1
2) Administrative Rules and Regulations
Civil Code
Preliminary Title
Chapter 1- Effect and Application of Laws
Article 1
A code is a collection of laws of the same kind.
First civil code was Civil Code of Spain in 1889.
In RA No. 386, the Civil Code was enacted on
June 18, 1949. Civil Code was effective August
30, 1950, one year after the release of the Code
for circulation, not publication.
Article 2
If the law is silent, effectivity is after 15 days
following the completion of the publication. This
is on the 16th day. If the law says 15 days
following the completion of the publication,
then it is on the 15th day.
In Askay v Cosalan, it was said that publication
was only needed when the law is silent about its
effectivity. However, in Tanada v Tuvera, it was
uniformly stated by the Supreme Court that
publication is a necessity for all laws, save for
those that are purely internal in nature. The
proviso unless otherwise provided refers only
to the date to be counted after the publication. To
clarify, although the date may be shortened, it has
to be not unreasonable, according to the case of
Tanada. If a law says that it will be effective upon
approval, then it means that it will be effective
after publication, in the concurring opinion of
Justice Feliciano.
Newspaper of General Circulation:
1) Dissemination of local news or
information
2) Bona fide subscription list of paying
subscribers
3) Published at regular intervals
It does not have to have the largest circulation. To
be included in the publication requirement are:
1) Presidential Decrees and Executive
Orders
Persons and Family Relations Notes
Exceptions:
a) Purely internal regulations
b) Interpretative
3) Monetary Board Circulars- even though
they are just circulars, they amount to
subordinate legislation because they
affect third parties (People v Que Po Lay).
4) Municipal ordinances- although Article 2
does not govern these. The rule is that
ordinances will be effective 10 days after
the posting of such ordinances in one
conspicuous place in the municipal hall,
and in two conspicuous areas within the
locality.
5) Supreme Court decisions are not required.
Lawyers are presumed to be updated (De
Roy v CA).
Article 3
There is a conclusive presumption that everyone
is aware of the laws. Actual notice is not
necessary, otherwise, evasion of the law will
render all laws nugatory.
In Marbella-Bobis v Bobis, the accused was
prosecuted of bigamy, and ignorance of Article
40 of the Family Code was not allowed as an
excuse.
Laws refer to mandatory and prohibitive laws
(Consunji v CA). Permissive laws will not punish
ignorance. These also refer to local laws, not
foreign laws. Not even the judiciary is required
notice of foreign laws. This is called the doctrine
of processual presumption.
Ignorance of fact can be an excuse. Also, difficult
questions of law may allow someone to be
ignorant (Article 526). A lawyer cannot be
disbarred for an honest mistake or error of law.
Article 4
Laws shall have prospective effect unless
otherwise provided.
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Since the law has yet to be made known to people
of the past, there is no logical reason to impose it
upon them. Lex prospiscit, non respicit.
Exceptions:
1) If the law provides for it
2) Penal laws favorable to the accused,
provided he is not a habitual delinquent
3) Law is procedural
4) Law is curative
5) Law creates new substantive rights
Exceptions to the exception in Number 1:
1) Ex post facto law
a) Refers to criminal matters
b) Be retroactive in its application
c) Prejudicial to the accused
2) When the retroactive law will result to
the impairment of the obligation of
contracts (Section 10 of Article 3 of the
1987 Constitution)
However, police power of the state can
necessarily impair obligations of contracts, if
necessary for the sake of public policy. This
provision of police power is presumed to be
included in every contract.
With regard to procedural laws, the general rule
is that no vested right is attached nor may arise
from them.
Curative laws, by themselves, are retroactive.
Exceptions are:
a) Violation of constitutional provisions
b) Destruction of vested rights of third
persons
c) Affect judgements that have become
final
Laws creating substantive rights can be
retroactive, provided they do not come into
conflict with existing substantive right.
Article 5
Law that prohibits an act- prohibitory
Law that mandates an act- mandatory
Persons and Family Relations Notes
2
Law that commands what it permits should be
tolerated or respected- permissive or directory
Exceptions:
1) When the law authorizes the validity
2) When the law makes the act valid, but
punishes the violator
3) Law makes the act voidable
4) Law makes the act voidable, but
recognizes the legal effects
Article 6
Elements of a right:
1) Subject- persons
a) Active subject- one entitled to
demand its enforcement
b) Passive subject- duty-bound to suffer
the enforcement
2) Object- things or services
3) Efficient cause- fact that gives rise to the
legal relation
3 Kinds of Civil Rights
1) Rights of personality
2) Family Rights
3) Patrimonial Rights
a) Real right- power over a specific
thing, without a passive subject
against whom such right may be
exercised; it is enforceable against
the whole world.
b) Personal right- power to demand
from another, as a definite passive
subject, the fulfilment of a prestation
(if compliance is impossible, at least
the nearest attempt is required), to do
or not to do.
Only number 3 is subject to waiver. Requisites:
1) He must have the right
2) He must have the capacity to make such
renunciation
3) Renunciation should be clear and
unequivocal
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Article 7
2 ways to repeal laws: Express or Implied. A
general statement like a repealing clause in every
law is an unnecessary codification of an implied
repeal. In implied repeal, if we can harmonize, the
laws will not be deemed inconsistent. There
should be an unavoidable and irreconcilable
inconsistency.
Interpretare et concordare lequibus est optimus
interpretendi- every law must be interpreted and
brought into accord with others as one system of
jurisprudence. Doubts shall be taken against
implied repeal. Requisites:
1) Laws cover same subject matter
2) The latter is repugnant to the earlier (Lex
posteriori derogat priori)
When a special law comes after a general law, the
special law cannot repeal the general law but
instead becomes the exception.
If the general law comes after the special law, the
general law may not repeal the special law.
(Generalia specialibus non derogat)
Exceptions:
1) There is an express declaration
2) There is clear, necessary and
irreconcilable conflict
3) The subsequent general law covers the
whole subject and is clearly intended to
replace the special law on the matter.
In Laguna Lake Development Authority v CA,
RA 4850 granted the LLDA the authority to use
of all surface water for any projects in or affecting
the region, including navigation, construction,
and operation of fish pens, fish enclosures, fish
corrals and the like. RA 7160, otherwise known
as the Local Government Code, granted
municipalities the authority to grant fishery
privileges in municipal waters. RA 7160 cannot
be deemed to have repealed EO 927, because the
latter is a special law.
Repeal of Repealing Laws:
Persons and Family Relations Notes
3
1) When a law expressly repeals the
repealing law, the first law will not be
revived unless expressly stated.
2) When a law impliedly repeals the
repealing law, the first law is revived,
unless otherwise prevented.
We follow the operative fact doctrine when a law
is declared unconstitutional, as applied in De
Agbayani v PNB.
Article 8
Judicial decisions are not laws. In Floresca v
Philex Minig Corporation, Supreme Court said
that judicial decisions by the Supreme Court
become part of the law as of the date of its
enactment. Only Supreme Court decisions may
form part of the legal system (Miranda v
Imperial), except those cases of first impression
decided by the Court of Appeals which are not
appealed to the Supreme Court.
Judicial decisions shall be prospective (Co v CA,
People v Jabinal).
Article 9
This is inapplicable to criminal cases, which
applies nullum crimen, nullum poena sine lege.
However, in civil cases, the court can resort to the
custom of the place, or in default thereof,
generally accepted principles of law and justice.
Article 10
Dura lex sed lex- in cases of doubt, the
presumption of right and justice will prevail.
What the laws grant, the law cannot deny (Go v
Anti-Chinese League of the Philippines).
The resort to equity should only be done in the
absence of, not against, statutory law or judicial
rules of procedure. In Article 9, equity may be
applied.
Article 11 and 12
According to the Supreme Court in In Re
Authority to Use the Firm Name Ozaeta, Customs
are rules of conduct:
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1) Based on the repetition of acts
2) Uniformly observed as a social rule
3) Legally binding and obligatory
Requisites in application of customs:
1) Plurality of acts
2) Uniformity or identity of acts
3) General practice by great mass of the
social group
4) Continued performance for a long time
5) General conviction believing that it is
obligatory
6) Not contrary to law, morals or public
order
Note that customs are not subject to judicial
notice.
Article 13
Computing period, first day is excluded and last
day included. The last day may be suspended if
that is a holiday or a Sunday, except in contracts.
If in a court proceeding, Saturdays, Sundays and
Holidays will not count as last days.
Article 14
Penal laws are subject to all who live or sojourn
in the country. This is the generality principle.
Exceptions to the general application of penal
laws:
1) Treaty stipulations
2) Laws of preferential application
3) Principles of Public International Law
Article 15
Family rights and duties are binding upon citizens
of the Philippines, even though living abroad.
Divorce obtained abroad is void due to Article 15
and 17.
In Tenchavez v Escano, Supreme Court said that
Article 15 governs their family rights and duties.
And even if the laws do not explicitly disallow
divorce, the recognition of such is against Article
17, which states that laws concerning public
Persons and Family Relations Notes
4
policy, among others, shall not be rendered
ineffective by laws or judgements promulgated,
or by determinations or conventions agreed upon
in a foreign country.
In Van Dorn v Romillio, Alice Reyes was
divorced by Richard Upton in Nevada. After the
divorce, Van Dorn wanted to have control over
the conjugal assets because following Article 15
and his family law, he no longer is the spouse.
In Pilapil v Ibay-Somera, Erich Geiling divorced
Pilapil in Germany. When Pilapil entered a
subsequent marriage, Geiling filed an action for
adultery. Supreme Court did not agree because
according to his national law, he is already single
and is thus unable to have legal standing to sue
the previous spouse for adultery.
Article 26 of the Family Code allows partial
divorce.
In Insular Government v Frank, Frank entered a
contract with the Philippine Government as a
stenographer for 2 years. He only worked for 6
months and went back to the US. He invoked
minority in the Philippines, but when we look at
the place where the contract was celebrated, it
was in Illinois, where he was perfectly
capacitated to enter into contracts.
Note that here, the legal capacity of a person is
governed by his national law, not where the
contract is celebrated. It just so happened that the
contract was made in Illinois, and his national law
was also Illinois, granting him capacity anyway.
If the contract was in the Philippines, ceteris
paribus, the Court might have acknowledged his
defense as a minor.
Article 16
Lex rei sitae- real property is subjected to the law
of the country where they are placed.
The exceptions are:
1) Intestate succession
2) Testate succession
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Included in the application of national law to
these successions:
1) Order of succession
2) The amount of successional rights
3) Intrinsic validity of the provisions of the
will
4) Capacity of the heir to succeed
In the Testate Estate of Bohanan v Bohanan,
Bohanan, a Nebraskan who had properties in
California, who had residence in the Philippine
but had selected his hometown as his permanent
domicile, wrote a will giving most of his estate to
his grandson, brother and sister, leaving only a
small amount for his children and spouse. The
surviving wife and surviving children asserted
Philippine law, where a huge amount of the estate
will be given to the legitimes. Supreme Court
followed the national law of Bohanan, which
allowed disposal of estate based solely on wills.
Bellis had some properties in both Texas and
Manila. He wrote two wills, one for his Texas
property and one for his Philippine property. Both
excluded any succession rights for his illegitimate
children. Supreme Court ruled in favor of Bellis,
because he was a Texan, which means that both
the wills are governed by his national law. The
argument that the Philippine will shall be
governed by Philippine law is false (Bellis v
Bellis).
In the Matter of the Testate Estate of the
Deceased Edward Christensen is an example of a
case which applied the renvoi doctrine.
Christensen was born in New York, migrated to
and California for 9 years, before becoming a
domiciliary of the Philippines until death. He was
Californian citizen, and his will acknowledge
Maria Lucy, his natural daughter, as his only heir.
Helen Lucy, his acknowledged daughter, pleaded
to have a share to the estate. The Supreme Court
referred to the national law of Christensen, only
to know that the private international law of
California dictated that the law of the domicile
shall govern testate successions. Hence, based on
renvoi, Philippine laws apply, where
acknowledged daughters have to be given
Persons and Family Relations Notes
5
legitimes. The Court chose not to apply the
internal law of California because those are for
citizens domiciled in the place.
Renvoi is also known as international football.
Note that the formalities of the execution of the
will shall be governed by lex loci celebrationis.
Article 17
Formalities or extrinsic validity is to be governed
by the place where the contract was executed.
Intrinsic validity of contracts is governed by lex
contractus, either the place voluntarily agreed
upon (lex voluntatis), or the law of the place they
intended expressly or impliedly (lex loci
intentionis). With regard to wills, intrinsic
validity is governed by national law.
Article 18
Civil Code will have suppletory character to Code
of Commerce and other special laws. If there is
no deficiency, then it will not apply.
Chapter 2- Human Relations
Article 19-21
Damnun absque injuria means that a lawful
exercise of ones right that causes harm to another
is not actionable for damages. The limit is when
there is an abuse of the lawful exercise of rights.
Qui jure utitur nullum damnum facit- one who
makes use of his own right does not make injury
(Pro Line Sports v CA).
Volenti non fit injuria, there is no injury to a
voluntary victim.
Article 19 is created to govern moral wrongs
which statutes cannot simply predict all the time.
The principle of abuse of rights allows a more
harmonized relationship with others, because no
one can just invoke the lawful exercise of his
rights.
Elements of abuse of right:
1) Legal right or duty
2) Exercised in bad faith
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3) Sole purpose is to prejudice another
Article 20 provides for the possibility of claiming
damages when there is a willful or negligent
exercise of a right that causes damage to another,
contrary to law. Article 21 refers to contra bonus
mores. Elements are:
1) There is an act which is legal
2) Contrary to morals, good customs, public
order or public policy
3) Done with intent to injure
Note that Articles 19, 20, 21 punish intentional
acts, and only 20 extends this to negligence.
In Globe Mackay Cable & Radio Corp. v CA,
Tobias, an employee of the said corporation, was
ordered a forced leave, not to communicate with
his office, leave his table drawers open, and to
leave the office keys. This was because Tobias
reported anomaly inside the company, and
ironically, became the number one suspect. When
he returned, his boss Herbert Hendry, called him
a crook and a swindler. He was fired, and when
he was going to apply to Republic Telephone
Company (RETELCO), Hendry called the
employer and told the latter not to accept Tobias.
Supreme Court said that these acts constitute an
abuse of right, in violation of Articles 19 and 21.
Note that the breach of promise to marry is not
actionable. Congress deliberately removed this
provision from the Code, which was initially
based from the Heart Balm suits in US.
Exceptions are:
1) When there is fraud or deceit (Gashem
Shookat Baksh v CA, Pe v Pe)
2) Expenses are actually incurred (Wassmer
v Velez)
3) Woman was forcibly abducted or raped
(Bunag, Jr v CA). The man promised to
marry the woman he raped, only to leave
her after both filed for a marriage license.
Elements of malicious prosecution:
Persons and Family Relations Notes
6
1) There is already an acquittal in a suit
brought by the defendant as the previous
prosecutor
2) In bringing such suit, there was no
probable cause
3) The prosecutor was impelled by legal
malice
Articles 22-23
Accion in rem verso is an action for recovery of
property acquired by another without just or legal
ground.
This is different to solution indebtii in Article
2154, which means that if a person is paid more
than what the transaction was worth, there is an
obligation to return. Elements are 1) payment is
done when there exists no binding relation
between payor, who has no duty to pay, and the
person who received such, and 2) payment was
made through mistake.
In accion in rem verso, mistake of payment is not
necessary. Requisites are:
1) Defendant has been enriched
2) Plaintiff has suffered a loss
3) Enrichment is without just or legal
ground
4) No other action is possible in contract,
quasi-contract, or quasi-delict.
Note that even without fault or negligence, when
the person benefitted, there is a duty to give civil
indemnity (refer to Article 12, Paragraph 4 of the
Revised Penal Code).
Articles 24-25
If a person is unable to read, it has to be made sure
that he understands every part of the contract he
is about to enter into.
Taking advantage of the limited education of a
farmer with regard to mortgage in lands is an
actionable wrong (Valenzuela v CA).
Article 26
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The enumeration is not exclusive. Humiliating
language can be subject to an action based on
Article 26.
Articles 27-28
If a person of authority performs an act within the
authority conferred to him by his office, there is
no actionable wrong. There should be refusal or
neglect. This does not cover malfeasance
(wrongful conduct by a public official),
misfeasance (lawful act that is injurious), but
nonfeasance. Requisites:
1) Defendant is a public official charged
with the performance of his duties
2) Violation of an official duty in favor of
an individual
3) Where is willfulness or negligence
4) There be an injury to an individual
Article 28 refers to:
1) Selling using a deceptive packaging
identical to a competitors
2) Portraying to be offering the services of
another
3) False statements to discredit the goods of
another
Article 29
Under Article 100 of the RPC, anyone who is
liable for delict is civilly liable.
General rule is that the acquittal in criminal case
does not lead to the acquittal in a civil case. The
exception is when the court finds evidence that
the act or omission that gives rise to any possible
civil action is non-existent.
Instances where civil liability is not extinguished:
1) Acquittal is based on reasonable doubt
2) Where the court expresses that the
liability is not criminal but civil
3) Where the civil liability does not arise
from criminal liability
Requisites:
Persons and Family Relations Notes
7
1) Private offended party chose to recover
damages from the civil liability of
offender
2) He opted to do so expressly or impliedly
with the criminal action
3) Accused was acquitted based on
reasonable doubt
4) Ground for acquittal is inferable from the
text.
There is no need for a separate civil action
(Padilla v CA). In the same criminal proceedings,
the judge may grant relief for damages based on
civil liability, even if guilty of accused not
beyond reasonable doubt.
Articles 30-31
The civil action is deemed instituted in a criminal
proceeding unless the person reserves the right to
institute civil action or is able to institute civil
action prior to the criminal case. What is deemed
instituted in the criminal action is liability based
on delict.
Reservation should be prior to the presentation of
evidence by the prosecution. Without a
reservation, a civil action will be suspended after
the institution of the criminal proceedings. What
the offended party can do is to consolidate the
proceedings.
Quasi-delict or culpa aquiliana is a separate legal
institution. It can also be called culpa extra-
contractual if based on negligence.
Articles 32-34
Independent civil actions are based from Articles
32, 33, 34 and 2176 of the Civil Code.
Note that violations of the constitutional rights in
Article 32 are not dependent on good faith,
because to do so would render the Article
purposeless.
Article 33 provides a civil action ex delicto, so
that individuals who received damage can redeem
themselves without waiting for the criminal
action to prosper.
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In Carandang v Santiago, Supreme Court said
that the term physical injuries is broad enough to
include attempted, frustrated, and consummated
homicide. Criminal negligence resulting to any of
the crimes above can also lead to an independent
civil action.
Articles 35-36
Prejudicial question is a question arising from a
case, the resolution of which is logical antecedent
of the issue involved in the said case. It is based
on a fact distinct and separate from the crime but
so intimately connected. The determination of the
issue will see juris et jure if guilt in a criminal
case is present.
Elements:
1) Previously instituted civil action involves
an issue similarly or intimately connected
to the issue raised in a criminal action
2) The resolution will determine whether
the criminal action can proceed.
Book One- Persons
Title 1- Civil Personality
Chapter 1- General Provisions
Article 37
Person is any being susceptible of rights and
obligations. Personality is the aptitude to be
subject of juridical relations.
Juridical personality or juridical capacity is the
fitness to be subject of legal relations. Capacity to
act is the power to do acts with legal effects. Full
civic capacity means the presence of both.
Differences:
1) Juridical capacity is static. Capacity to
act is dynamic.
2) Juridical capacity is the abstract
possibility of receiving legal effects,
Capacity to act is the power to give life to
acts
Persons and Family Relations Notes
8
3) Juridical capacity is indivisible,
irreducible. Capacity to act does not exist
in all people.
4) For the former, existence is enough. For
the latter, intelligence and volition are
required.
5) Juridical capacity is only lost through
death. Capacity to act may be lost
through other means
6) Juridical capacity may not be limited.
Capacity to act is always modified.
Articles 38-39
Restriction and modification is different from
disqualification and prohibition. The latter are
done in the name of morality.
Obligations still arise from those who have
limited capacity, such as from his acts or property
relations.
1) Minority
Contracts entered into by minors without aid of
their parents are either voidable or unenforceable.
If both are incapacitated, contract is
unenforceable. If either parent ratified, the
contract becomes ratified. If only one is
incapacitated, then the contract is voidable,
subject to ratification of the guardian.
If minor passively or constructively
misrepresents his age, he can still annul the
contract after reaching the age of majority.
Prescription time is 4 years. If there is active
misrepresentation, he is estopped.
2) Insanity and imbecility
Contracts they enter into are voidable. However,
if the lucid interval is present, and such is proven
as a matter of fact, then the contract will be valid.
3) Deaf-mutism, only if he is unable to write
4) Civil Interdiction
Accessory penalty imposed upon those convicted
of crimes punishable by reclusion temporal or
higher. It produces such effects:
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a) Deprivation of rights of parental
authority
b) Deprivation of marital authority
c) Deprivation of the right to manage his
property
d) Deprivation of the right to dispose of his
property by any act or any conveyance
inter vivos.
5) Prodigality
Does not per se mean restricted capacity to
act. If the person is placed under guardianship,
then he is restricted.
Chapter 2- Natural Persons
Articles 40-41
A person has to be born with the requisites
provided by law to be granted civil personality.
However, for purposes favorable to it, the fetus is
given provisional personality.
In Geluz v CA, Ozcar Lazo, the husband of Nita
Villanueva, seeks to claim damages from the
doctor who induced abortion to her wife. The
baby still do not have provisional capacity to sue
the doctor, or even if it did, it was gone after the
death as a result of the abortion. Note that
provisional personality requires that the baby be
born alive. Had the baby survived abortion, it
would have been possible for a suit to prosper.
The parents may institute civil action, if the
damage was done to them. The father may not
claim damages because of his apparent
indifference to the previous abortions made by his
wife. However, the inducement made by the
doctor can be subject to criminal charges. The
case was furnished to the DOJ and the Board of
Medical Examiners for their take.
If a baby is alive at the time of the completion of
the delivery from the mothers womb, he or she
is alive. However, this only applies to babies who
had an intra-uterine life of at least 7 months.
Absence of which would require being alive 24-
hours after being completely delivered.
Persons and Family Relations Notes
9
A conceived child is deemed born, but to perfect
this provisional personality, it should be:
1) Deemed born for purposes that are
favorable to it
2) Must be born later under the conditions
specified in Article 41
Failure to satisfy requisites means that the child
should be deemed not alive at all.
Rights of a conceived child:
1) Support from progenitors, even if said
child is en ventre de sa mere
2) May receive donations (Article 742)
3) It may not be ignored by his parents in
their testament.
In Quimiguing v Icao, Supreme Court said that a
conceived child has the right of donation. The
case was remanded back to trial court so parties
may adduce evidence.
In De Jesus v Syquia, Supreme Court upheld the
right of the baby for progenitor support, provided
that the factual basis of the acknowledgement of
the child by his or her father is proved.
Article 42
The estate of a deceased has legal personality
independent of his heirs.
Article 43
Rule on survivorship- this applies to those cases
where there is a question on succession.
If the issue is not about succession, the Rules of
Court shall govern and not Article 43:
1) If both are under 15, the older survived
2) If both are above 60, the younger
survived
3) If one is under 15 and one above 60, the
former survived.
4) If both be over 15 and under 60, if sex is
different, the male survived. If sex is the
same, the older
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5) If one be under 15 or over 60, and the
other between those ages, the latter
survived.
Chapter 3- Juridical Persons
Article 44-47
Personality begins the moment the law creates
them.
Corporation is a juridical person. It may incur
obligations and bring civil or criminal action. The
incorporation happens when the Securities and
Exchange Commission issues a certificate of
incorporation.
Partnership refers to two or more persons
contributing to a common fund, with the intention
of dividing it to themselves. Oral constitution
may suffice unless 1) real property is contributed,
or 2) capital is more than 3,000.
Sole proprietorship does not constitute a separate
legal personality, unlike the two above.
Article 49-51
Domicile can be attained in three ways:
1) Domicile of origin
2) Constructive domicile
3) Domicile of choice
Family Code
Title I- Marriage
Chapter 1- Requisites of Marriage
Article 1
Husband and wife become one single moral,
spiritual and social being, not only for procreation,
but mutual help and protection (Saclolo v CAR).
Marriage is one of the basic civil rights of men
(Skinner v State of Oklahoma)
Recognized as one of the vital personal rights to
the orderly pursuit of happiness (Loving v
Virginia). Equal protection is given to people and
Persons and Family Relations Notes
10
cannot be forbidden to marry on basis of race or
political inclinations.
It is not a contract within the meaning of the
Constitution which prohibits the impairing of
such.
Marriage cannot be restricted by discriminatory
policies of private individuals or corporations.
Women cannot be disqualified from labor just
because they contracted marriage (Philippine
Telegraph and Telephone Company v NLRC).
Article 350 punishes individuals who contract
marriage knowing that there are legal
impediments. Section 37 to 45 of the Marriage
Law (Act. No 3631) penalized erring solemnizing
officers.
Mail-order brides are against public policy (RA
6965). Punishes recruitment, advertising,
carrying out a business, usage of postal services
in consideration of above-mentioned offense are
punishable. RA 9208 (Anti-Trafficking of
Women) considers these acts as trafficking.
Marriage between rapist and victim admits the
guilt, but extinguishes criminal liability. A rapist
husband, when forgiven, is also absolved of
liability, provided that the marriage is not
declared void ab initio.
A condition for the validity of a civil marriage,
particularly a subsequent religious marriage after
the civil marriage, cannot be stipulated by parties,
because the civil marriage itself is binding to
them. This may be fraud, but it doesnt fall to the
grounds for annulment in relation to fraud under
Article 46 of the Family Code.
Right to marry is a fundamental human right as
according to Article 16 of UNDHR, which gives
every human being the right to marry and to
found a family, without discrimination to race,
nationality, or religion.
Right to marry, establish a home and bring up
children is a central part of liberty protected by
the equal protection clause (Zablocki v Redhail).
John Psalmuel Velarde Chan

The Constitution does not prohibit a law on
absolute divorce, in recognition of instances
where marriage-bound couples cannot create a
proper marital life after all.
Privacy and integrity of individuals are preserved
(Zulueta v CA), as spouses cannot ransack the
office of the other to find evidence of the
existence of a paramour. The right to privacy of
communication and correspondence is inviolable,
unless there is a lawful order from a court or when
public safety or order requires.
Neither can testify against the other without
consent, unless the civil or criminal case is
specifically initiated by one against the other.
Neither can also be examined.
Duncan v Glaxo allows companies to remove
employees who have relationships by
consanguinity or affinity with the employees of a
competing drugstore. Of course, conflict of
interest has to be proven by the company first.
The marriage of two employees from the same
corporation, however, does not justify the
removal of one or both (Star Paper Corporation v
Simbol)
Marriage restricts some property rights, such as
the execution of a last will and testament giving
ones property to a spouse. This is not allowed
unless there are three witnesses to the execution
of the will.
Future spouses can stipulate agreed property
regime in a marriage settlement, but cannot
decide when the regime starts other than exactly
after the marriage ceremony. (Article 107 in
relation to Article 88 of the Family Code). Any
modifications after the marriage can only be done
with the approval of the courts.
The law governing at the time of the contracting
of the marriage governs it (Gomez v Lipana). A
marriage void in toto cannot be made only
voidable by a subsequent statute. Also, repealing
a statute prohibiting certain marriages does not
validate marriages that were celebration in
contravention of the previous law. An expressed
provision shall be the exception, provided it does
Persons and Family Relations Notes
11
not violate vested rights granted during the old
law. Note that Article 256 of the Family Code is
a general provision, and does not expressly
validate invalid marriages before.
Ex. Mistake of identity is a ground for annulment
under the Civil Code. The effectivity of the
Family Code, and the conversion of mistake of
identity into a ground for void marriage, does not
affect the status of marriages contracted prior to
the Family Code.
Articles 2 to 6
Article 39 of the Civil Code provides that
capacity to act is limited by family relations,
which is to be read with Article 37 and 38.
The phrase male and female was only for
emphasis, because even in its absence, the term
contracting parties will not include marriages
of the same sex. In Silverio v Republic, it was said
that sex is immutable, and is acquired during birth.
Of course, this is without prejudice to possible
recognition of sex-reassignment by Congress.
Republic v Cagandahan allowed a hermaphrodite
(Congenital Adrenal Hyperplasia) to choose a sex,
provided it is more obvious. Philippine statutes
do not recognized a no-mans land, one has to be
either female or male. Hence, Cagandahan is an
exception, sex is determined after reaching the
age of majority. The Supreme Court also allowed
the change of name from Jennifer to Jeff, not as a
matter of right, but judicial discretion. In the US,
transsexualism can enable a person to reassign
Requirements of consent are: 1) it should be given
freely, and 2) must be in the presence of a
solemnizing officer. Should the parent force the
child to marry another, the marriage is voidable,
because there was consent, but it was not free.
The person must deliberately and willingly
contract the marriage, with full capability of
intelligence to understand the nature and
consequences of marriage.
Proxy marriages are not allowed (Article 2 and
Article 6).
John Psalmuel Velarde Chan

Note that it is not the presence, but the authority
of the solemnizing officer that is the formal
requirement. The mayor is now authorized under
the Local Government Code. The presumption of
authority is given in the absence of any showing
to the contrary (Goshen v Stonington). The
officer is not required to investigate presence of
license (People v Janssen). However, in
marriages without need of licenses, the
solemnizing officer has to ascertain the
qualifications of the parties.
Act No. 3613, Section 28, criminalized
solemnizing officers who facilitate ceremonies
without authority. Punishment is imprisonment
for 1 month to 2 years. Endorsing fake authority
to solemnize marriages is also punishable under
the law. Members of religious sects who
solemnized marriages without authority shall, in
addition to the punishment, be banned from
solemnizing marriages for 6 months to 6 years.
Only the 120-day allowance is mandatory to
couples who would like to marry. Others will be
irregularities, such as getting a license from a
place where no one party habitually resides
(People v Janssen). The falsification of his own
name by one party to obtain a license, shall not
invalidate a marriage conducted on authority of
such license, without prejudice to liabilities.
Falsely representing age, which is however above
18, to circumvent the parental-consent
requirement, does not invalidate the marriage.
However, such marriage can be voidable, if there
is really no such consent (Payne v Payne). Of
course, if the concealed fact is in such a way a
ground for the void marriages, then the marriage
is null. For instance, same-sex marriage (Jones v
Hallahan).
No prescribed form is needed. The minimum
requirement is that the contracting parties appear
personally to the solemnizing officer and they
declare each other as husband and wife.
The approval need not be vocally express, other
manifestations or signs can do. If the solemnizing
officer fails to ask both parties, it is sufficient that
Persons and Family Relations Notes
12
they declare each other as husband and wife and
sign the contract (Karganilia v Familiar).
Failure to sign the marriage certificate will not
make the marriage void or voidable (Madridejo v
De Leon).
The absence of one witness, or the absence of the
legal age of the witnesses will be an irregularity.
This is in line with the policy of the state to
uphold the marriage. However, the Supreme
Court did not directly discuss the issue of the
validity of marriages that do not fulfill the witness
requirement (Balogbog v CA). Simply put, if
there was a marriage ceremony where there was
an exchange of vows, the marriage will be upheld.
Common law marriages are not recognized here
(Enriquez v Enriquez).
An expired license is not valid because the
absence of any formal or essential requisite will
render the marriage void.
Defects in the essential requirements will make it
voidable or annullable. These are enumerated in
Article 45 and 46 of the Family Code.
Irregularities in the formal requisites do not affect
the validity, except when the consent of parents is
absent. This will make the marriage voidable.
A judge should look for the marriage license
before solemnizing, otherwise it is an improper
act. If the parties left the license at home, the
marriage will subsist. If they really do not have
one, the marriage is void. Any irregularity caused
by the judge e.g. not signing the contract, not
furnishing copies of the contract to parties or not
forwarding such contract to the local civil
registrar will be administratively held against the
judge (Cosca v Palaypayon).
Following do not affect validity:
1) Absence of two witnesses of legal age
(Meister v Moore)
2) Absence of certificate
3) Marriage solemnized in another place
other than in the chambers of the judge or
in open court (Alcantara v Alcantara)
John Psalmuel Velarde Chan

4) Unsworn application for marriage license
5) Failure of contracting parties from 18 to
21 to exhibit consent of parents to the
civil registrar.
6) No marriage counselling
7) No posting of notice from civil registrar
8) Issuance of license prior to the
completion of the 10-day publication
period (Alcantara v Alcantara).
Breach of promise to marry may not give a cause
of action for one party (Hermosisima v CA),
unless the breach has civil damages to him or her.
In Wassmer v Velez, breach of promise to marry
was suable because of the moral and actual
damages against the other party.
Article 7- those authorized to solemnize
marriages
The consent of the state is manifested or granted
vicariously when the solemnizing officers
solemnize a marriage.
Judges can only solemnize a marriage within their
jurisdiction. Even when the contracting parties
submit in writing a request for the marriage to be
held somewhere, the scope is limited to the place
of the jurisdiction of the judge (Navarro v
Domagtoy). Only justices of the Supreme Court,
Court of Appeals, Sandiganbayan and Court of
Tax Appeals have nationwide jurisdiction.
The Supreme Court held that the marriage of the
individuals solemnized by Judge Domagtoy is
valid, when he did so outside his jurisdiction.
However, this is an administrative and not a civil
case. Hence, it should not create a precedent
because it was a mere obiter dictum. Solemnizing
a marriage outside your jurisdiction means that no
authority was conferred.
The judge may not ask for frees after solemnizing
a marriage (Dysico v Dacumos).
Requirements for priests, imam, rabbi or minister
to solemnize a marriage:
1) Duly authorized by his church or
religious sect
Persons and Family Relations Notes
13
2) Act within the limits of the written
authority granted to him
3) Must be registered with the civil registrar
general
4) At least one of the contracting parties is a
member of the church or religious sect.
The written authorization may limit the scope of
the jurisdiction of a priest. The Catholic Church
follows a community-based approach.
Requisites for an airplane chief to be authorized:
1) Marriage must be in articulo mortis
2) Must be between passengers or crew
members
3) Ship must be at sea or in flight
Assistant pilot has no authority to solemnize a
marriage. If the chief dies, the assistant cannot
assume command. Note that such marriages can
be solemnized during stopovers or ports of call.
This was allowed due to the minutes of the
Family Code Commission.
Requisites for a military commander:
1) Must be a military commander of a unit
2) Commissioned officer
3) Chaplain is assigned to such unit
4) Said chaplain must be absent
5) Marriage in articulo mortis
6) The contracting parties must be in the
zone of military operation.
Lowest rank for eligibility is a 2nd lieutenant, and
the word unit refers to a battalion, because
chaplains are assigned per battalion. Note that the
commander can solemnize a marriage even
though the parties are not from his unit.
Only consul-general, consul and vice-consul can
solemnize a marriage. Consular agents are not.
They can only solemnize a marriage when both
parties are Filipinos. Philippine laws shall apply
pursuant to Article 17 of the Civil Code. Parties
can request the consuls to solemnize the marriage
at their house.
If the marriage is between a foreigner and a
Filipino, the consul does not have authority and
John Psalmuel Velarde Chan

the marriage will be generally void. However, if
the marriage is valid in the place of celebration,
then Article 26 will operate. Note that
solemnizing officers can only solemnize a
marriage abroad.
Mayors are now allowed pursuant to the Local
Government Code which took effect January 1,
1992. If the mayor is incapacitated or absent, the
vice-mayor, as acting mayor, can do so.
Article 8
Directory in nature. The non-observance will not
void the marriage. Exceptions are:
1) Marriage in articulo mortis
2) Those in remote places
3) Both requested the officer in writing
Article 9
The license should be obtained from a place
where either party habitually resides. If it is
obtained in a random place, it will be an
irregularity (People v Janssen).
Article 10
Consular officers will now have to be both
solemnizing offers and the civil registrar with
regard to marriage processes.
Article 11
Purpose of documentation is to secure a stable
institution (Kilburn v Kilburn).
Anyone can obtain a marriage application. Once
it is signed and sworn to, the registrar has no
choice but to accept and process the same. If he
has knowledge of any impediment, he cannot
discontinue the processing and still continue issue
the license. Only the court can stop the issuance.
Articles 12-14
There is no such a thing as emancipation by
marriage. A person can only be emancipated by
age.
Parental consent does not concern legal capacity
as people over 18 years of age can already marry.
Persons and Family Relations Notes
14
Absence of consent will render the marriage
voidable under Article 45(1).
Articles 15-16
Non-advice is not a ground for annulment. This is
just to induce more mature deliberation,
according to the Family Code Committee.
Article 17
The notice shall be posted 10-days consecutively
on a bulletin board outside the office located
within the building and accessible to the general
public.
If there is negative or the absence of advice, a 3-
month suspension shall be rendered.
Articles 18-19
Note that the local civil registrar can only note
down the particulars of any impediments
discovered. The registrar can investigate, but
cannot withhold the issuance of the license after
the designated waiting period. This power was
not granted to the registrar to avoid extortion.
However, in the presence of a court order, the
registrar can refuse. The registrar can directly file
a case in court.
If interested parties are to file for a case, there will
be no filing fee or corresponding bond.
If despite an injunction, the registrar issues a
license, then the marriage will be valid, without
prejudice to sanctions to the registrar.
Two provisions of the Marriage Law of 1929 are
still subsisting:
1) Influencing parties to either marry or not
marry under the authority of any
religious sect.
2) Issuance or non-issuance of marriage
license, as the case may be. Punishment
is not less than one month and not more
than 2 years, or by a fine of not less than
two hundred pesos nor more than two
thousand pesos.
John Psalmuel Velarde Chan

Article 20
The license is valid in the Philippines and not
abroad. The date of the issuance of the license is
the first day of the 120-day grace period.
Failure to use the license in the period allotted
will make it void. Any subsequent marriage will
be void.
Article 21
Certificate or Affidavit of legal capacity is
required for citizens of a foreign country. This is
so the registrar can be notified of the existing
national laws of the persons applying for
marriage license. A minor who is capacitated to
marry by his or her personal laws will be allowed
to marry here, provided that the certificate of
legal capacity has been acquired.
This is an exception to the prohibition to the
registrar to not issue a marriage license.
Assuming no certificate was presented, but a
license was released, the marriage will still
subsist.
Should the persons be stateless or are refugees,
they shall have to present an affidavit of legal
capacity.
If they marry in front of their consul-general, and
the marriage will be valid in their own country,
then Article 26 will operate, even without a
marriage license.
Articles 22-23
A man and a woman deporting themselves to
have been lawfully wedded will have the
presumption of marriage unless contradicted.
In Pittinger v Pittinger, the Colorado Supreme
Court ruled that the law presumes morality and
not immorality, marriage and not concubinage,
legitimacy and not bastardy.
The doctrine is semper presumitur pro
matrimonio. Burden of proof will always be on
the hands of the impleading party.
Persons and Family Relations Notes
15
Any evidence of the validity of marriage will do.
The best evidence, however, is the marriage
certificate. However, a Photostat of a certificate
is worthless (Vda. De Chua v CA). However, if
the Photostat is stamped by the registrar, it will be
admissible as evidence. Note that without any
contradiction from another party, the Photostat
copy will be deemed sufficient proof of the
marriage (Sy v CA).
Baptismal certificates, birth certificates, judicial
decisions, family bible in which the names of the
spouses are entered as married can be evidence
(Trinidad v CA).
However, Transfer Certificates of Title,
Residence Certificates, Passports, and other
similar documents cannot suffice especially so
when the judge testified that he did not solemnize
such marriage (Vda. De Chua v CA).
A marriage certificate made many years after the
marriage may be inadmissible, especially when
there was no record of the marriage (Gaines v
Relf).
Note that failure to present certificate will not
overturn the presumption of marriage, unless of
course with competent evidence from impleading
party.
Testimony of contracting parties, witnesses or the
solemnizing officer involved can suffice as
evidence to strengthen the presumption.
Mere cohabitation is not a direct proof of
marriage, if not backed up with other documents
(Santiago v Cruz).
Since the presumption is strong, a statement of
the civil status of a person in a certificate of title
issued to him will not be reach the threshold.
The Court, however, allowed a new issue to be
presented in an attempt to appeal the decision of
the lower court to uphold the marriage. When the
issue of psychological incapacity was not given
merit by the lower court, the Supreme Court said
that the subsequent attack on their marriage by
proving that no license was present when they
John Psalmuel Velarde Chan

married is a proof that the marriage was void (Sy
v CA).
A license issued not in the place of habitual
residence of either party will not affect the
validity of a marriage, but this raises the question
of the spuriousness or the non-existence of an
actual license, albeit irregularly issued.
In Republic v CA and Castro, the Supreme Court
upheld the invalidating effect of a certification
from the registrar, after due search, that there was
no record can be found with regard to the issuance
of the license.
Declaratory Relief may be filed by parties to
ascertain whether they are able to marry under the
law.
Articles 24-25
The civil registrar shall keep a Marriage Register
of all individuals who were issued licenses upon,
and the list of all who are married in their locality.
Article 26
The Philippines recognizes marriages validly
solemnized abroad, unless it violates Article
35(1), (4), (5), and (6), 36, 37, and 38.
To avoid limping marriages, presumption of
marriage is awarded to those who contracted
marriage abroad. This is dictated by international
comity.
Same-sex marriages between Filipinos will not be
allowed even if completely legal in the foreign
state, because the legal capacity of Filipinos will
be governed by our Civil Code. Hence, this
provision only contemplates to allow those who
are legally capacitated to marry and who married
validly under the laws of another state, provided
that no violations to the prohibited marriages are
observed.
No state is bound to comity to give effect to
marriages against public policy (Brimson v
Brimson).
Persons and Family Relations Notes
16
Therefore, marriages without license abroad, or
even proxy marriages between Filipinos abroad
will be valid. These are not against public policy.
A foreign marriage solemnize by a professor or
law, who is given authority based on the national
laws of the parties, will be valid.
*Is this not a violation of the lex loci celebrationis
rule?
If a foreigner who is under 18, but is legally
capacitated to marry under his own law, marries
a Filipino abroad, this should be valid under our
law. This is the exception to Article 35(1), even
though the provision says that any party under
18 shall render the marriage void. Otherwise, it
will be better for such couple to marry here in the
Philippines, after the foreigner gets a certificate
of legal capacity to marry, because he will be
allowed to do so. This inconsistency should be
prevented.
Sta. Maria argued that common law marriages
shall not be recognized in the Philippines, even if
contracted abroad by parties. Article 26 mentions
of solemnization, meaning that a ceremony
must have been conducted. However, public
policy does not explicitly disallow such marriage
if contracted abroad. The argument of the author
is based on the usage of the word solemnization,
which was then phrased as contracted (General
Order No. 68), and replaced to performed
during the effectivity of the Civil Code. The
Family Code Commission replaced it with
solemnized, which should give us a hint about
the intent of the framers.
However, marriages solemnized abroad should
be proven as a question of fact (Ching Huat v Co
Heong). There is necessity for it to be 1) pleaded
and 2) proved.
In Yao Kee v Sy-Gonzales, Supreme Court said
that the burden to prove validity rests on the
person arguing for the validity of marriage. This
implies that the presumption of marriage is not
given to foreign marriages. However, this was
overturned in Board of Commissioners v Dela
Rosa. The presumption of marriage is given to
John Psalmuel Velarde Chan

foreign marriages, and the legitimacy of children
born out of such marriages.
Divorce initiated by a Filipino citizen is against
public policy (Cang v CA). Divorced between
two Filipinos abroad is void (Garcia v Recio).
Filipina wife who obtained divorce abroad is not
divorced in the Philippines (Tenchavez v Escano).
In Republic v Orbecido, a naturalized American
citizen was allowed to divorce their marriage,
because the reckoning day of validity based on
citizenship is the day of the divorce, not the day
of the marriage.
A Filipino spouse who obtained divorce abroad,
and who previously became naturalized as an
American, shall be allowed to remarry in the
Philippines by virtue of his national law.
*If a Filipino obtains a divorce abroad while
being a Filipino, the divorce is void under
Philippine law. But if the Filipino naturalized
himself as an American thereafter, and decided to
remarry in the Philippines, will it be allowed? The
question pertains to the respect to his national law,
which is now American laws.
Void and voidable marriages under foreign law
shall also be such and such here.
Chapter 2- Marriages Exempt from License
Requirement
Articles 27-34
Except for Muslims who are governed by the
Code of Muslim Personal Laws, the various
ethnic groups must comply with all the other
essential and formal requisites of marriage. The
solemnizing officer must also be valid, and the
marriage should be void under Articles 35, 36, 37,
38, 40, 41, 44 and 54.
Far areas will be exempted from marriage license
requirement. Also, note that all solemnizing
officers are authorized to solemnize marriages in
articulo mortis, without prejudice to other
requirements.
Persons and Family Relations Notes
17
The previous laws stated that the Muslims and
ethnic groups need not comply with the formal
requisites laid down in the Civil Code. Such is not
the case anymore, because only the Muslims and
the ethnic groups in the Cordillera Administrative
Region are exempted from the jurisdiction of the
Family Code, because they have their own laws.
In fact, marriages solemnized between members
of tribes in the Cordillera will be valid as long as
it is in accordance with their customs (Article X,
Section 2). All the other ethnic groups are
exempted from the marriage license requirement,
but not the other essential and formal requisites.
Ratification of marital cohabitation requires that
the individuals have to 1) live as husband and
wife for 5 years characterized by exclusivity and
continuity that is unbroken, and 2) they must be
without legal impediment to each other. They
have to concur, but do not qualify each other.
Hence, the legal impediment should only be
absent at the time of the marriage. This is the
ruling in Republic v Dayot, Manzano v Sanchez.
Chapter 3- Void and Voidable Marriages
Article 35
There can be no other void marriages unless those
specified by law. Stepbrothers and stepsisters, or
a court-appointed guardian can marry each other.
More than one grounds can coincide in one case
of judicial declaration of nullity. Nonetheless,
there can be only one cause of action (Mallion v
Alcantara).
A void marriage can be assailed collaterally, but
a voidable marriage cannot be. Voidable
marriages cannot be assailed when one has
already died, as the period for assailing the
validity of void marriages does not prescribe.
Both can only be assailed by either of the spouse,
pursuant to the Supreme Court en banc
Resolution in 2003, except in some voidable
marriage where the parents may intervene.
Children conceived out of void marriages are
illegitimate. Children out of voidable marriages
are legitimate, and are subject to either absolute
John Psalmuel Velarde Chan

community of property, or conjugal partnership
of gains (Ninal v Bayadog).
Void marriages do not contemplate estoppel or
acquiescence. The unclean hands rule does not
apply in void marriages.
In Mallion v Alcantara, the Supreme Court did
not allow for a second cause of action filed by the
party whose petition for judicial declaration of
nullity on ground of Article 36 was initially
dismissed. This violated the rule on splitting-a-
cause of action, that the rule of res judicata
applied and that the petitioner waived the effect.
Not invoking all grounds during the first case is
an implied waiver of the other grounds.
The psychologically incapacitated one can apply
for a judicial declaration of marriage. Unclean
hands rule do not apply here, but as a matter of
fact, this is only judge-made.
Although bad faith and good faith are not material
in the ratification of a void marriage, these can be
essential when damages are already being raised
by either party. However, the two exceptions are
under 1) Article 35(2), where good faith of either
or both parties can validate a marriage even if the
solemnizing officer had no authority, and 2)
Article 43, where a spouse who has a well-
founded belief that his spouse is already dead can
ask for a judicial declaration of presumptive death.
In a case for support, the children can attack the
validity of marriage collaterally, without having
to institute another proceeding for judicial
declaration of nullity.
Exceptions:
1) If a spouse wants to remarry, there must
first be a judicial declaration of nullity.
He/she cannot assail the validity of his
first marriage, say, in a bigamy case
(Article 40).
2) In Ninal v Bayadog, Supreme Court
added that in case a need arises, the
judicial declaration of nullity may be
required by the courts.
Persons and Family Relations Notes
18
3) If the donor desires to revoke a donation
propter nuptias (in consideration of
marriage), there must first be a
declaration of nullity.
Good faith marriages are referring to the parties,
not to the solemnizing officers. Since this is
allowed by law, it is not a putative marriage,
which is a subsisting marriage that has a risk of
being declared void or annulled.
Justice Carpio and Justice Caguioa, some of the
framers of the Family Code, would not
distinguish between mistakes of fact and mistakes
of law. However, Dr. Arturo Tolentino has a
different view.
In bigamous marriages, these are void unless the
person is a Muslim, or it is under Article 41. Even
if the first marriage is void, if without a judicial
declaration of nullity, the subsequent marriage
will be void pursuant to Article 40.
Mistake in identity can render a marriage void,
and no other mistakes can qualify as under this
provision. Hence, when the person you intended
to marry, turns out to have a different name, it will
not render the marriage void.
Article 36
Determination of psychological incapacity
depends on the facts of the case (Republic v
Dagdag).
However, the law clarifies that psychological
incapacity should be qualified by the failure to
comply with the essential marital obligations.
Hence, the malady should prevent these
obligations from being fulfilled. A senseless,
protracted, and constant refusal to comply with
the essential marital obligations although
physically capable can be ground (Chi Ming Tsoi
v Chi Ming Tsoi).
The first case decided on ground of Article 36 is
Santos v CA. It was decided that the
psychological incapacity must be characterized
by gravity, incurability and judicial antecedence.
John Psalmuel Velarde Chan

Psychological incapacity must be 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.
The Constitution does not establish the
parameters of state protection to the institution,
and the establishment of Article 36 is not for the
destruction of the institution, but for the
protection of marriage (Antonio v Reyes).
The fear of a wife to have children may constitute
psychological incapacity, according to the
Minutes of Civil Law and Family Code
Committees.
Separation and abandonment are not conclusive
grounds for psychological incapacity (Republic v
Quintero Hamano).
The opinions of experts shall be highly regarded
(Hernandez v CA). However, there is no need for
psychological tests to be conducted if the totality
of the evidence suffice (Marcos v Marcos).
Pathological lying can lead to psychological
incapacity. Even if the psychiatrists do not
personally examine the party, the analysis made
on pertinent data regarding the subject may be
accepted in court (Antonio v Reyes).
The decisions of the National Appellate
Matrimonial Tribunal shall not be binding but
persuasive, because Canon Law was the source of
Article 36.
Jurisprudential Guidelines in Republic v Molina:
1) Burden of proof should be with the
plaintiff
2) The root cause of the psychological
incapacity must be:
a) Medically or clinically identified
b) Alleged in the complaint
c) Sufficiently proven by experts
d) Clearly explained in the decision
3) Judicial antecedence
4) Such must be incurable
5) It should be grave enough
Persons and Family Relations Notes
19
6) Essential obligations unfulfilled are those
found in Articles 68 and 220, 221 and
225 of the Family Code.
7) Interpretations of the National Appellate
Matrimonial Tribunal shall be persuasive
8) The trial court must order the prosecuting
attorney or fiscal and the Solicitor
General to appear as counsel for the State.
This has already been overturned in the
Supreme Court en banc resolution in
A.M. 00-11-01-SC.
However, in Te v Te, and the separate opinions in
Republic v Molina, it was stressed that each case
should be treated independently.
There is no bad faith on the part of the party who
was known to be psychologically incapacitated.
Hence, no damage can be awarded to the other
spouse (Buenaventura v CA).
Article 37
Incest creates not only an immoral institution of
incest, but also confusion in social placement.
There is also a scientific explanation to
prohibiting incest.
Article 38
It is the policy of the state to foster a normal,
peaceful, and wholesome integral family unit
which will constitute the very foundation of
society.
Marriages between collateral half-bloods are not
only allowed when between brothers and sisters.
There are two views with regard to half-blood
nieces and uncles, or nephews and aunts:
a) They are incestuous and void (Audley v
Audley)
b) In in Re Simms Estate, it was allowed
because had the legislature wanted to
qualify the prohibition as between half-
blood nieces and uncles, they would have
done so, same way with how brothers and
sisters of half-blood or full blood were
not allowed due to public policy.
John Psalmuel Velarde Chan

In affinity relationships, the husband creates an
affinity to all the consanguinity of the wife, and
vice versa. However, all relative of consanguinity
of the both parties do not have relationships of
affinity towards each other.
In Padlock v Wells, it was said that the death of
one spouse will terminate the relationship by
affinity, except when there are issues. In Carman
v Newell, it was said that the relationship will not
be terminated regardless if there are children r not.
In cases of an adopting parent and the adopted
child, they cannot marry, and they cannot marry
the spouses of another. But, the adopted can
marry the illegitimate child of the adopter, the
parents, or the relative of the adopter, whether by
consanguinity or affinity. If the adopter or the
adopted dies, the surviving spouse of the
deceased cannot marry the one surviving.
However, with a declaration of nullity, it might
be possible.
The killing of ones spouse, or the spouse of the
paramour for purposes of remarrying will not be
allowed. However, killing your spouse due to
self-defense, will of course allow you to marry
the lawyer who have helped you with the criminal
case. In this paragraph, a mere preponderance of
evidence will suffice. No conviction is required.
Article 39
The judicial decree does not dissolve the marriage,
it only affirms the voidness, non-existence or
incipient invalidity of the marriage.
Supreme Court said in Ninal v Bayadog that if
death extinguishes the cause of action, then it will
not be imprescriptible. This was overturned when
Supreme Court released a resolution A.M. No.
02-11-10 which said that after the death of one
party, the marriage cannot be assailed. Moreover,
the heirs cannot file the nullity of the marriage of
their parents or of their parents with their step-
parent (Enrico v Heirs of Medinaceli).
Before, psychological incapacity had a
prescription date of 10 years, if the marriage was
held prior to the effectivity of the Family Code.
Persons and Family Relations Notes
20
The Code took effect August 3, 1988, which
meant that marriage prior to the Family Code
should be assailed before August 1, 1998.
However, assailing marriages held after the
effectivity of the Family Code will not prescribe.
Note that the validity can be assailed collaterally
by any person, as long as the main issue is not the
validity of marriage, and its resolution is
necessary for the resolution of the lis mota of the
case.
Article 40
A subsequent marriage will be void without the
judicial declaration of nullity. This will apply to
marriages falling under 40, 52 and 53. In fact
additional requirements are given for the three
articles, one of which is the registration of the
judicial declaration, inter alia, to the local civil
registrar. Otherwise, the subsequent marriage will
be void.
*Is there a need to file for a judicial declaration or
nullity if the spouse is dead?
Judicial background of the judicial declaration of
nullity:
1) After 1954 and 1957, Supreme Court
ruled that there was no need for judicial
declaration of nullity (People v Mendoza
and People v Aragon).
2) In Gomez v Lipana and Conseguera v
Conseguera, 1970 and 1971 respectively,
the Supreme Court reversed the doctrine.
3) In Odayat v Amante and Tolentino v
Paras, the Supreme Court went back to
the original doctrine (1977 and 1983).
4) Wiegel v Sempio Diy reversed the
doctrine and required a judicial
declaration again in 1986.
5) In the same year, the Court reverted back
to the original (Yap v CA).
The Family Code took effect on August 3, 1988,
which required it. Hence, the ruling doctrine was
that of Gomez v Lipana.
John Psalmuel Velarde Chan

In Domingo v CA (1993), the Supreme Court
explained that the reason for such decision by the
Family Code Committee was to remove the
power to decide the validity, or invalidity for that
matter, from the hands of the individuals. The
proposal was from Justice Caguioa.
The Code Commission agreed to limit the
necessity of a judicial declaration to remarriage,
because collateral attacks to the marriage should
still be allowed.
Also note that the word solely does not mean that
the judicial declaration may be invoked only for
purposes of remarriage. It is the other way around.
The ability to remarry may only be invoked on
basis of a judicial declaration.
This is necessary to ensure that the inviolable
institution of marriage is not reduced to mockery
(Domingo v CA). Moreover, this is to do away
with any continuing uncertainty on the status of
the second marriage (Valdes v RTC).
The validity of the marriage can be collaterally
attacked on an issue for support (De Castro v De
Castro), but this ruling reiterated that for purposes
of remarriage, the only acceptable proof is a
judicial declaration of nullity of marriage.
Article 40 and bigamy- there are two sets of
provisions that declare a subsequent marriage
void on ground of the first marriage. These are:
1) Articles 40, 52 and 53- first marriage is
void
2) Articles 35(4) and 41- bigamy
The subsequent marriage under Article 40, 52 and
53 is void, but it should not be bigamous, because
there are specific provisions that concern
bigamous marriages. Note that bigamous
marriages need a valid or annullable marriage.
However, in Carino v Carino (2001), the Supreme
Court ruled that the subsequent marriage is a
bigamous marriage, because the previous
marriage, although solemnized without a license,
was still presumed to be valid. Hence, there is no
Persons and Family Relations Notes
21
more distinction between Article 40 and Article
41 of the Family Code.
Article 40 and Criminal Bigamy- Bigamy under
Article 349 of the Revised Penal Code requires
that a subsequent marriage is solemnized prior to
the dissolution of the first marriage or the
declaration of presumptive death of the spouse.
Hence, there should be a valid or annullable
marriage, because the phrase is dissolution.
Moreover, the second marriage should be void on
ground that it was bigamous, not any other reason.
If there are other reasons, then there is no bigamy.
In Mercado v Tan, Supreme Court ruled that the
petitioner was guilty of bigamy, because a
judicial declaration of marriage has yet to be
acquired when he married another person. Hence,
this ruling implies that the crime of bigamy is
committed not on basis of the validity of the first
marriage, but the absence of a judicial declaration
of nullity of the first marriage.
Justice Vitug stressed a strong dissent in the case.
The phrase legally dissolved only referred to a
valid or an annullable marriage and said that the
judicial declaration of nullity is not a requirement
contemplated in the Revised Penal Code. In fact,
in People v Aragon, Supreme Court said that a
judicial declaration of nullity is not necessary to
defend one from a charge of criminal bigamy.
Other proof or evidence may suffice.
The comment of Justice Sempio-Diy found in her
Handbook on the Family Code of the Philippines,
said that Article 40 was created to require a
spouse to acquire a judicial declaration of nullity
of his or her first marriage, in order to protect him
or her from being charged with bigamy.
The converse meaning of this comment is that
anyone who is unable to get a judicial declaration,
who whereby enters a second marriage, can be
prosecuted of bigamy under the Revised Penal
Code. This should not be the case. Looking at the
elements of bigamy:
1) Offender is legally married
John Psalmuel Velarde Chan

In People v Mendoza, Supreme Court said that a
prosecution based on a void marriage cannot lie.
This was reiterated in People v Aragon.
2) The marriage has not been legally
dissolved or in case the spouse is absent,
the absent spouse has yet to be declared
presumptively dead.
3) The offender contracts a second or
subsequent marriage
4) The subsequent marriages has all the
requisites of validity
Hence, a person who contracts a subsequent
marriage without a judicial declaration of nullity,
even if the first one is void, will not be guilty of
bigamy, because the subsequent marriage is void
not because of bigamy, but because of Article 40,
52 and 53. However, he can be subject to criminal
liability under Article 350 of the RPC, which is
about contracting a subsequent marriage without
fulfilling the requirements of law, but not Article
349.
In People v Aragon, Supreme Court said that had
the legislature intended the necessity of a judicial
declaration of nullity to be a requisite to be safe
from a bigamy charge under Article 349, they
would have said so. If there are doubts, we
construe it in favor of an accused.
The rulings in Aragon and Mendoza do not come
into conflict with the ruling in Domingo, which
stated that a judicial declaration of nullity is the
only admissible proof of the nullity of the former
marriage. Note that the issue in Domingo is civil,
not criminal. Hence, any implication in the case
of Domingo, suggesting that bigamy cases need a
judicial declaration of nullity to be defended, is a
mere obiter dictum.
*The requirement of a judicial declaration of
nullity to defend a bigamy case is self-defeating.
In the rulings of the Supreme Court in Te v CA,
Mercado v Tan, suggested that the civil case of
judicial declaration of nullity cannot be a
prejudicial question to a bigamy case. If the
Supreme Court argued that the bigamy case was
consummated at the time where the declaration
Persons and Family Relations Notes
22
was yet to be acquired, then this implies that the
first marriage is definitely valid. This may impair
the right of one to question the validity of the first
marriage. But then, he is not allowed to do so,
because the criminal case of bigamy cannot be
suspended for the declaration of nullity of the first.
Articles 41-42
Bigamous marriages are generally null and void
(Gomez v Lipana). However, a bigamous
marriage can exist if the first spouse has been
declared presumptively dead, allowing the
present spouse to remarry.
Note that a summary proceeding is already
required. This was not required in the Civil Code
(Valdez v Republic).
If the spouse reappears and files an affidavit of
reappearance in the civil registry, then the
marriage is extra-judicially terminated. Of course,
when the reappearance is disputed, a judicial
proceeding will decide the question of fact.
Should the absent spouse reappear but not file an
affidavit, a bigamous marriage will exist.
After the judicial declaration of presumptive
death, the liquidation of the first marriage should
occur. If there is no liquidation, the property of
complete separation will govern the second
marriage.
Sta. Maria:
However if there were a liquidation, the parties
may agree in the settlement as to what type
of property regime will govern their marital
relationship and, in the absence of such marriage
settlement or when the latter is void, the spouses
shall be governed by the absolute community of
property regime. If the marriage is void, then the
rules of co-ownership will apply and the
properties will be liquidated in accordance with
the said rules.
Note that the issue on succession of the absent
spouse may only be opened after an absence of 10
years (Article 390 of the Civil Code). If above 75,
5 years is sufficient. Should the person be gone
John Psalmuel Velarde Chan

due to reasons laid down in Article 391, four
years will be sufficient.
In Republic v Nolasco, Supreme Court reiterated
the necessity of a well-founded belief that the
absent spouse is already dead. This was not
required in the Civil Code, as the absence of news
will suffice. The present spouse should search for
the wife with due diligence, and in the case, he
went to Liverpool instead of London, contrary to
existing leads. The failure to show the efforts to
inquire about friends, relatives, or government
authorities raises a doubt as to the due diligence
Nolasco gave.
The judicial declaration of nullity is the best
evidence to prove a well-founded belief, and is a
shield against bigamy, adultery, or concubinage
causes (Manuel v People).
The sworn statement of reappearance can be filed
by any interested party, and the subsequent
marriage of the present spouse shall be terminated
after the recording of such sworn statement.
The view of Sta. Maria is that when the authentic
reappearance of the absent spouse is verified,
then the judicial declaration of presumptive death
should be rendered functus officio.
On the issue of the possibility of a bigamous
marriage, the State shall protect the second wife
more, because had the first wife wanted to assert
her rights, it would have been easy for her to file
an affidavit of reappearance.
Is there a possibility for the subsequent spouse to
file sexual infidelity to the spouse who continued
to have relationships with the previous one, to
whom he or she is validly married anyway?
Article 349 of the Revised Penal Code
provides that the penalty of prision mayor shall
be imposed upon any person who shall contract a
second or subsequent marriage before the former
marriage has been legally dissolved, or before the
absent spouse has been declared presumptively
dead by means of a judgment rendered in the
proper proceeding.
Persons and Family Relations Notes
23
Articles 43-44
Children conceived during the subsequent
marriage are legitimate. Despite the non-
observance of Article 40, 52 and 53, Article 41
presents a case where a valid subsequent marriage
or a valid bigamous marriage may bear a child.
Regardless of existence of bad faith to one of the
parties, the child will be legitimate. However, if
the marriage was conducted in bad faith by both
parties, then the child will be illegitimate.
The property regime shall be dissolved and
liquidated. All debts of the property regime shall
be paid first, before being divided to spouses,
unless one waives his right.
Net profit is defined as the value of the property
during the solemnization of the marriage minus
the value of it during the dissolution.
If both parties acted in good faith, then donations
are valid. If the donor acted in bad faith, the
donation will still be valid. If the donee acted in
bad faith, the donation is ipso jure revoked (by
operation of law). If both acted in bad faith, all
donations are revoked.
In Article 44, it is said that if both acted in bad
faith, testamentary dispositions made by one in
favor of the other are revoked ipso jure. In this
case, the spouse who contracted the marriage in
bad faith shall also be unable to receive
inheritance, whether testate or intestate. Even
though the provision only talks about
testamentary dispositions, the mere fact that the
marriage is void means intestate succession is
also legally impossible.
Suppose the would-be spouse of the present
spouse saw the absent spouse, but the present
spouse still had the well-founded belief that the
absent spouse is dead. Will the marriage be void?
The answer is no, because Article 44 requires bad
faith on both parties.
Article 45
The remedy of annulment is provided by the
legislature to balance the public interest in
John Psalmuel Velarde Chan

preserving the sanctity of marriage, but also
balancing public welfare.
There should be clear and undeniable proof
(Buccat v Buccat).
Unsound mind means that the person has a mental
incapacity to understand or assent the marriage
contract. Other mental incapacities irrelevant to
consent will not be acceptable under Article 45.
Fraud contemplated in Article 45 is restricted to
those enumerated in Article 46. The list is
exclusive (Anaya v Palaroan), and even though
other acts may constitute fraud, graver ones at
that, so long as they do not fall to the list provided
by the Family Code, there is no claim for
annulment under this paragraph.
Concealment of a conviction involving moral
turpitude is fraud. Turpitude means inherent
baseness, vileness or depravity in the private and
social duties which a man owes to his fellow men
or to society in general, in contrary to accepted
rule of right and duty between man and man,
comprehended by the intentional taking of human
life contrary to law (In Re Basa).
The burden of disclosure falls to the ex-convict.
There is no necessity for the innocent party to
search for criminal records.
Concealment of pregnancy as ground for fraud is
necessary to avoid a marriage where a man takes
care of a child who is not his. Note that
concealment has to be made in bad faith. A
woman who had sexual relations with a man prior
to marrying another, who was diagnosed to be
barren, but turned out to be impregnated the
previous lover is not guilty of concealment.
If a woman does not inform a husband of the
pregnancy, albeit the supposed obviousness, the
pregnancy being at the 7th month, the man cannot
claim to have been fooled (Buccat v Buccat).
However, in Aquino v Delizo, where a naturally
plump woman was four months pregnant at the
time of the marriage did not disclose the existence
of such pregnancy to the husband, the Court ruled
against the woman.
Persons and Family Relations Notes
24
However, if the wife discloses the pregnancy to
the husband, and fools him into thinking that the
child was his, but the man knew that the wife was
unchaste, cannot claim annulment (Foss v Foss).
Note that a woman who induces a man to marry
her because of a made-up pregnancy resulting to
the sexual intercourse between them, the fraud
will not constitute a ground for annulment.
A person who has a fixed habit of getting drunk
is guilty of habitual alcoholism (Lewis v Lewis).
There is no need to be drunk all the time.
Homosexuality or lesbianism are grounds for
annulment not because they cannot perform
marital obligations per se, but because the
opposite-sex relationship contemplated in
marriage requires physical and psychological
constitution of both parties, and might not be
possible given that they are not attracted to the
opposite sex. Note that there has to be
concealment of this sexual preference or
orientation.
Vitiated consent can be a ground for marriage, but
there has to be a preponderance of evidence. A
husband claiming to be in a marriage with vitiated
consent, but is overwhelmed by evidence they
have been living as a husband and wife for more
than 5 years, cannot be granted annulment
(Donato v Luna).
In Villanueva v CA, Supreme Court said that the
creation of a reasonable or a well-founded fear of
a grave and imminent danger to his life and safety,
without the clear proof of intimidation, cannot lie.
Given that the petitioner is a security guard, and
that there were a lot of instances where he could
have reported the incident to authorities, failure
to do so amounts to a free consent.
Physical incapacity is not just impotence, because
impotence is a limited term. For one, women
cannot be impotent, because the term is only for
males. Note that psychogenic causes causing
physical incapacity can fall here (Alcazar v
Alcazar). The extensive sensibility of the female
organ, rendering the impossibility of
consummation because of great pain on the part
John Psalmuel Velarde Chan
 25

of the woman, can also be a ground. If the wife 3) For fraud, after the knowledge of fraud,
got the physical incapacity after the marriage, the injured party cohabited with his or her
then no annulment can happen under this spouse.
paragraph. Further, the incapacity must be 4) For force, intimidation or undue
continuous and incurable. influence, after such things stop, and the
injured party cohabited, the marriage is
Selective impotency can occur. This is why the presumed to have been ratified.
provision refers to incapacity with the other
spouse. Using the rule of triennial cohabitation, Note that for numbers 5 and 6, physical
if no consummation occurs, the presumption of incapacity and sexually transmitted disease, it is
potency may be overturned, causing a prescription and not cohabitation, which ratifies
presumption of impotency, if the wife remained the marriage.
to be virgin after 3 years.
Article 47
*Does this refer to being a virgin overall, or only
with respect to the husband? Annulment proceedings are actions in rem for
they concern both the parties and the world.
Sterility is not the same as impotency. A man who Hence, the RTC can only have jurisdiction if
is sterile can still engage in sexual coition either of the parties is Filipino. The exception is
(Menciano v San Jose). that if the national law of the spouses would
renvoi back to the law of the domicile. In any case,
Sexually transmitted disease as a ground for
we do not follow the lex loci celebrationis in
annulment is to ensure that transmission will not
annulment case (Rayray v Chae Kyung Lee).
occur not only to the spouse but also to the
children. A parent may never file a case for annulment
except those that fall under Article 45 (1) and (2).
Ratification:
But even in these cases, the parent has to allege
1) A wife who married her husband the benefit of such annulment to him or her, not
between the age of 18 and 21 without the just to their children (Siman v Leus).
consent of parents, who after reaching the
In a marriage with an insane spouse, if the sane
age of 21, freely cohabited with him as spouse already knew of the insanity prior to the
husband and wife, provided that the marriage, he will be estopped.
parents did not institute annulment
proceedings prior to her reaching the age
of 21.
2) If an insane party, after coming to reason
temporarily or permanently, freely
cohabited with the sane party. Following
this logic, a sane spouse who found out
that the other party was insane after the
marriage, and who has freely cohabited
with the latter, cannot be considered as
ratification. He/she has the right to annul
the marriage until such time that the
insane party has come to reason and
ratified the marriage. After such, no
annulment can happen.

Persons and Family Relations Notes John Psalmuel Velarde Chan


In the cases provided in Article 45(3), (4), (5) and
(6), the person who has the standing is the injured
party.
However, if there is cohabitation, anywhere in the
5-year prescriptive period under those grounds
that can be subjected to cohabitation, the legal
standing is erased.
Articles 48-49
This procedure is governed by Supreme Court en
banc resolution A.M. No. 00-11-01-SC (March
15, 2003).
Upon filing of the case, the impleaded party shall
be given 15 days from the receipt of summons.
Failure to file an answer will not declare the case
in default. The State will have to see if collusion
is present, and the case will proceed. Failure or
deliberate refusal to answer may be an evidence
to collusion, but it does not ipso facto prove it.
Note that a declaration in default, albeit
erroneously declared, is still a valid judgement.
No compromise agreement can be valid
(Mendoza v CA). Article 48 prohibits judgement
based on stipulation of facts by parties or by
confession of judgement.
While Article 48 does not mention of the Solicitor
General, he can definitely intervene as
representative of the State. The fiscal or the State
can either defend a marriage or expose an invalid
one.
The agreement with regard to the separation of
property is not collusion.
The absence of a collusion may be ascertained
from the adversarial behavior of both parties, who
are vigorous in presenting adversarial pieces of
evidence to state their claims.
Article 48 (and Article 60 for legal separation)
should not be strictly construed. If there is no
evidence of collusion, and the fiscal did not
intervene, this shall not affect the validity of the
legal proceedings (Tuason v CA).
Persons and Family Relations Notes
26
The desire of the defendant for the divorce to
happen and makes no defense, is not by itself
collusion.
A judge who does not order the fiscal to
investigate for collusion may be administratively
liable (Corpus v Ochotorena).
With regard to support in Article 49, the parties
shall be supported from the properties of the ACP
or the CPG. Support pendente lite and custody
pendente lite may be invoked.
Article 213 of the Family Code states that no
child under 7 years of age shall be separated from
his or her mother. Exception is if there is
compelling reason.
Articles 50-51
The dispositive conclusion of the judge shall state
the factual and legal basis of the judgement. No
relief can be granted which is not based on the
allegation. Should a court render a judgement not
based on the allegation, it is void for being coram-
non-judice. However, if such judgement is not
assailed in a motion for reconsideration or on
appeal, then it will be effective (Lam v Chua).
In Tuason v CA, Supreme Court ruled that the
findings of the trial court with regard to
psychological incapacity will be binding to the
Supreme Court, unless it can be shown that the
trial courts proceedings are erroneous.
No separate civil action to settle the incidental
issues of the annulment is required (Domingo v
CA).
Since the provisions of Article 43(2), (3), (4), (5)
apply to Article 40, and Article 40 is an instance
where the subsequent marriage is only void
because of the lack of a judicial declaration of
nullity, the property shall be governed by ACP or
CPG. This is the exception to the general rule that
only void marriages are governed by co-
ownership.
The ruling in Nicdao Carino v Carino is erroneous
because it said that since the subsequent marriage
without a judicial declaration of nullity of the
John Psalmuel Velarde Chan
 27

previous marriage is void under Article 40 3) Delivery of the presumptive legitimes

because it is bigamous, then co-ownership will
This is necessary to bind third persons. Again,
rule. However, in this case, the provision of the
note that the third number is not required for void
Family Code under Article 50 with regard to
marriages not under Article 40 in relation to
delivering presumptive legitimes will be rendered
useless. Articles 52 and 53.
If the marriage is terminated by death, the
In other marriages rendered void, the conjugal
dwelling will be co-owned, in the absence of requirements for remarriage reverts back to
proof that it is the exclusive property of one. The Articles 2 and 3. Failure to liquidate will only
void marriage in Article 50 and 51 in relation to result to a property regime of complete separation
Article 40 will award the dwelling to the spouse of property to the subsequent marriage.
where majority of the children choose to remain. The proper local civil registry is the same place
where the judicial judgement was rendered and
The rights of creditors shall be protected, such
that for instance, when a party in a conjugal the local civil registry where the marriage was
solemnized.
partnership of gains waives his rights to the
partition in favor of the other spouse violates Children conceived or born out of void marriages
some debt, it cannot be done. are illegitimate, except those conceived or born
under Article 54.
In annulment cases or in judicial declarations of
nullity, there has to be a motion for If a child was conceived and born before the
reconsideration filed before the 15-day grace marriage, then it is legitimate. However, the
period. Failure to file such motion will disable the marriage of the spouses will render him
parties to file an appeal. legitimate.
Presumptive legitimes are instituted to protect Supreme Court En Banc Resolution A.M. 02-
children of the marriage, so that they will have a 11-10-SC
share of the property even when the parent
subsequently enters into a marriage under the Only the husband or the wife can file for a petition
absolute community of property regime. It is for absolute nullity of marriage. This may be filed
given when the marriage is annulled, or when the in a family court.
marriage is void under Article 40 in relation to
Articles 52 and 53. The other grounds for void
marriages will not have this requirement.
Articles 52-54
Valdes v RTC is the doctrinal case with regard to
partition of property and delivery of presumptive
legitimes in cases of marriages declared void
under Article 40 in relation to 52 and 53.
The following shall be recorded in the civil
registry and registry of property:
1) Judicial declaration of nullity or
annulment
2) Partition and distribution of the ACP or
the CPG

Persons and Family Relations Notes John Psalmuel Velarde Chan


Title II- Legal Separation
Article 55
Also called relative divorce, but there is no
severance of the vinculum (Laperal v Republic).
There is a separation of bed and board or a mensa
et thoro, and it can be revoked upon manifestation
of both spouses in court.
The grounds for legal separation follow the
maxim of expressio unius est exclusio alterius,
and no other ground may be invoked outside the
enumeration. This is in line with the policy of the
State for the preserving of the marriage bond.
The ground of repeated violence does not include
violence against the child of the guilty spouse.
Legal separation may not be invoked if the
violence is not against the child of the petitioner,
their common children, or the petitioner
himself/herself.
*Although legal separation may not be invoked,
termination of parental authority (Article 231 of
the Family Code) or other causes of action may
be existing.
The frequency, and not the severity, is the
determinative factor for repeted physical violence.
However, the phrase grossly abusive conduct,
being general itself, can include a single but very
severe act of violence e.g. slander by deed,
choking, etc.
*As a lawyer, a grossly abusive conduct may be
a manifestation of psychological incapacity under
Article 36.
In American jurisprudence, even verbal abuse can
be cause for divorce. This can fall under grossly
abusive conduct.
Article 55(2) talks about violence used to force a
change in religious or political affiliation. Here,
the violence can be done once, but if the objective
of which is to make the spouse sacrifice his/her
political/religious identity, then it can be invoked
as a ground.
Persons and Family Relations Notes
28
With regard to corrupting or inducing a child to
engage in prostitution, the child may be or not be
emancipated. The only immoral act
contemplated in Article 55(3) is prostitution,
nothing else. Note that an attempt is enough to
invoke legal separation.
The fourth ground is a final judgement involving
a penalty with more than six years. The penalty
contemplated here is prision mayor. It does not
matter if the spouse is pardoned, the fact of the
conviction will not be erased.
Drug addiction, habitual alcoholism, lesbianism,
homosexuality- these can exist even after the
marriage has started. Drug addiction and
alcoholism are grounds because they affect the
judgement and behavior of the spouse.
Lesbianism and homosexuality are do not affect
the mental state of spouses. They are not
afflictions, but the law probably presumes that
having a homosexual and heterosexual in a
relationship may not work.
For bigamy, it does not matter if the subsequent
marriage is conducted abroad. This can be a
ground for legal separation upon judicial
cognizance of the fact. However, if the marriage
is contracted abroad, then guilty spouse may not
be prosecuted for criminal bigamy.
For the ground of sexual infidelity, the infidelity
must be sexual. But sexual might not necessarily
mean sexual intercourse. Intimate love affair
might do. It does not necessarily have to be
concubinage or adultery, because those felonies
require proof beyond reasonable doubt. Mere
preponderance of evidence of sexual infidelity
may be cause for legal separation. The grounds
for concubinage, for instance, are:
1) Maintaining a mistress in the conjugal
dwelling
2) Sexual intercourse with another woman
under scandalous circumstances; and
3) Cohabiting with her in any other place
In Tenchavez v Escano, the fact that the Filipino
wife obtained a divorce abroad and married a
John Psalmuel Velarde Chan

foreigner constituted intercourse with a person
other than her husband.
Sexual perversion towards the spouse or any
other person can be ground for legal separation.
However, if the other spouse condones the sexual
perversion, then it cannot be invoked by that
spouse. Examples are bestiality or even anal sex.
An attempt on the life of a spouse can be a ground,
but malice or dolo must be present. For instance,
attempting to kill the other because he or she was
caught in flagrante delicto having carnal
knowledge with a neighbor cannot be invoked by
the infidel.
Is a criminal conviction necessary? No, a
preponderance of evidence that proves the
attempt on the life of the other can do.
In the case of abandonment, it must be willfully
done. There must be a complete disregard of the
spouse intentionally. Mere severance of the
relation is not sufficient (Tipton v Tipton). If for
instance, the wife left the husband for work, or
because she was a battered wife, the Supreme
Court said that the husband cannot invoke this
ground (Ong v Ong).
If the spouse who left the conjugal home still
supports the family, then it the leaving of the
house will not fall into the meaning of
abandonment. In the case of Partosa-Jo v CA,
the SC defined abandonment as an absolute
cessation of marital relations, duties, and rights,
with the intention of perpetual separation. It
implies a total renunciation of his or her duties.
If both spouses decide that they live separately,
the other spouse who is left in the conjugal home
cannot suddenly invoke abandonment (Smythe v
Smythe).
In a scenario where one abandoned the other, but
became insane after 6 months, can the other
spouse invoke legal separation by the time the
abandonment reaches a year? No, the 6 months
where the absent spouse was insane cannot be
counted, because the willful intention not to go
Persons and Family Relations Notes
29
back to the conjugal dwelling cannot be
ascertained (Wright v Wright).
Article 56-57
This Article refers to acts that nullify the grounds
for legal separation.
Condonation refers to the act of forgiving the
offense AFTER its commission. It is possible for
the offended spouse to give conditional
condonation, that if the offending spouse goes
back to the bad behavior again, it can revive the
offense.
In Ocampo v Florenciano, SC said that failure of
the husband to look for adulterous wife does not
mean condonation. It is not the duty of the
husband to look for the wife. Hers is the duty to
return.
Providing support and the absence of an action
against the erring spouse can imply condonation.
Sexual intercourse is not required to mean
condonation, but sexual intercourse means
condonation (Almacen v Baltazar).
Note that if the aim of reconciliation is only to
save the marriage, and not to forgive, there is no
condonation.
Consent means that both parties agreed, or did not
object, for an act to be done. If both parties agreed
to an open marriage, then sexual infidelity cannot
be invoked. Consent does not mean verbal or
written only, it can be implied from acts.
The third ground, connivance, implies collective
planning from both spouses. When one spouse
agrees to the objective of an act, then any harm
that will come to him or her cannot be invoked.
This is the principle of volenti non fit injuria, also
called the doctrine of unclean hand.
When both spouses have equal guilt or
recrimination, a ground for legal separation may
not be invoked. They are in pari delicto, because
one who comes into equity must come with clean
hands. Assuming both acted in bad faith, then it
can be seen as both as acting in good faith.
John Psalmuel Velarde Chan

In Ong v Ong, the husband sought the dismissal
of a legal separation case by the wife because she
abandonment him, but after knowing that the
cause of the abandonment was physical beating,
the Supreme Court said that there was no mutual
guilt, but even a valid ground for the wife to
invoke legal separation because of abuse.
Collusion is closely related to connivance,
because both mean deliberate planning. The test
is to see if the goal of the plan is to obtain legal
separation itself. If yes, it is collusion.
*If in a legal proceeding for legal separation, the
wife said that after what her husband has done,
she already liked to obtain the legal separation,
does this mean collusion or connivance? No,
there must be proof that a prior agreement was
made.
An action for legal separation must be filed within
5 years from the occurrence of the cause. Hence,
a later discovery of the fact cannot move the start
of the prescriptive period.
Article 58-62
Supreme Court Resolution En Banc, A.M. No.
00-11-01 SC governs the procedure for legal
separation. Upon filing, there is a 15-day period
for the other spouse to receive the petition and the
summons. If the other party defaults, the
prosecuting attorney must be order to look into
the possibility of collusion.
However, if it is seen that there is vehement
adversity between them, then it may be presumed
that collusion does not exist. The non-
investigation will not mean the dismissal of the
case, if other evidence can prove that collusion
did not exist (Tuason v CA).
Even if the other party does not answer, the trial
will not proceed until after 6 months. This is the
cooling-off period. This allows both spouses to
heal because the State would want the marriage
to be preserved as much as possible.
There is an exception to the cooling-off period,
and this is provided in RA 9262 (Anti-VAWC
Persons and Family Relations Notes
30
Act). When abuse and violence is alleged to exist,
there is no point waiting for 6 months. This may
put the mother and the child to peril.
Assuming the judge continued with the trial and
did not wait for 6 months, will the decision be
valid? No, the Supreme Court said in Pacete v
Carrianga that non-compliance, except when the
case falls to the exception, will mean infirmity of
the decision.
Do note that what is prohibited during the 6-
month moratorium is the hearing of the validity
of the ground for legal separation, other
peripheral issues may be discussed, such as a
claim for support pendente lite.
Can a civil case for legal separation because of
adultery push through, even if a criminal case for
the same felony is being undergone in another
court? Yes, the issue in the civil case is not to
enforce liability arising from the offense (Rule
111, Section 3 of the Rules on Criminal
Procedure), but to achieve legal separation.
Of course, when the petition for legal separation
is denied, this does not mean that the couples
cannot live separately in fact. Even the
declaration of legal separation cannot stop the
couples from seeing each other still, anyway.
During the course of the suit, the court shall
designate either of the spouses or any third person
to administer their ACP or CPG. This will only
occur if there is no prior written agreement
between the two.
In case where the other party dies during the
pendency of the legal separation case, then the
case will die also. Actio personali moritur cum
persona. Hence, effects of legal separation, such
as the loss of right by the offending spouse to any
share of the profits of the conjugal partnership,
may not be tried after the death of either spouse.
Given that the decree is not handed down by the
court, then the rights that might arise after such
decree cannot be fought for.
Article 63
John Psalmuel Velarde Chan

In Macadangdang v CA, the Supreme Court said
that once the decree has been handed down, and
the time for appeal has lapsed, then the legal
separation becomes final. Even if the effects have
yet to be settled i.e. dissolution and liquidation of
property, the legal separation itself is binding
already.
Note that the marriage bond is not severed. Hence,
the commission of bigamy, concubinage or
adultery may be commenced, because both of
them are still tied to the marriage.
In a legal separation decree, the offending spouse
shall have no right to the profits of the ACP or the
CPG, and it shall be forfeited in favor of the
common children, the child of the guilty spouse,
or the wife. The innocent spouse shall be given
the custody of the child, but this is not an absolute
rule. The best interest child principle is still
paramount. This should be read in conjunction
with Article 213 of the Family Code, where the
child shall not be separated from the other if
below 7 years old.
In legal separation, the offending spouse shall be
disqualified in both testate and intestate
succession. Upon reconciliation, the law does not
say whether the right to inherit will also be
revived. In Article 921(4) of the Civil Code, once
the spouse disinherits the other because of a
ground for legal separation, such disinheritance
will be rendered ineffectual upon mutual
reconciliation.
Article 64
Acts of liberty involving insurance benefits spent
for the offending spouse may be revoked, even if
the contract says its irrevocable.
In valid donations, the offended spouse should
file for a revocation of the donations within 5
years after the decree. However, if the donation is
void under Article 87, the right to recover the
donation will not prescribe.
The written notice of the revocation must be
given to the insurer of the benefit, and not to the
Persons and Family Relations Notes
31
insured, to ensure that the insured will not get any
benefit from the source.
*The remedy might be to give both written notice
to the offending spouse (insured), and the
insurance company.
Article 65-67
Reconciliation can occur through joint
manifestation in court. It can be done prior to the
decree of legal separation, or after. Upon such
manifestation after the decree, the property
relations will remain the same. There is another
required agreement to revive the former regime.
In case of revival of the former regime, the right
of the creditors must be protected. In Supreme
Court En Banc Resolution A.M. No. 02-11-12, it
was stated that a new regime may be adopted by
the spouses. According to Sta. Maria, this may be
a departure to the substantive limitations
provided by Articles 66 and 67.
The first view is against the application of this
new procedural rule decided by the Supreme
Court. Looking at Article 88 and Article 107 of
the Family Code, the framers intended that the
regimes of ACP and CPG cannot commence at
any time during the marriage. It can be argued
that allowing an adoption of a new regime is ultra
vires.
The second view allows for more liberality in
construing Article 66(2). Although it talks about
reviving the old property regime, it does not talk
about a restriction to the possibility of adopting a
new one. To not disallow is to allow. However,
even this view is not fully applicable. A couple
who entered into ACP cannot switch into CPG or
vice-versa, because Article 88 and 107 will
prohibit such. Hence, they can choose to adopt a
regime other than what they initially had, so long
as it is not switching to ACP or CPG. Most likely,
this will be a self-devised regime.
On the issue of inheritance, the Family Code does
not provide whether the provisions of a will
revoked by operation of law after the decree of
John Psalmuel Velarde Chan

legal separation will automatically be revived
upon the reconciliation of the spouses.
Note that the revival must be recorded in the
proper civil registry in order to prejudice creditors.
This should be coupled by listing of the creditors,
and the notification of the creditors. Without
these, creditors can foreclose properties even if
the spouses decided to include such properties to
their ACP or CPG.
A.M. No. 02-11-11 SC
Only the husband or wife can file a petition for
legal separation. The venue shall be the place
where either of the spouses have resided for 6
months.
Title III- Rights and Obligations between
Husband and Wife
Article 68
The basic end of marriage is procreation (Chi
Ming Tsoi v CA).
The court cannot compel one to live together,
observe mutual love, respect and fidelity to the
other spouse. The only compellable duty is
support. Hence, this Article compels spouses
because of a moral, not a legal obligation.
In Lacson v San Jose-Lacson, Supreme Court
said that the obligation to fulfill marital duty is a
very personal one.
Hence, a wife that leaves the conjugal dwelling
may not be compelled to go home. The remedy
for the husband is legal separation.
Breach of marital obligation is not actionable for
civil damages (Ty v CA). This is absurd, because
the husband will be paying the wife with conjugal
funds. However, the individual is not bereft of
legal remedy. If the property regime is separate,
the offended spouse can invoke Article 19, 20 or
21, instead of Article 68. The abuse of right
doctrine can be used to ask for damages. This is
what happened in Tenchavez v Escano.
It is possible for marital rape to exist. The fact that
Article 226-C of the RPC recognizes the
Persons and Family Relations Notes
32
possibility of a wife forgiving the husband for
rape, means that rape inside marriage can still
occur.
Prior to RA 9262 and the amendment of Article
226-C or the RPC by RA 8353, there was no
concept of marital rape, even if the husband used
force to have carnal knowledge of his wife.
Justifications are: 1) they are not separate legal
existence. The husband cannot rape himself
(State v Smith), or 2) upon marriage, there is
already consent from the wife to have sexual
intercourse anytime.
Matrimonial exemption from the crime of rape is
already repudiated, given the recognition of
womens rights in Philippine law. Women are not
thought of being one as their husband, as personal
liberty is recognized. The reclassification of rape
as a crime against persons and the indication that
marital rape can exist was done under RA 8353.
Article 69
The domicile of natural persons is the place of
their habitual residence (Article 50 of the Civil
Code). Hence, they can only have one domicile
but many residences.
However, the decision of domicile should be
made by both spouses, and this is a change in the
concept of womens rights (Romualdez-Marcos v
COMELEC).
The court can exempt one spouse from living with
the other upon discovery of a valid ground.
Articles 71-72
Spouses are jointly responsible for the support of
the family. Article 94 and Article 121 of the
Family Code said that the regimes are liable for
the support of the family. In case of legal
separation, petition for annulment or declaration
of nullity, the ACP or the CPG shall support the
spouses and their children.
In the absence of ACP or CPG, the income or the
fruits, or the separate properties will be liable for
the support of the spouses and their children. The
spouses will be solidarily liable in this case.
John Psalmuel Velarde Chan

The management of the household is a joint
responsibility, even though it is only owned by
one spouse. Relief may be applied for if the other
spouse fails to do so.
Article 73
No prior consent is needed in order to practice a
legitimate profession. In fact, compulsion not to
engage in a legitimate business may be a form of
violence against women in RA 9262.
In Ayala Investment v CA, the Supreme Court
said that a legitimate profession of either spouse
does not necessarily mean that the benefit of such
will redound to the family. Hence, the liability of
the ACP or the CPG will not always be present, if
the profits of the legitimate profession will not
have a direct benefit to the family.
When there is a disagreement, the objection must
be based on valid and serious grounds. The courts
shall decide if the disagreement is based on a
valid cause. It can be judicially stopped if proved
to be immoral or seriously dishonorable to the
family.
In case of disagreement, the Court will also
decide whether the benefit from the profession
has accrued to the family prior to the objection or
after. If the objection occurred after the benefit
has accrued, the obligation should be enforced
against the separate property of the person who
has not obtained consent. This is because the
other spouse is presumed not to have known
about the benefit, and the objection was made
against the immoral profession. However, if the
objection is already made prior to the benefit, it
cannot be said that he did not know of the usage
of the funds for the benefit of the family. Hence,
the ACP or the CPG should be liable for the
obligations arising from the profession.
It is notable, however, that the initial intent was
to make the community property liable if the
benefit has already redounded before the
objection, and to make the separate property
liable if the objection has already been made. An
error in printing might have been made, but the
law is the law.
Persons and Family Relations Notes
33
Title IV- Property Relations between Husband
and Wife
Chapter 1
General Provisions
Article 74-77
Marriage attempts to create a complete
community of existence (Saclolo v CAR).
Husband and wife cannot sell property to each
other. Exceptions: 1) there is a complete
separation of property regime, and 2) there is a
judicial declaration of separation of property
In cases of donation made to another, the right to
accretion as a general rule does not exist.
However, Article 753 of the Civil Code allows for
the right to exist, if the donation is given to a
husband and wife.
Oral marriage settlement is not valid even if
particle execution or non-objection is argued.
Under Article 88 and 107, the parties are barred
from deciding that their property regime will
commence at a time other than their marriage.
No donation can be given to your spouse during
marriage (Article 87).
Article 103 and 130 prohibit a surviving spouse
who did not liquidate their previous property
from entering into any other property regime
except the complete separation of property
regime.
Marriage settlements only cover property rights,
but not personal rights and duties of the spouses.
Children may not be divested off their legal rights.
With this, prospective-spouses can create any
property regime which will not contravene the
law.
In order to prejudice third persons, they must
register the marriage settlement to the proper
registries of property. If they fail to register, and
a third person to whom one had an exclusive debt
which did not benefit the family, for instance, was
not prejudiced to assume that a property can be
John Psalmuel Velarde Chan

foreclosed although it was included by the
spouses in their community property, then the
debtor-spouse shall pay the community property
with the value of the foreclosed property. Note
that this case happens when the exclusive debt
does not redound to the family.
If no marriage settlement exists, then the absolute
community regime will govern. If A for instance
incurred debt from B by mortgaging his property,
payable after 5 years, and A married X without
settlement, then the mortgaged property will be
co-owned. Since this will impair the loan, the
time for paying the loan will be presumed to have
expired. Its either A gets the consent of X to
allow B to foreclose their community property, or
A has to find new securities of the same value, or
the creditor can file to collect the amount of loan.
If A is proven to be out of exclusive property,
then B can take from the absolute community
regime under Article 94(9). However, when the
property regime gets liquidated, such deduction
from the community regime will be considered
advances to As part in the liquidation. Of course,
when there the loan redounded to the family, then
B can execute immediately on the community
property.
Any settlement must be signed freely, voluntarily,
and intelligently. The burden of proof of
invalidating a pre-nuptial agreement is on the
assailant, but if the contract is seemingly
unreasonable, then the other party would be
burdened to prove the validity.
Instances where a change in the settlement may
be done: Articles 66, 67, 128, 135 and 136 of the
Family Code. However, all must be judicially
approved. The purpose is to disallow the
conversion of some community properties into
separate properties to relieve them of being used
to settle community debts.
If the individuals stipulate that customs should
apply, or that the absolute community regime
should not apply, then local customs may be used,
provided they have to be stipulated as a fact when
necessary.
Persons and Family Relations Notes
34
Article 78-79
Article 78 is impliedly repealed by RA 6809,
which raised the age of majority to 18. Hence, an
18-year old can validly enter a marriage
settlement without parental consent. Of course,
his or her marriage is subject to the consent of his
or her parents, otherwise, the marriage is voidable
under Article 45.
In cases where person is convicted with a
punishment that carries with it civil interdiction,
the marriage settlement should include the
guardian appointed by court as party in the
contract.
A person guilty of a felony punishable by
reclusion perpetua or reclusion temporal will also
be punished by civil interdiction for the duration
of the sentence.
Article 80
Where the property is located abroad, or will
affect a property located abroad, the formalities
and extrinsic validity of the contract will be
governed by the law of the place where the
contract is located (Article 16). Also, if both
parties are aliens, then their national laws shall
govern their settlement validity. However, when
both are married in the Philippines, then
Philippine laws will apply.
*For the last sentence, does Philippine law mean
property relations or extrinsic validity only?
Article 81
In a contract, there are three elements:
consideration, object and consent. In a marriage
settlement, the consideration is the marriage itself.
The absence of which will render the settlement
void.
Provisions in the marriage settlement are
separable, the declaration that one provision is
void does not nullify the whole document.
Stipulations that do not pertain to the
consideration of marriage will also be valid.
Chapter 2- Donations by Reason of Marriage
John Psalmuel Velarde Chan

Article 82-84
Donations propter nuptias are without onerous
consideration, because marriage is only the
motive, not the cause. The donation can be
reduced upon the donors death if such grant
infringes the legitime of the donors forced heir
(Mateo v Lagua).
The donation must benefit either or both of the
spouses. A deed of donation that requires the
marriage to be childless, or that is directed to the
parents of the wife and not the wife, among others,
is not considered a donation propter nuptias
(Serrano v Solomon). These donations do not fall
under donations propter nuptias:
1) Donations after the celebration
2) Donations prior to the marriage but not in
consideration of it
3) Donation to persons other than the wife
though the consideration might be the
marriage itself
Requisites for the donation to be valid:
1) Donee must accept it personally or
through an authorized person
2) Acceptance must be made during lifetime
3) Donation of a movable can be made
orally or in writing
Note that if the value of the movable property
exceeds 5000, then it has to be made in writing.
If orally done, the granting of the donation must
come simultaneously. Donation of real property
requires a public instrument, in which the
acceptance of the donee may be appended. If the
acceptance is made through a separate document,
the donor should be notified.
Donations governing future property is governed
by the formalities of a will. If the document is
handwritten, it must be entirely handwritten dated
and signed by donor. If it is not handwritten,
subscription must be at the end. His name can also
be written by a person authorized, in his presence,
by his express direction, in the presence of three
or more witness attesting and subscribing to the
document. The person authorized to write the
Persons and Family Relations Notes
35
donors name shall sign every page on the left
margin except the last. The upper part of the page
should be numbered in letters. The attestation
clause shall include the number of pages, and the
fact that the donor signed all the pages (or
allowed another to sign every page in his presence
by his express direction with the presence of at
least 3 witnesses). This should be notarized.
Donations propter nuptias are useless if the
regime is absolute community. The only
exception for absolute community of property is
Article 92 and if there is, provisions in a marriage
settlement.
Requisites of donation propter nuptias:
1) Valid marriage settlement
2) Marriage settlement must stipulated a
regime other than absolute community
3) Donation must not be more than one-fifth
of present property
4) Donation must be accepted by would-be
spouse
5) Comply with the provisions in Title III of
Book III of the Civil Code
If donation is not in the marriage settlement, but
the settlement indicates a regime other than
absolute community, the one-fifth limitation will
not apply. Article 750 does not restrict amount,
but the donor has to leave something to support
his own and his family.
Moreover, Article 752 restricts him from
donating more than what he can by will. Hence,
you cannot donate the part of your estate that has
to go to your forced heirs.
Donations are barred during marriage in order to
prevent the stronger spouse from exerting
influence over the weaker spouse. Prior to the
marriage, the spouse is only limited to give not
more than one-fifth of his or her property if there
is a marriage settlement. This is to ensure that the
stronger spouse cannot exert influence in the
negotiating table. However, there is no necessity
to extend the limitation to donations outside the
settlement, because the likelihood of exerting
influence is sparse.
John Psalmuel Velarde Chan

Article 85
Donation with encumbrance will not prejudice
the donee. If the property is foreclosed to pay for
the debt of the donor, the donee will not be liable
if the property is sold at a lower price. If the
property is sold at a higher price, the excess will
go to the donee. Note that the donee cannot ask
for reimbursement of the property from the donor.
Article 86
Pursuant to Article 81, donations included in the
settlement will be void if the marriage does not
take place. If the donation is outside the
settlement, the choice is upon the donor. There is
no prescriptive period in Title III of Book III of
the Civil Code, but Article 1149 generally
provides a 5-year prescriptive period right after
the right of action arises. Hence, the date of the
supposed marriage is the reckoning date.
However, if the donation is void because of
Article 81, there is no prescriptive period.
Note that donations independent of the marriage,
regardless if in a settlement or in a public
document, are valid.
For void marriages, there are the possibilities:
1) Pursuant to Article 40, or in relation to
Articles 52 and 53
In the case of Valdes v RTC, if donee contracted
subsequent marriage in bad faith, donations
propter nuptias are automatically revoked by
operation of Article 50 in relation to 40, and 43(3).
The prescriptive period for movable property is 8
years (Article 1140). For real estate, 30 years
(Article 1141). The starting date is the declaration
of nullity of the second marriage.
2) If both parties acted in bad faith for a
subsequent marriage after a declaration
of presumptive death of ones spouse
(Article 41), this is void pursuant to
Article 44
3) In cases where the marriage is void not
under the preceding numbers, Article
86(1) will apply. The donor will have a
Persons and Family Relations Notes
36
choice to revoke the donation regardless
if bad faith is present or not.
4) In a bigamous marriage, the innocent
spouse in the subsequent marriage may
revoke his or her donation by choice,
after the declaration of nullity of the
bigamous marriage. The donation of the
guilty spouse to the other spouse may be
void if they are both guilty of
concubinage or adultery at the time of the
donation (Article 739[2]). If at the time of the
donation they were living as husband and wife,
the donation is also void. If the marriage of A and
B is void but without judicial declaration, and A
marries another, then their donation can only be
revoked after a judicial declaration of nullity for
their marriage (Article 40 of the Family Code).
Note that if the donation was made prior to their
subsequent marriage, while they were living as
husband and wife, then it is void under Article 87
of the Family Code.
5) If they both acted in good faith, the
option is still available under Article 86
If they fail to register the liquidated property in
the proper registry, the subsequent marriage is
void under Article 52. The prescriptive period is
5 years, and any of the spouse may revoke the
donation.
For marriages without parental consent, Articles
14, 45 and 236 of the Family Code make the
marriage voidable. The donor may revoke the
donation propter nuptias. In this case, there is no
need for the marriage to be annulled first.
In annulled marriages where the donee acted in
bad faith, Article 86(3) and Article 50 in relation
to Article 43(3) have conflicting remedies.
For Sta. Maria, the latter provision is, as a general
rule, the provision that expresses the latter intent
of the framers (State ex tel. Gen v Toledo), but
the earlier provision is more in line with state
interest.
Observe that not all annullable marriages are
based on the bad faith. The aggrieved party does
John Psalmuel Velarde Chan

not necessarily have a spouse in bad faith. If this
is the case, the donation propter nuptias may not
be revoked under Article 50 in relation to 40 or
Article 43(3) of the Family Code.
In legal separation, there is only 5 years from the
declaration of the finality of legal separation for
the spouse to revoke his or her donation. However,
in Article 739(1) of the Civil Code, a donation
made to a spouse who is guilty of concubinage
and adultery is void.
A resolutory condition can extinguish the
obligation on contracts. For instance, a condition
that the donation will not be revoke if the spouses
stay in the country is extinguished once they
migrate.
Acts of ingratitude are under Article 765 of the
Civil Code. Examples are offenses against
persons, honor, property, of a spouse or of a child,
imputing a spouse of a criminal offense, refusal
to support, etc. If the person commits any of these
acts, the other spouse can do it one year after the
commission. However, mortgages and
alienations effected before the complaint are
valid (Article 766).
Donations given to a spouse who commits
concubinage or adultery are void (Article 739).
Article 87
Any donation in violation of Article 87 is void.
The exceptions are moderate gifts on the occasion
of family rejoicing. Ancient law according to
Justice J.B.L. Reyes prevents undue influence of
one to the other.
In Matabuena v Cervantes, the prohibition was
extended even to couples who live without the
benefit of marriage. In Agapay v Palang, the
Supreme Court prohibited the act of selling the
husbands property to the wife of a subsequent
bigamous marriage in order to circumvent the
effects of Article 148. It was said that the
conveyance was by way of donation, still.
This article includes:
Persons and Family Relations Notes
37
1) To a stepchild who has no compulsory
legal heirs other than the other spouse at
the time of the donation
2) To a common child with the same
situation above
3) Parents of the other spouse
4) To the adopted child of a spouse with the
same situation as the first number
5) To a common adopted child with the
same situation as the first number
Giving donations to a common child is legitimate
if it is for the pursuit of a profession. However,
giving donations to a common child who does not
have a compulsory heir is not allowed, if not for
the reason mentioned. The amount of which shall
be chargeable to the ACP or the CPG.
Only individuals who have an interest to the
donation can challenge (Harding v Commercial
Union Assurance, Co.)
In Rodriguez v Rodriguez, the mother sold her
property to her daughter, who later sold the same
to the father. However, since the parties are in
pari delicto, no recovery was allowed for the
guilty party.
The concept of Reserva Troncal provided in
Article 891 of the Civil Code means that an
ascendant who acquires inherits property from a
descendant must reserve such property for the
benefit of relatives of the descendant within the
third degree and who belong to the line from
which the said property came, if the property
inherited is acquired by gratuitous title from
another ascendant, or a brother or sister. This is to
ensure that the money stays within the bloodline.
Chapter 3- System of Absolute Community
Section 1. General Provisions
Article 88
All properties acquired prior to the marriage and
those acquired thereafter are part of the ACP. In
a separation of property regime, those that were
not agreed to be separate belong to the ACP by
operation of law (Article 144). Spouses become
John Psalmuel Velarde Chan

co-owners, but waiver of rights may not be made
except in the case of judicial separation of
property.
The only articles not included in the absolute
community are those in Article 92, and those that
are excluded by spouses in their marriage
settlement.
In both ACP and CPG, an alien cannot have any
interest in the property regime. In Matthews v
Taylor, a Filipina spouse was allowed to enter
into lease agreement without the consent of the
alien spouse. Allowing the spouse to have an
interest in the property regime will circumvent
the prohibition in the Constitution against alien
acquisition of property.
In the Constitution, alien are prohibited from
acquiring lands, private or public, except by
virtue of inheritance. In Cheesman v IAC, the
wife sold a land registered under her name to a
third person without knowledge of the petitioner.
The Supreme Court said that the foreigner did not
acquire any right over the land when the purchase
was made. Hence, the selling of the property was
valid.
Any stipulation about the commencement of the
ACP or CPG not during the precise moment of
marriage is void.
Articles 89-93
This is a special type of co-ownership. The use of
the property may be made provided it does not
injure the interest of the co-owner. Here, no
waiver of rights may be made, except during
judicial separation of property. The reason is that
the rights of co-owners are still inchoate.
Whenever there is a judicial separation of
property, legal separation, etc. where one spouse
may waive his right over his share of the property,
and creditors may have an interest over that share,
they can petition for the rescission of the waiver
only to the extent that covers the obligation.
There are four excluded properties from the ACP:
1) Marriage settlement
Persons and Family Relations Notes
38
2) Those acquired by gratuitous title
It must be a gratuitous acquisition during the
marriage. If done before, it will form part of the
ACP upon marriage. The fruits and income of
such will also be included in the exceptions.
The exception herein is when the testator or the
donor expressly says that the property be included
in the ACP, or only the income and fruits.
3) Personal and exclusive use
The exception is jewelry. Otherwise, items that
are for personal use, either acquired prior or
during marriage, form part of the separate
property. However, if the property is of high
value, even if it is for exclusive use, then it forms
part of the ACP.
4) Property from previous marriage
Property acquired from a previous marriage
where legitimate descendants are present will not
be included in the ACP. This includes fruits and
income thereof, if any. Do note that descendants
mean children, grandchildren, etc. that are of
legitimate line.
If the child is born out of a void marriage other
than those declared as void under Article 36, 53
and 53, then the property acquired during that
marriage will form part of the ACP of the next.
The law protects the presumptive legitime of the
legitimate descendants.
Also, if the previous marriage is terminated by
death, and no liquidation occurs, a complete
separation of property will govern pursuant to
Article 103.
Under Article 109(4) of the Family Code,
property acquired by use of exclusive property
will not form part of the conjugal partnership.
There is no such provision for absolute
community. Hence, any purchase made using the
exclusive property will now form part of the ACP,
unless such property falls within the excluded
properties. Even property from a previous
marriage with legitimate descendants, when used
John Psalmuel Velarde Chan

to purchase new property, will form part of the
ACP.
Section 3- Charges upon and Obligations of
the Absolute Community
Article 94
Support is the most sacred of all obligations.
Other charges may fail but this one cannot fail
(Sumulong v Cembrano). It will encompass
everything that is necessary for sustenance.
The support of illegitimate children is governed
by the provision on support in the Family Code.
Such will be taken from the separate property of
the parent-spouse. In case of insufficiency, the
ACP can advance the payment for support,
subject to reimbursement during liquidation.
If the administration of the property is given to
one spouse, and he or she contracted a debt, the
ACP is liable. Of course, there must be proof that
the benefit redounded to the family. Otherwise, it
will be charged upon that administrators separate
property.
If the debt is acquired as a result of the act of both
spouses, or the act of one but with the consent of
the other, there is no need to prove that the benefit
redounded to the family. The ACP is liable.
Assuming the debt is incurred by one without the
consent of the other, then the ACP is liable only
to the extent where it benefitted.
Even debts incurred prior to the marriage, if
proven to have redounded to the family, can be
chargeable upon the ACP. If it did not, then the
debtor-spouse is liable alone. In the instance that
his properties are not sufficient, then the ACP will
advance the payment of the debt, without
prejudice to reimbursement upon liquidation.
A loss resulting from the exercise of a profession
or business shall be chargeable to the ACP (Ayala
Investment v CA).
Taxes, liens, charges, repairs will be chargeable
to the ACP, with or without the consent of the
other spouse. Taxes, expenses for the
Persons and Family Relations Notes
39
preservation of separate property that is used by
the family can be chargeable to the ACP.
Expenses or donation for self-improvement must
be done by both spouses if being given to the
child. If only one spouse donates, and the child
does not have descendants, this can be an indirect
donation to the other spouse which is prohibited
under Article 87.
Note that liabilities as a result of crime or quasi-
delict are chargeable only to the separate property
of the convict.
In case of suit in between spouses, the ACP shall
be liable, provided that the suit is not groundless.
In the event that the ACP is the one thats
insufficient, then both spouses shall be solidary
liable. The exceptions are ante-nuptial debts that
did not redound to the family, the support of
illegitimate children, and liability incurred as a
result of a crime or quasi-delict. This means that
if the separate property of an offender-spouse is
insufficient, and the ACP is not able to cover the
liability, the separate property of the other spouse
may not be liable.
If the separate property of one spouse becomes
insolvent because of debts incurred, and these
debts did not redound to the ACP, the ACP is
shielded against encumbrance by the creditors. In
these cases, the power to administer the ACP may
be transferred to the other spouse to ensure that
the insolvent-spouse does not use the ACP to pay
off the debts.
*What if the husband used the ACP to pay off his
debts that did not redound to the benefit of the
family? This may not be advanced by the ACP.
Hence, there is a debt incurred from the ACP, and
there might be no need to wait for liquidation for
reimbursement.
Article 95
What may be lost shall be incurred solely by the
separate property, but what may be won belongs
to the ACP.
John Psalmuel Velarde Chan

However, if what was given to the spouse is a
winning ticket in the lottery, with consideration,
winnings shall belong to the separate property,
because it can be considered as gratuitous title.
Section 4- Ownership, Administration of the
Absolute Community
Article 96
It may be possible to validly delegate the
administration of the absolute community to one
spouse via marriage settlement.
Normally, both of them shall administer the
absolute community. However, it does not mean
that they have to act together always. For instance,
the certificate for non-forum shopping need not
be signed by both spouses.
When it comes to repairs of their property, one
can act without the prior consent of the other
because of the necessity of action. Note that
repairs are different from improvements and
alterations, which would necessitate prior consent
regardless if the improvements will benefit the
property.
In cases of disagreement, the decision of the
husband will prevail to avoid a vacuum, but this
is without prejudice to a judicial recourse by the
wife.
Note that the power to administer does not
include alienation, encumbrance or disposition,
because these require prior consent or
authorization.
If one sells a property without consent of the other,
or without judicial authorization, then the
disposition is void. Prior to the Family Code, the
contract is voidable only (Vda. de Ramones v
Agbayani).
However, if there is good faith on the part of the
buyer, and in cases of fictitious representation by
a spouse in the TCT as single, then the sale cannot
be void. The remedy of the aggrieved spouse is to
compel the erring spouse to account for the
proceeds (PNB v CA).
Persons and Family Relations Notes
40
If for instance, the wife had knowledge of the
pending sale of their land, and the husband sold it
even without the consent of such wife, then the
sale will be voidable. The wife shall have 5 years
from the implementation of the contract to annul
it (Ravina v Abrille).
When one spouse is incapacitated to administer
the property, the other spouse may assume the
sole authority. If the case is abandonment, a
summary judicial proceeding must be undertaken.
However, if the cause is an incapacitating
sickness, then a judicial guardianship proceeding
should be undertaken (Uy v CA).
Such sole administration does not include the
power to encumber or alienate property, which
still require the written consent of the
incapacitated spouse, or judicial authorization.
Otherwise, it will be void, and shall be a
continuing offer until consent or authorization is
secured.
Article 97
A will is an act where a person is able to control
the disposition of his property after his death,
subject to limitations provided by law. The
legitime is that part of the estate of the deceased
which is reserved for the compulsory heirs.
In an ACP, a spouse can dispose of his or her own
separate property, and his interest in the co-
ownership.
Article 98
This prohibition of donation without the consent
of the other is to secure the property from
prodigality (Estate of McNutt). If both consent,
then the donation is valid, without prejudice to
rescission if the donation infringes upon the
presumptive legitimes of their heirs.
Section 5- Dissolution of the Absolute
Community
Article 99
Dissolution of the ACP does not mean dissolution
of the marriage. Under Article 99, there are four
John Psalmuel Velarde Chan

ways by which the co-ownership may be
dissolved.
By the death of one spouse, the ACP shall be
dissolved. This shall be liquidated in the same
proceedings as the settlement of the estate of the
deceased.
Upon decree of legal separation, the ACP should
also be liquidated. The offender spouse will have
no right over the net profits earned by the ACP or
the CPG, and shall be forfeited in accordance
with Article 43(2). Of course, this is subject to
revival pursuant to Article 63(2).
Annulment will also dissolve the property, but if
one spouse acted in bad faith, then his or her share
of the net profits will be forfeited in favor of the
common children, his children from a previous
marriage, or the innocent spouse.
In a void marriage, there is no ACP or CPG as a
general rule. It is governed by Article 147 or 148.
Hence, the provisions on co-ownership of the
Civil Code will govern and not the Family Code.
However, if one spouse is in bad faith, his share
over the net profits will again be forfeited.
Note that ACP or CPG can govern a void
marriage if done under Article 40. In Valdes v
RTC, Supreme Court said that this is pro hac vice.
In Carino v Carino, the Court said that since the
marriage is bigamous, it falls into Article 148 and
thus, is not governed by ACP or CPG. According
to Sta. Maria, this is a wrong ruling, because if
this interpretation is followed, then there will be
no void marriage that still makes use of the ACP
or the CPG regimes. This will make Article 99(3)
nugatory.
Judicial separation of property is also one ground
for the dissolution of the ACP. It may be
voluntary or involuntary. If agreed upon by both,
then it will need judicial approval under Article
136. This privilege may only be used once
(Article 141[7]). If involuntary, it falls under
Article 135 of the Family Code.
Persons and Family Relations Notes
41
Another case where the property regime is
dissolved and liquidated is when a spouse who
was presumptively declared as dead files a
certificate of reappearance. This will terminate
the valid second marriage, and property
dissolution will follow. Again, if one spouse was
in bad faith, his or her share will be forfeited in
favor of the common children, his or her children,
or the innocent spouse.
Article 100
The ACP shall remain intact upon the separation
in fact of spouses. However, exceptions are
provided under Article 100:
1) The spouse who left the conjugal home
will not be eligible for support. However,
fault must be proved. Note that only
support is withdrawn, and under Article
94, the spouse is still eligible for support
for any expense to enable him or her to
commence or complete a professional or
vocational training. Debts incurred that
may redound to the family can still be
charged to the ACP.
2) When the consent cannot be secured, the
present spouse may ask for court
authorization
3) In cases where they are solidarily liable,
the spouse may again ask for judicial
authorization to encumber separate
properties of the absent spouse to satisfy
the liability of both spouses.
Article 101
Article 101 and Article 128 are the same in a
sense that a spouse who abandons the other,
proven by the absence of the intent to return and
the evidence of absolute cessation of marital
relations, duties and rights, may give rise for a
right of action for the aggrieved spouse.
The possible recourse of the spouse is to ask for a
judicial separation of property, right of
receivership, or to be the sole administrator of the
property.
John Psalmuel Velarde Chan

Abandonment must mean financial, moral and
physical desertion (Dela Cruz v Dela Cruz).
A spouse who also fails to comply with marital
obligations may give rise to a cause of action
under this Article. Example is when the sole
administrator abuses his authority. However, it
has been held in Dela Cruz v Dela Cruz that
failure or refusal to inform the other spouse of the
progress of the family business does not by itself
constitute abuse.
Section 6- Liquidation of the Absolute
Community Assets and Liabilities
In a voluntary judicial separation of property, the
parties may provide for the procedure of the
liquidation, provided it is approved by the Court.
An inventory is made where all property of both
spouses, separate or ACP, is listed, itemized and
usually valued. In appraising properties, it is not
the purchase but the market, or in default thereof,
the assessed value at the time of the liquidation
that must be taken into account (Prado v
Natividad).
Since an inventory takes a lot of time, an update
may be made as long as all the property is updated.
Debts are paid upon liquidation of the ACP.
However, here, the advanced may be the ACP
should be paid out by the separate property. After
which, the exclusive properties of both spouses
shall be delivered to them. The net assets of the
ACP is also equally divided unless a previous
agreement is made. Relevantly, if one is in bad
faith in an annulment or legal separation decree,
then his or her share over the net profit will be
forfeited.
The next part will be the delivery of the
presumptive legitimes of the compulsory heirs.
However, this will only happen if the case is
annulment, or a declaration of nullity under
Article 40 in relation to Articles 52 and 53.
Otherwise, there is no need for the delivery.
Article 103
Persons and Family Relations Notes
42
Section 2, Rule 73 of the Rules of Court provides
that the liquidation of the property shall be made
in the same estate or intestate proceedings of the
deceased.
However, if the decedent left no will and no debts,
and the heirs are all of age, or the minors are
legally represented, the parties may divide the
estate among themselves as they see fit using a
public instrument. It should be filed in the register
of deeds. In case of disagreement in this situation,
they can file for an ordinary action for partition.
If after a lapse of one year, no liquidation is made,
then any encumbrance or disposition is void.
Likewise, a disposition of the property prior to the
liquidation in the estate proceedings will also be
void because of prematurity.
Upon the death of a spouse, the rights of his or
her heirs vest. The ACP between the two spouses
will evolve into a co-ownership between the
surviving spouse and the heirs of the deceased
(Marigsa v Macabuntoc). Hence, upon the death,
an heir can attach his interest to the property over
which he or she exercises dominion. Again, this
cannot be encumbered until the interest has
become an actual right over the property upon
inheritance.
Upon death of a spouse, the ACP or CPG is
dissolved. No complaint for the collection of
indebtedness may be raised against the regime.
No claim may be raised against the surviving
spouse, unless they are solidarily liable. The
recourse is to claim against the estate of the
deceased.
If the surviving spouse validly marries without
securing a liquidation, and registering the same to
the proper registries, then the next marriage will
be under a mandatory complete separation of
property regime. Even if the subsequent valid
marriage stipulates in the marriage settlement that
ACP or CPG shall govern, it will be void for not
being within the limits set out by law. This is to
avoid confusion over the property from the first
marriage and the subsequent one, no matter how
valid the second marriage is.
John Psalmuel Velarde Chan

Article 104
This refers to two marriages contracted prior to
August 3, 1988, and the ACP of both marriages
are to be liquidated simultaneously.
Determination of where the property belongs will
depend on the proof presented by contending
claimants in accordance with the rules of
evidence.
In case of doubt, then it shall be partitioned based
on capital and duration of each marriage.
Chapter 4- Conjugal Partnership of Gains
Section 1- General Provisions
Articles 105-106
In the CPG property regime, the spouses place in
a common fund the fruit of their separate
properties and the income from their work and
industry.
The fruits of the paraphernal property of the wife
can be used for the payment of the expenses of
the family, but not for the payment of the
obligations of the husband, insofar as it does not
redound to the benefit of the family (Quitos v
Sheriff of Manila).
The proof of acquisition of property during the
marriage suffices to render statutory presumption
of conjugality to attach (Go v Yamane). Any one
spouse cannot dictate that such property belongs
or does not belong to the CPG.
Article 107
In the same way as the ACP, CPG shall
commence at the precise time of marriage. No
waiver of rights may also be made, except during
judicial separation of property under Article 136
of the Family Code.
Article 108
CPG is like a special type of partnership, wherein
the rules on partnership apply in a suppletory
manner.
Persons and Family Relations Notes
43
Any stipulation that excludes a partner from a
share of any property that belongs to the
partnership is void.
In the case of Baloloy v Hular and Adlawan v
Adlawan, the Supreme Court said that not all co-
owners need to be co-plaintiff in a case because
the suit of one to benefit the interest of the CPG
is presumed to be for the benefit of all.
Section 109
All respective properties brought into the
marriage belong to the spouses exclusively. The
partnership does not produce a merge (National
Bank v Quintos).
In the event that a property was bought before
marriage, but the title of which as only perfected
during marriage, the property is still exclusive.
The test is to see whether the transfer of
ownership occurred prior or during marriage,
regardless of the pending formalities (Plata v
Yatco).
In the event that the CPG is insufficient to pay off
conjugal debts, then the exclusive property of
both spouses shall be solidarily liable under
Article 121(2).
Property acquired by gratuitous title also belongs
to the exclusive property of the donee-spouse,
because these are acts of liberality made by a
donor/testator, and his or her will must be
respected in the process of the donation or
inheritance.
*Does an honorarium fall under the exclusive
property of the receiver? Yes, these are titles
given based on voluntary donation (Santiago v
COA).
Note that in CPG, as different from ACP, the
fruits or income of property acquired by
gratuitous title are conjugal. In ACP, unless the
testator or the donor provides that the fruits or
income of a donation shall belong to the
community, it is presumed to be separate.
Property acquired by redemption, barter and
exchange shall also be separate property. In fact,
John Psalmuel Velarde Chan

if the right of redemption belongs to one spouse,
even of conjugal funds are used to redeem such
property, it shall be exclusive, subject to
reimbursement that should be made by the
separate property in favor of the CPG upon
liquidation.
In the absence of proof that the right to
redemption exists, then property re-acquired
during marriage shall be presumed to be conjugal
(Zulueta v Pan American World Airways, Inc.)
Property acquired by exchange (barter) shall
remain to be separate. However, if the property is
used for the purchase price of a new property,
then it shall become conjugal, subject to the right
to reimbursement upon liquidation.
Article 110
The transfer of administration may occur in a
marriage, but that does not exclude the owner-
spouse from encumbering, alienating, disposing
of his or her own property.
If the property of the wife was wrongfully
attached by the Sheriff to pay for the obligations
of the husband, then the wife can petition for the
annulment of the sale (Naguit v CA).
Articles 111-112
Article 111 is already superfluous since it is
impossible to have the right to encumber property
while being a minor, since the capacity to marry
is bestowed upon reaching the age of majority.
Assuming the other spouse has the right to
administer some of the property of one spouse,
once he or she sells his property, this in effect
terminates the authority of the other to administer
such property.
However, a limitation is imposed upon Article
112. In case where the spouses are separated in
fact, and one is allowed to become administrator
of the separate property of the absent spouse in
order to pay off conjugal debts in case of
insufficiency of the conjugal funds, his
disapproval will not terminate the authority of the
Persons and Family Relations Notes
44
administrator-spouse, because there is already
judicial authorization.
Articles 113-144
If a donor donates to one of the spouses, it shall
be considered as his or her separate property.
However, in the absence of such designation, it
shall form part of the separate property of both
and shall be equally shared, unless a proportion is
provided by the donor.
The right to accretion in case of donation is
possible if made for a conjugal partnership. This
is an exception because the right to accretion is
usually not allowed unless expressly provided. In
normal donation, a co-donee cannot
independently accept accretion (Genato v De
Lorenzo). If the wife does not accept the donation,
then the husband may by right of accretion accept
the part donated to the wife.
If conjugal funds are used to pay for the interest
of onerous donations, the property will still be
separate, subject to reimbursement after
liquidation of the conjugal partnership.
Article 115
Pensons, annuities, retirement benefits will be
conjugal or separate depending on the
circumstances.
It was held in Mendoza v Dizon that any act of
liberality from the government in recognition of
the performance of their employees shall belong
to the separate property. However, if it is acquired
as a matter of right, it is not a gratuity (Heirs of
Berganon v Imperial).
If the pension is an accumulation of the work one
has made, then there is no act of liberality from
the pension. It shall form part of the conjugal
partnership (Eclar v Eclar).
Section 3- Conjugal Partnership Property
Article 116
In Jocson v CA, the SC said that for the
presumption in favor of the conjugal funds to
John Psalmuel Velarde Chan

operate, there must be proof first that the property
was indeed acquired during the marriage.
If a land is purchased, and it is named before both
spouses, it is presumed to be conjugal. But of
course, upon liquidation, it must be noted that this
may just be an act of love, even though the
ownership really belongs to one spouse.
In Wong v IAC, the Supreme Court said that a
property proven to be acquired during marriage
shall enjoy the presumption unless there is a clear
and convincing evidence to prove the contrary.
Article 117
Damages granted by the court in favor of any of
the spouses arising out a contract solely financed
by the conjugal partnership belongs to the
conjugal funds. However, if the damages are
given based on a quasi-delict committed to one of
the spouses, then it shall form part of the separate
property. A civil indemnity given to a wife
because of a scar caused by an automobile
accident is personal and exclusive to her (Lilius v
Manila Railroad Co.)
Anything acquired through the labor, work,
profession or industry of any spouse belongs to
the conjugal partnership.
Net fruits of separate property will also be
conjugal.
Those that are acquired from hidden treasures, or
shares out of the sale of hidden treasures, shall be
conjugal.
In case of livestock, those that are in excess of the
original number shall belong to the partnership.
In deciding which of which belongs to the
separate property, the general rule is that the
debtor cannot offer the worst, while the creditor
cannot demand the best.
If a person gives one spouse a winning lotto ticket
without consideration, then the winnings
therefrom shall belong to the conjugal partnership
as it falls under income.
Article 118
Persons and Family Relations Notes
45
This contemplates a situation where the
installment deal was initiated prior to the
marriage. The determinative test is when the title
was vested to one of the spouses. Regardless of
the proportion of the expense paid out by the
conjugal funds in relation to the separate property
of a spouse, the test will be decisive. The caveat
is that wherever the ownership is vested, it shall
have the responsibility of reimbursing the other
upon liquidation.
Friar lands bought by the woman before her
marriage, even if conjugal funds are used to finish
the purchase, still belong to the separate property
(Lorenzo v Nicolas). If the ownership shall vest
only upon the last payment in the installment
scheme, then it is conjugal (Jovellano v CA).
In case where the property is bought during
marriage using separate property and the conjugal
funds, the Supreme Court said that it will be
partly conjugal and partly exclusive, its
proportion depending on how much was paid out
by the respective funds. (Castillo, Jr. v Pasco).
However, this is questionable under the current
Family Code, because property acquired during
marriage should enjoy the presumption of being
purely conjugal, subject of course to
reimbursement.
Article 119
In a situation where one spouse has in his favor
credit payable by installment, payment done by
the third parties during marriage will still fall into
the exclusive property. However, the interest of
such credit will belong to the conjugal funds.
Article 120
If the value of the improvement and any resulting
increase in the value of the separate property are
more than the value of the separate property at the
time of the improvement, then the property will
be transferred to the conjugal partnership, subject
to reimbursement.
Can the surviving spouse claim a share of the
property sold by the deceased spouse to a third
person, where conjugal funds were used for the
John Psalmuel Velarde Chan

improvements thereof? No, the Supreme Court
said in Ferrer v Ferrer that the cause of action
arises only during the time where the husband still
owned the separate property.
Note that under this Article, the conjugal
partnership owns the property only as a matter of
usufruct. Hence, the land is still owned by the
separate property, until the value of the land is
paid, and this payment can only be demandable
upon liquidation (Maramba v Lozano).
Hence, the owner-spouse still owns the separate
property even if the improvements and the
resulting increase in the property exceed the value
of the separate property, and such is exempted
from levying to satisfy a conjugal debt (Maramba
v Lozano).
In the case of In Re Padilla, the Supreme Court
clarified that the building of an establishment
over a paraphernal lot does not extinguish the
ownership of the wife over such parcel of land.
Section 4- Charges upon the Conjugal
Partnership
Article 121
The only difference between the charges upon the
absolute community regime and the conjugal
partnership is that the support for illegitimate
children, liabilities arising from crimes and quasi-
delict are placed in a separate Article because of
a different rule.
Note that in proving that the debt incurred by one
spouse without the consent of the other, the
burden of proof shall belong to the creditor. It
cannot be a spin-off or a by-product. It must be
direct. There is a protection given by the law to
the conjugal partnership (Ayala Investment &
Development Corporation v CA).
If the husband incurs debts to improve his
business, which is used for the benefit of the
family, it cannot be said that the liability is
exclusive (Cobb-Perez v Lantin).
The best example of a debt that does not redound
to the family directly, is the participation of the
Persons and Family Relations Notes
46
husband as a guarantor in a contract entered into
by his friend. Such does not directly benefit the
family, and any liability should be paid out by his
exclusive property.
In Pelayo v Perez, the signing of the wife as
witness in a contract meant that she impliedly
consented to the contract of sale made by the
husband.
Note that so long as the separate property of each
spouse is solvent, the conjugal partnership cannot
be made to pay for their exclusive obligations,
except insofar as it redounded for the benefit of
the family.
Article 122
For the third paragraph of Article 122 to operate,
it must be proven that obligations under Article
121 have already been covered, and that the
exclusive property of debtor-spouse has already
been exhausted.
In Lacson v Diaz, the Supreme Court said that it
is incumbent for the spouse who seeks to use the
conjugal funds to advance the payment to show
that the requisites have already been satisfied.
Fines and indemnity imposed upon either spouse
are chargeable upon the conjugal funds after
complying with Article 122.
The difference of this Article with the provisions
on absolute community is that the absolute
community can be liable if it is proven that the
separate property of the spouse is insufficient,
regardless if the obligations are all taken care of.
In Spouses Buado v CA, the Supreme Court
allowed a husband, as a third party, to question
the execution of their conjugal properties as a
result of a slander committed by a wife. This is
because the obligation did not redound to the
benefit of the family. There is no benefit,
obviously, because the obligation was incurred
because of a quasi-delict.
Article 123
John Psalmuel Velarde Chan

Whatever may be won in games of chance shall
belong to the partnership.
Section 5- Administration of the Conjugal
Partnership Property
Articles 124-125
Note that if the conjugal partnership does not
provide for equal sharing of the conjugal funds
because of a stipulation from the marriage
settlement, it does not affect the equal footing
guaranteed by the law for both spouses in
administering the same.
When a spouse alienates a conjugal property
without the consent of the other, it is invalid
insofar as the share of the prejudiced spouse is
concerned (Baello v Villanueva). However, since
their shares are inchoate, it may be hard to
determine the exact part of a wife or a husband.
Hence, a petition for nullity of the sale shall not
only be a partial annulment, but can be an
absolute annulment of the sale. This is why in
Homeowners Savings & Loan Bank v Dailo, the
Supreme Court ruled that selling without the
consent of the other is void.
In case of an act of administration, and the wife is
informed of such sale but withheld consent, then
the act is merely annullable within 5 years from
the implementation of the contract.
In Spouses Antonio v CA, the husband who sold
conjugal property while the wife was unable to
participate because of a job hunt in Manila, the
Supreme Court ruled that such sale was null and
void pursuant to Article 124.
Section 6- Dissolution of the Conjugal
Partnership Regime
Article 126
Death will dissolve the regime, because it is
impossible to protect the rights of the deceased
and that the cause that made the partnership in the
first place is already terminated.
Article 127
Article 127 is the same as Article 100.
Persons and Family Relations Notes
47
Do note that the leaving of one spouse does not
justify non-liability of the CPG to instances
where it should be liable. The only except, again,
is support.
Article 128
Same as Article 101
Section 7- Liquidation of the Partnership
Assets and Liabilities
Article 129
The conjugal partnership may be liquidated by
extrajudicial settlement, ordinary action, or by
way of testate or intestate proceedings (Villocino
v Doyon).
After inventory, credits in favor of the CPG shall
be reimbursed. Reimbursement in favor of the
spouses shall follow, in case where the CPG was
advanced by their separate properties in solidary
liability.
After such reimbursement, that is the only time
where the debts and obligations of the partnership
are paid out. Here, the tombstone or the
mausoleum of the married spouse shall be paid
out by the conjugal fund.
After which, what is left of the exclusive
properties is delivered to the spouses. What
follows is the division of the net remainder of the
conjugal fund. This shall be equally divided
unless a prior agreement has been made with
regard to the proportion.
The delivery of presumptive legitime, again, shall
only occur if the dissolution of the partnership is
a result of a void or an annulled marriage under
Articles 40 and 45, respectively, in relation with
Article 51.
The conjugal dwelling shall be awarded to the
spouse where majority of the children are stayin.
Article 130
In Estonia v CA, the Supreme Court said that in
the absence of proof that a property was acquired
during marriage, it shall be assumed to be
John Psalmuel Velarde Chan

separate property. After the death of the spouse,
the property shall be owned by the surviving
spouse and the heirs. This means that attachment
to the property can only be to the extent of the part
owned by the surviving spouse.
Article 131
Same as the provision in Article 104.
Articles 132-133
During the liquidation of the estate of the
deceased, the would-be heirs have a right to get
certain amounts from what they technically will
receive after the settlement of the estate.
Allowances given to the children during the
period of litigation can be deductible from their
inheritance (Lesaca v Lesaca). Grandchildren are
now allowed to get the property in advance
(Babao v Villavicencio).
Chapter 5- Separation of Property
Article 134
If the husband and wife, prior to the marriage, had
not provided that a separation of property will
govern their regime, then changing to a
separation of property regime during the marriage
requires court approval. The reason behind, as
said in Garcia v Manzano, is to discourage
separation of property as a regime.
Article 135
The final decision of the court convicting the
spouse guilty of a crime that comes with civil
interdiction as an accessory penalty is enough for
a judicial separation to be approved ipso facto.
The absence of a person may be declared after
two years have elapsed without any news of him
or her. If he or she left an administrator of the
property, 5 years is required (Article 384 of the
Civil Code).
Loss of parental authority can also be cause for
judicial separation of property, and the law does
not distinguish whether the child is a legitimate or
illegitimate child.
Persons and Family Relations Notes
48
Article 229, Article 231(3), and Article 232 of the
Family Code enumerate the ground for the
termination of parental authority.
The concept of abandonment is the same as what
was defined under Article 101. This ground also
includes the failure to fulfil marital obligations.
There are three:
1) Marital
2) Property
3) Parental
When an administrator-spouse abuses his
authority over the property, it can be ground for
revocation and judicial separation of property. Do
note that mere injurious acts to the interest of the
other spouse do not constitute abuse. There must
be willful and utter disregard of the responsibility,
evidence by repeated prejudicial acts to the
conjugal partnership and to the other spouse.
For separation of fact to be invoked as a ground,
there must be separation for 1 year, and that
reconciliation should be highly improbable.
Article 136
There is also a choice to voluntarily separate the
property. This will take effect upon court decree
(Toda, Jr. v CA).
In this case, all the creditors must be listed and
notified, so that their rights will be protected.
When one waives his rights over the property and
it may prejudice the rights of creditors, they may
petition for a rescission of the waiver only to the
extent necessary for the credit to be paid.
When such separation of property becomes final
and executory, the fact that creditors were not
notified will not invalidate the agreement (De
Ugalde v De Yasi). However, it will not prejudice
or bind the creditors.
Article 137
The process laid down in Article 102 and Article
137 must be observed upon liquidation.
A partial separation of property may be possible,
if approved by the court (Maquillan v Maquillan).
John Psalmuel Velarde Chan

Article 138
Complete separation of property will only apply
after the decree from court, and shall not retroact
from the time of the filing of the petition.
Articles 139-140
The recording of the decree in the proper
registries will ensure that creditors may know
whether a property is conjugal or separate. It shall
also now prejudice the right acquired by creditors.
Article 141
When the cause under Article 135 has abated,
spouses may decide to go back to their previous
regime.
Note that for voluntary separation of property, it
can only be used once.
Judicial proceeding includes filing of a motion in
the same court where the separation was decreed.
The agreement must be submitted under oath and
shall include: 1) the properties to be contributed
anew to the restored regime, 2) those to be
retained as separate, and 3) the list of creditors.
*Is it possible to voluntarily revive the previous
regime even if the cause for the decree allowing
the separation still subsists under Article 135 and
not under Article 136?
Article 142
When one spouse is designated as guardian, he
may be designated as administrator of the
property of the spouse.
If the spouse is not qualified by reason of
incompetence or conflict of interest, it may be
possible to appoint a third party.
Chapter 6- Regime of Separation of Property
Article 143
The marriage settlement shall principally govern
such regime, because the absence of the marriage
settlement will lead to ACP being the default
regime. These provisions shall be of suppletory
character.
Persons and Family Relations Notes
49
Article 144
Separation may be present of future property and
it can also be partial or total. If partial, then those
not included in the agreement will be ACP.
It is invalid for the would-be spouses to declare
that ACP or CPG shall only be effective for a
certain time, and such will be substituted by the
separation of property regime thereafter. The only
way for separation of property during marriage
can occur is by way of court approval.
Articles 145-146
Each spouse shall have the authority to administer
their property without need of consent from the
other.
Chapter 7- Property Regime of Unions
without Marriage
Article 147
This applies to void marriages (not falling under
Article 140) where both spouses are capacitated
to marry each other.
This is called an informal civil relationship
(Lesaca v Lesaca). Requisites:
1) Both must live exclusively with each
other
2) Must be capacitated to marry each other
3) Be without the benefit of marriage
The structure of the relations is as follows:
1) Salaries and wages owned by them in
equal shares
2) Property acquired using exclusive funds
is exclusive, provided there is proof
3) Property acquired by work or industry
shall be governed by the rules on co-
ownership. They may encumber these
property exclusively
4) Property acquired while they live
together are presumed to be jointly
acquired. If the others contribution is in
the form of maintenance of the family,
then the person is still entitled.
John Psalmuel Velarde Chan

5) Fruits of the separate property are not
included in the co-ownership (Valdes v
RTC).
6) Property acquired after separation in fact
will be exclusively owned
7) Neither can dispose inter vivos his
property acquired during the cohabitation.
Donation between them shall also be
void under Article 87
8) When one is in bad faith and the other is
not, the share of the party in bad faith in
the co-ownership shall be forfeited in
favor of the common children or their
descendants, or the innocent party.
The liquidation of the separate property upon
separation shall be based on the provisions of co-
ownership in the Civil Code, provided they are
not in conflict with Articles 50, 51 and 52 in
relation to Articles 102 and 129.
Articles 102(6) and 129(9) will not apply to a
void marriage. The conjugal home, hence, shall
be co-owned and be divided equally.
In fact, the Valdes v RTC ruling clarified that the
procedure under paragraphs (2), (3), (4) and (5)
of Article 43 relates only to void marriage under
Article 40 and voidable marriages under Article
45. That is why when a party is in bad faith in a
void marriage under Article 40, only his or hers
share in the net profits are forfeited. If a party is
in bad faith in a void marriage other than Article
40, all his share in the co-ownership is forfeited.
Article 148
If the marriage does not fall within the ambit of
Article 147 and Article 40, it will fall under
Article 148. Parties may be co-owner of the
property upon showing of proof that they actually
made contributions for such. Administering the
property does not prove co-ownership (Tumlos v
Fernandez). The relationship is as follows:
1) A man and a woman living together as
husband and wife, without benefit of
marriage, but are not capacitated to marry
Persons and Family Relations Notes
50
2) Adulterous relationship even if it
occurred prior to the effectivity of the
Family Code (Atienza v De Castro).
3) Bigamous or polygamous marriage
4) Incestuous marriage
5) Void by reason of public policy under
Article 38
Here, it is a limited co-ownership:
1) Salaries and wages are separately owned
by the parties, and it the party is married,
it will form part of the ACP or the CPG
of the valid marriage
2) Property acquired by exclusive funds will
belong to exclusive property
3) Property acquired by both parties through
joint effort shall be proportionally
distributed based on efforts
4) Respective shares over properties owned
in common are equal. Proof may be
shown to prove that theyre not equal.
Note that without proof of contribution, there can
be no presumption of equal sharing or co-
ownership (Villanueva v CA).
5) Rule and presumption above will apply
to joint deposits
6) If one is validly married to another, his or
her share will belong to the ACP or CPG
of such marriage. If he is in bad faith, it
will be forfeited in accordance with
Article 147.
In Juaniza v Jose, a woman living in a bigamous
relationship was sought to be held liable for an
accident involving a vehicle driven by the
bigamous husband. Supreme Court said that since
the property belonged to the previous marriage,
the woman cannot be held liable.
In Agapay v Palang, the Supreme Court ruled that
only those property that are jointly acquired shall
be owned by them in common in proportion to
their contributions. It is not the same with Article
147, where maintaining the household can be
invoked as a contribution.
John Psalmuel Velarde Chan

If there is a bigamous marriage, then Article 148
governs. But if there is a void marriage, and the
second one is voided because of the absence of a
judicial declaration of nullity for the first one, Sta.
Maria claims that such void marriage can have an
ACP or CPG regime. Note that in the case of
Nicdao Carino v Carino, the Supreme Court used
Article 148 in a case of a void marriage under
Article 40.
Title V- The Family
Chapter 1- The Family as an Institution
Article 149
Destructive agreements are void for being
contrary to public policy. An agreement that
allows both spouses to engage in concubinage or
adultery is void.
According to Section 4, Rule 3 of the 1997 Rules
of Court, the husband and the wife must sue and
be sued jointly, except when the law provides
otherwise. This is because they are impleaded as
representatives of the CPG or the ACP (Alipio v
CA).
However, in the case of Carandang v Heirs of
Quirino A. De Guzman, the Supreme Court ruled
that in a CPG, the other party is not indispensable
in a case of recovery of property for the CPG.
Also, a spouse may appear alone in litigation if
what is involved is his or her separate property
(Article 111).
It is not necessary that they act together always.
It is just recommended. In Docena v Lapesura,
signing the non-forum shopping certification
does not require the other spouse.
Articles 150-151
In Gayon v Gayon, it was ruled that the
enumeration in the Article should be strictly
construed. Anyone not in the list is a stranger
from the perspective of family relations. There is
no need for earnest efforts to compromise in case
of the involvement of a stranger in the suit.
Persons and Family Relations Notes
51
Collateral relatives who are not brothers or sisters
are also not included (Mendez v Eugenia).
Before a suit between members of the same
family may prosper, an amicable settlement must
first be attempted. Otherwise, the suit must be
dismissible. The wisdom behind is that a suit
between family members are more tragic than
usual suits.
There are cases where no earnest efforts for
compromise are required nor allowed:
1) Civil status of persons
2) Validity of the marriage or of a legal
separation
3) Any ground for legal separation
4) Future support
5) Jurisdiction of courts
6) Future legitime
*Earnest efforts for compromise is not required
nor allowed in legal separation, yet there must be
6 months before the court can proceed with trial?
In Manalo v CA, it was ruled that in cases of settle
of guardianship, custody of children, and habeas
corpus, the rule on earnest efforts does not apply.
Committing theft, swindling or malicious
mischief against a family member shall be
exempt from criminal liability. However, civil
liability shall still persist (Article 332 of the RPC).
The following are:
1) Spouses, ascendants, and descendants, or
relatives by affinity in the same line
2) Widowed spouse with respect to the
property which belonged to the deceased
spouse prior to the transfer of ownership
3) Brothers and sisters and brothers-in-law
and sisters-in law, if living together.
Chapter 2- The Family Home
Articles 152-153
The family home is constituted ipso facto. It will
be constituted at the time of occupation (Arriola
v Arriola). There is a required house and land on
which it is built.
John Psalmuel Velarde Chan

Residing in the family home is a real right. There
is no constructive residence, otherwise, it will not
be a family home (Patricio v Dario III).
Staying temporarily in the US, while an overseer
is staying in the house, cannot justify the
constitution of a house as a family home.
By operation of law, all houses that may fall
under the definition of a family home were
constituted into one during the effectivity of the
Family Code on August 3, 1988. However, if
there are debts demandable prior to August 3,
1988, the Family Code may not be given
retroactive effect.
In case of married spouses, they must jointly
constitute the family home. Only an unmarried
head of a family may constitute the family home
alone. However, in cases of legally separated
couples or those that are separated de facto, then
the occupancy of the beneficiaries can constitute
the family home.
The most important benefit of the family home is
that it is exempted from execution, forced sale, or
attachment, and shall be so long as any of its
beneficiaries reside therein (Modequillo v Breva).
Article 154
Even if the said owners do not reside therein, the
presence of beneficiaries in the family home can
keep its status (Manacop v CA).
To be a beneficiary, the following must concur:
1) Among the relationships under Article
154
2) Live in the family home
3) Depend on the head of the family for
support
A grandson who is not dependent upon the head
of the family, who is the grandfather, is not a
beneficiary because he depended on his father
(Patricio v Dario III).
Note that consent must be secured from all
beneficiaries of legal age before the house may be
disposed of by the owner.
Persons and Family Relations Notes
52
Article 155
There are obligations that may be imposed upon
the family home. One of them is taxes. Being the
lifeblood of government (CIR v Goodrich), and
the chief source of revenue (CIR v Yuseco), these
must be paid immediately without delay.
Debts existing prior to the constitution need not
secure court judgement for them to be imposable
upon the family home. This is used in its generic
sense. It can include money claims arising from
tort (People v Chavez).
Article 156
There must be a fixed or permanent location. It
must be part of the ACP or the CPG, or the
exclusive properties of either spouse with the
latters consent.
A house erected on the property of another, or one
that is rented, cannot constitute a family home.
However, a land subject to conditional sale can be
where the family home is constituted.
Article 157
Since actual occupancy is the operative fact of
constitution, then such must be less than 300
thousand in urban areas, and 200 thousand in
rural areas, upon constitution.
Since the value of the law has not changed, any
home worth more than 200 or 300 thousand, as
the case may be, is not a family home and may
therefore be subject to attachment, forced sale or
execution.
The aim of the law is to protect the middle class,
because they are the ones who can barely afford
one decent home. The people who are rich do not
need the protection.
Note that the value of the family home may
increase after constitution, no matter how huge
the increase is.
Article 158
John Psalmuel Velarde Chan

The owner may choose to dispose, alienate, or
encumber the property, but the consent of the
following must be obtained:
1) Person constituting the same
2) Latters spouse
3) Majority of the beneficiaries of legal age
Article 159
Even after the death of the owner of the family
home, such will continue for a period of 10 years
or for as long as there is a minor beneficiary. The
heirs cannot partition unless the court finds
compelling reasons therefore.
*Does the prohibition for partition include the
prohibition on selling, disposing of, or alienating
the family home, even if the required consent
from different persons is secured?
Article 160
Before the judgement creditor can avail of the
privilege under Article 160, there must be court
approval.
In any case, the minimum amount for the bid
should be 300,000 for urban areas and 200,000
for rural areas. If the property is sold at an amount,
the minimum must be given to the family
members first.
Articles 161-162
There can only be one family home.
Title VI- Paternity and Filiation
Articles 163-165
The status of children can never be compromised
(Baluyut v Baluyut). The policy of the Family
Code is to liberalize the investigation of paternity,
especially for illegitimate children. Prior to the
effectivity of the Family Code, there are five
distinctions among illegitimate children. Before,
these were natural, natural by legal fiction,
acknowledged or recognized natural, spurious,
and adulterous children. Filiation is proved by
ties and not left to the discretion of the husband
and wife nor the midwives (Angeles v Maglaya).
Persons and Family Relations Notes
53
Illegitimate children are those born outside of a
valid marriage or inside a void marriage. The
exceptions are Articles 52, 53 and 54 and the
cases cited therein.
There are two types of artificial insemination-
homologous and heterologous. The first one is
called AIH, while the second is AID (Artificial
Insemination Donor). The second may be
consensual or nonconsensual. The recognition of
artificial insemination does not approve of its
legality or morality, but only recognized its
existence.
In the absence of authorization or ratification
from both spouses, and the recording of such to
the civil registry, the child will still be legitimate.
This can only give rise for the impugning of the
legitimacy of the child.
A wife who had herself inseminated without the
consent of the husband cannot be incriminated for
adultery.
Article 166-167
Only the husband, and in proper cases, his heirs
may impugn the legitimacy of the child. The
legitimacy can likewise be questioned by
attacking the validity of the marriage, provided it
does not fall under Article 36 or Article 53 of the
Family Code.
If the legitimacy is impugned, the child will
neither be legitimate or illegitimate in the eyes of
the husband, but they will just be unrelated with
each other. However, insofar as the mother is
concerned, the child is illegitimate.
The mother cannot question filiation, because we
are sure of the maternity. However, if the mother
assails that fact that the child came from her
womb, then it must be allowed (Benitez-Badua v
CA).
In the leading case of Macadangdang v CA, the
Supreme Court ruled that the presumption of
legitimacy is conclusive in the absence of proof
to the contrary. It must be shown beyond
reasonable doubt that there was no access or there
John Psalmuel Velarde Chan

was physical impossibility for the couple to have
sexual intercourse.
Impotence refers to the inability to copulate. In
the case of Menciano v San Jose, sterility and
impotence were differentiated.
In the case of Andal v Macaraig, a husband who
had tuberculosis and was bedridden was not
believed to have been fully incapable of having
sexual intercourse with the wife.
The child is still presumed to be legitimate
although the mother may have declared against it,
or if the mother is convicted as an adulterer. First,
because anger against the husband may be the
cause of such declaration, and that the status of
the child should not be at the mercy of his or her
parents.
However, if the husband can prove that he is
impotent, or that access was impossible, then the
conviction of adultery of the wife may be a
ground for impugning the legitimacy of the child
(Craven v Selway).
In the Family Code, what is provided is a
declaration of legitimacy or illegitimacy, not
mere presumptions.
These are the grounds for impugning the
legitimacy of the child:
1) 120-300 day period
Approximately, a woman carries the child for
270-280 days. Gestation period will not exceed
300 days. Hence, if the child is born within that
period, the sexual intercourse is presumed to have
been done in the first 120 days. The reason is that
the earliest a child may come out from the womb
is 6 months. Hence, the intercourse must have
been done any time during the four-month period.
2) Physical incapacity
The cutting of the penis of the man may not be
sufficient to impugn the legitimacy of the child,
considering that it might still be possible to have
sexual intercourse (Tarleton v Thompson).
3) Living separately
Persons and Family Relations Notes
54
There must be impossibility for sexual
intercourse to happen.
4) Serious illness
If the illness is so serious such that physical
intercourse may be impossible, it can impugn the
legitimacy of the child.
5) Biological and scientific reasons may
suffice
If it can be proven that the child was of a different
race, it might be possible to impugn such
legitimacy. However, there must be absolute
certainty that the family line of either spouses do
not have that racial gene.
6) Sterility
It must be shown that the husband was completely
sterile at the time the child was conceived. Even
a very low sperm count (100 to 150 per cubic
meter) as compared to the normal 60 million per
cubic meter cannot impugn the legitimacy of the
child. The sterility should be absolute at the time
of the conception (Shepherd v Shepherd).
7) Vasectomy
This fact does not impugn the legitimacy of the
child right there and then. Removal of the vas
deferens can still be circumvented by the sperms
when they use other pathway to impregnate the
woman.
Tests such as the A-B-O test can only disprove
paternity, but not prove it.
The Human Leukocyte Antigen (HLA) Test can
only prove the probability of paternity with 98%
accuracy. DNA testing is already proven to be
useful for determining filiation. A DNA result
that excludes paternity is conclusive. In proving
paternity, a 99.9% match can only result into a
refutable presumption. Any lower than that is
inconclusive even for a presumption.
8) Vitiated Consent
In case of vitiated consent, it may be done by the
spouses against each other, or by third persons
John Psalmuel Velarde Chan

against either or both spouses. Only the husband,
or in a proper case, his heirs, can impugn such
legitimacy.
When a mother is subjected to force, undue
influence, etc. she cannot impugn the legitimacy
of the child because it came out of her own womb.
She is not given legal standing by law.
If the husband acceded to artificial insemination,
and went through the process required by law, he
may no longer impugn the legitimacy of the child.
Article 168
Access is presumed prior to termination of
marriage. After the termination of such, there is
no more presumption of access.
When there is a second marriage, the rules in
Article 168 will be used, but only in the absence
of proof to the contrary.
If a child is born during the first 180 days after
the solemnization of marriage, even if it falls
within 300 days after the termination of the first
marriage, the child is presumed to belong to the
first marriage. If born more than 180 days after
the solemnization, it will be presumed to be that
of the second, even if it be born within the 300
days after the termination of marriage.
Note that this can only apply in the absence of
proof to the contrary.
Article 169
The legitimacy of a child born after 300 days
following the termination of marriage shall be
proved by whoever alleges legitimacy or
illegitimacy.
Articles 170-171
Impugning the legitimacy of the child is a
personal right. It cannot be set up by way of a
defense or as a collateral issue (Rosales v Castillo
Rosales).
A paramour cannot assert paternity over a child
who was conceived and born out of the marriage
of his lover and the husband.
Persons and Family Relations Notes
55
In an action for partition, the legitimacy of the
child may not be impugned (De Jesus v De Jesus).
However, if the issue is inheritance, and the child
may possibly be a stranger, the legitimacy may be
impugned (Spouses Fidel v CA).
As much as possible, the policy of the law is to
avoid attacks against the legitimacy of the child
(Russell v Russell).
There are three prescriptive periods for the
husband, or in the proper case, his heirs:
1) One year from the knowledge of the birth
or from the recording in the civil register,
if the impugner resides in the same area
where the baby was born or registered.
2) Two years, if outside the municipality or
city but inside the Philippines
3) Three years if the impugner is abroad
If the birth was concealed, then the countdown
will start from the discovery of the birth, or the
recording of such birth, whichever is earlier.
The starting period is not from the suspicion of
non-paternity.
Chapter 2- Proof of Filiation
Lineage cannot depend on similarity alone (Chun
Chong v Collector of Customs). It can be a strong
evidence if accompanied by other proof, whether
direct or circumstantial (Tijing v CA).
Article 172 can be applicable to proving
illegitimacy to, subject to some restrictions.
The documents in Article 172 are not as
significant as the declaration of legitimacy or
illegitimacy if the child is proved to be conceived
or born in a marriage, or conceived and born
outside of it. However, the probative value of
such documents are strong when proving the
filiation of the child born after 300 days following
the termination of a marriage, if no subsequent
marriage follows.
1) Record of birth
John Psalmuel Velarde Chan

These are government records and prima facie of
the facts contained therein (Malicdem v
Republic).
If the father signed the record of birth, these are
consummated acts of acknowledgement of
paternity. As such, there is no more need to file
for an action for acknowledgement (Montefalcon
v Vasquez).
Do note that if the father had not signed the record
of birth, it is an incompetent evidence of the proof
of filiation (Reyes v CA).
*Can spouses agree in a contract with regard to
the status of a child? No. it is for the court to
determine. However, the fact that the father
signed an agreement can be a possible evidence
to prove filiation.
2) Admission in a public or private
handwritten document
This is a complete act of recognition (De Jesus v
De Jesus). If it is not handwritten, it is not a proof
of filiation (Reyes v CA). It must also be signed
by the father. Even student permanent records in
school duly signed by the father may be proof of
filiation.
3) Open and continuous possession of the
child
Continuous does not mean forever. An
intermittent character of possession open to the
public may suffice (Mendoza v CA).
There must be clear and convincing proof, and the
possession should not be merely because acts of
liberality on the part of the person.
A father who gave his child allowance for four
different times in the life of the child did not
continuously possess the child (Ong v CA) to be
sufficient to prove his filiation.
4) Evidence allows by the Rules of Court
Pictures, typewritten letters, memorabilia, are not
proof of filiation. Using the surname of the father
without his consent is also not proof (Ferrer v
Inchausti).
Persons and Family Relations Notes
56
Before, canonical records are not proof of
filiation. At present, they may be used together
with other evidence to prove filiation. Judicial
admission, a family Bible, etc. can be used. To
qualify, a baptismal certificate cannot be used as
a proof if the father did not participate in the
preparation of such (Fernandez v CA).
DNA testing is now a valid form or proving the
possibility or disproving paternity (Agustin v
CA). A 99.9% DNA result is still a refutable
evidence of paternity. If it is less than 99.9%, it
can only be corroborative evidence. Note that a
perfect DNA result can only not exclude the
person as the father of the child, but it cannot
stand alone in decisively proving paternity.
Article 173
Claiming legitimacy is a personal right. Hence, it
may be claimed during the lifetime of the child.
When he dies, the claim is lost, except in case
where the child died during minority, or while
insane, or while the action has already been
initiated. The heirs may now claim legitimacy.
The right to claim also provides the right to
disclaim legitimacy.
Article 174
The Court acknowledges that the greatest
preferential treatment is given to the child.
The illegitimate children can only claim
legitimacy during their lifetime if the proof used
is any of the first two. If they use the last two
proof, then the duration will only last until the
father dies.
An illegitimate child cannot inherit ab intestate
from legitimate children and relatives of his
father or mother. Such cannot inherit by
representation (inheriting from a grandfather
when the father predeceased him).
Article 175- Illegitimate Children
When a child is born out of a concubinage, then
it will be illegitimate. He may claim illegitimacy
from the putative father. However, say, for
John Psalmuel Velarde Chan

instance, that the concubine had a spouse herself,
then the child will be a legitimate child of that
valid marriage. The child may not claim
illegitimacy from the putative father because he
is a legitimate child of a different family insofar
as the law is concerned. Prior to claiming
illegitimacy, the child must still be impugned by
the husband of the concubine.
Declaring pedigree may be admitted as proof
under the evidence allowed by the Rules of Court.
The requisites are:
1) Declarant is dead or unable to testify
2) Pedigree must be in issue
3) Declarant must be a relative of the person
whose pedigree is in issue
4) Declaration must be made before the
controversy
5) Relationship between the declarant and
the person whose pedigree is in issue
must be shown other than the declaration
The phrase the like in the evidence allowed by
the Rules of Court follows the maxim of ejusdem
generis. Meaning, only those that show joint
family statement or belief as to the pedigree of a
person may be used.
A love letter may qualify as a private handwritten
instrument (Verceles v Posada).
Article 176
The rights of an illegitimate child are not equal to
that of a legitimate child. They generally use the
surname of the mother, and his or her legitime
only consists one-half of that of the legitimate.
Here, the authority is vested to the mother. In
Briones v Miguel, it was said that the father is not
given authority although he recognized the child.
The reason is to ensure that no one can just
exercise authority over the child, even if it can
turn out that the person is indeed not the putative
father.
However, in Article 211, it is stated that both
parents shall exercise joint parental authority over
their common children. To reconcile this to the
Persons and Family Relations Notes
57
Briones ruling, it can be said that the father can
exercise authority over the illegitimate child if 1)
there is an express recognition, and 2) that the
father is living with the mother and the child
(Dempsey v RTC).
Once it is vested, authority may not be waived
except in cases provided by law.
If the father expressly recognize the child, then he
may use the surname of the father.
Chapter 4- Legitimated Children
Articles 177-180
Legitimate is a legal fiction, because it is a purely
statutory creation. Since these are remedial in
character, it may be applied retroactively. It must
also be liberally construed (Cardenas v Cardenas).
Requisites:
1) Parent do not suffer from a legal
impediment or are disqualified merely
because they were not yet 18 at the time
of conception.
2) Child is illegitimate
3) They enter into a valid marriage
Hence, those that fulfill the requisites prior to the
effectivity of the Family Code, even though not
recognized by their father, become legitimated
upon the effectivity of the Code. This may not
affect vested rights, of course, like property
already partitioned.
Can a child out of an adulterous marriage be
legitimated? No, at the time of the conception,
there is an impediment other than non-age.
Children of bigamous marriage are also
illegitimate (De Santos v Angeles).
Legitimation creates a relationship to all the
relatives of the father, as if a legitimate child. This
is unlike adoption.
Article 181
Here, even if the child dies before the marriage,
he will still be legitimated, and his descendants
shall benefit.
John Psalmuel Velarde Chan

Article 182
Only heirs to property rights may impugn the
legitimation of the child. The prescriptive period
is 5 years from the date their cause of action
accrues. These refer to successional rights and no
other.
Title VII- Adoption
For Sta. Maria, all provisions on adoption are
already repealed. Refer to Rabuya or Paras for
per Article discussions.
If the requirements for adoption are not met, the
decree of the judge will be null.
There is no presumption in favor of the rights
between the adopter and the adoptee. There must
be proof that all requirements have been met.
Note that irregularities are different from not
meeting the requirements. Here, we give a less
strict interpretation (Santos v Aranzanso).
Counselling sessions need to be undertaken by
the natural parents, the adoptee, and the adopters.
This is to ensure that they will jive with each other.
Should the location of biological parents be
unknown, there must be an attempt to locate such
so that free consent or reconciliation may be
achieved.
There are two phases in adoption: 1)
administrative and 2) judicial. Once the child is
declared legally available for adoption, the
administrative phase ends.
Relatives by blood or affinity are not excluded
from becoming the adopters of their minor
relatives, so long as the requirements for
qualifications are met. There is no limit for
adoption (Hofilena v Republic). An elder sister
can adopt a younger brother, and a stepfather can
also adopt the stepdaughter.
The law frowns upon terminating the authority of
the biological parents, so adoption should only
occur when the childs best interests are better off
in an adoptive family.
Persons and Family Relations Notes
58
For a prospective adopter to be disqualified, there
must be a conviction of a crime involving moral
turpitude. Even if pardon is given, the fact that
moral turpitude is proved can be harmful to the
possibility of being able to adopt.
As a general rule, age different must be 16 years.
Currently, aliens may already adopt domestically
or inter-country. For domestic adoption, these are
the added requirements:
1) Home country must have foreign
relations with the Philippines
2) Must have been living here for at least 3
years prior to the filing of the application
3) Certification of legal capacity to adopt
These may be waived in the following cases:
1) Former Filipino citizen who seeks to
adopt a relative within the 4th degree of
consanguinity of affinity
2) One who seeks to adopt the legitimate
child of Filipino spouse
3) One who wants to jointly adopt the
relative within the 4th degree of affinity
or consanguinity of his or her Filipino
spouse
Waiver of the requirements is still discretionary.
The best interest of the child will still be the
ultimate test.
When a Filipino adopts an alien, the child will not
acquire Filipino citizenship. Naturalization, and
not adoption, is the recourse (Ching Leng v
Galang).
In a guardian-ward relationship, the guardian may
only adopt the ward after the relationship has
been terminated, and that the payment for the
services has already been given. This ensures that
there must be proof of good faith, because if the
property of the ward has not been administered
properly, then this may be used against the
prospective adopter.
In case of spouses adopting, they must adopt
jointly. In case of conflict, the fathers decision
will prevail.
John Psalmuel Velarde Chan

Note that only minors may be adopted as a
general rule, except when the child is the
illegitimate child of the adopter, the child is the
legitimate child of the spouse, and when child has
been treated as such ever since.
For consent, there is no need for every one of
them to appear in court. It is possible for their
signatures to be attached to the petition, whereby
the prospective adopter simply has to testify that
he obtained the consent of the required
individuals.
Note that if the natural parents have abandoned
the child, the consent must be obtained from the
guardian ad litem or the proper government
agency. If there is still communication, then the
consent of the parent is still required.
Prior to the adoption decree, is it possible to
withdraw consent? Yes. There is a 6-month grace
period. After which, estoppel will kick in.
However, if the childs best interest prove that the
parent who withdrew the consent is a better parent
over the prospective adopter, it may be possible
for the court to allow such withdrawal.
Is a private adoption agreement valid? No,
adoption is a judicial act, because it is a
proceeding in rem. Constructive notice is possible
because it is a proceeding in rem (Santos v
Aranzanso).
Once the decree of adoption is issued, it cannot
be attacked collaterally. The decree retroacts
from the filing of the petition. However, the
vicarious liability of the adoptive parent will start
after the decree if retroactivity will prejudice his
right. In Tamargo v CA, an adoptive parent whose
petition was approved was saved from the
retroactivity of his parental authority with regard
to incurring liability as a result of the death of
third party killed by the adoptee during the
proceedings.
After which, registration must follow. In the case
of In the Matter of the Adoption of Stephanie
Nathy Astorga, the Supreme Court allowed the
child to use the surname of the mother as her
Persons and Family Relations Notes
59
middle name. The mother was unmarried and
gave her consent to the adoption.
The original birth certificate must be replaced
without any indication that the adoption occurred.
Once the adoption decree is secured, there is
severance of parental ties between the natural
parents and the child.
The adopted child becomes a legitimate child of
the adopter. Upon the death of the adopter, the
ties between the natural parents and the adopted
child will not be reestablished (Shepherd v
Murphy).
The children of the adopted child are not
descendants of the adopter. Relatives of the
adopter are not relatives of the child, except of
course if they are relatives in the first place.
There is reciprocal intestate succession between
the adopter and the adoptee. The biological
parents will not get anything from the adopted
child because all ties are severed.
The right of representation is not given to the
adoptee nor the adopter. Since there is only a
parent-child relationship, it may be impossible for
one to represent the other as heir to a person
whom one is not considered a relative.
If there is a will, then the biological parents can
still inherit from the adoptee, and vice versa. In
testate succession, preterition is allowed as in
normal circumstances. He may choose not to give
any part of the free portion to the adoptee by
excluding him or her from the will.
At present, only the adoptee is granted the legal
standing to rescind the adoption. If minor, the
adoptee will be assisted by the DSWD. Note that
before, the adopter was given the standing to
rescind the adoption. Now, the only remedy
available to the adopter is to disinherit the adoptee
on valid grounds.
In rescission, the adoption merely terminates,
meaning it is valid and will only stop when
declared so. If the adoption is void, any interested
party may have the standing to do so.
John Psalmuel Velarde Chan

The grounds are:
1) Maltreatment
At the first instances of this, the adopter shall be
subjected to counselling. If it continues, the
adoption may be assailed.
2) Attempt on life
3) Sexual assault or violence
4) Abandonment
While the adopter cannot seek to terminate the
adoption, he can disinherit the adoptee (Article
919 of the Civil Code).
***************************************
Title X- Emancipation and Age of Majority
Article 234-237
Marriage is not any more a ground for
emancipation. In Article 399 of the Civil Code, a
married but unemancipated child was restricted in
terms of borrowing of money, or encumbering his
or her property, but such is now deleted in the
Family Code.
In Article 236, parental consent for marriage of
parties under 21 is required, but such is only to
recognized Filipino tradition and culture. It is
neither a formal nor an essential requisite of
marriage, but the absence of which can render the
marriage voidable.
Liabilities of Parents for the Torts of their
Emancipated Children
Article 236 intended to highlight the exceptions
established by existing laws to the complete
emancipation of the child. This is in recognition
of Article 2180 of the Civil Code, which puts to
the parents liability for the torts and damages
committed by their children under 21 years of age.
However, Article 2180 has already been
superseded by Article 236, which absolves the
parents of liability for their emancipated children
above 18 but below 21.
Persons and Family Relations Notes
60
In Elcano v Hill, Supreme Court said that an
emancipated minor by marriage but was under 21,
who commits a tort against another, is still under
the parental authority of the father. The father,
therefore, under Article 2180(2), can be liable for
the torts. This is because 1) the minor cannot be
sued or sue in court without assistance of the
father, and 2) the minor cannot borrow or alienate
property without parental consent. This was
possible because Article 399 of the Civil Code
provided that the child may not sue or be sued
without the assistance of the father. Since Article
399 was not carried over to the Family Code, the
conclusion is that a child over 18 is completely
emancipated. Parents are not anymore liable for
their torts.
To conclude, the last paragraph of Article 236,
which says that the parents still have
responsibility to their emancipated child, is now
without legal basis. Article 2180, hence, should
be construed only to put liability to parents who
have unemancipated children.
In attempting to avoid rendering the last
paragraph of Article 236 as surplusage, it may be
possible to construe it as only putting liability on
parents or guardians if their children or wards are
living with them and are under their authority
(above 18 but under 21).
Title XI- Summary Judicial Proceedings in the
Family Law
Chapter 1- Scope of Application
Article 238
Rules in this Code will govern summary
proceedings unless modified by the Supreme
Court.
Chapter 2- Separation in Fact between
Husband and Wife
Article 239
Spouses who enter into conjugal partnership or
absolute community are partners or co-owners of
the property, and one cannot alienate, sell, or
John Psalmuel Velarde Chan

encumber the property without the consent of the
other.
If they are separated in fact, or one has abandoned
the other, the remedy is for a summary judicial
proceeding.
Article 240
Claims of damages between spouses must be
done in a separate proceeding.
Article 241
RA 8369, or the Family Courts Act of 1997, rests
to the Family Courts the jurisdiction over cases in
the Family Code
Article 242
The other party has the right to show-cause why
the petition should not be granted. When the
respondent agrees, except in some cases, then the
petition is granted and the case becomes moot and
academic.
Article 243
The parties will not be assisted by counsel during
the preliminary conference. This is to ensure that
the case will be amicably settled, if possible, by
allowing the judge to talk to the parties alone in
court. However, if the judge finds out that it will
be hard to settle it, he can authorize lawyers to
come to aid.
Article 244
Due process is about the right to notice and the
right to be heard. The court is required to inquire.
Article 245
Ex parte proceedings can be done in summary
judicial proceedings. The judgement will be
based on the facts presented by the petitioner. Of
course, protection of the interest of the non-
appearing spouse is still present.
Article 246
Persons and Family Relations Notes
61
Affidavits can suffice to allow the judge to decide
on the case. Testimonies may be heard, but all are
based on the discretion of the judge.
Article 247
Decision is final and executory. No need to wait
for 15 days after the receipt of the decision.
However, an appeal may be taken to a higher
court if due process is violated. This is in the
interest of speedy disposition of cases in the
Family Code. Note that while the appeal is being
taken, the decisions are still executory in the
absence of an injunction.
Article 248
This Article recognized Article 100 and 127,
which allows the petitioner-spouse to use the
separate property of the absent-spouse to satisfy
their solidary liabilities.
Chapter 3- Incidents involving Parental
Authority
Article 249
Article 233 deals with seeking disciplinary
measures over the child. Article 225 deals with
cases for the approval of bond required of parents
who are entitled to administer the property of
their minor children. Article 235 has already been
repealed, however.
Article 250
On issues involving parental authority, the cases
shall be filed in the place where the child lives.
Article 251
The best interest of the child is an inflexible
criterion, but the people who exercise authority
shall be invited to court for probing.
Article 252
The procedures in Chapter 2 are applicable. This
is to ensure that measures are laid out as quickly
as possible.
Chapter 4- Other Matters Subject to
Summary Proceedings
John Psalmuel Velarde Chan

Article 253
The procedures in Chapters 2 and 3 shall govern
the following Articles: 41, 51, 69, 73, 96, 124 and
217, insofar as applicable.
Article 41- declaration of presumptive death
Article 51- delivery of presumptive legitime
Article 69- judicial determination of family
domicile
Article 73- objection to the profession of the other
spouse
*Article 96- annulment of the husbands decision
in the administration and enjoyment of the ACP
*Article 124- annulment of the husbands
decision in the administration and enjoyment of
the CPG
Article 217- granting of authority for entities,
concerning abandoned, foundling, abused, or
neglected children.
*Concerning the appointment of one spouse as
the sole administrator, this can be done in a
summary proceeding only if the other abandons
the petitioner, or that they are separated in fact, or
the consent is withheld. Incompetence of the
other as a ground to have sole administratorship
will not invoke Article 253, but Rules 93 of the
1964 Revised Rules of Court (Uy v CA).
Title XII- Final Provisions
Article 254
This solidified the Family Code as the principal
law governing family relations. The provisions
hereunder are expressly repealed, regardless if
they are in conflict with the Family Code. For
those impliedly repealed, an irreconcilable
conflict must exist (Iloilo Palay v Feliciano).
Title XIII (Surnames) of the Civil Code has not
been expressly repealed, but some are in
irreconcilable conflict with the Family Code.
Article 255
Persons and Family Relations Notes
62
Invalidity of one provision will not affect others,
except those which are inextricably linked to it.
RA 6809, changing the age of majority to 18,
rendered some of the phrases in Article 14 as
surplusage. This includes Article 68 which refers
to minors who may contract marriage, and Article
111 which refers to spouses of age.
Article 256
Jovellanos v CA stated that the Family Code has
retroactive effect in general, insofar as it does not
violate any vested right. When a husband entered
into a marriage in 1955, entered into a conditional
sale in installment of a property, paid out the last
installment on 1975 (after he got married to the
second wife on 1967), is retroactively governed
by the Family Code. Even though he used
separate funds and part of the conjugal funds from
the first marriage, the mere fact that the
installment was fully paid out in 1975 (and thus
the ownership and the vested right were only
transferred by then), the property belonged to the
conjugal partnership of the second marriage
pursuant to Article 118 of the Family Code. No
vested right was violated because he did not own
the property until 1975 anyway.
In Atienza v Brillantes, a judge entered into a void
marriage in 1965. In 1991, he entered into a
marriage without obtaining a judicial declaration
of nullity, the Supreme Court rendered his second
marriage void under Article 40 because of this.
The Code retroacted.
A vested right is an immediate fixed right of
present and future payment, which is the
exception to the retroactivity of the Family Code.
It is to be distinguished from an expectant right or
a contingent right. These are absolute, fixed,
unalterable, complete, and unconditional. If it is
no longer open to doubt, it has already
transitioned from potential to contingent to fixed
(Jovellanos v CA).
In Republic v CA 205 SCRA 356, if the adoption
was filed by only one spouse pursuant to PD 603
(Child and Youth Welfare Code), prior to the
effectivity of the Family Code, if the judgement
John Psalmuel Velarde Chan
 63

of approval was already rendered prior to 1988,
then this is a vested right that cannot be nullified,
even though the Family Code requires both
spouses to file a petition for adoption jointly.
In the same way, the prescriptive period for the
claim of illegitimacy under the Civil Code was
governed by Article 285, and not Article 175 of
the Family Code (Tayag v CA, and Bernabe v
Alejo). The vested right was acquired by the
claimant during his birth, and he can claim
illegitimacy after the death of the father if the
putative father died during the formers minority.
3) Decision of the person obliged to make
arrangements
The funeral shall be in keeping with the social
position of the deceased. Give the deceased the
right due him, and the funeral can represent such.
Articles 308-309
Damages can be sought, moral or actual, from
those who wrongfully interfere with the funeral,
or disturb the dead.
Article 310

If a husband and wife were married in 1979 just If the person is married, the conjugal partnership
before the previous marriage of the husband was will be liable for the erection of the tombstone or
declared null by the Court, Article 40 was not the mausoleum.
made to retroact because even though no vested
right was present under the Civil Code, the
prevailing doctrine did not required a previous
declaration of nullity for the first void marriage.
Article 257
Effectivity of the Family Code was 1 year after its
publication in the Official Gazette. It was
published in the Manila Chronicle on August 4,
1987. Hence, it took effect August 3, 1988.

Civil Code
Title X- Funerals
Article 305
Article 294 of the Civil Code is now Article 199
of the Family Code, which puts on the spouse the
first responsibility to arrange funerals. In default,
it will be the descendants in the nearest degree; in
the absence of such, the ascendants in the nearest
degree. Without them, it will be the brothers or
the sisters.
Articles 306-307
Kinds of funeral will depend on, in order of
preference:
1) Wish of the deceased
2) Religious beliefs of affiliation

Persons and Family Relations Notes John Psalmuel Velarde Chan