Vous êtes sur la page 1sur 12

Civil Law Notes – Bar 2018

by: Kevin John D. Ampuan

GENERAL PRINCIPLES Nationality Principle – Philippine laws relating to (1)

family rights and duties, or (2) to the status, condition and
GR: Ignorance of the law excuses no one from compliance legal capacity of persons are binding upon citizens of the
therewith. Philippines, although living abroad.
1. Mistake upon a doubtful or difficult question of Absolute Divorce
law See case of Marelyn Tanedo Manalo v. Japanese
2. Mutual error which results to vitiation of consent Spouse: the SC upheld the decision of the CA saying
3. Payment by reason of mistake (solutio indebiti) that: A foreign divorce secured by a Filipino is also
considered valid in the Philippines, even if it is the
Doctrine of Processual Presumption or Doctrine of Filipino spouse files for divorce abroad.
Presumed-Identity Approach – if the foreign law
involved is not properly pleaded and proved, our courts The court based its decision on its interpretation of
will presume that the foreign law is the same as our local Article 26 (2) of the Family Code. The said provision
(domestic or internal) law. states that when a foreigner spouse obtains divorce
allowing him or her to remarry, the Filipino spouse
Requisites of a Valid Waiver of Rights “shall likewise have capacity to remarry under
1. He must actually have the right which he Philippine law.”
2. He must have the capacity to make the NB: However, the rule on absolute divorce as against
renunciation Filipino spouses is still the same – it being still contrary
3. Renunciation must be made in a clear and to public policy and morality
unequivocal manner
4. Waiver must not be contrary to law, public order, Lex Rei Sitae – with respect to property, be it personal or
public policy, morals or good customs or real, it is subject to the law of the country where it is
prejudicial to a 3rd person with a right recognized situated.
by law XPNs: The national law of the person whose succession is
under consideration and not the law of the country where
Repeal of Laws the property is situated will govern with respect to the
1. Express – contained in the subsequent law following aspects of succession, testate or intestate:
NB: When the repealing law is repealed, the 1. Order of succession
original law is not revived unless otherwise 2. Amount of successional rights
provided 3. Intrinsic validity of testamentary provisions
2. Implied – requisites: (a) the laws contain the same 4. Capacity to succeed from a decedent
SM; and (b) the latter is repugnant to the earlier
NB: When the subsequent law is repealed, the Lex Loci Celebrationis – the forms and solemnities of
original law is revived unless otherwise provided contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are
Stare Decisis – a point of law already established will, executed
generally, be followed by the same determining court and
by all courts of lower rank in subsequent cases where the Lex Loci Contractus – when what is involved is the
same legal issue was raised nature, construction and validity of contracts; it could
either be:
Obiter Dictum – an opinion expressed by a court upon 1. Lex Loci Voluntatis – law voluntarily agreed
some question of law which is not necessary to the upon by the parties
decision of the case before it 2. Lex Loci Intentionis – law intended by the parties
expressly or implicitly
GR: Philippine Penal Laws and those of public security
and safety are obligatory upon all who live or sojourn in HUMAN RELATIONS
the Philippine Territory.
XPN: provisions to the contrary of: Damnum Absque Injuria – the proper exercise of a
1. Treaty Stipulations lawful right cannot constitute a legal wrong for which an
2. Principles of Public International Law action will lie, although the act may result in damage to
3. Laws of Preferential Application another, for no legal right has been invaded

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

Principle of Abuse of Rights – the exercise of right ends 2. Reserves the right to institute it separately
when the right disappears, and it disappears when it is 3. Institutes the Civil Action prior to the criminal
abused especially to the prejudice of others; elements: action
1. There is a legal right or duty
2. It is exercised in bad faith Prejudicial Question – that which arises in a case the
3. For the sole intent of prejudicing or injuring resolution of which is a logical antecedent of the issue
another involved therein, and the cognizance of which pertains to
another tribunal; elements:
Breach of Promise to Marry 1. A previously instituted civil action involves an
GR: Per Se is not an actionable wrong issue similar or intimately related to the issue
XPN: raised in the subsequent criminal action; and
1. When the woman is a victim of moral seduction 2. The resolution of such issue determines whether
2. When the plaintiff has actually incurred expenses or not the criminal action may proceed.
for the wedding – he/she has the right to recover
money or property advanced by him or her upon PERSONS AND FAMILY RELATIONS
the faith of such promise
Accion in Rem Verso – an action for recovery of what has
been paid or delivered without just cause or legal ground; Juridical Capacity – the fitness to be the subject of legal
requisites: relations; it is inherent in every natural person; it is only
1. Defendant has been enriched lost through death; and it cannot be limited or restricted
2. Plaintiff suffered a loss
3. Enrichment of the defendant is without just or Capacity to Act – the power to do acts with legal effects;
legal ground it is not inherent but is acquired; it may be lost through
4. Plaintiff has no other action based on contract, other means or circumstances; and it can be limited or
quasi-contract, delict or quasi-delict. restricted

vs. Solutio Indebiti – mistake is an essential Civil Interdiction – an accessory penalty imposed upon
requisite here and unlike solution indebiti, action the accused whose penalty is not lower than RT; effects:
in rem verso is merely an auxiliary action 1. Deprivation of the rights of Parental Authority or
Unfair Competition – what is sought to be prevented is 2. Deprivation of Marital Authority
the use of unjust, oppressive or high-handed methods 3. Deprivation of the right to manage his property
which may deprive others of a fair chance to engage in 4. Deprivation of the right to dispose of his property
business or to earn a living; requisites: by any act or conveyance inter vivos.
1. Injury to a competitor or trade rival
2. Involves acts which are characterized as contrary Civil Personality – is the aptitude of being the subject of
to good conscience or shocking to judicial rights and obligations; it begins from birth (after the
sensibilities or otherwise unlawful complete delivery from the mother’s womb or after the
cutting of the umbilical cord)
Effects of Acquittal upon Civil Liability
1. Accused is not the author of the crime Consequences of the Provisional Personality of
complained of – civil liability ex delicto is Conceived Child
extinguished (but this does not extend to those 1. The right to be a done of simple donation but the
arising from quasi-delict or culpa aquiliana) acceptance is made by the persons who would
2. Acquittal based on Reasonable Doubt – accused legally represent him if he were already born
is NOT exempt from civil liability ex delicto which 2. The right to receive support from his progenitors
may be proved by preponderance of evidence 3. He may not be ignored by his parents in the
only testament – otherwise, there is preterition

GR: When a criminal action is instituted, the civil action Applicability of Arts. 40, 41, and 42, NCC
for the recovery of civil liability arising from the offense 1. There is no need to establish the civil personality
charged is deemed instituted with the criminal action of the unborn is his/her juridical capacity and
XPN: capacity to act as a person are not in issue and the
1. Waiver of the Civil Action case is not whether the unborn child has acquired

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

any rights or incurred any obligations prior to husband and wife for at least 5 years before the
his/her death that were passed on to or assumed marriage; (b) parties have no legal impediment to
by the child’s parents. marry the other during the 5-year period of
2. One need not acquire civil personality first before cohabitation
he/she could die. Death is defined as the
cessation of life. Life is not synonymous with civl C. Void and Voidable Marriages
a. Void Marriages
FAMILY CODE: August 3, 1988
GR: It is ipso facto void without the need of any judicial
MARRIAGE declaration of nullity.
XPN: For purposes of remarriage – even if the prior
A. Requisites of Marriage marriage is void ab initio, a judicial declaration of its
nullity is required before a subsequent marriage is
Essential Requisites: (1) legal capacity; and (2) consent of contracted, otherwise, the subsequent marriage is in itself
the contracting parties void ab initio for being bigamous.

NB: (a) Absence makes the marriage void; (b) defect in A void marriage can be questioned even after the death
consent makes the marriage voidable of either party; procedure: (may only be done by compulsory
or intestate heirs)
Formal Requisites: (1) authority of the solemnizing 1. If the marriage is celebrated during the effectivity
officer; (2) a valid marriage license – validity is 120 days of the Civil Code – via petition for declaration of
from issue (issued by the Local Civil Registrar); and (3) nullity of marriage
marriage ceremony
NB: A petition for the declaration of nullity of
NB: (a) Absence makes the marriage void. XPN: belief marriage is imprescriptible (XPN: if covered by
in GF by either or both of the parties that the AM-02-11-10-SC, then it may only be filed during
solemnizing officer has authority to do so; (b) the lifetime of the spouses)
irregularity shall not affect the validity of the marriage
BUT the person responsible shall be civilly, criminally 2. If the marriage is covered by AM 02-11-10-SC – a
and administratively liable. proceeding for the settlement of the estate of the
deceased spouse.
Two Basic Requirements for a Valid Marriage Reason: a petition for declaration of nullity of the
Ceremony: marriage can only be filed during the lifetime of
1. There should be a personal appearance of the the spouses, if the marriage is covered by AM 02-
contracting parties before a solemnizing officer 11-10-SC (March 15, 2003).
2. Their declaration in the presence of not less than
2 witness of legal age that they take each other as The following marriages are void from the beginning:
husband and wife 1. If any of the party is below 18 years old
2. The solemnizing officer is not legally authorized
B. Marriages Exempt from the License Requirement (XPN: belief in GF by either or both of the
1. Marriage in Articulo Mortis – in lieu of license, the 3. Lack of Valid Marriage License
solemnizing officer issues an Affidavit 4. Bigamous or Polygamous Marriages
2. Marriage in Remote Places – no means of XPN: Article 41, Family Code
transportation to appear personally before the local a. The prior spouse (absentee) must have been
civil registrar absent for 4 consecutive years or 2 years
3. Marriage among Muslims and Ethnic Cultural where there is danger of death;
Communities – marriage must be solemnized b. The spouse present has a well-founded belief
according to their customs, rites and practices that the absent spouse is already dead; and
NB: Marriage between a Muslim and a Non-Muslim c. The spouse present has obtained a judicial
is NOT covered by this rule, thus a marriage license declaration of presumptive death.
is required NB: The rule on obtaining the judicial
4. Legal Ratification of Marital Cohabitation: (a) man declaration applies only to subsequent
and woman must have been living together as marriages celebrated during the effectivity of

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

the Family Code. If it was under the Civil – but take note that the law still considers the
Code, it suffices that the prescribed period of party liable for bigamy; on the other hand, the
absence is met. subsequent marriage under Art. 35(4), FC is void
5. Mistake in Identity for being bigamous since it was celebrated while
6. Non-compliance with Art. 52, FC a valid marriage is still existing.
Rules: If previous marriage is annulled or 11. Both the present spouse and the subsequent
judicially declared void, the following shall be spouse acted in Bad Faith, for the both knew at
recorded in the appropriate civil registry: the time of the celebration of the subsequent
a. Judgment of annulment or of absolute nullity marriage that the absentee spouse is still alive (re:
of marriage Article 41, Family Code)
b. Partition and distribution of the properties of
the spouses Valid Subsequent Bigamous Marriages under Art. 41,
c. Delivery of the children’s presumptive Family Code; requisites:
legitimes. 1. The prior spouse (absentee) must have been absent
7. Psychological Incapacity for 4 consecutive years or 2 years where there is
Characteristics: danger of death;
a. Gravity – illness must be shown as 2. The spouse present has a well-founded belief that the
downright incapacity or inability, not a mere absent spouse is already dead; and
refusal, neglect or difficulty, much less ill 3. The spouse present has obtained a judicial
will. declaration of presumptive death. (This judicial
b. Juridical Antecedence – must be shown to be declaration is obtained when the present spouse
existing at the time of the marriage, although wishes to marry and he/she files a summary
overt manifestations may emerge only after proceeding of such nature)
the marriage.
c. Incurability – must be shown to be medically Termination of the Subsequent Marriage under Art. 41
or clinically permanent or incurable and such of the Family Code
incurability may be absolute or even relative 1. If marriage was celebrated under the Civil Code, it is
only. terminated by final judgment of annulment in a case
8. Incestuous Marriages instituted by the absent spouse who reappears of by
a. Between ascendants and descendants of any either or the spouses in the subsequent marriage for
degree, whether legitimate or illegitimate the ground – reappearance of the absentee spouse
b. Between brothers and sisters, full or half- 2. If marriage was celebrated during the effectivity of
blood, legitimate or illegitimate the Family Code, either: (a) by the recording of the
9. By reason of Pubic Policy affidavit of reappearance; or (b) by by judicial
a. Between Collateral Blood Relatives – up to 4th declaration of dissolution or termination of the
civil degree, legitimate or illegitimate subsequent marriage.
b. Between Step-Parents and Step-Children 3. If the declaration of the absentee spouse’s
NB: Marriage between step-brothers and presumptive death is through fraud or is a sham –
step-sisters are now valid under the Family the remedy of that spouse is NOT to file an affidavit
Code of reappearance BUT an action to annul the
c. Between Parents-in-Law and Children-in- judgment declaring him presumptively dead.
d. Adoptive Relationships Effects of Judicial Declaration of Nullity of Marriage
e. By Reason of Intentional Killing of Another’s GR: It retroacts to the date of its celebration – hence, it is
Spouse considered as having never taken place at all.
10. Void Marriage under Article 40, FC XPN:
The article refers to a situation where the prior 1. Void ab initio first marriage and there is no
marriage is void in itself buy a party thereto did judicial declaration of its nullity – subsequent
not secure a judicial declaration of nullity of the marriage is still considered void because of
former marriage before contracting a subsequent bigamy (re: Art. 52, FC)
marriage. 2. There is no retroactive application if the marriage
NB: This must be distinguished with Art. 35(4), was annulled on the ground of psychological
FC since in Article 40, the subsequent marriage is incapacity – thus, subsequent marriage
void not because of being bigamous but for contracted is still considered void for being
failure to comply with the requirement of the law bigamous. (re: Art. 36, FC)

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

4. Consent is obtained Through Force, Intimidation or

Property Relations of Void Marriages Undue Influence
1. Art. 147, FC – applies to marriages where the 5. Either Party was Physically Incapable of
parties are legally capacitated to get married and Consummating the Marriage (Impotence) – this
are not barred by any impediment, but refers to the inability to perform the act itself and not
nonetheless the marriage is Void. (i.e. marriage sterility or inability to procreate; must be incurable
declared void due to psychological incapacity or and unknown to the injured party at the time of the
when it was celebrated without a marriage marriage
license) Doctrine of Triennial Cohabitation – if the wife
2. Art. 148, FC – applies where the parties are remains a virgin after 3 years of cohabitation, the
incapacitated to marry each other (i.e. bigamous husband will be presumed impotent
marriage or when the parties are below 18 years 6. Either Party was Afflicted with STD which is Serious
old) and Incurable – must be existing at the time of the
3. If the subsequent marriage is void by reason of marriage (different from the one under fraud since
non-compliance with Article 40, the property in fraud, it is regardless of its nature)
relations under the Family Code remains the

b. Voidable Marriages Grounds for Legal Separation

1. Repeated physical violence or grossly abusive
Characteristics: conduct directed against the petitioner, a common
1. Valid until set aside by final judgment of a child, or a child of the petitioner;
competent court in an action for annulment 2. Physical violence or moral pressure to compel the
NB: the children conceived or born before the finality petitioner to change religious or political affiliation;
of the judgment of annulment are legitimate 3. Attempt of respondent to corrupt or induce the
2. The defects of a voidable marriage can generally be petitioner, a common child, or a child of the
ratified or confirmed by free cohabitation or petitioner, to engage in prostitution, or connivance
prescription; exception: in such corruption or inducement;
a. Ground is physical incapability to consummate 4. Final judgment sentencing the respondent to
the marriage (impotency) imprisonment of more than six years, even if
b. Ground is affliction with STD which is serious pardoned;
and incurable 5. Drug addiction or habitual alcoholism of the
3. Action for annulment is subject to prescriptive respondent;
period or statute of limitations. 6. Lesbianism or homosexuality of the respondent;
4. Can only be assailed by a direct proceeding and not 7. Contracting by the respondent of a subsequent
collaterally bigamous marriage, whether in the Philippines or
5. Can be questioned only during the lifetime of the abroad;
parties and not after death of either 8. Sexual infidelity or perversion;
6. Ground or defect must be in existence at the time of 9. Attempt by the respondent against the life of the
the celebration of the marriage petitioner; or
10. Abandonment of petitioner by respondent without
Grounds for Annulment of Voidable Marriages justifiable cause for more than one year.
1. Lack of Parental Consent
2. Insanity Defenses in Legal Separation
3. Consent is Obtained Through Fraud 1. Where the aggrieved party has condoned the offense
a. Non-disclosure of Previous Conviction by final or act complained of;
judgment of a crime involving moral turpitude 2. Where the aggrieved party has consented to the
b. Concealment of pregnancy by a man other than commission of the offense or act complained of;
the husband at the time of the celebration of 3. Where there is connivance between the parties in the
marriage commission of the offense or act constituting the
c. Concealment of STD at the time of the ground for legal separation;
celebration of the marriage 4. Where both parties have given ground for legal
d. Concealment of drug addiction, habitual separation;
alcoholism, homosexuality or lesbianism 5. Where there is collusion between the parties to
obtain decree of legal separation; or

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

6. Where the action is barred by prescription (5 years Those acquired by either Those acquired through
from the occurrence of the cause) spouse who has gratuitous title, including
legitimate descendants fruits and income (XPN:
PROPERTY RELATIONS OF SPOUSES by former marriage, the grantor expressly
including fruits and provides that they shall
A. General Provisions income form part of the ACP)
For Personal and For Personal and
What shall govern their property relations? Exclusive Use (XPN: Exclusive Use (XPN:
a. The marriage settlement, if one is executed – such Jewelries) Jewelries)
must be in writing, signed and executed before the Excluded in the Marriage
celebration of the marriage. In order to be Settlement
enforceable as against 3rd persons, it must be
registered in the local civil registry where the Obligations Chargeable to the Absolute Community
marriage contract is registered as well as in the 1. Support of spouse, common children and legitimate
registries of the properties. children of either spouse
b. In absence of marriage settlement or in case it is void: 2. Debts and Obligations
i. Conjugal Partnership of Gains – is marriage was a. Ante-nuptial Debts: chargeable to ACP only if it
celebrated before the Family Code redounded to the benefit of the family
ii. Absolute Community of Property – if marriage is b. Those contracted during the marriage by: (a) both
celebrated during the effectivity of the Family spouses; (b) by one spouse with the consent of the
Code other; (c) by one spouse without the consent of
iii. Complete Separation of Property – if no the other but redounded to the benefit of the
liquidation of the property regime is made within family; or (d) by the administrator-spouse if it
1 year from death of the deceased spouse redounded to the benefit of the family
3. Others – see Art. 94, Family Code
B. Donations by Reason of Marriage or Donation
Propter Nuptias NB: The following shall be paid by the ACP,
considered as an advance share of the debtor-spouse,
Formalities in case that his separate property is not sufficient to
1. Personal Property with value more than PHP 5000 – pay such:
must be in writing to be valid a. Ante-nuptial Debt which did not redound to the
2. Real Property – must be in public instrument to be
benefit of the family
valid b. Support of Illegitimate Children
c. Those expenses for a crime or quasi-delict
Donation Propter Nuptias
1. With respect to present property –
Administration and Disposition of ACP
a. Regime of Absolute Community – no limitation NB: The power to administer by one of the spouses does
of donation to future spouse
not include the power to dispose or encumber without the
b. Other Regimes – not more than 1/5 of the authority of the court or written approval of the other
present property, anything in excess is void. spouse.
2. With respect to future property – must be in a form Continuing Offer – if the disposition or encumbrance is
of a will. But if the donor is other than the future void, the transaction shall be considered as a continuing
spouses, such donation is void pursuant to Art. 751
offer on the part of the consenting spouse and the 3 rd
of the Civil Code. person, and may be perfected upon acceptance or
authorization by the other spouse or the court before the
C. Systems of Absolute Community
offer is withdrawn.
NB: This is NOT ratification since a void contract cannot
In General
be ratified!
The H and W become joint owners of all the properties of
the marriage (brought or acquired thereafter), except
Dissolution or Termination of the Absolute Community
those excluded under Art. 92, FC.
1. Death by either spouse – it is mandatory that the
ACP must be liquidated a year from the death of the
Properties Excluded
deceased spouse, otherwise: any encumbrance shall
Properties Acquired Properties Acquired
be considered void (however, SC said that the sale
Prior The Marriage After The Marriage
shall be considered valid so long as there is yet a

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

partition of the property and the sale is limited only 1. Support of spouse, common children and legitimate
to the ideal share of the selling co-heir) and a regime children of either spouse
of complete separation of property shall govern the 2. Debts and Obligations
subsequent marriage of the surviving spouse a. Ante-nuptial Debts: chargeable to CPG only if it
2. Finality of a Decree of Legal Separation – this does redounded to the benefit of the family
not include separation in fact b. Those contracted during the marriage by: (a)
3. Finality of Judgment of Annulment both spouses; (b) by one spouse with the consent
4. Finality of Judgment declaring the marriage Void – of the other; (c) by one spouse without the
available only to a Void Marriage by reason of non- consent of the other but redounded to the benefit
compliance with Art. 40, FC. of the family; or (d) by the administrator-spouse
5. Upon Judicial Separation of property during the if it redounded to the benefit of the family
marriage, voluntarily or for a cause. c. Taxes and Expenses

D. Conjugal Partnership of Gains The buyers of Conjugal Property must observe 2 kinds of
requisite diligence:
In General 1. The diligence in verifying the validity of the title
A special type of partnership where the H and W place in covering the property
a common fund the proceeds, products, fruits and income 2. The diligence in inquiring into the authority of the
from their separate properties and those acquired by transacting spouse to sell conjugal property in behalf
either or both spouses through their efforts or by chance. of the other spouse.
NB: Like in ACP, there is also no waiver of Rights,
Interests, Shares and Effects (RISE) during marriage. E. Separation of Property of Spouses
Properties Excluded
1. Properties acquired prior to the marriage (XPN: Net When Can It Govern?
Fruits and those included in the settlement subject to 1. Agreed upon in Marriage settlement
1/5 limitation [re: donation propter nuptias]) NB: This can be full or partial. In case of partial
2. Properties acquired during the marriage by separation, the separate properties shall pertain to
gratuitous title. absolute community
3. Properties acquired by right of redemption, barter or 2. By Judicial Order:
exchange with property belonging to only one of the a. Finality of Decree of Legal Separation
spouses. (NB: the property so redeemed remains to b. Joint Petition of the Spouses for Voluntary
be a separate property even if the money paid for it Separation
is from the CPG only that it is subject to c. Upon petition for Judicial Separation due to a
reimbursement) sufficient cause (Art. 135, FC)
4. Properties purchased with exclusive money. 3. Failure of SS to liquidate within 1 year from death of
the former spouse
Properties Included
1. Properties acquired by onerous title during the F. Property Regime of Unions without Marriage
marriage at the expense of the common fund.
2. Property obtained during the marriage from the Property Regime under Article 147, Family Code
labor, industry, work or profession of either or both a. Requisites:
spouses. i. The parties must be capacitated to marry each
3. Fruits from Conjugal Properties and “net fruits” other;
from separate properties. ii. That they exclusively live each other as husband
4. Share in hidden treasure and those acquired through and wife; and
fishing or hunting iii. Their union is w/o the benefit of marriage or
5. Those acquired through chance, such as winnings their marriage is void.
from gambling or betting (losses are taken from b. Rule on Distribution of Property
exclusive properties) i. Wages and Salaries – divided in equal shares
6. Livestock existing at the dissolution od the ii. Property Acquired during cohabitation – rules on
partnership, in excess of the number of each kind equal co-ownership shall govern.
brought to the marriage by either spouse. NB:
 During the cohabitation, the parties are
Obligations Chargeable to CPG prohibited from disposing by acts inter vivos their
respective share in the co-owned property

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

 In case the void marriage is brought about by the

BF of one of the spouses, the share of the guilty Exception to non execution, forced sale or attachment of
spouse shall be distributed as follows: the Family Home:
a. The common children, if any; 1. Non-payment of Taxes
b. In the absence of the common children, the 2. Debts incurred prior to the constitution of the FH
surviving descendants of the guilty party; 3. Debts secured by mortgages on the premises before
c. In their default, the innocent party. or after such constitution
4. Debts due to laborers, mechanics, architects,
Property Regime under Article 148, Family Code builders, material men and others who have
a. Requisites: rendered service or furnished material for the
i. The man and woman must be incapacitated to construction of the building
marry each other or they do not live exclusively
together as husband and wife; and PATERNITY AND FILIATION
ii. Their union is w/o the benefit of marriage or
their marriage is void. A. Legitimate Children
b. Rules on Distribution of Properties
i. Wages and Salaries – that which earned by him or Status of Children
her are owned by him or her exclusively 1. Generally determined by status of marriage
ii. Property acquired during cohabitation – only the a. Legitimate – conceived or born of a valid
properties that acquired by both the parties thereto marriage
through their actual joint contribution of money, b. Illegitimate – conceived and born outside of a
property and industry shall be owned by them in valid marriage
common in proportion to their respective c. Legitimated – at the time of the child’s
contributions. conception, the parents of an illegitimate child are
NB: If one of the parties in the cohabitation is validly not barred from marrying each other or their only
married to another, his or her share shall form part of impediment is minority and subsequently, they
the ACP or CPG existing in such valid marriage. enter into a valid marriage, the child through
THE FAMILY legitimation becomes legitimate and enjoys all
rights and privileges as a legitimate child.
A. The Family as an Institution d. Children Conceived of AI – WON the sperm is of
the husband or the donor the child is legitimate
Suit between members of the same family if: (1) husband and wife authorized or ratified
“Earnest Efforts” for a compromise must be shown by the such insemination in a written instrument; and
parties, as a condition sine qua non, before a case may be (2) such written instrument is executed and
filed as against each other. signed by them before the birth of the child.
XPN: the following cases are not subject to compromise: e. Surrogate Mother Contract – such agreement is
a. Jurisdiction of courts not recognized under the Philippine Law it being
b. Civil status of persons contrary to law, morals and public policy.
c. Future Support 2. Presumption of Legitimacy
d. Future Legitime a. A child conceived through a wife’s infidelity to
e. Any ground for legal separation another man while legally married to her
f. Validity of Marriage or Legal Separation husband, is considered as a legitimate child of the
husband and wife for that child was conceived
B. The Family Home during a valid and subsisting marriage.
b. Referring to (a.) the mother cannot declare
Requisites in order for the relatives be considered as against the child’s legitimacy by denying the
beneficiaries of the Family Home: paternity of her husband.
1. They reside therein
2. They are one of those enumerated under Art. 154, FC Impugning Legitimate Child’s Legitimacy
3. They depend for legal support from the head of the a. Who can impugn:
Family Home GR: Personal Right of the Husband
XPN: Heirs of the husband; if:
Value of Exemption for the Family Home i. The husband dies before the expiration of the
1. Urban Areas – 300k prescriptive period;
2. Rural Areas – 200k

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

ii. The husband dies after the filing of the action

without desisting therefrom; and Rights of a Legitimate Child
iii. If the child was born after the death of the 1. Right to use surnames of the mother and father
husband 2. Right to Receive Support
b. Prescriptive Period of Action to Impugn Legitimacy 3. Successional Rights
i. 1 year from knowledge of birth or recording of 4. Citizenship – only legitimate children follows the
such birth in the civil register – if the husband citizenship of the father
or his heirs resides in the city or municipality
where the birth took place or was recorded B. Proof of Filiation
ii. 2 years – if the husband or his heirs do not
reside at the place of birth or where it was Accepted Proofs of Filiation
recorded, but are all residing in the Philippines 1. The record of birth appearing in the civil register or
iii. 3 years – if husband or heirs reside abroad a final judgment
c. Grounds to Impugn Legitimacy 2. An admission of legitimate filiation in a public
i. Physical Impossibility of Sexual Intercourse – or document or a private handwritten instrument and
within the first 120 days of the 300 days signed by the parent concerned.
immediately preceding the birth of the child: a. Private Handwritten Instrument – (a) there must
(a) Impotency (not sterility) be a statement of admission of filiation; and (b)
(b) Fact that they are living separately and the handwritten instrument must be signed by
sexual intercourse was impossible the parent concerned
(c) Serious Illness of the husband which NB: If this is the lone evidence, both requirements
absolutely prevented sexual intercourse must be followed to be given weight; however, if
ii. Biological or Scientific Reasons (i.e. the written it is mere corroborative of another evidence,
authorization of either parent was obtained absence of the signature of the parent concerned
through mistake, fraud, violence, intimidation will not invalidate the instrument
or undue influence) 3. The open and continuous possession of the status of
d. Legitimacy of the Child is NOT subject to a collateral a legitimate child; or
attack but only through a direct action brought for 4. Any other means allowed by the Rules of Court and
that purpose special laws. (i.e. DNA Test, Rule 130 ROC) by
 Collateral Attacks like: (a) an action for totality of evidence
reconveyance; (b) action for partition; (c) petition
for correction of entries under R. 108, ROC Who can file action to claim filiation
Effect of Termination of Marriage and Remarriage of a. Legitimate Filiation
Mother on Child’s Status GR: the Child claiming such filiation
a. Applicability of Article 168, FC XPN: His heirs when: (a) the child dies during
i. Requisites: minority; or (b) child dies during state of minority
(a) A previous marriage is terminated b. Illegitimate Filiation
(b) The mother contracted another marriage GR: the Child claiming such filiation
within 300 days after the termination of the XPN: His heirs when: (a) the child dies during
previous marriage minority; or (b) child dies during state of minority
(c) A child is born within 300 days after the
termination of previous marriage Prescriptive Periods to file action to claim filiation
ii. Rules in determining Paternity: a. Legitimate Filiation
(a) The child belongs to the first marriage and the GR: during the lifetime of the child
first husband is considered the father if: (1) it XPN: in exceptional cases, 5 years from death of the
be born BEFORE 180 days after the child
solemnization of the second marriage; and (2) b. Illegitimate Filiation
within 300 days after the termination of the (a) If action is based on admission of paternity or
previous marriage. birth certificate or written instrument
(b) The child belongs to the first marriage and the GR: during lifetime of child even after death of
first husband is considered the father if: (1) it putative father
be born AFTER 180 days after the XPN: Heirs in exceptional cases
solemnization of the second marriage; and (2) (b) If action is based on either: (1) open and
even if born within 300 days after the continuous possession of illegitimate status; or
termination of the previous marriage.

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

(2) any other action allowed by the ROC or (b) Any alien possessing the same qualifications as
special laws above stated for Filipino nationals: Provided, That
RULE: only during the lifetime of the alleged his/her country has diplomatic relations with the
parent Republic of the Philippines, that he/she has been
NB: since the FC makes no distinction as to WON the living in the Philippines for at least three (3)
child is a minor when the father dies – the court gives continuous years prior to the filing of the
the child 4 years from the time of attaining the age of application for adoption and maintains such
majority. residence until the adoption decree is entered, that
he/she has been certified by his/her diplomatic or
C. Illegitimate Children consular office or any appropriate government
agency that he/she has the legal capacity to adopt
Rights of an Illegitimate Child in his/her country, and that his/her government
1. Right to use surname of the mother unless the child allows the adoptee to enter his/her country as
acquires the right to use the surname of the his/her adopted son/daughter: Provided,
illegitimate father via (a) express recognition in Further, That the requirements on residency and
certificate of birth; or (b) admission of paternity of certification of the alien's qualification to adopt in
the father in a public document or a private his/her country may be waived for the following:
handwritten instrument (i) a former Filipino citizen who seeks to adopt
2. Parental Authority: with the mother even if the a relative within the fourth (4th) degree of
illegitimate child is recognized by the illegitimate consanguinity or affinity; or
father (ii) one who seeks to adopt the legitimate
3. Right to Receive Support (re: community property) son/daughter of his/her Filipino spouse; or
4. Successional Rights (iii) one who is married to a Filipino citizen and
5. Citizenship – only legitimate children follows the seeks to adopt jointly with his/her spouse a
citizenship of the father relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino
D. Legitimation spouse; or
Is the process provided under our law where the status of (c) The guardian with respect to the ward after the
a child conceived and born out of wedlock is improved, termination of the guardianship and clearance of
by operation of law, from illegitimacy to that of his/her financial accountabilities.
legitimacy by the mere subsequent marriage of the
parents. Reckoning Point – the child’s conception Husband and wife shall jointly adopt, except in the
following cases:
NB: the prescriptive period to impugn legitimation by (i) if one spouse seeks to adopt the legitimate
those whose rights may be prejudiced is 5 years from the son/daughter of the other; or
time of death or either of the parents of the child, from (ii) if one spouse seeks to adopt his/her own
whom the petitioner is a compulsory/intestate heir. illegitimate son/daughter: Provided, However,
ADOPTION that the other spouse has signified his/her consent
A. Domestic Adoption Act (RA 8552) thereto; or
(iii) if the spouses are legally separated from each
Who May Adopt other.
(a) Any Filipino citizen of legal age, in possession of
full civil capacity and legal rights, of good moral In case husband and wife jointly adopt, or one spouse
character, has not been convicted of any crime adopts the illegitimate son/daughter of the other, joint
involving moral turpitude, emotionally and parental authority shall be exercised by the spouses.
psychologically capable of caring for children, at
least sixteen (16) years older than the adoptee, and Who May Be Adopted
who is in a position to support and care for his/her (a) Any person below eighteen (18) years of age who
children in keeping with the means of the family. has been administratively or judicially declared
The requirement of sixteen (16) year difference available for adoption;
between the age of the adopter and adoptee may be (b) The legitimate son/daughter of one spouse by the
waived when the adopter is the biological parent of other spouse;
the adoptee, or is the spouse of the adoptee's (c) An illegitimate son/daughter by a qualified
parent; adopter to improve his/her status to that of

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

(d) A person of legal age if, prior to the adoption, said Succession rights shall revert to its status prior to
person has been consistently considered and adoption, but only as of the date of judgment of
treated by the adopter(s) as his/her own child since judicial rescission. Vested rights acquired prior to
minority; judicial rescission shall be respected.
(e) A child whose adoption has been previously All the foregoing effects of rescission of adoption
rescinded; or shall be without prejudice to the penalties imposable
(f) A child whose biological or adoptive parent(s) has under the Penal Code if the criminal acts are properly
died: Provided, That no proceedings shall be proven.
initiated within six (6) months from the time of
death of said parent(s).
B. Inter-Country Adoption Act (RA 8043)
Rights of an Adopted Child (re: 189-190, FC)
When Allowed
Whose Written Consent is Necessary to the Adoption The Board shall ensure that all possibilities for
(a) The adoptee, if ten (10) years of age or over; adoption of the child under the Family Code have
(b) The biological parent(s) of the child, if known, or been exhausted and that inter-country adoption is in
the legal guardian, or the proper government the best interest of the child. Towards this end, the
instrumentality which has legal custody of the Board shall set up the guidelines to ensure that steps
child; will be taken to place the child in the Philippines
(c) The legitimate and adopted sons/daughters, ten before the child is placed for inter-country adoption:
(10) years of age or over, of the adopter(s) and Provided, however, That the maximum number that
adoptee, if any; may be allowed for foreign adoption shall not exceed
(d) The illegitimate sons/daughters, ten (10) years of six hundred (600) a year for the first five (5) years.
age or over, of the adopter if living with said
adopter and the latter's spouse, if any; and Who May Adopt
(e) The spouse, if any, of the person adopting or to be An alien or a Filipino citizen permanently residing
adopted. abroad may file an application for inter-country
adoption of a Filipino child if he/she:
Instances when Adoption may be Rescinded 1. Is at least twenty-seven (27) years of age and at
Upon petition of the adoptee, with the assistance of the least sixteen (16) years older than the child to be
Department if a minor or if over eighteen (18) years of adopted, at the time of application unless the
age but is incapacitated, as guardian/counsel, the adopter is the parent by nature of the child to be
adoption may be rescinded on any of the following adopted or the spouse of such parent:
grounds committed by the adopter(s): 2. if married, his/her spouse must jointly file for the
(a) repeated physical and verbal maltreatment by the adoption;
adopter(s) despite having undergone counseling; 3. has the capacity to act and assume all rights and
(b) attempt on the life of the adoptee; responsibilities of parental authority under his
(c) sexual assault or violence; or national laws, and has undergone the appropriate
(d) abandonment and failure to comply with counseling from an accredited counselor in his/her
parental obligations. country;
Adoption, being in the best interest of the child, shall 4. has not been convicted of a crime involving moral
not be subject to rescission by the adopter(s). turpitude;
However, the adopter(s) may disinherit the adoptee 5. is eligible to adopt under his/her national law;
for causes provided in Article 919 of the Civil Code. 6. is in a position to provide the proper care and
support and to give the necessary moral values and
Effects of Rescission example to all his children, including the child to
If the petition is granted, the parental authority of be adopted;
the adoptee's biological parent(s), if known, or the 7. agrees to uphold the basic rights of the child as
legal custody of the Department shall be restored if the embodied under Philippine laws, the U.N.
adoptee is still a minor or incapacitated. The reciprocal Convention on the Rights of the Child, and to abide
rights and obligations of the adopter(s) and the by the rules and regulations issued to implement
adoptee to each other shall be extinguished. the provisions of this Act;
The court shall order the Civil Registrar to cancel 8. comes from a country with whom the Philippines
the amended certificate of birth of the adoptee and has diplomatic relations and whose government
restore his/her original birth certificate. maintains a similarly authorized and accredited

Civil Law Notes – Bar 2018
by: Kevin John D. Ampuan

agency and that adoption is allowed under his/her

national laws; and
9. possesses all the qualifications and none of the
disqualifications provided herein and in other
applicable Philippine laws.

Who May Be Adopted

Only a legally free child may be the subject of inter-
country adoption. In order that such child may be
considered for placement, the following documents
must be submitted to the Board:
1. Child study;
2. Birth certificate/foundling certificate;
3. Deed of voluntary commitment/decree of
abandonment/death certificate of parents;
4. Medical evaluation /history;
5. Psychological evaluation, as necessary; and
6. Recent photo of the child.

C. Distinction Between Domestic Adoption and Inter-

Country Adoption