral MS is void and cannot be ratified
by any claim of partial execution or
absence of objection
Exception: If marriage is terminated by
death of one of spouses and surviving
spouse marries again without initiating
settlement of properties of previous
marriage within 1 year from death of
deceased spouse, mandatory regime
of complete separation of property
shall govern property relations of
subsequent marriage (Arts. 103 &
130)
3. Signed by the parties
4. Will not prejudice third persons unless
registered in the civil registry and proper
registries of property
5. Shall fix terms and conditions of their
property relations
6. Must NOT contain provisions contrary to
law, good morals, good customs, public
order, and public policy, or against the
dignity of either spouse.
7. Additional signatories/ parties
Civil interdictees & disabled: It is
indispensable for the guardian
appointed by court to be made a party
to the MS.
Note: It is argued by some law practitioners
and authors that while no person below 18 can
enter into a valid marriage and since the MS is
required to be executed before the marriage,
one below 18 may execute a MS as long as he
or she is 18 or above at the time of marriage.
Efficacy of marriage settlement (Art. 81)
General Rule: The consideration is the
marriage itself. If the marriage does not take
place, the MS is generally void.
Exception: Stipulations in the MS that do not
depend upon the celebration of the marriage
shall be valid
General Rule: Property relations shall be
governed by Philippine laws, regardless of the
place of the celebration of the marriage or the
parties residence (Art. 80).
Exceptions:
1. If both spouses are aliens, even if married
in the Philippines
2. As to extrinsic validity of contracts
affecting property:
a. Not situated in the Philippines
executed in the country where the
property is located
b. Situated in a foreign country whose
laws require different formalities for
extrinsic validity entered into in the
Philippines
3. Contrary stipulation
Modification in Marriage Settlements
General Rule: Must be made before the
marriage, in writing, signed by parties
Exceptions: Modifications made through
judicial decree during the marriage:
1. In case of revival of former property
regime between reconciling spouses after
decree of legal separation has been
issued (Art. 66, 67)
2. When abandoned spouse files petition for
judicial separation of property under Art.
25
 CIVIL LAW
PERSONS AND FAMILY RELATIONS

128 property). It is governed by the law on

3. When a spouse files petition for judicial testamentary succession both as to intrinsic
separation of property for sufficient cause and extrinsic validity. However said DPN can
under Art. 135 only be revoked by the donor only on the basis
4. Petition for voluntary dissolution of of Art. 86 of the FC.
property regime under Art. 136
DPN of Encumbered Property
Donation by Reason of Marriage The donation is valid because the donor is still
Donations Propter Nuptias (DPN) are made by the owner, even if it is encumbered. If
one spouse in favor of the other or by a mortgage is foreclosed and sold at a lesser
stranger. It is without onerous consideration, price, donee is not liable for deficiency but if
the marriage being merely the occasion or sold for more, donee is entitled to excess (Art.
motive for the donation, not its causa. Being 85).
liberalities, they remain subject to reduction for
inofficiousness upon the donors death, should Donations Propter Nuptias and Ordinary
they infringe the legitime of a forced heir Donations
(Mateo vs. Lagua, No. L-26270, October 30, Donations Propter
1969). Ordinary Donations
Nuptias
Formalities
Requisites: (COB) Governed by the rules Governed by rules on
1. Made before celebration of marriage on ordinary donations donations (Arts. 725
1. In consideration of marriage except that if future 773, NCC)
2. In favor of one or both of the future property is donated, it
spouses must conform with
formalities of wills
Present Property
Rules in case of donation by the would-be
May be donated but No limit except that
spouses to each other: (MOAC) only up to 1/5 of donor shall leave
1. There must be a valid MS stipulating a donors present property enough for his
property regime other than ACP property if the spouses support
2. Donation in MS not more than one-fifth agree on a regime
(1/5) of present property other than absolute
Any excess shall be considered void and community
the donation will be reduced to one-fifth. Future property
However, if their property regime is ACP, May be included Cannot be included
provided donation is
no reduction will be made. mortis causa
Limitation does not apply if DPN is not Grounds for revocation
included in MS but contained in separate Art. 86, FC Arts. 760, 764, & 765,
deed; general rules on donation apply NCC
subject to limitation that no person may
give/receive by way of donation more Rule on Donation between Spouses during
than he may give/receive by will Marriage

3. Accepted by would-be spouse General Rule: VOID, either direct or indirect

4. Complies with requisites in Title II of Book
II of Civil Code on Donations.
Notes:
If one of the requisites is not complied
with, it may still be valid as an ordinary
donation.
For donation of present property to be
valid, the rules governing ordinary
donations under Title III of Book III of the
Civil Code must be observed.
Please refer to Property on requisites for
valid donations.
DPN of Future Property
DPN of future property is allowed by way of
exception to Art. 751 of NCC (which provides
that donations cannot comprehend future
donation
Rationale:
1. To protect unsecured creditors from being
defrauded;
2. To prevent stronger spouse from imposing
upon the weaker one the transfer of the
latters property to the former;
3. To prevent indirect modification of the
marriage settlement.
Exceptions:
1. Moderate gifts on occasions of family
celebrations
1. Donations mortis causa
Note: This rule also applies to persons living
together as husband and wife without a valid
marriage (Art.87).

26
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
The prohibition does not include a spouse
being the beneficiary of an insurance contract
over the life of the other spouse. (Gercio vs.
Sunlife Assurance Co. of Canada, G.R. No.
23703, September 28, 1925)
Grounds for Revocation (V-RALCN)
1. Marriage not celebrated or declared
Void ab initio except those made in MS
that do not depend on celebration of
marriage
If made by a stranger, action for
revocation may be brought under
ordinary rules on prescription: if in
writing, brought within 10 years and if
oral, within 6 years. (Albano, Ed
Vincent S., Persons and Family
Relations Indicate page no. [2006])
1. Marriage without parental consent
2. Marriage is annulled and donee is in
bad faith
3. Upon legal separation, the donee
being the guilty spouse
4. Complied with resolutory condition
5. Donee commits acts of ingratitude as
specified by Art. 765 of NCC(Art. 86)
SYSTEMS OF PROPERTY REGIMES
Absolute Community of Property (ACP)
The property regime of the spouses in the
absence of a marriage settlement or when the
marriage is void. This is so because it is more
in keeping with Filipino culture.
It commences at the precise moment the
marriage is celebrated; any stipulation for the
commencement thereof at any other time is
void. The same applies to CPG.
Provisions on CO-OWNERSHIP apply to ACP
in all matters not provided by the Chapter on
ACP. (Art. 90)
General Rule: Community property shall
consist of all property owned by the spouses
at the time of the marriage or acquired
thereafter (Art. 91).
Exceptions: (BEG)
1. Property, including fruits and income
thereof, acquired before the marriage by
either spouse who has legitimate
descendants by a former marriage
2. Property for personal and exclusive use
except jewelry
3. Property acquired during the marriage by
gratuitous title, including fruits and income
thereof, except when the donor, testator or
grantor expressly provides otherwise (Art.
92)
Presumption: Property acquired during the
marriage is presumed to belong to the
community, unless otherwise proven (Art. 93).
Note: No waiver of rights allowed during the
marriage except in case of judicial separation
of property. The waiver must be in a public
instrument and recorded in the office of the
local civil registrar where the marriage contract
was recorded as well as in the proper registry
of property (Art. 89 and 77). The same applies
to CPG.
Rule on Games of Chance
Loss: Shall be borne by the loser-spouse and
shall not be charged to the community
property
Winnings: Shall form part of the community
property (Art. 95)
Exception: If said ticket was gratuitously
given by a friend to a spouse, only upon
express provision of the donor will it be
considered part of the community property.
Note: The same applies to CPG.
Administration and Disposition of the
Community Property
General Rule: Administration shall belong to
both spouses jointly.
Exceptions:
1. In case of disagreement, husbands
decision shall prevail, subject to recourse
to the court by the wife for proper remedy
within 5 years from date of contract
implementing such decision
2. In case one spouse is incapacitated or
unable to participate in the administration
of the common properties, the other
spouse may assume sole powers of
administration (Art. 96).
These powers do NOT include:
a. Disposition
b. Encumbrance
Written consent of other spouse or
authority of the court is required,
otherwise disposition or encumbrance
is VOID.
The same applies to CPG.
Note: The husband and wife are the joint
administrators of their properties forming part
of the conjugal partnership and absolute
27
 CIVIL LAW
PERSONS AND FAMILY RELATIONS
community of properties. The right vested
upon them to of the conjugal assets does
not vest until the dissolution and liquidation of
the conjugal partnership. The sale by the
husband of property belonging to the conjugal
partnership or the absolute community without
the consent of the wife or authority of the court
is void (Abalos vs. Macatangay, G.R. No.
155043, September 30, 2004).
The transaction, however, shall be construed
as a continuing offer on the part of the
consenting spouse and the third person, until
acceptance by the other spouse or
authorization by the court before the offer is
withdrawn by either or both offerors. (Art. 96)
Either spouse may dispose by will of his or her
interest in the ACP (Art. 97)
Neither spouse may donate any community
property without the consent of the other but
either may, without the others consent, make
moderate donations for charity or on
occasions of family rejoicing or family distress.
(Art. 98) The same applies to CPG.
Effect of Separation in Fact
General Rule: The separation in fact between
husband and wife shall not affect the regime of
absolute community
Exceptions:
1. The spouse who leaves the conjugal home
or refuses to live therein, without 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 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 and
use the fruits or proceeds thereof to satisfy
the latter's share. (Art. 100)
Note: The same applies to CPG.
Remedies of Present Spouse in case of
Abandonment by the Other Spouse or
Failure to Comply with Obligations (Marital,
Parental or Property Relations)
28
1. Receivership
2. Judicial separation of property
3. Authority to be the sole administrator of
the absolute community (Art. 101)
Note: A spouse is deemed to have abandoned
the other when he or she has left the conjugal
dwelling without any intention of returning.
Three (3) months disappearance or failure to
give within the same period any information as
to a spouses whereabouts prima facie raises
a presumption that the absent spouse has no
intention of returning.
Grounds for Termination of Absolute
Community (Art. 99): (LADS)
1. Decree of legal separation
1. Annulment or declaration of nullity of
marriage
2. Death of either spouses
Surviving spouse shall liquidate ACP
within 1 year from death of deceased
spouse if no judicial settlement is
instituted, failure to do so upon lapse
of 1 year period makes any disposition
or encumbrance of ACP void
Mandatory regime of complete
separation of property governs
subsequent marriage of surviving
spouse if he/she fails to comply with
liquidation of ACP of previous
marriage
3. Judicial separation of property
Note: The same applies to CPG.
Conjugal Partnership of Gains (CPG)
It is that formed by a husband and wife
whereby they place in a common fund the
proceeds, products, fruits and income of their
separate properties, and those acquired by
either or both spouses through their efforts or
by chance, the same to be divided between
them equally (as a general rule) upon the
dissolution of the marriage or the partnership.
(Art. 106)
The CPG shall be governed by the rules on
the CONTRACT OF PARTNERSHIP in all that
is not in conflict with what is provided in the
chapter on CPG or by the spouses in their MS.
(Art. 108)
Before the presumption under Art. 116 applies
(that properties acquired during marriage are
presumed conjugal), there must be proof that
the property was acquired during the marriage.
This is a condition sine qua non for the
operation in favor of conjugal ownership
(Metrobank, et al. v. Tan, GR No. 163712,
November 30, 2006).
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
Properties under Conjugal Partnership
(L2C2 FONTI)
1. Obtained from labor, industry, work or
profession of either or both spouses
2. Livestock existing upon dissolution of
partnership in excess of number of each
kind brought to the marriage by either
spouse
3. Acquired by chance such as winnings
from gambling, but losses therefrom shall
be borne exclusively by loser-spouse
4. Acquired during the marriage by onerous
title with conjugal funds
Damages for physical injuries inflicted
by a third person are exclusive
property (Lilius vs. Manila Railroad
Co. G.R. No. 42551 September 4,
1935)
Damages from illegal detention of
exclusive property pertains to CPG if
detention deprived the CP of the use
and earnings thereof (Bismorte vs.
Aldecoa, G.R. No. L-5586, December
10, 1910)
Note: The registration of the property in
either partys name alone is immaterial if
the property was acquired with conjugal
funds. (Marigsa v. Macabuntoc, G.R. No.
4883, September 27, 1910)
5. Fruits of the conjugal property during the
marriage
6. Acquired through occupation such as
fishing
7. Net fruits of their exclusive property
8. Share of either spouse in hidden treasure
(Art. 117)
9. Interest falling due during the marriage on
principal amount of credit belonging to one
spouse which is payable in partial
payments/ installments and collected
during the marriage. (Art. 119)
Disposition of CPG
A wifes consent to the husbands disposition
of conjugal property does not always have to
be explicit or set forth in any particular
document, so long as it is shown by the acts of
the wife that such consent was indeed given
(Pelayo v. CA, G.R. No. 141323 June 8, 2005).
The sale of conjugal property requires the
consent of both spouses; otherwise the sale
shall be void, including the portion of the
conjugal property pertaining to the husband
who contracted the sale (Homeowners and
Savings Loan Bank vs. CA, GR No 153802,
March 11, 2005).
Exclusive Property of Each Spouse
(OGREC) (Art. 109)
1. That which is brought to the marriage as
his/her own, whether with or without
legitimate descendants
2. Acquired during the marriage by
gratuitous title
Property donated/left by will to
spouses, jointly with designation of
determinate shares, shall pertain to
donee-spouse as exclusive property;
in the absence of designation,
property shall be divided between
them but shall belong to them
exclusively (Art. 113).
If spouse does not accept his/her part
of the donation, accretion sets in favor
of the other spouse who will own all of
property donated as separate
property.
Accretion will not apply if donor so
provides or if there is designation of
determinate properties (i.e. house,
car).
If donation is onerous, charges shall
be borne by exclusive property of
donee-spouse, whenever advanced
by the CPG.
Retirement benefits, pensions,
annuities, gratuities, usufructs, and
similar benefits acquired by gratuitous
title are exclusive properties; if by
onerous title during marriage (i.e.
contributions to pension funds or
deduction from salaries of common
funds), they are CP (Art. 115).
Unearned increment (such as
increase in the value of the
paraphernal property) belongs to the
spouse concerned.
3. Acquired by right of redemption, barter or
exchange with property belonging to either
spouse
Ownership still belongs to person who
has right of redemption, even if
conjugal funds are used to redeem,
subject to reimbursement
If separate property in addition to
conjugal funds were used as part of
purchase price of a new property, the
new property shall be considered
conjugal
4. Purchased with exclusive money of either
spouse
5. Principal amount of credit belonging to
one spouse payable in partial payments/
installments, which will be fully paid during
the marriage (Art. 119).
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 CIVIL LAW
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ACP (Art. 94) CPG (Art. 121)

Notes: Support of the spouses, their common children, and
The spouses retain the ownership, legitimate children of either spouse
possession, administration and enjoyment For illegitimate children,
of their exclusive properties. (Art. 110) support from separate
For illegitimate children,
A spouse may mortgage, encumber, property of person
support from separate obliged to give support.
alienate or otherwise dispose of his or her property of person
exclusive property, without the consent of In case of insufficiency
obliged to give support. or absence of separate
the other spouse, and appear alone in In case of insufficiency property, CP shall
court to litigate with regard to the same. or absence of separate advance support,
(Art. 111) property, ACP shall chargeable to share of
Transfer of administration of the exclusive advance support, parent upon liquidation,
property of either spouse does not confer chargeable to share of but only after obligations
parent upon liquidation
ownership of the same (Rodriguez v. De la in Art. 121 have been
Cruz, G.R. No. L-3629, September 28, covered
1907). Debts and Obligations Contracted During Marriage
a. By the administrator spouse designated in
Property Bought on Installment (Art. 118) MS/appointed by court/one assuming sole
Property bought on installments paid partly administration
from exclusive funds of the spouses and partly b. By one without the consent of the other
from conjugal funds: c. By one with the consent of other
1. If full ownership was vested before the d. By both spouses
marriage it shall belong to the buyer-
For (a) and (b), creditor has burden of proving
spouse (ex: contract to sell, full payment benefit to family and ACP/CPG chargeable to extent
made during marriage using CP) of benefit proven, otherwise, chargeable to separate
2. If full ownership was vested during the property of obligor spouse
marriage it shall belong to the conjugal
partnership (ex: contract of sale) For (c) and (d), benefit to family presumed
All taxes, liens, charges and expenses including
In both cases, there is reimbursement upon minor repairs upon ACP or CP
liquidation. In (1), owner-spouse reimburses
Taxes and Expenses for
the CP. In (2), CP shall reimburse the owner- mere preservation
spouse. during marriage upon
Taxes and Expenses for separate property of
Improvement of Exclusive Property mere preservation either spouse,
Reverse Accession if the cost of the during marriage upon regardless of whether
separate property of used by family because
improvement resulted in the increase in value
either spouse used by use and enjoyment of
of more than the value of the principal property family
at the time of the improvement, the entire separate property of the
spouses belong to the
property shall belong to CPG subject to
partnership
reimbursement of the value of the principal
property at the time of the improvement to the Expenses to enable either spouse to
owner-spouse. commence/complete a professional, vocational or
other activity for self-improvement
Accession if the cost of the improvement of Value donated/promise by both spouses in favor of
the plus value is equal to or less than the common legitimate children for exclusive purpose of
value of the principal property at the time of commencing or completing professional or
the improvement, the entire property remains vocational course or other activity for self-
improvement
the exclusive property of the spouse, subject
to reimbursement of the value of the cost of Expenses of litigation between spouses unless suit
improvement found to be groundless
1. Ante-Nuptial Debts For Ante-Nuptial Debts,
Note: The obligation to reimburse rests on the Chargeable to ACP same as ACP but in
spouse upon whom ownership of the entire if redounded to case of insufficiency of
property is vested. There is no obligation on benefit of family separate property,
the part of the purchaser of the property in 2. Personal debts not obligations enumerated
redounding to in Art. 121 must first be
case the property is sold by the owner-spouse
benefit of family satisfied before such
(Ferrer v. Ferrer, G.R. No. 166496, November such as liabilities debts may be
29, 2006) incurred by reason chargeable to the CP
of crime or quasi-
Charges upon and Obligations of ACP and CP delict, chargeable

30
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
ACP (Art. 94) CPG (Art. 121)
to separate
property of debtor
spouse
3. In case of
insufficiency of
separate property,
chargeable to ACP
but considered
advances
deductible from
share of debtor-
spouse upon
liquidation
Note: The separate properties shall be
solidarily and subsidiarily liable for the
obligations if the community or conjugal
properties are insufficient.
Benefits that might accrue to a husband in his
signing a surety or guarantee agreement not in
favor of the family but in favor of his employer
corporation are not benefits that can be
considered as giving a direct advantage
accruing to the family. Hence, the creditors
cannot go against the conjugal partnership
property in satisfying the obligation subject of
the surety agreement. A contrary view would
put in peril the conjugal partnership property
by allowing it to be given gratuitously similar to
cases of donation of conjugal partnership
property, which is prohibited.
The conjugal partnership is NOT liable for an
indemnity agreement entered into by the
husband to accommodate a third party
(Security Bank v. Mar Tierra Corp., GR No.
143382, November 29, 2006).
Steps in Liquidation of ACP and CPG
(Art. 102 and 129)
1. Inventory of ACP or CPG properties and
exclusive property of each spouse
Separate property included as it is
solidarily liable to creditors and will be
used to pay them if ACP or CPG is
insolvent
Should also include receivables from
each spouse for:
a. Amounts advanced for personal
debts of each spouse
b. Support pendent elite of each
spouse
c. For CPG, include value of
improvements constructed on
separate property
2. Payment of ACP or CPG debts
Must first pay out of the ACP or CP
property, if insufficient, spouses
solidarily liable with separate
properties
For CPG, must first reimburse spouse
for separate property acquired by CP
due to increased value thereof as a
result of improvements thereon
3. Delivery to each spouse of his/her
separate property if any
4. For CPG, unless owner indemnified from
whatever source, payment of loss or
deterioration of movables belonging to
either spouse that was used for the benefit
of the family
5. Division of net assets (for ACP) or net
profits (CPG), which are not subject to
forfeiture
6. Delivery of presumptive legitime, if any, to
the children
7. Adjudication of conjugal dwelling and lot
Separation of Property
Takes place if expressly provided for in the MS
or by judicial order after the marriage (Art.
134)
It may refer to present or future property or
both, total or partial. If partial, ACP shall
govern properties not agreed upon as
separate. (Art. 144)
Separation of property may be effected
voluntarily or for sufficient cause, subject to
judicial approval.
Regime of Separation of Property
1. Each spouse shall own, dispose of,
possess, administer and enjoy his or her
own separate estate, without need of the
consent of the other. To each spouse shall
belong all earnings from his or her
profession, business or industry and all
fruits, natural, industrial or civil, due or
received during the marriage from his or
her separate property.(Art. 145)
2. The spouses contribute to the family
expenses PROPORTIONATELY with their
income or in case of insufficiency or
default thereof, with the current market
value of their separate properties.
However, the liability of the spouses to the
creditors for family expenses is
SOLIDARY. (Art. 146)
A Compromise Agreement which was judicially
approved is exactly such a separation of
property allowed under the law. However,
voluntary separation of property is subject to
the rights of all creditors of the conjugal
partnership of gains and other persons with
pecuniary interest pursuant to Article 136 of
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 CIVIL LAW
PERSONS AND FAMILY RELATIONS
the Family Code (Virgilio Maquilan vs. Dita
Maquilan, G.R. No. 155409, June 8, 2007).
Causes of Judicial Separation of Property:
(CLAPS)
1. Petitioners spouse has been sentenced
with a penalty which carries with it civil
interdiction;
2. Loss of parental authority of petitioners
spouse as decreed by the court;
3. Petitioners spouse has been judicially
declared an absentee;
4. Abandonment by the petitioners spouse
or failure to comply with the obligations to
the family as provided in Art. 101;
5. Spouse granted power of administration in
marriage settlement abused such power;
and
6. At the time of the petition, spouses have
been separated in fact for at least 1 year
and reconciliation is highly improbable
(Art. 135).
Note: In the cases provided for in (1-3),
presentation of final judgment against guilty/
absentee spouse is enough basis for grant of
degree of judicial separation of property.
Procedure:
1. The spouses may jointly file a verified
petition with the court for the voluntary
dissolution of the absolute community or
the conjugal partnership of gains, and for
the separation of their common properties.
2. 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 and
notified of the filing thereof. The court shall
take measures to protect the creditors and
other persons with pecuniary interest.
3. Once the separation of property has been
decreed, the absolute community or the
conjugal partnership of gains shall be
liquidated in conformity with this Code.
4. 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
and their children.
5. After dissolution of the absolute
community or of the conjugal partnership,
the provisions on complete separation of
property shall apply.
6. The petition for separation of property and
the final judgment granting the same shall
be recorded in the proper local civil
registries and registries of property.
7. The separation of property shall not
prejudice the rights previously acquired by
creditors.
32
Effects of Judicial Separation of Property
1. Dissolution and liquidation of
ACP/CPG
1. Liability of the spouses to creditors
shall be solidary with their separate
properties
2. Mutual obligation to support each
other continues except when there is legal
separation
3. Rights previously acquired by
creditors are not prejudiced
Revival of Former Property Regime (Art.
141)
It shall be governed by Art. 67 and may be
filed in the same proceedings where
separation of property was decreed in any of
the following instances:
1. Termination of civil interdiction
2. Reappearance of absentee
3. Upon satisfaction of court that spouse
granted administration in the MS will not
abuse that power and authorizes
resumption of said administration
4. Return and resumption of common life
with spouse by the other who left the
conjugal home without decree of legal
separation
5. Restoration of parental authority
6. Reconciliation and resumption of common
life of spouses who had been separated in
fact for at least 1 year
7. Spouses agree upon joint petition to
revival of former property regime after
voluntary dissolution of ACP or CPG has
been judicially decreed
No voluntary separation of property
may thereafter be granted.
Administration of Exclusive Property
1. The administration of all classes of
exclusive property of either spouse may
be transferred by the court to the other
spouse:
a. When one spouse becomes the
guardian of the other;
b. When one spouse is judicially
declared an absentee;
c. When one spouse is sentenced to a
penalty which carries with it civil
interdiction; or
d. When one spouse becomes a fugitive
from justice or is in hiding as an
accused in a criminal case.
2. 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. (Art. 142)
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS

Property Regime of Unions without Marriage Art. 147 Art. 148

Art. 147 Art. 148 common children.
Applicability 2. In case of default
or waiver by any
In cases of cohabitation
The following must or all common
not falling under Art. 147. valid marriage.
concur: children or their
Parties do not have the 2. If party who acted in
1. Parties who are descendants each
capacity to marry due to bad faith is not validly
capacitated to vacant share shall
some legal impediments married to another,
marry each other belong to
(i.e. adulterous his/her share shall be
2. Live exclusively respective
relationships and forfeited in the same
with each other as surviving
marriages which are manner provided for
husband and wife descendants
bigamous, incestuous, in Art. 147
3. Without benefit of 3. In their absence,
or void by reason of 3. The above rules
marriage or under to the innocent
public policy under Art. apply even if both
void marriage party.
38) parties are in bad
Salaries and Wages faith.
In all cases, forfeiture
Separately owned by the takes place upon
parties. If any of them is termination of
married, his/her salary is
Owned in equal shares cohabitation
the property of the CPG
of the legitimate
marriage Tender Loving Care Doctrine
Property Acquired By Either Exclusively By The relationship between a man and a woman
Own Funds whose marriage was subsequently declared
Belongs to such party null and void on the ground of psychological
subject to proof of
Belongs to such party
incapacity is governed by Art. 147 of the
acquisition by Family Code. Under this article, there exists a
exclusive funds presumption that the contributions are equal.
Property Acquired by Both through their Even if one of the parties did not contribute
Work/Industry materially to the common fund, but the said
Owned by them in
Governed by rules on party took care of the household, the other
common in proportion to
co-ownership party and their common children, these acts
respective contributions
Property Acquired While Living Together are considered the said partys contribution to
the common fund (Buenaventura v.
Presumed to be
Buenaventura, G.R. No. 127358 & 127449,
obtained by their joint
efforts, work, or March 31, 2005).
industry and shall be
owned by them in Note: Under Art. 148 there is no presumption
equal shares. Efforts in of joint acquisition. It must be stressed that
care and maintenance actual contribution is required by this
of family and provision, in contrast to Art. 147 which states
household considered No presumption of joint that efforts in the care and maintenance of the
contribution in acquisition. When there family and household, are regarded as
acquisition. is evidence of joint
contributions to the acquisition of common
acquisition but none as
Note: Neither party to the extent of actual property by one who has no salary or income
can encumber or contribution, there is a or work or industry. Under Art. 148, if the
dispose by acts inter presumption of equal actual contribution of the party is not proved,
vivos of his or her sharing there will be no co-ownership and no
share in the property presumption of equal shares (Agapay v.
acquired during Palang, G.R. No. 116668, July 28, 1997).
cohabitation and Hence, mere cohabitation without proof of
owned in common contribution will not result in a co-ownership
without the consent of
(Tumlos vs. Fernandez, G.R. NO. 137650,
the other until after the
termination of their April 12, 2000).
cohabitation.
Forfeiture
HOWEVER, in the case of Abing v. Waeyan
When only 1 of parties 1. If one of parties is
to void marriage is in validly married to (G.R. No.146294, July 31, 2006) the Supreme
good faith, share of another, his or her Court ruled that any property acquired by
party in bad faith in the share in the co- common law spouses during the period of
co-ownership shall be ownership shall cohabitation is presumed to have been
forfeited: accrue to the ACP or obtained through their joint efforts and owned
1. In favor of their CPG existing in such by them in equal shares in the absence of

33
 CIVIL LAW
PERSONS AND FAMILY RELATIONS
proof to the contrary. Rules on co- ownership
govern their property relations.
THE FAMILY
Basic social institution which public policy
cherishes and protects; hence, no suit
between members of the family shall prosper
unless a compromise between the parties has
failed. Family relations are governed by law
and no custom, practice or agreement
destructive of the family shall be recognized or
given effect.
Family Relation Includes that:
1. Between husband and wife
2. Between parents and children
3. Among other ascendants and
descendants
4. Among brothers and sisters whether full or
halfblood (Art. 150)
Mandatory Prior Recourse to Compromise
No suit between members of the same family
shall prosper UNLESS it appears from the
verified complaint or petition that earnest
efforts toward a compromise have been made,
and that the same have failed. If it is shown
that no such efforts were, in fact, made, the
case must be dismissed (Art. 151, NCC).
Exceptions:
1. When a stranger is involved in the suit
2. In cases where compromise is invalid
under the Civil Code: (CV JAFF)
a. Civil status of persons
a. Validity of marriage or a legal
separation
b. Jurisdiction of courts
b. Any ground for legal separation
c. Future support
d. Future legitime
Family Home
It is constituted jointly by the husband and wife
or by an unmarried head of a family; is the
dwelling house where they and their family
reside, and the land on which it is situated.
(Art. 152)
General Rule: The family home is exempt
from execution, forced sale or attachment.
Rationale: When the creditors seize the family
house, they virtually shatter the family itself.
Exceptions: (PLMN)
1. Debts incurred prior to constitution;
2. Debts due to laborers, mechanics,
architects, builders, material men and
34
others who have rendered service or
furnished materials for the construction of
the building;
3. Debts secured by mortgages on family
home;
4. Nonpayment of taxes on home (Art. 155)
Note: If ever the family home is subject of
an attachment, the beneficiaries thereof
have to move for the quashal of the writ of
attachment. If no motion for the quashal of
the writ or attachment or levy is filed, the
benefit of exemption is considered waived
(Honrado v. Court of Appeals, G.R. No.
166333, November 25, 2005)
Guidelines:
1. Constituted on the dwelling house of the
family and the land on which house is
situated
2. Deemed constituted from time of actual
occupation as a family residence
3. Continues to be such as long as any of its
beneficiaries actually resides therein.
4. Must be part of the properties of the
absolute community or the conjugal
partnership or owned by person
constituting it (may be either or both
spouses or the single head of a family)
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.
5. Must be permanent
6. Rule applies to valid and voidable and
even to common-law spouses under
Articles 147 and 148
7. Continues despite death of one or both
spouses or unmarried head of the family
for 10 years, or as long as a minor
beneficiary lives therein. Heirs cannot
partition the same unless the court finds
compelling reasons therefor. (Art. 159).
Beneficiaries are:
a. Husband and wife or unmarried
person who is the head of family
b. Their parents, ascendants,
descendants, brothers and sisters,
legitimate or illegitimate, who are living
in the family home and depend upon
the head of family for legal support
(Art. 154)
c. In-laws, provided the home is jointly
constituted by husband and wife
(Manacop vs. CA, G.R. No. 102855
November 13, 1992)
After 10 years and a minor beneficiary
still lives therein, the family home shall
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS

be preserved only until that minor Legitimate Illegitimate

beneficiary reaches the age of bigamous and
majority. The intention of the law is to incestuous marriages
safeguard and protect the interests of and marriage declared
void for being contrary
the minor beneficiary until he reaches
to law and public policy
the age of majority (Perla G. Patricio (Art. 165)
vs. Marcelino G. Dario III, G.R. No. Conceived or born
170829, November 20, 2006). before the judgment of
Born after the decree of
annulment or absolute
annulment of a voidable
8. Can constitute one (1) family home only. nullity of marriage if
marriage
ground is psychological
Note: The family home may be alienated, sold, incapacity (Art. 54)
donated, assigned or encumbered by the Born in a subsequent
owners provided that the person who void marriage due to
failure to comply with
constituted the same, his or her spouse and
Art. 52 and 53 (Art. 54)
majority of the beneficiaries of legal age give Product of artificial
their consent. (Art. 158) insemination provided
both spouses authorized
The family home cannot be the subject of or ratified such
partition after the death of the father when they procedure in a written
became co-owners. The family home is instrument, executed
shielded from immediate partition under Article and signed before birth
159. The rights of the individual co-owner of of child and recorded
the family home cannot subjugate the rights (Art. 164)
Conceived or born of
granted under Article 159 to the beneficiaries
mothers who might have
of the family home. Hence, the prohibition in declared against its
Article 159 of the Family Code applies even if legitimacy or was
the family home has passed by succession to sentenced as an
the co-ownership of the heirs or even if it has adulteress (Art. 167)
been willed to anyone of them (Arriola v. Legally Adopted
Arriola, G.R. No. 177703, January 28, 2008). Legitimated: conceived
and born outside of
wedlock of parents
PATERNITY AND FILIATION without impediment at
the time of conception
Paternity and filiation refers to the and had subsequently
relationship existing between parent and child. married
Use of Surname
Paternity the civil status relationship of the Right to bear fathers Required to use
surname mothers surname
father to the child
Parental Authority
Joint authority of Sole parental authority
Filiation the civil status or relationship of the parents of mother
child to the father or mother. Support
Preferential right to
The filiation of children may be by nature or by support over mother if
adoption. Natural filiation may be legitimate or father has no sufficient No such preference
illegitimate. (Art. 163) means to meet both
claims
Successional Right
Entitled to of
Entitled to inheritance legitimate childs
inheritance
Beneficiary Right Under the SSS and GSIS
Not primary
Primary beneficiary
beneficiaries
Legitimate and Illegitimate Children Paternity Leave
Distinguished Father is entitled to No such benefit
paternity leave of 7 days
Legitimate Illegitimate with full pay
Conceived or born Conceived and born
during a valid marriage outside a valid marriage Rule on Children Conceived as a Result of
(Art. 164) or inside a void ab initio Artificial Insemination
marriage such as

35
 CIVIL LAW
PERSONS AND FAMILY RELATIONS
The status of the child is legitimate if all the
conditions are complied with. The failure of the
husband or wife to authorize or ratify the
insemination in a written instrument executed
and signed before the birth of the child is only
a ground for impugning the childs legitimate
status.
Rules on Impugning Legitimacy
Grounds: (PBA)
1. Physical impossibility of the
husband to have sexual intercourse with
his wife within the 1st 120 days of the 300
days immediately preceding the childs
birth, due to:
1. Physical incapacity of the husband;
2. Husband and the wife were living
separately; or
3. Serious illness of the husband which
absolutely prevented sexual
intercourse
2. Biological or scientific proof
that the child could not have been that of
the husband; and
3. Written authorization or
ratification of either parent for artificial
insemination was obtained through
mistake, fraud, violence, intimidation or
undue influence (Art. 166)
Prescriptive Periods:
One year, from knowledge of birth or
recording in the civil register, if husband or
heirs live in the SAME city/municipality
Two years, if both reside in the Philippines.
Three years, if the childs birth took place
or was recorded in the Philippines while
the husband has his residence abroad, or
vice versa (Art. 170)
Note: The question of legitimacy cannot be
collaterally attacked. It can be impugned only
in a direct action.
Parties
General Rule: Only the husband may impugn.
Exception: The heirs may impugn within the
same period in the following cases:
1 If the husband dies before the expiration of
the period fixed for bringing his action
2 If he should die after the filing of the
complaint without having desisted
therefrom; or
3 If the child was born after the husbands
death (Art. 171).
The child shall be considered legitimate
although the mother may have declared
36
against its legitimacy or may have been
sentenced as an adulteress. (Art. 167)
An assertion by the mother against the
legitimacy of her child cannot affect the
legitimacy of the child born or conceived within
a valid marriage. A mother has no right to
disavow a child because maternity is never
uncertain (Concepcion v. CA, GR No 123450,
August 31, 2005).
The death of the putative father does not ipso
facto negate the application of DNA testing for
as long as appropriate biological samples of
his DNA exist. In such a case the petitioner
must show the impossibility of obtaining an
appropriate biological sample that can be
utilized for the conduct of DNA testing (Estate
of Rogelio Ong v. Diaz, G.R. No. 171713,
December 17, 2007).
Rule on Status of Children Born after 300
days following Termination of Marriage
Requisites: (TSWBN)
1. First marriage terminated
1. Mother contracted subsequent marriage
2. Subsequent marriage was contracted
within 300 days after termination of
previous marriage
3. Child was born
4. No evidence as to status of child
Rules as to Whom the Child Belongs:
1. To first marriage, if child was born
before the lapse of 180 days after
celebration of 2nd marriage, provided it was
born within 300 days after termination of
the 1st marriage.
1. To second marriage, if child was born
after 180 days following celebration of 2 nd
marriage, whether born within 300 days
after termination of 1st marriage or
afterwards (Art. 168).
Note: 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 illegitimacy or
illegitimacy. (Art. 169)
Proof of Filiation
General Rule: Filiation of legitimate (or
illegitimate) children is established by any of
the following: (RA)
1. The record of birth appearing in the civil
registry or a final judgment
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
2. An admission of legitimate (or illegitimate)
filiation in a public document or a private
handwritten instrument and signed by the
parent concerned.
Exceptions: In the absence of any of the
foregoing evidence, such legitimate or
illegitimate filiation shall be proved by: (OA)
1. Open and continuous possession of the
status of a legitimate or illegitimate child;
2. Any other means allowed by the Rules of
Court and special laws (Art. 172).
a. An act or declaration concerning
pedigree. (Sec. 33, Rule 130, Rules of
Court)
b. Family reputation or tradition
concerning pedigree. (Sec. 34, Rule
130, Rules of Court)
c. Common reputation respecting
pedigree. (Sec. 35, Rule 130, Rules of
Court)
d. Judicial admission. (Sec. 2, Rule 129,
Rules of Court)
e. Admission of a party. (Sec. 22, Rule
130, Rules of Court)
f. Admission by silence. (Sec. 23, Rule
130, Rules of Court)
Baptismal certificate, judicial admission,
family bible, evidence of pedigree,
admission by silence, testimonies of
witnesses and other pieces of evidence
under Rule 130, Rules of Court may be
proofs of filiation (Cruz vs. Cristobal, G.R.
No. 148247,August 7, 2006).
In Dela Cruz vs. Garcia (G.R. No. 177728,
July 31, 2009), a handwritten
autobiography of the father was
recognized as evidence of filiation
although not signed. The Court ruled that
where the private handwritten instrument
is accompanied by other relevant and
competent evidence, it suffices that the
claim of filiation therein be shown to have
been made and handwritten by the
acknowledging parent as it is merely
corroborative of such other evidence.
Action to Claim Legitimacy (Art. 173)
Who may claim:
1. Child exclusive and personal right of
child which may be brought anytime during
his lifetime
2. Transmitted to heirs of the child within a
period of 5 years in case
a. Child dies during minority
b. Child dies in a state of insanity
c. Child dies after action has already
been instituted
Action to Claim Illegitimacy
Illegitimate children may establish their
illegitimate filiation in the same way and on the
same evidence as legitimate children. (Art.
175)
When filiation of illegitimate child is
established by a record of birth in the civil
register or a final judgment, or an admission of
filiation in a public document or a private
handwritten instrument signed by the parent
concerned, the action for recognition may be
brought by the child during his lifetime. If the
action is based upon open and continuous
possession of the status of an illegitimate
child, or any other means allowed by the rules
or special laws, it may be only brought during
the lifetime of the alleged parent (Michael C.
Guy, vs. CA, G.R. No. 163707, September 15,
2006).
The right to claim for status is NOT
transmissible to the heirs.
Notes:
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 is continuous. The
possession of such status means that, the
father has treated the child as his own,
directly and not through others,
spontaneously, and without concealment,
though without publicity. There must be a
showing of permanent intention of the
supposed father to consider the child as his
own by continuous and clear manifestation
of paternal affection and care (Mendoza vs.
CA, G.R. No. 86302 September 24, 1991).
The paternal affection and care must not be
attributed to pure charity. Such acts must
be of such a nature that they reveal not
only the conviction of paternity, but also the
apparent desire to have and treat the child
as such in all relations in society and in life,
not accidentally, but continuously. (Jison
vs. CA, GR. No. 8454, April 13, 1956).
If the unsigned record of birth can be a
proof of filiation of the child, it would be
easy for a woman to vest legitimate status
to an illegitimate child. Hence, an
unsigned record of birth cannot be used as
proof of filiation (Reyes v. Court of
Appeals, GR. 39537, March 19, 1985).
Rights of Children
Legitimate Illegitimate
Use of father & Use of mothers
37
 CIVIL LAW
PERSONS AND FAMILY RELATIONS

mothers surname surname No. 9858, which was approved on December

20, 2009 and has amended Article 177 of the
Note: However, R.A. Family Code of the Philippines. Previously,
9255 amended Art. Article 177 stated that only children born out of
176, FC wedlock to parents who were not disqualified
Receive support from Receive support only from getting married at the time of conception
ascendants or up to grandparent could be legitimized. Legitimation would
descendants of the and grandchildren automatically take place upon marriage of the
same line. parents. Moreover, couples who had children
Entitled to the legitime Legitime is of the when they were below the marrying age would
in succession legitime of a not need to go through the process of having
legitimate child to adopt their own offspring just so their kids
Right to inherit ab No right to inherit as could enjoy the rights of legitimate children.
intestato from such
legitimate children and The annulment of a voidable marriage shall
relatives of his father not affect the legitimation.
and mother
Legitimated children shall enjoy the same
R.A. 9255 rights as legitimate children. (Art. 179)
An Act Allowing Illegitimate Children to use the
surname of their Father, amending for the The effects of legitimation shall retroact to the
purpose Article 176 of EO No. 209, otherwise time of the childs birth. (Art. 180)
known as the "FAMILY CODE OF THE
PHILIPPINES" (Approved February 24, 2004) The legitimation of children who died before
the celebration of the marriage shall benefit
Illegitimate children may use the surname their ascendants. (Art. 181)
of their father if:
1. Their filiation has been expressly Legitimation may be impugned only by those
recognized by the father through the who are prejudiced in their rights.
record of birth appearing in the civil These include those who would suffer
register, or economic or material injury by legitimation
2. When an admission in a public document such as testamentary or intestate heirs.
or private handwritten instrument is made Creditors are excluded.
by the father; Provided, that the father has
the right to institute an action before the Legitimation may be impugned within 5 years
regular courts to prove non-filiation during from the time their cause of action accrues,
his lifetime. that is, from the death of the putative parent.

Legitimation Legitimation may be impugned on grounds

It is a remedy by means of which those who in like:
fact were conceived and born outside of 1. The subsequent marriage of the childs
wedlock and should therefore be considered parents is void;
illegitimate are by fiction considered legitimate. 2. The child allegedly legitimated is not
It shall take place only by the subsequent valid natural; or
marriage between the biological parents. 3. The child is not really the child of the
alleged parents.
Requisites: (NIM)
1. The child is illegitimate.
2. The parents at the time of the childs
conception are not disqualified by any
impediment from marrying each other or
were so disqualified only because either or
both of them were below eighteen (18)
years of age.
3. There is a valid marriage subsequent to
the childs birth. ADOPTION

Note: Children born out of wedlock to parents The process of making a child, whether related
who were not allowed by law to marry for or not to the adopter, possess in general,
being minors are now qualified for legitimation. rights accorded to a legitimate child.
This has been made possible by Republic Act

38
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
Nature of Adoption Proceedings
1. Adoption proceedings are always
JUDICIAL and there can be no valid
adoption without a court decree granting
the same.
2. Adoption proceedings are IN REM and
publication serves as constructive notice
to the whole world.
Domestic Adoption Act of 1998 (R.A. 8552)
Who may adopt: (CLEPONG)
1. Filipino Citizen:
a. Of legal age
b. In a position to support and care for
his/her children in keeping with the
means of the family
c. Good moral character
d. In possession of full civil capacity or
legal rights
e. At least 16 years older than the
adoptee, except when:
i. Adopter is the biological parent of
the adoptee
ii. Adopter is the spouse of the
adoptees parent
f. Has not been convicted of any crime
involving moral turpitude
g. Emotionally and psychologically
capable of caring for children
2. Alien (CLEPONG-DELLS)
a. Same qualifications as a Filipino
b. Country has diplomatic relations with
the Phil.
c. Has been living in the Philippines for
at least three (3) continuous years
prior to the application for adoption
and maintains such residence until the
adoption decree is entered, except
when
i. A former Filipino citizen seeks to
adopt a relative within the 4 th
degree of consanguinity or affinity
i. One who seeks to adopt the
legitimate son/daughter of his/her
Filipino spouse
ii. One who is married to a Filipino
citizen and seeks to adopt jointly
with his/her spouse a relative
within the 4th degree of
consanguinity or affinity of the
Filipino spouse
d. Certified to have legal capacity to
adopt by his/her diplomatic or consular
office but certification may be waived
in the same instances for waiver of
residency requirement in (c)
e. Certified by said office that his
government allows the adoptee to
enter his country as his adopted child
3. Guardian (TC)
a. After termination of the guardianship,
with respect to the ward, and
b. Clearance of his/her financial
accountabilities
PreAdoption Services
The DSWD shall provide for the following
services:
1. Counseling services for
a. biological parents,
b. prospective adoptive parents and
c. prospective adoptee
2. Exhaust all efforts to locate the unknown
biological parents
Rule on Adoption by Spouses
General Rule: The husband and the wife shall
JOINTLY adopt.
Exceptions: (LIS)
1. One spouse seeks to adopt the legitimate
child of the other spouse
2. One spouse seeks to adopt his/her own
illegitimate child with the consent of the
other spouse
3. The spouses are legally separated
Who May Be Adopted: (DARILL)
1. Any person below 18 years of age who
has been voluntarily committed to the
DSWD under P.D. 603 or judicially
declared available for adoption
2. Legitimate child of the other spouse
3. Illegitimate child of a qualified adopter to
improve the childs status
4. A person of legal age, who, prior to the
adoption, has been consistently
considered by the adopter as his/her own
child since minority
5. Child whose adoption has been previously
rescinded
6. Child whose biological or adoptive parents
have died, provided that no proceedings
shall be initiated within 6 months from the
time of death of said parents
Consent in Adoption (BAILS)
The written consent of the following is
required:
1. The adoptee, if he is 10 years of age or
older;
2. Known biological parents or legal
guardians or proper government
instrumentality which has legal custody of
the child;
3. Legitimate/Adopted children, 10 years old
or over, of the adopter;
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 CIVIL LAW
PERSONS AND FAMILY RELATIONS
4. The illegitimate children, 10 years old or
over, of the adopter if living with the
adopter and the latter's spouse;
5. Spouse of the adopter and adoptee
Note: An alleged capability to support an
adoptee through the help of other persons is
not enough to support a petition for adoption.
According to the SC, adoption is personal
between the adopter and adoptee; the adopter
should be in a position to support the would-be
adopted child in keeping with the means of the
family.(Landingin vs Republic, GR No 164948,
June 27, 2006).
Sec.9 of R.A. 8552 provides that if the written
consent of the biological parents cannot be
obtained, the consent of the legal guardian
must be sought. To dispense with the
requirement of written consent, the
abandonment must be shown to have existed
at the time of adoption and evinces a settled
purpose to forego all parental duties. The
written consent of the biological parents is
indispensable for the validity of a decree of
adoption. The natural right of parent to child
requires that consent be obtained before
parental rights and duties may be terminated
and re-established in adoptive parents.
(Landingin vs. Republic, GR No 164948, June
27, 2006).
Effectivity of Decree of Adoption
A decree of adoption shall be effective as of
the date the original petition was filed. This
applies also in case petitioner dies before the
issuance of the adoption decree, to protect the
interest of the adoptee.
Note: In Tamargo vs. CA (209 SCRA 518,
G.R. No. 85044 June 3, 1992), where the
petition for adoption was granted after the
child had shot and killed a girl, the SC did not
consider the retroactive effect of the decree of
adoption so as to impose a liability upon the
adopting parents accruing at the time when
they had no actual or physical custody over
the adopted child. It held that retroactive effect
may be given where such is essential to permit
the accrual of some benefit or advantage in
favor of the adopted child. To hold that
parental authority had been retroactively
lodged in the adopting parents so as to burden
them with liability for a tortuous act that they
could neither have foreseen nor prevented
would be unfair and unconscionable
Middle Name of Adopted Child
The illegitimate child subsequently adopted by
his/her natural father is permitted to use as her
40
middle name the surname of her natural
mother for the following reasons:
1. It is necessary to preserve and maintain
the childs filiation with her natural mother
because under Art. 189 of the Family
Code, she remains to be an intestate heir
of the latter. To prevent any confusion and
needless hardship in the future, her
relationship or proof of that relationship
with her natural mother should be
maintained;
2. There is no law expressly prohibiting the
adopted to use the surname of her natural
mother as her middle name. What the law
does not prohibit, it allows; and
3. It is customary for every Filipino to have a
middle name, which is ordinarily the
surname of the mother (In the Matter of
the Adoption of Stephanie Nathy Astorga
Garcia, G.R. No. 148311, March 31,
2005).
Effects of Adoption: (SAL)
1. Severance of legal ties between the
biological parents and the adoptee, which
shall be vested in the adopters.
Exception: if the biological parent is the
spouse of the adopter
2. Adoptee shall be considered as a
legitimate child of the adopter(s) for all
intents and purposes.
3. In legal or intestate succession, the
adoptee and the adopter(s) shall have
reciprocal rights of succession without
distinction from legitimate filiation.
However, if there is a will, the rules on
testamentary succession shall be followed.
Rescission of Adoption - by ADOPTEE
ONLY
Grounds: (ASAR)
1. Attempt on the life of the adoptee
1. Sexual assault or violence
2. Abandonment and failure to comply
with parental obligations
3. Repeated physical or verbal
maltreatment by the adopter despite
having undergone counseling
Note: Adoption shall not be subject to
rescission by the adopters. However, the
adopters may disinherit the adoptee for
causes provided under Art 919 of the Civil
Code.
An adoptee refused to use the surname of the
adopter though already adopted. The adopter
sought to rescind/revoke the Decree of
Adoption (DOA), but the Domestic Adoption
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2011 CENTRALIZED BAR OPERATIONS
Act (R.A. 8552) which removes the right of
adopter to challenge the validity of the DOA
became effective. SC held that the adopter
may disinherit the adoptee, and that the latter
has the sole right to challenge the DOA
(Lahom v. Sibulo, GR No 143989, July 14,
2003).
Disinheritance of Adoptee by Adopter
Grounds: (Art. 919, NCC) (GAMM-CARD)
1. Groundless accusation against the testator
of a crime punishable by six (6) years or
more imprisonment
2. Found guilty of an attempt against the life
of the testator, his/her spouse,
descendants or ascendants
3. Causes the testator to make or changes a
testators will through violence,
intimidation, fraud or undue influence
4. Maltreatment of the testator by word or
deed
5. Conviction of a crime which carries the
penalty of civil interdiction
6. Adultery or concubinage with testators
spouse
7. Refusal without justifiable cause to support
the parent or ascendant
8. Leads a dishonorable or disgraceful life.
Effects of Rescission (PAROS)
1. Parental authority of adoptees biological
parents or legal custody of DSWD shall be
restored if adoptee is still a minor or
incapacitated.
2. Reciprocal rights and obligations of the
adopter(s) and the adoptee to each other
shall be extinguished.
3. Amended certificate of birth of the adoptee
shall be cancelled and its original shall be
restored.
4. Succession rights shall revert to their
status prior to the adoption, but vested
rights shall be respected.
Being a legitimate child by virtue of adoption, it
follows that the child is entitled to all the rights
provided by law to a legitimate child. The
adopted child remains an intestate heir of
his/her biological parents. Hence, she can well
assert her hereditary rights from her natural
mother in the future (In the matter of adoption
of Stephanie Nathy Astorga Garcia, GR No
148311 March 31, 2005).
Simulation of Birth
A crime defined and punished by RA 8552
committed by any person who shall cause the
fictitious registration of the birth of a child
under the names of persons who are not
his/her biological parents.
Inter-Country Adoption Act of 1995 (R.A.
8043)
The socio-legal process of adopting a Filipino
child by a foreigner or a Filipino citizen
permanently residing abroad where the
petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is
issued outside the Philippines.
Who May Be Adopted
Only a legally-free child may be the subject
of inter-country adoption
Note:
Legally-free Child a child who has been
voluntarily or involuntarily committed to the
DSWD of the Philippines, in accordance
with the Child Youth and Welfare Code.
No child shall be matched to a foreign
adoptive family unless it is satisfactorily
shown that the child cannot be adopted
locally.
There shall be no physical transfer of a
voluntarily committed child earlier than six
(6) months from the date of execution of
Deed of Voluntary Commitment except:
1. Adoption by a relative
2. Children with special medical
conditions
Who May Adopt:
1. Any alien or
2. Filipino citizen, both permanently residing
abroad
Conditions: (PD-CAN-JERQ)
1. At least 27 years of age and at least 16
years older than the child to be adopted, at
the time of the application unless the
adopter is:
a. Parent by nature of the child to be
adopted or
b. Spouse of such parent
2. If married, his/her spouse must jointly file
for the adoption
3. Capacity to act and assume all rights and
responsibilities of parental authority under
his/her national laws, and has undergone
the appropriate counseling from an
accredited counselor in his/her country
4. Has not been convicted of a crime
involving moral turpitude
5. Eligible to adopt under his/her national law
6. In a position to provide the proper care
and support and to give the necessary
moral values and examples to all his
children, including the child to be adopted
7. Agrees to uphold the basic rights of the
child as embodied under Philippine laws,
the U.N. Convention on the Rights of a
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 CIVIL LAW
PERSONS AND FAMILY RELATIONS

Child, and to abide by the rules and
regulations issued to implement the Inter
Country Adoption Act
8. Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and that
adoption is allowed under his/her national
laws
9. Possesses all the qualifications and none
of the disqualifications under the Inter
Country Adoption Act and other applicable
Philippine laws
1. Consent for adoption was acquired
through or attended by coercion, fraud,
improper material inducement
1. Procedures and safeguards provided
by law for adoption were not complied with
2. Has exposed or subjected the child to
be adopted to danger, abuse or
exploitation
3. No authority to effect adoption from
the Board
SUPPORT

Inter-Country Adoption Board Support comprises everything indispensable

Acts as the central authority in matters for sustenance, dwelling, clothing, medical
relating to inter-country adoption. attendance, education and transportation in
keeping with the financial capacity of the
The Board shall ensure that all possibilities
family (Art. 194).
for the adoption of the child under the
Family Code have been exhausted and
Kinds: (LJC)
that intercountry adoption is in the best
1. Legal one required or given by law;
interest of the child.
2. Judicial required by the court to be given
whether pendente lite or in a final
Trial Custody: 6 months from the time of
judgment;
placement
3. Conventional given by agreement.
1. Starts upon actual physical transfer of the
child to the applicant who, as actual
Characteristics: (MR P2INE)
custodian, shall exercise substitute
1. Personal
parental authority over the person of the
2. Intransmissible
child.
3. Not subject to waiver or compensation
2. The adopting parent(s) shall submit to the
4. Exempt from attachment or execution
governmental agency or authorized and
5. Reciprocal on the part of those who are by
accredited agency, which shall in turn
law bound to support each other
transmit a copy to the Board, a progress
6. Provisional character of support judgment
report of the childs adjustment.
7. Mandatory
Notes:
Persons Obliged to Support Each Other:
If the pre-adoptive relationship is found
1. Spouses
unsatisfactory by the child or the applicant
2. Legitimate ascendants and descendants
or both, or if the foreign adoption agency
3. Parents and their legitimate children, and
finds that the continued placement of the
the legitimate and illegitimate children of
child is not in the childs best interest, said
the latter
relationship shall be suspended by the
4. Parents and their illegitimate children, and
Board and the foreign adoption agency
the legitimate and illegitimate children of
shall arrange for the childs temporary
the latter
care.
5. Legitimate brothers and sisters whether
If a satisfactory pre-adoptive relationship is full or half-blood (Art. 195)
formed between the applicant and the
Brothers and sisters NOT legitimately
child, the Board shall submit the written
related whether full or half-blood are
consent to the adoption to the foreign
likewise entitled to support to the full
adoption agency within 30 days after
extent under Art. 194 except when the
receipt of the latters request.
need for support of the brother or
A copy of the final decree of adoption of sister, being of age, is due to a cause
the child, including certificate of imputable to claimants fault or
citizenship/naturalization whenever negligence (Art. 196)
applicable, shall be transmitted by the For support of legitimate ascendants,
foreign adoption agency to the Board descendants (legitimate/illegitimate), brothers
within 1 month after its issuance. and sisters (legitimate/illegitimate), only
separate property of person obliged to give
Presumption of Illegal Adoption: (CPEN) support shall be answerable. In the absence of

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 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
separate property, the CPG or ACP shall
advance support deductible from share of
spouse obliged upon liquidation. (Art. 197)
If legitimate descendants are the common
children of the spouse or legitimate children of
either spouse, the ACP or CPG shall be
principally charged for their support (Art. 94(1)
and Art. 121(1)). This is different from personal
support owing to them from the father or
mother as provided in Art. 194 and 197.
Order of Liability if Several Persons
Obliged To Give Support (SDAB)
1. Spouse
1. Descendants in the nearest degree
2. Ascendants in the nearest degree
3. Brothers and sisters (Art. 199)
If the obligation to give support falls upon two
or more persons, payment shall be divided
between them in proportion to their resources.
In case of urgent need and special
circumstances, the court may order only one
of them to furnish support provisionally subject
to the right to claim from the others the share
due them.
When two or more recipients at the same time
claim for support and the person legally
obliged to give does not have sufficient means
to satisfy all claims:
1. The order of liability provided by law shall
be followed.
1. If the concurrent obligees should be the
spouse and a child subject to parental
authority, the child shall be preferred. (Art.
200)
Support from Stranger
1. When, without 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 from the former, unless
it appears that he gave it without any
intention of being reimbursed. (Art 206)
2. 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, with a right of
reimbursement from the person obliged to
give support. (Art. 207)
Support Pendente Lite (Art. 198)
During the proceedings for legal
separation or for annulment of marriage,
and for declaration of nullity of marriage,
the spouses and their children shall be
supported from the properties of the
absolute community or the conjugal
partnership.
Mutual support between the spouses
ceases after final judgment.
In case of Legal Separation, the court
may order the guilty spouse to support
the innocent spouse.
Amount
It shall be in proportion to the resources or
means of the giver and to the necessities of
the recipient. (Art. 201) It shall be increased or
reduced proportionately, according to the
increase or reduction of necessities of the
recipient and the resources or means of the
person obliged. (Art. 202)
Support is rooted on the fact that the right and
duty to support, especially the right to
education, subsists even beyond the age of
majority (Estate of Hilario M. Ruiz vs. CA, G.R.
No. 118671, January 29, 1996).
Demand for Support
The obligation to give support shall be
demandable from the time the person who has
a right to receive the same needs it for
maintenance, but it shall not be paid except
from the date of judicial or extrajudicial
demand. (Art 203)
Payment of the amount for support starts only
from the time support has been judicially or
extra-judicially demanded for the right to
support does not arise from the mere fact of
relationship but from imperative necessity
without which it cannot be demanded, and the
law presumes that such necessity does not
exist, unless support is demanded (Jocson vs.
Empire Insurance Co., G.R. No. L-10792, April
30, 1958).
As to how the obligation to support can be
performed, Art. 204 provides that the person
obliged to give support shall have the option to
fulfill the obligation either by paying the
allowance fixed, or by receiving and
maintaining in the family dwelling the person
who has the right to receive support. The latter
alternative cannot be availed of in case there
is a moral or legal obstacle thereto, such as
the strained relationship between the parties.
(Ma. Belen B. Mangonon vs. CA, G.R. No.
125041, June 30, 2006).
Exemption from Attachment or Execution
The right to receive support as well as money
or property obtained as such support shall not
be levied upon on attachment or execution
(Art. 205). But in case of contractual support or
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 CIVIL LAW
PERSONS AND FAMILY RELATIONS
that given by will, the excess in amount
beyond that required for legal support shall be
subject to levy on attachment or execution
(Art. 208).
PARENTAL AUTHORITY (PA)
It is the sum total of the right of the parents
over the persons and property of their
unemancipated children. It is pursuant to the
natural right and duty of parents over the same
and it includes caring for and rearing of such
children for civic consciousness and efficiency
and the development of their moral and
physical character and well-being. (Art. 209)
Note: Parental authority and responsibility are
inalienable and may not be transferred and
renounced except in cases authorized by law.
Rules as to the Exercise of PA
1. Joint parental authority by the father
and mother over the persons of their
common children. In case of
disagreement, the fathers decision shall
prevail unless there is a judicial order to
the contrary (Art. 211)
1. If the child is illegitimate, parental
authority is with the mother unless the
father is certain and the illegitimate
children are living with the said father and
mother who are cohabiting without the
benefit of marriage or under a void
marriage not falling under Art. 36 and 53.
Note: An illegitimate child is under the parental
authority of the mother pursuant to Art 176 of
the Family Code. The recognition by the father
could be a ground for ordering him to give
support, but not custody of the child. Only if
the mother defaults can the father assume
such custody or authority. Only the most
compelling of reasons, such as the mothers
unfitness to exercise sole parental authority
shall justify deprivation of her parental
authority and the award of custody to
someone else. (Briones vs. Miguel, G.R. No.
156343 October 18, 2004).
44
Duties of Children towards their Parents
1. To observe respect and reverence toward
their parents;
2. To obey their parents as long as they are
under their parental authority.
Rule of Filial Privilege
No descendant shall be compelled, in a
criminal case, to testify against his parents and
grandparents, except when such testimony is
indispensable in a crime against the
descendant or by one parent against the
other(Art. 215)
Parental Preference Rule
The natural parents, who are of good moral
character and who can reasonably provide for
the child, are ordinarily entitled to custody as
against all other persons.
Rule in Case of Absence or Death of Either
Parent
1. In case of absence of either parent: the
parent present
2. In case of death of either parent: the
parent present
3. In case of remarriage of the surviving
parent: the surviving parent UNLESS the
court appoints a guardian.(Art. 212)
Rule in Case of Death, Absence or
Unsuitability of BOTH Parents
1. Substitute parental authority shall be
exercised by the surviving grandparents.
2. In case several survive, the one
designated by the court. (Art. 214)
Rule in Case of Legal Separation of Parents
Parental authority is exercised by the parent
designated by the court.
Maternal Preference/ Tender Years Rule
General Rule: No child under 7 years of age
shall be separated from the mother.
Exception: When the court finds compelling
reason to order otherwise. The welfare and
well-being of the child is the paramount
consideration in awarding custody.
Persons Exercising Substitute PA in
Default of Parents or Judicially Appointed
Guardian (Art. 216)
1. Surviving grandparent
2. Oldest brother or sister over 21 years of
age unless unfit or disqualified
3. Actual custodian over 21 years of age
unless unfit or disqualified
The same order of preference shall be
observed when appointment of guardian over
 San Beda College of Law
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property of child becomes necessary. the unemancipated minor.

The parents, judicial guardians or
Note: The person exercising substitute Persons Exercising Substitute PA shall
parental authority shall have the same be subsidiarily liable.
authority over the person of the child as the
parents. (Art. 233) Note: Liability will not attach if it is proved they
exercised the proper diligence required under
Rule in Case of Foundlings, Abandoned, the particular circumstances. (Art. 219)
Neglected or Abused Children and Other
Children Similarly Situated. Effects of Parental Authority
Parental Authority shall be entrusted in
summary judicial proceeding to: A. Upon the Person of the Children
1. Heads of childrens homes,
2. Orphanages, or Rights and Duties of Parents and those
3. Similar institutions duly accredited by the Exercising Parental Authority (Art. 220)
proper government agency. (Art. 217) 1. To keep them in their company, to support,
educate and instruct them by right precept
Persons Exercising Special PA over Minor and good example, and to provide for their
Children under their Supervision, upbringing in keeping with their means;
Instruction or Responsibility with Respect 2. To give them love and affection, advice
to their Activities whether Inside or Outside and counsel, companionship and
School (Art. 218) understanding;
1. School 3. To provide them with moral and spiritual
No distinction between academic or guidance, inculcate in them honesty,
non-academic integrity, self-discipline, self-reliance,
industry and thrift, stimulate their interest
1. Administrators and teachers in civic affairs, and inspire in them
2. Individual, entity or institution engaged compliance with the duties of citizenship;
in child care 4. To furnish them with good and wholesome
educational materials, supervise their
Note: In no case shall the persons exercising activities, recreation and association with
special parental authority inflict corporal others, protect them from bad company,
punishment upon the child.(Art. 233) and prevent them from acquiring habits
detrimental to their health, studies and
Special Parental Authority and Substitute morals;
Parental Authority Distinguished 5. To represent them in all matters affecting
Special PA Substitute PA their interests;
Rests on the theory that 6. To demand from them respect and
while the child is in the obedience;
care and custody of the 7. To impose discipline on them as may be
Exercised in case of
person/s exercising
death, absence, or required under the circumstances; and
special parental 8. To perform such other duties as are
unsuitability of parents
authority, the parents imposed by law upon parents and
temporarily relinquish guardians.
parental authority
NOT exercised
Concurrent with
concurrently with the Measures to assist parent in imposing
parental authority discipline on the child (Art. 223)
exercise of parents
1. Parent or person exercising parental
Liability authority, may petition the proper court of
Vicarious Liability or Imputed the place where the child resides, for an
Negligence - Parents and other persons order providing for disciplinary measures
exercising PA shall be civilly liable for over the child.
injuries and damages caused by acts or This may include the commitment of
omissions of their unemancipated children the child for not more than thirty days
living in their company and under their PA in entities or institutions engaged in
subject to appropriate defenses provided child care or in children's homes duly
by law. (Art. 221) accredited by the proper government
Persons Exercising Special PA shall be agency.
principally and solidarily liable for The parent exercising parental
damages caused by acts or omissions of authority shall not interfere with the

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 CIVIL LAW
PERSONS AND FAMILY RELATIONS
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
and proper. (Art. 224)
2. There will be a summary hearing and the
child shall be entitled to the assistance of
counsel, either of his choice or appointed
by the court.
3. 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 and proper.
B. Upon the Property of the Children (Art.
225 and 226)
1. The father and the mother shall jointly
exercise legal guardianship over the
property of the unemancipated common
child without 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.
2. 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 ten per centum (10%) of the value of
the property or annual income, to
guarantee the performance of the
obligations prescribed for general
guardians.
3. The property of the unemancipated child
earned or acquired with his work or
industry or by onerous or gratuitous title
shall belong to the child in ownership and
shall be devoted exclusively to the latter's
support and education, unless the title or
transfer provides otherwise.
The right of the parents over the fruits
and income of the child's property
shall be limited primarily to the child's
support and secondarily to the
collective daily needs of the family.
46
Rule if the Parents Entrust the Management
or Administration of Any of Their
Properties of an Unemancipated Child
1. The net proceeds of such property shall
belong to the owner.
2. The child shall be given a reasonable
monthly allowance in an amount not less
than that which the owner would have paid
if the administrator were a stranger, unless
the owner, grants the entire proceeds to
the child.
3. The proceeds given in whole or in part
shall not be charged to the child's legitime.
(Art. 227)
Kinds of Properties of a Minor
Adventitious Profectitious
Earned or acquired by
Property given by the
the child through his
parents to the child for
work or industry by
the latter to administer
onerous or gratuitous title
Owned by the child Owned by the parents
Child is also the
usufructuary, but the
childs use of the
Parents are the
property shall be
usufructuary
secondary to the
collective daily needs of
the family
Property administered by Property administered
the parents by the child
Note: The courts may appoint a guardian of
the childs property, or a guardian ad litem
when the best interests of the child so require.
(Art. 222)
Grounds for Suspension of PA: (CHOBAN)
1. Conviction of a crime with the penalty of
civil interdiction
2. Harsh or cruel treatment against the child
3. Orders, counsel and example which are
corrupting, given by the person exercising
authority
4. Child is compelled to beg
5. Subjecting child or allowing child to be
subjected to acts of lasciviousness,
6. Negligence, which is culpable, committed
by the person exercising authority (Art.
231)
Note:
The suspension or deprivation may be
revoked and parental authority revived if
the court finds that the cause has ceased
and will not be repeated.
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
In case of civil interdiction, the authority is
automatically reinstated upon service of
penalty or pardon or amnesty of the
offender. There is no need of a court order.
Termination of Parental Authority
Permanent Temporary
Death of the parents Adoption of the child
Appointment of a
Death of the child
general guardian
Emancipation of the child Judicial declaration of
abandonment
Final judgment
If child is subjected to
divesting the parents of
sexual abuse (Art. 228)
parental authority
Judicial declaration of
absence or incapacity
of the parents
exercising parental
authority over the child
(Art. 229)
Under RA 7610 or Child Abuse Law (June 17,
1992), the State shall intervene on behalf of
the child when the parent, guardian, teacher or
person having care or custody of the child fails
or is unable to protect the child against abuse,
exploitation and discrimination or when such
acts against the child are committed by the
said parent, guardian, teacher or person
having care and custody of the same. Victims
of acts of neglect, abuse, cruelty or
exploitation and other conditions prejudicial to
the child's development shall be entrusted to
the care of the Department of Social Welfare
and Development.
EMANCIPATION
Emancipation takes place by the attainment of
majority. Unless otherwise provided, majority
commences at the age of eighteen years. (Art
234 as amended by RA 6809)
Effect or Emancipation
Emancipation for any cause shall terminate
parental authority over the person and
property of the child who shall then be
qualified and responsible for all acts of civil
life, save the exceptions established by
existing laws in special cases. (Art 236 as
amended by RA 6809)
SUMMARY JUDICIAL PROCEEDINGS IN
THE FAMILY LAW
Characteristics of Summary Proceedings in
the Family Code
1. The petition shall be verified to assure its
truthfulness.
2. Notice of the filing of the petition should
always be sent to the respondent at his or
her last known address, as part of due
process.
3. No periods are set and it is up to the judge
to determine the period within which the
respondent should answer the petition and
the hearing thereof, which should be very
short, considering that the proceedings are
summary.
4. There is a preliminary conference wherein
lawyers are excluded since in some cases,
they are only obstructions to a
compromise between the parties.
5. The appearance of the trial fiscal of the
court is not required, since he might just
be absent or come unprepared.
6. The preliminary conference should be
conducted personally by the judge in the
nature of an inquisitional hearing.
7. The proceeding can be decided on the
basis of affidavits or other documentary
evidence because of its summary nature,
and oral testimonies of witnesses will be
required only when needed and at the
discretion of the court.
8. The cases shall be decided in the most
expeditious manner and without regard to
technical rules.
9. The judgment of the court shall be
immediately final and executory.
FINAL PROVISIONS
Retroactive Effect
The Family Code shall have retroactive effect
insofar as it does not prejudice or impair
vested or acquired rights in accordance with
the Civil Code or other laws. (Art 256)
FUNERALS
General Guidelines:
1. Duty and right to make arrangement
for funerals is in accordance with right and
duty to support under Article 199, FC (Art.
305 NCC)
1. The funeral shall be in keeping with
the social position of the deceased (Art.
306 NCC)
2. The funeral shall be in accordance
with the expressed wishes of the
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 CIVIL LAW
PERSONS AND FAMILY RELATIONS
deceased
a. In the absence of the expressed
wishes, his religious beliefs or
affiliation shall determine funeral rites
b. In case of doubt, the persons in Art.
199, FC shall decide, after consulting
other members of the family (Art. 307
NCC)
3. No human remains shall be retained,
interred, disposed of or exhumed without
the consent of the persons in Art. 199, FC
(Art. 308 NCC)
4. Any person who disrespects the dead
or allows the same or wrongfully interferes
with a funeral shall be liable for damages
(Art. 309 NCC)
5. If the deceased is married, the
tombstone or mausoleum is deemed a
part of the funeral expense and
chargeable against ACP or CPG (Art. 310
NCC)
USE OF SURNAMES
Child Surname
Legitimate Surname of Father
Legitimated Surname of Father
Conceived before the
decree annulling a Surname of Father
voidable marriage
Illegitimate Surname of Mother
Adopted Surname of Adopter
Rules on the Surname of a Married Woman
1. A married woman may use:
a. Her maiden first name and surname
and add her husband's surname, or
b. Her maiden first name and her
husband's surname or
c. Her husband's full name, but prefixing
a word indicating that she is his wife,
such as "Mrs."(Art 370)
2. In case of annulment of marriage:
a. If the wife is the guilty party, she shall
resume her maiden name and
surname.
b. If she is the innocent spouse, she may
resume her maiden name and
surname. However, she may choose
to continue employing her former
husband's surname, unless:
i. The court decrees otherwise, or
ii. She or the former husband is
married again to another person.
(Art. 371)
3. When legal separation has been granted,
the wife shall continue using her name and
surname employed before the legal
separation. (Art. 372)
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4. A widow may use the deceased husband's
surname as though he were still living, in
accordance with Article 370. (Art. 373)
Identity of Names and Surnames
1. The younger person shall be obliged to use
such additional name or surname as will
avoid confusion. (Art. 374)
2. Between ascendants and descendants, the
word "Junior" can be used only by a son.
Grandsons and other direct male
descendants shall either:
a. Add a middle name or the mother's
surname, or
b. Add the Roman Numerals II, III, and so
on. (Art 375)
Article 375 restricts the use of Junior but
social usage allows the use of Junior
also for daughters.
General Rule: No person shall use different
names and surnames. (Art. 380)
Exception: Use of pen names or stage names
is permitted, PROVIDED it is done in good
faith and there is no injury to third persons (Art
379)
Note:
Usurpation of a name and surname may
be the subject of an action for damages
and other relief. (Art. 377)
The unauthorized or unlawful use of
another person's surname gives a right of
action to the latter. (Art. 378)
ABSENCE
ABSENCE is the legal status of a person who
has absented himself from his domicile and
whose whereabouts and fate are unknown, it
not being known with certainty whether he is
still living or not.
Different Stages of Absence: (PDP)
1. Provisional absence- When a person
disappears from his domicile, his
whereabouts being unknown, without
leaving an agent to administer his
property.
a. There is no declaration of absence yet
but legal representative may be
appointed only when urgent
representation is necessary and
applies only if no agent has been
appointed to represent the absentee
or agents authority has expired.
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS

b. The spouse is preferred as the legal Extraordinary/

Ordinary Absence
representative except when they are Qualified Absence
legally separated. circumstances:
c. If absentee left no spouse, any a. Person on board a
competent person any be appointed. vessel lost during
a sea voyage or
2. Declared absence except if he an airplane which
a. Without Administrator - When a disappeared after is missing; period
person disappears from his domicile, the age of 75, in is counted from
and 2 years have elapsed without any which case, a the loss of the
period of 5 years is vessel or airplane
news about him or since the receipt of sufficient b. Person in the
the last news, c. Absence of 4 armed forces who
b. With Administrator 5 years have YEARS, person had taken part in
elapsed presumed dead for war
purposes of c. Person in danger
The following may ask for the remarriage of the of death under
declaration of absence: spouse present other
i. Spouse present circumstances
and his existence
ii. Testate or Intestate heirs
has not been
iii. Other persons subordinated to known
rights by death.
The judicial declaration of absence
Note: A well- founded belief that the absentee
shall not take effect until six months
is already dead is required before an absent
after its publication in a newspaper of
spouse may be declared presumably dead.
general circulation. (Art. 386)
The requisites are:
An administrator of the absentees
1. Absent spouse has been missing for 4
property shall be appointed. years or 2 consecutive years if the
When the wife is appointed as an disappearance is under Art. 391 of the
administratrix, she cannot alienate Civil Code;
or encumber the husbands 2. Present spouse wishes to marry;
property or that of the conjugal 3. Present spouse has a well- founded belief
property without judicial authority. that the absent spouse is dead;
The administration shall cease 4. Present spouse files a summary
when: proceeding for the declaration of
i. Absentee reappears presumptive death of the absent spouse
personally or through an (Republic vs. Nolasco, G.R. NO. 14053,
agent March 13, 1993).
ii. Death is proven
iii. Third person appears and The legal requirement on the need for judicial
shows proof that he acquired declaration of presumptive death does not
absentees property when apply to a marriage celebrated under the (Old)
absentee was still alive. Civil Code as the law itself presumed as dead
the spouse who disappeared for a period of
3. Presumptive Death- When the absentee is seven (7) years where the present spouse has
presumed dead. no news of the absentee being alive, or for
less than seven (7) years where the absentee
Presumption of Death was generally presumed dead (Valdez vs.
(Arts. 390 to 392, NCC) Republic, G.R. No. 180863, September 8,
Extraordinary/ 2009). Hence, proof of well- founded belief is
Ordinary Absence
Qualified Absence
not required.
a. After absence of 7 For all purposes
YEARS, person including those of
presumed dead for opening succession, CIVIL REGISTER
all purposes except a period of 4
for those of opening YEARS, and for Acts, events and judicial decrees concerning
succession purposes of the civil status of persons shall be recorded in
b. Absence of 10 remarriage of the the civil register. (Art. 407) This includes:
YEARS, person spouse present, a
1. Births;
presumed dead for period of 2 YEARS,
purposes of are sufficient under 2. Marriages;
opening succession the following 3. Deaths;
4. Legal separations;

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 CIVIL LAW
PERSONS AND FAMILY RELATIONS
5. Annulments of marriage;
6. Judgments declaring marriages void from
the beginning;
7. Legitimations;
8. Adoptions;
9. Acknowledgments 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; and
16. Changes of name. (Art. 408)
Duty of the Clerk of Court
To ascertain whether the decree has been
registered, and 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. 409)
Books of the Civil Register and Related
Documents
1. Considered public documents
2. Prima facie evidence of the facts therein
contained. (Art. 410)
Unlawful Alteration
General Rule: Every civil registrar shall be
civilly responsible for any unauthorized
alteration made in any civil register, to any
person suffering damage thereby.
Exception: If the civil register proves that he
has taken every reasonable precaution to
prevent the unlawful alteration. (Art. 411)
Change of First Name or Nickname Under
R.A. 9048 (An Act Authorizing City or
Municipal Civil Registrar or the Consul
General to Correct a Clerical or Typographical
Error in an Entry and/or Change of First Name
or Nickname in the Civil Registrar without
Need of a Judicial Order, Amending For This
Purpose Arts. 376 And 412 Of The Civil Code)
Authority to Correct Clerical or
Typographical Error and Change of First
Name or Nickname:
General Rule: No entry in a civil register shall
be changed or corrected without a judicial
order
Exceptions: Administrative Proceeding for
Change of First Name or Nickname and
Clerical or typographical errors.
Clerical or typographical error refers to a
mistake committed in the performance of
50
clerical work in writing, copying,
transcribing or typing an entry in the civil
register that is harmless and innocuous,
such as misspelled name or misspelled
place of birth or the like, which is visible to
the eyes or obvious to the understanding,
and can be corrected or changed only by
reference to other existing record or
records.
Exceptions to the exception: (SANS)
1. Sex
2. Age
3. Nationality
4. Status
Note: Correction or change can be made by
the concerned city or municipal civil registrar
or consul general in accordance with the
provisions of this Act and its implementing
rules and regulations.
The State has an interest in the names borne
by individuals and entities for purposes of
identification. A change of name is a privilege,
not a right. Petitioner must show proper or
reasonable cause or any compelling reason
which may justify such change. (Silverio v.
Republic, G.R. NO. 174689, October 22,
2007).
Grounds for Change of First Name or
Nickname: (HAR)
1. First name or nickname is ridiculous,
tainted with dishonor or extremely difficult
to write or pronounce;
2. New first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known
by that first name or nickname in the
community; or
3. The change will avoid confusion
Note: R.A. 9048 does NOT sanction a change
of first name on the ground of sex
reassignment. To rule otherwise may create
grave complications in the civil registry and
public interest (Republic v. CA, GR NO.
97906, May 21, 1992).
Middle names serve to identify the maternal
lineage or filiation of a person as well as
further distinguish him from others who may
have the same given name and surname as
he has. The dropping of the middle name of a
minor so that he will not be different from his
classmates in Singapore and on the additional
ground that it would cause confusion and
difficulty in its pronunciation in Singapore does
not constitute proper and reasonable cause to
drop it from his registered complete name. As
 San Beda College of Law
2011 CENTRALIZED BAR OPERATIONS

he is of tender age, he may not yet understand Entries subject to cancellation or

and appreciate the value of the change of his correction upon good and valid grounds
name and granting of the same at this point 1. Births
may just prejudice him in his rights under our 2. Marriages
laws (In Re: Petition for Change of Name 3. Deaths
and/or Correction/Cancellation of Entry in Civil 4. Legal separations
Registry of Julian Lin Carulasan Wang vs. 5. Judgments of annulments of marriage
Cebu City Civil Registrar, G.R. No. 159966, 6. Judgments declaring marriages void from
March 30, 2005). the beginning
7. Legitimations
Please refer to Remedial Law Memory Aid for 8. Adoptions
a comprehensive discussion of the procedural 9. Acknowledgments of natural children
aspects of change of name. 10. Naturalization
11. Election, loss or recovery of citizenship
Cancellation or Correction of Entries in the 12. Civil interdiction
Civil Registry (Rule 108, Rules of Court) 13. Judicial determination of filiation
Any person interested in any act, event, 14. Voluntary emancipation of a minor
order or decree concerning the civil status 15. Changes of name (Sec. 2)
of persons which has been recorded in the
civil register, may file a verified petition for Please re-check syllabus of Civil Law
the cancellation or correction of any entry (coverage of 2011 Bar Exams) for included
relating thereto, with the Court of First and excluded topics.
Instance of the province where the
corresponding civil registry is located.
(Sec 1)
All persons who have or claim any interest
which would be affected thereby shall be
made parties to the proceeding. (Sec. 3)
Upon the filing of the petition, the court
shall:

1. Fix the time and place for the hearing

of the same
2. Cause reasonable notice thereof to be
given to the persons named in the
petition.
3. Cause the order to be published once
a week for 3 consecutive weeks in a
newspaper of general circulation in the
province. (Sec. 4)

Opposition may be filed by the civil

registrar and any person having or
claiming any interest under the entry
whose cancellation or correction is sought
within 15 days from notice of the petition,
or from the last date of publication of such
notice. (Sec. 5)
Orders expediting the proceedings and
preliminary injunction for the preservation
of the rights of the parties pending such
proceedings may be granted by the court.
(Sec. 6)
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. (Sec. 7)

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